Schexnayder v. Gish

948 So. 2d 1259, 2007 WL 403624
CourtLouisiana Court of Appeal
DecidedFebruary 7, 2007
Docket41,819-CA
StatusPublished
Cited by13 cases

This text of 948 So. 2d 1259 (Schexnayder v. Gish) 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
Schexnayder v. Gish, 948 So. 2d 1259, 2007 WL 403624 (La. Ct. App. 2007).

Opinion

948 So.2d 1259 (2007)

Louie SCHEXNAYDER, Sr. and Michael J. Fernandes, Plaintiff-Appellants,
v.
Roy and Norma "Rena" GISH, Rhondalyn Singh Tanwar and Allstate Mortgage Corp., Defendant-Appellees.

No. 41,819-CA.

Court of Appeal of Louisiana, Second Circuit.

February 7, 2007.

*1260 Bryson Law Firm by Cary B. Bryson, Angela S. Bryson, for Appellants.

*1261 Neupert & Associates, L.L.C. by Charles J. Neupert, Jr., Shreveport, for Appellees.

Before STEWART, GASKINS and MOORE, JJ.

MOORE, J.

Plaintiffs filed this suit to recover a sales commission earned by finding a buyer for the defendants' property in Belcher, Louisiana. The defendants responded with an exception of no right of action on grounds that plaintiffs were not licensed to sell real estate, and for that reason were barred by La. R.S. 37:1445 from initiating a suit to recover any commission earned on the sale of real estate. The trial court sustained the exception and dismissed the suit. Plaintiffs filed this appeal. We affirm the judgment sustaining the exception, but reverse the trial court's dismissal of the suit to allow plaintiffs 15 days to amend their petition.

FACTS

Louie Schexnayder, Sr. and Michael J. Fernandes ("Consultants") entered into a "Consultant Agreement" with Roy and Norma Gish, whereby Schexnayder and Fernandes undertook to assist the Gishes in obtaining a purchase offer on immovable property owned by them located at 9886 N. Louisiana Hwy. 169 in Belcher, Louisiana. The agreement specifically provided that if Consultants were able to procure an offer on the property acceptable to the Gishes, then the Gishes would pay Consultants a fee in an amount equal to the amount that the purchase price exceeded $3,500,000.00, or if the price did not exceed $3,500,00.00, 6% of the actual purchase price. Lastly, the agreement provided that the fee was earned once a purchase offer was accepted by the Gishes and payable at the "Act of Sale" of the property.

On July 27, 2004, the Gishes and Consultants amended the Consultant Agreement to reflect that the Consultants had procured Jack Saheid's interest in buying the property. On July 28, 2004, Saheid, the eventual purchaser of the property, and the Gishes confected a purchase agreement for the property for a price of $4,300,000.00.

An Act of Sale was executed on November 2, 2004, whereby Saheid purchased the property, together with all of the buildings and improvements thereon, including interests in specifically described oil, gas and mineral leases, rights to pipelines, wells and gathering systems, and equipment leases. According to the Act of Sale, $2.5 million of the purchase price was for the immovable property being transferred and $1.5 million was for the interests in the specifically described oil, gas and mineral leases, rights to pipelines, wells and gathering systems, and equipment leases.

On November 2, 2005, Consultants filed a suit in propria persona styled, "Petition for Damages," against the Gishes, Rhondalyn Singh Tanwar and Allstate Mortgage Corporation to recover the contractual fee which Consultants allege they never received. The petition alleges that the defendants purposely did not inform Consultants of the scheduling of the closing and the re-negotiating of the terms of the sale. Furthermore, the petition alleges that Tanwar, as an employee of Allstate Mortgage Corporation, fraudulently received and accepted a payment at closing which was due Consultants. The petition sought damages against the defendants for breach of the Consultant Agreement and fraud, including reasonable attorney's fees and costs.

The Gishes responded by filing a peremptory exception of no right of action alleging that the plaintiffs were prohibited by Louisiana law from bringing suit for a *1262 real estate commission unless they were licensed real estate brokers under Louisiana law. The Gishes attached a copy of a letter purportedly written by the Director of the Investigative Division of the Louisiana Real Estate Commission, Carmela Greco Collins, in which she states that she was unable to find any evidence in the Commission's database that either of the plaintiffs were duly licensed brokers or agents.

The exception was taken up on March 27, 2006. At the hearing, the trial court asked plaintiffs' counsel if he had any evidence that his clients were licensed realtors, to which counsel replied, "No, Your Honor." The trial court then admitted the letter attached to the exception into evidence even though it was not formally offered into evidence nor was evidence offered laying a foundation for its admission. Plaintiffs' counsel objected to the admission of the letter. Relying on the letter, the trial court concluded that the plaintiffs were not licensed brokers or agents and granted the exception. A judgment to that effect was signed on April 4, 2006. The instant appeal followed.

ANALYSIS

Consultants make two arguments which they set forth in three assignments of error. First, they argue that the trial court erred in admitting the Louisiana Real Estate Commission letter into evidence, without which the record is devoid of evidence as to whether they are properly licensed real estate brokers. As a result of this error, the trial court erred in concluding that they were unlicensed real estate brokers without a right to bring an action to recover a commission fee. Second, Consultants argue that the trial court erred in not finding that they had a right of action to recover the portion of the fee attributable to the sale of oil, gas and other mineral interests, the brokerage of which does not require a real estate license by the Louisiana Real Estate Commission.

Defendants argue that La. R.S. 37:1445 prohibits and precludes an unlicensed person from instituting a suit for recovery of a real estate license. Accordingly, they contend that the plaintiffs should have alleged in their petition that they possessed a real estate license and the trial court correctly placed the burden on the plaintiffs to show that they were licensed realtors when challenged with the defendants' exception.

Next, defendants argue that the trial court properly considered the Louisiana Real Estate Commission letter because it is not hearsay under Article 803(8) of the Code of Evidence as a public record exception to the hearsay rule, namely as a factual finding resulting from an investigation made pursuant to the authority granted by law. La. C.E. art. 803(8)(iii). Even if it was error for the trial court to accept the letter as evidence, defendants argue that the error should not change the result because of the plaintiffs' failure to allege at any point in the proceedings that they are licensed real estate agents.

Finally, defendants contend that because La. R.S. 37:1445 does not apply to the sale of mineral interests such as oil and gas, the exception should have been denied, upholding the petition with respect to the right to recover for the sale of the mineral interests and equipment associated with the sale.

Assignment of Errors 1 and 2:

Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. Industrial Companies Inc. v. Durbin, XXXX-XXXX (La.1/28/03), 837 So.2d 1207. The purpose of the exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular *1263 class to which the law grants a remedy for a particular harm alleged. Wallace v. Nathan, 96-119 (La.App. 5 Cir.

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Cite This Page — Counsel Stack

Bluebook (online)
948 So. 2d 1259, 2007 WL 403624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schexnayder-v-gish-lactapp-2007.