Centers v. Yehezkely
| Decision Date | 04 September 1985 |
| Docket Number | No. 15878,15878 |
| Citation | 706 P.2d 105,109 Idaho 216 |
| Parties | Marvin CENTERS, d/b/a Alpine Realty, Plaintiff-Respondent, v. Uriel YEHEZKELY and Erela Yehezkely, Defendants-Appellants. |
| Court | Idaho Court of Appeals |
Uriel Yehezkely and Erela Yehezkely, pro se.
Terry Michaelson (Verner & Michaelson), Nampa, for plaintiff-respondent.
The question presented by this case is whether a real estate broker, Marvin Centers, is entitled to a commission for producing a ready, willing and able buyer for property owned by Uriel and Erela Yehezkely. Following a bench trial, a magistrate entered judgment for the broker. On appeal, the district court affirmed. The property owners have appealed again. For reasons set forth below we, too, affirm.
In the magistrate division and before the district judge, the property owners were represented by counsel. During those stages of the proceedings, they advanced two principal lines of defense against the broker's claim. (1) They contended that certain prospective purchasers, including one Burke Jones, were orally excepted from the listing agreement and that the offer ultimately produced by the broker was from a corporation which in essence was Burke's "alter ego." (2) The owners also contended that the broker failed to perform under the listing agreement by timely presenting a valid full-price offer. In the instant appeal the owners, representing themselves, have presented five separately stated issues: (a) that there was no timely "full offer;" (b) that the document purporting to be such an offer was incomplete; (c) that the purported offer was not shown to the owners; (d) that the purported offer was somehow negated by an extension of the time deadline under the listing agreement; and (e) that the buyer produced by the broker actually was not willing to purchase the property on the terms indicated.
We begin by noting that the district court in this case functioned as an intermediate appellate court. It is well settled that when a second appeal is taken, the appellants may not raise issues in the higher court different from those presented in the intermediate court. E.g., Davenport v. Stratton, 24 Cal.2d 4, 149 P.2d 4 (1944); In re Gereke's Estate, 165 Kan. 249, 195 P.2d 323 (1948); Heron v. Gaylor, 49 N.M. 62, 157 P.2d 239 (1945); Pappas v. Hershberger, 85 Wash.2d 152, 530 P.2d 642 (1975). This rule is a corollary to the general principle recognized in Idaho, subject to exceptions not applicable here, that an issue presented on appeal must have been properly framed and preserved in the court below. E.g., Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983); Green v. Young, 102 Idaho 735, 639 P.2d 433 (1981).
In this case, it is readily apparent that some deviation exists between the issues advanced in the district court and those now presented to us. In particular, issue (d), as described above, appears to be newly raised; therefore, it will not be considered. The remaining issues, although stated differently from the questions presented to the district court, appear to share a common nexus of subject matter with issue (2)--whether the broker failed to present a timely and valid full-price offer. We now turn to that general subject.
It is undisputed that the owners engaged the broker to find a purchaser for property in Nampa known as the Sparks Hotel, at a price of $47,500. On the last day before the listing agreement expired, the broker presented an offer from an entity known as Longbranch, Inc., at a price of $44,000. The offer was rejected but the owners extended the time for the broker to obtain a full-price offer. Two days later, the broker met with principals of Longbranch, Inc., and obtained their initials on amendments to the offer, increasing the amount to $47,500. On the same day, owner Uriel Yehezkely visited the broker's agent at the agent's home. What transpired during that meeting is...
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Matthews v. Jones
...720, 723 (Idaho 1996) ("an issue not raised in an intermediate appeal will not be decided by a higher court."); Centers v. Yehezkely, 706 P.2d 105, 106 (Idaho Ct. App. 1985) ("It is well settled that when a second appeal is taken, the appellants may not raise issues in the higher court diff......
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...appellate court, the appellant may not raise issues different from those which he presented in the first appeal. Centers v. Yehezkely, 109 Idaho 216, 706 P.2d 105 (Ct.App.1985). Consequently, that issue will not be As to the second point, Ruiz argues that the evidence showed he left the doe......
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Hilt v. Draper, 19181
...We consider the issue of ratification because it is discussed in the district court's memorandum opinion. See Centers v. Yehezkely, 109 Idaho 216, 706 P.2d 105 (Ct.App.1985) (appellants may not raise issues before second appellate court not presented to intermediate For several reasons, Dra......
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