TEC Relators, Inc. d/b/c Coldwell Banker TEC Realtors VS Paglia Holdings, LLC, David M. Pagliarulo and Stephanie H. Pagliarulo

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 1684 1 TEC REALTORS INC DB COLDWELL BANKER TEC REALTORS A VERSUS PAGLIA HOLDINGS LDAVID M PAGLIARULO AND C STEPHANIE H PAGLIARULO Judgment Rendered Apri126 2013 x Appealed from the Second Twenty Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket Number 2007 16283 The Honorable Richard A Swartz Judge Presiding 14 Y9 F oFdC9C Richard A Richardson Madisonville LA Counsel for Plaintiff Appellant TEC Realtors Inc DB A Coldwell Banker TEC Realtors Tom D Snyder Jr Counsel for Defendants Appellees Rebecca E Fenton Paglia Holdings LDavid M C Stephen K Conroy Pagliarulo and Stephanie H Christine W Marks Pagliarulo Metairie LA BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM J J D IUI C o fin i J C cc WHIPPLE C J This matter is before us on appeal by plaintiff TEC Realtors Inc DB A Coldwell Banker T Realtors TEC from a judgment of the trial court EC finding no breach of the listing agreement by the defendants Paglia Holdings C id L Da M Pagliarulo and Stephanie H Pagliarulo and thereby dismissing s TEC petition with prejudice The judgment also dismissed defendants reconventional demand against TEC with prejudice For the following reasons we affirm FACTS AND PROCEDURAL HISTORY David Pagliarulo and his wife Stephanie Pagliarulo signed a listing agreement with TEC for the sale of property located at 1159 Hardy Drive in Covington Louisiana The agreement was accepted by Gena Hines a real estate agent with TEC As set forth in the listing agreement the effective date of the listing was September 28 2006 the e date ofthe listing term was March iration 28 2007 and the listed price of the property was 699 00 500 In late November of 2006 Darlene Delesdernier an associate real estate agent at TEC began to assist Ms Hines with the strategic advertising and marketing ofthe property Ms Delesdernier went out to see the property and met with Mr Pagliarulo and Ms Hines after Thanksgiving in 2006 Ms Delesdernier then asked Mr Pagliarulo to extend the listing agreement and to reduce the price of the property Mr Pagliarulo agreed to reduce the price to 648 and a 00 000 Price Change on Listing form was executed by TEC Broker Martha Mears on December 28 2006 reflecting the reduced price Via an email response to Ms Although l David and Stephanie Pagliarulo signed the listing agreement as the owners of the property Mr Pagliarulo testified that the property was actually owned by Paglia Holdings L a corporation formed by Mr Pagliarulo and his wife for the purpose C of holding real estate in Louisiana Gena Z Hines is also Stephanie Pagliarulo aunt s 2 Delesdernier dated December 18 2006 Mr Pagliarulo also agreed to extend the listing agreement through the end of June 2007 The parties however never executed a Agreement Extension Form or any other document Listing extending the listing agreement in writing At the end of March when the property had not sold before the expiration date stated in the listing agreement the Pagliarulos had a discussion with their agent Ms Hines wherein Ms Hines advised them that T would not agree to EC list re the property if the Pagliarulos did not agree to another reduction of the listing price The Pagliarulos refused to agree to a further reduction ofthe listing price Mr Pagliarulo told Ms Hines that he and Mrs Pagliarulo felt they were where we needed to be with the price to which Ms Hines responded that TEC would not be re the property At that point Mr Pagliarulo asked Ms listing Hines if they were done and Ms Hines replied Iguess so On April 25 2007 the Pagliarulos accepted an offer to purchase the properiy from Beth Hamaker Hart and her husband Richard Hart Thereafter on May 25 2007 a meeting was held where the Pagliarulos Martha Mears Darlene Delesdernier and Beth Hart were present to clear up some confusion as to whether TEC was still listing the property Ms Delesdemier was under the impression that the listing agreement with T had been extended through the EC end of June 2007 based on Mr Pagliarulo December email while the s Pagliarulos were of the impression that the listing agreement expired on March 28 2007 as 4 Mr Pagliarulo told Ms Mears that he had stated in the agreement Mr 3 Pagliarulo testified that prior to entering into the listing agreement with TEC they had received an offer on the property from the Harts in the suuuner of 2006 Beth Hart is a real estate agent and she and her husband live about one block from the Hardy Drive property at issue herein Unbeknownst 4 to the Pagliarulos on April 13 2007 Ms Mears signed and dated a printed copy of Mr Pagliarulds December 18 2006 email which she testified signified her acceptance of the extension and served as the date the lisring was extended 3 met with his agent at the end of the listing period and that after he and Mrs Pagliarulo refused to reduce the price Ms Hines told him that he was free to sell the property on his own once the listing agreement expired At the conclusion of the meeting Ms Mears advised the Pagliarulos that they were free to go ahead with the sale to the Harts and asked the Pagliarulos to sign a Cancellation of Listing Agreement form in order for T to remove the property from the EC MLS As such by Act of Cash Sale dated May 29 2007 the Pagliarulos sold the home to the Harts for 625 00 000 On November 19 2007 TEC filed a petition against the Pagliarulos and Paglia Holdings L seeking damages in the amount of 27 with legal C 00 000 interest and costs contending that at the time of the sale to the Harts the listing agreement with TEC was still in effect and that TEC was thereby entitled to the upon agreed commission as set forth in the listing agreement The Pagliarulos answered TEC petition setting forth affirmative s defenses and filed a reconventional demand against TEC In their answer the Pagliarulos contended that TEC failed to allege the existence of any legally cognizable and enforceable agreement with the property owner Paglia Holdings C L by which TEC could pursue a claim or cause of action arising in contract Further the Pagliarulos contended to the extent that any are claimed TEC s claims ex contractu against Paglia Holdings L and Dauid and Stephanie C Pagliarulo are barred by TEC own breaches and non s or performance The Pagliarulos further alleged in their reconventional demand that they are entitled to damages from TEC for detrimental reliance breach of contract and abuse of process The S MLS is an internet Multiple Listing Service through which brokers submit listings of available properties to other brokers and agents 4 The matter was heard by the trial court on February 29 2012 On March 21 2012 the trial court issued written reasons for judgment fmding no breach of s TEC listing agreement by the Pagliarulos and fiuther finding that the Pagliarulos failed to prove the claims made in their reconventional demand against T As such by judgment dated Apri19 2012 the trial court dismissed EC spetition with prejudice dismissed the Pagliarulos reconventional demand TEC against TEC with prejudice and ordered that each party bear their own costs TEC appeals contending the trial court erred 1 in finding that there was no eof the listing agreement 2 in finding that TEC did not quote the ension property to the Harts during the term of the listing agreement and 3 in not awarding TEC attorney fees and costs DISCUSSION Assignment of Error Number One In its first assignment of error TEC contends that the trial court erred in finding that there was no extension of the listing agreement TEC contends that Mr Pagliarulds December 18 2006 email response to Ms Delesdernier stating that he is willing to commit to extending the listing period thru the end of June 2007 is sufficient in and of itself to extend the terms of the formal listing agreement executed by the parties herein Moreover although TEC has a formal Listing Agreement Extension document TEC contends it was not necessary that the parties execute the document to nonetheless confect their contract The Pagliarulos counter that there was absolutely no meeting of the minds as to establish consent to extend the contract period The Pagliarulos contend that the evidence establishes that TEC did not even attempt to show that Ms Mears accepted or approved of the alleged extension until well after Ms Hines had communicated to Mr Pagliarulo that TEC would no longer be willing to list the property and that the listing agreement had expired under its own terms 5 A contract is an agreement by two or more parties whereby obligations are created modified or extinguished C LSA art 1906 Where there is no meeting of the minds between the parties there is no consent and thus no enforceable contract See LSA art 1927 Howell v Rhoades 547 So 2d C 1087 1089 La App l Cir 1989 where the parties discussed terms of architectural fee and yet no written contract was ever drafted there was no meeting of the minds between plaintiff and defendant when subsequent confusion arose over whether such fee was contingent Mr Pagliarulo testified that the last he heard about an extension of the listing agreement was the December email He stated that he assumed and ected ethat at some point prior to the expiration of the listing agreement he and Stephanie would be called into the office to sign an e if that was ension s TEC intent because he was being called in to T office to sign different s EC documents whether it be a price reduction or type of disclosure on a weekly basis to dot the Ps and cross the T Thus he assumed that during the normal s cowse of business he and Mrs Pagliarulo would have been required to sign an ension eagreement or other formal paperwork stating same to TEC intended to extend the listing and he testified that never happened Mr Pagliarulo further testified that Ms Mears had told him she felt that it was done sloppily Mr Pagliarulo testified that after Ms Hines told him that TEC was not going to re list the property at the expiration ofthe listing term on March 28 2007 he ultimately procured a buyer for the property on his own Mr Pagliarulo testified that with regard to his dealings with TEC he understood that not only was it necessary that he and his wife agree to reduce the price in order for TEC to re the property list but that it was abreaker if they would not reduce the price deal Ms Hines testified that she believed that the listing had expired and that she did not speak to Mr Pagliarulo about extending the lisring Ms Hines further 6 testified that if there were any agreements made between the Pagliarulos and Ms Delesdemier to extend that listing she was not aware of it In its written reasons for judgment the trial court found that b on ased the evidence presented the email from Mr Pagliarulo expressed a willingness to extend the Listing Agreement but no document was ever signed by the parties that e the Listing Agreement The trial court further noted that o tended n April 13 2007 after the listing agreement expired Ms Mears signed and dated a copy of Mr Pagliarulds December 18 2006 e Given these findings the mail trial court held here T was no meeting of the minds the Pagliarulos did not intend or understand that the email sent on December 18 2006 would consritute a valid extension ofthe Listing Agreement and that the primary term of the Listing Agreement expired on March 28 2007 After careful consideration of the record we agree In the matter before us it is evident that while Ms Delesdernier and Mr Pagliarulo discussed extending the listing agreement no written agreement was ever drafted as was expected by Mr Pagliarulo if the parties including the co of the property Mrs owner Pagliarulo were to ever agree to an actual extension of the listing agreement Moreover Mr Pagliarulo justifiably and reasonably relied on the representations made by his agent Ms Hines i that the listing agreement would expire by its e stated terms when the Pagliarulos refused TEC request to fiirther reduce the s listed price of the property Thus considering the evidence and testimony presented herein we find no error in the trial court finding that there was no s meeting of the minds that would establish that Mr Pagliarulo sDecember 2006 email expressing a willingness to extend the listing ageement between the parties and purportedly accepted by TEC in April 2007 served as a valid extension of the listing agreement herein Cf Ricky Diesel Service Inc v s Pinell 2004 La App 1 Cir 2 906 So 2d 536 0202 OS 11 7 Assignment of Error Number Two In its second assignment of error TEC contends that the trial court erred in finding that TEC did not quote the property to the Harts during the term of the listing agreement so as to trigger application of the eclause contained in tension the listing agreement Generally a real estate broker is entitled to a commission if it has been a procuring cause of the transaction See Creelv v Leisure Living Inc 437 So 2d 816 820 La 1983 This general principle has been recognized even where the term of the broker listing ageement has expired TEC Realtors Inc v D s L Fairwav Property Management L 2009 La App l Cir 7 42 C 2145 10 9 So 3d 1 ll6 ll22 writ denied 2010 La 10 48 So 3d 1092 1841 29 Our jurisprudence has defined procuring cause as a cause originating or setting in motion a series of events which without break in their continuity result in the accomplishment of the prime object of the employment of the broker which may variously be a sale or exchange of the principal property an ultimate s agreement between the principal and a prospective contracting pariy or the procurement of a purchaser who is ready willing and able to buy on the s principal terms TEC Realtors Inc v D L Fairwav Pro Manaement ert C L 42 So 3d at 1122 citing Creely v Leisure Living Inc 437 So 2d 1123 at 820 Thus in order to establish that his efforts were the procuring cause 821 of a sale a broker must show more than the mere fact that his actions in some way aided the sale TEC Realtars Inc v D L Fairwa Mana ement pertv C L 42 So 3d at 1123 The pertinent language in the instant listing agreement provides as follows Although 6 the term quoted is not defined in the listing agreement herein quoted as used in a listing agreement extension clause has been defined in the jurisprudence to mean at least that the price be stated Copnage v Camelo 330 So 2d 695 696 La App 4 Cir 1976 8 Owner agrees to pay Broker commission of 6 100 s 000 4 add price on the gross amount of any agreement to sell exchange or option that may be negotiated during the existence of the agreement or on the gross amount of any such agreement made within 180 days after the expiration or termination of this agreement with anyone to whom said property has been quoted during the term of this agreement part of which commission may be paid to a cooperating Broker at listing Broker ssole discretion Emphasis added To interpret the above provision we look to the following precepts Generally legal agreements have the effect of law upon the parties and as they bind themselves they shall be held to a full performance of the obligations flowing therefrom TEC Realtors Inc v D L Fairwa Manaeement roperty C L 42 So 3d at 1124 The interpretation ofa contract is the determination of the common intent of the parties C LSA art 2045 When the words of a contract are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent LSA art 2046 C The words of a contract must be given their generally prevailing meaning LSA C art 2047 A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective LSA art 2049 Each provision in a contract must be interpreted C in light of the other provisions so that each is given the meaning suggested by the contract as a whole C LSA 2050 art A doubtful provision must be interpreted in light ofthe nature of the contract equity usages and the conduct of the parties before and after the formation of the contract LSA art 2053 C According to the extension clause at issue herein TEC was entitled to a commission on the gross amount of any agreement to sell the property made within 180 days after the expiration or termination of the listing agreement with anyone to whom the property had been quoted during the term of the listing agreement 9 In support of TEC argument that it quoted the property to the Harts s during the term ofthe listing agreement herein TEC contends that it offered the roperty p for sale by putting a sign in front of it and by including it in the Multiple Listing Service TEC contends that because Mrs Hart was a realtor she was obviously familiar with the MLS because she used it to obtain the information necessary to access the lockbox code TEC further argues that because Mrs Hart used her lockbox key to access the property on November 15 2006 which was during the term of the listing agreement Mrs Hart was quoted and TEC thereby earned its commission The Pagliarulos countered that at all relevant times Mrs Hart was aware of the Hardy Drive properly Mr Pagliarulo testified that in the summer of 2006 before they entered into the listing agreement with TEC on September 28 2006 the Harts had approached him about the home and had made an offer to buy the property Mr Pagliarulo further testified that the Harts lived about one block down the street from the property He testified that had TEC brought him a buyer he would have gladly paid the full commission even after the listing agreement expired but TEC did not bring the Harts to him On review we first note that TEC failed to set forth any evidence that the Pagliarulos were aware that Mrs Hart entered the home via her lockbox key In fact Ms Delesdernier testified that she did not know if Mr Pagliarulo was with Mrs Hart when she entered the home stating that if Mr Pagliarulo were with Mrs Hart he would probabiy have used his own key and not used the lockbox at all TEC further failed to establish that the Harts had been quoted the property during the term ofthe listing agreement In order to establish that his efforts were the procuring cause of a sale a broker must show more than the mere fact that his actions in some way aided the sale TEC Realtors Inc v D L Fairwav Propertv Mana L L C 42 So ement 10 3d at 1123 In the instant case even if we were to say that Mrs Hart use of the s lockbox aided the sale this mere fact alone does not establish that TEC was the procuring cause of the sale particularly when the Harts lived a biock away from the property and had made the Pagliarulos an offer before tt listed the property ey with TEC In ruling on this issue trial court noted the following in its written reasons for judgment TEC claims that by putting a sign in front of the property and by including the property its price and the lockbox code in the Multiple Listing Service it satisfied the quoting requirements of the e clause tension visited the property Mr Pagliarulo testified that the Harts had prior to the listing with TEC In addition Elizabeth Hart a licensed real estate agent and a neighbor used her lock box key to view the property on November 15 2006 April 5 2007 April 6 2007 April 13 2007 and April 17 2007 There was no evidence of any direct contact between the Harts and TEC Based on the foregoing the Court finds the property was not quoted to the purchasers during the term of the agreement The Court fiirther finds that there is no minimal causal connection between the activities of TEC and the ultimate decision by the Harts to purchase the property Accordingly TEC is not entitied to the commission under the extension clause On review of the law and evidence herein we find no errar in the trial s court ruling that TEC failed to establish that the property was quoted to the Harts by TEC during the existence of the listing agreement or in its ruling that TEC failed to establish that it was the procuring cause ofthe Pagliarulos sale to the Harts Assignment of Error Number Three In its final assignment of error TEC contends that the trial court erred in not awarding it costs and attomey fees under the terms of the listing agreement s which provide In case of employment of counsel to enforce this agreement Owner will pay all costs and reasonable attorney sfees incurred by Broker 11 As set forth above Mr Pagliarulo testified that Ms Hines told him at their meeting at the end of March 2007 that they were free to sell the property on their own Moreover at the conclusion of the May 25 2007 meeting with Martha Mears Darlene Delesdernier and Beth Hart Ms Mears told the Pagliarulos that they were free to go ahead with their sale to the Harts Given the inshuctions from representatives of TEC the Pagliarulos executed the sale with the Harts without any indication from TEC that it intended to enforce the agreement such as to incur costs and attorney fees s Accordingly we likewise find no basis to award same Given our affirmance of the trial court finding that the lisring agreement s herein had expired and that the ea clause was not triggered so as to apply tension to the Pagliarulos sale of the properry to the Harts we likewise find no merit to this assignment of error CONCLUSION For the above and foregoing reasons the Apri19 2012 judgment of the trial court is affirmed Costs of this appeal are assessed to the appellant TEC Realtors Inc DB Coldwell Banker TEC Realtors A AFFIRMED 12

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