Latter & Blum, Inc. v. Nodier

442 So. 2d 854, 1983 La. App. LEXIS 9903
CourtLouisiana Court of Appeal
DecidedDecember 9, 1983
DocketNo. CA-0823
StatusPublished
Cited by4 cases

This text of 442 So. 2d 854 (Latter & Blum, Inc. v. Nodier) 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
Latter & Blum, Inc. v. Nodier, 442 So. 2d 854, 1983 La. App. LEXIS 9903 (La. Ct. App. 1983).

Opinions

WILLIAMS, Judge.

This case involves a dispute over a real estate listing commission. The trial court held that plaintiff Latter & Blum, Inc. was entitled to a commission plus 25% attorney fees and all costs from defendant Brandon Nodier. The trial court also held that defendant was entitled to indemnification from third party defendants, Thomas T. Cloke and David S. Cressy.

Brandon Nodier received the property on 719 Esplanade Avenue in'New Orleans as an inheritance in 1976 after his parents’ death. He bought out his relatives’ portions and obtained full ownership of the property in 1979. At some point, Thomas [856]*856T. Cloke, a real estate agent, moved next door to the Nodier property. Cloke approached Nodier about purchasing the property and made several offers, all of which Nodier refused.

Nodier agreed to allow Robyn Halvorsen, a friend of many years who was a real estate agent for Latter & Blum, to list his house for sale for $200,000.00. The listing contract provided, “Owner agrees to refer all prospects for the sale of said property to Agent and Agent shall conduct all negotiations for the sale of said property.” A commission of 6% on the first $100,000.00 and 4% on the balance of the property was stipulated. The contract continued, “Owner further agrees to pay Agent the above stipulated commission on any sale of said property negotiated within three (3) months after the expiration or termination of this contract to any party to whom said property was submitted by Agent ... during the period of this contract.” The contract provided that Owner would pay attorney fees incurred for the collection of the commission at 25% of the amount thereof plus court costs and other costs and expenses incurred. Nodier signed the three month listing agreement on March 29, 1980.

On April 24, 1980, Thomas Cloke made an offer to purchase the house for $85,-000.00. Halvorsen showed the offer to No-dier, who rejected it as too low. Exhibit P-2 shows an offer to purchase made by Cloke, signed “rejected as per authority 4-30 Robyn Halvorsen.” Between June 11, 1980 and October 12, 1980, six other offers to purchase Nodier’s property were made to Latter & Blum, all of which Nodier also rejected.

Nodier signed a document reducing the asking price of the property to $175,000.00 on May 6, 1980.

The listing agreement expired on June 29, 1980. On July 10, 1980, Halvorsen had Nodier sign a document reading, “This is your authority to extend your listing from (blank) to 8/10/80 on my property at above address for $175,000.00. All other terms of said listing agreement to remain in full force and effect.” On September 22, 1980, Nodier signed an identical form, this time “to extend your listing from (blank) to 10/22/80.”

On December 3, 1980, Nodier accepted Thomas Cloke’s offer to purchase the property for $145,000.00. Nodier was given $7,500.00 in cash and a promissory note, signed by Cressy and Cloke, for $71,-600.00 1.

Latter & Blum, plaintiff in the main demand, filed suit on June 25, 1981, claiming a commission as provided for in the listing agreement for the December 3, 1980 sale of Nodier’s property. Plaintiff prayed for $7,800.00 plus 25% attorney fees and all costs and expenses. Defendant denied that the contract had ever been completed, arguing that his intention to list the property was not a serious one, but just “a favor” granted his longtime friend, Halvorsen. Defendant admitted that he was shown an offer of $85,000.00 from Cloke, and that he rejected that offer, but defendant would not verify Exhibit P-2 as that offer. Instead, he repeatedly asserted that he had written with his own hand across the instrument right where the writing by Hal-vorsen was on Exhibit P-2. Defendant also refuted the validity of the extension agreements, asserting that even if the original listing agreement had been valid, it had long expired and the alleged extensions were without effect. Alternatively, defendant brought a third party claim against the purchasers of his property, Cressy and Cloke. He claimed that Cressy, an attorney, had examined the listing agreement and extensions and had assured Nodier that they were invalid and that he did not owe Latter & Blum any commission. He further testified that Cressy had promised to provide legal assistance and Cloke, financial assistance, were any problems to [857]*857develop with Latter & Blum, over the commission. Nodier testified that Cloke and Cressy told him that the $7,500.00 cash he was receiving was the sum that would have gone to Halvorsen as commission, but that they were giving it to Nodier instead.

Halvorsen testified that at no time did she doubt the seriousness of Nodier’s intention to list the property and that she would not have wasted her time on the property if she had not perceived the listing as serious. She further testified on cross examination that she could not recall whether the listing agreement gave her authority to reject an offer in the name of the seller, but that it was “a very common practice” and she was “sure that ninety-five percent of all agents in New Orleans do that.” She explained that she wanted to get the response back to Cloke quickly because of the impending expiration date on the contract.

Neither Cloke nor Cressy, both of whom were present in the courtroom, chose to testify on their behalf.

The trial court rendered judgment in favor of plaintiff, granting him $3,900.00 as a half share of the commission, plus attorney fees, costs and expenses.2 The court also rendered judgment in favor of defendant third-party plaintiff, ordering third-party defendants to fully indemnify him for the judgment due plaintiff in the main demand.

On appeal, third-party defendants assert that the trial court erred in: (1) holding the listing agreement was a valid contract; (2) not considering that the words of the contract indicated it had expired; (3) not considering the extension agreements invalid; (4) maintaining Latter & Blum was the procuring cause of the sale; (5) holding that the April 29, 1980 Cloke offer was ever transmitted to Nodier; (6) holding that there was a promise to indemnify Nodier against any claim of Latter & Blum; and (7) allowing third-party defendants’ failure to testify to create a presumption of detrimental testimony in light of the lack of evidence presented in the case.

Appellants argue in their appeal brief that the original listing was invalid because Nodier, who had only one-half year of high school education, had not known what he was signing and, as he testified, lacked the serious intent required for a valid contract.

Halvorsen testified that she took Nodier seriously when he signed the initial listing agreement on March 29, 1980. Approximately five weeks later Nodier signed a document reducing the property’s asking price $25,000.00 to $175,000.00. Nodier considered and rejected six offers presented to him by Halvorsen over a six month period during which he signed two extension agreements. The trial court apparently concluded that this was neither the behavior of a man acting in jest, nor that of a man too ignorant to understand what he was doing. We must agree.

Appellants point out that regardless of the validity of the initial agreement, it contained an expiration date of June 29, 1980. They contend that the alleged extension agreements were so vague they could not contain an expression of the parties’ intent sufficient to perfect a contract.

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Cite This Page — Counsel Stack

Bluebook (online)
442 So. 2d 854, 1983 La. App. LEXIS 9903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/latter-blum-inc-v-nodier-lactapp-1983.