Branch v. High Rock Realty, Inc.

• Decision Date: 02 July 2002
• Docket Number: No. COA01-715.,COA01-715.
• Citation: 565 S.E.2d 248,151 NC App. 244
• Parties: Willis Edward BRANCH, Plaintiff, v. HIGH ROCK REALTY, INC. and Frankie Byrd, individually and as agent of High Rock Realty, Inc. Defendants.
• Court: North Carolina Court of Appeals

565 S.E.2d 248

151 NC App. 244

Willis Edward BRANCH, Plaintiff, v. HIGH ROCK REALTY, INC. and Frankie Byrd, individually and as agent of High Rock Realty, Inc. Defendants.

No. COA01-715.

Court of Appeals of North Carolina.

July 2, 2002.

Max D. Ballinger, Greensboro, for plaintiff-appellant.

Karl N. Hill, Jr., Greensboro, for defendant-appellees.

MARTIN, Judge.

Plaintiff brought this action against High Rock Realty, Inc., (hereinafter "High Rock") and Frankie Byrd, alleging claims for breach of contract, breach of fiduciary duty, unfair and deceptive practices, fraud, constructive fraud, negligence, gross negligence, and punitive damages. Defendants answered, denying wrongdoing and asserting counterclaims for libel.

Evidence at trial tended to show that over the course of several years, plaintiff, Willis Edward Branch, had acquired several adjoining tracts of land on High Rock Lake in Davidson County, North Carolina. Plaintiff also desired to acquire Joan Craven's property (hereinafter "Craven property") which adjoined the tracts of land that he already owned. In August of 1998, plaintiff learned from a neighbor that Ms. Craven was planning to sell her property on High Rock Lake after the first of January, 1999. Shortly thereafter, Frank Fry, a real estate agent with defendant High Rock, contacted plaintiff in order to inform him that he had listed property belonging to Dr. Wilkins, which also adjoined plaintiff's property. Plaintiff bought the Wilkins property and in that transaction, Mr. Fry acted as agent for the seller.

While plaintiff and Mr. Fry were in contact regarding the Wilkins property, plaintiff employed defendant High Rock, and its agent, Mr. Fry, to find a renter for a house plaintiff owned at High Rock Lake. A renter was found and plaintiff paid defendant High Rock for its services.

On 12 October 1998, the day of the closing on the Wilkins property, plaintiff advised Mr. Fry that he had heard that the Craven property was going to be for sale and that he was interested in purchasing the property. According to both plaintiff and Mr. Fry, they entered into an oral agreement pursuant to which defendant High Rock would attempt to secure the Craven property for plaintiff to purchase. In return, defendant High Rock was to receive a sales commission either from Ms. Craven or from plaintiff, depending on whether High Rock acted as the seller's sub-agent or as agent for the plaintiff, as buyer. Mr. Fry advised plaintiff that he would ask defendant Frankie Byrd, another real estate agent with defendant High Rock, to assist in the matter, since he believed that Ms. Byrd knew Ms. Craven and may have previously worked with her on other matters.

On 13 October 1998, the day after the closing on the Wilkins property, Ms. Byrd agreed with Mr. Fry that she would contact Ms. Craven and ask her whether she was interested in selling her property. After talking to Ms. Craven, Ms. Byrd told Mr. Fry that Ms. Craven was not ready to sell the property at that time but would be ready to sell after the first of the year. Mr. Fry called plaintiff and informed him that Ms. Byrd had checked on the Craven property for him and confirmed that it would be for sale after the first of the year.

Subsequent to the 12 October 1998 agreement between plaintiff and Mr. Fry, plaintiff would periodically contact Mr. Fry; Mr. Fry would check with Ms. Byrd regarding the status of the property, and then Mr. Fry would report back to plaintiff. Mr. Fry and plaintiff had numerous conversations regarding the Craven property. Among the documented calls from plaintiff to Mr. Fry were the following: 21 October 1998; 30 October 1998; 14 November 1998; 27 December 1998; 15 January 1999; 28 January 1999; 31 January 1999; 2 February 1999; 3 March 1999; 20 March 1999; 29 March 1999; and 19 April 1999. Additionally, plaintiff testified that he spoke to Mr. Fry in person regarding the Craven property on 24 October 1998; 27 October 1998; and 12 December 1998. Mr. Fry called plaintiff to discuss the status of the Craven property on the following dates: 1 September 1998; 1 January 1999; 28 January 1999; 10 March 1999; 2 April 1999; and 19 April 1999. From 12 October 1998 through mid-April 1999, Ms. Byrd advised Mr. Fry that Ms. Craven was not yet ready to sell the property.

On 8 January 1999, Mr. Fry left employment with defendant High Rock and opened his own real estate company, Fox Creek Realty, Inc., (hereinafter "Fox Creek"). Mr. Fry testified that Ms. Byrd indicated that she would continue to attempt to secure the Craven property for plaintiff after Mr. Fry left the company. However, Ms. Byrd testified that she and Mr. Fry made no agreement that she would assist plaintiff in acquiring the Craven property. According to Ms. Byrd, at the time Mr. Fry left the agency, she told him that if she heard anything about the Craven property, she would let him know. Ms. Byrd testified that she merely returned Mr. Fry's calls and kept him informed about the Craven property as a courtesy to a fellow realtor.

On 1 February 1999, plaintiff signed a buyer agency agreement with Fox Creek which provided that Fox Creek was plaintiff's exclusive agent to assist plaintiff in the acquisition of real property in Davidson County, North Carolina, where the Craven property was located.

On 13 April 1999, Ms. Byrd and Olive Stutts, another agent for defendant High Rock, met Ms. Craven at the Craven property, at which time Ms. Craven signed an agreement to list her property for sale with defendant High Rock. At the request of Ms. Craven, the listing agreement was dated 19 April 1999 because Ms. Craven needed a few days to get some yard work and cleaning done before the property was shown. The listing agreement included the asking price.

On 17 April 1999, Ms. Byrd advised Mr. Fry by phone that Ms. Craven would be coming in on Sunday, 18 April 1999 or Monday, 19 April 1999 to list the property. Ms. Byrd informed Mr. Fry that she did not yet know the price Ms. Craven would be asking for the property and that the property could not be shown before Monday.

On the evening of Saturday, 17 April 1999, Ms. Byrd informed Randy and Susan Thomason that she would have a new listing at the lake on Monday. On Sunday, 18 April 1999, Ms. Byrd made an appointment with the Thomasons to show them the Craven property on Monday, 19 April 1999, at 8:00 a.m. On 19 April 1999, around 9:10 a.m., plaintiff called Mr. Fry to ask whether the property had become available. Mr. Fry told plaintiff that he did not know the status of the property since he had been unable to reach Ms. Byrd by phone that morning. Ms. Byrd returned Mr. Fry's call between 9:00 and 9:15 a.m. on 19 April 1999 and told him that the Craven property was available and that the asking price was $219,500. Mr. Fry immediately called plaintiff with that information. Plaintiff told Mr. Fry that he could go that day to look at the property but that it would be more convenient for him to go on Tuesday. Mr. Fry called Ms. Byrd and set up an appointment for plaintiff to look at the property at 9:00 a.m. on 20 April 1999.

Between 12:30 and 1:30 p.m. on 19 April 1999, Mr. Fry called Ms. Byrd to discuss another piece of property. Mr. Fry testified that during this conversation, Ms. Byrd told him that she had accepted a full price cash offer on the Craven property. Ms. Byrd, however, testified that she did not have an accepted offer by the Thomasons until between 3:30 and 4:00 p.m. on 19 April 1999. By negotiating the sale of the Craven property to the Thomasons, Ms. Byrd received the entire commission. If plaintiff had bought the property, Ms. Byrd would have been required to share the commission with Mr. Fry.

After Mr. Fry learned that there was an accepted offer on the Craven property, he notified plaintiff. On 20 April 1999, plaintiff met with Ms. Stutts to express his concern that the agency had not properly handled the sale of the Craven property. Ms. Stutts advised plaintiff that the Craven property had been sold and that there was nothing plaintiff could do about it.

On 23 April 1999, plaintiff went to Ms. Craven's home to deliver a letter that he had written explaining his efforts in attempting to purchase the Craven property and requesting that Ms. Craven refuse to sell her property to another purchaser. Plaintiff expressed to Ms. Craven that he felt the real estate agents had mishandled the sale of the property. Ms. Craven told plaintiff that she felt Ms. Byrd had handled the sale efficiently, ethically, and within the rules and guidelines of a licensed broker. Ms. Craven told plaintiff that he could make a backup offer. Plaintiff's backup offer contained certain conditions, including requirements for an inspection, an appraisal, and approval for a loan.

After the Thomasons acquired the property, plaintiff attempted to purchase the property from them. The Thomasons' asking price was $250,000. On 15 June 1999, the Thomasons received an offer from Mr. Fry acting on plaintiff's behalf for a lesser amount than the asking price. The Thomasons later sold the property to another party for $237,500 and plaintiff bought the property from that party for $248,000, which was $28,500 more than Ms. Craven's asking price.

There was never a written agreement between plaintiff and defendants regarding this matter. Ms. Stutts testified that it was the policy of defendant High Rock that all agency agreements be in writing. In addition, the company's policy required, when an agent left the company as Mr. Fry did, that all agreements that the leaving agent had...