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Vanek v. Robertson

Court of Appeals of Louisiana, Third Circuit

December 6, 2018

MICHAEL D. VANEK AND VANEK REAL ESTATE, LLC
v.
CHARLES ROBERTSON AND DIV-CONN OF LAKE CHARLES, LLC

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2014-3767 HONORABLE SHARON D. WILSON, DISTRICT JUDGE

          Thomas J. Gayle Gayle Law Firm, LLC Counsel for Plaintiffs/Appellants: Michael D. Vanek Vanek Real Estate, LLC

          Billy E. Loftin, Jr. Brian M. Bradford Loftin, Cain & LeBlanc, L.L.C. Counsel for Third Party Defendant/Appellee: Bonita Sedano

          Marshall J. Simien, Jr. Simien Law Firm Counsel for Defendants/Appellees: Charles Robertson Div-Conn of Lake Charles, LLC

          Court composed of Phyllis M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.

          PHYLLIS M. KEATY, JUDGE.

         This is a breach of contract case. The plaintiff appeals a judgment granting a motion for partial summary judgment filed by the third party defendant insofar as the judgment, in addition to dismissing the third party demands against the third party defendant, also dismissed the plaintiff's claims against the original defendants. More specifically, the plaintiff asserts that the trial court erred, as a matter of law, in dismissing the principal demand when no motion for summary judgment was filed by a party to the principal action. The plaintiff does not appeal the grant of summary judgment in favor of the third party defendant.

         FACTS AND PROCEDURAL HISTORY

         The facts relative to this appeal are not in dispute. Michael D. Vanek and Vanek Real Estate, LLC (hereafter collectively referred to as Plaintiff or Vanek), filed suit against Charles Robertson and Div-Conn of Lake Charles, LLC[1] (hereafter collectively referred to as Defendant or Robertson), for breach of a listing agreement concerning a commercial building on property located at 2750 Power Center Parkway in Lake Charles, Louisiana (the property). The listing agreement was signed on December 1, 2010, by Robertson as seller, Vanek as broker, and Bonita Sedano as agent, and it expired by its own terms at midnight on October 4, 2011. The listing agreement contained a clause which provided that, "Brokerage fees will also be earned by the BROKER when a tenant, placed by the BROKER, purchases the leased premises during the initial lease period of any lease extensions or within 80 days after the lease/extension expires."

         In his suit against Robertson, Vanek sought a commission for a sale of the property that took place on July 31, 2014. Vanek alleged that beginning in May 2011, the property was leased three separate times, each for a one-year term, with the last lease lapsing on June 30, 2014. According to Vanek, Robertson paid him 6% commission on each of those three leases, as called for in the listing agreement. The petition alleged that Robertson failed to pay Vanek a commission in conjunction with the July 2014 sale of the property, instead paying a commission to a different broker. Vanek further alleged that Robertson "ratified the validity and existence" of the listing agreement by paying the three aforementioned commissions and that "Vanek's agency was the procuring cause for the Charter Academy to rent, and subsequently purchase, the building owned by Robertson." In two supplemental and amending petitions, Vanek alleged that "Robertson confirmed and ratified" the listing agreement "by accepting the benefit of the assignment of the listing agreement from 'Charter Schools USA,' to other entities, namely Lake Charles Charter Academy Inc. and Southwest Louisiana Charter Academy Foundation, Inc."

         In response to Vanek's petition, Robertson filed an answer, reconventional demand, and third party demand. In his answer, Robertson asserted that the listing agreement relied upon by Vanek had expired when the sale occurred. Robertson further asserted that the listing agreement was a one-party listing for Charter Schools, USA, Inc. and its assigns, and that the purchaser of the property, Southwest Louisiana Charter Academy Foundation, Inc. (SLCAF), a non-profit Louisiana corporation, was not affiliated with or in any way an "assign" of Charter Schools, a Delaware corporation. According to his reconventional demand, Robertson had paid Vanek commissions that were not due, and he sought a refund of those payments from Vanek.

         Robertson also filed a third party demand against Sedano, the real estate agent employed by Vanek, who represented Charter Schools when the listing agreement was signed in 2010. Robertson alleged that at some point after the listing agreement expired, Sedano ceased working for Vanek and became employed by Century 21 Mike D. Bono & Co. (Bono). According to Robertson, during the negotiations of the 2014 sale of the property, Sedano had assured him "that Vanek's listing agreement had expired, that she could act as a dual agent to list and purchase the property, that she had been in communication with Vanek, and that if Vanek had any issues with the sale of the property," she would resolve them with him. After the sale of the property was completed in 2014, Robertson paid a commission to Sedano and Bono. When Vanek later filed this suit seeking a commission from Robertson, Robertson filed the third party demand against Sedano, alleging that she was responsible for distributing any commission due to Vanek.[2]

         Upon being sued as a third party defendant, Sedano filed a cross-claim against Vanek, alleging that he had waived his right to any commission owed on the sale of the property. Thereafter, Sedano filed a motion for partial summary judgment against Vanek and Robertson. In her motion, Sedano alleged that per the explicit terms of a written agreement that she and Vanek entered into in August 2013 upon the severance of their broker-realtor relationship, it was agreed that Sedano would retain SLCAF as her client and no future commissions involving it would be shared between them. That agreement, which was attached as an exhibit to Sedano's motion, provided:

Mike Vanek and Bonita Sedano have been involved in a broker-realtor Relationship and have jointly participated in the closure of various real estate transactions which entailed a sharing [of] commission[s] on an agreed upon percentage. Each party desires to sever this relationship and agree to release the other from complete liability for all expenses incurred to date by Vanek Real Estate as a result of this relationship. Each party wishes to terminate all collaboration on projects where a commission fee will be paid with the exception of the sale of land to Southwest Louisiana Charter Academy Foundation at the corner of McNeese and South Park St. in the City of Lake Charles. Each party agrees to share the commission on the transaction on an equal basis. Mike Vanek and Bonita Sedano wish to amicably terminate their relationship with each party continuing to recognize that Bonita Sedano shall retain Lake Charles ...

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