Rue Du Belier Cove, LLC v. Ragin' Properties, LLC

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

24-325

RUE DU BELIER COVE, LLC

VERSUS

RAGIN’ PROPERTIES, LLC

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ON APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20205884
HONORABLE THOMAS J. FREDERICK, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Clayton Davis,
Judges.

REVERSED.

Bart J. Hebert
J. Brent Barry
Boyer, Hebert & Angelle, LLC
401 East Mills Avenue
Breaux Bridge, Louisiana 70517
(337) 332-0616
COUNSEL FOR DEFENDANT/APPELLANT:
Ragin’ Properties, LLC

Jason A. Cavignac
Claire E. Pontier
Jeffrey T. Pastorek
Couhig Partners, LLC
3250 Energy Centre, 1100 Poydras Street
New Orleans, Louisiana 70163
(504) 588-1288
COUNSEL FOR PLAINTIFF/APPELLEE:
Rue Du Belier Cove, LLC

Barry J. Sallinger
820 E. St. Mary Boulevard
Lafayette, Louisiana 70503
(337) 235-5791
COUNSEL FOR PLAINTIFF/APPELLEE:
Rue Du Belier Cove, LLC

PERRY, Judge.

In this lawsuit involving the breach of an agreement to purchase property,

Defendant/Appellant, Ragin’ Properties, LLC (“Ragin”), appeals the grant of

summary judgment in favor of Plaintiff/Appellee, Rue Du Belier Cove, LLC

(“RDBC”). The trial court found Ragin breached the purchase agreement and

awarded RDBC contractual stipulated damages and attorney fees. For the reasons

that follow, we reverse the judgment of the trial court granting summary judgment

in favor of RDBC.

FACTS AND PROCEDURAL HISTORY

In September 2020, RDBC agreed to sell three townhouses to Ragin.1 The

parties entered into a Louisiana Residential Agreement to Buy or Sell (“purchase

agreement”), wherein they agreed to close on the sale on or before October 26, 2020.

The purchase agreement also provided remedies for default, including declaring the

purchase agreement null and void or suing for termination of the purchase

agreement, stipulated damages in the amount equal to ten percent of the sales price,

and retention of the deposit.

Hurricane Delta made landfall in Calcasieu Parish on or about October 9,

2020.2 Following the aftermath, the parties made amendments to the agreement due

to damage to the townhouses which were subject to the sale. After an inspection of

the property, Ragin completed a pre-printed addendum to the purchase agreement

entitled “Buyer Response to Property Inspection Form” (“Buyer Form”). In the

1
The agreed upon price of the three townhouses located at 1, 3, 7 Townhouse Cove,
Lafayette, Louisiana, was $315,000.00.
2
Though Hurricane Delta made landfall in Calcasieu Parish, it caused damage in Lafayette
Parish where the townhouses at issue are located.

Buyer Form dated October 16, 2020, Ragin provided a list of deficiencies in the

properties and requested that RDBC remedy those deficiencies.3

In response to the Buyer Form, RDBC submitted a pre-printed addendum to

the purchase agreement entitled “Seller Response to Property Inspection Form”

(“Seller Form”). In Option 3 of the Seller Form dated October 19, 2020, RDBC

advised Ragin of the repairs it was willing to remedy, specifically stating:

3. SELLER agrees to remedy only those items on the Buyer Response
to Property Inspection that are listed below prior to the act of sale,
and will provide BUYER with copies of paid receipts or other proof
of repairs:

-Missing shingles will be replaced. Units 1, 3 and 7 have
been made secure. Roofing repairs will be complete when
the adjustor [sic] has inspected and the insurance company
offers settlement. A roofing company will then perform
the work.

-Mirrors have been hung.

In response, Ragin submitted a “Buyer Final Response to Property Inspection

Form” (“Buyer Final Response Form”) dated October 22, 2022. Therein, Ragin

indicated, “BUYER elects to proceed toward the act of sale.” On October 26, 2020,

Ragin did not appear at the closing. This suit followed.

In their Petition to Enforce Contract, filed on November 24, 2020, RDBC

alleged Ragin was in default of the purchase agreement and sought to terminate the

agreement and enforce the liquidated damages provision of the purchase agreement.

More specifically, RDBC sought payment of $31,500.00 (ten percent of the sales

price); the $1,000.00 deposit; and costs, interest, and attorney fees.

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Ragin listed numerous items it wanted repaired, including damage incurred from
Hurricane Delta.

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In response to the petition, Ragin denied liability and filed a reconventional

demand alleging RDBC was in default of the purchase agreement. Ragin alleged

RDBC was required to replace the missing shingles on the properties prior to the act

of sale on October 26, 2020.

RDBC answered the reconventional demand denying liability and filed a

motion for summary judgment on February 8, 2021, seeking a finding that Ragin

was in default of the purchase agreement. In seeking a finding that Ragin was in

default of the purchase agreement, RDBC attached the following documents to its

initial motion for summary judgment: the purchase agreement, the Buyer Form; the

Seller Form; the Buyer Final Response Form; the affidavit of Gary W. Rudick; and

the affidavit of Deborah Foreman.

Ragin filed a cross motion for summary judgment on March 19, 2021, seeking

a finding that RDBC was in default of the purchase agreement. In addition to the

purchase agreement and ancillary forms filed with RDBC’s motion for summary

judgment, Ragin attached the affidavit of Michael G. Choate to its motion.

In April 2021, the trial court denied RDBC’s motion.4 Following a pre-trial

status conference held in November 2023, RDBC re-urged its motion for summary

judgment. Both parties filed supplemental memoranda in support of their previously

filed cross motions for summary judgment.

Following a hearing on November 20, 2023, the trial court granted summary

judgment in favor of RDBC, finding Ragin in default of the purchase agreement,

terminating the purchase agreement, and awarding RDBC damages, including the

4
The hearing on Ragin’s cross motion for summary judgment was initially scheduled for
June 1, 2021; however, following the denial of RDBC’s motion for summary judgment, Ragin
passed on the initial hearing date to allow time to conduct discovery.

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$1,000.00 deposit; stipulated damages of $31,500.00; and costs, interest, and

attorney fees. Judgment to this effect was signed November 30, 2023.

On December 20, 2023, Ragin sought a supervisory writ of the judgment now

before this court. Ragin’s writ was denied, and this case was remanded with

instructions for Ragin to comply with the mandates governing appeals. Rue De [sic]

Belier Cove, LLC v. Ragin Properties, LLC, 23-786 (La.App. 3 Cir. 3/25/24)

(unpublished writ opinion). This appeal by Ragin followed.

ASSIGNMENT OF ERROR

In its sole assignment of error, Ragin argues: “The trial judge erred when he

reversed his prior denial and granted RDBC’s motion for summary judgment and

denied Ragin’s cross-motion.”

APPELLANT’S ARGUMENTS

Ragin argues that on October 16, 2020, it provided RDBC with a completed

Buyer Form, on which Ragin indicated it would not go forward with the sale unless

certain conditions were remedied. Ragin alleges that on October 19, 2020, RDBC

provided Ragin with a completed Seller Form, on which RDBC obligated itself to

replace the missing roof shingles “prior to the act of sale” scheduled for October 26,

2020.

Ragin further alleges that on or before October 19, 2020, it advised RDBC

that if the roof repairs to the properties could not be completed by October 26, 2020,

Ragin would agree to extend the date of closing, if requested by RDBC, but RDBC

refused. Thus, Ragin contends it refused to go through with the sale because the

roof repairs were not complete “prior to the act of sale[.]”

Ragin further argues the language of the purchase agreement is clear in stating

the closing was to occur on October 26, 2020. It contends there can be no

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interpretation of Option 3 of the Seller Form which removes RDBC’s promise to

complete the roof repairs prior to the sale. Thus, Ragin argues its cross-motion for

summary judgment should be granted.

APPELLEE’S POSITION

RDBC admits agreeing to replace the missing roof shingles but denies

obligating itself to complete the roof repairs before the closing date. RDBC also

alleges Ragin knew the roof repairs could not be completed before October 26, 2020,

when it elected to proceed toward the act of sale, as indicated on the Buyer Final

Response Form dated October 22, 2020.

RDBC further argues the language it added to Option 3 of the Seller Form

controls. It contends common sense dictates that after a hurricane, a property owner

cannot get a roof inspected and a claim settled and then complete roof repairs in only

four days. Thus, RDBC argues the judgment of the trial court should be affirmed.

LAW AND DISCUSSION

Appellate review of a grant of summary judgment is de novo, using the same

criteria trial courts consider when determining if summary judgment is proper.

Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. Thus, pursuant to La.Code

Civ.P. art. 966(A)(3), we look to determine whether “the motion, memorandum, and

supporting documents show that there is no genuine issue as to material fact and that

the mover is entitled to judgment as a matter of law.”

In determining whether a genuine issue exists, “courts cannot consider the

merits, make credibility determinations, evaluate testimony or weigh evidence.”

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d

730, 751. “A trial judge cannot make credibility determinations on a motion for

summary judgment.” Hutchinson v. Knights of Columbus, Council No. 5747, 03-

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1533, p. 8 (La. 2/20/04), 866 So.2d 228, 234. Generally, summary judgment is

seldom appropriate for determinations based on subjective facts when intent or

motive is at issue. Wroten v. Ferriday Auto Ventures, LLC, 20-387, 20-102 (La.App.

3 Cir. 12/16/20), 310 So.3d 621, writ denied, 21-85 (La. 3/9/21), 312 So.3d 585.

This dispute arises from a disagreement about when RDBC promised to

complete the replacement of missing shingles on the roofs of the condominiums

which Ragin agreed to buy. Ragin points to Option 3 of the Seller Form, specifically

the phrase “prior to the act of sale,” to argue RDBC made a promise to replace the

roofing before the closing. RDBC did not add conflicting language when it listed

items it agreed to remedy on the Seller Form.

In arguing its entitlement to summary judgment, Ragin cites La.Civ.Code art.

20465 for its contention that the purchase agreement before us is clear and, thus,

there can be no interpretation of the disputed provision which removes the promise

to make repairs prior to the act of sale without looking to extrinsic evidence or

venturing beyond the four corners of the document for a different answer. We

disagree.

After a thorough review of the record, we find merit in Ragin’s assertion that

the trial court erred in granting the motion for summary judgment in favor of RDBC.

It is clear the parties disagree about the interpretation of Option 3 of the Seller Form

dated October 19, 2020. The subjective intent of the parties involved in this

agreement to purchase property is a critical issue in determining the proper

interpretation of Option 3 and, in turn, in determining who breached said agreement.

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Louisiana Civil Code Article 2046 provides, “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.”

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Thus, this case is not ripe for summary judgment in favor of either party. Based on

this finding, we vacate any relief the trial court granted RDBC pursuant to granting

summary judgment, and we remand for proceedings consistent with this opinion.

DECREE

The judgment of the trial court granting summary judgment in favor of Rue

Du Belier Cove, LLC, is reversed, and RDBC is assessed with all costs of this appeal.

REVERSED.

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