Noles-Frye Realty (Nai Latter & Blum) v. Holly Dixon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-595

NOLES-FRYE REALTY (NAI LATTER & BLUM)

VERSUS

HOLLY DIXON, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 254,605
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

REVERSED IN PART AND
AFFIRMED IN PART.

William M. Ford
Susa Ford Fiser
The Ford Law Firm
1630 Metro Drive
Alexandria, LA 71301
Telephone: (318) 442-8899
COUNSEL FOR:
Defendants/Appellees – Holly Dixon, Sandra Damico, Diane Ratner,
and Jayne Robinson

Charles David Elliott
Charles Elliott & Associates
720 Murray Street
Alexandria, LA 71301
Telephone: (318) 704-6511
COUNSEL FOR:
Defendants/Appellees – Holly Dixon, Sandra Damico, Diane Ratner,
and Jayne Robinson

Christie C. Wood
Wilson & Wilson
P. O. Box 1346
Jena, LA 71342
Telephone: (318) 992-2104
COUNSEL FOR:
Defendants/Appellants – Andrea Talbot and Adrian Talbot

Michael S. Ricci
Jonathan L. Schultis
Brian G. Lebon, Jr.
James A. Gonczi
101 W. Robert E. Lee Boulevard – Suite 400
New Orleans, LA 70124
Telephone: (504) 304-7115
COUNSEL FOR:
Plaintiff/Appellee – Noles-Frye Realty (NAI LATTER & BLUM)

THIBODEAUX, Chief Judge.

This case arises from a failed real estate transaction between Andrea

Soltau-Talbot (hereinafter “the Buyer”)1, and Holly Dixon, Sandra Damico, Diane

Ratner, and Jayne 2 Robinson (hereinafter “the Sellers”). Following the failed

transaction, Noles-Frye Realty (hereinafter “the Realty Company”) instituted a

concursus proceeding so that the Sellers and the purported Buyer could claim

ownership to the underlying deposit of $30,000.00. The trial court ruled in favor

of the Sellers after observing that the Buyer failed to produce corroborating

documentary or testimonial evidence to support a finding that she was unable to

secure financing for the transaction. Thus, the Sellers were awarded the deposit.

The Buyer appealed and this court reversed the trial court’s judgment, finding that

the trial court was manifestly erroneous in its conclusion. Subsequently, this court

ordered the Rapides Parish Clerk of Court to pay the Buyer the full sum of the

deposit along with accumulated interest.

After the matter was remanded, the Clerk of Court refused to refund

the total sum of the deposit held in registry. The Buyer then filed a Motion to

Release Funds in the Registry of the Court and to Tax Costs and Fees. The Sellers

responded to the Buyers request by filing an Answer and Affirmative Defense,

Declinatory Exception of Lack of Jurisdiction over Subject Matter, Peremptory

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Although not a signatory to the purchase agreement, the concursus proceeding also listed
Dr. Adrian Talbot, Mrs. Soltau-Talbot’s husband, as a defendant. Although Dr. Talbot is an
appellant here, we reference Mrs. Soltau-Talbot as the buyer.
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We recognize the name of Defendant Appellee JAYNE ROBINSON has been spelt a
number of ways throughout the record, (appearing as “JAN” in the trial court’s judgment,
“JAYN” in this court’s previous opinion, and “JAYNE” on Defendant Appellee’s brief) however
we now apply the “JAYNE” spelling of Defendant Appellee’s name for clarity.

Exceptions of Res Judicata and No Cause of Action and Motion to Dismiss. The

Realty Company responded by filing an Opposition asking the court to dismiss the

Buyer’s Motion. The trial court determined that Res Judicata was applicable; that

the previous judgment was final and that the issue had been litigated. Thereafter, a

judgment was rendered ordering a refund to the Buyer of only a portion of the

deposit and denying the Buyer’s claim for attorneys fees and costs. The Buyer

now asserts that the trial court erred when it refused to refund the deposit and

refused to award attorneys fees and cost. For the following reasons, we reverse in

part and affirm in part, rendering judgment in favor of the Buyer.

I.

ISSUES

We must decide:

(1) whether the trial court erred in failing to return
the full deposit amount of $30,000.00 to the
Buyer; and

(2) whether the trial court erred in failing to tax
costs and attorneys fees against the non-
prevailing parties in this concursus proceeding.

II.

FACTS AND PROCEDURAL HISTORY

In December 2015, the Realty Company filed a Petition for Concursus

instituting this matter. The parties to the underlying transaction, a September 2015

Louisiana Residential Agreement to Buy or Sell (“the Agreement”), were named as

defendants in the proceeding. By the Agreement, the Buyer sought to purchase

residential property in Alexandria offered for sale by the Sellers and placed a

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deposit in the amount of $30,000.00 with the Realty Company. Although the

closing date was extended twice, the sale was not completed.

At the trial of the concursus proceeding, both the Buyer and the

Sellers claimed entitlement to the $30,000.00 deposit provided by the Buyer

pursuant to the Agreement. The evidence established that the Buyer made an offer

which was contingent upon ability to obtain financing. The court determined,

however, that the Buyer failed to prove that she made a good faith effort to obtain

financing. Thus, the trial court ruled in favor of the Sellers and ordered that

Rapides Parish Clerk of Court tender the subject deposit to them. The Buyers then

appealed the judgment and this court reversed and issued the following ruling:

For the foregoing reasons, the judgment of the trial court
is reversed. Judgment is recast and rendered as follows:

IT IS ORDERED, ADJUDGED AND
DECREED that there be a Judgment in
favor of ANDREA TALBOT and ADRIAN
TALBOT, M.D. and against HOLLY
DIXON, SANDRA DAMICO, DIANE
RATNER, and JAYN ROBINSON, and
further the Rapides Parish Clerk of Court is
ordered to pay unto ANDREA TALBOT
and ADRIAN TALBOT the sum of
$30,000.00 on deposit in the Registry of the
Ninth Judicial District Court, Parish of
Rapides, along with all of the accumulated
interest.

All costs of this proceeding are assessed to the appellees,
Holly Dixon, Sandra Damico, Diane Ratner, and Jayn
Robinson.

Noles-Frye Realty (Nai Latter & Blum) v. Dixon, 17-965 (La.App. 3 Cir. 5/9/18),

246 So.3d 603, 609-10.

Contrary to the clear language of the decree, the Rapides Parish Clerk

of Court failed to return the full deposit amount of $30,000.00 to the Buyer.

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Consequently, the Buyer filed a Motion to Release the Funds Held in Registry of

the Court and to Tax Cost and Fees. After a hearing, the trial court granted the

Sellers’ Exception of Res Judicata and concluded that the previous judgment was

final and that the issue had been litigated. Thereafter, a judgment was rendered

ordering a refund of $25,510.05 to the Buyer, only a portion of the deposit and

denying the Buyer’s claim for attorneys fees and costs.

III.

STANDARD OF REVIEW

“Appellate review of a question of law is simply a decision as to

whether the trial court’s decision is legally correct or incorrect.” Harruff v. King,

13-940 (La.App. 3 Cir. 5/14/14), 139 So.3d 1062, 1066, writ denied, 14-1685 (La.

11/7/14), 152 So.3d 176 (quoting Dugan v. Gen. Servs. Co., 01-511, p. 3 (La.App.

3 Cir. 10/31/01), 799 So.2d 760, 763, writ denied, 01-3327 (La. 3/15/02), 811

So.2d 942). When a “trial court’s decision is based on its erroneous application of

law… its decision is not entitled to deference by the reviewing court.” Id. When

an appellate court finds reversible error of law, the appellate court “must

redetermine the facts de novo from the entire record and render a judgment on the

merits. Id.

IV.

LAW AND DISCUSSION

The Buyer contends that the trial court’s failure to refund the entire

deposit amount is an abuse of discretion. We agree. The Rapides Parish Clerk of

Court erred under Louisiana Code of Civil Procedure Article 4659, which

addresses the costs of concursus proceedings. Article 4659 states in pertinent part:

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The court may award the successful claimant
judgment for the costs of the proceeding which have
been deducted from the money on deposit, or any
portion thereof, against any other claimant who
contested his right thereto, as in its judgment may be
considered equitable. In all other instances, the court
may render judgment for costs as it considers
equitable.

This court rendered judgment in favor of the Buyer for the return of the $30,000.00

deposit without deducting costs of the proceedings. In contrast, the trial court

returned only $25,510.05 of the $30,000.00 deposit to the Buyer. Therefore, this

court again orders a return of the full deposit amount of $30,000.00 to the Buyer.

Furthermore, this court specifically stated, “All costs of this

proceeding are assessed to the appellees, Holly Dixon, Sandra Damico, Diane

Ratner, and Jayn Robinson.” Noles-Frye Realty (Nai Latter & Blum) v. Dixon, 17-

965 (La.App. 3 Cir. 5/9/18), 246 So.3d 603, 609-10 (emphasis added). Hence, this

court included all aspects of this proceeding, enveloping both the costs of the

appeal and the costs at the trial level. This interpretation is also buttressed by the

second sentence of Article 4659 cited above. There is no doubt that the Buyer is

the successful claimant in this proceeding. As such, we are using our discretionary

authority to grant what Article 4659 allows. This court finds that taxing costs to

the Sellers is equitably appropriate. The successful party should not be punished

for pursuing what was rightfully theirs particularly in light of this court’s previous

opinion and judgment.

However, the Buyer’s assertion that the Realty Company should be

taxed with costs is negated by Louisiana Code of Civil Procedure Article 4658.

Article 4658 states, “[A]fter the deposit of money into the registry of the court, the

plaintiff is relieved of all liability to all of the defendants for the money so

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deposited.” Here, the Realty Company deposited the $30,000.00 into the registry

of court initiating a concursus proceeding. Therefore, under Article 4658 it is

unequivocally clear that the Realty Company faces no liability in this proceeding

and should not be taxed with costs.

We must now address the issue of the Buyer’s entitlement to attorneys

fees. Here, we find that the Buyer is correct in her assertion that she faced

unnecessary harm due to the Clerk of Court’s failure to return the full deposit

amount of $30,000.00. However, we do not find that the Buyer is entitled to

attorneys fees. Instead, we find that the Buyer failed to raise the issue of attorneys

fees prior to the matter being adjudicated. At oral argument, counsel for the Buyer

asserted that there was an agreement between the Buyer and the Sellers concerning

the bifurcation of issues. Nevertheless, a review of the record does not reveal any

evidence alluding to the agreement nor any discussion over the bifurcation.

The only evidence of attorneys fees in the record appears in the

Buyer’s Answer to Petition for Concursus and Cross-Claim and in the Motion to

Amend Pleadings to Conform to Evidence and Recognize Counter-Claim Against

Plaintiff. Throughout the course of this proceeding, attorneys fees were never

mentioned again. At trial and on appeal the parties solely litigated over whom

should be entitled to the deposit. Therefore, the issue of attorneys fees was never

litigated nor adjudicated. Consequently, we cannot grant the Buyer’s request for

attorneys fees.

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V.

CONCLUSION

For the foregoing reasons, we find that the Buyer is entitled to full

refund of the $30,000.00 deposit along with accumulated interest. Additionally,

costs are assessed to the Sellers, and the Buyer’s request for attorneys fees are

denied.

REVERSED IN PART AND AFFIRMED IN PART.

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