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
Spinner SCOTT, VICKNAIR, HAIR & CHECKI LLC COUNSEL FOR
composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart,
Judge Paula A. Brown.
L. Dysart Judge.
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.
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
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.
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.
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.
response to the Petition, Mr. Zheng filed a third party
demand against Ms. Boyd and several other
parties. 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.
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.
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).
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.
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.
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.
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.
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
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