Victus 1, Inc. D/B/A Benchmark Business Brokers v. Bradshaw's Body Shop, Inc. A/K/A Bradshaw's Auto Body

Summary

The Louisiana Second Circuit considered a breach-of-contract dispute arising from an exclusive business-broker listing agreement. The court held that the agreement was enforceable regarding the sale of the business but not regarding the later-included real property because the contract was not amended in writing as required by the agreement and Louisiana law. It affirmed the attorney-fee award, remanded for determination of the business-only value and commission, and denied additional appellate attorney fees.

Holdings

1. The clear and unambiguous listing agreement required Bradshaw to pay the agreed commission when it canceled or withdrew the listing during the listing term, even though the court considered the provision unduly onerous.
2. The agreement was unenforceable as to the sale of the real property and could not support a commission calculated on the combined business-and-real-property asking price because the parties never executed a written amendment incorporating the immovable property.
3. Victus was entitled to the contractually specified 10% commission attributable to the sale of the business, but the record did not establish a separate value for the business; therefore, the matter had to be remanded for a judicial determination of that value and the resulting commission.
4. The trial court properly awarded Victus attorney fees, expenses, and costs because Paragraph 9 required the nonprevailing party in an action enforcing the broker's rights to pay the prevailing party's connected expenses, including attorney fees.
5. Victus was not entitled to additional attorney fees for the appeal because Bradshaw's appeal was not frivolous.

Questions Presented

1. Whether the listing agreement authorized a commission based on the asking price including both the business and the associated real property.
2. Whether the agreement was enforceable as to the real property when the parties never executed a written amendment incorporating the property into the agreement.
3. Whether the trial court properly awarded attorney fees and expenses under the listing agreement.
4. Whether Victus was entitled to additional attorney fees for the appeal.

Disposition

reversed_and_remanded