Stroope v. Smith

199 So. 3d 612, 2016 WL 2908153, 2016 La. App. LEXIS 978
CourtLouisiana Court of Appeal
DecidedMay 18, 2016
DocketNo. 50,685-CA
StatusPublished
Cited by4 cases

This text of 199 So. 3d 612 (Stroope v. Smith) 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
Stroope v. Smith, 199 So. 3d 612, 2016 WL 2908153, 2016 La. App. LEXIS 978 (La. Ct. App. 2016).

Opinions

PITMAN, J.

| defendant Bobby Smith appeals the judgment of the trial court which found that he had breached a lease agreement and a noncompete agreement and that an asset purchase agreement was enforceable. Defendant also appeals that portion of the judgment which found that Plaintiffs, Leah Stroope and the Unopened Succession of Stephen Alexander, d/b/a Exact Precast, and Alexander Memorial, owed Defendant a balance of only $36,033.09 on. his recon-ventional demand. For the following reasons, we affirm.

FACTS

Defendant owned a business specializing in the creation of memorial graveyard monuments and vaults, as well as precast concrete forms. He built his business over 30 years. In 2013, he approached Plaintiffs, Stephen Alexander (a former employee), and his wife, Leah Stroope, about buying the business and leasing his building. Because Defendant was impatient to sell, he did not consult an attorney about the necessary transaction documents, but, instead, asked Ms. Stroope to prepare the contracts between them. Ms. Stroope has a law degree and is a licensed attorney in Texas, but has never practiced law. Plaintiffs took possession of the premises around December 20, 2013, while contract negotiations were ongoing.

After negotiations were complete, Plaintiffs prepared three contracts upon which the parties mutually agreed. The first was a commercial lease agreement wherein Plaintiffs leased from Defendant the property located at 2378 Hwy. 33 North, Ru-sten, Louisiana (“the property” or “the premises”), ¡¿which was Defendant’s place of business known as Eagle Vault and Smith Memorials.

[615]*615Plaintiffs agreed to pay Defendant rent of $4,500 per month. The lease payment was due on the first of each month, and the Plaintiffs agreed to pay a late payment penalty of 5% of the monthly lease amount, or $225 per month, for any lease payment not paid to Defendant by the tenth of the month. The parties agreed to alter the lease payment schedule for the first three months of 2014 as follows:

December 2013: Prorated lease payment of $1,596.76 deferred until April 1, 2014; no late payment penalty assessed. January 2014: Lease payment deferred until April 1, 2014; no late payment penalty assessed.
February 2014: Lease payment deferred until May 1, 2014; no late payment penalty assessed.
March 2014: Lease payment deferred until June 1, 2014; no late payment penalty assessed.

Default was defined in the contract to have occurred if the lessee failed to make three consecutive lease payments. The contract stated that, “In the event of such a default by Lessee, Lessor shall make written demand upon Lessee for payment of past due Lease payments in addition to the late payment penalty.” The contract also contained a section concerning title to the property and stated that the lessor agrees that, upon lessee paying the lease payments and observing and performing all of the terms and conditions of the lease that is its part to perform, the lessee may “peaceable (sic) and quietly have, hold, occupy and enjoy” the property in accordance |swith the terms of the lease, “without hindrance from Lessor or any persons lawfully claiming through Lessor.”

The second contract was an asset purchase agreement, which states in pertinent part as follows:

1. Purchase and Sale. Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to purchase from Seller, all of the tangible and intangible assets of Seller used in Seller’s precast concrete, burial vault and memorial/monument business (“Assets”), as more fully described below:
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4. Purchase Price/Allocation of Basis. The purchase price for the Assets being purchased hereunder shall be the sum of $30,000.00, plus the assumption of the liabilities as described in Exhibit “B” attached hereto and incorporated herein by reference (the “Purchase Price”). The purchase price shall be allocated among the Assets as provided in Form ’ 8954 to be filed with the Internal Revenue Service following the closing on December 31, 2013 (the “Closiiig Date”).
5. Payment of Purchase Price. Buyer shall pay the purchase price to Seller as follows:
(a) $10,000.00 (ten thousand dollars) in cash to Seller on the closing Date; and
(b) $10,000.00 (ten thousand dollars) in cash to Seller on April 1, 2014; and
(c) $10,000.00 (ten thousand dollars) in cash to Seller on July 1, 2014; [.]

A list of the assets purchased was attached to the sales contract.

The third contract was a noncompete agreement in which Plaintiffs were to pay a total of $220,000, at a rate of $2,442.45 monthly, over a ten-year period, with 6% interest. This agreement was confected at Defendant’s insistence to avoid taxes on the sale of the assets. The contract specifically stated that:

14For the good and valuable consideration of $220,000, Bobby Smith hereby covenants and agrees to not compete [616]*616with the Company or its successors or assigns.1
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The term “to not compete” shall mean that Bobby Smith shall not directly or indirectly compete with the Company by serving as an officer, owner, partner, director, agent, employee or consultant to or for any firm or entity engaged in a business similar to of competitive with the Company.
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Should any part or portion of this Agreement be found by a court of competent jurisdiction to be invalid or unenforceable, then such part or portion shall be severed from this Agreement and the remaining part or portion of this Agreement shall remain in full force and effect.

All three contracts were signed by the parties on December 31, 2013, and Plaintiffs tendered the first $10,000 due to Defendant pursuant to the sale of assets.

Plaintiffs operated the business as Exact Precast Concrete and Monument, LLC, for approximately three months until, on March 20, 2014, Mr.' Alexander died. (Hereafter, both Ms. Stroope and her husband’s unopened succession will be collectively referred to simply as “Plaintiff’.) After her husband’s funeral, Ms. Stroope gathered the company books and visited her parents in Arkansas for moral support. She was trying to decide how best to proceed with the contracts that had already been entered into by the company in order to meet the obligations to her clients,

|5On March 28, 2014, Defendant learned that a monument company called Suhor Industries (“SI”) had picked up a truckload of materials from the property. He texted Plaintiff on April 1, 2014, inquiring about two monuments he had purchased. Plaintiff responded by text that she was transferring all the monument contracts to Louisiana Monument Company in Ster-lington so that they could be completed.

The next day, April 2, 2014, Plaintiff spoke to Defendant on the telephone and allegedly told him that there were no funds for any payment due to him. At that point in time, Plaintiff had paid no rent and had paid no installments under the noncompete agreement.2

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Cite This Page — Counsel Stack

Bluebook (online)
199 So. 3d 612, 2016 WL 2908153, 2016 La. App. LEXIS 978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stroope-v-smith-lactapp-2016.