CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA
NO. 07-1033

DIVISION B-15

DOCKET NO.

LUCY, LLC, LUCY HOLDINGS, LLC, MARY B. SONNIER,

GREGORY J. SONNIER AND LINDA MAYER
-VERSUSTHOMAS J. GIROIR, BROKER, REAL ESTATE PARTNERS, INC. D/B/A
RE/MAX REAL ESTATE PARTNERS, INC., CHRISTINE MITCHELL, RICE INSURANCE
SERVICES COMPANY AND KATHY TISDALE JOHNSON
FILED:_____________________________

_________________________________
DEPUTY CLERK

PETITION FOR DAMAGES

The PETITION FOR DAMAGES of Lucy L.L.C., Lucy Holdings, L.L.C.,
Mary B. Sonnier, Gregory J. Sonnier and Linda Mayer, through undersigned counsel, hereinafter
referred to as Plaintiffs, complaining of Thomas J. Giroir, Broker, Real Estate Partners, Inc. d/b/a
RE/MAX Real Estate Partners, Inc, Christine Mitchell and Kathy Tisdale Johnson, hereinafter
referred to as defendants, respectfully represent the following:

I. Jurisdiction and Venue

This Court has subject matter jurisdiction and Venue is proper in this Parish pursuant to
LSA-C.C.P. Article 42, as the incident took place in the Parish of Orleans, State of Louisiana.
PARTES
a)

Plaintiffs, Lucy, L.L.C. (Lucy), Lucy Holdings, L.L.C. (Lucy Holdings),

purchasers and now owners of The Uptowner, Inc. and the property located
at 438 Henry Clay Avenue, New Orleans, LA, are Louisiana Limited Liability
Companies, authorized to do and doing business in the state of Louisiana;

b)

Plaintiffs, Mary B. Sonnier and Gregory J. Sonnier (Sonniers), persons of

the full age of majority, domiciled in the state of Louisiana; in their personal
capacity as owners and member of Lucy, L.L.C. and Lucy Holdings, L.L.C.;

c)

Plaintiff, Linda Mayer (Mayer), a person of the full age of majority,

domiciled in the state of Louisiana;

d)

Defendant, Thomas J. Giroir (Giroir) a real estate broker, D/B/A

RE/MAX Real Estate Partners, Inc., licensed by the State of Louisiana Real
Estate Commission, a person of full age of majority, doing business at 4141
Veterans Memorial Blvd., Suite 100, Metairie, LA 70002-5597;

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e)

Defendant, Real Estate Partners, Inc. (RE/MAX), a domestic Louisiana

Corporation, doing business in the State of Louisiana and the Broker for
RE/MAX Real Estate Partners, Inc, licensed by the State of Louisiana Real
Estate Commission, doing business at 4141 Veterans Memorial Blvd., Suite
100, Metairie, LA 70002-5597;

f)

Defendant, Christine Mitchell (Mitchell), a real estate agent, licensed by the State
of Louisiana Real Estate Commission, a person of the full age of majority, domiciled
in the state of Louisiana, 5816 Laurel Street, New Orleans, LA, 70115, and currently
residing at 6033 Benjamin St. New Orleans, LA;

g)

Defendant, Rice Insurance Services Company, LLC (Rice), is a Limited

Liability Company, and the Errors and Omissions Insurer of the foregoing
defendants, doing business at 4211 Norbourne Blvd., Louisville, KY 40207,
and is under the jurisdiction of this honorable court.

h)

Defendant, Kathy Tisdale Johnson (Tisdale), a person of the full age of

majority domiciled in the state of Louisiana and under the jurisdiction of
this honorable court.

II. Cause Of Action

The cause of action, herein, results from a real estate transaction, wherein Mitchell, a
licensed real estate agent, with RE/MAX, alleged that she was helping Tisdale just as a friend, in
the sale of 438 Henry Clay Ave., to Lucy, and the business known as The Uptowner, Inc., to Lucy
Holdings. Multiple misrepresentations were made to plaintiffs, by Mitchell and Tisdale, inducing
the buyers to Act of Sale, which are specifically defined in the Allegations below. Although
specifically asked, on more than one occasion, Mitchell and Tisdale denied and failed to disclose that
Mitchell had a monetary interest in the sale. Both Mitchell and Tisdale denied that Tisdale was
paying a fee to Mitchell (RE/MAX) . Mayer is a licensed real estate broker. It is an industry
standard to disclose and for brokers to split any fees, related to a real estate transaction, wherein the
brokers participated. Mitchell and Tisdale deprived Mayer of her earned fee, through deceit and
misrepresentation. RE/MAX Real Estate Partners, Inc, is the sponsoring broker for Mitchell. Giroir
is the sponsoring broker for RE/MAX Real Estate Partners, Inc. Giroir and RE/MAX Real Estate
Partners, Inc. are responsible for the actions of Mitchell. Rice is the errors and omissions insurer for
Giroir, Mitchell and RE/MAX Real Estate Partners, Inc.

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III. Allegations
1.

On or about January 6, 2006, the parties commenced negotiation to purchase/sell parcels

of property known as 438 Henry Clay Avenue, New Orleans, and a business known as The
Uptowner, Inc. (Exhibit 1").

Mitchell, agent for RE/MAX falsely alleged that she was

representing the seller, Tisdale just as a friend. Mitchell also falsely alleged that RE/MAX was
not brokering the sale. And further, Mitchell falsely alleged that she had no monetary interest in the
sale, and that Tisdale, the seller, was not paying any fees to RE/MAX.
2.

Mitchell continually alleged that she was representing Tisdale just as a friend, and had no

monetary interest in the sale. In all probability, Mitchell lied about the fee because she did not want
for the sellers to know that she had a monetary interest. And further, Mitchell did not want to share
her fee with Mayer,. Both Tisdale and Mitchell adamantly maintained, to the plaintiffs, that
Tisdale
was not paying any commission/fee on the sale.
3.

Most recently it was learned that RE/MAX was paid a fee for the sale, which was

not disclosed, to plaintiffs, either verbally or in the purchase agreement. Mitchell failed to provide
any disclosure of the fee, at any time. Mitchells client, Tisdale, signed a purchase agreement that

clearly stated that it was a non-commission sale. Both Mitchell and Tisdale were aware, at all
pertinent times, that they were lying, to all concerned, when the agreement was signed.
4.

In the original Agreement to Purchase or Sell, Exhibit 1", the buyers were only interested

in buying the property and not the business. The sale was contingent upon the property being
properly zoned for Restaurant use, the ability to acquire Alcoholic Beverage License for the
business, and for C-1 Commercial use.

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The agreement was finalized, between the parties on February 3, 2006, by Counter Offer,

see Exhibit 2". Tisdale and Mitchell strenuously urged that Lucy Holdings buy the business
known as The Uptowner, Inc. since it was fully licensed for a restaurant and had all of its
Occupational License, Alcoholic Beverage and other permits. Then, subsequently, the contingency
clause for the zoning and permits, etc., written into the original agreement, could be removed as
satisfied.
6.

Tisdale and Mitchell presented the buyers with all of The Uptowner, Inc. permits, which

stated that The Uptowner, Inc. was licensed as a full table service restaurant. They assured the
buyers that there would be no problem with operating a restaurant at that location. The seller,
Tisdale, and the RE/MAX agent, Mitchell, were fully aware of the buyers intent, that the property
was being purchased for the purpose of housing a restaurant. Mitchell and Tisdale both maintained
that the neighbors were never a problem, when the plaintiffs asked. It was most recently learned
that Mitchell is a member and on the board of the Neighborhood Association. As such, Mitchell,

should have been well aware of the neighborhood attitude, relative to restaurants. Mitchell either
knew or should have known that the neighbors would not welcome Gabrielle Restaurant into the
neighborhood.
7.

By the terms of the Counter Offer, Lucy Holdings purchased 100% of the shares of

stock of The Uptowner, Inc. free and clear of all debt, in good corporate standing, having all
current liquor, occupational license and all other necessary permits and/or license necessary to the
business, and also including all trade fixtures, appliances, mirrors, etc., presently located on the
a
b
o
v
e
lsted premises (438 Henry Clay Avenue, 6205 and 6214 Laurel Street, Parish of Orleans, State of
Louisiana), with the exception of the piano and other personal items of the seller, which will be
specifically disclosed by seller, for the sum of $150,000, upon the terms of ALL CASH at closing,
(see Exhibit 2" paragraphs 2).

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On March 15th, 2006, Kathy Tisdale Johnson, represented by RE/MAX agent, Christine

Mitchell, sold the following pertinent property to Lucy: (See Exhibit 3" Bill of Sale Exhibit
B)
a. Any and all of the Assignors present and future rights, title and
interest in and to all of its equipment used in Assignors restaurant
/event business (Assignors Business);
b. ll good will, going concern value, trade names, including without
limitation, the name of The Uptowner, Internet domain names, and
trademarks used or useful in the operations of Assignors Business,
including trademark rights, logos, trademark applications, trademark
registrations, service marks, including all claims for infringement,
and all registrations therefore;

c. Any and all tools, inventory, equipment, computers, machinery,

supplies, spare parts, telephones, pagers and all other tangible
personal property utilized or held for use in connection with or used
or useful in the operation of Assignors Business, including without
limitation, signs and logos furniture, fixtures, equipment, stoves,
kitchen equipment, pots, pans, glasses, inventory, all stock in food, all
wines, liquors and all equipment in the bar, inventory of goods,
wares, merchandise, all other moveable property, improvements, and
all of the assets of the business known as The Uptowner owned by
Seller at the above location, and any and all moveables, including all
decorations, chandeliers, drapes and all property presently used by
The Uptowner;.......
9.

Immediately after the sale, the plaintiffs learned from Mitchell and Tisdale that all of the

kitchen appliances and many other moveables that Tisdale sold to buyers, belonged to someone
other than Kathy Tisdale.
10.

Mitchell had prior knowledge that the moveables being sold, to Lucy Holdings, listed in

the purchase agreement and in the Bill of Sale, belonged to someone other than the seller, Kathy
Tisdale Johnson. Mitchell participated with Tisdale, in making theses misrepresentations to buyers.
11.

Lucy Holdings returned all of the kitchen and other equipment, illegally sold to it, to the

rightful owners after the sale.

12.

At all pertinent time Christine Mitchell and Kathy Tisdale represented, to the buyers, that

Tisdale owned all of the property and the kitchen equipment listed in the purchase agreement and

the
Bill of Sale.
-513.

The above named defendants, Mitchell, Giroir, and RE/MAX, colluded with the seller,

Tisdale, in misrepresenting the material facts, relating to the sale of 438 Henry Clay Ave., and
the business known as The Uptowner, Inc.
14.

Mitchell, from the very beginning, represented to the plaintiffs that she was not acting in
t
h
e

capacity of an agent, for brokers Giroir and RE/MAX; that she was not receiving any compensation
relating to the sale; and, that she was just helping her friend, Kathy Tisdale, to sell the property.
15.

By accident, Mary Sonnier learned, when reviewing her cancelled checks, that the Lucy

contract deposit check, of $5,000.00, was deposited into a RE/MAX account, irrespective of the
allegations, by Mitchell, that RE/MAX had no interest in the sale of the subject property and
business. (See Exhibit A)
16.

Mitchell either knew or should have know of all misrepresentations made by Tisdale,

relative to: the business use description; the occupational license and permits; the zoning of the
property; and, the actual owner of restaurant fixtures and equipment, that were listed as part of
the sale in the purchase agreement and in the Bill of Sale.
17.

Giroir and RE/MAX, as brokers, are responsible for the actions of their agent, Mitchell.

Mitchell and her brokers, Giroir and RE/MAX, were being paid, directly by the seller, under the
table, to counsel, advise and assist the seller, in committing these deceptive acts of commission
and/or omission, in direct violation of LSA -R.S. 37:1455.
18.

Mitchell failed to make a list of any items to be excluded from the sale, especially those
i
t
e
m
s

that did not belong to Tisdale, but were listed as part of the items being sold in the purchase
agreement and in the Bill of Sale.
19.

Through discovery, it was conclusively learned that Mitchell, Giroir, and RE/MAX did,

in fact, received under the table compensation from the sale, which was paid directly to them, by

the seller, Tisdale. (See copy of check from Tisdale to RE/MAX, Exhibit 4")
20.

Tisdale and Mitchell, (RE/MAX) misrepresented material facts of the sale, to the plaintiffs.

The plaintiffs, to their detriment, relied upon those representations made by defendants.
-621.

The sale included all business license and permits for a restaurant, however, the

representations made by Tisdale and Mitchell, that the premises was licensed for a full table service
restaurant, is contradicted by the City of New Orleans Board of Zoning Adjustments.
22.

The foregoing defendants, Christine Mitchell, Thomas J. Giroir, Real Estate Partners, Inc.

Rice Insurance Services Company, LLC and Kathy Tisdale Johnson, are liable and justly and truly
indebted unto plaintiffs, for damages, special and exemplary damages, and all losses sustained by
plaintiffs, real and personal.
23.

Plaintiffs are entitled to damages, special damages and legal interest thereon, from the date

of judicial demand, in sufficient amounts to establish jurisdiction of this court; for all costs of these
proceedings, for attorney fees; and for any and all other general and equitable relief in the premises.
24.

The plaintiffs especially plead damages and special damages, which includes but is not

limited to, damages for loss of income, emotional distress, embarrassment, oppression, diminution
of business, slander and tarnishment of the brand and the name of Gabrielle Restaurant, under
LSA-C.C. Arts. 1906, et seq., 1953 et seq., 1967, 1998, 2315, 2316, 2320 and LSA -R.S. 37:1455.
23.

Plaintiffs also plead damages and are entitled to attorney fees under The Louisiana Unfair

Trade Practices and Consumer Protection Law, as set forth in La. R.S. 51:1401, et seq. based on
the unfair and deceptive acts, practices, and conduct utilized by the foregoing defendants.
24.

The aforesaid losses and damages resulting therefrom, which will be specified hereinafter,

were proximately and legally caused by the acts of misrepresentation and negligence of the
f
o
r
e
g
o
i
n
g

defendants. Plaintiffs sustained losses, real and personal, as a result of these acts of commission
and/or omission, and is entitled to recovery as provided by law.

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IV. Conclusion
WHEREFORE, plaintiffs, Lucy L.L.C., Lucy Holdings, L.L.C., Mary B. Sonnier,
Gregory J. Sonnier and Linda Mayer, pray that, after due proceedings had, this honorable
court find in favor of plaintiffs and against defendants, Christine Mitchell, Thomas J. Giroir, Real
Estate Partners, Inc., Rice Insurance Services Company, LLC, and Kathy Tisdale Johnson, based
upon the facts as alleged herein and as may be specifically shown at trial; and further, ecast
defendants, in judgment for those amounts of damages for all costs of these proceedings, attorney
fees associated with this suit, and for all other general and equitable relief as the law allows.

RESPECTFULLY SUBMITTED:

_______________________________
John D. Acomb, Bar No. 24008
Attorney for Plaintiffs
JOHN D. ACOMB, L.L.C.
6314 Fontainebleau Drive
New Orleans, LA 70125
Tel: (504) 861-3652
Fax: (504) 861-2832

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SHERIFF:

PLEASE SERVE THE FOLLOWING PARTIES

WITH PETITION FOR DAMAGES
DISCOVERY REQUESTS ARE ATTACHED TO PETITION

Defendant, Christine Mitchell, Personal Service Only

5816 Laurel Street, New Orleans, LA, 70115
OR 6033 Benjamin St. New Orleans, LA;
Defendants, Thomas J. Giroir, Broker and
Real Estate Partners, Inc.
Through Thomas J. Giroir, Personally, and as
Agent for Service of Process for Real Estate Partners, Inc.
4141 Veterans Memorial Blvd.
Suite 100, Metairie, LA 70002

Defendant, Rice Insurance Services Company, LLC

Through Agent for Service of Process
C T CORPORATION SYSTEM,
8550 UNITED PLAZA BLVD.
BATON ROUGE, LA 70809
Kathy Tisdale Johnson
22536 Hwy. 1088
Mandeville, LA 70448

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