Blackburn and Co., Inc. v. Dudley

• Decision Date: 20 March 1989
• Docket Number: No. 1360,1360
• Citation: 298 S.C. 538,381 S.E.2d 918
• Court: South Carolina Court of Appeals
• Parties: BLACKBURN AND COMPANY, INC., Respondent, v. William G. DUDLEY, III and KTM Broadcasting Company, Inc., Appellants. . Heard

Page 918

381 S.E.2d 918

298 S.C. 538

BLACKBURN AND COMPANY, INC., Respondent, v. William G. DUDLEY, III and KTM Broadcasting Company, Inc., Appellants.

No. 1360.

Court of Appeals of South Carolina.

Heard March 20, 1989.

Decided June 26, 1989.

Mark H. Wall, of Robinson, Craver, Wall & Hastie, Charleston, for appellants.

Arnold S. Goodstein, Diane Schaffer Goodstein and Mary Ann Marwick, all of Goodstein & Goodstein, Summerville, for respondent.

PER CURIAM:

Blackburn and Company, Inc., sued William G. Dudley, III, and KTM Broadcasting Company, Inc., for breach of contract to pay a commission on the sale of a radio station. The jury awarded Blackburn a verdict of $20,000.01. The court granted Blackburn's motion for a new trial nisi additur. Unless Dudley and KTM agreed to a damage award of $91,000.00, the court ordered a new trial on the issue of damages. Dudley and KTM appeal. We affirm in part and reverse in part and remand.

Blackburn is a media brokerage firm which specializes in the sale and purchase of broadcast properties. KTM is a corporation that owned two radio stations in Charleston. Ansley Cohen is a former owner of KTM and father-in-law of William Dudley, the owner of KTM at the time material to this suit.

In October of 1981, Cohen telephoned Jay Bowles, a broker for Blackburn, seeking a buyer for KTM. In November of 1981, Cohen was appointed an agent for KTM and given powers to negotiate and sell the stations. Subsequently, he sent Bowles an employment agreement which Bowles signed. The agreement provided:

KTM hereby employs and appoints Blackburn as exclusive sales agent for broadcast properties named herein for a period of 30 days and thereafter until this agreement is revoked by either party by giving written notice 10 days prior to termination.

On April 12, 1982, Cohen telephoned Bowles and expressed his dissatisfaction with Blackburn's services. He stated that he wanted to consider other options. He requested an immediate cancellation of the exclusive listing, but offered to "protect" existing potential purchasers that Blackburn had already contacted. Bowles agreed.

To confirm the new arrangement, Bowles sent Cohen a letter which stated, in part:

As discussed by telephone today, it is agreed that effective with today's date, our exclusive representation of you and Bill Dudley in the proposed sale of [KTM] ... shall be terminated.

The letter went on to request "protection" for certain named prospects whom Blackburn had already contacted. Bowles testified that, on May 18, 1982, he sent a letter to Dudley noting that, Carl Marcocci, one of the people Blackburn talked with originally, had recently expressed an interest in KTM.

In the following months, Bowles discussed the sale of KTM with Marcocci. In July 1982, Bowles sent Blackburn's presentation material on KTM to Marcocci. In late August 1982, pursuant to Marcocci's request, Bowles arranged a meeting between Marcocci, Dudley and Cohen. In mid-October, Bowles received Marcocci's offer to purchase KTM. He testified he forwarded this offer along with its cover letter to Dudley.

In late November or early December 1982, Marcocci entered into direct negotiations with KTM. Marcocci and Dudley negotiated a final contract with the assistance of their attorneys. Neither Bowles nor anyone else from Blackburn participated in the negotiations for the final contract. On January 14, 1983, Marcocci and Dudley signed the final contract. In February, 1983, Bowles learned of the sale and notified KTM and Marcocci that Blackburn was due a 5% commission. When they refused to pay the commission, this suit followed.

I.

First, Dudley and KTM assert that the trial judge erred in failing to grant their motion for directed verdict or for judgment notwithstanding the verdict. Specifically, they argue the evidence of the existence of a binding contract between the parties was insufficient to submit the case to the jury.

In ruling on motions for a directed verdict and judgment notwithstanding the verdict, the trial judge must view the evidence and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. If there is any evidence to sustain the factual findings implicit in the jury's verdict, this court must affirm. Hilton Head Island Realty, Inc. v. Skull Creek Club, 287 S.C. 530, 339 S.E.2d 890 (Ct.App.1986).

Dudley and KTM maintain that the April 12th letter terminated the exclusive agency contract and that they are not liable for a commission on the subsequent sale. However, considered in light most favorable to Blackburn, there is evidence from which the jury could find (1) that the April 12th letter memorializes an oral agreement not only to terminate the exclusive listing, but also to allow Blackburn to continue to work with existing "protected" potential purchasers under the terms of the written contract; (2) that Marcocci was one of the original prospects contacted by Blackburn and was, therefore, a "protected" potential purchaser; (3) that the May 18th letter notified Dudley that Marcocci was a "protected" purchaser with an interest in the property; and (4) that Dudley and KTM breached the modified agreement by refusing to pay the commission after selling the station to a "protected" purchaser. We therefore find no error in the denial of appellants' motion for a directed verdict.

II.

Next, Dudley and KTM assert the trial judge erred in the admission of testimony from Bowles concerning the meaning and intent behind the April 12, 1982 letter. They contend such testimony constitutes inadmissible parol evidence.

In this case, Cohen's telephone call constituted an oral modification of the written agreement. See e.g., Evatt v. Campbell, 234 S.C. 1, 106 S.E.2d 447 (1959) (parties to a written contract may modify or supersede it by a subsequent oral agreement). The issue has been confused by Bowles's categorization of the agreement as a "nonexclusive listing." However, Cohen testified that in exchange for an immediate release from the contract, he gave Blackburn protection as to "any clients that [Blackburn] felt there was any possibility of him selling that he had contacted." Dudley's testimony confirmed the substance of the conversation. The trial judge did not err in admitting Bowles's testimony to show the terms of this oral modification. See e.g., American Oil Company v. Cox, 182 S.C. 419, 189 S.E. 660 (193...