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Burgess v. Zheng

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018

ROBIN BURGESS AND TERENCE BLANCHARD
v.
SHI GANG ZHENG A/K/A TONY ZHENG

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-10594, DIVISION "F" Honorable Christopher J. Bruno, Judge.

          Richard B. Ehret BOYKIN & UTLEY Albert A. Thibodeaux DAVILLIER LAW GROUP, LLC COUNSEL FOR PLAINTIFF/APPELLEE

          David Spinner SCOTT, VICKNAIR, HAIR & CHECKI LLC COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown.

          Daniel L. Dysart Judge.

         In this lawsuit involving the breach of an agreement to purchase property, defendant-appellant, Shi Gang Zheng a/k/a Tony Zheng, appeals a judgment in favor of plaintiffs-appellees, Robin Burgess and Terence Blanchard ("the Blanchards"), awarding the Blanchards contractual stipulated damages and attorney's fees. The Blanchards answered the appeal, seeking an increase in the amount of attorney's fees awarded. For the reasons that follow, we affirm the trial court judgment in all respects and decline to increase the amount of the award for attorney's fees.

         FACTUAL BACKGROUND

         According to their Petition for Damages ("Petition"), the Blanchards were the owners of property located in English Turn in New Orleans, which they listed for sale. On July 31, 2015, their agent, Britt Galloway, received an offer from Mr. Zheng's agent, Delisha Boyd, to purchase the property for $990, 000. The offer contemplated an "all cash sale" which expired on August 1, 2015. In response, the Blanchards made a counteroffer which incorporated the terms of Zheng's offer but added additional terms.[1]

         Mr. Zheng accepted the counteroffer and emailed a copy of a check for the $10, 000 deposit to Ms. Boyd, who forwarded it Mr. Galloway. He then submitted proof of funds and had the home inspected on August 7, 2015. In anticipation of the September 30, 2015 closing on the sale of the home, the Blanchards moved out of the home.

         Because he was allegedly out of town, Mr. Zheng, through Ms. Boyd, requested additional time for the closing, and the Blanchards agreed to grant an additional fifteen days for the closing provided that Mr. Zheng pay an additional deposit of $25, 000 or provide his agent with a power of attorney to complete the sale. Ultimately, Mr. Zheng did not appear for the closing on September 30, 2015 and the title company prepared a proces verbal documenting the failure of the sale to be completed. The Blanchards then sent Mr. Zheng a notice of default on October 1, 2015.

         This suit followed. In their Petition, filed on November 4, 2015, the Blanchards sought to enforce the liquidated damages provision of the purchase agreement. More specifically, they sought payment of $99, 000 (10% of the sale price), the $10, 000 deposit, a $49, 500 broker fee (5% of the sale price), and attorney's fees and costs.

         In response to the Petition, Mr. Zheng filed a third party demand against Ms. Boyd and several other parties.[2] In it, he alleged that he had retained Ms. Boyd to act as his agent with respect to the purchase of the English Turn property. At that time, he informed Ms. Boyd that he needed to obtain financing for the purchase. However, Ms. Boyd prepared the all-cash offer, which she requested that he sign, and submitted it to Mr. Galloway. He then received the counteroffer. Although he executed the counteroffer, Mr. Zheng again advised Ms. Boyd that he required financing, and provided no proof of funds as required by the purchase agreement. He did, however, provide a letter from Golden Bank advising that he was eligible for a $900, 000 loan, subject to final approval from the bank. Mr. Zheng was ultimately unable to obtain the financing or purchase the property.

         The third party demand makes allegations of negligence and negligent misrepresentation against Ms. Boyd on the basis that she prepared the all-cash contract without including a contingency for financing and that she forwarded the Golden Bank letter to show that Mr. Zheng was in the process of obtaining finances to purchase the property. Mr. Zheng alleged that, due to Ms. Boyd's negligent misrepresentation, he suffered damages because it purported to "satisf[y] a condition of the Contract which could not have otherwise been satisfied." The third party demand sought judgment against the third party defendants in the event that plaintiffs obtained a judgment against Mr. Zheng.

         The Blanchards then filed a Motion for Summary Judgment seeking: (1) a determination that Mr. Zheng had breached his obligations under the purchase agreement and (2) a determination that they were entitled to the stipulated damages as set forth in the agreement. A hearing was held on the motion and, by judgment dated April 26, 2016, the trial court granted summary judgment in plaintiffs' favor, finding that Mr. Zheng had breached the agreement. The judgment found, however, that there remained the issue of damages sustained as a result of the breach. The Blanchards sought a review of that part of the judgment which denied the summary judgment on the issue of damages. This Court denied the writ application on July 6, 2016. Burgess, et al. v. Zheng, 16-0496 (La.App. 4 Cir. 7/6/16)(unpubl).

         A bench trial on the matter took place on April 7, 2017. By judgment dated April 17, 2017, the trial court ruled in the Blanchards' favor and against Mr. Zheng for the following damages: $109, 000, with legal interest and costs; $15, 000 in attorney's fees; and $5, 000 for brokerage fees. The judgment further dismissed Mr. Zheng's claims against Ms. Boyd with prejudice.

         Mr. Zheng timely filed a suspensive appeal of the judgment, which was then converted to a devolutive appeal. As noted, the Blanchards answered the appeal, seeking an increase in the award of attorney's fees.

         Standard of Review

         At the outset, we note that the majority of Mr. Zheng's appellate brief focuses on whether the trial court erred in finding that there was a breach of contract (purchase agreement) in this case, and, more particularly, whether the alleged failure of a suspensive condition contained within the purchase agreement voided his obligations under the purchase agreement. The issue of whether there was a breach of the contract was addressed by the trial court when it partially granted the Blanchards' motion for summary judgment on April 26, 2016. That judgment is not properly before this Court, given that Mr. Zheng appealed only the April 17, 2017 judgment.[3]

         Furthermore, the April 26, 2016 judgment does not contain sufficient decretal language for it to be considered a final judgment. Our jurisprudence indicates that "for the language of a judgment to be considered 'decretal,' it 'must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.'" Tsegaye v. City of New Orleans, 15-0676, p. 3 (La.App. 4 Cir. 12/18/15), 183 So.3d 705, 710, writ denied, 16-0119 (La. 3/4/16), 188 So.3d 1064 (emphasis supplied), quoting Board of Supervisors of La. State Univ. and Agric. and Mech. Coll. v. Mid City Holdings, L.L.C., 14-0506, p. 3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910.

         Here, the April 26, 2016 judgment simply states that "[i]t is ordered, adjudged and decreed that the Motion for Summary Judgment is GRANTED on the breach by defendant/buyer, Shi Gang Zheng a/k/a Tony Zheng as buyer of the August 1, 2015 Agreement to Buy or Sell" leaving "[t]he only remaining issue [of] damages." While it grants summary judgment, it does not state what relief was granted. However, as the Board of Supervisors Court indicated, when a judgment "is lacking in definitive decretal language necessary for the exercise of our appellate jurisdiction, the appellant is not entitled as of right to appellate review, but may nonetheless invoke our supervisory jurisdiction, which is discretionary with us to grant" Id., 14-0506, p. 3, 151 So.3d at 910. Here, we find it appropriate to exercise our supervisory jurisdiction because the April 17, 2017 judgment is intertwined with the April 26, 2016 judgment; that is, the April 17, 2017 judgment is dependent on a finding of a breach of contract, which was the issue in the summary judgment motion. Moreover, we find that judicial economy will best be served by exercising our supervisory jurisdiction.

         Thus, there are two judgments at issue in this appeal - one granting summary judgment on the issue of a breach of contract; and one awarding damages pursuant to the contract. However, while Mr. Zheng technically appealed the April 17, 2017 judgment, the assignments of error and the issues raised in his appeal only address the breach of contract issue. The only mention of the April 17, 2017 judgment is the request that this Court "vacate the Trial Court's April 17, 2017 Judgment in favor of the Plaintiffs and against Zheng." Mr. Zheng does not challenge the amount of the damages awarded in the April 17, 2017 judgment or otherwise raise any issue with respect to that judgment. Similarly, while the trial court's judgment dismissed all claims made against Ms. Boyd, no issue is raised as to this ruling on appeal. Thus, any issues concerning damages or the ...


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