Barnett v. Saizon

994 So. 2d 668, 2008 WL 4330298
CourtLouisiana Court of Appeal
DecidedSeptember 23, 2008
Docket2008 CA 0336
StatusPublished
Cited by10 cases

This text of 994 So. 2d 668 (Barnett v. Saizon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnett v. Saizon, 994 So. 2d 668, 2008 WL 4330298 (La. Ct. App. 2008).

Opinion

994 So.2d 668 (2008)

Randall BARNETT
v.
Floyd SAIZON and J. Hunter Development Incorporated.

No. 2008 CA 0336.

Court of Appeal of Louisiana, First Circuit.

September 23, 2008.

*669 Peter J. Losavio, Jr., Kent S. DeJean, Christopher W. Nielson, Baton Rouge, *670 Louisiana, for Plaintiff/Appellee, Randall Barnett.

Steve Joffrion, Prairieville, Louisiana, for Defendants/Appellants, Floyd Saizon and J. Hunter Development, Inc.

Before KUHN, GUIDRY, and GAIDRY, JJ.

GAIDRY, J.

A defendant landowner appeals a judgment awarding a real estate agent the amount of a commission, based upon a listing agreement. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On November 18, 2002, J. Hunter Development, Inc. (Hunter) entered into a "Listing and Marketing Agreement" with DeTarnowsky, Schiflett & Kyle, Inc. (DSK), a real estate brokerage firm, to market 41 lots in its subdivision known as "The Lakes at Aubin Wood" in Baton Rouge. The listing agreement had a one-year term. Mr. Floyd Saizon, Hunter's president and sole stockholder, signed the agreement in his purported capacity as "manager" of "J. Hunter Development, LLC." The plaintiff, Randal Barnett,[1] was designated as the "listing agent," and he signed the agreement the same day. Janice R. Schiflett, as DSK's broker, signed the agreement on December 3, 2002.

The nature and amount of the marketing efforts of DSK and Mr. Barnett following the execution of the listing agreement were the subject of conflicting testimony at trial. It is undisputed that on April 1, 2003, Mr. Saizon telephoned Mr. Barnett to advise that he was disappointed with the lack of sales and that Hunter would not be renewing the listing agreement with DSK, apparently on the assumption that the listing agreement's term was for six months. Mr. Barnett thereupon advised Mr. Saizon that the listing agreement was for one year.

On the day following his conversation with Mr. Barnett, Mr. Saizon had an attorney, Steven Todd Hoover, send a letter to Mr. Barnett on behalf of Hunter, advising that "J. Hunter Development, L.L.C." was a nonexistent legal entity, that Mr. Saizon believed the listing agreement expired at the end of April 2003, and that Hunter wished to terminate the listing agreement "immediately." Mr. Hoover concluded by requesting that Mr. Barnett advise him in writing within a week of his receipt if Mr. Barnett had any objection to termination of the agreement. Mr. Barnett responded by telephoning Mr. Hoover and informing him that he was not DSK's designated broker with authority to terminate or modify the agreement, and providing him with Ms. Schiflett's name and address.

Following his conversation with Mr. Barnett, Mr. Hoover contacted the Louisiana Real Estate Commission, who confirmed that any proposed termination of the listing agreement was required to be directed to Ms. Schiflett, the designated broker in the listing agreement. Mr. Hoover then sent another letter dated April 10, 2003 to Ms. Schiflett, advising that Hunter considered the listing agreement terminated according to the terms of the prior letter to Mr. Barnett, but would allow its property to be listed through April 30, 2003. Mr. Hoover requested that any objection to Hunter's proposal be delivered in writing within seven business days from *671 receipt of his letter. Ms. Schiflett did not respond to that second letter.

A closing on a speculative house and lot (commonly called a "spec house") in the subdivision was scheduled on May 5, 2003, and Mr. Saizon, Mr. Hoover, and Mr. Barnett appeared at an attorney's office, together with the prospective buyers. Although Mr. Saizon, on behalf of Hunter, did not contest Mr. Barnett's entitlement to a commission for that sale, the parties at some point discussed the status of the listing agreement relative to the remaining lots in the subdivision. Mr. Hoover telephoned DSK's office in an attempt to discuss the agreement with the broker, Ms. Schiflett, but she was not in the office. Mr. Hoover then spoke to DSK's office manager, Richard McLellan, who purportedly told Mr. Hoover that DSK acknowledged the invalidity of the listing agreement, based upon the non-existent status of the named limited liability company.

On May 5, 2003, the same date as the closing described above, Star Development, L.L.C. entered into a purchase agreement to buy all 40 of Hunter's remaining lots in the subdivision for the total sum of $1,250,000.00. Mr. Hoover had previously telephoned Calvin Blount, one of the members of Star Development, L.L.C., on behalf of Hunter, to inquire about interest in purchasing the property, and had sent a facsimile telecopier letter to Mr. Blount on April 30, 2003, verifying that the subdivision restrictions could be amended, as Mr. Blount had previously requested. On May 29, 2003, Star Development, L.L.C. purchased the 40 lots for the sum previously agreed upon. Under a written "Independent Contractor's Agreement" between him and Hunter, Mr. Hoover was paid a four percent "contingency fee," amounting to $50,000.00, for his work in arranging the sale of the property. Hunter did not notify DSK or Mr. Barnett of Star Development, L.L.C.'s interest, the purchase agreement, or the sale, and no commission was paid to either DSK or Mr. Barnett.

In November 2003, DSK formally assigned its contractual rights under the listing agreement to Mr. Barnett. Mr. Barnett instituted this litigation on February 2, 2004, naming Mr. Saizon and Hunter as defendants. In his petition, he alleged his status as assignee of DSK's rights under the listing agreement, the defendants' breach of that agreement, and his entitlement to recovery of a five percent commission on the sale of the property to Star Development, L.L.C. The defendants answered the petition, denying their liability and alleging that Hunter was not an actual party to the agreement and that the agreement had been terminated by mutual agreement, as well as the affirmative defenses of compensation, or setoff, and equitable estoppel. The defendants also filed a reconventional demand against Mr. Barnett and a third-party demand against DSK, alleging those parties' breach of the listing agreement and negligence, causing financial losses to the defendants.

A bench trial was held on August 2-3, 2007. At the conclusion of the trial, the trial court issued its oral reasons for judgment, ruling in favor of Mr. Barnett and dismissing the defendants' reconventional demand and third-party demand. Its judgment awarding Mr. Barnett the sum of $62,500.00 was signed on August 13, 2007. The defendants filed a motion for new trial, which was heard on October 22, 2007. The trial court granted the motion in part to vacate the judgment insofar as it was rendered against Mr. Saizon in his individual capacity, but denied the judgment in all other respects. Its judgment incorporating that ruling was signed on *672 November 7, 2007. The defendant, Hunter, now appeals.[2]

ASSIGNMENTS OF ERROR

Hunter assigns the following errors on the part of the trial court:

1. The trial court manifestly erred in several factual determinations in its finding that DSK, Inc. complied with the obligations imposed upon it in the Listing and Marketing Agreement of November 18, 2002.
2. The trial court erred as a matter of law, or committed manifest error, in its failure to apply the doctrine of equitable estoppel or detrimental reliance to the facts in the record.

STANDARD OF REVIEW

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994 So. 2d 668, 2008 WL 4330298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnett-v-saizon-lactapp-2008.