Carmichael v. Agur Realty Co., Inc.
| Decision Date | 12 December 1990 |
| Docket Number | No. 07-CA-59264,07-CA-59264 |
| Citation | 574 So.2d 603 |
| Parties | Gil CARMICHAEL v. AGUR REALTY COMPANY, INC. |
| Court | Mississippi Supreme Court |
Larry L. Lenoir, Mize Lenoir & Laird, Gulfport, for appellant.
Jess H. Dickinson, Vaughn & Dickinson, Patrick Patronas, Eaton & Cottrell, Michael Prestia, Gulfport, for appellee.
Before ROY NOBLE LEE, C.J., and ROBERTSON and SULLIVAN, JJ.
I.
Today's appellant sails upwind and challenges a jury's finding that another had authority to bind him to a real estate broker's commission agreement regarding the purchase of a defunct Gulf Coast hotel. He complains as well of the generality of jury instructions regarding the measure of damages.
For the reasons set forth below, we affirm.
II.
First, our cast of characters:
(1) Agur Realty Company, Inc. is a Mississippi corporation organized in 1959, domiciled in Gulfport, Mississippi, and engaged in the general realty and brokerage sales business in the Mississippi Gulf Coast area. Agur was the Plaintiff below and is the Appellee here.
(2) William J. Scully is an adult resident citizen of Gulfport, Mississippi, and is a licensed realtor and broker specializing in the sale of commercial properties. Scully is an employee of Agur Realty and over the last six or seven years, has been involved in approximately eighteen sales of hotels and motels. At all relevant times Scully acted for Agur.
(3) Gil Carmichael is an adult resident citizen of Meridian, Mississippi, with substantial business interests in other communities, particularly including Tuscaloosa, Alabama. Carmichael was one of the Defendants below and is the sole Appellant today.
(4) J. Donald Craven, II, is an adult resident citizen of Tuscaloosa, Alabama, and for a number of years was the manager of the Stafford Inn in Tuscaloosa. Craven was one of the Defendants below but is not an appellant here.
For a number of years, Carmichael spent time in Tuscaloosa in pursuit of his business interests there and was a regular guest at the Stafford Inn. During this course of conduct, Carmichael became acquainted with Craven, and a friendship developed. Craven wished to buy and own a hotel which he would then manage and told Carmichael of this. Carmichael expressed interest in Craven's idea, and, in 1986, Carmichael and Craven came to an informal understanding that, if Craven found a hotel that seemed appropriate, Carmichael would give it a good look and, if the matter appeared feasible financially, Carmichael would consider investing in it with Craven. Carmichael gave Craven a copy of his financial statement, instructing that Craven use it discreetly but, particularly, in approaching possible hotel sellers, to assure them that he, Craven, had the backing of a substantial purchase prospect.
Enter the Howard Johnson's Hotel property on Highway 90 in Biloxi, Mississippi. The hotel was owned by McLean Enterprises of Springfield, Missouri. Its first mortgage holder was H. & J. Enterprises, a subsidiary of Bank of Boston ) with an outstanding indebtedness in the vicinity of 3.1 million dollars. Westinghouse Corporation held a second mortgage for some 5 million dollars.
Things were not well at the hotel and McLean determined to explore a sale. In early 1986, McLean Enterprises listed the hotel with Agur Realty for sale. Over the next five or six months, Scully, acting for Agur, explored possible sales, and in the Fall of 1986, became aware of Craven's interest. Acting on McLean's behalf, Scully In preparation for Craven and Carmichael's visit to Biloxi, Scully had updated himself on the hotel's status and found that, in addition to the substantial mortgage indebtedness, there were sundry back taxes owing as well as outstanding lease agreements covering personal property in the hotel. Scully gave up hope of selling the hotel for McLean.
mailed to Craven a "package" describing the property and its financial circumstances and advising Craven that the hotel was for sale, all of which piqued Craven's interest. Craven told Carmichael of Scully's approach. Craven contacted Scully and discussed plans for Carmichael and himself to come to Biloxi and meet with Scully and take a look at the property. The date set was for January 15, 1987, but, when Craven and Carmichael arrived, they found that H. & J., as first mortgage holder, had closed the hotel and was beginning foreclosure proceedings. Carmichael reports that he was there "just to look at it, to evaluate it and to learn more about hotel properties." He determined that he "couldn't handle it," as it was too large an investment
At the end of the January 15 meeting, Craven expressed a continuing interest in the hotel and asked that Scully keep him advised of developments. Agur's relationship with McLean being defunct, Scully agreed and talked with Craven from time to time. Independently, Scully approached Walker Tueci with the People's Bank of Biloxi in the latter part of February and asked that the bank consider financing a purchase of the hotel for Carmichael and Craven. Craven then wrote to Tueci and sent his and Carmichael's financial statements. The People's Bank declined the proposal.
Meanwhile, the foreclosure sale was scheduled for March 19, 1987. Craven and Scully were in regular telephone contact. By this time McLean was completely out of Agur's picture and, through Scully, Agur had begun to act for Craven and Carmichael, although Carmichael denies the latter. Scully recommended to Craven that Craven and Carmichael submit an offer to H. & J. to purchase the hotel for $3,100,000.00--the amount of the first mortgage. On April 12, 1987, one week prior to foreclosure, Craven (but not Carmichael) came to Gulfport and met with Scully in Agur's office. Craven represented that he and Carmichael were partners. Working feverishly, Scully and Craven began to assemble the structure of the offer. They procured the services of John C. Hoffman, a lawyer in Gulfport, and a Contract of The Sale And Purchase of Real Estate was prepared, using Agur's standard form. The proposed sales price was $3,100,000.00. Hoffman drafted a Real Estate Commission Agreement which, because of its importance, we set forth in full:
REAL ESTATE COMMISSION AGREEMENT
The undersigned hereby acknowledges that Jim Scully of Agur Realty Co. Inc. was the procuring agent in connection with the contract submitted by J. Donald Craven and Gil Carmichael for the purchase of the Howard Johnson Motel, Biloxi, Mississippi. The real estate commission set forth on said contract has been agreed to by J. Donald Craven and Agur Realty but has not been agreed to by Gil Carmichael. The said Gil Carmichael will review the real estate commission and agree or disagree by his signature on this agreement.
Witness our signatures this the 12th day of March, 1987.
I AGREE/DISAGREE WITH THE REAL ESTATE COMMISSION AS SET FORTH ON THE CONTRACT.
Assorted other documents were prepared and executed by Craven on March 12, 1987, and, together with a cover letter, Scully transmitted these to H. & J., Westinghouse and others in interest. Carmichael says that he knew of none of this at the time but acknowledges that, on March 14 on his return trip to Tuscaloosa, Craven stopped in Meridian and delivered the documents to Carmichael. Carmichael admits that he signed the Real Estate Commission Agreement but circled neither "AGREE" nor "DISAGREE" and claims he did this to demonstrate his faith in Craven. Carmichael insists Craven was not authorized to use the Commission Agreement. Parenthetically, a commission pursuant to the agreement based upon a percentage of the sales price contemplated would have amounted to approximately $41,000.00.
All of this came to naught--temporarily--as neither H. & J. nor any other party responded. Instead, H. & J. moved toward foreclosure. Craven came to Biloxi for the sale and the day before met with Scully. Neither Craven nor Scully had any idea that they might successfully bid on the property, but they wanted to make contact with the H. & J. officials and express their interest.
Unrelated to these events, in January, 1987, Biloxi businessman, Tommy Newman, learned through a newspaper article that the Howard Johnson Hotel had been closed. He contacted his accountant and financial advisor and began assembling information for a possible purchase offer. Newman also contacted Walker Tueci at the People's Bank concerning possible financing. At the time, Newman did not know of Craven and Carmichael's interest, nor did Craven and Carmichael know of Newman.
On March 19, 1987, H. & J.'s trustee convened the foreclosure proceeding. Some thirty people attended. Newman was present with his accountant, financial advisor and attorney. Scully and Craven were also there, and, during the course of the proceedings, Scully met Sherwood Bailey, a hotelier with whom he was acquainted. Scully introduced Bailey to Craven and advised of Craven's interest, and Bailey in turn introduced Scully and Craven to Newman. At foreclosure Newman bid $1,900,000.00, but H. & J. bid $2,000,000.00 and acquired title to the hotel, cutting off the interest of the mortgagor and prior owner, McLean Enterprises, as well as that of Westinghouse, the second mortgagee.
Immediately following the foreclosure, Scully urged Craven to contact Newman. The next morning at the Holiday Inn in Biloxi, Craven unexpectedly saw Newman, approached him and suggested that Newman should meet Carmichael. Newman agreed and two days later, on Saturday, March 21, Newman, Craven and Carmichael returned to the Coast and met Newman at the office of Sam LaRosa, Newman's accountant and financial advisor. In short order, Newman and Carmichael reached an agreement to buy the hotel and formed a corporation, NewCar Enterprises, Inc., to...
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...thereafter require an objection to the refusal unless we are to place a value upon redundancy and nonsense. Carmichael v. Agur Realty Co., Inc., 574 So.2d 603, 613 (Miss.1990) Duplantis, 708 So.2d at 1339-40. Relying on Duplantis, we will address this issue on the s 113. Edwards contends th......
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Hodges v. State
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Hodges v. State
...thereafter require an objection to the refusal unless we are to place a value upon redundancy and nonsense. Carmichael v. Agur Realty Co., Inc., 574 So. 2d 603, 613 (Miss. 1990). We agree with Carmichael, and find that Duplantis is not procedurally barred from review of this assignment. He ......