Gloria Young and 1st Choice Realty, L.L.C. VS E. Bartwell Cox and Lisa F. Cox d/b/a Louisiana Direct
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 2089 GLORIA YOUNG and 1sT CHOICE REALTY L L C VERSUS E BARTWELL COX and LISA F COX j d b a LOUISIANA DIRECT Judgment Rendered V1A Appealed from the 19th MAY 8 2009 Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Docket Number 477 826 Section 24 Honorable R Michael Caldwell Tori S Baton Bowling Rouge LA Judge Presiding Counsel for Plaintiffs Gloria Young and 1 st Appellees Realty Choice L LC E Bartwell Cox Defendants Lisa F Cox In Baton Rouge Proper Appellants Person LA BEFORE PETTIGREW McDONALD AND HUGHES JJ HUGHES J This is and judgment an appeal of judgment granting a dismissing appellant s For the claims motion for summary a reasons that follow we affirm FACTS In the months of February and March 2000 Gloria owner of 1 st Choice Realty hereinafter simply referred and Bart Cox husband of Lisa Cox entered into right to market and properties Rose Hill on amount to sell Ms to sell Bartwell and Lisa F was property as owed the well Lake properties 2001 denying Listing and exclusive transfer four Way property the and the Rhonda Avenue to pay Ms exchange or Young 5 other type of fee is earned when Seller otherwise transfer title price of one of the properties On November 2 2000 Ms that she or s to Young to a Young secured buyers for three of the four properties but 2 500 of the sale only paid exchange Ms given the The Hunter agreements Mr Cox agreed of any agreement as number of was Lake property s to otherwise arrange behalf of Mr and Mrs Cox into any agreement purchaser E or Young Further the agreement stated that the transfer was exchange property the Hunter of the gross enters sell to In each of the property wherein Ms s Marketing Agreement a Young realtor and as Cox b d Young filed a remaining the full 5 petition commission 2 5 commissions raising no on for damages against The Coxes Louisiana Direct The Coxes answered Ms her claims but a I on alleging the Hunter s Way the Rose Hill and Hunter Young s petition affirmative defenses on May Ms s 10 Young She did allege did not procure a buyer for the Rhonda Avenue property She was not however that she was owed reimbursement for the advertisement of the property As such the portion of the awarded those expenses and she has not appealed that ruling is not before us in this appeal this I Ms Cox admittedly judgment concerning property 2 propounded discovery a motion to compel Young filed for the summary the now 7 2004 responses to that On After and awarded Ms judgment a the trial hearing that were filed Young 2007 Ms court 21 640 50 Young properties the three on 8 2007 Ms May discovery and in December summary judgment commissions unpaid May on granted representing sold The Coxes appeal LAW AND ARGUMENT The summary disallowed construed judgment by to LSA C C P accomplish shall depositions the to procedure judgment as a art except those 966 A mover on genuine issue matter just is favored and shall be and admissions no the to secure action every in favor of the interrogatories is entitled mover designed LSA C C P these ends be rendered answers to 969 art the affidavits if any show that there is and that is inexpensive determination of and speedy judgment procedure 2 Summary if the file as pleadings together with to material fact LSA C C P of law art 966 B Appellate courts criteria that govern a review summary judgments de district judgment is appropriate 977 So 2d 880 882 Exhibition Hall 377 11 8 ruling evaluate the 2 documents on a State rei Ernest N Morial New Orleans ex 2002 1072 p Vankerkhove 5 La 2007 2555 4 9 03 p 5 842 So 2d 373 La Cir App 1 role is not to 729 30 motion for summary judgment the judge chronological index as or well to as s determine the truth of the the alphabetical matter index of the record in this file date for the filing of the interrogatories and request for production of this mistake gives the appearance that the case had become abandoned by an erroneous Although same Rau 2007 1726 pp 3 4 La 2 26 08 v weight of the evidence We note that the matter list operation v 993 So 2d 725 In v Authority Boudreaux 08 Allen under the consideration of whether summary court s Samaha novo of law such is not the case 3 but instead to determine whether there is doubts should be resolved in the Garrett 2004 0806 p 1 a litigant s ultimate genuine issue is A or as only one that issue and summary judgment is 876 So 2d at 765 Once courts true are to obligated intent of the 97 1911 La 10 31 97 When 1037 made or not is examination of the the trial a art court In recovery affects of the Id legal dispute no disagree if need for trial 2004 0806 to such contracts 2045 Sanders at p 1 Whether 703 So 2d 29 question of review is law not Sanders premised contract cases was on appellate legally correct contract 96 1751 at p 9 upon any factual an questions independent error of law is Sanders 96 1751 to the 1036 writ denied a its face the manifest review of according Ashland Oil Inc v 696 So 2d 1031 1 Cir 6 20 97 appellate In such v the law between them and the the trial level but instead is based upon at apply outcome appropriate contract is LSA C C App p ambiguous precludes conclusion there is give legal effect parties La that contract parties 7 Hines 66 96 1751 the determines the or which reasonable persons could to reasonable persons could reach on favor All 876 So 2d 764 765 potentially insures success one genuine issue of triable fact moving party s non La 6 25 04 A fact is material if it a IS 696 at findings review and rule does not simply whether at p 9 696 at 1037 support of the motion for summary judgment Ms Young provided following documents 1 Listing and Marketing Agreement for the Hunter s Way property signed by both Gloria Young and Bart Cox on February 23 2000 and effective until midnight on August 25 2000 2 An Agreement for the on price to of Purchase and Sell the Hunter 134 000 March 7 2000 and by 4 signed by Henry Bart Cox on an s Way property and Janice Stewart unknown date An Affidavit 3 buyer was stating that it was through secured and that she has received commission owed on the Hunter 5 her efforts that this s only 2 5 of the Way property Listing and Marketing Agreement for the Rose Hill property signed by Gloria Young on March 2 2000 and by Bart Cox on 4 March 6 2000 and effective until midnight on December 1 2000 A 5 New Construction Agreement Purchase to the Rose Hill property for the price of 232 310 00 signed by Archie T and Lisa and Bart Cox Canaday stating that she secured buyers for the home the agreement to purchase was entered into and that she has never commission she is owed received the 5 Listing and Marketing Agreement for the Hunter s Lake property signed by Gloria Young on February 25 2000 and by Bart Cox on an unknown date and effective until midnight on 7 December 1 2000 3 Agreement to Purchase the Hunter s Lake property for the amount of 137 500 signed by Lloyd and Polly Bergeron and Bart Cox on February 25 2000 New Construction 8 A 9 A document to signed by the parties the Hunter purchase s buyers listed above to agreements produced Coxes do are deny that not true Ms and opposed were allegation the summary 3 was It is undisputed an on never this property judgment correct copies of those the Coxes admit agreements The Young procured buyers for the properties with those buyers that those sales did not finalize judgment required for the yet own those properties does contain her efforts that the listing agreements and that the listing on or Moreover the Rather the Coxes the exclusive basis that the contracts to urge that two of the three contracts not agreement contracts support of their argument the Coxes contend that Ms Cox In null signature no the secured and that she has they entered into purchase agreements Coxes made extending through the motion for summary Cox entered into the that Mr was commission owed received the 5 opposition were and Lake property until October 20 2000 An affidavit asserting that it 10 that March 1 2000 An affidavit 6 In on that although this at were be effective also null on s Additionally they the basis that they did the time Mr Cox entered into the agreement Listing and Marketing Agreement is Cox is granted a 200 additional clause wherein Mr commission fee 5 identical to the others it 00 reduction of the 5 with Ms They Young did however later acqUIre of those ownership properties Ms Cox The trial to on in the law note behalf of the of Ms accepted ratified the contracts 5 the benefit of Ms We find no The Cox Likewise we the fact that LSA C C art 2347 also reject they did merit in this s not yet s the 532 So 2d case at two s or properties contracts property concurrence are properties concurrence of both spouses all or issued is substantiaIly all or registered as required to harvest timber community 1843 Ratification Ratification is a declaration whereby a person gives his consent obligation incurred on his behalf by another without authority to an An express act of ratification must evidence the intention to be bound by obligation Tacit ratification results when on his behalf by a person with knowledge of the obligation obligation another accepts the benefit of that 6 to null at of other spouse concurrence of both spouses is required for the alienation lease of community immovables standing cut or fallen timber The B incurred was no skill and effort and of the three or the ratified issue There sell the take assignment of error furnishings while located in the family home community enterprise and movables in the names of the spouses jointly provided by law LSA C C art to Young of the assets of the 5 Bourque we The A encumbrance furniture v not changes 4 property argument that the own Alienation of community the ownership non the Cox recognize to Ms Cox concurred in those sales Notably Young reasoned that court properties they did order apparent authority we Inc required in not and immovable Cajun Capital the trial level that at As such Ms Cox 4 And while that the Coxes sold the undisputed buyers procured by to Mr Cox had the concurrence case was 3 Cir 1988 and its factual similarities App allegation made due signature s concluding the trial community regarding spousal It is so married were of the third circuit 272 La In be valid because the Coxes contract Failure to Si2n the Contracts held that Ms Cox court for the contracts s the time that the Listing Coxes themselves and Marketing Agreements produced evidence Further the properties and sell them not were procured by Ms to Young were establish that they made as was no they did later applying the doctrine of after acquired title upheld the Mr Cox admits that both he and Ms the own sale properties for which It would not be equitable accept the benefits of the information concluded they knew by they at to were contracts Young knew that he did contracting allow the Coxes to not the time that yet market for eventual to enter into contract a and then avoid payment based contract the Coxes with the purchase The trial petition 6 court The argument that the buyers in her alleged entered into The sales they contracted purchasers procured by Ms on were Young and the commission is owed CONCLUSION Based on the plain language of the of the gross amount of any agreement transfer Thus the fee Ms subject to Cox has a according to Young earned been paid was to Ms exchange or That s half of the Hunter 5 other type of sell entered into 25 190 50 per the Hunter Young is owed amount by Mr Cox is however Lake agreement and Ms s We Way commission court awarding Ms Young The judgment of the trial court is therefore affirmed 21 640 50 is correct appeal sell judgment of the trial therefore find that the Costs of this to the agreements 200 00 reduction already contracts are to be assessed against appellants Mr and Mrs Cox AFFIRMED 6 is well established in our jurisprudence and stands for the proposition that if a vendor the Coxes sell property that they do not own and subsequently acquire title to that property the title will automatically vest in the vendee Sabine Production The After Company Acquired et al v Title Doctrine Guaranty 1 Cir writ denied App buyers Bank 438 So 2d 570 of property and their Trust La Company 1983 right of title 7 et al 432 So 2d 1047 The doctrine therefore 1051 n 5 La protects subsequent
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