TEC Realtors, Inc. v. Paglia Holdings, L.L.C.

TEC REALTORS, INC. D/B/A COLDWELL BANKER TEC REALTORS

v.PAGLIA HOLDINGS, L.L.C., DAVID M. PAGLIARULO AND STEPHANIE H. PAGLIARULO

NUMBER 2012 CA 1684

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Judgment Rendered: April 26, 2013

NOT DESIGNATED FOR PUBLICATION

Appealed from the

Twenty-Second 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

Richard A. Richardson

Madisonville, LA

Counsel for Plaintiff/Appellant,

TEC Realtors, Inc. D/B/A

Coldwell Banker TEC Realtors

Tom D. Snyder, Jr.

Rebecca E. Fenton

Stephen K. Conroy

Christine W. Marks

Metairie, LA

Counsel for Defendants/Appellees,

Paglia Holdings, L.L.C., David M.

Pagliarulo and Stephanie H.

Pagliarulo

BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, J.J.

WHIPPLE, C.J.

This matter is before us on appeal by plaintiff, TEC Realtors, Inc. D/B/A Coldwell Banker TEC Realtors ("TEC"), from a judgment of the trial court finding no breach of the listing agreement by the defendants, Paglia Holdings, L.L.C., David M. Pagliarulo, and Stephanie H. Pagliarulo, and thereby dismissing TEC's 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.¹ The agreement was accepted by Gena Hines, a real estate agent with TEC.² As set forth in the listing agreement, the effective date of the listing was September 28, 2006, the expiration date of the listing term was March 28, 2007, and the listed price of the property was $699,500.00.

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 of the 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 $648,000.00 and a "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.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 "Listing Agreement Extension Form" or any other document 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 TEC would not agree to re-list the property if the Pagliarulos did not agree to another reduction of the listing price. The Pagliarulos refused to agree to a further reduction of the 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-listing the property. At that point, Mr. Pagliarulo asked Ms. Hines if they were done, and Ms. Hines replied, "I guess so."

On April 25, 2007, the Pagliarulos accepted an offer to purchase the property from Beth Hamaker Hart and her husband, Richard Hart.³ 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. Delesdernier was under the impression that the listing agreement with TEC had been extended through the end of June 2007 based on Mr. Pagliarulo's December email, while the Pagliarulos were of the impression that the listing agreement expired on March 28, 2007, as stated in the agreement.⁴ Mr. Pagliarulo told Ms. Mears that he hadmet 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 TEC to remove the property from the MLS.⁵ As such, by Act of Cash Sale dated May 29, 2007, the Pagliarulos sold the home to the Harts for $625,000.00.

On November 19, 2007, TEC filed a petition against the Pagliarulos and Paglia Holdings, L.L.C. seeking damages in the amount of $27,000.00 with legal 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 agreed-upon commission as set forth in the listing agreement.

The Pagliarulos answered TEC's petition, setting forth affirmative 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, L.L.C, 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.L.C. and David and Stephanie Pagliarulo are barred by TEC's own breaches and/or non-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 matter was heard by the trial court on February 29, 2012. On March 21, 2012, the trial court issued written reasons for judgment, finding no breach of TEC's listing agreement by the Pagliarulos, and further finding that the Pagliarulos failed to prove the claims made in their reconventional demand against TEC. As such, by judgment dated April 9, 2012, the trial court dismissed TEC's petition with prejudice, dismissed the Pagliarulos' reconventional demand 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 extension of the listing agreement; (2) in finding that TEC did not "quote" the 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. Pagliarulo's 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.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. LSA-C.C. art. 1906. Where there is no "meeting of the minds" between the parties, there is no consent and, thus, no enforceable contract. See LSA-C.C. art. 1927; Howell v. Rhoades, 547 So. 2d 1087, 1089 (La. App. 1st 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 expected" that, at some point prior to the expiration of the listing agreement, he and Stephanie would be called into the office to sign an extension if that was TEC's intent, because he was being called in to TEC's office to sign different documents, whether it be a price reduction or type of disclosure, on a weekly basis to "dot the I's and cross the T's." Thus, he assumed that during the normal course of business, he and Mrs. Pagliarulo would have been required to sign an extension agreement 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 of the 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-list the property, but that it was a "deal breaker" if they would not reduce the price.

Ms. Hines testified that she believed that the listing had expired, and that she did not speak to Mr. Pagliarulo about extending the listing. Ms. Hines furthertestified that if there were any agreements made between the Pagliarulos and Ms. Delesdernier to extend that listing, she was not aware of it.

In its written...