Opinion
No. 2008 CA 0064.
October 31, 2008.
ON APPEAL FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TERREBONNE STATE OF LOUISIANA DOCKET NO. 147,922 HONORABLE GEORGE J. LARKE, JUDGE PRESIDING.
Jerry L. Hermann, Houma, Louisiana, Counsel for Plaintiff/Appellant Henry J. Richard.
Robert B. Butler, III, Houma, Louisiana, Counsel for Defendants/Appellees Joyce Breaux McElroy and Carolyn Breaux.
Jack A. Ricci, New Orleans, Louisiana, Counsel for Town and Country Real Estate, Inc., et al.
Jason P. Lyons, Houma, Louisiana, Counsel for Beverly Marcel, et al.
Charles F. Gay, Jr., New Orleans, Louisiana, Counsel for Harold Foley, Verlyn Foley, and West Park Partners, L.P.
BEFORE: PARRO, McCLENDON, AND WELCH, JJ.
Plaintiff, Mr. Henry Richard, filed a suit for damages and for specific performance of his agreement to purchase property owned by Joyce Breaux McElroy and Carolyn Breaux (sellers). Named as defendants were: the sellers; the listing agency, Houma's Town Country Real Estate, Inc. (Town Country); its insurer, Continental Casualty Company; the real estate agency's owner and broker, Bill G. Boyd; the listing agent for the property, Faith Boudreaux; the buyer of the property, West Park Partners, L.P.; and Harold and Verlyn Foley, whose offer on the same land had been accepted before Mr. Richard's conditional or back-up offer. In this appeal, Mr. Richard challenges the trial court's dismissal of his claims against the sellers. We reverse, in part, affirm, in part, and remand.
Three related appeals arose from Mr. Richard's suit and various incidental demands, all of which bear the same docket number in the trial court below. In the related appeal of Richard v. McElroy, 2008 CA 0065, Mr. Richard complained of the trial court's grant of a motion filed by the real estate defendants, Town Country; the real estate agency's owner and broker, Bill G. Boyd; the listing agent for the property, Faith Boudreaux; and its insurer, Continental Casualty Company, and appealed their dismissal from the suit by judgment dated March 21, 2007. In Richard v. McElroy, 2008 CA 0060, Mr. Richard, and the real estate defendants named above, appealed the judgment of March 26, 2007, which awarded damages to the sellers, as plaintiffs in reconvention, and to Howard Trahan and Beverly Marcel, as plaintiff's in an intervention filed after Mr. Richard's suit. Also in 2008 CA 0060, the intervenors appealed and the sellers answered the appeal. Both 2008 CA 0060 and 2008 CA 0065 were decided by separate opinions rendered on this same date.
FACTUAL AND PROCEDURAL BACKGROUND
The sellers owned land on West Park Avenue in Terrebonne Parish. According to a legal description filed in the record, the tract of land at issue here, 4425 West Park Avenue, contained 13.7 acres. It also included a house and other structures. The sellers listed the property with Town Country. The acreage was listed with Ms. Boudreaux, and the house, which was to be sold separately and moved off of the property, was also listed, but with another Town Country agent. Information on the property was sent to the local Multiple Listing Service, MLS, with the notation that the house was "optional," and separate MLS listings were entered.
BEFORE the Foleys' offer was accepted, the sellers had received other offers on their West Park Avenue properties. At least two of the offers, which were presented on forms entitled "`LAND'AGREEMENT TO PURCHASE OR SELL," specifically excluded the house in either the offer or a counter offer.
On July 29, 2005, the Foleys, also using Town Country as their agent, submitted to the sellers a signed offer to buy the property at 4425 West Park Avenue for $250,000.00. The offer, made on a form entitled "AGREEMENT TO PURCHASE OR SELL," noted that the house was to be moved by the sellers and was made contingent on the buyers' ability to obtain tax credits. The offer was accepted on August 1, 2005. The act of sale was to be passed on or before January 31, 2006. However, the purchase agreement allowed for discretionary extensions of the time to close the act of sale, provided that both the buyers and the sellers agreed to the extension.
On October 12, 2005, after Hurricane Katrina swept through the area in August of 2005, Mr. Richard made an offer on the same property through his LaRussa Real Estate agent, Shelia Oncale. His offer, made on a preprinted form entitled "`LAND' AGREEMENT TO PURCHASE OR SELL," contained no exclusion of the house or other structures on the property. In fact, the line provided in the form for exclusions was marked with "N/A." In the "PRICE" section of the form, the sum of "approximately $250,000" was filled in, with the following clarification: "17,777.78 per Acre per survey Acreage to Rule." However, a line was drawn through part of the clarifying information. In the section for "OTHER CONDITIONS OF SALE," the offer provided, in part, that the seller agreed that Mr. Richard would have 120 days to obtain necessary permits and that "Purchaser's (sic) to close sale 30 days after final engineering." The "OTHER CONDITIONS' section also provided that: "Purchaser's offer presented with knowledge of existing contract. Would like this contract to be accepted if offer presently is not fulfilled. Purchaser to close within [scratched out wording] from Jan. 31, 2006. $17,777.78 per Acre per Survey, Acreage to Rule. 120 days See Map Legal Attached." A judgment of possession in the Succession of Elbert Joseph Breaux was attached, as well as a plat showing various pieces of property, including one designated as 4425 W. Park, with two sums crossed out and the amount of $250,000 written on the tract. In the section providing for a "GOOD FAITH DEPOSIT," the offer, in a preprinted sentence, stated: "This agreement is not a binding contract unless or until the Good Faith Deposit has been received." Upon acceptance, the form also required the broker to place the deposit in its escrow account. If either party breached the accepted agreement, the non-defaulting party had the right to demand specific performance or damages, not both, at the non-defaulting party's option. The party in default was also made liable for the costs and fees, including brokerage and attorney fees, incurred as a result of the breach.
Although the 120 days notation appears on another line of the agreement, it is located directly below the scratched out material referencing the time of the closing. Thus, it appears that the 120 days was to be inserted in place of the scratched out material. The line would then read: "close within [120 days] from [January] 31, 2006." While the time of closing may be open to interpretation, it is not specifically necessary to a resolution of the dispute before us. It is the time that the Richard agreement became primary that is at issue here.
The sellers let the offer lapse by its own date of termination. However, on October 18, 2005, the sellers made a counter offer stating that "all other terms remained unchanged," except the following specific changes were to be made in the offer's "OTHER CONDITIONS" section:
"Purchasers to be given 90 days after the end of the first contract (Jan. 31, 2006) or 90 days after the first contract party should remove their contract as the #1 contract. This contract has been accepted as the #1 backup contract." (Emphasis added.) Mr. Richard accepted the counter offer on October 20, 2005, and a check for the amount of the requisite good faith deposit was received by Town Country. Admittedly, Town Country did not deposit it in the agency's escrow account.
On January 31, 2006, Town Country, acting as selling and listing agent, submitted to the sellers an offer by Howard Trahan and Beverly Marcel to purchase separately the house on the land in question. Mr. Trahan and Ms. Marcel agreed to move the house to another piece of property within 30 days of the act of sale, and the act of sale was to be passed on or before February 28, 2006. The sellers accepted the offer on February 1, 2006. Although the date for the act of sale on the house passed without any extensions being granted, a subsequent sale date was set. However, the sale of the house was never completed.
Pursuant to a provision of the Foley purchase agreement, two extensions were granted by mutual agreement of the Foleys and the sellers. The first extension was granted on January 31, 2006, and extended the time to pass the act of sale to March 15, 2006. By the second and final extension, the time for the sale was extended until March 31, 2006.
Between January 31, 2006 and late March of 2006, Mr. Richard and his agent unsuccessfully attempted to convince Town Country agents, and one of the sellers, that the Richard purchase agreement, via the sellers' language in their counter offer, provided a termination date for the Foley contract of January 31, 2006. Thus, Mr. Richard asserted, the sellers had waived their discretion to grant extensions, and, by its own terms, the Richard purchase agreement became the primary contract as of January 31, 2006.
An act of sale of the acreage in question was passed before a notary on March 30, 2006. However, the property was sold to a different legal entity, West Park Partners, L.P., not to the Foleys. Although Verlyn Foley was the general partner for West Park Partners, L.P., the limited partnership did not have a purchase agreement with the sellers, and the Foleys did not assign their purchase agreement to the limited partnership. See LSA-C.C. arts. 2623 2642, et seq.
On March 30, 2006, after his attempts to assert his position as the primary purchase agreement had been ignored, Mr. Richard filed a suit for specific performance, damages, costs, and fees, and, pursuant to LSA-C.C.P. art. 3751, et seq., filed a Notice of lis Pendens in the parish records. When an attorney acting for West Park Partners, L. P.'s lender learned of the notice of lis pendens, the funding was withdrawn and stop payment orders were issued on the checks disbursed to the sellers and the Town Country agents, who had acted as the selling and listing agents. Subsequently, at the scheduled closing on the house, the attorney stopped the sale because of the filed lis pendens notice. After an agreement for an alternative mortgage was entered into by the sellers and West Park Partners, L.P. on May 4, 2006, the sale to the limited partnership was recorded in the parish records on June 6, 2006.
In support of his suit for both specific performance and damages, Mr. Richard alleged that his agreement contained no exclusions, and thus, by law, all component parts of the land, including the house and other structures, were part of the agreement to purchase. In addition, he alleged that, pursuant to the language provided by the sellers in their counter offer, if either of the conditions specified in the purchase agreement was fulfilled, the Richard purchase agreement would become the primary purchase agreement. Throughout, Mr. Richard has argued that, by placing a date in the accepted counter offer as the end date, the sellers waived their discretion to grant any extensions to the Foleys beyond that date. Thus, Mr. Richard believed that the Foleys' contract with the sellers ended on the termination date specified in the agreement, January 31, 2006, and his agreement became primary.
After the Richard suit was filed, various incidental demands were filed. The sellers filed a reconventional demand against Mr. Richard and a third party demand against the real estate defendants: Town Country, Mr. Boyd, and Ms. Boudreaux. Mr. Trahan, Ms. Marcel, and children, Seth Joseph Trahan and Keith Joseph Boudreaux, filed an intervention against Mr. Richard, the sellers, and the real estate defendants.
On the third day of the trial on the merits of the specific performance claim, and after the plaintiff had rested his case, the real estate defendants moved for an involuntary dismissal of Mr. Richard's claims. The sellers also moved for dismissal, as did the Foleys and West Park Partners, L.P.
In oral reasons for granting the motions, the trial court found that there was no meeting of the minds between Mr. Richard and the sellers primarily because: (1) the parties used a form entitled a "Land" purchase agreement, (2) the price was not clear in the Richard/sellers purchase agreement, (3) the good faith deposit check had not technically been "received" because Town Country had not deposited the check in its escrow account, and (4) the inclusion in the counter offer by the sellers of the date of January 31, 2006, was not a clear deadline for the Foley agreement and did not act as a waiver of the sellers' discretion to grant the Foleys extensions after that date. The trial court also found that Mr. Richard had not offered proof that the house was an immovable, rather than a movable, and, therefore, the house was not a component part of the land and was not included in the purchase agreement.
By judgment dated March 14, 2007, the trial court held that the agreement to purchase, between Mr. Richard and the sellers, was unenforceable, that Mr. Richard had no right of ownership in the property, and that the Notice of lis Pendens was invalid. The judgment cancelled the notice in the public record, and dismissed the claim for specific performance, as well as all the claims for damages asserted by Mr. Richard against Harold Foley, Verlyn Foley, West Park Partners, L.P., and the sellers.
Although the judgment was certified as a final judgment, the certification was not necessary. The partial judgment, which dismissed all the claims against some of the named defendants, qualified as a final judgment under LSA-C.C.P. art. 1915A(i).
APPLICABLE LEGAL PRECEPTS
"Parties are free to contract for any object that is lawful, possible, and determined or determinable." LSA-C.C. art. 1971. "Future things may be the object of a contract," and contracts may be conditional. LSA-C.C. arts. 1976 1767, et seq. "The obligee of a conditional obligation, pending fulfillment of the condition, may take all lawful measures to preserve his right." LSA-C.C. art. 1771. "A condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment." LSA-C.C. art. 1772. A purchase agreement is classified as a contract. It must set forth the thing being sold and the price, and meet the applicable requisites of the particular type of sale envisioned. LSA-C.C. art. 2623; Campbell v. Melton, 2001-2578, p. 5 (La. 5/14/02), 817 So.2d 69, 74.
"A contract is formed by the consent of the parties established through offer and acceptance." LSA-C.C. art. 1927. Contracts may be vitiated by an error in consent, but "a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain" its meaning. Aguillard v. Auction Management Corp., 2004-2804, 2004-2857, p. 22 (La. 6/29/05), 908 So.2d 1, 17; Dulin v. Levis Mitsubishi, Inc., 2001-2457, p. 6 (La.App. 1 Cir. 12/20/02), 836 So.2d 340, 345, writ denied, 2003-0218 (La. 3/28/03), 840 So.2d 576; Morin v. Foret, 98-0120, pp. 6-7 (La.App. 3 Cir. 4/14/99), 736 So.2d 279, 283, writ denied, 99-2022 (La. 10/29/99), 748 So.2d 1165; see LSA-C.C. art. 1948.
An agreement between the parties should be interpreted by using ordinary contract principles. See Henly v. Phillips Abita Lumber Co., 2006-1856, p. 4 (La.App. 1 Cir. 10/3/07), 971 So.2d 1104, 1108. "Interpretation of a contract is the determination of the common intent of the parties." LSA-C.C. art. 2045. "The words of a contract must be given their generally prevailing meaning." LSA-C.C. art. 2047. "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." LSA-C.C. art. 2046. Thus, the meaning and intent of the parties to a written and signed instrument, such as a purchase agreement, "is ordinarily determined from the instrument's four corners, and extrinsic evidence is inadmissible either to explain or to contradict the instrument's terms." Abshire v. Vermilion Parish School Board, 2002-2881, p. 5 n. 5 (La. 6/27/03), 848 So.2d 552, 555 n. 5; Ortego v. State, Department of Transportation and Development, 96-1322, p. 7 (La. 2/25/97), 689 So.2d 1358, 1363. However, parol evidence may be admissible under certain circumstances. Between the parties to a written instrument, parol evidence is admissible to show fraud, mistake, illegality, want or failure of consideration, or to explain an ambiguity when such explanation is not inconsistent with the written terms. M.G. Mayer Yacht Services, Inc. v. Ryder, 2003-2225, p. 3 (La.App. 1 Cir. 10/29/04), 897 So.2d 72, 74. "Contract interpretation of ambiguous terms requires construction against the contract's drafter." Campbell, 2001-2578 at pp. 6-7, 817 So.2d at 75; see LSA-C.C. art. 2056. Parol evidence may also be admitted to prove a valid, subsequent oral agreement that modified the written act or instrument. M.G. Mayer Yacht Services, Inc., 2003-2225 at pp. 3-4, 897 So.2d at 74. Interpretation of a contract and ambiguity are questions of law for the court's determination. Henly, 2006-1856 at p. 5, 971 So.2d at 1109; Grace v. Crespo, 2007-0397, p. 6 (La.App. 1 Cir. 9/19/07), 970 So.2d 1007, 1012, writ denied, 2007-2010 (La. 12/7/07), 969 So.2d 636; Jackson v. Capitol City Family Health Center, 2004-2671, p. 5 (La.App. 1 Cir. 12/22/05), 928 So.2d 129, 131. Appellate review of questions of law is simply to discern whether the trial court's interpretation was legally correct. Jackson, 2004-2671, at p. 5, 928 So.2d at 131-32.
ANALYSIS
In this case, the issue on appeal is whether the trial court correctly granted the motion for involuntary dismissal filed by the sellers. Subsumed in that determination is whether the trial court correctly invalidated the purchase agreement between the sellers and Mr. Richard.
The Foleys also argue that they were unable to pass an act of sale by January 31, 2006, because of obstacles related to Hurricane Katrina. Thus, it would follow, the extensions should be allowed even if forbidden by the Richard agreement. The record before us, however, contains no evidence that the claimed obstacles were insurmountable, sufficiently related to the hurricane or "fortuitous event," or could not have been reasonably overcome by the sale date of January 31, 2006, five months after the storm. See Payne v. Hurwitz, 2007-0081, pp. 8-9 (La.App. 1 Cir. 1/16/08), 978 So.2d 1000, 1005-06; see also LSA-C.C. arts. 1873 Revision Comments-1984 (d). In addition, we note that the Richard offer and the sellers' counter were made and accepted after the hurricane.
In a judge trial, after the plaintiff rests his case, a party "may move for [involuntary] dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief." LSA-C.C.P. art. 1672B. The trial "court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence." Id. In determining whether to grant a motion for involuntary dismissal, the standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish a claim by a preponderance of the evidence; meaning, that taking the evidence as a whole, the fact or claim sought to be proved is more probable than not. Jackson, 2004-2671 at pp. 3-4, 928 So.2d at 131. The grant of the motion should not be overturned absent an error of law or manifest error in the determination of fact. Jackson, 2004-2671 at p. 4, 928 So.2d at 131.
Initially, we note that the mere fact that sellers may list land and a house on the land separately, and that information on the house and land are shown separately in a MLS, would not prohibit a potential buyer from making an offer on both the land and any component parts at a price lower than the minimum listed selling price. Nor would separate listing agreements and MLS information prohibit sellers from changing their minds and taking a more comprehensive offer at a lower price for any number of reasons, including the advantage of having a backup offer in the event the first contract failed. Parties may contract for any lawful, possible, and determinable object, including future things, and certain conditional events. See LSA-C.C. arts. 1971, 1976, 1772, 1767, et seq.
A reading of the Richard purchase agreement shows that the price was easily discernable from the offer, and that the counter offer raised no questions over the price. It was clear that the price was to be $17,777.78 per acre, as calculated based on a survey. Nor was the purchase agreement unclear about the status of the good faith deposit necessary to complete the agreement. According to the terms of the agreement, the check had to be "received" before the agreement would be "binding." There is no dispute that the check was received by Town Country. Indeed, the deposit was not returned by Town Country until the date of the sale of the property to West Park Partners, L.P. The requirement placed on the real estate agency, to deposit the "good faith" check or money in the agency's escrow account, was not the act required by the agreement to bind the parties. Thus, we find that the trial court erred in its findings on these particular issues.
As for any component parts permanently attached to the ground, they would transfer by law with the sale of the land, unless excluded by the parties in writing. LSA-C.C. arts. 462 463; see generally American Creosote Company v. Springer, 257 La. 116, 123-28, 241 So.2d 510, 513-15 (1970); Prevot v. Courtney, 241 La. 313, 129 So.2d 1 (1961). In this case, the location of a "house" on the property was admitted by the real estate defendants in their answer to the intervention. There was no evidence submitted at the trial to show that the construction shown on the plat attached to the purchase agreement, and referred to consistently by Mr. Richard and the sellers as the "house," was anything other than a permanently attached structure, Prior to the plaintiff resting his case, the defendants did not assert their theory that the house did not need to be specifically excluded in the agreement because it was a movable. As further support, we note that the sale to Mr. Trahan and Ms. Marcel was stopped because of the notice of lis pendens on immovable property. Additionally, the defendants' primary argument at trial was that the use of the "LAND" purchase agreement form effectively acted as an exclusion of the house. Such an argument would not technically be necessary if the object was clearly a movable not permanently attached to the land, and thus, the argument infers agreement that the house was a component part of the land. Considering all of these points, and without specific evidence that the "house" was not a component part, Mr. Richard presented, at the least, minimally sufficient evidence to show that, more probably than not, the "house" was a component part that would transfer in the sale of the land. Of course, by granting the motions for involuntary dismissal, the trial court denied the defendants the opportunity to present their cases, including any evidence directly challenging the status of the house as anything other than a traditional house, and denied the plaintiff an opportunity to rebut.
The remaining essential issue is the meaning of the agreement's language referring to the triggering conditions that would lift the agreement with Mr. Richard to primary status; language that was specifically included by the sellers in their counter offer. The contract contained two suspensive conditions; upon fulfillment of either conditional event, the contract could be enforced by Mr. Richard. See LSA-C.C. arts. 1767 1771. In fact, a condition may be considered fulfilled, if the failure to fulfill is the fault of a party, such as a seller, with a contrary interest. LSA-C.C. art. 1772.
The first condition for primary status would be fulfilled at the "end" of the Foley contract, with a date specified in parentheses. The actual language was: "Purchasers to be given 90 days after the end of the first contract (Jan. 31, 2006)," instead of the 120 days requested by Mr. Richard to obtain the items listed in the original Richard offer. The other condition that could trigger the ascension of the Richard contract to primary status would be fulfilled when the Foley contract was removed or voided.
Forgetting for the moment that a sale to the holders of the primary contract, Harold and Verlyn Foley, was never executed, our review of the contractual language shows that the sellers clearly and unambiguously agreed in their counter that the Richard contract would become the primary contract, or agreement to purchase, at the end of the Foley contract, with the date of January 31, 2006, specifically denoted. However inartfully drawn, a plain reading of the conditions in the agreement or contract reveals a sufficiently clear meaning. See Campbell, 2001-2578, at p. 9, 817 So.2d at 76. The rules of interpretation do not approve a perversion of the language to create an ambiguity, and a party's mere assertion that the provision is susceptible of another interpretation does not render the language ambiguous. This case turns on legal interpretation, not on the dispute between the multiple parties or the parties' regrets over the language chosen. See Campbell, 2001-2578, at pp. 8-9, 817 So.2d at 76. The trial court erred in considering evidence of the intent and conduct of the parties beyond the wording of the condition. See Campbell, 2001-2578, at p. 8, 817 So.2d at 76.
While the absence of a date for the end of the Foley contract may have referred the parties back to the provisions of the Foley contract, and its discretionary grant of extensions, the agreement between the sellers and Mr. Richard did provide a date, and nothing in the provision would put a potential buyer on notice that the date provided referred to anything other than the previously mentioned end date. The Richard purchase agreement also contained a clause stating that "Time is of the essence and all deadlines are final," unless the parties, namely Mr. Richard and the sellers, agreed to modifications or changes.
Mr. Richard's knowledge of a primary purchase agreement did not place a burden on him as a potential buyer, who was not a party to the other contract, to demand a copy of the Foley agreement and review all the provisions before agreeing to a separately negotiated contract with the sellers. Even if Mr. Richard was allowed to review the other contract by the parties to that contract, the Foley agreement contained no provision that required the Foleys to grant extensions; extensions were discretionary. Thus, the sellers had the right to give up that discretion for their own purposes, such as ensuring a backup agreement if the first contract failed, and the trial court erred in its finding otherwise.
Finally, the Richard agreement must be read in a way to give meaning to the whole. See LSA-C.C. art. 2050. Even if a party argued that a provision had possibly different meanings, it must be interpreted in a way to render the agreement effective, not ineffective. See LSA-C.C. art. 2049. To interpret the counter offer as setting only a closing date of 90 days from January 31, 2006, and ignore the Foley agreement or contract end date denoted in the same provision, would create a provision requiring a purchaser to close within 90 days of the date provided by the sellers, notwithstanding a valid Foley agreement moving toward completion. The purchaser would be in the position of being held in default by the sellers, even though the Foley agreement would remain primary; an absurd consequence. Thus, only one effective, logical interpretation existed.
The back-up agreement accepted in October, 2005, was an agreement between the sellers and Mr. Richard. Any negligence by non-contracting parties that may have misled the sellers, or any failure of the sellers to read the document before signing, cannot alter unambiguous provisions of the signed contract or create an opportunity to consider parol evidence. See Aguillard, 2004-2804, 2004-2857 at p. 22, 908 So.2d at 17; M.G. Mayer Yacht Services, Inc., 2003-2225 at pp. 3-4, 897 So.2d at 74; Dulin, 2001-2457 at p. 6, 836 So.2d at 345; Morin, 98-0120 at pp. 6-7, 736 So.2d at 283. If the sellers are found to be liable for damages that were allegedly caused by the negligence of the real estate defendants in advising them on the counter offer or in not timely advising them of the possibility of litigation instituted by Mr. Richard, their remedy is against the real estate defendants, not in the avoidance of a viable and valid purchase agreement.
Arguably, the evidence submitted by Mr. Richard also initially showed that, more probably than not, the second condition presented in the purchase agreement between Mr. Richard and the sellers was fulfilled, albeit at a later date than January 31, 2006. Even if extensions were permitted, a sale to the Foleys was not passed, before or after the final extension, and their agreement terminated. Once the property was sold to West Park Partners, L.P., a distinct legal entity, the Foleys' failure to challenge or protest the sale could be seen as the Foleys' acquiescence to the removal of their contract. A termination or removal of the Foley purchase agreement would fulfill the second condition and move the Richard contract to primary.
For these reasons, we find that the trial court incorrectly interpreted the unambiguous provisions of the purchase agreement or contract at issue and erred in finding that the plaintiff had not met his burden to establish his claim of a primary, valid purchase agreement by a preponderance of the evidence. The improper granting of the motions for involuntary dismissal also resulted in lost opportunities for plaintiff to present his damage claims and for the defendants to offer a defense against all of plaintiff's claims. However, despite finding error in the basis for the March 14, 2007 judgment of dismissal, Mr. Richard appealed only the dismissal of the sellers from his remaining suit for damages. He did not appeal the dismissal of the Foleys or West Park Partners, L.P. While that decision may have negatively impacted further proceedings seeking specific performance, particularly in regard to the limited partnership as owner, the record reveals that Mr. Richard waived his demand for specific performance at trial and in a pleading, and told the trial court that he was pursuing only his claims for damages.
CONCLUSION
Therefore, we reverse the finding that Mr. Richard's purchase agreement was invalid, reverse the dismissal of the sellers from Mr. Richard's suit for damages, and remand the case for further proceedings consistent with this opinion, including, in this particular case, the presentation of plaintiff's evidence of damages and the defendants' evidence in opposition to plaintiff's case. The remainder of the judgment, including the cancellation of the notice of lis pendens and the dismissal of the Foleys and West Park Partners, L.P., is affirmed. As related in Richard v. McElroy, 2008 CA 0060, the costs of the three related appeals are to be totaled and are assessed one-half to the sellers: Joyce Breaux McElroy and Carolyn Breaux, and one-half to the real estate defendants: Town Country; its owner and broker, Bill G. Boyd; its agent, Faith Boudreaux; and its insurer, Continental Casualty Company.
Although we have determined the legally correct interpretation of the contract provisions at issue, the defendants on remand maintain their right to challenge the validity of the agreement and present their side of the story by submitting any evidence allowable under the law. On remand, the trial court may use the transcript of the presentation of Mr. Richard's case, but Mr. Richard has the right to present evidence of damages before the defense case is presented.
The purpose of a notice of lis pendens is to notify third parties of litigation affecting title to real property. The notice is not concerned with the merits of the litigation, nor is it a lien. Webb v. Webb, 2001-1577, p. 11 (La.App. 1 Cir. 11/8/02), 835 So.2d 713, 721, writ denied, 2002-3001 (La. 3/14/03), 839 So.2d 37. Thus, the timely filing of a notice does not technically prevent the sale of property, but does make the outcome of the suit binding on third parties. See Campbell v. Melton, 2001-2578, p. 5 n. 4 (La. 5/14/02), 817 So.2d 69, 74 n. 4; Whitney National Bank v. McCrossen, 93-2160 (La.App. 4 Cir. 3/29/94), 635 So.2d 401, 404, writ denied, 94-1108 (La. 7/1/94), 639 So.2d 1164. By abandoning the remedy of specific performance in the court below, the question of the title to the property is no longer at issue. Mr. Richard is pursuing only a claim for damages against parties that have all been joined by suit. Based on this record, we can find no reason to maintain the notice of lis pendens in the parish records.