Estate of Salicos v. Richard

ESTATE OF GEORGE SALICOS, ET AL. v. TREVOR WYATT RICHARD

21-48

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

June 9, 2021

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2016-997

HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

CANDYCE G. PERRET JUDGE

Court composed of Candyce G. Perret, Sharon Darville Wilson, and Charles G. Fitzgerald, Judges.

AFFIRMED.

Annette Fuller Roach

Michael Roach

Roach & Roach, APLC

Post Office Box 1747

Lake Charles, LA 70602

(337) 436-2900

COUNSEL FOR PLAINTIFF/APPELLANT:

Estate of George Salicos through Karen Salico, Administratrix

Karen Salicos

Walter Marshall Sanchez

The Sanchez Law Firm, L.L.C.

1200 Ryan Street

Lake Charles, LA 70601

(337) 433-4405

COUNSEL FOR DEFENDANT/APPELLEE:

Trevor Wyatt Richard

PERRET, Judge.

This appeal originates from a suit for breach of contract between George Salicos, deceased, and Trevor Richard, Appellee-Defendant. After a trial on the merits, the trial court rendered judgment in favor of Appellee, dismissing Appellants' demands with prejudice. Thereafter, the trial court denied Appellants' motion for new trial. On appeal, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND:

George Salicos owned and operated Cajun Deelite, LLC ("Cajun Deelite"), which contracted with local businesses to provide and service frozen drink machines. Based on the record, Mr. Salicos came into some financial troubles and decided to sell Cajun Deelite's equipment and customer accounts. It is undisputed that Mr. Salicos and Appellee signed a Bill of Sale on January 28, 2011, wherein Mr. Salicos sold, and Appellee agreed to buy, "46-Frozen Drink Machines, Replacement parts, Syrup Inventory, [and] Existing Customer Accounts (Goodwill)" for a total of $125,000.00. Appellee was to make an initial $5,000.00 payment and then pay the balance in thirty $4,000.00 installments due on the first of each month, beginning on March 1, 2011. The parties agree that the initial down payment as well as payments until July 1, 2011, were made.

The parties further agree that an Addendum to Bill of Sale was signed on July 1, 2011, providing for the potential amendment of the original Bill of Sale. In the Addendum, the parties acknowledge that $104,000.00 remains as a balance owed by Appellee. However, in the Addendum Mr. Salicos offers Appellee a discount of $30,000.00 if he "can obtain the necessary financing from a lending institution, be that institution a public bank, public lender, or from private financing to pay the total sum of new price." The Addendum continues: "New saleprice if Buyer is able to obtain financing will be Seventy-Four Thousand Dollars ($74,000)." It is undisputed that Appellee was unable to obtain financing for $74,000.00. These facts, as mentioned above, appear to be all that the parties agree on regarding the sale.

Mr. Salicos died in February of 2012, without notifying his wife of his financial troubles or that he sold Cajun Deelite's equipment and customer accounts to Appellee. Following his death, Mrs. Salicos found two notes indicating Appellee owed Mr. Salicos either $50,400.00 or $50,600.00 for the January 2011 sale. The notes were not dated. After a demand was made on Appellee, Mrs. Salicos initiated this lawsuit for breach of contract as the appointed administratrix of Mr. Salicos's estate, as well as in her own right.

Appellee answered the petition and set forth the affirmative defense of extinguishment. Appellee asserted that Mr. Salicos approached him regarding the sale of Cajun Deelite equipment and accounts due to his financial distress. Appellee further asserted that, after the Bill of Sale was entered, it was Mr. Salicos who again approached Appellee in July 2011, seeking to discount the sale price to quickly obtain funds. In addition to the Addendum, Appellee asserts that his father, Preston Richard, executed a loan document with Mr. Salicos, lending him $8,000.00. When Appellee could not get approved for the discounted sum, Mr. Salicos provided Appellee a banking contact. Thereafter, Appellee was approved for financing but could not obtain the discounted sale price Mr. Salicos sought. Despite this fact, Appellee asserted that on October 28, 2011, Mr. Salicos accepted a $32,000.00 check,¹ $3,500.00 in cash,² and permitted Appellee to pay off his debtto Preston Richard in the amount of $19,000.00,³ all in full satisfaction and extinguishment of the Bill of Sale. Appellee concludes: "The actions of defendant on October 28, 2011[,] not only extinguished his obligation due Salicos originating in the Addendum to Bill of Sale, but also extinguished the obligations due Preston Richard by Salicos."

Appellee further testified at trial regarding the Loan Agreement, which was entered into evidence. Under the agreement, Preston Richard would loan Mr. Salicos $8,000.00 "along with [Appellee's] payment of Four Thousand Dollars ($4,000)." Appellee testified that he does not recall if the $4,000.00 was in addition to the July 1st monthly payment that was due. The Loan Agreement continues:

Borrower [Mr. Salicos] agrees that upon [Appellee's] obtainment of financing for the total sum of Seventy-Four Thousand Dollars ($74,000) from lending institution which will be paid to [Mr. Salicos] to satisfy the ADDENDUM TO BILL OF SALE. Borrower shall give to Lender [Preston Richard] the total sum of Nineteen Thousand Dollars ($19,000) in a single payment within two weeks of receiving funds from lending institution.

If financing is not obtained by [Appellee] from lending institution by any fault of Borrower, Borrower shall in return be responsible for full payment in the amount of Twelve Thousand Dollars ($12,000) to Lender. Borrower agrees that he has fully disclosed all information pertaining to BILL OF SALE with [Appellee].

Although Appellee alleges that he paid Mr. Salicos's debt to Preston Richard in the sum of $19,000.00, he testified that this total was for the $12,000.00 discussed in the last paragraph of the Loan Agreement plus $7,000.00 that Mr. Salicos owed his parents for a prior unpaid loan.

Mrs. Salicos testified at trial that she was unaware of her husband's financial problems and unaware of any agreements between Mr. Salicos and Appellee until after Mr. Salicos's death. On the day of his death, Mrs. Salicos found two undated notes on his office desk. One note stated, "If you . . . collect from Trevor [Appellee] it will clear all my debt's." That note continued on page 2, "I sold Cajun Deelite machines Feb 2011 for 125,000.00[.] Trevor has paid $74,400[.] He owes $50,400.00[.] I told him if he paid off total loan I would give him 30,000 off[.] He did not pay off, still owes $50,400.00." The second note admitted Mr. Salicos's financial troubles and acknowledged the Bill of Sale entered with Appellee: "About four years ago I got behind. Since then I have been losing money. I have went as far as I can go. I sold Cajun Deelite to Trevor last January, he has paid on acc. Still owes 50,600." The note continues to detail additional accounts and policies that Mrs. Salicos may be able to collect on to pay off Mr. Salicos's debt and their house. Mrs. Salicos further testified that Appellee came to her house after Mr. Salicos's death and admitted that he owed $19,500.00 for the sale, though Appellee denied he made this admission.

Following a bench trial, the trial court concluded Appellee did not breach his contract with Mr. Salicos. In written reasons, the trial court concludes, "The Court believes that the Sale of the Business and attachments was completed in October, 2011." The trial court's reasons are telling of the confusion in this business transaction:

The consistent, common theme in all of the transactions between Salicos and Richard is that Salicos initially wanted, and contracted to sell his "business" to Richard for $125,000.00. But in relatively short order Salicos himself sought to alter the terms of the Bill of Sale apparently because of a rapidly deteriorating financial collapse in his personal/business life. Within six months he sought to reduce the agreed upon sale price to hasten the receipt of cash which ultimately led to Richard, by October, apparently paying to, or for Salicos, $32,000.00 directly, $19,000.00 for repayment of the loans to Richard's family, and yet another $3,500.00 ($3,300.00 by check and $200.00 cash). There were no further payments to Salicos beyond October, 2011.

It is without dispute that Richard has not paid Salicos or his estate $125,000.00. How much was actually paid by Richard to, or on behalf of, Salicos is uncertain. Salicos' record keeping, if you will, was suspect, vague[,] and confusing. Even the final "accounting(s)" submitted into the record at the trial reflect uncertainty of exactly how much Richard owed at the time of Salicos' death - one has $50,400.00, the other $50,600.00. Salicos #2 additionally reflects "TREVOR HAS PAID $74,400.00".

Not only is this court tasked with determining if in fact the plaintiff has proven that the defendant, Richard, owes a remaining debt to the Estate of George Salicos on the Bill of Sale executed on January 28, 2011, but whether or not the Bill of Sale - contract - had been altered by subsequent Agreements, either written or oral, either reducing the amount owed, or even completely eliminating same.

The burden of proof is on the plaintiff to prove more probable than not that a debt owed by the defendant, Richard is due and owing and in what amount. That Richard did not pay Salicos all of the $125,000.00 agree upon is without dispute. Has Richard paid Salicos prior to his death what Salicos wanted to satisfy the debt at the time of their last transaction, say in October, 2011? This court believes so, more probably than not.

(Footnotes omitted.)

Appellants filed a motion for new trial, asserting that the trial court improperly placed the burden of proving the amount owed on Appellants; thus, a new trial was warranted. The trial court denied the motion on May 14,...