Vega v. Autumnwood Homes, Inc.
ORDER AND REASONS denying 38 Motion for Attorney Fees. Signed by Judge Carl Barbier on 11/7/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AUTUMNWOOD HOMES, INC.
ORDER & REASONS
NATURE OF MOTION AND RELIEF REQUESTED
Before the Court is Defendant Autumnwood Homes, Inc.'s Motion
for Attorney’s Fees and Costs (Rec. Doc. 38) and an opposition
thereto filed by Plaintiff Orlando Vega. (Rec. Doc. 39.) Having
considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
On or about June 3, 2015, Plaintiff bought a home from
Defendant for $335,000.00, but later discovered that the City of
New Orleans had refused to issue an occupancy permit to Defendant
because the home had failed a City Inspection. 1
On January 28, 2016, Plaintiff filed suit in this Court
against Defendant for a breach of the warranty against redhibitory
defects, alleging that Defendant knew of the defects to the home
1 In order to perfect this sale, Plaintiff and Defendant entered into a Purchase
Agreement, and then subsequently, an Act of Sale. Plaintiff alleges that it was
only after the completion of the Act of Sale that the redhibitory defects became
but failed to declare them.
Plaintiff sought rescission of the
sale and return of his purchase price of $335,000.00, as well as
payment for other damages.
On May 10, 2016, the Court granted
Plaintiff’s Ex Parte Motion for Entry of Judgment against the
Defendant. (Rec. Doc. 38 at 1.) However, the Court later set aside
the judgment due to faulty service and granted Plaintiff additional
time for proper service. (Rec. Doc. 38.) Service was perfected on
December 16, 2016. (Rec. Doc. 38.) On February 16, 2017, the Court
granted Defendant’s Motion to Dismiss for Failure to State a Claim
in part and also granted Plaintiff additional time to amend his
Defendant filed a Motion for Involuntary Dismissal for Plaintiff’s
Failure to Amend Suit on April 18, 2017. (Rec. Doc. 33.) On May
12, 2017, the Court granted Plaintiff yet another extension of
time (fourteen days) to amend his pleadings. (Rec. Doc. 34.) On
June 9, 2017, after Plaintiff failed to amend, the Court, sua
sponte, entered final judgment for Defendant and dismissed the
Plaintiff’s claims with prejudice. (Rec. Doc. 35.)
$8,168.75, calculated at a rate of $175.00 per hour at 46 hours of
work. (Rec. Doc. 38 at 4.) Plaintiff filed an opposition to the
motion. (Rec. Doc. 39.) The motion is now before the Court on the
briefs and without oral argument.
Defendant argues that attorney’s fees may properly be awarded
because Defendant has specifically pled for attorney’s fees in its
answer, timely filed a motion pursuant to FRCP 54(d), and complied
with FRCP 9(g). Defendant claims that it is entitled to attorney’s
fees pursuant to the Purchase Agreement between the parties. 2
Defendant also states that “the time and work done by Autumnwood’s
counsel was fully justifiable and proved to be consistent with the
rules of court and the applicable law.”
attorney’s fees. Plaintiff argues that under the “American Rule,”
parties may not receive attorney’s fees unless they are provided
for by a statute or contract. (Rec. Doc. 39 at 2.) Plaintiff states
that he brought this lawsuit pursuant to the Act of Sale, yet
Defendant is asking for attorney’s fees pursuant to the Purchase
Agreement. Further, Plaintiff argues that the Purchase Agreement
was rendered moot when the parties perfected the sale via the Act
Plaintiff also argues that the amount of attorney’s fees
requested by Defendant, specifically, the 7.9 hours billed at
$1,387.50 for “legal research and preparation” for Defendant’s
2 The Purchase Agreement provides: “The prevailing party to any litigation
brought to enforce any provision of this Agreement shall be awarded their
attorney fees and cost. The Buyer may also be liable for broker’s fees.” (Rec.
Doc. 38 at 3.)
Motion and Memo for Involuntary Dismissal for Plaintiff’s Failure
to Amend Suit (Rec. Doc. 33), are “clearly frivolous” and were
Defendant’s motion was unnecessary because the Court, of its own
volition, gave the Plaintiff time to amend his suit and stated it
would automatically dismiss the suit if Plaintiff failed to amend.
Finally, Plaintiff states that any amount it is required to pay
for attorney’s fees should be offset by the amount Plaintiff was
required to spend in order to hire a special process server to
serve Defendant with the complaint. Plaintiff claims he was forced
to hire a special process server because Defendant refused to
execute the waiver of service during several repeated attempts.
As a preliminary matter, the Court must determine whether
Defendant’s motion is properly before the Court. Attorney’s fees
are classified as “special damages” and must be specifically
requested under Federal Rule of Civil Procedure 9(g). See e.g.,
Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d
840, 843 (3d Cir. 1973). FRCP 54(d)(2) further controls in motions
for attorney’s fees and states that “claim[s] for attorney’s fees
and related nontaxable expenses must be made by motion unless the
substantive law requires those fees to be proved at trial as an
element of damages.” Unless a court or statute otherwise provides,
the motion shall “be filed no later than 14 days after the entry
of judgment” and should “specify the judgment and the statute rule,
or other grounds entitling the movant to the award,” as well as
“state the amount sought or provide a fair estimate of it.” FRCP
requirements of FRCP 9(g) and 54(d)(2), therefore, Defendant’s
motion is properly before the Court.
Attorney’s fees may only be awarded if provided for by statute
or contract. See, e.g. Rhodes v. Collier, 215 La. 754, 764 (1949)
(“The ordinary rule is that attorneys’ fees are not recoverable in
a civil action in the absence of statute or contract.”); Health
Educ. & Welfare Fed. Credit Union v. Peoples State Bank, 2011-672,
pp. 5-6 (La. App. 3 Cir. 12/7/11); 83 So. 3d 1055, 1058 (“Attorney
Defendant does not put forth any statute that would support
an award of attorney’s fees in this case. Instead, Defendant argues
that it is entitled to attorney’s fees pursuant to the Purchase
Agreement between the parties.
Plaintiff, on the other hand,
argues that he brought this litigation pursuant to the Act of Sale.
Thus, Plaintiff argues that the controlling contract is the Act of
Sale, not the Purchase Agreement. (Rec. Doc. 39 at 2-3.)
There are two relevant contracts in this case: the Purchase
Agreement and the Act of Sale. A Purchase Agreement is a bilateral
promise of sale or contract to sell, otherwise defined as “an
agreement whereby one party promises to sell and the other promises
to buy a thing at a later time, or upon the happening of a
condition, or upon performance of some obligation by either party.”
La. Civ. Code art. 2623.
In contrast, an Act of Sale, or contract
perfection of the sale, or the meeting of the minds. See e.g., La.
Civ. Code art. 2456 (“Ownership is transferred between the parties
as soon as there is agreement on the thing and the price is fixed,
even though the thing sold is not yet delivered nor the price
paid.”); La. Civ. Code art.
1839 (“A transfer of immovable
property must be made by authentic act or by act under private
The “[A]ct of [S]ale represents ‘the conclusion of
the negotiation process and embodies the final expression of the
parties’ intent.’” Long-Fork, L.L.C. v. Petite Riviere, L.L.C.,
2007-1316, p. 9 (La. App. 3 Cir. 6/11/08); 987 So. 2d 831, 837
(citing Esplanade Management, Ltd. v. Sajare Interests, 498 So. 2d
289, 292 (La. App. 4 Cir. 1986)).
Contracts have the effect of
law between parties, and the Court is bound to interpret them
according to the parties’ “common intent.” See e.g., Lalla v.
Calamar, N.V., 2008-0952, p. 7-8 (La. App. 4 Cir. 2/11/09); 5 So.
3d 927, 932 (citing La. Civ. Code arts. 1983 and 2045).
words of a contract are clear, unambiguous, and lead to no absurd
consequences, the court need not look beyond the contract language
to determine the true intent of the parties.” Id. (citing La. Civ.
Code art. 2046). “Each provision in a contract must be interpreted
in light of the other provisions so that each is given the meaning
suggested by the contract as a whole.” Id. (citing La. Civ. Code
When a contract is unambiguous “or does not lead to
absurd consequences,” it shall be enforced as written. Id. (citing
American Deposit Ins. Co. v. Myles, 2000–2457, p. 5 (La.4/25/01);
783 So.2d 1282, 1286).
Defendant, states: “The prevailing party to any litigation brought
to enforce any provision of this Agreement shall be awarded their
attorney fees and cost.” (Rec. Doc. 38-1 at 3.)
within the four corners of the Purchase Agreement implies that
this clause was meant to grant attorney’s fees should the parties
need to enforce a specific provision of the Purchase Agreement.
It does not imply that the clause controls in all lawsuits between
the parties brought pursuant to any document signed by them.
Plaintiff brought this suit pursuant to the Act of Sale due to
redhibitory defects discovered after the sale was completed.
instant provision, plainly read within the four corners of the
document, was not intended to grant attorney’s fees under these
attorney’s fees pursuant to a Purchase Agreement when the parties
have a fully executed Act of Sale. 3 Cases involving the enforcement
of a provision identical to the one at hand all stem from a party’s
failure to complete the Act of Sale by the date provided in the
Purchase Agreement or otherwise agreed upon by the parties. See
Whitbeck v. Champagne, 2014-245, p. 4, 11-19 (La. App. 3 Cir.
10/1/14); 149 So. 3d 372, 376-79, 84-85 (reviewing the amount of
attorney’s fees awarded pursuant to provision in the Purchase
finalizing the sale of a home); Carr v. Whitten, 2012-758, p. 14, n.3 (La. App. 3 Cir. 12/5/12); 104 So. 3d 763, 764-66 n.3
attorney’s fees in favor of the defendants after the plaintiffs
refused to sell a mobile home because they lacked proper title);
Ducote v. Katz, 361 So. 2d 1320 (La. Ct. App.), writ denied, 362
So. 2d 1386 (La. 1978) (determining whether the buyers of a home
were entitled to attorney’s fees pursuant to the Purchase Agreement
after the buyers refused the follow through with the Act of Sale).
Defendant has also failed to show that the parties intended
to provide for attorney’s fees for litigation arising from the Act
The Act of Sale “embodies the final expression of the
The only case cited by Defendant was Whitbeck v. Champagne, however, Defendant
fails to argue why Whitbeck should be considered by the Court despite its
emphasis on Purchase Agreements, not Acts of Sale.
attorney’s fees. See Long-Fork, L.L.C. v. Petite Riviere, L.L.C.,
2007-1316, p. 9 (La. App. 3 Cir. 6/11/08); 987 So. 2d 831, 837
37:1449.1 4 requires a Standard Purchase Agreement form be used in
Agreement form contains a provision that is identical to the one
referenced by Defendant. It states:
DEFAULT OF AGREEMENT BY BUYER: In the event of any
default of this Agreement by the BUYER, the SELLER shall
have at the SELLER’S option the right to declare this
Agreement null and void with no further demand, or to
demand and sue for any of the following: 1) Termination
Termination of this Agreement and an amount equal to 10%
of the Sale Price as stipulated damages.
Further, the SELLER shall be entitled to retain the
Deposit. The prevailing party to any litigation brought
to enforce any provision of this Agreement shall be
awarded their attorney fees and costs. The BUYER may
also be liable for Broker fees.
§ 9:121 Residential agreement to purchase and sell—Louisiana Real
Estate Commission approved form, 1 La. Prac. Real Est. § 9:121 (2d
ed.) (emphasis added). 5
Because the instant case began as a
Louisiana Revised Statute § 37:1449.1 states:
A licensee representing either the buyer or seller of residential
real property shall complete the purchase agreement form prescribed
by the Louisiana Real Estate Commission in making an offer to
purchase or sell residential real property. No person shall alter
the purchase agreement form; however, addendums or amendments to
the purchase agreement form may be utilized.
La. R.S. Ann. § 37:1449.1; see also § 5:7 Definition of contract to sell, 24
La. Civ. L. Treatise, Sales § 5:7.
This form can be found as a PDF in the Louisiana Practice Series on Real
Estate Transactions, section 9:121 at page 7.
residential sale of a home, the parties would have been required
to use this standard form when completing the Purchase Agreement.
While Louisiana Revised Statute § 37:1449.1 allows addenda and
amendments to be made to the form, the text of the form itself may
legislatively required provision is in the Purchase Agreement does
not mean that the parties intended to provide for attorney’s fees
for litigation relating to the Act of Sale, especially when the
provision is not carried over from the Purchase Agreement to the
Act of Sale itself.
In conclusion, a plain reading of the contested provision in
Agreement, not other documents between the parties like the Act of
Sale. Therefore, because the parties in the instant case did not
intend to provide for attorney’s fees for litigation arising from
their Act of Sale, Defendant is not entitled to attorney’s fees.
IT IS HEREBY ORDERED that Defendant’s Motion for Attorney’s
Fees and Costs (Rec. Doc. 38) is DENIED.
New Orleans, Louisiana this 7th day of November, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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