Kokinis v. Kotrich

• Decision Date: 03 July 1979
• Docket Number: No. 78-436,78-436
• Citation: 392 N.E.2d 697,74 Ill.App.3d 224,30 Ill.Dec. 42
• Parties: , 30 Ill.Dec. 42 John G. KOKINIS, d/b/a Lincoln Square Real Estate, Plaintiff-Appellant, v. Edward KOTRICH and Rita Kotrich, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 697

392 N.E.2d 697

74 Ill.App.3d 224, 30 Ill.Dec. 42

John G. KOKINIS, d/b/a Lincoln Square Real Estate, Plaintiff-Appellant, v. Edward KOTRICH and Rita Kotrich, Defendants-Appellees.

No. 78-436.

Appellate Court of Illinois, First District, Second Division.

July 3, 1979.

Rehearing Denied July 31, 1979.

Lewis W. Schlifkin, Edward A. Berman, Chicago, for plaintiff-appellant.

Max A. Abrams, Sidney Z. Karasik, Chicago, for defendants-appellees.

DOWNING, Justice:

Plaintiff John G. Kokinis, a licensed real estate broker, brought an action against the defendants Edward and Rita Kotrich to recover a commission allegedly due him under the terms of an exclusive listing agreement for the sale of a motel. Plaintiff appeals from a finding entered by the circuit court of Cook County in favor of defendants at the close of plaintiff's case. The issue on review is whether the trial court's action was correct which raises the question of whether the finding was against the manifest weight of the evidence.

Defendants owned the LaGrange Motel in Countryside, Illinois. On June 28, 1971, by signing a document entitled "North Side Real Estate Board Cooperative Listing Service Agreement," they employed plaintiff as their exclusive agent to advertise and offer for sale their motel for a price of $495,000. Defendants agreed to pay plaintiff a real estate brokerage commission of 6% On the first $50,000 and 5% Thereafter, subject to certain conditions discussed later in this opinion. This agreement was to remain in force for a period of not less than 90 days and thereafter until terminated by the defendants in writing giving plaintiff 30 days prior notice. The agreement would terminate without this notice one year after the date it was signed.

Plaintiff prepared a flyer containing information about the property for distribution to prospective purchasers and advertised the motel in a series of classified newspaper ads beginning on July 11, 1971 and ending on September 19, 1971. The ads referred to a motel in the south LaGrange area and furnished the name and telephone number of plaintiff. The name and address of the motel was not given. Plaintiff testified that defendants requested he be discreet as they did not want their customers or neighbors to know the property was for sale. Plaintiff would screen the phone calls he received regarding the property in order to find out whether the caller was interested. He also kept a record of the caller's name, address, and phone number. This record was admitted into evidence and showed that Robert Galas, ¹ the ultimate purchaser of the property, called plaintiff regarding the property on September 14, 1971. Plaintiff testified that Galas inquired about the ad, requested a flyer be sent to him, and said he wanted to see the property. Plaintiff stated that thereafter he called Galas to find out if he received the flyer and whether he was interested in the property; that Galas told him that when he received the flyer he realized he had already seen the same property with someone else and was not interested in dealing with the plaintiff.

Plaintiff received from defendant Edward Kotrich a letter dated August 25, 1971, which read: "Please cancel our three-month listing agreement dated from June 28 to September 28, 1971." Plaintiff testified that when he received this letter, he called Kotrich and told him he had several people interested in the property and would continue to come in with a contract as long as he had thirty more days under the listing agreement. Plaintiff also asked for a further extension which Kotrich refused. Plaintiff then wrote a letter to Kotrich dated September 27, 1971, in which he stated that he received Kotrich's letter of August 25, 1971, requesting the cancellation of the real estate exclusive listing on September 28, 1971; he listed the names of persons, including the name Robert Galas, who had contacted him about the property and asked Kotrich to refer any one of them back to him if they should contact Kotrich personally; and he would continue working to bring in a contract as per their discussion. Plaintiff testified that when Kotrich received this letter, Kotrich called plaintiff and asked how he got Galas's name and whether plaintiff sent him a flyer. Plaintiff said that he sent Galas a flyer. According to plaintiff, Kotrich told him Galas was at the motel a couple of weeks before with his own broker and they were interested in buying the property together. Plaintiff told Kotrich that he should send Galas back to him, to which Kotrich responded, "Well, we will see."

Plaintiff testified that he spoke with Kotrich on October 1, 1971, regarding the possibility of bringing in a contract from a person he had began dealing with in July, 1971. Kotrich told plaintiff to keep working on it and to bring in a contract. Plaintiff stated that on October 4, 1971, Kotrich called him regarding the list of names plaintiff had sent him and was disturbed that Galas's name was on the list. Plaintiff told Kotrich that they had already discussed this, and that if Galas or any one else contacted Kotrich, he should refer them back to plaintiff as agent of record.

Plaintiff testified that on October 23, 1971, Kotrich told him he was going ahead with the Galas deal, and that if plaintiff would cooperate, he would give him a $7,500 commission. Plaintiff said he told Kotrich he did not want to impair any deal, but that he had another interested person and would try to bring in a contract from that person. Plaintiff stated that on October 27, 1971, Kotrich called him, questioned his veracity about the other deal, and offered him a $5,000 commission. Plaintiff said he told Kotrich he was confident that he would be able to bring in a contract and would not have to negotiate for a commission.

Admitted into evidence was a letter dated October 28, 1971, addressed to plaintiff and signed by Robert Galas, in which Galas stated that on September 10, 1971, he telephoned plaintiff's office regarding an ad he has seen in the paper on July 18, 1971; that plaintiff told him information about the property would be mailed to him as no information could be given on the phone; that he received plaintiff's letter dated September 14, 1971, which informed him that the motel for sale was the LaGrange Motel; that he had been informed several months earlier by his own real estate broker, William Brash, that this motel was for sale; that at that time he discounted the LaGrange Motel because of his financial situation; that on October 1, 1971, he was able to secure additional finances; that he called Brash and they again discussed the LaGrange Motel; that on October 7, 1971, through Brash he made an offer on the motel; that on the same date he learned that plaintiff tried to reach him while he was out; that he reached plaintiff on October 11, 1971, at which time plaintiff asked him what he thought of the motel; that he informed plaintiff of the above facts, to which plaintiff responded, "Well, that's alright, I have an exclusive"; that he understood that plaintiff was now demanding, with threat of suit, a sales commission if he purchased the motel; that such action had hindered his negotiations and caused him a loss in time and money; that he would take legal action to recover losses and damages if the matter was not resolved; and that plaintiff was not his broker nor did he ever retain or request plaintiff to act in his behalf. Plaintiff stated that he did not converse with Galas any time after he received this letter.

Plaintiff testified that on November 4, 1971, Kotrich called him and asked how plaintiff's deal was coming along, to which plaintiff responded he was waiting for the attorney to give him the contract. Kotrich told plaintiff he would not wait any longer and was going ahead with the Galas deal. Plaintiff told Kotrich that was not fair and he would have to sue.

On cross-examination, plaintiff stated that none of the classified ads gave the address of the motel property; that he had never seen Galas; that he did not actually show the property to Galas; and that he did not submit a written offer of purchase for the property to Kotrich.

Plaintiff was the only witness to testify at trial. At the close of the plaintiff's case, the trial court granted defendants' motion for a directed finding in their favor and entered judgment on the grounds that (1) plaintiff failed to prove he was the procurer of the purchaser, Robert Galas, and (2) the exclusive listing agreement expired 90 days after June 28, 1971, because written notice of cancellation was sent 30 days prior to the end of the 90-day period as provided by the listing agreement.

I.

Plaintiff cites Pedrick v. Peoria and Eastern Railroad Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, for the proposition that directed verdicts should be granted only in cases in which all the evidence when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could ever stand. While this standard applies to directed verdicts in a jury trial and is designed to prevent a trial judge from assuming the duties of the trier of fact, it does not apply in a case, as here, tried without a jury. City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill.2d 40, 57, 349 N.E.2d 399.

Section 64(3) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 64(3)) specifically requires the trial court sitting without a jury to weigh the evidence when ruling on defendant's motion for judgment at the close of plaintiff's case. Instead of considering the evidence in the light most favorable to the plaintiff as in a jury trial, the court must consider the weight and quality of the evidence which necessarily includes any favorable to the defendant, and pass on the credibility of the witnesses. (City of Evanston v. Ridgeview House, Inc. at 57-58, 349 N.E.2d 399.) The trial court does not simply decide whether plaintif...