Leary v. Stockman

• Decision Date: 12 September 2006
• Docket Number: No. 2005-CA-01514-COA.,2005-CA-01514-COA.
• Parties: Timothy LEARY d/b/a Timothy Leary Real Estate, Appellant v. David STOCKMAN, Kevin Bzoch, Tonya Zimmern, Danny Zimmern, Stockman & Co., Inc., Remax Southern Realty and Scoggins Realty, Appellees.
• Court: Mississippi Court of Appeals

937 So.2d 964

Timothy LEARY d/b/a Timothy Leary Real Estate, Appellant v. David STOCKMAN, Kevin Bzoch, Tonya Zimmern, Danny Zimmern, Stockman & Co., Inc., Remax Southern Realty and Scoggins Realty, Appellees.

No. 2005-CA-01514-COA.

Court of Appeals of Mississippi.

September 12, 2006.

William Carl Miller, Biloxi, attorney for appellant.

Arthur F. Jernigan, Samuel Ernest Linton Anderson, Ridgeland, attorneys for appellees.

Before LEE, P.J., CHANDLER and ROBERTS, JJ.

ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. This litigation between real estate professionals arose incident to construction of a series of condominiums on the Mississippi Gulf Coast. Through his corporation, Coastal Land Development Company, Inc. (Coastal), Richard Landry attempted to establish a condominium project called Beau View Towers in Biloxi, Mississippi. Coastal eventually failed to meet its financial obligations and faced a complaint for judicial foreclosure. Coastal attempted to find alternative sources of financing, but those sources required a number of sold units as a condition precedent.

¶ 2. To that end, in October of 2002, Landry entered into a written agreement with Timothy Leary, a real estate broker licensed in Mississippi. Leary agreed to sell condominium units individually or the project as a whole. In exchange, Coastal agreed to compensate Leary on a commission basis.

¶ 3. Shortly afterwards, Leary met Tonya Zimmern, a real estate agent licensed in Florida. Zimmern was aware of a group of individuals who expressed interest in purchasing the project. Leary agreed to split his commission with Zimmern, should Zimmern's group resolve to purchase the project. Ultimately, the group did not purchase the project.

¶ 4. Zimmern continued to search for potential purchasers. Through various sources, Zimmern contacted Davis Heritage, Ltd., a Florida development company. Davis Heritage was interested in purchasing the entire project. Meanwhile, the foreclosure proceedings progressed. In February of 2004, the chancellor appointed a special master to market the project for ninety days and report all offers to the chancellor and the parties. If the property did not sell by the ninety-first day, foreclosure proceedings were to begin.

¶ 5. Representatives of Davis Heritage met with Landry and negotiated a contract to purchase the project. Landry received no other offers during the ninety day period. On May 28, 2004, Davis Heritage and Coastal entered into a contract entitled "Contract for the Purchase and Sale of Real Estate." The contract provided brokerage fees for four percent of the sale price; one percent each to Stockman, Bzoch, Tonya Zimmern, and Danny Zimmern. The chancellor ratified the contract.

¶ 6. Leary sued Zimmern, among others. Leary alleged that he and Tonya Zimmern had an agreement to split any commission that resulted from the sale of the project. Additionally, Leary alleged that Zimmern and the other Davis Heritage representatives violated the Mississippi Real Estate Brokers Act when they conducted a real estate transaction without using a Mississippi broker. Leary sought brokerage fees and penalties as a "person aggrieved" pursuant to Section 73-35-31(2) of the Mississippi Code.

¶ 7. Among other things, the chancellor found that Leary lacked standing to qualify as a "person aggrieved" and that Leary was not entitled to recover under the Mississippi Real Estate Brokers Act. The chancellor also found that Leary failed to prove that he and Zimmern had an agreement to split commissions. Aggrieved, Leary appeals and raises three issues, listed verbatim:

I. WHETHER THE CHANCELLOR'S FINDING THAT LEARY AND ZIMMERN HAD NO CO-BROKERAGE AGREEMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THUS MANIFESTLY WRONG.

II. WHETHER THE ACT OF ONE CO-BROKER SHOULD REDOUND TO THE BENEFIT OF THE OTHER CO-BROKER.

III. WHETHER LEARY WAS AN AGGRIEVED PERSON UNDER MISS. CODE ANN. § 73-35-31 AND THUS WAS ENTITLED TO PURSUE STATUTORY PENALTIES AGAINST THE FOREIGN BROKERS.

Finding no error, we affirm.

FACTS

¶ 8. In 2000, Richard Landry, the president and sole shareholder of Coastal Land Development Company, commenced development of the Beau View Towers condominium project (the project) in Biloxi, Mississippi. Coastal acquired several parcels of land, secured financing, and began construction. Landry hired Keiko Palmero as Coastal's director of marketing.

¶ 9. After the attack on the World Trade Center on September 11, 2001, Coastal's construction lender withdrew its financing commitment. Coastal defaulted to its creditors and contractors, one of whom filed a complaint and sought foreclosure. That complaint became a case in the Second Judicial District of the Harrison County Chancery Court, styled as Roy Anderson Corp. v. Coastal Land Development Co., C2402-01-01055. Coastal attempted to find alternative sources of financing, but Coastal found itself in a "Catch-22" of sorts. Those lenders required at least sixty-five to seventy per cent of the units of the first tower of the multiple tower project to be pre-sold before they would issue commitments to make construction loans. At the same time, Coastal could not close sales on units without the security of definite financing.

¶ 10. In July of 2002, Landry met with Timothy Leary. On October 4, 2002, Landry and Leary entered into a written listing agreement to sell reservation agreements for individual condominium units so that Landry could obtain additional financing. Landry provided Leary with a five per cent commission on the sale price of any individual unit, a weekly draw on these commissions in the amount of $1,000 for sixteen weeks, and an agreement to negotiate a commission if Landry procured the sale of the entire project. The agreement allowed either party to terminate the agreement with sixty days written notice. Neither party ever gave written notice of termination. Landry testified that he never terminated the agreement.

¶ 11. During late 2002 or early 2003, Tonya Zimmern, an agent with Coldwell Banker JME Realty, a real estate company in Florida, visited the Beau View Towers sales trailer and met with Leary. Leary testified that Zimmern responded to an advertisement he placed in a publication called the Destin Log. Zimmern testified that she was not aware of any advertisement. Rather, Zimmern testified that she worked for a nearby condominium project, that she wanted to see "the competition," and that she was curious about the project. Zimmern held a real estate agent's license in Florida, but she was not licensed in Mississippi.

¶ 12. In any event, during that initial meeting, Leary and Zimmern discussed Leary's commission agreement with Landry. Leary and Zimmern agreed that Leary would pay Zimmern or her Florida brokerage two and a half percent of the sales price for any units that produced sales. Leary downloaded a form for a cooperating brokerage agreement from the Mississippi Real Estate Commission's web site and faxed the agreement to Zimmern's attention at her Florida brokerage. Zimmern never returned a signed copy of the agreement.

¶ 13. Zimmern first produced a group of potential purchasers, collectively called the "Nieman Group." The Nieman Group negotiated for the purchase of thirty-four units. The group agreed to sign the documents at the Mississippi site. Zimmern accompanied them. The Nieman Group agreements never came to fruition because Landry was never able to secure the necessary construction financing.

¶ 14. Leary and Zimmern continued to seek out potential sales. However, Coastal faced an increasingly difficult financial outlook. Trial testimony described the Towers project as "floundering" at this point. Eventually, Landry was unable to pay Leary. Zimmern alluded to the fact that Landry fired Leary, though Leary disputed that and Landry denied it outright. In any event, it was undisputed that Leary stopped operating the Coastal sales trailer on a daily basis during the Spring of 2003.

¶ 15. In the meantime, Zimmern left Coldwell Banker and transferred her license to Scoggins Realty. Zimmern brought another group of potential purchasers to Coastal. According to Leary, Zimmern did not inform him of that subsequent attempt at a transaction.

¶ 16. Leary testified that, sometime in January of 2004, at Zimmern's request, he gave Zimmern information about John Case, the contractor who was to build the condominium towers and the first mortgage holder on the property. According to Leary, Zimmern stopped taking his phone calls afterwards. Zimmern testified that she became aware of Case after her ex-husband, Danny Zimmern, ran a title search on the Towers property.

¶ 17. Regardless, Zimmern arranged a meeting between Case and Davis Heritage, a group of potential joint investors. Davis Heritage employed Stockman & Company, a Florida-based company, to procure projects such as Beau View Towers. In January of 2004, Case met with Stockman personnel, David Stockman and Kevin Bzoch, as well as Tonya Zimmern, Danny Zimmern, and Lee Leonards all Florida real estate brokers and/or agents that represented Davis Heritage. The purpose of the meeting was to ascertain whether the Davis Heritage group could enter into a joint venture with Landry on the Beau View Towers project.

¶ 18. On February 20, 2004, incident to the judicial foreclosure proceedings, the chancery court issued an order and directed that Beau View Towers be placed on the market for ninety days for commercial sale. The chancellor appointed Charliene Roemer as special master to market the property. The chancellor directed Roemer to report all offers to the court and to all parties to the foreclosure action. If the property did not sell within the ninety day period, the foreclosure proceedings were to commence on the ninety-first day.

¶ 19. After the chancellor's order, Davis Heritage abandoned plans to joint venture with Landry. Davis Heritage pursued purchase of the entire project and...