Franklin Realty Group, LLC VS The Lakes At Bluebonnet, LLC and Claude M. Penn, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 CA 0519 FRANKLIN REALTY GROUP LLC VERSUS THE LAKES AT BLUEBONNET LLC AND CLAUDE M PENN JR I ii Judgment Rendered November 1 2013 Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 593 236 The Honorable Todd W Hernandez Judge Presiding F aC A YxiY t F fl Shelby Easterly III Denham Springs Louisiana Counsel for Defendant Appellant JE Counsel for Plaintiff Appellee Franklin Realty Group LLC Cullens Edward J Jr Walters Jr The Lakes at Bluebonnet LLC and Claude M Penn Jr Darrel J Papillion Baton Rouge Louisiana BEFORE KUHN HIGGINBOTHAM AND THERIOT JJ THERIOT J This appeal is from a summary judgment enforcing a settlement agreement We vacate and remand FACTS AND PROCEDURAL HISTORY This suit involves the enforcement of a settlement agreement arising from disputes over a real estate listing agreement The August 2004 written Listing and Marketing Agreement which is not contained in the record of this suit allegedly provided that Franklin Realty Group L would be the C exclusive listing agent for all sales of condominium units at The Lakes at Bluebonnet for a five term August 12 2004 through August 12 2009 year In January of 2008 The Lakes at Bluebonnet L attempted to terminate C the written Listing and Marketing Agreement pursuant to a verbal agreement with Ben Franklin III member of Franklin Realty Group L manager C Mr Franklin denied agreeing to ternunate the Listing and Marketing Agreement and a lawsuit was filed for the wrongful termination of the listing agreement On August 31 2009 a Settlement and Release Agreement was negotiated and agreed to by Mr Frauklin Franklin Realty Group L C The Lakes at Bluebonnet C L and Claude M Penn Jr member manager of The Lakes at Bluebonnet L The Settlement and C Release Agreement provides that it is intended to resolve a number of disputes including 1 the lawsuit filed by the Franklin Group defined as collectively referring to Mr Franklin and Franklin Realty Group L C against The Lakes at Bluebonnet L and 2 claims asserted by the C Because the lawsuit filed for wrongful termination of the listing agreement is not contained in the record of the suit to enforce the settlement ageement it is uncleaz who the parties to the suit were and what claims were made however the Settlement and Release Agreement indicates that Mr Franklin and Franklin Realty Group L filed C suit against The Lakes at Bluebonnet L C 2 Franklin Group and the Bluebonnet Group defined as collectively referring to The Lalces at Bluebonnet L and Mr Penn related to the C Listing and Marketing Agreement the condominium development and or ownership in The Lakes at Bluebonnet L C In the Settlement and Release Agreement the parties agreed to terminate the Listing and Marketing Agreement and the Franklin Group agreed to dismiss its lawsuit In consideration of the termination of the Listing and Marketing Agreement and the dismissal of the lawsuit the parties agreed that 23 being held in escrow would be released to 00 160 Franklin Rea1ty Group L The Lakes at Bluebonnet L paid C C 00to 420 13 Franklin Realty Group LLC and Walters Papillion Thomas Cullens LLC and Franklin Realty Group L was designated as the C exclusive agent for the sale of Units 504 and 1606 at The Lakes at Bluebonnet Condominiums for a period of twelve months The provision regarding the exclusive listing for Units 504 and 1606 expressly states that The Lakes at Bluebonnet L shall be obligated to pay the Franklin C Group the sum of 15 for each unit sold 00 790 When payment of the commission for Units 504 and 1606 was not made as provided by the Settlement and Release Agreement Franklin Realty Group L filed this suit against The Lakes at Bluebonnet L and C C Mr Penn for payment of the amounts due under the Settlement and Release Agreement The Lakes at Bluebonnet L and Mr Penn filed a C peremptory exception raising the objection of nonjoinder of a party and the objections of no cause of action and no right of action as to Mr Penn The basis for the objection of nonjoinder was that Mr Franklin was a party needed for a just adjudication under La C art 641 The court overruled P the objection of nonjoinder and sustained the objections of no right of 3 action and no cause of action ruling that Mr Franklin and Mr Penn signed the Settlement and Release Agreement only as representatives of Franklin Realty Group L and The Lakes at Bluebonnet L respectively and C C Mr Franklin and Mr Penn did not personally obligate themselves for the obligations ofthe companies in the Settlement Agreement The Lakes at Bluebonnet L filed an answer in which it alleged C offset for sums Mr Franklin owes to The Lakes at Bluebonnet L for C condominiutn dues late charges and interest relating to several condominiums Mr Franklin owns The dues late charges and interest were initially owed to The Lakes at Bluebonnet Condominium Association Inc Condominium Association but the rights to those sums were later assigned to The Lakes at Bluebonnet L by the Condominium C Association The Lakes at Bluebonnet L also reurged its objection of C non joinder of a party alleging that the obligation under the Settlement and Release Agreement was joint not solidary and therefore Mr Franklin is a necessary party The reurged objection to the nonjoinder was overruled Franklin Realty Group L filed a motion for summary jugment C seeking to enfarce the Settlement and Release Agreement In support of its motion for summary judgment Franklin Realty Group L offered the C Settlement and Release Agreement and the affidavit of Mr Franklin Mr s Franklin affidavit states that The Lakes at Bluebonnet L has not paid C the 31 due under the Settlement and Release Agreement to either 00 580 him or Franklin Realty Group L and that Franklin Realty Group C C L does not owe the amounts claimed in offset by The Lakes at Bluebonnet L because Franklin Realty Group L has never owned C C a condominium at The Lakes at Bluebonnet and Franklin Realty Group 4 C L has never obligated itself in any way to the Condominium Association The Lakes at Bluebonnet L opposed the motion for summary C judgment arguing that because the Settlement and Release Agreement provided for payment to the Franklin Group which was defined in the document as including both Franklin Realty Group L and Mr Franklin C The Lakes at Bluebonnet L should be allowed to raise the defense of C offset arising from Mr Franklin obligation In support of its opposition s The Lakes at Bluebonnet L offered the affidavit of Chris Dumestre C managing agent of the Condominium Association which stated that Mr Franklin owed 31 to the Condominium Association and the 62 291 Condominium Association assigned the rights to this indebtedness to The Lakes at Bluebonnet L The Lakes at Bluebonnet L also offered C C the affidavit of Mr Penn stating that the debt owed by Mr Franklin to the Condominium Association totalling 31 had been assigned to The 62 291 Lakes at Bluebonnet L through a series of assignments C The court granted Franklin Realty Group L motion for s C summary judgment casting The Lakes at Bluebonnet L in judgment C and ordering them to pay Franklin Realty Group L 31 plus C 580 00 interest In ruling the court found that the Settlement and Release Agreement is clear and unambiguous and the only parties obligated under the Settlement and Release Agreement were Franklin Realty Group L C and The Lakes at Bluebonnet L Because the court concluded that the C Settlement and Release Agreement was clear that Mr Franklin was not a party obligated under the agreement the court held that The Lakes at Bluebonnet L could not claim an offset for obligations owed by Mr C Franklin The Lakes at Bluebonnet L appealed C 5 DISCUSSION A motion far summary judgment is a procedural device used to avoid a full trial when there is no genuine factual dispute scale Sanders v Ashland Oil Inc 96 p 51 Cir 6696 So 1031 1751 App La 97 20 2d 1034 writ 1911 10 2d denied 97 La 703 So 29 97 31 Summary judgment is properly granted if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law La C art 966 prior to amendment by P B 2012 La Acts No 257 In determining whether an issue is genuine a court should not consider the merits make credibility determinations evaluate testimony or weigh evidence Fernandez v Hebert 06 p 8 1558 La App 1 Cir 5 961 So 404 408 writ denied 07 La 9 964 07 4 2d 1123 07 21 2d So 333 A fact is material if it potentially insures or precludes recovery affects a litigant ultimate success or determines the outcome of the legal s dispute Anglin v Anglin OS p 5 1 Cir 6 938 So 1233 La App 06 9 2d 766 769 Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits Fernandez 06 at 8 961 So at 408 Suirunary judgment is favored 1558 2d and is designed to secure the just speedy and inexpensive determination of every action La C art 966 P 2 A In deternuning whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial s court determination of whether summary judgment is Sanders 96 at 7 696 So at 1035 1751 2d appropriate Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable 6 to this case Walker v Phi Beta Sigma Fraternity Rho Chapter 96 2345 p 6 1 Cir 12 706 So 525 528 App La 97 29 2d A person shall be joined as a party in an action when either 1 in his absence complete relief cannot be accorded among those already parties or 2 he claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either a as a practical matter impair ar impede his ability to protect that interest or b leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations La C art 641 P We do not agree with the trial court that the Settlement and Release Agreement is clear that the only parties obligated were Franklin Realty Group L and The Lakes at Bluebonnet L The Settlement and C C Release Agreement states that the initial lawsuit was filed by both Franklin Realty Group L and Mr Franklin and that this lawsuit would be C dismissed as part of the Settlement and Release Agreement The Settlement and Release Agreement further provides that The Lakes at Bluebonnet C L would pay commission on Units 504 and 1606 to Franklin Realty Group L and Mr Franklin C The Settlement and Release Agreement lists Mr Franklin as a party and Mr Franklin signed the Settlement and Release Agreement in his individual capacity as well as in his capacity as manager of Franklin Realty Group L C When an obligation binds one obligor to more than one obligee the obligation may be several joint or solidary La C art 1786 When one obligar owes just one performance intended for the common benefit of different obligees neither of whom is entitled to the whole performance the obligation is joint La C art 1788 An obligation is solidary when it gives each obligee the right to demand the whole performance from the 7 common obligor La C art 1790 Before a solidary obligee brings an action for performance the obligor may extinguish the obligation by rendering performance to any of the solidary obligees La C art 1791 A solidary obligation arises from a cleaz expression of the parties intent or from the law it shall not be presumed La C art 1796 One or more solidary obligees may sue to enforce a solidary right without the necessity of joining all others in the action La C art 643 P We find Mr Franklin is a party needed far a just adjudication under La C art 641 As such there remain outstanding issues of material fact P insofar as whether The Lakes at Bluebonnet L is entitled to an offset C for the debt against Mr Franklin that it acquired through an assignment from the Condominium Association Therefore summary judgment was inappropriate CONCLUSION The summary judgment in favor of Franklin Realty Group L is C vacated and the matter is remanded to the trial court for further proceedings Costs ofthis appeal are assessed to Franklin Realty Group L C VACATED AND REMANDED 8
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