VICTUS 1, INC., D/B/A BENCHMARK BUSINESS BROKERS Plaintiff-Appellee
STOCKY'S WORLD FAMOUS PIZZA #14, INC., D/B/A SMITTY'S PIZZA Defendant-Appellant
Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 601, 974 Honorable
Ramon Lafitte, Judge
KETHLEY Counsel for Appellant B. WOODROW NESBITT, JR.
THOMAS, SOILEAU, JACKSON, Counsel for Appellee BAKER &
COLE, L.L.P. By: Steven E. Soileau
WILLIAMS, PITMAN, and STONE, JJ.
Stocky's World Famous Pizza #14, Inc., d/b/a Smitty's
Pizza ("Smitty's Pizza"), appeals the district
court's granting of summary judgment in favor of
Plaintiff-Appellee Victus 1, Inc., d/b/a Benchmark Business
Brokers ("Benchmark"). For the following reasons,
10, 2017, Benchmark filed a petition for breach of contract
against Smitty's Pizza. Benchmark is a company involved
in acquiring, selling and franchising businesses, and
Smitty's Pizza is a restaurant located in Shreveport. On
February 21, 2016, Smitty's Pizza entered into a listing
agreement (the "Agreement") with Benchmark granting
Benchmark the exclusive right to sell or contract to sell the
business, for a period of 12 months. Smitty's Pizza
agreed to pay Benchmark a broker fee of 10 percent of the
purchase price at the time of the sale. The Agreement
provided that if Smitty's Pizza cancels the contract or
if the property is withdrawn from the listing for sale during
the listing term, the commission, based on the asking price,
shall be immediately due by Smitty's Pizza to Benchmark.
Prior to the expiration of the 12-month term, Smitty's
Pizza notified Benchmark in a text message from its president
that she was "going to keep the place for a while,"
thereby withdrawing from and terminating the Agreement.
Benchmark contended that this termination was a clear
violation of the Agreement. It stated that the asking price
for the sale of the property was $499, 000. Benchmark made
demand for the 10 percent broker fee to no avail. It noted
that the Agreement provided that should a suit commence to
enforce the broker's rights, the prevailing party shall
pay expenses in connection therewith, including attorney
fees. Benchmark contended that it is entitled to the
commission of $49, 900, plus attorney fees, expenses, legal
interest and all costs of the proceeding.
26, 2017, Smitty's Pizza filed an answer. It admitted the
provisions of the Agreement stated in the petition. It
alleged that Benchmark's representative expressly
released Smitty's Pizza from the Agreement on November
29, 2016, that any obligation was extinguished at that time
and that Benchmark should be estopped from claiming the
contract continued for a period of 12 months.
August 30, 2017, Benchmark filed a motion for summary
judgment. It attached a memorandum in support of its motion;
an affidavit of Marc Able, an officer and member of
Benchmark, who entered into the Agreement with Smitty's
Pizza; a copy of the Agreement; the listing of the property;
and a screen shot of text messages with Shelly Stockton, the
president of Smitty's Pizza.
October 13, 2017, Smitty's Pizza filed an amending and
supplemental answer. It stated that Benchmark never complied
with its obligation under the Agreement and that Smitty's
Pizza's statement about desiring to retain the business
did not preclude Benchmark from finding a buyer of the
business for $499, 000 and earning its commission.
November 17, 2017, Smitty's Pizza filed an opposition to
the motion for summary judgment. It attached a memorandum, a
copy of the Agreement, screen shots of text messages between
Mr. Able and Ms. Stockton and portions of the depositions of
Mr. Able and Ms. Stockton. In a November 29, 2016 text
message, Mr. Able told Ms. Stockton, "I'm not going
to ask that you honor the contract i just don't want to
waste anymore time talking to people if you really don't
want to sell." In a February 13, 2017 text message, Ms.
Stockton told Mr. Able, "I know you're going to
think I'm crazy, but after this weekend I've decided
I'm going to keep the place for a while." Ms.
Stockton sent this text message eight days before the
Agreement's 12-month term expired. Smitty's Pizza
contended that Ms. Stockton was relying on Mr. Able's
November 29 text message when she made this statement. It
noted that Benchmark never procured a qualified buyer for
Smitty's Pizza and that there is nothing in the Agreement
stating that Benchmark gets anything if it is unable to sell
the business at a price not asked for or agreed upon by
Smitty's Pizza. Smitty's Pizza argued that genuine
issues of material fact existed as to the issue of an
November 21, 2017, Benchmark filed a reply memorandum in
support of its motion for summary judgment. It stated that
Smitty's Pizza's sole defense to its refusal to honor
the Agreement is a text message by Mr. Able to Ms. Stockton
that he was not going to ask her to honor the Agreement.
Benchmark noted that Ms. Stockton responded to this text
message by refusing to accept the offer to let Smitty's
Pizza out of the Agreement and instead responded, "No. I
know the contract I signed with you is for a year
[.]" Benchmark stated that it continued to
market the property and attempt to sell it from November 2016
until February 2017 when Ms. Stockton unilaterally decided to
withdraw it from the market before the 12-month period
expired. Benchmark noted that in Ms. Stockton's
deposition she agreed that the Agreement states that no
material modification shall be valid or binding unless made
in writing and signed by both parties and that there was no
such document signed by the parties.
hearing on the motion for summary judgment was held on
December 11, 2017. The district court determined that the
text messages between the parties were not writings signed by
both parties; and, therefore, the parties did not modify the
Agreement. Following the hearing, it filed a judgment
granting the motion for summary judgment in favor of
Benchmark and against Smitty's Pizza in the sum of $49,
900 plus attorney fees of $7, 500 and all costs of the
Pizza presents four assignments of error in support of its
fifth assignment of error, in which it argues that the
district court erred in granting summary judgment on the
evidence submitted. Benchmark argues the judgment was
courts review motions for summary judgment de novo,
using the same criteria that govern the district court's
consideration of whether summary judgment is appropriate.
Milazzo v. Harvey, 51, 653 (La.App. 2 Cir. 1/10/18),
245 So.3d 346, c ...