John Gordon v. Century 21

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-654

JOHN GORDON

VERSUS

CENTURY 21

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, DOCKET NO. 15182
HONORABLE ALLEN A. KRAKE, PRESIDING

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, John D. Saunders, and Oswald A. Decuir,
Judges.

REVERSED.

James Slaughter
Attorney at Law
403 Second Street
Colfax, Louisiana 71417
(318) 627-5999
COUNSEL FOR PLAINTIFF/APPELLANT:
John Gordon

Gregory N.Wampler
Lemoine & Wampler
607 Main Street
Pineville, Louisiana 71360
(318) 473-4220
COUNSEL FOR DEFENDANTS/APPELLEES:
Century 21 Millennium and Paige Walker

COOKS, Judge.

STATEMENT OF THE CASE

The sole issue on this appeal is whether the Plaintiff, John Gordon, has a viable

cause of action against Century 21 and Paige Walker. The trial court found he did not

and dismissed his claim at the close of his case.

STATEMENT OF THE FACTS

John Gordon, is the owner of Lots 51 and 52 in Nantachie Acres subdivision.

Mr. Gordon purchased the two lots in 1999 for the sum of $5,700.00. In June 2000,

Manual A. Lopez and his wife listed Lots 54 and 55 in Nantachie Acres for sale with

Century 21. The Century 21 agent handling the sale of the lots was Jerry Carley, who

is now deceased. Mr. Carley inadvertently placed a For Sale sign on Lots 51 and 52,

lots owned by Mr. Gordon. On November 16, 2001, Gunmar and Tamala Agersten

purchased Lots 54 and 55 in Nantachie Acres from Manual A. Lopez and his wife for

the sum of $7,250.00. However, the For Sale sign remained on Mr. Gordon’s lots and

the Agerstens mistakenly believed they were the owners of Lots 51 and 52. The

Agerstens hired an individual to bush hog Mr. Gordon’s property and remove a

number of trees. In November 2001, the Gordons visited their property and saw

several trees had been removed. It was then the error was discovered. The Century

21 For Sale sign with Mr. Carley’s name, as agent, was still on the property.

Mr. Gordon filed suit against Century 21 Millennium and Paige Walker, as

owner and broker, for negligence in placing the sign on the wrong lot and causing the

removal of their trees. The estate of Jerry Carley was originally named as a

Defendant, but later dropped from the suit. Ms. Walker answered the Petition for

Damages, asserting the following:

....
4. The property listing expired on December 1, 2000 and the sign

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was removed from Mr. Lopez’s property. On August 6, 2001 the
property was re-listed for sale at $7,500.00. At this time to the best of
our knowledge, was when Mr. Carley went back out to the property and
inadvertently placed the sign on Mr. Gordon’s lots.
....

6. On November 6, 2001, The Argerstens made an offer on said
property for $7,000. Mr. Lopez countered this offer at $7,250 and the
Purchasers accepted the counter on November 9, 2001 since they felt the
land was more valuable because of the culverts which they saw.
....
8. Due to the neglect of the property owner, the Agerstens had to
have someone come out to bush hog and clean up the property in order
to make it a presentable homesite. Mr. Gordon himself stated to our
office that he had not even been out to view his property since before
June 1, 2000.

9. Once the property was cleaned up it was apparent that there
was a large dead oak tree still standing which needed to be removed.
While removing this tree, the tree man also removed 2 smaller Post Oaks
and 1 Wild Plum tree. All of these trees were situated in the perfect
location for the homesite.

10. Sometime after the closing our office was contacted by Mr.
Gordon who at that time had still not been to view his property. He
stated someone who lived in the area had met Mr. Agersten on the said
lot and told Mr. Agersten that the property belonged to Mr. Gordon.
They had then contacted Mr. Gordon to advise him of what had
transpired.

11. Upon viewing the lots, we discovered the property had been
greatly enhanced by the work, which had been completed thus far,
including bush-hogging, cleaning and removal of dead tree. We viewed
the ‘stumps’ of the three trees (2 Post Oaks and 1 Wild Plum) which
were removed from the ideal location for any homesite on the property.
We also took pictures of these trees and property.

12. Although an error was made in the wrong property being
bush-hogged and cleaned, with one dead tree and three others being
removed, we believe the property was not harmed and in fact actually
would have increased in value had Mr. Gordon chose to sell it while it
was in good condition. Since we are in the real estate profession, we
believe we are much more educated as to the value and saleability of a
property. We often recommend to land owners that they bush-hog and
clean up their lots prior to putting them on the market so as to bring top
dollar for their property. Therefore we reject the claim that the property
has suffered any damage worth severance. Nor has the property
decreased in value. We do agree to go and plant three trees (2 Post Oak
and 1 Wild Plum) on said property. Additionally, we would also be
happy to bring a dead one along with them if Mr. Gordon believes this

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will enhance his property as well.

This document was signed by Ms. Walker and filed in the record. Trial on the

merits was held on October 8. 2003 before the Honorable Allen A. Krake. At the

close of Plaintiff’s case, the Defendants moved for a directed verdict, which the trial

court granted, stating:

[T]he problem comes with this, with this is, that may indeed be a
right of indemnification from the Eggerstons [sic] to, vis-a-vis, Ms.
Walker, but that doesn’t create any privity between Mr. Gordon and Ms.
Walker, as Ms. Walker’s connection to this would be through the
Eggerstons themselves. Is . . . if they, if they . . . I’m not going to pass
on whether they would have a right of indemnification against Century
21 or not. However, I am going to grant the defendant’s motion for a
directed verdict in this case, as I don’t see, I don’t see a cause of action
against Ms. Walker, against Ms. Walker by Mr. Gordon.

We find the trial court erred in dismissing Mr. Gordon’s claims against Century

21 and Ms. Walker. Accordingly, for the reasons assigned below, we reverse the

decision of the trial court and remand for further proceedings.

LAW AND DISCUSSION

At the close of Mr. Gordon’s case, Century 21 and Ms. Walker moved for a

directed verdict.1 The trial court dismissed Mr. Gordon’s claim finding no cause of

action against Century 21 and Ms. Walker. He found Mr. Gordon could not recover

his alleged damages from Century 21 and Ms. Walker because there was no privity

between them. The trial court concluded the only possible claim that could be made

against Century 21 and Ms. Walker was based on indemnification and that claim

could only be asserted by the Agerstens.

Defendants, on appeal, urge this court to affirm the trial court’s decision and,

alternatively, argue even if Mr. Gordon has a cause of action against Century 21 and

1
A motion for directed verdict is proper in a case tried before a jury. The correct
procedural vehicle in a case tried before a judge is a motion for involuntary dismissal under
La.Code Civ.P. art. 1672.

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Ms. Walker, he has failed to present sufficient evidence at trial to defeat a motion for

involuntary dismissal. Specifically, the Defendants contend Mr. Gordon failed to

establish the identity of the individual who placed the For Sale sign on the property

or the identity of the individual who cut the trees.

No Cause of Action

In determining whether a plaintiff has stated a cause of action, we must

examine the face of the petition with supporting documentation. The well-pleaded

facts in the petition must be accepted as true. La.Code Civ.P. art. 931; Hawkins v.

Evangeline Bank & Trust Co., 01-1292 (La.App. 3 Cir.2/06/02), 817 So.2d 141 writ

denied, 02-658 (La. 5/24/02), 816 So.2d 308; City of New Orleans v. Bd. of Comm’rs,

93-690 (La. 7/5/94), 640 So.2d 237. This inquiry is designed to test the legal

sufficiency of the petition to determine whether the plaintiff is afforded a remedy in

law based on the facts alleged in the petition. Everything on Wheels Subaru, Inc. v.

Subaru South, Inc., 616 So.2d 1234 (La. 1993); Hawkins, 817 So.2d 141.

Mr. Gordon’s petition alleges he is the owner of Lots 50 and 51 in Nantachie

Acres Subdivision. In September 2001, Mr. and Mrs. Agersten saw a For Sale sign

on Lots 50 and 51, lots owned by Mr. Gordon. The sign belonged to Century 21.

Jerry Carley was listed as agent. The Agerstens agreed to purchase the lots. After the

sale was consummated, the Agerstens began to clear Mr. Gordon’s lots. When Mr.

Gordon visited his property he found it had been cleared of valuable trees. Mr.

Gordon’s petition alleges [d]ue to the negligence [of Century 21and Jerry Carley],

they are indebted to Plaintiff for value of trees which were removed and/or cut.” We

find the trial court erred in concluding Mr. Gordon has no claim against Century 21

and Ms. Walker. It is undisputed Mr. Carley entered Mr. Gordon’s property and

inadvertently placed the For Sale sign on his property. Mr. Carley’s name was listed

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as agent on the Century 21 sign. It is also undisputed the Agerstens because of Mr.

Carley’s actions, mistakenly believed they were the owners of Lots 50 and 51. The

Agerstens then hired an individual to bush hog and remove a number of trees on the

property. As an experienced real estate agent Mr. Carley owes a duty of reasonable

care in the listing and selling of real estate. But for the actions of Mr. Carley, Mr.

Gordon’s lots would not have been damaged. Mr. Gordon’s cause of action against

Mr. Carley is based on La. Civ.Code art. 2315 which provides, in relevant part:

Every act whatever of man that causes damage to another
obligates him by whose fault it happened to repair it.

If it is shown Mr. Carley is an employee of Century 21and Ms. Walker and not

an independent contractor, the agency would be responsible for his negligence under

Louisiana Civil Code Article 2320, which provides in relevant part:

Masters and employers are answerable for the damage occasioned
by their servants and overseers, in the exercise of the functions in which
they are employed.

We reverse the finding of the trial court that Mr. Gordon’s petition fails to state

a cause of action in negligence against Century 21 and Ms. Walker.

Involuntary Dismissal

In a bench trial, at the close of plaintiff’s case, the defendant may move for an

involuntary dismissal under La.Civ. Code art. 1672, which states in relevant part:

B. In an action tried by the court without a jury, after the plaintiff
has completed the presentation of his evidence, any party, without
waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal of the action as to him on the ground
that upon the facts and law, the plaintiff has shown no right to relief.
The court may then determine the facts and render judgment against the
plaintiff and in favor of the moving party or may decline to render any
judgment until the close of all the evidence.

A motion for involuntary dismissal “requires the judge to evaluate the evidence

and render a decision based on a preponderance of the evidence, without any special

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inference in favor of the party opposing the motion.” Davies v. Johnson Controls,

Inc., 36,498 p.4 (La.App. 2 Cir. 10/23/02), 830 So.2d 462, 466. Proof by a

preponderance of the evidence means that, taking the evidence as a whole, such proof

shows that a fact sought to be proved is more probable than not. Brown v. Bowler, 94-

667 (La.App. 5 Cir. 5/10/95), 659 So.2d 799. Moreover, undisputed evidence in the

record “should be taken as true to establish a fact for which it is offered.” Id. at 802.

On appeal, Century 21 and Ms. Walker urge this court to affirm the dismissal

of Mr. Gordon’s petition. The Defendants claim Mr. Gordon failed to present any

evidence at trial as to the identity of the individual who placed the sign on the Gordon

property or the identity of the individual who cut the trees. The Defendants point out

the Agerstens were never named as defendants in the suit and were not called to

testify. However, it appears there is no dispute as to who mistakenly placed the sign

on Mr. Gordon’s property and who mistakenly cut the trees. Moreover, these facts

were already in evidence prior to trial and the trial court should have taken notice of

the record. In answering Mr. Gordon’s petition for damages, Ms. Walker admitted

Jerry Carley was a broker for Century 21 Millennium at the time of the incident. She

further admitted it was Mr. Carley who “inadvertently placed the sign on Mr. Gordon’s

lots” and admitted “an error was made in the wrong property being bush-hogged and

cleaned.” Moreover, Ms. Walker identified the Agerstens as the parties who hired an

individual to “come out to bush hog and clean up the property in order to make it a

presentable homesite.” After the property had been bush hogged and trees cut, Ms.

Walker stated she went out to view the lots and took pictures of the felled trees. It is

Ms. Walker’s contention Mr. Gordon’s property was actually enhanced by the

wrongful removal of his trees. Under La.Civ.Code art. 1853 a “judicial confession is

a declaration made by a party in a judicial proceeding. That confession constitutes full

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proof against the party who made it.” Statements made by a party in an Answer to a

petition fall within the scope of this article. Norwell Equipment Co., Ltd. Partnership

v. Hardy, 2000-00934 (La.App. 3 Cir. 12/6/00), 773 So.2d 905.

At trial, Mr. Gordon testified he did not sell his two lots to the Agerstens nor did

he authorize anyone to cut the trees on his lots. He visited the lots in November 2001

and discovered several trees had been cut. He also observed a Century 21 sign on his

property with the name of Jerry Carley as agent. He later learned the Agerstens

mistakenly believed the property had been sold to them. Mr. Gordon testified he

received a call from an attorney representing Century 21. The attorney offered to

“make the property right.” Mr. Gordon testified he rejected the offer. When asked

whether he knew who had physically cut the trees, he responded that the Agerstens cut

the trees. The Plaintiff presented the testimony of Mark Talley, a certified appraiser.

Mr. Talley testified he inspected the property and observed several trees had been cut.

He also observed remnants and stumps from prior standing trees. The circumference

of some of the stumps was very large and there was brush and debris piled up in

various areas that had been bush-hogged. Mr. Talley testified:

In this particular case, I felt that the value was diminished based
on the information I received as to what type of trees had been removed,
and my understanding was that they were not removed by the owner of
the property, but by someone other than the owner, and that the trees that
were removed were indicated to me as being black walnut, hickory, and
I think some other hardwood trees that were to the client in particular
noteworthy, so I believed that it had an impact on the value as to the
client.

Based on our review of the record, there is ample evidence establishing Mr.

Carley mistakenly placed the For Sale sign on Mr. Gordon’s property. The trees were

cut without the owner’s consent and he suffered damages as a consequence.2

2
“Where there is a legal right to recovery, but the damages cannot be assessed exactly, the
court has reasonable discretion to assess the value based on all of the facts and circumstances of
the case.” Davis v. Culpepper, 34-736, p. 7 (La.App. 2 Cir. 7/11/01), 794 So.2d 68, 75. The

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It appears the only real dispute remaining is whether Mr. Carley is an employee

of Century 21 or an independent contractor. Ms. Walker testified Jerry Carley was an

independent contractor and not an employee of Century 21. She testified: “You can

only have one broker’s license in an organization, and then anybody that holds a

broker’s license would be under an independent contract. I mean, they’re just like any

other agent. An independent contractor is an agent.” However, Ms. Walker further

testified Mr. Carley was working as an agent for Century 21 at the time of the incident.

He held himself out to the public as an agent for Century 21. He advertised under the

Century 21 name. He was prohibited from working for any other agency during the

time he was working for Century 21. All real estate commissions due to Mr. Carley

went through a Century 21 account. At closing, his commission check was made out

to Century 21. Century 21 then issued a check to Mr. Carley for his commission, less

any commission owed to the agency for his work.

The issue of whether a real estate agent is an employee of the company or an

independent contractor was recently addressed in Hughes v. Goodreau, 01-2107

(La.App. 1 Cir. 12/31/02), 836 So.2d 649. The facts in that case are as follows.

Catherine and Frank Hughes, purchasers, sued Darrell and Judy Goodreau, sellers,

alleging a redhibitory defect in their home. Six months after purchase, their home

flooded following a heavy rain. The Goodreau’s filed a third party demand against

Prudential Properties, the real estate brokerage firm that handled the sale of the home.

court in Davis stated:
An owner of timber is entitled to recover damages for the loss of young,
unmerchantable trees, as well as the reforestation cost of the cut trees. Evans v.
B.R. Bedsole Timber Contractors, Inc., 521 So.2d 837 (La.App. 2d Cir. 1988);
Isdale v. Carman, 96-1435 (La.App. 3 Cir. 04/02/97), 692 So.2d 687.

Id. at 75. (See also, Olsen v. Johnson, 99-783 (La.App. 3 Cir. 11/3/99), 746 So.2d 740, where
this court affirmed the decision of the trial court awarding damages for the cut timber and
aesthetic value of the trees; for removal of debris; for emotional distress; and for expert witness
fees.)

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Prudential Properties alleged the agents, Broussard and Haber, who sold the home

were independent contractors and Prudential Properties could not be responsible for

their negligence. The court cited La.Civ.Code art. 2320 and stated the criteria for

determining liability on the part of Prudential Properties :

For an employer to be liable for the actions of an employee under
article 2320, the plaintiff must show that (1) a master-servant relationship
existed between the tortfeasor and the employer, and (2) the tortious act
of the tortfeasor was committed within the scope and during the course
of his employment with the employer. Brumfield v. Gafford, 99-1712,
p.7 (La.App. 1st Cir. 9/22/00), 768 So.2d 223, 227. Therefore, once it is
determined that an employment contract exists, for purposes of the
employer’s vicarious liability in tort, it is necessary to determine what
type of employment contract exists, i.e., whether the employee is a mere
servant or an independent contractor. See Vining, 482 So.2d at 693 n. 4.
The distinction between a mere servant and an independent contractor is
a factual determination decided on a case-by-case basis. Tower Credit,
Inc. v. Carpenter, 2001-2875, p. 6 (La. 9/4/02), 825 So.2d 1125, 1129.

Id. at 657.

The court in Hughes noted the contract between the agents and Prudential

Properties listed the agents as an independent contractors. However, the court found

while this designation may have an impact on the parties to the contract “it is not

binding or controlling on the rights of third persons. The rights of third persons are

controlled by the substance, rather than the title, of the contractual relationship

between the parties.” Id. at 659. Based on the evidence presented at trial regarding

the actual working relationship between the parties, the Hughes court found the agents

were not independent contractors, but were employees of Prudential Properties, and

Prudential Properties was vicariously liable under La.Civ. Code art. 2320 for their

negligence.

The trial court erred in granting the involuntary dismissal because all of the

evidence presented up to this pont indicates Mr. Gordon established his claim by a

preponderance of the evidence.

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DECREE

Based on the foregoing review of the evidence, we reverse the decision of the

trial court dismissing Mr. Gordon’s claim and remand for a completion of a trial on

the merits. Costs to await merits.

REVERSED AND REMANDED.

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