Fields Realty & Ins. Co. v. Teper
| Decision Date | 04 January 1983 |
| Docket Number | No. 64943,64943 |
| Court | Georgia Court of Appeals |
| Parties | FIELDS REALTY & INSURANCE CO. v. TEPER et al. |
R. Jeffrey Morrison, Atlanta, for appellant.
Roman A. DeVille, William D. Barwick, J. Corbett Peek, Jr., Atlanta, for appellee.
Appellant Fields Realty & Insurance Company (hereinafter "the realtor") brought suit against appellee Philemore Teper (hereinafter "the seller"), the former owner of the Cabana Apartments in Atlanta, and individually against appellees Rosa Dziewienski, David Berkman and Gerald Blonder (hereinafter "the buyers"), who purchased the apartments. The realtor sought money damages in the amount of a real estate broker's commission allegedly due from the sale, claiming it was the procuring cause of the sale and that appellees conspired to defraud it from its earned commission. The case is before this court following the granting of appellees' motion for summary judgment.
The record discloses that the only agreement between the seller and the realtor was that the seller would sell the apartments to a buyer procured by the realtor if that buyer would pay $2,500,000 and the attendant costs, including the realtor's commission. The agreement was oral and nonexclusive. It was made in May, 1979 at the time the realtor approached the seller with a prospective buyer. The prospective buyer was Tempo Properties (hereinafter "Tempo"), a partnership consisting of appellees Dziewienski, Berkman and Blonder.
On May 21, 1979 the realtor submitted to the seller Tempo's offer of $2,430,000, with $250,000 cash at closing, assumption of the seller's mortgage and creation of a long-term second mortgage. The proposed contract also provided that the seller would pay the realtor's commission. The seller rejected the offer.
In December, 1979 the buyers (either individually or as Tempo) offered the seller $2,500,000, with $300,000 at closing, assumption of the seller's mortgage and the balance on a short-term promissory note. The buyers further agreed to pay all costs except the seller's attorney fees and property transfer tax. The seller accepted the offer and the sale was consummated on January 1, 1980. Attorney Dave Gershon of the law firm Gershon, Ruden, Pindar and Olim handled the transaction for the buyers and the buyers paid the law firm a $50,000 finders fee. The realtor received nothing.
1. It is clear from the record that the realtor procured the ultimate buyers of the property. However, in order for a realtor to be entitled to a commission, it must either effect the sale or be the procuring cause of the sale. Newman v. James M. Vardaman & Co., Inc., 162 Ga.App. 878(3), 293 S.E.2d 462 (1982) and cits. Whether a realtor was the procuring cause of a sale is generally a question of fact for the jury but, when faced with a motion for summary judgment supported by answers to interrogatories, admissions, depositions and affidavits countering the claim, the realtor must make a threshold showing to survive the motion. Code Ann. § 81A-156(e) (now OCGA § 9-11-56(e)).
In the case at bar, the seller and buyers showed, by answers to interrogatories, a deposition and affidavits that the realtor made no contact with any of them after May, 1979. They further showed that the negotiations for the sale were handled by attorney Gershon. They also showed, in addition to the tenuous contractual relationship between the realtor and the seller, that the realtor did not have a contract with the buyers, either individually or as Tempo. Faced with such a showing, it was incumbent upon the realtor to make a showing in rebuttal that negotiations between itself and the buyers...
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B & R REALTY, INC. v. Carroll
...the Carrolls after that. Thus, Norton Properties' claims of procuring cause and conspiracy must fail. See Fields Realty & Ins. Co. v. Teper, 165 Ga.App. 28, 30(2), 299 S.E.2d 74 (1983). Because it never performed services for the Carrolls, Norton Properties does not have a quantum meruit cl......
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Christopher Inv. Properties, Inc. v. Cox, A95A1182
...a matter of law since an entitlement to a commission is a necessary element of her conspiracy claim. See Fields Realty & Ins. Co. v. Teper, 165 Ga.App. 28, 30(2), 299 S.E.2d 74 (1983). As to the quantum meruit claim, Sagl contends it is well settled that if a real estate agent fails to prev......
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Cartel Realty v. SOUTHERN BEARINGS & PARTS
...and punctuation omitted.) Kraft, supra; Gibbs v. Nixon, 154 Ga.App. 463, 466, 268 S.E.2d 670 (1980). 4. Fields Realty & Ins. Co. v. Teper, 165 Ga.App. 28, 29(1), 299 S.E.2d 74 (1983). 5. See id. at 30, 299 S.E.2d 74. 6. Id. 7. Compare Pate v. Milford A. Scott Real Estate Co., 132 Ga.App. 49......
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