Amy L. Stoodt v. Patricia C. Beauvais, wife of/and Christopher B. Beauvais, Jennifer Rice and Dorian M. Bennett, Inc. d/b/a Dorian Bennett Sotheby's International Realty ( 2019 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2018 CA 1248
AMY L. STOODT
VERSUS
PATRICIA C. BEAUVAIS, WIFE OF/ AND CHRISTOPHER B. BEAUVAIS,
JENNIFER RICE AND DORIAN M. BENNETT, INC. D/ B/ A DORIAN
BENNETT SOTHEBY' S INTERNATIONAL REALTY
Judgment rendered AUG 0 5 201
On Appeal from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
No. 2016- 11248, Div. " A"
The Honorable Raymond S. Childress, Judge Presiding
Bruce M. Danner Attorney for Plaintiff/Appellant
Madisonville, Louisiana Amy L. Stoodt
Jesse L. Wimberly, III Attorneys for Defendants/ Appellees
Jesse L. Wimberly, IV Patricia C. Beauvais and Christopher
Elizabeth W. Wiedemann B. Beauvais
Mandeville, Louisiana
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
HOLDRIDGE, J.
Plaintiff, Amy L. Stoodt, appeals a judgment rendered in favor of
defendants, Patricia C. Beauvais and Christopher B. Beauvais, dismissing this
lawsuit seeking damages for the breach of an alleged right of first refusal
agreement. We affirm.
BACKGROUND
On April 15, 2013, the Beauvaises sold a 5. 29 -acre tract with a home
thereon, located in Bush, Louisiana, to Ms. Stoodt. On March 24, 2016, Ms.
Stoodt filed this lawsuit seeking to recover damages from the Beauvaises, asserting
that the Beauvaises gave her a right of first refusal on certain property adjacent to
her 5. 29 -acre tract, but sold the property subject to that right to third parties
without notifying her in advance of the sale or offering her the opportunity to
purchase the property, in violation of the right of first refusal agreement. Ms.
Stoodt also sued Jennifer Rice and Dorian M. Bennett, Inc., d/ b/ a Dorian Bennett
Sotheby' s International Realty ( Bennett), real estate agents who represented the
Beauvaises in connection with Ms. Stoodt' s purchase of the 5. 29 -acre tract. Ms.
Stoodt alleged that Ms. Rice acted as a dual agent in the sale, and that the breach of
Ms. Rice' s fiduciary duties to Ms. Stoodt resulted in the breach of the right of first
refusal agreement.
In her petition, Ms. Stoodt asserted that although Louisiana law granted her
a right of specific performance for a breach of a right of first refusal agreement,
such remedy was no longer in her interest as the property had been transferred to
third parties, whose interests were protected by the Louisiana Public Records
Doctrine because her right of first refusal agreement was never recorded. Instead,
Ms. Stoodt sought to recover from the defendants a full refund of the purchase
price of the 5. 29 -acre tract and all monies expended for improvements, or
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alternatively, the loss of value in her property. She also asked for attorney' s fees
based on a clause in the purchase agreement.
Following the conclusion of a bench trial, during which considerable
documentary and testimonial evidence was adduced, the trial court rendered
judgment in favor of all of the defendants, dismissing Ms. Stoodt' s claims against
them with prejudice. In written reasons for judgment, the court found that there
was sufficient confusion in the legal description of the land subject to the right of
first refusal so as to render the right of first refusal unenforceable. The court
further found that Ms. Rice owed no duty to Ms. Stoodt when she listed the
property as she was not representing Ms. Stoodt at the time, but was representing
the Beauvaises.
Ms. Stoodt appealed, challenging only that part of the judgment dismissing
her claim against the Beauvaises.
DISCUSSION
A party who demands performance of an obligation must prove the existence
of the obligation. La. Civ. Code art. 1831; Hoskins v. State, Division of
Administration, Office of Community Development, 2018- 1089 ( La. App. 1
Cir. 2/ 25/ 16), So. 3d ( 2019WL927775 * 3). The existence of the
contract and its terms must be proven by a preponderance of the evidence. Id.
The existence or non- existence of a contract is a question of fact, and the trial
court' s determination of this issue will not be disturbed unless manifestly
erroneous or clearly wrong. Read v. Willwoods Community, 2014- 1475 ( La.
3/ 17/ 15), 165 So. 3d 883, 888. In order to reverse the trial court' s determination
that an enforceable right of first refusal agreement was not confected between the
parties, this court must find from the record that a reasonable factual basis does not
exist for the finding and that the record establishes that the finding is clearly wrong
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manifestly erroneous). Stobart v. State, Department of Transportation and
Development, 617 So. 2d 880, 882 ( La. 1992). The issue to be resolved by this
court is not whether the trial court is right or wrong, but whether the trial court' s
conclusion was a reasonable one. Id. If the findings of the trial court are
reasonable in light of the record reviewed in its entirety, this court may not reverse
even though convinced that had it been sitting as the trier of fact, we would have
weighed the evidence differently. Stobart, 617 So. 2d at 882- 883.
Louisiana Civil Code article 2625 provides for a right of first refusal.
Pursuant to that provision, ``[ a] party may agree that he will not sell a certain thing
without first offering it to a certain person. The right given to the latter in such a
case is a right of first refusal that may be enforced by specific performance."
Louisiana Civil Code article 2626 further provides that ``[ t] he grantor of a right of
first refusal may not sell to another person unless he has offered to sell the thing to
the holder of the right on the same terms, or on those specified when the right was
granted if the parties have so agreed." The right of first refusal regarding the sale
of an immovable is a contract that must be in writing. La. C. C. arts. 2623 and
2629; Marler v. Jarrell, 2016- 0685 ( La. App. 1 Cir. 7/ 13/ 17) ( 2017 WL
2982523), writ denied, 2017- 1408 ( La. 12/ 5/ 17), 231 So. 3d 25.
In this case, the court found that Ms. Stoodt failed to prove the existence of
an enforceable right of first refusal because the description of the property subject
to the right of first refusal was not sufficiently explicit so as to allow the court to
determine what property was subject to the right of first refusal. Essentially, the
court determined that the " certain thing" requirement of La. C. C. art. 2625 was not
met in this case. We shall review the trial court' s finding that Ms. Stoodt failed to
prove the existence of an enforceable right of first refusal on property sold by the
Beauvaises to third parties under the manifest error standard of review.
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Documentary Evidence
The record reflects that in 2012, the Beauvaises hired Ms. Rice to sell their
36 -acre tract of rural property, on which a custom home, a guesthouse, a workshop,
a one -acre pond, and a large shed were located. The property was marketed under
three different listings: the home and 36 +/— acres with all of the improvements
thereon for $ 690, 000. 00; the home +/- 13 acres and all improvements thereon for
540, 000. 00; and the home and +/- 4 acres for $490, 000. 00.
In January of 2013, the Beauvaises, represented by Ms. Rice, and Ms.
Stoodt, represented by real estate agent Courtney Barrilleaux, began negotiating
for Ms. Stoodt to purchase the home and additional acreage. On January 22, 2013,
Ms. Stoodt signed a purchase agreement entitled " Louisiana Residential
Agreement to Buy or Sell" to purchase the home and land measuring
approximately 4. 5 acres to be determined by [ a] survey" for the price of
470, 000. 00. That day, Mr. Beauvais sent Ms. Rice a memo containing comments
regarding the Stoodt offer, in which he noted that all had agreed that 5 acres was
what the parties had discussed, to which he attached a rough drawing showing
what was described in the offer and what the Beauvaises were proposing to be the
5 acres. This drawing, which was also introduced as Exhibit J2 and upon which
Ms. Stoodt bases her right of first refusal claim, depicts a division of the 36 -acre
tract described as follows: Parcel A- 18. 25 acres +/-; Parcel B- 4. 65 acres +/-; and
a 13. 1 acre +/- parcel, on which the home, a pond and, other buildings on the
property were penciled in. The drawing shows two natural boundaries of the 13. 1 -
acre tract: Watts Thomas Road, which fronted the home, and Jim Williams Road.
On January 22, 2013, Ms. Stoodt signed an addendum to the purchase agreement.
The addendum stated that the parties agreed that a legal survey would be
completed to establish the " to be purchased parcel" prior to Ms. Stoodt' s
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inspection, that " 8- 9 acres that is manicured lawn today that will not be purchased
shall be maintained on a minimum basis to include mowing reasonably frequent
intervals to be agreed between buyer and seller" and the following language on
which Ms. Stoodt' s claim is based:
Purchase [ sic] to have first right of refusal on remaining property 8 to
9 acres that would have been included in a 13 acre plus the house
purchase. ( see exhibit A).
The parties further agreed that the specific requests associated with the land
include minimum amounts of land at the back of a mother in law house and the on
the sides of a concrete pad at the carports, that the land to the south be symmetrical
such that the house is at or near the center line of the " to be purchased parcel" and
that there be a 50 foot set -back on all sides of the " to be purchased parcel."
Exhibit A attached to the January 22, 2013 addendum is a drawing prepared
by Mr. Beauvais using a computer program and is dated January 24, 2013. It
shows the home situated on a 5. 29 -acre tract of land, facing Watts Thomas Road,
and containing 50 -foot setbacks on the remaining 3 sides of the property. A pond
is shown to the rear of and outside of the 5. 29 -acre tract. The exhibit references
the coordinates of the entire 36 -acre tract. However, there is no reference to a 13
or 13. 1 - acre tract on Exhibit A, and there is no reference whatsoever on this exhibit
as to what property was subject to Ms. Stoodt' s right of first refusal. The
Beauvaises agreed to the addendum to the purchase agreement, signing that
document on January 24, 2013. A counteroffer was made by Ms. Stoodt on
January 25, 2013, to amend the purchase offer to read "+/- 5. 29- acre tracts, as per
attached ( exhibit `` A') dated 1/ 24/ 13," which was accepted by the Beauvaises on
January 26, 2013.
Following the execution of a purchase agreement, Mr. Beauvais
commissioned a survey which subdivided the 36 -acre tract into 2 lots: Lots 2- A
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and 2- B. Lot 2- B depicts the 5. 29 -acre tract and home thereon, while Lot 2- A
reflects the remaining property. There is no reference in this survey, dated
February 6, 2013, to the property on which Ms. Stoodt claims to have a right of
first refusal.
On April 15, 2013, the Beauvaises and Ms. Stoodt executed an Act of Sale
of the 5. 29 -acre tract with the home and other improvements thereon. The Act of
Sale references the February 2013 survey. The Act of Sale contains no mention of
Ms. Stoodt having a right of first refusal over any of the remaining property.
At the end of April, 2015, Ms. Stoodt notified Mr. Beauvais through text
messages that she was preparing to sell her home. She apprised Mr. Beauvais that
realtors had asked about other acreage, and she informed them that Mr. Beauvais
still owned the property and had been interested in selling the property when she
purchased the home two years earlier. Mr. Beauvais thanked Ms. Stoodt for the
heads up" and asked her whether she still required notification if he decided to put
the land up for sale. He stated, " I think you have some sort of right of first
refusal." Ms. Stoodt responded that the first right was " still in play technically by
our sales agreement." She continued, "[ e] ven though less likely I would exercise
it." Mr. Beauvais responded that he would try to cut the grass more often so that
the property would look nice for her showings, and informed Ms. Stoodt that if she
found someone who wanted her house and more land, the Beauvaises would work
with her on that, to which Ms. Stoodt responded, " Absolutely -will keep you
posted."
On May 6, 2015, Ms. Stoodt listed her 5. 29 -acre tract and the improvements
thereon for sale with Ms. Rice' s agency for the asking price of $675, 000. 00. The
advertisement for the sale listed, with respect to " grounds," a " 1St Right on Land,"
and that the "[
p] rior owner and [ o] wner of acreage willing to sell additional land."
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On May 27, 2015, the Beauvaises signed an agreement with Ms. Rice' s agency to
list Lot 2- A, measuring 31. 5 acres, for sale. Ms. Stoodt' s listing with Ms. Rice' s
agency was cancelled on July 10, 2015.
The record contains an undated email authored by Mr. Beauvais in which he
mentions having a survey done that day, and he expected a final plat soon, at which
time he would begin the re -subdivision process. He wrote, " Funny Note --Ran into
Ms. Stoodt] while surveying. Very nice to me. Told her what we were doing but
didn' t state that a portion of it was under contract. No bites on her house --
surprised?
On December 4, 2015, the Beauvaises sold 12 acres of the remaining 31
acres to Dona and Thompson Waller, designated as Lot 2- A3 on a survey prepared
on September 25, 2015. The September 25, 2015 survey shows the re -subdivision
of Lot 2- A into Lots 2- A1, 2- A21 2- A3, and 2- A4. Lots 2- A1 and 2- A2 are
adjacent to Ms. Stoodt' s 5. 29 -acre tract, while Tract 2- A3 is partially adjacent to
and partially to the rear of the 5. 29 -acre tract, and includes the pond that was
omitted from Ms. Stoodt' s sale. On February 3, 2016, the Beauvaises sold Lot 2-
A2 to the Wallers.
On January 23, 2017, Ms. Stoodt filed a Notice of Lis Pendens into the
registry of St. Tammany Parish, referencing her lawsuit filed against the
Beauvaises. In the notice, Ms. Stoodt stated that the object of the lawsuit was to
determine the existence of a right of first refusal regarding property adjacent to Lot
2- 13, comprised of " eight ( 8) to nine ( 9) acres which formed a portion of the
original thirteen ( 13) acre parcel offered for sale and from which [ Ms. Stoodt]
purchased 5. 290 acres ( Lot 2- 13) and which are now comprised of Lots 2- A1, 2- A2,
and a portion of Lot 2- A3."
On January 31, 2017, the Beauvaises sold Lot 2 -Al to Michael Slemmer, Jr.,
containing 2. 339 acres, also adjacent to Ms. Stoodt' s 5. 29 -acre tract and on which
Ms. Stoodt claimed to have a right of first refusal. This sale was made without a
title examination.
Testimonial Evidence
Mr. Beauvais testified when he initially listed his 36 -acre tract for sale, Ms.
Rice suggested that it be marketed in different sizes at different price points. One
of the listings marketed the property as being comprised of 13 acres, a custom-built
home, and all of the improvements on the property. This 13 -acre tract was
bounded on the north and west by roadways. Mr. Beauvais acknowledged that he
prepared Exhibit J2 from a program on his computer, and admitted that he was
willing to sell what appeared on the MLS listing and on Exhibit J2 for
540, 000. 00. 1 Mr. Beauvais further testified that Exhibit J2 was done to illustrate
a way a buyer could purchase 13 acres, the home, and other features of his
property.
Mr. Beauvais testified that he prepared Exhibit A, attached to the purchase
agreement, which depicts the 5. 29 -acre tract contained in four boundary lines, but
nothing else on that document. He further admitted that if one was facing the
home, everything to the left of the 5. 29 -acre tract to the public road, and to the
public road to the front of the property, was contained in the 13. 1 acres depicted in
Exhibit J2. However, he could not recall having provided Exhibit J2 to Ms.
Stoodt, and did not remember reviewing or discussing the property depicted in that
document with Ms. Stoodt. Mr. Beauvais was unable to say if the reference to the
1
During Mr. Beauvais' testimony, when he was asked to look at Exhibit J3, reflecting the
purchase agreement, his attorney made a continuing to the use of parole evidence to contradict
the terms of the document. The trial court noted the objection and its continuing nature, but
stressed that if the court was to comprehend what the right of first refusal contemplated, it was
necessary for the court to receive evidence on the intent of the parties.
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13 acres on Exhibit A was intended to reference the 13. 1 acres reflected on Exhibit
J2. He pointed out that Exhibit A does not have any reference to the 13 -acre tract
and insisted that he did not know where the 13 acres referenced in Exhibit A was
located. He also denied knowing where the 8 or 9 acres referenced in the right of
first refusal were located, explaining that Exhibit A had no reference to 8, 9, or 13
acres.
Mr. Beauvais admitted that if one subtracted the 4. 5 acres listed originally
on the purchase agreement from 13 acres, that figure would be between 8 and 9
acres. However, Mr. Beauvais did not recall discussing the right of first refusal
with Ms. Stoodt before signing the purchase agreement and the counteroffer, and
was not sure what Ms. Stoodt wanted, but thought that Ms. Stoodt wished to stay
on the property for some time and wanted to be able to purchase additional
property at a future date. He did not recall discussing with Ms. Stoodt any
intention on her part to protect her property from future developments.
Mr. Beauvais acknowledged that he agreed, in the purchase agreement, to
maintain 8 to 9 acres of property that would not be purchased by Ms. Stoodt., and
that he did cut grass for Ms. Stoodt to fulfill this condition; however, he never cut
8 or 9 acres because the property was partially wooded. He stated that he mowed
about 4 acres. When asked whether the 8 to 9 acres he agreed to maintain
prompted his memory as to where the 8 or 9 acres referred to in the right of first
refusal was located, Mr. Beauvais responded that it did not assist him at all,
explaining that it made it more confusing for him because the place they referenced
he would maintain was half in the woods. However, Mr. Beauvais admitted that he
did recognize the methodology in place to determine the amount of acreage the
right of first refusal contemplated.
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Mr. Beauvais could not recall walking the property with Ms. Stoodt prior to
her purchase of the 5. 29 -acre tract and did not recall having discussions alone with
Ms. Stoodt. According to Mr. Beauvais, all discussions took place with his agents,
Ms. Stoodt' s agent, or both. Mr. Beauvais specifically could not recall a
conversation with Ms. Rice, Ms. Stoodt, and another real estate agent during which
Ms. Rice advised him not to sign the document containing the right of first refusal
language because it would affect the marketability of the remaining portion of his
property.
Mr. Beauvais testified that it was contemplated that a surveyor had to
prepare an official plat of the property, which had to be resubdivided, before the
property could be sold to Ms. Stoodt. He acknowledged that when he appeared at
the closing on the property, he believed Ms. Stoodt had a right of first refusal, and
after the Act of Sale was executed, he believed that Ms. Stoodt had such a right.
Mr. Beauvais also admitted that the three lots sold to third parties were part of the
13 -acre tract depicted on Exhibit J2. According to Mr. Beauvais, neither he nor
anyone on his behalf submitted any offers received from the third parties to Ms.
Stoodt for her consideration prior to selling those lots.
Mr. Beauvais was convinced that Ms. Stoodt, knew in fact that the property
on which she claims the right of first refusal was being sold to others and did
nothing to express any objection thereto. He explained that in 2015, he was made
aware that Ms. Stoodt wanted to sell her property, and he recommended that she
hire Ms. Rice as her agent. Mr. Beauvais testified that he told Ms. Stoodt in 2015
that he had a pending agreement on the back 12 acres of property when he spoke to
her while he was having the property surveyed for another re -subdivision.
However, according to Mr. Beauvais, Ms. Stoodt said nothing at that time and did
not say that she wanted to buy some of the property. Mr. Beauvais testified that
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Ms. Stoodt never offered to buy more land after her purchase, and he did not
believe that Ms. Stoodt was interested in purchasing more property from him
because she was trying to sell her own property and leave town.
Ms. Barrilleaux, who had been a realtor for approximately one year when
she represented Ms. Stoodt in the purchase negotiations, acknowledged that she
helped prepare the purchase agreement and recalled discussing Ms. Stoodt' s right
of first refusal. While she could not remember the specific property subject to the
right of first refusal, she believed it was the land adjacent and to the left of the
home on the property, and that the 13 -acre tract included the land facing Ms.
Stoodt' s home from Thomas Watts Road to the left, or to the north of Ms. Stoodt' s
property. Ms. Barrilleaux agreed that the MLS listing of the 13 -acre tract and
Exhibit J2 were related. Ms. Barrilleaux acknowledged that there was no way to
tell where the boundaries of the property subject to the right of first refusal were
located by looking at Exhibit A to the purchase agreement. She could not recall
the parties having discussed the eastern boundary of the land subject to the right of
first refusal during negotiations. Ms. Barrilleaux recalled sitting at a table in the
Beauvaises' home discussing the purchase agreement and also recalled discussing
the right of first refusal, but could not recall if that discussion took place at that
time or if all the parties were present when the right of first refusal was discussed.
Ms. Barrilleaux testified that she asked the closing attorney to send Ms.
Stoodt all of the documents a few days in advance of the sale of the 5. 29 -acre tract
for Ms. Stoodt to review. She believed Ms. Stoodt had a copy of the Act of Sale
prior to going to the notary' s office to execute it, and stated that Ms. Stoodt made
no objection to her about the language of the Act of Sale. Ms. Barrilleaux was
present when the Act of Sale was executed, and she did not remember if the right
of first refusal was not referenced in that document. However, neither Ms.
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Barrilleaux nor Ms. Stoodt brought the omission to the attention of the attorney
who handled the closing, and no one at the closing discussed the right of first
refusal. Ms. Barrilleaux further testified that Ms. Stoodt never contacted her after
the sale to ask about the right of first refusal and never told her that the Beauvaises
were selling the property on which Ms. Stoodt thought she had a right of first
refusal.
Ms. Rice, a realtor for 25 years, testified that the listing she prepared
referencing the sale of a 13 -acre tract with the home located thereon was intended
to be a " floating description" of the property and did not reference any particular
property line. She stated that she prepared the 13 -acre MLS listing and she was
not thinking of any specific 13 acres when she created the listing. She noted that
there were no drawings attached to the MLS listing and that no survey had been
done at the time that she listed the property. Ms. Rice testified that she has done
right of first refusals many times and never went to closing without a separate
document specifying the right of first refusal. She emphasized that the right of first
refusal at issue did not specify the 13 acres subject to it and did not specify the type
of right of first refusal, and testified that she anticipated the preparation of another
document to go along with it, as she had done every time she handled a right of
first refusal.
Ms. Rice denied having advised the Beauvaises not to sign an agreement
with a right of first refusal in it. She admitted that when she went to the closing for
the sale of the 5. 29 -acre tract, she thought Ms. Stoodt had a right of first refusal.
However, she anticipated further documents to be prepared so as to clarify the right
of first refusal. Ms. Rice acknowledged that when she listed Ms. Stoodt' s property
for sale in 2015, a right of first refusal was referenced in connection with the
property offered for sale. Ms. Rice testified that she talked to Ms. Stoodt about
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buying additional acreage, and Ms. Stoodt replied that she was not in a position to
buy it nor did she want to buy any additional acreage. Ms. Rice admitted that, after
listing Ms. Stoodt' s property for sale, she had no intention to submit any offers
made on the Beauvaises' remaining property to Ms. Stoodt for her consideration,
and did not relay offers to Ms. Stoodt on the property sold to the Wallers and Mr.
Slemmer. She also acknowledged that she never told any prospective purchaser
when marketing Ms. Stoodt' s property that Ms. Stoodt had a right of first refusal
on the Beauvaises' property. Ms. Rice explained that her reason for not taking any
of these actions was because the Beauvaises had offered the property to Ms. Stoodt
and she declined to buy it. She testified that when she represented Ms. Stoodt in
listing her property for sale, Ms. Stoodt advised her that she was not interested in
buying any more property because she was trying to leave town. At the same time
Ms. Rice listed Ms. Stoodt' s property for sale, she was also marketing the
remaining acreage on behalf of the Beauvaises. Ms. Rice stated that she was
marketing both properties so that someone could purchase Ms. Stoodt' s property
and additional acreage owned by the Beauvaises. Ms. Rice testified there was no
doubt in her mind that Ms. Stoodt knew that these properties were being marketed
for sale.
Ms.
Stoodt testified that she had the MLS listing, marketing the property
with the home and +/- 13 acres, before she submitted her offer to the Beauvaises.
She testified that she walked part of the 13 -acre tract she was considering buying
with Mr. Beauvais and with her realtor. She stated that they discussed the
boundaries of the property: a point behind the sheds, and two roads which actually
intersected each other. Ms. Stoodt stated that her realtor also gave her the drawing
depicted in Exhibit J2 before she submitted her offer. Ms. Stoodt testified that she
and the Beauvaises, Ms. Rice, and Ms. Barrilleaux all met at the Beauvaises' home
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to clarify some of her concerns. She testified that they discussed her right of first
refusal at the meeting, and it was a condition of her offer because it was critical for
her to be able to protect the investment she would be making. According to Ms.
Stoodt, Ms. Rice advised the Beauvaises not to agree to the right of first refusal
because it could damage the marketing of their property. Ms. Stoodt testified that
during their discussions, she expressed an interest in more than the 4 acres that was
part of one of the MLS listings and less than the 13 acres that was part of another
MLS listing if the Beauvaises were agreeable to a right of first refusal on that 13
acres.
Ms. Stoodt testified that she wrote the language of the right of first refusal in
her counteroffer, which required a survey to define the purchased property.
According to Ms. Stoodt, what she intended in the right of first refusal could be
determined by simple math: subtract between the 4 or 5 acres she thought she
would be purchasing, leaving 8 to 9 acres on which she would have a right of first
refusal.
If the survey showed the land she was purchasing was less than 4 acres,
the right of first refusal would cover 9 acres; however, if the survey showed she
was purchasing 5 acres, the right of first refusal would cover 8 acres of the 13 -acre
tract. According to Ms. Stoodt, once the survey demonstrated that she was
purchasing 5. 29 -acre tracts, the amount of acreage subject to the right of first
refusal decreased to 7. 71 acres.
Ms. Stoodt admitted that she did not recall a specific discussion with the
Beauvaises regarding the methodology on how the acreage subject to the right of
first refusal would be calculated. She was adamant that the 13 acres they were
discussing was represented in the listing of the property for sale, and the parties
had talked about it prior to her offer as being that portion of land. According to
Ms. Stoodt, there did not seem to be any question as to the 13 acres of land about
15
which they were speaking. Ms. Stoodt was shown Exhibit A, attached to the
purchase agreement and which does not depict any 13 or 13. 1 - acre tract, and she
attempted to identify the boundaries of the portion of land on which she had a right
of first refusal: the two roadways, the property she was purchasing as the northern
boundary, and the " point behind the improvements on the east side." She
acknowledged that the map attached to the purchase agreement did not show the
improvements to the east, but insisted that the eastern boundary would have been
behind the improvements on the back of the property, behind a workshop and shed.
She further admitted that the eastern boundary of the property subject to her right
of first refusal had never been surveyed.
On cross examination, Ms. Stoodt acknowledged that the MLS listing
reflected a 13 -acre tract and the drawing in Exhibit J2 referenced a 13. 1 - acre tract;
however, she believed that 13. 1 acres was the proper description for determining
the acreage subject to her right of first refusal. She admitted that the once it was
determined she was buying a 5. 29 -acre tracts instead of 4 acres, the language in the
right of first refusal referencing 8 to 9 acres was no longer accurate and that she
would have to change the 8 or 9 figure to specifically determine how much acreage
was subject to her right of first refusal.
Ms. Stoodt testified she insisted on the right of first refusal to protect her
home and her investment. She stated that she was never given an offer made to the
Beauvaises for any portion of the 13 acres subject to her right of first refusal before
the Beauvaises sold that property to third parties. Ms. Stoodt insisted that most of
the properties that the Beauvaises sold to the Wallers and Mr. Slemmer were part
of the property on which she had a right of first refusal. She stated that at one
point she encountered Mr. Beauvais on the property with a surveyor and Mr.
Beauvais told her they were having an additional survey done and she became
16
suspicious about a potential sale; however, Mr. Beauvais told her there was no
contract. She stated that she asked Mr. Beauvais whether he had heard of any
buyers who may be interested in purchasing the entire acreage and the home, and
Mr. Beauvais told her that " all buyers are liars."
Ms. Stoodt also testified that in 2015, she decided to sell her property, as she
was going to retire and wanted to move back to her home. She enlisted Ms. Rice
as her agent to sell the home and 5. 29 -acre tract, and she and Ms. Rice had several
discussions as to how the right of first refusal would be managed. Ms. Stoodt
insisted that she was asked by Ms. Rice' s associate to waive the right of first
refusal, and she refused to. According to Ms. Stoodt, the right of first refusal was
listed as an amenity because at the time she listed her property, the Beauvaises had
not listed their property for sale, and she did not believe that she needed to exercise
her option unless the Beauvaises had a purchaser for the property. When the
Beauvaises also decided to sell their property, Ms. Stoodt admitted that she was
willing to cooperate with them and agreed to work with them to sell her home and
acreage as well as their property. She further admitted that her realtor asked her if
she was interested in purchasing the rest of the acreage owned by the Beauvaises.
Ms. Stoodt stated that she told the realtor she did not want to purchase additional
acreage unless she needed to protect her investment. She denied telling the agent
she did not want to purchase additional property.
Ms. Stoodt insisted that she would not have purchased the home and 5. 29 -
acre tract and would not have made improvements thereon had she known her right
of first refusal would not be honored. According to Ms. Stoodt, one of the reasons
she wanted the right of first refusal was to prevent anyone from putting a mobile
home on the adjoining property, which would have reduced the value of her
property. However, she acknowledged that there were other manufactured homes
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in the area across the street from her home. She also testified that she had not
gotten any offers on her property so far, and answered " potentially" when asked
whether the last thing she would want to do is add another tract to that property.
Ms. Stoodt testified that she had " many" viewings of her home where the lack of
additional land had been an issue and those potential buyers " walked away." She
also testified that she recently had a buyer pass on her home because of the trailer
on Mr. Slemmer' s property. However, none of these interested buyers testified at
trial. Although Ms. Stoodt had filed a notice of lis pendens in the mortgage
records and Mr. Slemmer purchased his property without a title search, Ms. Stoodt
did not file a lawsuit against Mr. Slemmer. She also did not sue Ms. Barrilleaux or
the notary who prepared the Act of Sale without referencing the right of first
refusal therein. She further admitted that at some time after Ms. Rice listed her
property in 2015, the property appraised at $ 595, 000. 00.
In this appeal, Ms. Stoodt asserts that the trial court erred in concluding that
her right of first refusal was unenforceable due to an inadequate legal description
of the property subject to the right. She argues that the evidence demonstrated that
the parties' clear intent was to provide her with a right of first of first refusal and
contends that the parties adopted a methodology to identify the property subject to
her right of first refusal, which is set forth in the purchase agreement and proven
by admissible extrinsic evidence. Ms. Stoodt maintains that the property subject to
her right of first refusal is identified in Exhibit J2 and comprises that acreage
remaining from the original 13. 1 - acre tract after subtracting the 5. 29 -acre tract she
purchased from the Beauvaises.
The Beauvaises counter that the trial court' s judgment is correct because
there was no " certain thing" upon which the alleged right of first refusal existed.
They point out that there was no legal description or survey plat describing the
W.
property subject to the alleged right contained in any document associated with the
purchase agreement or sale of the property to Ms. Stoodt. The Beauvaises argue
that the lack of an adequate property description makes the " thing" uncertain.
They point out that Ms. Stoodt has admitted there is no survey setting forth the
eastern boundary of the land subject to her alleged right of first refusal. The
Beauvaises maintain that Ms. Stoodt' s own testimony proved that there was a lack
of clarity as to what property was subject to her right of first refusal, and they
adamantly deny that there was any agreed upon " clear method" upon which to
determine what property was subject to this alleged right. Because there was no
certain thing," the Beauvaises argue, there was no enforceable right of first
refusal.
In this case, the trial court ultimately determined that Ms. Stoodt failed to
meet her burden of establishing that she had an enforceable right of first refusal on
property sold by the Beauvaises to third parties because the property subject to the
right claimed was not sufficiently certain. In making this determination, the trial
court obviously considered the absence of a clear legal description of the property
subject to Ms. Stoodt' s claimed right in Exhibit A to the purchase agreement, in
the Act of Sale transferring the 5. 29 -acre tract to Ms. Stoodt, or in the survey
prepared in connection with that transfer. Moreover, the record reflects that the
testimony regarding the parties' understanding or lack thereof of what property
was subject to the right of first refusal was conflicting. After thoroughly reviewing
all of the documentary and testimonial evidence in this case, we cannot say that the
trial court' s conclusion that Ms. Stoodt failed to prove the existence of an
enforceable right of first refusal is clearly wrong or manifestly erroneous.
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CONCLUSION
For the foregoing reasons, the April 19, 2018 judgment is affirmed. All
costs of this appeal are assessed to plaintiff, Amy L. Stoodt.
AFFIRMED.
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