Kingston Development Co., Inc. v. Kenerly
| Decision Date | 18 June 1974 |
| Docket Number | No. 1,No. 49006,49006,1 |
| Parties | KINGSTON DEVELOPMENT COMPANY, INC. v. Daniel B. KENERLY et al |
| Court | Georgia Court of Appeals |
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, R. Lawrence Ashe, Jr., Frederick S. Middleton, III, Atlanta, for appellant.
Troutman, Sanders, Lockerman & Ashmore, John J. Dalton, Hamilton Lokey, Charles M. Lokey, Atlanta, for appellees.
Syllabus Opinion by the Court
'Career case' is a term used by lawyears to describe litigation which contains complex claims and lengthy legalities to the extent that extraordinary amounts of time and effort are necessarily required of the advocates in representing their clients. Such appellation applies to the instant situation. Consider merely numbers: there were three plaintiffs, two defendants, one rejected intervenor, and eight attorneys officially listed as representing these six parties. The result is an appellate record of 176 pages with an index thereto of 71 entries and a nine-volume trial transcript totaling 1,668 pages covering testimony of 19 witnesses and more than 70 documentary exhibits. In behalf of their clients the able attorneys have furnished this court with nine excellent briefs. Additionally, in fulfillment of their advocacy of their clients' cause, they have referred us to the record and extensive briefs in another case involving some similarities recently ruled upon by a different division of our court.
Personal prefatory pensive ponderings, 1 such as the foregoing recognizably play partial part in this court's eventual decision. Yet when an opinion is limited in length when compared to such a numerical situation, the parties and their advocates who have put so much into their cause may not realize that the participants on the bench have likewise devoted much worry, study, and toil, towards our goal of making certain that our judicial decision represents the correct legal determination.
The instant brouhaha stems from a suit seeking commissions of $210,000 filed by two licensed real estate brokers, Brannan Marriott & Turner, Inc. ('BM&T') and Daniel B. Kenerly d/b/a Kenerly Realty Co., against Kingston Development Co. ('Kingston'). The claim was based upon an agreement allegedly made by defendant to pay a fee of 10% to plaintiffs by virtue of their having performed their contract to obtain a purchaser for a tract of land in Gwinnett County owned by defendant company. An intervenor plaintiff, Alvin Ashey, and a co-defendant, the Presidential Realty Corporation ('Presidential'), were added by consent. An application for intervention as a plaintiff by Linda Poland, an agent of Kenerly, was denied. Instead of the transaction between Kingston and Presidential being consummated by the usual deed of conveyance from seller to buyer transferring the property which was Kingston's principal asset, the two corporations worked out a stock swap for tax purposes. Thereby all of Kingston's stock was exchanged by Presidential for Presidential's issuance of specified amounts of its restricted stock to the six individuals who constituted Kingston's sole stockholders. The result was that Kingston became a subsidiary of Presidential. There is no contention here that this method was adopted as a device to avoid payment to the brokers of any amounts which might have been owed them nor is there any connotation of wrong-doing therein. In fact, although appellant urges the absence of a legally binding obligation upon the corporation, appellant argues this suit should have been brought against the stockholders as being liable as individuals on a quantum meruit basis. Other facts will be discussed in this opinion where we deal directly with their legal implications.
At the end of a two-weeks trial which by agreement was held before a single judge without a jury, judgment was rendered for $171,250 in behalf of BM&T against Kingston based upon nineteen findings of fact and seven conclusions of law derived therefrom. A motion for new trial and/or modification of said findings, conclusions and judgment pursuant to Code Ann. § 81A-152(b) was then filed. After that motion was overruled this appeal followed.
It should be noted that the trial court's judgment also included a decision on the claims of the other litigants inter sese, excepting Linda Poland, but we are not called upon to consider those rulings.
1. The legal principle which is determinative of many of the questions so capably presented by all nine briefs on this appeal was first enunciated in 1853 by Justice (later Chief Justice) Warner 2 in Wiley, Parish & Co. v. Kelsey, 13 Ga. 223. Generically referred to as 'the any evidence rule,' it provides that when a non-jury single-judge judgment is reviewed in the Georgia appellate courts neither the Supreme Court nor the Court of Appeals will interfere with a finding by the trial tribunal 'where there is any evidence to support it.' That phrase, including the italicization of the word 'any,' comes from Balkcom v. Vickers, 220 Ga. 345, 348, 138 S.E.2d 868, 870. There Justice (now Chief Justice) Grice pointed out that this rule stems historically from the long struggle in our state for the establishment of a Supreme Court, 'one of the charges of the opposition being that this court would re-try factual issues.' Thus, our appellate courts are limited to 'correction of errors of law' as stated in the Georgia Constitution. Justice Grice also noted our 'any evidence' requirement differs from the standards used by other judicial systems including the federal reviewing courts where their inquiry is 'whether the evidence is 'substantial' or whether the finding is 'clearly erroneous,' or 'manifestly wrong'.'
As we pointed our in Pinkerton & Laws v. Atlantis Realty, 128 Ga.App. 662, 665, 197 S.E.2d 749 this 'any evidence rule' still applies even though Code Ann. § 81A-152(a) which was added in 1969 to our Civil Practice Act of 1966 duplicated Rule 52 of the Federal Rules of Civil Procedure and reads, 'Findings of fact shall not be set aside unless clearly erroneous . . .' Since the instant appeal is from the Civil Court of Fulton County, we observe that in Spivey v. Mayson, 124 Ga.App. 775, 186 S.E.2d 154 this court ruled that Code Ann. § 81A-152 applies to that trial tribunal.
Concomitant with this principle is the directive that Givens v. Gray, 126 Ga.App. 309, 310, 190 S.E.2d 607, 608. Thus, in considering arguments concerning the fact findings we can not disturb the judge's findings and judgment absent some error of law. First National Bank of Atlanta v. Langford, 126 Ga.App. 325, 329, 190 S.E.2d 803.
2. From our review of the transcript and our determination that there is present therein the necessary amount of testimony to satisfy the 'any evidence' principle we must rule adversely to appellant on those enumerations of error which contest the trial judge's findings of fact. Accordingly, we held there is no merit to enumerations Nos. 4, 5, 6, 7, 8, 9, 11, 12, 14 and 15.
3. The tenth enumeration of error attacks the court's legal conclusions dealing with an allegation as to dual agency. Appellant contends the court erred in its ruling 'that a dual agency, to be effective in any contract arising therefrom, must have the consent of all the principals,' and that '(t) hose principals may avoid the contract at their election if they acted promptly.' The twelfth enumeration is similar in urging 'The court erred in concluding as a matter of law that the brokers acted promptly to avoid the contract between BM&T and the Kingston shareholders.'
The thrust of appellant's argument attacking these legal conclusions is that John Carson who was a vice-president of BM&T and also a stockholder of Kingston negotiated a commission agreement on October 8 between Kingston's six shareholders including himself and BM&T which changed the alleged original agreement between BM&T and Kingston. We find these two enumerations (10 and 12) to be without merit because the legal conclusions resulted from factual findings concerning the nature of the agency, the limitations of the agent's authority, the knowledge of the principals concerning the agent's activities and their reliance thereon. The trial judge's findings of fact as to these were contrary to the appellant's assertions.
4. Assignments of error numbers 15, 16, 17 and 18 attack the trial court's legal conclusions that the stock swap between Presidential and Kingston's stockholders represented fulfillment of the agreement by the broker with Kingston as a corporation to find a purchaser for Kingston's Gwinnett County land.
Stripped to its basics the proposition presented can be stated thusly: Can a property owner who contracts with a licensed broker to pay as commissions a stated percentage of the sales price of its land be relieved of that contractual liability for commissions through a change in the form of the transaction from the usual seller's deed of conveyance into an exchange of corporate stock between the parties? We recognize the transaction's legal results are that (1) the corporation (Kingston) still holds legal title to the realty and (2) the corporation is transformed into a subsidiary of the parent company which had sought to purchase the property. Jurisprudential pragmatism prevents the exaltation of legalities to a sacrosanct status in disregard of realities. Courts do in fact recognize the truth implicit in the Coca-Cola slogan 'It's the real thing.' This practical approach leads us to rule that the contractual commissions commitment continues enforceable against Kingston. Such 'real thing' conclusion is confirmed by the fact that Presidential in its annual report to its stockholders regarded the...
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