ERA Commander Realty, Inc. v. Harrigan

• Decision Date: 02 October 1987
• Citation: 514 So.2d 1329
• Parties: ERA COMMANDER REALTY, INC. v. Dwight HARRIGAN, et al. 85-1208.
• Court: Alabama Supreme Court

Page 1329

514 So.2d 1329

ERA COMMANDER REALTY, INC. v. Dwight HARRIGAN, et al.

85-1208.

Supreme Court of Alabama.

Oct. 2, 1987.

A. Danner Frazer, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant.

Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Dwight Harrigan.

Jere Austill, Jr., of Austill, Austill & Austill, Mobile, for appellee Frank Caron.

Richard L. Thiry, of Thiry, Maples & Brunson, Mobile, for appellees Howard A. Yeager, Yeager Realty Corp., Bachar Realty Corp., and Glen Bachar.

ADAMS, Justice.

Plaintiff, ERA Commander Realty (hereinafter "Commander"), appeals from a summary judgment in favor of all defendants, and from the denial of its own motion for a partial summary judgment. We affirm.

FACTS

Commander is a real estate company doing business in Gulf Shores, Alabama. Defendant Dwight Harrigan owned a large piece of real estate in Gulf Shores. Commander and Harrigan entered into a listing agreement giving Commander the right to list the property for sale. During the contract period, Harrigan personally sold the property to another defendant, Frank Caron, through Caron's real estate agents, Glen Bacher of Bacher Realty Corporation (hereinafter "Bacher") and Howard Yeager of Yeager Realty Corporation (hereinafter "Yeager").

The basis of Commander's appeal is that the listing agreement granted Commander the exclusive right to sell the property and that Harrigan breached that contract when he sold the property himself. Commander sued Harrigan for breach of contract, and sued Caron, Bacher, Bacher Realty, Yeager, and Yeager Realty for intentional interference in contractual or business relations. Commander also claims fraud and conspiracy to commit fraud, against all the defendants.

After filing an answer denying all claims, each defendant filed a separate motion for summary judgment. Oral arguments on the motions were heard together, but due to time constraints, Commander's oral argument was not heard. The court instructed Commander to file a brief, but set no time limit. Summary judgment was granted by the Court before Commander's brief was filed.

Commander subsequently moved to set aside the summary judgment in its favor of the defendants, and moved for a partial summary judgment in its favor on the issue of whether the contract granted Commander an exclusive right to sell the property. The court acknowledged its error in granting summary judgment prematurely, and it heard oral arguments on the merits. By order of July 10, 1986, the court refused to set aside the summary judgment, thus denying Commander's motion for a partial summary judgment.

Commander now appeals, claiming that the lower court erred in granting the summary judgment.

After listing the property "For Sale--By Owner," Harrigan was contacted by Commander's agent, John Crawford about entering into a listing agreement. Harrigan expressed his concern over listing the property with an agent. Since he had some interested parties and had dealt with a person named Carroway, to whom he had already given an oral option to purchase, he believed that he could sell the property himself. Commander wanted the listing and because of the concerns expressed by Harrigan, Commander amended its standard listing agreement and presented the modified agreement to Harrigan on August 12, 1983. Harrigan was reluctant, but finally signed the modified agreement on November 4, 1983.

The pertinent language of the unmodified listing agreement is as follows:

In consideration of your agreement to list my ... real property in your office in your customary manner and to use your efforts to procure a purchaser, I ... hereby grant to you the exclusive, irrevocable right and privilege to sell my ... real property....

1. I ... agree to pay you a cash commission of 8 percent of the gross amount of any sale, agreement to sell, or exchange, which may be negotiated during the existence of this contract. The term 'sale' shall be deemed to include any exchange or trade to which I ... consent. In the event of an exchange or trade, you are permitted to represent and receive compensation from both parties.

2. If during the existence of this contract the property is sold by you, or me/us, or anyone else, or if you produce a purchaser ready, willing and able to purchase the property; or if within 60 days after the expiration of this contract, a sale is made to any person who was shown the property or to whom it was presented for sale, I ... agree to pay you a commission as stipulated in next above paragraph unless such sale is made through a licensed real estate broker of this State who receives a sales commission of not less than the amount provided in this contract; provided that you make known to me/us in writing the names of anyone to whom you have shown or presented the property.

3. This contract shall expire five months after date hereof (4 April 1984).

Only paragraph 2 of the standard agreement was modified or amended. The addendum was attached to the form agreement and states as follows:

This Addendum shall modify and supersede the provisions of Paragraph 2 of the Sales Authority, dated 4 November 1983, granted to ERA Commander Realty, Inc., by Dwight Harrigan as follows:

2. The payment of commission shall be paid to ERA Commander Realty only in the event that Commander produces a purchaser ready, willing and able to purchase the property; or if within sixty (60) days after expiration of this contract a sale is made to any parties who were shown the property, or to whom it was presented for sale, either directly or indirectly through personal sales efforts, referral, advertising or other means, by Commander, I ... agree to pay you a commission as stipulated in Paragraph 1; provided that Commander makes known to me ... in writing the names of any parties to whom Commander has shown or presented the property.

After obtaining the listing, Commander began to try to sell the property. On November 25, 1983, Commander obtained permission to remove the "For Sale--By Owner" signs and replaced them with Commander signs. It also placed the property on the Multiple Listing Service and began a letter-writing campaign to prospective buyers. On the same day, Harrigan's secretary spoke to John Crawford, the Commander agent, and referred Sherrill Real Estate to Commander. According to Crawford, Harrigan's secretary also told Crawford that Harrigan "had instructed her to refer Sherrill's and all other inquiries to [Commander]."

On December 3, 1983, Commander had its first response to the signs that had been placed on the property when Blalock Realty, which was working with Johnson-Rast & Hays in Birmingham, contacted Commander. Several other realtors contacted Commander over the next several months, including Galen Hammond, an agent of Bacher Realty. The conversation was limited to Crawford's informing Hammond that Commander had a listing on the property and that the asking price was $2,600,000.00. Later, Hammond saw the president of Commander in a store and congratulated him on the listing.

Commander worked with several prospective buyers through Blalock Realty and Johnson-Rast & Hays in Birmingham, but no offers were received until approximately February 10, 1984. On that day Commander received an offer from the principals of Investment Properties, Inc., a corporation that had not yet been formed at the time of the offer, through its real estate agent, Tom Archer. Harrigan rejected the offer by Investment Properties, Inc., because he thought it was speculative.

On February 27, 1984, Harrigan's attorney contacted Crawford and informed him that an offer had been made directly to Harrigan. As a result, Crawford contacted Archer and informed him of the other offer. On the following day, Harrigan informed Crawford that he was planning to meet with Caron on February 29 and that Caron had made a cash offer.

Prior to and following this conversation, Harrigan was working toward an agreement with Caron, who was represented by his real estate agents, Bacher and Yeager. Bacher had initially learned about the property sometime in 1982 or 1983, when Harrigan came to his office and asked him to place a sign for him. Bacher then informed Yeager about the land. Bacher and Yeager regularly took Caron to Gulf Shores to look for investment properties. In May or June of 1983, before the property was listed with Commander, Bacher and Yeager informed Caron about Harrigan's property. At that time, Caron had no use for the property.

However, sometime in February 1984, Caron became interested in the property again. With his agents, Bacher and Yeager, Caron contacted Harrigan directly about the property. Caron made a cash offer of $2,500,000.00. Harrigan counter-offered approximately $2,600,000.00, which Caron accepted. Yeager took the real estate purchase contract, on a Bacher form, to Harrigan's attorney on February 27, 1984. The contract stated that the purchase price was $2,610,000.00, that there would be $10,000.00 in earnest money, and that Bacher and Yeager were to receive a commission constituting 10 percent of the purchase price. Caron was prepared to close within a few days, so Harrigan began the necessary proceedings to sell the property.

Knowing of the pending offer by Caron, Commander was pushing Investment Properties, Inc., to make a revised offer. On February 28, 1984, Commander received word from Archer that he was going to make another offer. Commander received from Archer a $3,000,000.00 offer on February 29, and immediately tried to contact Harrigan. At that time, Harrigan was in Mobile preparing to close the deal with Caron. Commander told Harrigan's secretary the specifics of the offer and later contacted Harrigan. The offer was contingent on a 60-day feasibility study, another 60 days for obtaining a national hotel franchise, and an additional 90 days to obtain a development loan, a total of seven...