Vogel v. 1 Percent Lists Franchises, LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JESSICA WYNNE VOGEL 	CIVIL ACTION
VERSUS 	NO. 25-631
1 PERCENT LISTS FRANCHISES,
LLC ET AL.
SECTION “R” (3)
ORDER AND REASONS
Before the Court is the motion of Jessica Wynne Vogel and One Percent
Lists Carolinas, LLC’s (“Lists Carolinas”) to dismiss the counterclaim and
third-party claim of defendant 1 Percent Lists Franchises, LLC’s (“Percent
Lists”). 1 For the following reasons, the Court grants in part and denies in part
the motion.
I. 	BACKGROUND
This case arises out of events related to a Franchise Agreement that
Vogel, and later Lists Carolinas, Vogel’s wholly-owned company, entered
with defendant Percent Lists. 	On February 5, 2021, Jessica Wynne Vogel
allegedly entered a Franchise Agreement with defendant Percent Lists, with
Vogel as the franchisee and Percent Lists the franchisor. 2 On June 23, 2021,
1 	R. Doc. 80.
2 	R. Doc. 78 at ¶ 11; R. Doc. 20, Ex. 2.
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Percent Lists and Lists Carolinas, Vogel’s company, allegedly entered a
Franchise Agreement that replaced the earlier agreement between Percent
Lists and Vogel.3 	The Franchise Agreement provides that Louisiana law
governs.4
In July 2023, Percent Lists allegedly wrote Vogel a letter purporting to
terminate 	the 	Franchise 	Agreement 	between 	Percent 	Lists 	and 	Lists
Carolinas.5 	Percent Lists alleges that Lists Carolinas failed to meet the
Minimum Performance Standards set forth in the Franchise Agreement. 6 It
further alleges that Vogel has continued to operate a real estate brokerage
following the termination of the Franchise Agreement in violation of the non-
compete provision of the Franchise Agreement.7
On January 14, 2024, Vogel filed this lawsuit in the Mecklenburg
County Superior Court. 8 Defendants removed the action to the United States
District Court for the Western District of North Carolina.9 	On March 31,
3 	R. Doc. 78 at ¶ 13; R. Doc. 20, Ex. 3.
4 	R. Doc. 20, Ex. 3.
5 	R. Doc. 78 at ¶¶ 23, 25.
6 	Id. at ¶ 26.
7 	Id. at ¶ 39.
8 	R. Doc. 1-4.
9 	R. Doc. 1.
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2025, the Western District of North Carolina ordered the transfer of the case
to this Court. 10
Following a rearrangement of the parties, Percent Lists filed an
amended counterclaim and third-party complaint. 11 	Percent Lists brings a
breach of contract claim against plaintiff/counter-defendant Lists Carolinas.
Percent Lists brings a breach of guaranty claim against third-party defendant
Vogel. 12 	Lists Carolinas and Vogel now move to dismiss the counter-claim
and third-party claim respectively. 13 Percent Lists opposes the motion. 14 The
Court considers the motion below.
II. 	LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a claimant must plead
enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)). A claim is facially plausible “when the [claimant]
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. The Court
10 	R. Doc. 27.
11 	R. Doc. 78.
12 	See R. Doc. 78.
13 	R. Doc. 80.
14 	R. Doc. 81.
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must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the claimant. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that the party’s claim is true. See id. It need not contain “detailed
factual allegations,” but it must go beyond “‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action.’” 	See id. (quoting
Twombly, 550 U.S. at 555). 	The claim must be dismissed if there are
insufficient factual allegations “to raise a right to relief above the speculative
level,” Twombly, 550 U.S. at 555, or if it is apparent from the face of the
complaint that there is an insuperable bar to relief, see Jones v. Bock, 549
U.S. 199, 215 (2007).
On a Rule 12(b)(6) motion, the Court must limit its review to the
contents of the pleadings, including attachments. 	Brand Coupon Network,
L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court
may also consider documents attached to a motion to dismiss or an
opposition to that motion when the documents are referred to in the
pleadings and are central to a party’s claims. Id.
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III. 	DISCUSSION
A. Breach of Contract
This Court applies Louisiana law, as agreed to by the parties in the
Franchise Agreement. The essential elements of a breach of contract claim
under Louisiana law are: “(1) the existence of a contract; (2) the party’s
breach thereof; and (3) resulting damages.” Padian v. Algiers Charter Sch.
Ass’n, Inc., 274 So. 3d 1266, 1268 (La. App. 4 Cir. 2019) (citing 110 S.
Jefferson Davis Pkwy, LLC v. Williams, 165 So. 3d 1211 (La. App. 4 Cir.
2015)). 	The Court, taking Percent Lists well-pleaded factual allegations as
true, finds that counter-claimant has sufficiently pled a claim for breach of
contract.
Percent Lists alleges that it entered into a Franchise Agreement with
Lists Carolinas on June 23, 2021, with an effective date of February 5, 2021. 15
Percent Lists has therefore pled the first element, the existence of a contract.
The 	Franchise 	Agreement, 	which 	counter-claimant 	references 	in 	its
amended pleading, included minimum performance requirements for Lists
15 	R. Doc. 78 at ¶ 13. The earlier effective date reflects that the Franchise
Agreement between Percent Lists and Lists Carolinas replaced the
Franchise Agreement between Percent Lists and Vogel, signed on
February 5, 2021.
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Carolinas.16 	Percent Lists alleges that Lists Carolinas did not meet these
minimum performance standards, thereby breaching the contract. 17 Percent
Lists has therefore pled the second element, breach. 	Finally, Percent Lists
alleges that it suffered damages as a consequence of Lists Carolinas’ breach. 18
Percent Lists has thus sufficiently pled all three elements of a breach of
contract claim.
In its motion to dismiss Lists Carolinas does not contend that Percent
Lists failed to allege the elements of a breach of contract claim. 	Instead, it
asserts that the Franchise Agreement provides a specific remedy for the
alleged breach. This argument has no bearing on whether Percent Lists has
sufficiently pled a breach of contract claim. Moreover, the argument is based
on a fundamental misinterpretation of the contract.
In support of its assertion, Lists Carolinas points to the Minimum
Performance Standards provision in Exhibit A of the Franchise Agreement,
which states:
You must meet or exceed the following sales goals:
Thirty five (35) transactions in 2021, ninety (90) transactions in
2022, one hundred and forty (140) transactions in 2023, two hundred
16 	R. Doc. 20 at 156. 	Percent Lists repeatedly cites to provisions in the
Franchise Agreement in its counterclaim/third-party claim. The Court
can look to the Franchise Agreement in deciding the motion to dismiss.
See Brand Coupon Network, L.L.C., 748 F.3d at 635.
17 	R. Doc. 78 at ¶¶ 26, 28.
18 	Id. at ¶ 32.
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and seventy (270) transactions in 2025 and maintain two hundred
seventy (270) or more in perpetuity. 	If these goals are not met then
Franchisor will obtain the right to sell one more franchise in that
county. . . .19
Lists Carolinas argues that the only remedy for a breach based on alleged
failure to meet performance standards is selling an additional franchise in
the county.
But this provision, and the remainder of the contract, provide no
support for the assertion that the remedy contemplated in this provision is
the sole remedy for breach by Lists Carolinas. The Minimum Performance
Standards section does not state that sale of an additional franchise is the
“sole” or “exclusive” remedy for such a breach. 	It is instead one available
remedy for such a breach, not the only remedy. 	Indeed, the Franchise
Agreement provides an additional remedy for this specific breach: the right
to terminate; and provides elsewhere in the Agreement that rights and
remedies are cumulative. Specifically, Section 16 of the Franchise Agreement
states that Percent Lists has the right to terminate the agreement upon
delivery of written notice if Lists Carolinas “fail[s] to meet or exceed the
Minimum Performance Standards in Exhibit A.” 20 	And Section 20.11
provides that “[t]he rights and remedies . . . are cumulative and neither you
19 	R. Doc. 20 at 156 (emphasis added).
20 	Id. at 137-38.
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nor we will be prohibited from exercising any other right or remedy under
this Agreement or permitted by law or equity.” 21 	Lists Carolinas reading of
the contract is therefore erroneous.
Percent 	Lists 	as 	counter-claimant 	has 	adequately 	pled 	the 	three
required elements of a breach of contract claim, and Lists Carolinas’
erroneous reading of the contract does not negate any of the elements.
Accordingly, the Court denies the motion to dismiss this claim.
B. Breach of Guaranty
Percent Lists alleges that Vogel personally guaranteed Lists Carolinas’
Franchise Agreement, including the non-compete provision.22 The Owner’s
Guaranty between Percent Lists and Vogel is a contract. 23 	Percent Lists
alleges 	that 	Vogel 	personally 	guaranteed 	each 	and 	every 	undertaking,
agreement and covenant set forth in the Franchise Agreement, and that she
agreed to be personally bound by, and personally liable for the breach of the
Franchise Agreement. 24 	Percent Lists alleges two material breaches of the
owner’s guaranty: (1) Percent Carolinas’ alleged material breach of the
Franchise Agreement; and (2) Vogel’s alleged breach of the Franchise
21 	Id. at 151 (emphasis added).
22 	R. Doc. 78 at ¶¶ 34-35.
23 	See R. Doc. 20 at 165-167.
24 	R. Doc. 78 at ¶ 34.
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Agreement’s non-compete provision.25 	And Percent Lists alleges that it
suffered damages as a result of the breach, including that the Franchise
Agreement contains a liquidated damages provision for breach of the non-
compete. 26
Vogel argues that Percent Lists claim against her should be dismissed
because the Franchise Agreement was modified to allow the behavior that
Percent Lists argues constitutes a breach of the non-compete agreement.
This ignores the first alleged material breach. 	Percent Lists has pled a
contract, breach thereof, and damages as to Vogel’s guarantee of Percent
Carolinas’ performance. 	And the Court has found that Percent Lists has
adequately alleged a breach of the underlying Franchise Agreement for
Percent 	Carolinas’ 	alleged 	failure 	to 	meet 	the 	minimum 	performance
standards. 	Percent Lists has thus adequately alleged breach of guarantee
based on Percent Carolinas’ breach of the Franchise Agreement, and Vogel
has not contested this showing. 	Percent Lists claim as it relates to this
alleged breach thus stands.
Vogel is correct as to the other alleged material breach, Vogel’s alleged
violation of the non-compete provision. As stated above, Vogel argues that
25 	Id. at ¶¶ 33-43.
26 	Id. at ¶¶ 37-41.
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the Franchise Agreement was modified to allow the conduct underlying
Percent Lists’ claim. At issue is the non-compete provision of the Franchise
Agreement and a modification to it in Exhibit B. 	Section 17.6, the non-
compete provision states:
Competitive Restrictions. 	Upon termination or expiration of this
Agreement for any reason whatsoever (and you have not acquired a
Successor Franchise), you and your owners agree that for a period of
two (2) years commencing on the effective date of termination or
expiration neither you nor any of your owners will have any direct or
indirect interest (e.g. through a spouse or child) as a disclosed or
beneficial 	owner, 	investor, 	partner, 	director, 	officer, 	employee,
consultant, member, Manager, representative or agent or in any other
capacity in any Competitive Business operating:
(a) 	At 	the 	Site 	or 	within 	the 	Protected 	Area 	or 	Target
Marketing Are, or through the Practice;
(b) 	Within twenty-five (25) miles of the Site or the Protected
Area or Target Marketing Area; or
(c) 	Within twenty-five (25) miles of any other 1 Percent Lists
Business or its Site or Protected Area or Target Marketing
Area, in operation or under construction on the later of the
effective date of the termination or expiration.27
Elsewhere, the Franchise Agreement defines “Competitive Business” as:
[A]ny business (other than a 1 Percent Lists Business operated under a
Franchise 	Agreement 	with 	us) 	or 	facility 	owning, 	operating 	or
managing, or granting franchise or licenses to others to do so, any real
estate or other business or facility that offers services related to real
estate brokerage or any other products or services that are the same or
similar to the Products and Services (including Other Services) then
offered by 1 Percent Lists Businesses, or any business that offers, sells
or advertises real estate brokerage services. 28
27 	R. Doc. 20 at 142.
28 	Id. at 124.
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Exhibit B amends section 17.6, the non-compete provision, by adding
the following language to the end of the section:
Notwithstanding the foregoing, none of the restrictions in this Section
17.6 shall apply (i) if you terminate the Agreement under Section 16.1
[Termination 	of 	Agreement 	By 	Franchisee], 	and 	(ii) 	Competitive
Business 	for 	purposes 	of 	the 	restrictions 	applying 	following
termination or expiration of this Agreement shall not include you
owning, operating or working as licensed broker for a business that
offers, sells or advertises real estate brokerage services.” 29
Section 16.1 pertains to the termination of the agreement by the franchisee
(Lists Carolinas/Vogel) due to a breach by Percent Lists. Section 16.2 covers
termination by Percent Lists.
Percent Lists argues that the “and” in the amendment serves to join the
two provisions, with (i) serving as a condition precedent to (ii). Vogel argues
that this would lead to an absurd result. 	Although the placement of “(i)”,
“(ii)”, and “and” indicates that the two provisions are joined, the result is
nonsensical. 	Section (i) provides that the non-compete restrictions of 17.6
shall not apply if the termination is under 16.1. 	If the non-compete
restrictions are already inapplicable in such a case, which is achieved by (i),
there is no need to limit the definition of “Competitive Business.” 	Instead,
the logical reading, which this Court holds is the correct one, of the
amendment is as follows: (1) None of the restrictions in this Section 17.6 shall
29 	Id. at 157.
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apply 	if 	you 	terminate 	the 	Agreement 	under 	Section 	16.1 	(franchisee
termination); and (2) Competitive Business for purposes of the restrictions
applying following termination or expiration of this Agreement shall not
include your owning, operating or working as licensed broker for a business
that offers, sells or advertises real estate brokerage services. 	See Matter of
Clark, 891 F.2d 111, 114 (Louisiana law dictates that contract terms should
not be construed “in such a manner as to lead to absurd or unreasonable
consequences.”).
Percent Lists alleges that Vogel breached her personal guaranty by
practicing real estate brokerage representing home buyers and sellers. The
Court finds that this activity is not prohibited by the non-compete provision
as amended by Exhibit B to the Franchise Agreement. Accordingly, the Court
dismisses Percent Lists’ claim for breach of guaranty against Vogel for that
action. 	Percent Lists’ claim for breach of guaranty against Vogel based on
other alleged breaches of the Franchise Agreement remains.
IV. 	CONCLUSION
For the foregoing reasons, the Court DENIES IN PART and GRANTS
IN PART Lists Carolinas and Vogel’s motion to dismiss Percent Lists
counterclaims. 	The Court denies the motion as to Count 1, breach of
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contract, against Lists Carolinas. The Court grants in part the motion as to
Count 2, breach of guaranty, only as to the claim that Vogel violated the non-
compete provision.
It is hereby ordered that Percent Lists’ claim against Vogel for breach
of guaranty based on her alleged violation of the non-compete provision is
DISMISSED. The motion is otherwise DENIED.
New Orleans, Louisiana, this _____ day of February, 2026.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
3rd
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