Dodson Creek, Inc. v. Fred Walton Realty Co., CA
| Decision Date | 09 September 1981 |
| Docket Number | No. CA,CA |
| Citation | 2 Ark.App. 128,620 S.W.2d 947 |
| Parties | DODSON CREEK, INC., Appellant, v. FRED WALTON REALTY COMPANY and Southall Investments, Inc., Appellees. 81-67. |
| Court | Arkansas Court of Appeals |
Hall, Tucker, Lovell, Alsobrook & Moudy, Benton, for appellant.
Boswell & Smith, P. A. by David E. Smith, Bryant, for appellees.
Appellees, Fred Walton Realty Company and Southall Investments, Inc., entered into an exclusive listing contract to sell, exchange, lease or rent land owned by appellant, Dodson Creek, Inc. Dodson Creek Inc. was trying to develop the property as a shopping center.
The exclusive listing agreement between the parties was for one year. The agreement also contained an automatic extension clause of 180 days unless the contract was cancelled in writing by Dodson Creek, Inc. It was no so cancelled, therefore, the listing contract expired October 14, 1978.
The contract also contained the following provision which is critical to this appeal:
(I)f the property be sold, exchanged, leased, rented or otherwise disposed of after the expiration of this contract to any person or organization to whose attention said property was brought through the efforts or services of Agent or on information secured directly or indirectly from or through Agent during the term of this contract, then Agent shall be conclusively presumed to be the procuring cause of such transaction, in which case Owner agrees to pay Agent the professional fee as set forth above.
During the term of the contract, appellees attempted to sell Safeway a site in the shopping center. The negotiations began in the summer of 1977 and a proposal was submitted through the local Safeway office to the home office in California on April 7, 1978. It was rejected by Safeway on April 25, 1978, and appellees did nothing after that date to sell Safeway a site in appellant's shopping center.
After appellees' listing contract expired on October 14, 1978, appellant entered into a listing contract with Danny Thomas Co. on November 22, 1978.
Safeway approved a site in another shopping center across the street from appellant's shopping center. About two weeks before Safeway was to close this deal (which was about two months after the expiration of the 180 day extension clause to the listing agreement between appellant and appellees), negotiations began between Danny Thomas Co. and Safeway representatives concerning the Dodson Creek, Inc. property. Safeway took an option on the Dodson Creek, Inc. property in August of 1979, the option was exercised in December of 1979, and the purchase was closed in January of 1980. Safeway purchased essentially the same site originally considered with changes in the size and price.
While negotiations between Safeway representatives and Danny Thomas Co. concerning the Dodson Creek, Inc. property were continuing, appellees notified the appellant by a letter dated April 17, 1979, that Safeway and twenty-five other businesses had been contacted by the appellees and were listed as reserved clients.
Appellant paid the Danny Thomas Co. a ten percent commission on the $310,920 sale to Safeway. Appellees demanded that they receive a ten percent commission which appellant refused to pay. Appellees filed suit against appellant for a ten percent commission alleging that they acted as the procuring cause of the sale.
Judgment was entered on a jury verdict in favor of appellees for the sum of $31,092. This appeal follows.
Appellant argued that the Court erred in not granting its request for a directed verdict, judgment notwithstanding the verdict and a new trial for appellees' failure to plead and prove a cause of action.
The proper prerequisite for both a directed verdict and a judgment notwithstanding the verdict was not fulfilled by the appellant. The court properly denied these motions.
At the close of appellees' case-in-chief, appellant made the following motion:
At the close of plaintiff's case and the plaintiffs having announced that plaintiffs rested, the defendant moves for a directed verdict.
At the close of the case, appellant made the following motion for a directed verdict:
The first thing is that the defendant would move the court to direct a verdict for the reason that plaintiffs have neither alleged nor proved a cause of action.
The trial court ruled that:
(T)he Motion for a Directed Verdict made by the Defendant at the close of the case was not sufficiently specific to apprise the court of the defendant's ground for making the motion and, therefore, does not constitute a sufficient prerequisite for the making of a motion for judgment notwithstanding the verdict.
Rule 50(a) of the Arkansas Rules of Civil Procedure states in pertinent part:
(A) motion for a directed verdict shall state the specific grounds therefore.... The motion may also be made at the close of all of the evidence and in every instance the motion shall state the specific grounds therefor.
The requirement that specific grounds be stated in a motion for a directed verdict is mandatory and failure of the motion to state the specific grounds relied on is in itself sufficient basis for denial of the motion. Svestka v. First Nat'l Bank in Stuttgart, 269 Ark. 237, 602 S.W.2d 604 (1980). Wright & Miller, Federal Practice and Procedure: Civil § 2533.
A motion for a directed verdict is a condition precedent to moving for a judgment notwithstanding the verdict. It must state the grounds on which it is made. Since it is technically only a renewal of the motion for a directed verdict made at the close of evidence, it cannot assert a ground not included in the motion for directed verdict. Wright & Miller, Federal Practice and Procedure: Civil § 2537.
The basis of appellant's motion for judgment notwithstanding the verdict was Ark.Stat.Ann. § 71-1302 (Repl.1979) which provides in part:
No recovery may be had by any broker or salesman in any court in this State on a suit to collect a commission due him unless he is licensed under the provisions of this act and unless such fact is stated in his complaint.
The matters raised in the motion for judgment notwithstanding the verdict had never before been mentioned in either of the motions for directed verdict and under the authority previously cited, were waived. Furthermore, the statute had neither been pled in answers, nor had it ever been raised in prior motions.
This very point has previously been ruled upon by the Arkansas Supreme Court in St. Louis Union Trust Co. v. Hammans, 204 Ark. 298, 161 S.W.2d 950 (1942). Act 148, Section 2, Acts 1929, (Ark.Stat.Ann. § 71-1302), was also in issue there. In that case, during the trial, the claimant, real estate broker had not pled or proved that he was a licensed real estate broker. The defendant, against whom a recovery had been made, on appeal for the first time, raised the provisions of the statute. The Supreme Court disposed of the issue as follows:
The statute referred to above was not invoked by appellants as a defense in the court below. In other words, it is raised as a defense for the first time in this court. This court ruled in the case of Bolen v. Farmers' Bonded Warehouse, 172 Ark. 975, 291 S.W. 62 (quoting syllabus 3), that: "Issues not raised by the pleadings nor by requested instructions will not be considered on appeal."
Because this matter is raised for the first time on appeal and the appellant did not specifically raise the statute in defense or in a motion to dismiss, this matter shall not be considered by the Court.
Next, appellant argued that the court erred in giving certain instructions to the jury over appellant's objections and refusing to give those instructions requested by appellant. The appellee offered the following instructions:
PLAINTIFFS' REQUESTED
Fred Walton Realty Company and Southall Investments, Inc., assert two separate grounds for the recovery of damages:
First: That the property was sold after the expiration of the contract to Safeway Stores, Incorporated, to whose attention said property was brought through the efforts or services of them or on information secured directly or indirectly from or through them during the term of the contract, and Second: That they were the procuring cause of the sale of the property to Safeway Stores, Inc.
It will be necessary for you to consider separately each asserted ground for recovery. If you find from the evidence that every essential proposition with respect to any one ground for recovery has been proved, then your verdict should be for Fred Walton Realty Company and Southall Investments, Inc., and against Dodson Creek, Inc.; but if you find from the evidence that any essential proposition with respect to any one ground for recovery has not been proved, then your verdict with respect to that ground for recovery should be for Dodson Creek, Inc.
By "procuring cause," it is meant that if, after the property is placed in the agent's hands, the sale is brought about or procured by the agent's advertisements or exertions, the agent will be entitled to a commission; or if the agent introduces the purchaser or discloses his name, to the owner, and through such introduction or disclosure, negotiations are begun, and the sale of the property is effected, the agent is entitled to his commissions, though the sale may be made by the owner.
The exclusive listing contract under which Fred Walton Realty Company and Southall Investments, Inc., seek to recover contains the following provision:
"(If) the property be sold, exchanged, leased, rented, or otherwise disposed of after the expiration[2 Ark.App. 134-A] of this contract to any person or organization to whose attention said property was brought through the efforts or services of Agent or on information secured directly or indirectly from or through Agent during the term of this...
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