Simon v. Fasig-Tipton Co. of New York, FASIG-TIPTON

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: G. WILLIAM SWIFT, Jr.
• Citation: 524 So.2d 788
• Parties: J. Minos SIMON d/b/a Dixieland Farm, Plaintiff-Appellee, v.COMPANY OF NEW YORK, Fasig-Tipton Louisiana, Inc. and T. Mason Grasty (Dismissed 0
• Docket Number: FASIG-TIPTON
• Decision Date: 10 April 1986

Page 788

524 So.2d 788 J. Minos SIMON d/b/a Dixieland Farm, Plaintiff-Appellee,
v.
FASIG-TIPTON COMPANY OF NEW YORK, Fasig-Tipton Louisiana,
Inc. and T. Mason Grasty (Dismissed 04/10/86) and L.P. "Bud"
Thibodaux (Dismissed only in part 08/18/86),
Defendants-Appellees (Fasig and Grasty) Defendant-Appellant
(Thibodaux). No. 87-6. 524 So.2d 788 Court of Appeal of Louisiana,
Third Circuit. Feb. 3, 1988.
Writ Denied May 13, 1988.

Page 789

Lawrence N. Curtis, Michael F. Thompson, Lafayette, for plaintiff-appellee.

Perret & Castle, Henry C. Perret, Lisa B. Cusimano, Lafayette, for defendant-appellant.

Before GUIDRY, YELVERTON, JJ., and SWIFT, ^* J. Pro Tem.

G. WILLIAM SWIFT, Jr., Judge Pro Tem.

The judgment in this case was rendered on the respective motions for summary judgment filed by the plaintiff and defendant, and we are called upon to determine on this appeal whether there are any genuine issues of material fact in regard to the numerous issues in the suit.

J. Minos Simon, plaintiff, filed the suit against several defendants, of which only L.P. "Bud" Thibodaux remains. He alleged that the defendant, acting as plaintiff's agent in a thoroughbred horse business, violated his fiduciary duty to plaintiff on several occasions. In particular, plaintiff complains of a conversion of plaintiff's funds, misrepresentation of fractional ownership in a horse sold to plaintiff by defendant, and that defendant owes him $18,000.00 in unearned commission.

Defendant has denied all pertinent paragraphs of plaintiff's pleadings relative to the aforementioned allegations. He has also reconvened, alleging the existence of a partnership and/or joint venture with plaintiff and the failure of plaintiff to fulfill his obligations and responsibilities thereunder.

As stated, both parties filed motions for summary judgment. Defendant's motion was granted in his favor on two extraneous issues which plaintiff did not appeal. Plaintiff's motion for summary judgment was granted in his favor on the other issues in the case. Defendant appeals from that judgment citing eight assignments of error.

Finding that there are genuine issues of material fact relative to all issues raised on this appeal, we affirm in part, reverse in part and remand for further proceedings consistent with these findings.

Plaintiff, a prominent attorney in the Lafayette area, and defendant, a former board member of the Louisiana Thoroughbred Breeders Association, entered into an agreement for a mutual race horse business. Defendant had experience in purchasing, raising and breeding horses while plaintiff did not. However, plaintiff possessed the needed capital and the farm land for such a venture. This is as far as the two parties agree in this appeal. They disagree as to the terms of their agreement and the legal consequences thereof, when it was reached, the benefits each would derive therefrom and whether the defendant was to actually own an interest in the horses purchased and foaled. The record also clearly reflects their dispute as to all other issues in the suit except those in that part of the judgment in favor of defendant.

Plaintiff alleged, among other things, the following in his supplemental and amending petitions:

(1) That in July 1981, defendant approached plaintiff and agreed to represent him in all future transactions of plaintiff's horse farm known as Dixieland Farm, for which the defendant was to receive 10% of the profits from the sale of all horses purchased and all foals born in this agency status;

(2) That defendant was plaintiff's fiduciary agent and as such attempted to convert monies produced by a sale of two horses owned by plaintiff;

(3) That defendant violated his fiduciary agent status in allegedly overpricing two breeding seasons in a stallion by

Page 790

$10,000.00 and receiving this amount in a kickback from the owner of the stallion;

(4) That defendant misrepresented to plaintiff the authority to sell to plaintiff a one-half interest of a fractional share in the stallion, Honest Moment, that defendant owned;

(5) That defendant received from plaintiff $18,000.00 as advancements in commission which were unearned; and

(6) That defendant, through his breaches of his fiduciary duty, owes plaintiff additional monies and should be held to render an accounting thereof.

Defendant set forth, among others, these particulars in his responsive pleadings:

(1) Defendant denied all pertinent allegations of fraud, kickbacks and fiduciary violations of the alleged agent status;

(2) That plaintiff approached defendant in September 1982 and offered to form a partnership and/or a joint venture with defendant;

(3) That plaintiff was to provide the land and the capital while defendant was to provide his time, knowledge and experience;

(4) That plaintiff and defendant entered into a verbal agreement wherein defendant would obtain a 10% interest in each horse purchased by plaintiff and in the foals born;

(5) It was agreed that defendant would receive 50% of the profit realized as a result of sales of horses purchased by plaintiff for speculative reasons, and has been denied a percentage of these profits actually realized;

(6) It was agreed that defendant would receive 50% of the awards given to plaintiff and defendant, who were listed as co-breeders, by the Louisiana Breeders Association;

(7) That plaintiff failed to remunerate defendant for his 10% ownership interest in horses sold;

(8) That plaintiff converted funds belonging to defendant relative to his share of the aforementioned...