WILLIAMS v. ADAMS, 2010-0477 (La.App. 1 Cir. 11/1/10)

No. 2010-CA-0477.Court of Appeal of Louisiana, First Circuit.
November 1, 2010.

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APPEALED FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ASSUMPTION STATE OF LOUISIANA, DOCKET NUMBER 31,530 HONORABLE JANE TRICHE-MILAZZO, JUDGE.

Deborah E. Dugas, Reserve, LA, Counsel for Plaintiffs/Appellees Yvonne and Haven Williams.

Maimuna D. Magee, Oscar L. Magee, Baton Rouge, LA, Counsel for Defendant/Appellant Mercedes Adams.

BEFORE: PARRO, GUIDRY, AND HUGHES, JJ.

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GUIDRY, J.

The owner of property appeals a judgment wherein she was ordered to convey title to the property to a couple who had been occupying the property with the understanding that the payments they had made to the owner would result in their gaining ownership of the property. For the reasons that follow, we affirm in part and remand.

FACTS AND PROCEDURAL HISTORY
In 2003, Mercedes Adams offered property that she owned located at 311 Klotzville Lane, Belle Rose, Louisiana, to Yvonne and Haven Williams. The Williamses accepted the offer and moved to the property, which consisted of a manufactured home and land, in July 2003. A year and a half later, in January 2005, [1] Mrs. Williams and Ms. Adams executed a standard form document titled “Standard Residential Lease Form Agreement” (“the agreement”) to memorialize their agreement regarding the property.[2] Although the standard form language of the agreement provided for the lease of property, the words “lease” and “landlord” were struck out in several places and replaced with the words “sale” and “seller,” respectively. The consideration recited in the agreement was $350.00 per month, for a term from September 1, 2003, to July 31, 2010; however, the parties acknowledged at trial that beginning in January 2005, the Williamses began paying Ms. Adams $500.00 per month, pursuant to Ms. Adams’ request.

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Sometime in the latter part of 2008, the Williamses stopped making monthly payments, and on March 19, 2009, they filed a “Petition for Specific Performance of Contract to Sell Immovable.” In the petition, the Williamses alleged that on October 1, 2008, they received a letter on behalf of Ms. Adams threatening to repossess the property because of the cessation of the monthly payments. They further alleged that on January 9, 2009, they sent a letter to counsel for Ms. Adams requesting that a date be set to transfer title to the property to them, because, according to their calculations, they had made payments far in excess of the contract price agreed upon. As a result of Ms. Adams’ refusal to transfer title to the property, the Williamses filed suit, seeking specific performance of the agreement.

In response, Ms. Adams filed an answer and reconventional demand, generally denying that the parties had entered into a valid contract to sell immovable property and asserting that the agreement was a mere lease agreement. She further asserted that the Williamses had defaulted on the agreement by failing to timely make monthly payments and not allowing her access to the property.

A bench trial in this matter was held on September 8, 2009, following which the trial court rendered judgment in favor of the Williamses, finding that the agreement signed by Mrs. Williams and Ms. Adams was a credit sale for the price of $29,050.00, payable in the amount of $350.00 per month, for the term of September 1, 2003, to July 7, 2010.[3] The judgment then ordered the Williamses to pay an additional $1,500.00[4] to Ms. Adams, following which Ms. Adams was ordered to transfer the titles to the trailer and land to the Williamses. A written

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judgment was signed accordingly on December 17, 2009, from which Ms. Adams now appeals.

ASSIGNMENTS OF ERROR
Ms. Adams alleges that the trial court committed the following errors in rendering the judgment appealed:

A. The trial court erred in using parol evidence to determine and prove title to land when Louisiana law specifically and expressly prohibits this activity by the courts, unless certain stringent exceptions apply.
B. The trial court erred in that it declared a lease agreement between the parties to be an act of credit sale without any legal evidence to bear thereof, including the absence of the [plaintiffs’] argument in favor of that assertion.
C. The trial court erred in not finding the legal description listed on the lease agreement as “legally insufficient” to transfer immovable property.
D. The trial court erred in failing to consider defendant’s pretrial memorandum that detailed the legal requirements for adherence to the written document rule of transferring title of immovable property.
E. The trial court erred in actually signing the judgment when it did not correctly identify the property with the correct municipal address or legal description; thereby, creating an order that incorrectly and insufficiently identifies the property to transfer.

DISCUSSION
In her first assignment of error, Ms. Adams contends that the trial court erred in considering parol evidence to determine what the parties actually agreed to in executing the agreement, which was an act under private signature. Ms. Adams asserts in her brief that at most, the written agreement was only a lease of the home and not the land.

A determination of Ms. Adams’ assertion that the signed agreement was just a mere lease agreement that did not cover the land hinges on the trial court’s interpretation of the agreement itself. Whether the terms of a contract are doubtful or ambiguous is a question of law. Appellate review of questions of law is simply

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to discern whether the trial court’s interpretive decision is legally correct. Seals v. Sumrall, 03-0873, p. 5 (La. App. 1st Cir. 9/17/04), 887 So. 2d 91, 94.

In reviewing the record in this matter, we first observe that a plain reading of the modified document supports a finding that the agreement is a contract to sell and not just a mere lease agreement. Although the initial space for a party’s name is left blank, in the parenthetical following the space, the agreement was modified to read “(to be referred to as seller or Agent for Landlord)” and immediately following the parenthetical, the agreement was modified to state, “hereby sold to Haven Yvonne Williams (to be referred to as Tenant[)] the following described property.”[5]
Thereafter, the agreement goes on to label the property to be sold as “premises” and lists the incorrect municipal address of the property. Finally, on the second page of the document, the signatures of Mrs. Williams and Ms. Adams appear, and under the signature of Ms. Adams, the term “landlord” is crossed out and replaced with “seller.” We find that the handwritten modifications to the agreement were sufficient to transform the standard agreement from a mere lease agreement to a contract to sell.

Moreover, use of the term “premises” in the agreement was sufficient to convey the understanding that both the home and the land were the subject of the agreement, and not just the home as Ms. Adams contends. Black’s Law Dictionary defines the term “premises” as “[a] house or building, along with its grounds.”Black’s Law Dictionary 1300 (9th ed. 2009). The comments to the definition further explain the “curious history in legal usage” of the term and relate that “[f]inally, [the term premises] was extended to refer to a house or building along with its grounds.”Black’s Law Dictionary at 1300 (quoting Bryan A. Garner, ADictionary of Modern Legal Usage 685 (2d ed. 1995)). Therefore, based on the

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plain language of the agreement, we do not find the trial court’s interpretive decision to be legally incorrect.

Furthermore, Louisiana Civil Code article 1848
provides:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement. [Emphasis added.]

As established at trial, the parties did modify the written agreement by a subsequent and valid oral agreement, in that the monthly payment amount was increased from $350.00 per month to $500.00 per month. While the parties disagreed as to the purpose for the increase in the monthly amount, [6] the testimony clearly established that the parties did agree to the payment of the increase.

Additionally (and not surprisingly, considering how poorly the standard language of the agreement was modified), the record establishes that there was an error in the agreement that would constitute a vice of consent. In the agreement, the physical address of the property at issue is stated as “331 Klotzville [Lane],” when the correct address is “311 Klotzville Lane.” Both Mrs. Williams and Ms. Adams acknowledged at trial that they did not notice the error when they executed the agreement, and they both agreed that it was an error.

Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La.C.C. art. 1949. Error may concern a cause when it bears on the nature of the thing that is the contractual object. La.C.C. art. 1950; see alsoHolliday v. Holliday, 00-0533, p. 5 (La. App. 1st Cir. 08/17/01), 795 So. 2d 423, 428, amended in part on reh’g on othergrounds, 00-0533 (La. App. 1st Cir. 9/28/01), 797 So. 2d 774. Thus, based on the oral modification of the

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agreement and the error in the agreement resulting in a vice of consent, we find the trial court did not err in considering parol evidence regarding the agreement.

In her second assignment of error, relying on La.C.C. arts. 1839, 2439, 2440 and 2477, Ms. Adams again alleges that the agreement she and Mrs. Williams executed was, at most, a lease agreement, not a contract to sell. She further contends that the trial court erred in finding the agreement to be a credit sale. While we find no merit in Ms. Adams’ assertion that the agreement was a mere lease agreement, we agree, however, that the trial court legally erred in finding that the parties’ transaction was a credit sale.

Article 1839 provides that the transfer of immovable property must be by authentic act or act under private signature, and Article 2440 further provides that the “sale or promise of sale of an immovable” must also be by authentic act or act under private signature. While the document executed by Mrs. Williams and Ms. Adams was imperfectly drafted, to say the least, the document is written and notarized and thus complies with the requisites of Articles 1839 and 2440.

The basic requisites of a contract of sale are found in Article 2439; however, the agreement at issue in this case is not a “contract of sale,” but is a “contract to sell,” since the agreement does not purport to effect an immediate transfer of the property at issue, but instead expressly contemplates that the transfer of the property would occur at a future date. Louisiana Civil Code article 2623 defines a “contract to sell” as follows:

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, is a bilateral promise of sale or contract to sell. Such an agreement gives either party the right to demand specific performance.
A contract to sell must set forth the thing and the price, and meet the formal requirements of the sale it contemplates.

In this case, in addition to the agreement, the testimony of the parties clarified the municipal address of the property or “the thing” that was set forth in

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the written agreement that was executed as an act under private signature. The price, as recited in the agreement, was equal to the sum of $350.00 per month to be paid from September 1, 2003, to July 31, 2010, [7] which comports with La.C.C. art. 2464 that provides that “[t]he price must be fixed by the parties in a sum either certain or determinable through a method agreed by them.” Thus, the agreement comports with the basic requirements of a contract to sell under La.C.C. art. 2623.

More importantly, we should point out that the agreement at issue, in part, resembles a “Bond for Deed” contract, rather than a “credit sale,” as found by the trial court. A “Bond for Deed” contract is defined under La.R.S. 9:2941 as “a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” (Emphasis added.) And while there is no promise contained in the actual agreement that Ms. Adams would deliver the titles for the property to the Williamses once they had fulfilled the terms of the agreement, Ms. Adams conceded at trial that there was such a verbal agreement. Nevertheless, although the agreement does not constitute a “Bond for Deed” contract, the trial court committed legal error in finding the agreement to be a credit sale. We find that the agreement is a binding “contract to sell” as alleged by the Williamses rather than a credit sale. See Upton v.Whitehead, 41,131 (La. App. 2d Cir. 6/28/06), 935 So. 2d 746;Hines v. Dance, 460 So. 2d 1152, 1154 (La. App. 2d Cir. 1984). Hence, we will amend the judgment to so reflect.

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As for Ms. Adams’ reliance on Louisiana Civil Code article 2477, we find her reliance is misplaced. Louisiana Civil Code article 2477 describes the manner by which delivery of an immovable is made and states, “[d]elivery of an immovable is deemed to take place upon execution of the writing that transfers its ownership.” It is acknowledged that a transfer of the property has not occurred, which is why the Williamses filed suit seeking a judgment that orders Ms. Adams to execute a writing that transfers ownership. Accordingly, for the foregoing reasons, we find no merit in Ms. Adams’ second assignment of error.

We likewise find no merit in Ms. Adams’ third and fourth assignments of error, wherein she asserts that the legal description of the immovable property in the agreement was insufficient to make the agreement enforceable. As previously discussed, there was an error in the description of the municipal address of the property, which the parties acknowledged to be an error. The written description in the agreement was of sufficient substance and was not so general that the property could not be identified. Accordingly, the error in the property’s description was not such as to prohibit compelling specific performance of the property’s conveyance, especially once parol evidence was admitted to clarify the identification of the property at issue.See Wilson v. Head, 97-992, pp. 2-4 (La. App. 3d Cir. 2/4/98), 707 So. 2d 127, 128-29;City Bank and Trust of Shreveoort v. Scott, 575 So. 2d 872 (La. App. 2d Cir. 1991).

In her fifth assignment of error, Ms. Adams correctly points out an error in the description of the property in the judgment. In rendering its decree, the trial court stated “IT IS FURTHERORDERED, ADJUDGED, AND DECREED that in consideration of payments made by the plaintiffs, Yvonne Williams and Haven Williams, to satisfy [the] agreement for trailer and land located at 311 Highway 1003, Klotzville, LA in credit sale and $750.00 for repairs, they shall pay the sum of $1,500.00 to defendant Mercedes Adams.”

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Louisiana Code of Civil Procedure article 2089
states “[a]ll judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected.” See also
La.C.C.P. art. 1919. Accordingly, we shall remand this matter to the trial court to not only correct the municipal address recited in the judgment, but to further amend the judgment to include a legal description of the property. See Deano v. Brouillette, 94-1856, p. 8 (La. App. 4th Cir. 11/16/95), 664 So. 2d 1283, 1287.

In her brief, Ms. Adams includes an additional argument of an issue that she did not specifically assign as error that we will now address.[8] The issue raised by Ms. Adams is in regard to the home at issue being a manufactured home. Unless the home at issue has been “immobilized” in accordance with the provisions of La.R.S. 9:1149.4, then the method by which sale of the manufactured home may be perfected must be done by delivery of the certificate of title in accordance with Chapter 4 of Title 32 of the Louisiana Revised Statutes, the Vehicle Certificate of Title Law.See
La.R.S. 32:701-738, specifically §§ 705 and 706(A) (E). The trial court, however, appears to have recognized this circumstance in that it decreed that Ms. Adams “shall transfer th titles to the trailer and land to plaintiffs.” (Emphasis added.) Thus, we find no error in the trial court’s decree relative to the home being a manufactured home.

CONCLUSION
Having thoroughly reviewed the record and the law governing this matter, we affirm the trial court’s judgment ordering specific performance of the contract

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executed by Mrs. Williams and Ms. Adams; however, we amend the judgment to state that the document signed by the parties in 2005 is a “contract to sell” rather than a “credit sale.” Finally, we will remand this matter to the trial court to further amend the judgment to correctly recite the municipal address and include a legal description of the property. All costs of these proceedings are cast to the appellant, Mercedes Adams.

AMENDED IN PART, AFFIRMED AS AMENDED, AND REMANDED.