Theus Consulting Co. v. Ealy

939 So. 2d 495, 2006 WL 2422912
CourtLouisiana Court of Appeal
DecidedAugust 23, 2006
DocketNo. 41,306-CA
StatusPublished
Cited by1 cases

This text of 939 So. 2d 495 (Theus Consulting Co. v. Ealy) 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
Theus Consulting Co. v. Ealy, 939 So. 2d 495, 2006 WL 2422912 (La. Ct. App. 2006).

Opinion

PEATROSS, J.

Iiln this case involving the potential sale of real property, the trial court granted a motion for summary judgment in favor of the prospective purchaser and ordered specific performance. The sellers refused to comply, were held in contempt of court and, ultimately, the trial court vested ownership of the subject property in the purchasers and directed that the sales price be deposited in the registry of the court. This appeal by the sellers ensued. For the reasons stated herein, the judgment of the trial court is reversed, the orders disbursing realtor fees are vacated and judgment is rendered in favor of Defendants/sellers.

FACTS

The real property involved in this case is 39 acres located in Ouachita Parish, Louisiana. Defendants and “would-be sellers” Willie Ealy and Ezell Ealy, Jr. entered into an Exclusive Right to Sell Agreement (“the Listing Agreement”) with Century 21, Shackelford-French Real Estate, Inc. (“Century 21”) to act as its broker in selling the property at a listing price of $2.9 million. The Listing Agreement stated an expiration date of October 23, 2004. Theus Consulting Company, L.L.C. (“Theus”)1, represented by Jay Johnson and John Rea Realty, initially tendered an offer to purchase the property for $2.4 million. The Ealys responded with a counter offer of $2.545 million, which was accepted by Theus. Prior to closing, however, Theus was informed that one of the Ealys failed to sign the contract for sale and that there would be no sale at that price. Ultimately, in September 2004, Theus verbally advised Luther Shackelford | ¡¡of Century 21 that it would agree to pay the asking price of $2.9 million. According to Theus, Mr. Shackel-ford indicated that they had a “deal.” Subsequently, Theus submitted to Century 21 an Agreement to Buy and Sell Land (“the Purchase Agreement”) for 2.9 million. The Ealys never signed the Purchase Agreement and refused to convey the property to Theus.

On October 22, 2004, Theus filed suit for specific performance and cross-motions for summary judgment were filed. Theus argued that the Listing Agreement was a valid offer setting forth price and thing and that the Purchase Agreement was an [497]*497acceptance of that offer making the agreement binding on the Ealys, even absent their signatures on the Purchase Agreement. On the other hand, the Ealys argued that the Listing Agreement was merely a contract between them and Century 21 and was not an offer to potential purchasers. In addition, they asserted that there were terms contained in the Purchase Agreement that did not appear in the Listing Agreement and the Ealys never agreed to these extraneous provisions.

The trial court found that the Listing Agreement was an offer to sell for $2.9 million that was accepted by the Ealys and, as such, was not required to be in writing' — or, specifically, the fact that the Purchase Agreement was not signed by the Ealys did not invalidate the offer and acceptance. The trial court gave the parties one week to “work out their differences,” during which time a closing was scheduled. The Ealys, again, did not show up for the closing. Subsequently, the trial court granted Theus’ motion for summary judgment, ordering specific performance of the | o$2.9 million sales price. The Ealys failed to comply and were held in contempt by order of the trial court. The order further vested ownership of the property in Theus upon deposit of the $2.9 million into the registry of the court. This appeal by the Ealys ensued.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La.4/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In the case sub judice, the Ealys assert the following assignments of error (verbatim):

1. The trial court erred as a matter of both fact and law in granting summary judgment.
2. The trial court erred as a matter of both fact and law in finding that the exclusive right to sell/listing agreement was valid in that it did not bear the signature of all owners in indivisión and named appellees were aware of this fact.
3. The trial court erred as a matter of both fact and law in holding the purchase agreement valid.
U4. The trial court erred as a matter of both fact and law in ordering the transfer of community property, the payment of realtor fees, and holding of appellants in contempt for failure to sign said sell/purchase agreement.
5. The trial court erred as a matter of both fact and law in rendering a judgment against unrepresented parties.

These assignments of error can be condensed to two primary questions: (1) whether or not the Listing Agreement was, in fact, a valid agreement and/or offer and, if so, (2) whether the Purchase Agreement constituted an acceptance of that of[498]*498fer resulting in an enforceable contract for the sale of the property.

Regarding the first question concerning the Listing Agreement, La. R.S. 37:1431(30) defines a listing agreement as follows:

(30) “Listing agreement” means a written document signed by all owners of real estate or their authorized attorney in fact authorizing a broker to offer or advertise real estate described in such document for sale or lease on specified terms for a defined period of time. A listing agreement shall only be valid if signed by all owners or their authorized attorney in fact. (Emphasis added.)

The Listing Agreement in this case was signed by Willie Ealy and Ezell Ealy, Jr. The subsequent Purchase Agreement, drafted and presented to Century 21 by Theus, states the sellers to be “Willie Ealy, Ezell Ealy, -ET AL.” The settlement statement for this proposed closing, which is contained in the record on appeal, indicates the sellers of this land to be “Willie Ealy and Dorothy Tarver Ealy.” From a reading of these documents, which are contained in the record on appeal, it is apparent that there exist additional owners of the subject property whose signatures do not appear on the Listing Agreement. We find no definitive answer in this | ¡¡record as to who comprises the “ET AL” as noted on the Purchase Agreement, but this notation indicates that Theus was aware that there were more owners than Willie and Ezell Ealy. For this reason, we conclude that the Listing Agreement was not valid and, further, did not constitute a valid offer to sell the property.2

We will now briefly address the second question raised regarding the sufficiency of the Purchase Agreement as an acceptance. Assuming, arguendo,

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Related

Century 21 Shackelford-French Real Estate, Inc. v. Ealy
71 So. 3d 429 (Louisiana Court of Appeal, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
939 So. 2d 495, 2006 WL 2422912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theus-consulting-co-v-ealy-lactapp-2006.