Fejta v. GAF Co., Inc., 800 F.2d 1395 (5th Cir. 1986); Tedesco, 521 So.2d at 723-24; Daigle Assoc., Inc. v. Coleman, 385 So.2d 349 (La.App. 1st Cir. 1980), aff'd on other grounds, 396 So.2d 1270 (La. 1981); Krupp v. Nelson, 50 So.2d 464 (La.App. 4th Cir. 1951). See also Morvant v. Arnoult, 490 So.2d 549, 551 (La.App. 4th Cir. 1986); Sanders v. Rudd, 427 So.2d 1271, 1275 (La.App. 2d Cir. 1983). Appellant Gulf notes that this line of cases is not dispositive because the Louisiana Supreme Court, in affirming the appellate court's decision in Daigle, expressly refused to reach the question whether a contract for immovable property would require a writing ratifying authority.
See La.Civ. Code Ann. art. 2996, 2997 (West 1952), see, generally, id. at art. 3010 (West 1952);Morvant v. Arnoult, 490 So.2d 549, 551 (La.App. 4th Cir. 1986) ("if an agent executes the contract on behalf of the buyer or seller, the agent's authority must be expressed and in writing."); Ward v. Pennington, 434 So.2d 1131, 1137 (La.App. 1st Cir. 1983).
In contrast, the line of cases cited by the bankruptcy court holding that only written ratification is proper for immovable property expressly distinguishes between movable and immovable property. Fejta v. GAF Companies, Inc., 800 F.2d 1395, 1396 (5 Cir. 1986) (per curiam); Tedesco v. Gentry Dev., Inc., 521 So.2d 717, 723-24 (La.Ct.App. 1988), aff'd on other grounds, 540 So.2d 960 (La. 1989); Daigle Assoc., Inc. v. Coleman, 385 So.2d 349, 350 (La.Ct.App. 1980), aff'd on other grounds, 396 So.2d 1270 (La. 1981); see also Daigle, supra, 396 So.2d at 1272 (Blanche, J., concurring); Morvant v. Arnoult, 490 So.2d 549, 551 (La.Ct.App. 1986); Sanders v. Rudd, 427 So.2d 1271, 1275 (La.Ct.App. 1983); Krupp v. Nelson, 50 So.2d 464, 467-68 (La.Ct.App. 1951). In view of this authority, we are constrained to agree with the lower courts that Louisiana law requires a writing for ratification of immovable property contracts.
Upon remand, the burden of proof is on Plaintiffs. See generally, e.g., Johnson v. First Nat'l Bank, 253 Ga. 233, 319 S.E.2d 440 (1984); Morvant v. Arnoult, 490 So.2d 549 (La.Ct.App. 1986); Hutcheson Co. v. Providence-Washington Ins. Co., 341 S.W.2d 142 (Mo.Ct.App. 1960); A.B.F. Freight Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d 606 (Tex.Ct.App. 1990); Colorado Nat'l Bank v. Miles, 711 P.2d 390 (Wyo. 1985). Following fact-finding, the appellant homeowners (petitioners) who participated in or ratified the decision to reject Plaintiffs' proposal shall be jointly and severally liable, along with those defendant homeowners who did not appeal and those who moved for dismissal from the appeal and therefore are not entitled to the benefit of this decision.
An award of attorneys' fees cannot be based upon the provisions of a null, unenforceable contract. See Morvant v. Arnoult, 490 So.2d 549, 552 (La.App. 4th Cir.1986). And the Tubbs have not directed us to any other source upon which to base an attorneys' fee award.
The contract does not contain a clause pertaining to recovery of attorney's fees. As a general rule, attorney's fees are not allowed unless provided by statute or contract. Morvant v. Arnoult, 490 So.2d 549, 552 (La.App. 4th Cir. 1986); Quealy v. Paine, Webber, Jackson Curtis, Inc., 475 So.2d 756 (La. 1985). A breach of contract does not fall within one of the exceptions to this rule.
In Louisiana, attorney's fees are only recoverable when authorized by statute or contract. Morvant v. Arnoult, 490 So.2d 549 (La.App. 4 Cir. 1986). The contract in question does not provide for attorney's fees and there is no statutory authority in Louisiana for recovery of attorney fees in this case.
In the case before us, appellants signed the actual agreement to purchase on August 19, 1985. That same day, the real estate agent contacted Mr. Milliman by phone, and, the very next day, several hours before the offer was to expire, the Millimans sent a telegram (contents reproduced supra) with their names typed out at the bottom. Appellants cite Morvant v. Arnoult, 490 So.2d 549 (La.App. 4 Cir. 1986) and Rebman v. Reed, 335 So.2d 37 (La.App. 4 Cir. 1976), Writ denied 338 So.2d 699 (La. 1976) for the legal principle that "A contract to sell immovable property, to be enforceable, must be in writing and must be signed by the buyer and seller, and if an agent executes the contract on behalf of the buyer or the seller, the agent's authority must be express and in writing."