TEC Realtors, Inc. v. D & L Fairway Property Management, L.L.C.

42 So. 3d 1116, 2009 La.App. 1 Cir. 2145, 2010 La. App. LEXIS 1034, 2010 WL 2712690
CourtLouisiana Court of Appeal
DecidedJuly 9, 2010
Docket2009 CA 2145
StatusPublished
Cited by4 cases

This text of 42 So. 3d 1116 (TEC Realtors, Inc. v. D & L Fairway Property Management, L.L.C.) 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
TEC Realtors, Inc. v. D & L Fairway Property Management, L.L.C., 42 So. 3d 1116, 2009 La.App. 1 Cir. 2145, 2010 La. App. LEXIS 1034, 2010 WL 2712690 (La. Ct. App. 2010).

Opinions

KUHN, J.

^Plaintiff, TEC Realtors, Inc., doing business as Coldwell Banker Commercial TEC Realtors (“TEC”), brought this suit against defendants, D & L Fairway Property Management, L.L.C. (“D & L”), Alfred B. Dempsey, and Shearn N. Lem-oine,'to recover a real estate commission allegedly owed to it under the terms of a listing agreement, along with attorneys’ fees and costs.1 Plaintiff and defendants respectively each filed a motion for summary judgment. On August 17, 2009, the trial court signed a judgment, denying plaintiffs motion for summary judgment, granting defendants’ motion for summary judgment, and dismissing plaintiffs claims with prejudice at its cost. Plaintiff has [1119]*1119suspensively appealed the trial court’s judgment. We reverse that portion of the judgment that granted the defendants’ motion for summary judgment and dismissed plaintiffs claims with prejudice at its cost, and we remand this matter for further proceedings.2

IJ. PROCEDURAL AND FACTUAL BACKGROUND

On October 2, 2006, Dempsey and Lem-oine entered into an “Exclusive Listing Contract for Lease of Property” (the “Stirling listing agreement”) with Stirling Property, Inc. (“Stirling”) as broker for a term of one year, commencing September 25, 2006, and ending September 25, 2007. The parties do not dispute that Dempsey and Lemoine acted on behalf of D & L, in its capacity as either lessor and/or owner of the property subject to the listing agreement, a commercial condominium, located in Mandeville, Louisiana. In the Stirling listing agreement, Thomas F. Da-nos was designated by Stirling as one of the “Lessor’s Designated Agent[s].”3 According to one of Danos’ affidavits, during the term of this listing agreement, the subject property was submitted to Pontchartrain Surgery Center, L.L.C. (“Pontchartrain”). On behalf of the defendants, Danos negotiated with William Barrois, also an agent of Stirling, who represented Pontchartrain, but no agreement was reached.4 According to Dempsey’s affidavit, Barrois introduced Pontchartrain to D & L and started the lease discussions. Dempsey’s affidavit conceded that Danos was an agent for Stirling during the term of the Stirling listing agreement, but Dempsey asserted therein that Danos had nothing to do with the introduction or procurement of Pontchartrain as a lease prospect.

On or about January 26, 2007, Danos terminated his relationship with Stirling and placed his real estate agent’s license with TEC. According to Danos’ affidavit, the Stirling listing agreement was terminated by agreement between him |4and Stirling.5 A new “Exclusive Listing Con[1120]*1120tract for Lease of Property” (the “TEC listing agreement”) was entered into between TEC as “Broker” and Dempsey and Lemoine as “Owner[s]” regarding the subject property. The term of the TEC listing agreement commenced February 5, 2007, and ended on March 5, 2007. This agreement provided, in pertinent part, as follows:

The Lease(s) shall be on the following terms:

$22.00 PER SQ. FT + NNN INCLUDING $30 P.S.F BUILD-OUT
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2. If a lease is negotiated and executed covering said property, during the term of this contract, or within 365 days after the expiration of this contract with any party to whom Broker has submitted said property during the term of this contract (or any affiliate, nominee or representative of such party), Owner agrees to pay to Broker a commission as set forth below on all gross rents covering said property. This commission shall be earned and paid for services rendered if, during the Term: (a) All or any portion of the Property is leased to a tenant (by Broker, Owner, or anyone else); (b) A tenant is procured (by Broker, Owner, or anyone else) who is ready, willing and able to lease the Property on the terms above stated, or on any other terms agreeable to Owner; (c) Any contract for the lease on all or any portion of the Property is entered into by Owner; or (d) Owner removes the Property from the market.
3. Commission to be paid by Owner/Lessor. Said commission shall be payable upon final execution of a lease between Owner and a Tenant, equal to the following rates:
Primary Term: 6%
Renewal Options: 5%

| ¡¡According to Dempsey’s affidavit, after the TEC listing agreement was executed, Danos continued discussions on behalf of D & L with Barrois, who remained the Stirling agent representing Pontchartrain, in hopes of consummating a lease between Pontchartrain and D & L. According to Danos’ affidavit, the subject property “was submitted to [Pontchartrain] through its agent, Barrois, by [Danos] and negotiations continued. Specifically, [he] and Barrois negotiated over the terms” of the lease. Ultimately, the TEC listing agreement terminated without D & L and Pontchartrain consummating a lease agreement.

On March 16, 2007, Dempsey and Lem-oine signed an “Exclusive Listing Contract for Lease of Property” pertaining to the subject property with Gulf States Real Estate Services of Louisiana, L.L.C. (“Gulf States”). The term of this agreement commenced on March 15, 2007, and ended March 13, 2008, and provided that as “Owner[s]”, Dempsey, Lemoine, and D & L agreed to pay Gulf States a commission pursuant to the terms of the listing agreement “[i]f a lease is negotiated and executed covering [the subject property], during the term of this contract or within 180 days after the expiration of this contract. ...” The listing agreement further provided, “Broker designates and Lessor accepts ‘Patrick Graffagnino’ as the ‘Lessor’s Designated Agent.’ ”

Dempsey’s affidavit further states, in pertinent part, that 1) Gulf States, through [1121]*1121Graffagnino, continued negotiations on behalf of D & L with Pontchartrain and its agent, Barrois; and 2) neither TEC nor Danos were involved in any discussions between D & L and Pontchartrain after the TEC listing agreement terminated. On April 26, 2007, D & L and Pontchartrain executed a “Commercial Lease Agreement” for a term of 120 months, “commencing the earlier of 1(¡September 1, 2007 or upon completion of Lessee’s improvements.” 6 D & L also granted Pontchartrain two renewal options, each to extend the lease for a period of five years. According to Dempsey’s affidavit, D & L paid a total commission of $69,097.71, which was divided as agreed upon by Gulf States and Stirling.

Based on the information provided in the above-referenced affidavits and the terms of the TEC listing agreement, the trial court found that TEC’s motion for summary judgment was not well-founded, ie., that it was not entitled to a commission under its listing agreement, and the trial court granted defendants’ motion for summary judgment, dismissing TEC’s claims with prejudice.

In written reasons for judgment, the trial court found that “D & L, TEC, and [Pontchartrain] discussed the possibility of leasing the subject property during the effective period of the TEC listing agreement.” The court concluded, however, that TEC was not the procuring cause of the final lease agreement and that TEC was not entitled to a commission under the terms of the extension clause in the TEC listing agreement.

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TEC Realtors, Inc. v. D & L Fairway Property Management, L.L.C.
42 So. 3d 1116 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
42 So. 3d 1116, 2009 La.App. 1 Cir. 2145, 2010 La. App. LEXIS 1034, 2010 WL 2712690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tec-realtors-inc-v-d-l-fairway-property-management-llc-lactapp-2010.