256 So. 3d 1146
La. Ct. App.2018Background
- Benchmark (business broker) and Smitty's Pizza entered a 12‑month exclusive listing agreement (Feb 21, 2016) with a 10% commission based on the asking price ($499,000) and a clause requiring written, signed modifications.
- Smitty's president exchanged texts with Benchmark's agent; agent texted on Nov 29, 2016, “I’m not going to ask that you honor the contract…,” and Smitty’s did not expressly accept being released; later, on Feb 13, 2017 (eight days before the listing expired), Smitty’s texted that she decided to keep the business and withdrew the listing.
- Benchmark continued marketing; it later asserted Smitty’s breached by withdrawing during the term and demanded the 10% commission ($49,900) plus attorney fees under the contract.
- Benchmark sued; it moved for summary judgment attaching the agreement, affidavits, listing, and text screenshots. Smitty’s defended, arguing oral/text modification, waiver, and that no buyer was produced at the asking price.
- The district court granted summary judgment for Benchmark for $49,900 plus $7,500 attorney fees and costs; Smitty’s appealed.
Issues
| Issue | Plaintiff's Argument (Benchmark) | Defendant's Argument (Smitty's) | Held |
|---|---|---|---|
| Whether parties validly modified the written listing agreement by oral/text conduct | No modification occurred; the contract requires written, signed amendments; no signed writing exists | Texts and conduct modified or terminated the agreement (agent’s Nov 29 text & subsequent conduct) | No modification: texts did not show mutual agreement to amend and no signed writing existed |
| Whether text messages constitute a writing "signed by both parties" under the contract | Even if texts are writings, they do not satisfy the contract’s signed‑writing requirement and did not evidence agreement to amend | Text messages are writings and the parties’ identifiable names satisfy signature requirement | Texts were not sufficient to amend the contract; parties did not agree to modify the Agreement in the texts |
| Contract interpretation/wavier: whether ambiguous terms should be construed against broker or whether agent waived enforcement | Contract is clear (no ambiguity); no waiver proven | Provision should be construed against broker; agent’s text waived enforcement or created reasonable belief of release | Contract language clear; no ambiguity; waiver/modification not established by record |
| Damages and attorney fees: whether Benchmark was entitled to commission based on asking price and whether fee award was reasonable | Commission due upon withdrawal during listing term per Paragraph 3; attorney fees recoverable under Paragraph 9 | Commission improper because no buyer produced at asking price; attorney fee amount unsupported | Commission of $49,900 due based on asking price; $7,500 attorney fee not an abuse of discretion |
Key Cases Cited
- Milazzo v. Harvey, 245 So.3d 346 (La. App. 2 Cir. 2018) (standard of review for summary judgment)
- Peironnet v. Matador Res. Co., 144 So.3d 791 (La. 2013) (summary judgment de novo review authority cited)
- Grosjean v. Grosjean, 50 So.3d 233 (La. App. 2 Cir. 2010) (written contracts may be modified orally or by conduct, burden to prove modification)
- Jackson v. City of New Orleans, 144 So.3d 876 (La. 2014) (definition of material fact and genuine issue for summary judgment)
- Volentine v. Raeford Farms of La., LLC, 201 So.3d 325 (La. App. 2 Cir. 2016) (standard for appellate review of attorney‑fee awards)
- Cox v. O'Brien, 147 So.3d 809 (La. App. 2 Cir. 2014) (frivolous‑appeal sanction standards)