FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-02221,
DIVISION "J" Honorable Paula A. Brown, Judge
A. Ricci Michael S. Ricci Jonathan L. Schultis RICCI
PARTNERS, LLC, COUNSEL FOR PLAINTIFF/APPELLEE
R. Zatzkis LAW OFFICES OF LANNY R. ZATKIS, LLC, COUNSEL FOR
Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins
F. MCKAY III CHIEF JUDGE
case involves an alleged breach of contract case between the
owners of an immovable piece of property and their real
AND PROCEDURAL HISTORY
initial contacts with real estate agents Eleanor Farnsworth
and Lauren McCulloch, on December 11, 2009, Dr. Bruce Iteld
and his wife, Sandy Iteld, entered into a marketing agreement
with Gardner Realtors, LLC (Gardner) to market and sell their
home located at 1516 Robert Street in New Orleans. The
property was initially listed for sale at a price of three
million three hundred fifty thousand dollars ($3, 350,
000.00). The home was over eight thousand (8, 000) square
feet and had many amenities, including a large generator, a
wine cellar, a gymnasium, a saltwater pool, three home
theatres, an elevator and an eight hundred (800) square foot
December of 2009, Ms. Farnsworth placed a Gardner advertising
sign in front of the subject property; this sign remained in
front of the home for approximately two and a half years. Ms.
Farnsworth and Ms. McCulloch also advertised the subject
property on the multiple listing service (MLS) as well as via
a number of websites (Gardner's website,
eleanorfarnsworth.com, and luxuryrealestate.com) and
publications (St.Charles Avenue Magazine, The
Times-Picayune, and Preservation Resource). Ms.
Farnsworth, with the approval of Mrs. Iteld, had created a
professionally-made brochure which included color photographs
of the property. Soon after the property was initially listed
with them, Gardner set up a large catered open house and
invited a number of real estate brokers.
December 17, 2010, Ms. McCulloch sent an email on Ms.
Farnsworth's email account to Mrs. Iteld seeking to
extend the marketing agreement for another six months. After
consulting with her husband, Mrs. Iteld agreed to the
extension by replying "OK" to the email later that
day. During this first extension, on April 26, 2011, Ms.
Farnsworth received an offer of two million nine hundred
thousand dollars ($2, 900.000.00) to purchase the subject
property from Frederic Larson, a real estate agent with
Keller Williams, on behalf of one of his clients. However,
the offer was rejected. Additionally, on April 28, 2011, the
Itelds required that any potential buyers have a letter of
pre-qualification before any viewing of the premises.
24, 2011, Ms. Farnsworth sent an email to Mrs. Iteld seeking
a second six month extension of the marketing agreement.
After consulting with her husband, Mrs. Iteld agreed by
emailing back "OK. Sandy" later that day. On
October 31, 2011, Ms. Farnsworth received a "Letter of
Intent to Purchase, " which the Itelds rejected.
January 9, 2012, Ms. McCulloch again emailed Mrs. Iteld
seeking a third six month extension. Mrs. Iteld once again,
with the consent of her husband, agreed to a six month
extension. On March 1, 2012, Gardner received a
pre-qualification letter from Eric Gordon, a professional
basketball player with the then New Orleans Hornets. Gardner
showed the property to Mr. Gordon, but he did not make an
offer. Hollywood actor Leonardo DiCaprio also viewed the
property on three occasions in 2012.
20, 2012, Linda Phoenix, a real estate agent for then New
Orleans Saints player Jabari Greer and his wife Katrina
Greer, contacted Ms. Farnsworth regarding the Greers'
interest in the property. Ms. Phoenix provided Gardner with a
letter from UBS Financial Services, Inc., which showed the
Greers' financial capability to purchase the property.
After viewing the property, the Greers made an offer of two
million one hundred thousand dollars ($2, 100, 000.00) on
June 5, 2012. Dr. Iteld and Mrs. Iteld both signed a
counteroffer to the Greers, offering to sell the subject
property to the Greers for three million fifty thousand
dollars ($3, 050, 000.00). On June 7, 2012, the Greers,
through their agent Ms. Phoenix, executed an "Amendment
to Agreement to Purchase or Sell" offering to purchase
the subject property for two million four hundred thousand
dollars ($2, 400, 000.00) in all cash. This offer was
rejected by the Itelds.
Iteld informed Gardner that the Itelds were seeking to
refinance the subject property in 2012 and needed for the
property to be removed from the MLS but requested that
Gardner continue to market the property during the
refinancing period. Temporarily removing a property from the
MLS in order to effectuate a refinancing is common process.
On June 28, 2012, Ms. McCulloch sent an email to the Itelds
stating the following: "Dear Sandy, Please find attached
the cancellation of the marketing agreement for 1516 Robert
Street. Please sign and return so we can process it. Let me
know when the refinancing has been completed so that we can
enter it back into the system." Thereafter, on June 28,
2012, both of the Itelds and Ms. Farnsworth, on behalf of
Gardner, executed the cancellation of marketing agreement. In
pertinent part, the marketing agreement stated as follows:
It is hereby agreed that the expiration of the above
referenced Marketing Agreement be changed from 7/29/2012 to
6/28/2012 in consideration of the early termination…In
addition, any sale of the property negotiated within 6 months
after the amended termination date to any party to whom said
property was submitted during the term of the Marketing
Agreement will be subject to a commission of 6/4% or $N/A. It
is further agreed that if this property is offered for sale
at any time within six (6) months after the amended
termination date, the property will be listed exclusively
with GARDNER REALTORS, for a period of no less than the
original Marketing Agreement at the commission terms, and
conditions agreed to in the Marketing Agreement…
cancellation agreement illustrates that the Itelds were under
contract with Gardner through July 9, 2012, and that if they
desired to offer the property for sale within the next six
(6) months, they were contractually required to use Gardner
to do so. Therefore, Gardner continued to place a for sale
sign in front of the subject property and continued to market
the property in various periodicals throughout the remainder
2, 2012, Mrs. Iteld left a message on Ms. Farnsworth's
voicemail asking Ms. Farnsworth to call her. Ms. Farnsworth
returned Mrs. Iteld's call and was informed by her that a
new prospective purchaser, Ashton Soniat, was interested in
the property. Thereafter, Ms. Farnsworth made contact with
Mr. Soniat and sent him a copy of the brochure she had made.
Ms. Farnsworth informed Mr. Soniat about the details of the
home, the location, the neighborhood, and that the Itelds
were not interested in any lowball offers. Ms. Farnsworth and
Ms. McCulloch communicated with Mr. Soniat on several more
occasions during July of 2012, both by phone and email.
29, 2012, Ms. McCulloch spoke with Mrs. Iteld by telephone.
During this conversation, Mrs. Iteld mentioned that Mr.
Soniat had discussed the idea of cutting out her agents. In
early August of 2012, the Itelds, through their attorney
Lanny Zatzkis, received an offer from Mr. Soniat to purchase
the subject property. This offer was apparently rejected by
September 6, 2012, the Itelds received a second offer to
purchase the property from Mr. Soniat, again through Mr.
Zatzkis. On September 13, 2012, the Itelds executed a
"Louisiana Agreement to Buy or Sell." The Itelds
agreed to sell the subject property to Mr. Soniat for two
million eight hundred thousand dollars ($2, 800, 000.00). The
property was sold to Mr. Soniat on December 3, 2012. Gardner
was not included in this transaction and no commission was
paid. In early January of 2013, Ms. McCulloch discovered that
Mr. Soniat had purchased the subject property from the
March 6, 2013, Gardner filed its petition for breach of
contract and damages against the Itelds. Gardner later
amended its petition to reflect its name change from GBS
Properties LLC d/b/a Prudential Gardner ...