Nolton Dalcourt v. Thomas Moyer

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 19-407

NOLTON DALCOURT

VERSUS

THOMAS MOYER, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 83622
HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.

REVERSED AND RENDERED.

Mark Morovich Bonura
7733 Maple Street
New Orleans, LA 70118
(504) 532-3018
COUNSEL FOR DEFENDANTS/APPELLEES:
Thomas Moyer
Sherry Craig Moyer

John W. Tilly
Keaty & Tilly, LLC
2701 Johnston St, Ste 303
Lafayette, LA 70503
(337) 347-8995
COUNSEL FOR PLAINTIFF/APPELLANT:
Nolton Dalcourt

EZELL, Judge.

Nolton Dalcourt appeals a trial court judgment finding he breached a

purchase agreement to sell his house and holding he owed costs and attorney fees

to the potential buyers. Mr. Dalcourt argues that it was the buyers who breached

the agreement.

FACTS

In 2014, Mr. Dalcourt decided to sell his house situated on 4.1 acres in St.

Martinville, Louisiana. Sherry and Thomas Moyer contacted Dennis Jones, the

agent who listed the house, about purchasing the house. Mr. Jones became a dual

agent for both the buyers and the seller at the Moyers’ request. On June 1, 2015,

the parties agreed that the Moyers would purchase the property for $455,000.00.

An addendum provided that Mr. Dalcourt would give the Moyers $35,000.00 as an

allowance for repairs which would be withheld from the proceeds at closing. Mr.

Dalcourt also agreed to leave the pool table upstairs, the workout equipment, and

the theater room seating. The closing date was set for June 30, 2015. A due

diligence period of fourteen days, commencing the first day after the agreement

was accepted, was set for the Moyers to have an expert inspect the property and

investigate other concerns that the buyers may have.

An inspection of the house was performed by an inspector on the last day of

the due diligence period, June 15, 2015. Mr. Moyer expressed concerns after the

inspection about a leaking air conditioner, clogged gutters, and wood damage. He

did not express a concern that the shed could not be inspected. The parties came to

an agreement, and an addendum to the purchase agreement was signed by both the

Moyers and Mr. Dalcourt on June 16, 2015. The addendum provided a reduced

purchase price of $416,000.00, with the seller paying $12,000.00 in closing costs,

and the repair allowance of $35,000.00 was voided from the contract. Evidence in

the record indicates that the lender would not approve of withholding $35,000.00

from the proceeds at closing.

A couple of days following the inspection, Mr. Moyer used some software to

lay out the property with measurements he had taken of the home and property

with a tape measure. He concluded that the property line would split the driveway

in half. He based his conclusion on representations from Mr. Jones as to the

location of the boundary lines on the property. Mr. Jones told Mr. Moyer that the

cut area around the property was the boundary. Mr. Moyer opined that the

property was not as wide as suggested by Mr. Jones. Mr. Moyer then called Mr.

Jones and requested a survey. He was told by Mr. Jones that Mr. Dalcourt had a

survey. Mr. Dalcourt testified that he never had a survey and had no idea why Mr.

Jones would tell Mr. Moyer that he did.

Approximately three days before the closing set for June 30, Mr. Dalcourt

was notified that there was a question about encroachment issues and the

boundaries of the property. Mr. Jones called Mr. Dalcourt and asked if Mr. Moyer

could send someone out to perform a survey that day and locate the stakes. Mr.

Dalcourt testified that no one was home that day but that any other day would be

acceptable.

Mr. Moyer testified that he contacted a real estate attorney after he could not

get a survey and was told that there was a twenty-foot servitude on the right side of

the home, which coupled with the width of the home, would have the driveway

encroaching on the neighboring property.

On June 27, 2015, the Moyers signed an addendum to the purchase

agreement stating they wished to void the contract and seeking return of the

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$4,000.00 deposit. Mr. Dalcourt attempted to salvage the sale and submitted

another signed addendum on July 15, extending the closing date to on/or before

August 15, to allow time to survey the property. This addendum listed the sales

price at $416,000.00, with Mr. Dalcourt paying $12,000.00 in closing costs and

prepaid items. The addendum also provided for additional conditions concerning

the survey. If the survey showed no encroachment of the driveway onto the

neighboring property, the Moyers would assume the cost of the survey and the

$4,000.00 deposit would be awarded to Mr. Dalcourt if they did not purchase the

property. If there was an encroachment that prevented the Moyers from

purchasing the property, Mr. Dalcourt would be entitled to remedy the issue per the

purchase agreement. If Mr. Dalcourt was unable to remedy the agreement, then

the $4,000.00 deposit would go to the Moyers. The addendum further provided

that the Moyers order an appraisal and title work within twenty-four hours of

signing the addendum by all parties, and Mr. Dalcourt would order a survey within

twenty-four hours of signing the addendum by all parties. The repair allowance of

$35,000.00 would be voided from the contract. The pool table upstairs, the

workout equipment, and theater room seating would remain with the property.

Other than closing date, no other deadlines were extended. The Moyers never

signed this addendum.

On July 19, 2015, Nancy Marcotte, broker of the Keller Williams company

that listed the house, sent a letter to the Moyers explaining why she was giving the

$4,000 deposit to Mr. Dalcourt. The house was later foreclosed on by Mr.

Dalcourt’s bank and sold.

On February 8, 2016, Mr. Dalcourt filed suit against the Moyers claiming

that they were in default of the purchase agreement and seeking termination of the

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agreement and stipulated damages of 10% of the sales price. He also sought

attorney fees and costs. Additionally, Mr. Dalcourt sought compensation for the

rent he paid to live in another residence when he had to lease other property in

anticipation of the sale of the house.

The Moyers answered the suit and denied liability alleging that Mr. Dalcourt

misrepresented the size of the property. They further allege that Mr. Dalcourt

failed to allow them to inspect the property or to have it surveyed. The Moyers

also claimed that there were encroachments that affected ingress and egress out of

the property.

A trial of the matter was held on November 21, 2017. The trial court ruled

in favor the Moyers ordering the return of the $4,000.00 deposit to the Moyers.

The trial court also awarded attorney fees and costs to the Moyers. Mr. Dalcourt

then appealed the judgment this court.

In Dalcourt v. Moyer, 18-412 (La.App. 3 Cir. 12/6/18), 260 So.3d 694, this

court found that the trial court’s judgment was not a final, appealable judgment

because the judgment failed to specify an amount awarded in attorney fees and

costs and only asked for an itemization of attorney fees and costs. The judgment

further stated that if the parties could not agree as to the amount, the Moyers

should file a rule to show cause for such a determination. This court dismissed the

appeal and remanded the case for further proceedings because the judgment did not

indicate the amount of recovery with certainty and precision.

On remand, a supplemental judgment was entered on February 1, 2019, with

the trial court awarding attorney fees and costs in the amount of $13,981.96. Mr.

Dalcourt then filed the present appeal. On appeal, Mr. Dalcourt asserts two

assignments of error. He first claims the trial court erred in not applying the clear

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and unambiguous language of the agreement when it found that the Moyers did not

breach the contract by terminating the agreement after the deadline to do so had

passed. In his second assignment of error, Mr. Dalcourt claims the trial court erred

in finding him in default of the agreement when it found he had the obligations to

disclose information and allow access to property when no such language in the

contract obligated him to do so.

PURCHASE AGREEMENT

Both of Mr. Dalcourt’s assignments of error center around the language of

the purchase agreement and the actions of parties pertaining to the agreement. In

making its conclusion that Mr. Dalcourt breached the purchase agreement and the

Moyers did not, the trial court ruled that:

In conclusion, based upon the testimony and evidence, the
Court finds that Mr. Dalcourt failed to comply with the terms and
conditions of the contract by failing to provide immediate access to
the property during inspection, failing to provide the appropriate
water/sewerage inspection certificate, failing to resolve the boundary
dispute, failing to notify of liens and servitudes on the property, and
failing to provide merchantable title to the property.

The trial court further found that:

Thomas Moyer and Sherry Craig Moyer are not in default of the
contract’s terms and conditions. The Moyers provided a deposit;
provided appropriate funding information by submitting a loan
application; performed an inspection and notified of discrepancies
within the due diligence period; notified the agent that they wished to
terminate the agreement with a return of deposit when Seller refused
to make the requested repairs. However, the Seller refused to accept
the buyer’s decision and proposed that funds be withheld at closing
for the repairs in the amount of $35,000.00, and then, when the lender
would not accept those terms, the parties agreed to a reduction of the
sales price. All of this negotiation took place after the inspection and
due diligence time period without opposition by either party. Upon
learning of the property boundary discrepancies, the Moyers notified
the seller and requested the seller to supply a survey. When Nolton
Dalcourt refused to supply a survey, the Moyers requested their own
survey, they were again denied immediate access to the property. The

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Moyers at that point informed the buyer, in writing, that they were
terminating the contract and requested a return of their deposit.

A contract is to be interpreted according to the common intent of the parties.

La.Civ.Code art. 2045. “When the words of a contract are clear and explicit and

lead to no absurd consequences, no further interpretation may be made in search of

the parties’ intent.” La.Civ.Code art. 2046.

This court in Clinkscales v. Columns Rehabilitation and Retirement Center,

08-1312, p. 3 (La.App. 3 Cir. 4/1/09), 6 So.3d 1033, 1035-36 (alterations in

original), explained the standard of review regarding the interpretation of a

contracts as follows:

Where factual findings are pertinent to the interpretation
of a contract, those factual findings are not to be disturbed
unless manifest error is shown. However, when appellate
review is not premised upon any factual findings made at the
trial level, but is, instead, based upon an independent review
and examination of the contract on its face, the manifest error
rule does not apply. In such cases, appellate review of questions
of law is simply whether the trial court was legally correct or
legally incorrect. (citations omitted).

Evangeline Parish Sch. [Bd.] v. Energy Contr., 617 So.2d 1259, 1265
(La.App. 3 Cir.), writ denied, 624 So.2d 1228 (La.1993) (quoting
Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924, 928 (La.App.
1 Cir.), writ denied, 545 So.2d 1041 (La.1989)).

Failure to Provide Survey and Allow Inspection

The trial court found that Mr. Dalcourt did not allow access to a shed during

the inspection period and Mr. Moyer was not provided immediate access to the

property once he sought to determine if there were boundary issues after the due

diligence period passed.

The purchase agreement provided for an inspection and due diligence period

as follows:

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INSPECTION AND DUE DILIGENCE PERIOD: The BUYER
ACKNOWLEDGES THAT THE SALE PRICE OF THE
PROPERTY WAS NEGOTIATED BASED UPON THE
PROPERTY’S APPARENT CURRENT CONDITION;
ACCORDINGLY, the SELLER IS NOT OBLIGATED TO MAKE
REPAIRS TO THE PROPERTY, INCLUDING REPAIRS
REQUIRED BY THE LENDER UNLESS OTHERWISE STATED
HEREIN, THE SELLER IS RESPONSIBLE FOR MAINTAINING
THE PROPERTY IN SUBSTANTIALLY THE SAME OR BETTER
CONDITIONS AS IT WAS WHEN THE AGREEMENT WAS
FULLY EXECUTED.

The BUYER shall have an inspection and due diligence period of (14)
calendar days, commencing the first day after acceptance of this
Agreement wherein, the BUYER may, at the BUYER’S expense,
have any inspections made by experts or others of his choosing. Such
physical inspections may include, but are not limited to, inspections
for termites or other wood destroying insects, and/or damage from
same, molds, and fungi hazards, and analysis of synthetic stucco,
drywall, appliances, structures, foundations, roof heating, cooling,
electrical, plumbing systems, utility and sewer availability and
condition, out-buildings, and square footage. Other due diligence by
the BUYER my include, but is not limited to investigation into the
property’s school district, insurability, flood zone classifications,
current zoning and/or subdivision restrictive covenants and any items
addressed in the SELLER’S Property Disclosure Document. All
testing shall be nondestructive testing. The SELLER agrees to
provide the utilities for inspections and immediate access. If the
BUYER is not satisfied with the condition of the Property of the
results of the BUYER’S due diligence inspection, the BUYER may
choose one of the following options within the inspection and due
diligence period:

Option 1: The BUYER may elect, in writing to terminate the
Agreement and declare the Agreement null and void;
Or
Option 2: The BUYER may indicate in writing the deficiencies and
desired remedies and the SELLER will within seventy-two (72) hours
respond in writing as to the SELLER’S willingness to remedy those
deficiencies (“SELLER’S Response”).

Should the SELLER in the SELLER’S Response refuse to remedy any
or all of the deficiencies listed by the BUYER, then the BUYER shall
have seventy-two (72) hours from the date of the SELLER’S
Response or seventy-two (72) hours from the date that the SELLER’S
Response was due, whichever is earlier, to: (a) accept the SELLER’S
Response to the BUYER’S written requests or (b) accept the Property
in its current condition, or (c) to elect to terminate this Agreement.
The BUYER’S response shall be in writing. Upon the BUYER’S

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failure to respond to the SELLER’S Response by the time specified or
the BUYER’S electing, in writing, to terminate this Agreement, the
Agreement shall be automatically, with no further action required by
either party, ipso facto null and void except for return of Deposit to
the BUYER.

There is no doubt that the contract provided a fourteen-day due diligence

period, commencing the day after the purchase agreement was signed. The

Moyers were never denied access during this period, as Mr. Moyer agreed the

property was inspected on the last day of the due-diligence period, June 15, 2015.

Following this inspection, Mr. Moyer explained that the inspector discovered that

the air conditioning unit was leaking, the gutters were clogged, and there was some

wood deterioration, in addition to a few other minor issues. Mr. Moyer did tell Mr.

Jones that the inspector did not have access to the back shed, which was locked.

Although the Moyers’ inspector could not access the shed on the property, they

never complained nor sought access to the shed. Regardless, an addendum to the

purchase agreement was signed by all parties on June 16, 2015, reducing the

purchase price to $416,000.00 and removing the repair allowance of $35,000.00

from the contract. At this point, the sale continued to move forward. No other

deficiencies were mentioned during the inspection period.

Reviewing the written reasons for judgment, it is obvious that the trial

court’s biggest concern was the refusal of Mr. Dalcourt to allow Mr. Moyer’s

surveyor access to the property to perform the survey on the same day as the

request was made. This request was not made until well after the due diligence

period passed and just three days before the closing. The trial court found that the

lender halted the sale because it required the survey. However, the lender did not

require the survey until it was notified by Mr. Moyer that there may be a boundary

issue which was based on his personal observations after the due diligence period.

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Mr. Moyer explained that he asked Mr. Jones if there was a survey. It was

Mr. Jones who told Mr. Moyer that Mr. Dalcourt had a survey. Mr. Dalcourt

testified that he never had a survey and never told Mr. Jones that he had survey.

Nothing in the contract required Mr. Dalcourt to provide a survey. When Mr.

Dalcourt built the house, he explained that he placed the house on the lot using

points plotted by CPS Engineering. Mr. Dalcourt testified that there was never a

boundary issue as long as he lived there.

Furthermore, there is no provision in the contract that required Mr. Dalcourt

to allow access to the property after the due diligence period and before the closing

date. Mr. Dalcourt did agree to allow access to the property to perform a survey at

any other time, other than that day. He explained that no one was home the day of

the initial request. Mr. Moyer is the party who did not take advantage of

inspection until the last day of the due diligence period, which was clearly set forth

in the purchase agreement signed by all the parties.

Even after Mr. Moyer sought to cancel the contract, Mr. Dalcourt tried to

save the deal by offering an addendum that provided for a survey to be performed

and how the sale would be handled, depending on the findings of the survey. As of

trial, there was no evidence that there were boundary issues with property, other

than Mr. Moyer’s personal observations based on his measurements.

We find the trial court was clearly wrong in finding that Mr. Dalcourt failed

to allow inspection of the property as required by the contract. Mr. Moyer was

able to inspect the property during the due diligence period. Nothing in the

contract provided for an inspection after this time period. All parties even signed a

new addendum following the due diligence period with no concerns about

boundaries or a request to survey the property. Regardless, Mr. Dalcourt did offer

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to allow an inspection for a survey and extend the closing date. He did not violate

the terms of the contract by refusing to allow someone at the house on the day

requested after the due diligence period, when no one was home.

We do agree with the trial court that there appear to be some issues with Mr.

Jones’ handling of the situation as a dual agent. However, the failure to call Mr.

Jones cannot be attributed solely to Mr. Dalcourt when the Moyers could have also

called Mr. Jones to testify. Shelvin v. Waste Mgt., Inc., 580 So.2d 1022 (La.App. 3

Cir. 1991); Lawrence v. Gov’t Employees Ins. Co., 13-1296 (La.App. 4 Cir.

10/15/14), 151 So.3d 917, writ denied, 14-2382 (La. 2/6/15), 158 So.3d 821.

Failure to Perform Septic/Treatment Inspection

The trial court also found that Mr. Dalcourt failed to obtain a water/sewerage

inspection certificate and provide it to the Moyers as required by the contract. The

purchase agreement provided that Mr. Dalcourt had to return the deposit to Mr.

Moyer if he failed to “timely deliver . . . an approved sewerage and/or water

inspection report as set forth” in the following addendum:

This addendum is made a part of Louisiana Residential Agreement to
Buy or Sell dated 06 01 2015.

1. (x) SEPTIC/TREATMENT INSPECTION – The SELLER agrees
to have 1 septic/treatment system(s) servicing only the primary
residence inspected and approved by the appropriate
governmental/governing authority. If the system(s) fail inspection,
SELLER shall have the option to repair/replace the system(s) as long
as the cost to repair/replace the system(s) does not exceed the sum of
$1,000.00. If the cost to repair/replace the system(s) exceeds that
amount and the SELLER chooses not to repair/replace the system(s),
the BUYER shall have the option of accepting the Property with the
private septic/treatment system(s) servicing only the primary
residence in the current condition or terminate the Agreement in
writing, which termination shall entitle the BUYER to a return of the
BUYER’S deposit. Any repair/replacement of the system(s) must be
permitted by the Louisiana Department of Health and Hospitals Office
of Public Health, if applicable.

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Mr. Dalcourt agreed that the sewer inspection was not performed. He

testified that he never received notice that the Moyers wanted out of the purchase

agreement because he failed to have the septic system inspected. Mr. Dalcourt

agreed that he did not have the inspection performed because it is expensive, and

he wanted to make sure the sale was going to be completed before he spent the

money. In their answer, the Moyers did not complain that Mr. Dalcourt breached

the purchase agreement for failure to conduct an inspection of the septic system.

When a term for the performance of an obligation is either fixed,
or is clearly determinable by the circumstances, the obligor is put in
default by the mere arrival of that term. In other cases, the obligor
must be put in default by the obligee, but not before performance is
due.

La.Civ.Code art. 1990.

We first observe that there is no specific time listed that Mr. Dalcourt was

required to inspect the septic system, other than to timely deliver the report. The

Moyers gave notice that they wanted to terminate the contract on June 27, 2015,

three days before closing. Mr. Moyer agreed that he never gave notice of an

intention to cancel the sale due to lack of a septic system inspection. There is no

evidence that Mr. Dalcourt refused to comply with his obligation to inspect the

septic system prior to the completion of the sale or that he was put on notice that

failure would render him in breach of the contract. The Moyers terminated the

purchase agreement before Mr. Dalcourt could complete his obligations under the

contract. We find the trial court clearly erred in finding Mr. Dalcourt breached the

purchase agreement by failing to have the septic system inspected before Mr.

Moyer sought cancellation of the purchase agreement.

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Failure to Disclose Tax Lien

At trial, Mr. Dalcourt admitted that, in addition his home mortgage, there

was a federal tax lien on the property and a judgment against him in favor of

Louisiana ASH, the company that poured the driveway. He also explained that the

bank halted foreclosure proceedings once he signed the purchase agreement with

the Moyers.

We first observe that the Moyers never complained about the failure to

disclose a tax lien against the property before they terminated the purchase

agreement. Nothing in the purchase agreement required that Mr. Dalcourt disclose

any liens or encumbrances. However, Mr. Dalcourt was required to deliver

merchantable title.

“A merchantable title is one that ‘can be readily sold or mortgaged in the

ordinary course of business by reasonable person[s] familiar with the facts and

questions involved.’” Davis v. St. Romain, 16-811, p. 8 (La.App. 3 Cir. 6/7/17),

222 So.3d 793, 799 (quoting Vallery v. Belgard, 379 So.2d 1201, 1204 (La.App. 3

Cir. 1980) (citing Young v. Stevens, 252 La. 69, 209 So.2d 25 (1967))). “Title does

not become unmerchantable merely because litigation is possible, but only when

the title is reasonably suggestive of future litigation.” Bart v. Wysocki, 558 So.2d

1326, 1328-29 (La.App. 4 Cir. 1990). “Title is deemed unmerchantable only when

there are outstanding rights in a third person of substantial nature against the

property, subjecting the vendee to [serious] litigation.” Id. at 1329. “[A] purchaser

cannot refuse title because of encumbrances which can be satisfied from the

purchase price.” Treadaway v. Williams, 163 So.2d 911, 914 (La.App. 4 Cir.

1964).

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There is no testimony or evidence in the record indicating that the lien or

judgment could not be satisfied from the proceeds of the sale. Mr. Moyer testified

that he applied for a loan at Central Federal Credit Union, but it fell through when

he told the lender about his boundary concerns. This in turn halted the appraisal

process. The sale did not fall through because there was a judgment against Mr.

Dalcourt and a lien on the property.

We find the trial court manifestly erred in finding that Mr. Dalcourt

breached the purchase agreement by failing to disclose a tax lien. There is no

evidence that Mr. Dalcourt could not provide merchantable title to the property.

Failure to Disclose a Servitude

Finally, the trial court found Mr. Dalcourt in breach of the purchase

agreement for failing to disclose a twenty-foot servitude affecting the use of the

property. The issue of the servitude was raised by the Moyers after the due

diligence period when they had questions about the boundary. Mr. Moyer

contacted a real estate attorney when he had concerns about the boundaries of the

property. The attorney notified him a couple of days later about the twenty-foot

servitude on the property.

The purchase agreement provided that “[t]he property will be sold and

purchased subject to title and zoning restrictions, servitudes of record, and law or

ordinances affecting the Property.” At trial, Mr. Dalcourt was cross-examined

about a property disclosure form for residential real estate he signed on April 13,

2014. He agreed that he responded “no” to the question, “Are there any servitude,

encroachments regarding the property other than typical customary utility

servitudes that would affect the use of the property?”

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The servitude at issue was granted by Mr. Dalcourt in favor of the Southwest

Louisiana Electric Membership Corporation (SLEMCO) on September 28, 2009.

The servitude provides SLEMCO the right to transmit electricity across the land

and all other accessory rights necessary to transmit electricity. The servitude was

recorded in the St. Martinville Parish Clerk of Court records on January 6, 2010.

In this modern age, most homes are supplied with electricity. We find that

Mr. Dalcourt was not required to disclose the SLEMCO servitude, as it is a

customary utility servitude for transmission of electricity to the home. The trial

court was in legal error in finding that Mr. Dalcourt failed to disclose a servitude

when the property disclosure form did not require him to disclose a customary

utility servitude, such as an electrical servitude.

Once the addendum was signed on June 16, 2015, the contract was in place

with both buyers and sellers agreeing to the terms. Mr. Moyer acknowledged that

he and his wife sought cancellation of the purchase agreement solely due to their

concerns about the boundaries and the electrical servitude on the property. The

due diligence period had passed when the Moyers began to have concerns

regarding the boundaries of the property. Mr. Dalcourt attempted to work with the

Moyers, even though he was not required to do so under the purchase agreement,

but to no avail. Furthermore, there is no evidence whatsoever that there is or was a

boundary problem with the property. We find that the trial court was in error in

finding that Mr. Dalcourt breached the purchase agreement. When the Moyers

cancelled the purchase agreement alleging boundary issues and failure to disclose a

servitude, Mr. Dalcourt was not in breach of the purchase agreement. Clearly, the

Moyers breached the purchase agreement when they attempted to terminate the

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contract after the due diligence period passed. The purchase agreement clearly

provides that:

FAILURE TO GIVE WRITTEN NOTICE OF EITHER
TERMINATION OR DEFICIENCIES AND DESIRED REMEDIES
TO THE SELLER (OR THE SELLER’S DESIGNATED AGENT)
AS SET FORTH IN LINES 150 THROUGH 173 WITHIN THE
INSPECTION AND DUE DILIGENCE PERIOD SHALL BE
DEEMED AS ACCEPTANCE BY THE BUYER OF THE
PROPERTY’S CURRENT CONDITION.

The Moyer’s intention not to honor the purchase agreement “constituted an

active breach of the purchase agreement.” Berenson v. McNeill, 597 So.2d 94, 96

(La.App. 4 Cir.), writ denied, 600 So.2d 606 (La.1992). The purchase agreement

only contemplated a return of the deposit if the “[a]greement is declared null and

void by the BUYER during the inspection and due diligence period.” The Moyers

did not seek to terminate the agreement until after the due diligence period passed

and shortly before closing.

For these reasons, we reverse the judgment of the trial court finding that Mr.

Dalcourt breached the purchase agreement. We find that the Moyers breached the

purchase agreement and therefore reverse the judgment of December 13, 2017,

awarding them the return of the $4,000 deposit. We also reverse the supplemental

judgment of February 1, 2019, awarding attorney fees and costs in the amount of

$13,981.96. Mr. Dalcourt has only asked this court to reverse the judgment of the

trial court finding him in default of the purchase agreement and failing to find that

the Moyers breached the agreement. He has not requested any type of damages.

Therefore, we make no award of any damages to Mr. Dalcourt. Costs of this

appeal are assessed to Sherry and Thomas Moyer.

REVERSED AND RENDERED.

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