Lifestyle Family v. LAWYERS TITLE INS.
| Decision Date | 02 July 2002 |
| Docket Number | No. A02A0668.,A02A0668. |
| Citation | 256 Ga. App. 305,568 S.E.2d 171 |
| Parties | LIFESTYLE FAMILY, L.P. et al. v. LAWYERS TITLE INSURANCE CORPORATION. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Alston & Bird, William H. Hughes, Jr., Atlanta, for appellants.
Sutherland, Asbill & Brennan, Richard L. Robbins, Julianne N. Belaga, Deborah L. Danzig, Foltz & Martin, Kevin H. Hudson, Atlanta, for appellee. MIKELL, Judge.
In this dispute over real estate brokerage commissions, Lifestyle Family, L.P. and Mansour Properties, LLC ("Lifestyle Mansour") appeal a judgment entered on a jury verdict in favor of Ben Carter Holdings, Inc. ("Carter") and a directed verdict entered in favor of Southeastern Partners, Inc. ("Southeastern"). For the reasons that follow, we reverse the judgment for Carter and affirm the directed verdict for Southeastern.
Evidence adduced at trial shows that the underlying transaction began in 1996, when the Eastern Airline Pension Fund ("Eastern") retained Carter, a brokerage firm, to procure a buyer for a 130-acre parcel of land in Gwinnett County. Stanley B. Ashley, Jr., CCIM,1 a broker associated with Carter, testified that he represented Eastern. Lifestyle Mansour began negotiating with Ashley to purchase the parcel. Meanwhile, Ashley received an inquiry from David Thomas, CCIM, a broker associated with Southeastern, acting on behalf of a prospective buyer, Unisource Worldwide, Inc. ("Unisource"). Unisource was interested in acquiring a 30-acre portion of the property known as the Governor's Lake Tract ("the Tract"). However, Eastern wished to sell the 130-acre parcel as a whole.
On May 17, 1996, Eastern and Lifestyle Mansour reached an agreement for the sale of the parcel for $3.5 million. Ashley testified that prior to finalizing the agreement, he informed Lifestyle Mansour of Unisource's interest in purchasing the Tract. According to Ashley, Sam Leveto, Lifestyle Family, L.P.'s principal, "specifically requested that I try to obtain a new offer out of Unisource...."
Ashley further testified that Thomas contacted him and expressed Unisource's continued interest in the Tract. Ashley conveyed this interest to Leveto, who asked Ashley to solicit a written offer from Unisource. On June 4, 1996, Thomas submitted to Ashley a letter of intent reflecting Unisource's offer to purchase the Tract for $2.25 million. The letter stated that Southeastern "shall look to the seller to pay a commission of 10% of the purchase price," which Southeastern and Carter would divide equally. Ashley testified that he faxed the letter to Leveto and arranged a meeting on behalf of Lifestyle Mansour with Unisource and Thomas. Both Ashley and Thomas testified that at the meeting, Lifestyle Mansour expressed an interest in selling the Tract to Unisource but deferred negotiating details until after closing the deal with Eastern. Commissions were not discussed.
The sale of the 130-acre parcel closed on July 10, 1996. Lifestyle Mansour then contacted Thomas and invited him to Leveto's office to discuss Unisource's offer. To Thomas's "great surprise," Ashley was not present when he arrived. Moreover, Leveto and George Mansour, manager of Mansour Properties, LLC, informed Thomas that Ashley was not involved in the transaction and did not represent them, that they had not agreed to pay him a commission, and that they did not want to work with him. "The indication was that if he was in the deal, they didn't want to go forward with it," Thomas testified. In addition, Leveto and Mansour demanded $100,000 an acre, or $3 million, for the Tract, and offered to pay Southeastern a commission of only $80,000.
Thomas wrote Leveto and Mansour a letter memorializing the meeting, expressing shock at the amount of the commission they offered. Thomas also wrote that he notified Ashley that he was dealing directly with Leveto and Mansour and would pay Ashley a referral fee.
Upon receipt of the letter, Ashley arranged another meeting with Mansour and Leveto to discuss the commission issue. Mansour and Leveto were unwilling to pay ten percent. However, Ashley testified, they told him they wanted to think about it over the weekend and would get back to him. According to Ashley, they never did.
Thomas testified that Lifestyle Mansour ultimately agreed to pay him a brokerage commission of $110,000. Thomas signed a proposal, drafted by Mansour, agreeing to accept that sum and to "pay [Carter] their portion of the commission as may be due to them." Thomas believed that Ashley continued to negotiate with Mansour and Leveto concerning Ashley's commission.
On August 30, 1996, Lifestyle Mansour executed an agreement to sell the Tract to Unisource for over $3 million. The contract named Southeastern "Broker" and Carter "Referring Broker." It provided that Lifestyle Mansour would pay Southeastern a brokerage commission of $110,000, Southeastern would hold Lifestyle Mansour harmless from claims of any other brokers, and Southeastern would be responsible for paying Carter "its share of commission as agreed upon" between them. Neither Southeastern nor Carter was a signatory to the agreement.
Thomas testified that he never agreed to hold Lifestyle Mansour harmless from Carter's commission claims, that Carter did not authorize Thomas to agree to a commission, and that he did not read the commission paragraph. Ashley testified that he did not receive a copy of the agreement until suit was filed.
The sale of the Tract to Unisource closed in March 1997. Thomas testified that he did not attend the closing but was asked to sign the documents at a later date. Thomas executed a "Final and Unconditional Waiver and Release of Lien," waiving any claims against Lifestyle Mansour and Unisource in exchange for $110,000. This sum, plus an additional $40,499.28 contributed by Lifestyle Mansour, was placed in escrow with Lawyers Title Insurance Corporation pending resolution of the commission issue.
Thomas testified that based on Lifestyle Mansour's request that he try to resolve the matter with Ashley, he offered Ashley 20 percent of the $110,000 commission, or $22,000, as a referral fee. In August 1997, Mansour wrote Thomas a letter urging him to split the commission with Carter because "it is indisputable that [Carter] facilitated and arranged ... the bringing together of the buyer and the seller which ultimately led to the closing of the property...." By this time, Thomas was aware that Carter claimed it was due a $150,000 commission.
Settlement negotiations failed, and Lawyers Title interpleaded the escrowed funds into court. Lifestyle Mansour filed a cross-claim against Carter, Southeastern, and the funds, asserting theories of fraud, fraudulent inducement, and breach of contract. Carter filed a cross-claim against Lifestyle Mansour and Southeastern, seeking to recover a commission under theories of procuring cause and breach of contract (Count 1), as well as quantum meruit (Count 2). Southeastern filed a cross-claim against Carter, asserting that Carter was not entitled to any portion of Southeastern's commission. Southeastern also sought recovery of $110,000 of the interpleaded funds. The trial court dismissed Lawyers Title from the action and realigned the parties thusly: Carter as plaintiff, Lifestyle Mansour as defendants, and Southeastern as third-party defendant. The day before trial, Carter and Southeastern reached an agreement to divide any recovery equally.
At the conclusion of the evidence, the trial court directed a verdict for Southeastern in the amount of $110,000. Carter's claim was submitted to the jury on alternate theories of breach of contract and quantum meruit. The jury returned a verdict in Carter's favor on the breach of contract claim, awarding $150,000 in damages. The jury also found that no indemnification agreement existed between Southeastern and Lifestyle Mansour. Judgment was entered on the verdict.
Lifestyle Mansour filed a motion for judgment notwithstanding the verdict ("judgment n.o.v.") against Southeastern and for a new trial against Carter. The trial court denied both motions. This appeal followed.
1. Lifestyle Mansour contends that the trial court should have granted its motion for new trial on the breach of contract claim because there is no evidence that it entered into a contract with Carter to pay a ten percent brokerage commission. We agree.
Although an oral contract for a brokerage commission is valid,2 such a contract is not complete and enforceable until there is a meeting of the minds as to all essential terms.3 And although the appellate court will not disturb the trial court's refusal to grant a new trial if there is any evidence at all to support the verdict,4 a careful review of the transcript in the instant case reveals no evidence of a meeting of the minds between Lifestyle Mansour and Carter as to the amount of the commission. Ashley testified that after receiving the offer from Unisource, he faxed it to Leveto; that the fax expressed the ten percent brokerage commission that Carter and Southeastern anticipated receiving and sharing equally; that Leveto subsequently instructed Ashley to arrange a meeting with Unisource; and that at the meeting, Leveto did not raise an objection to the proposed commission. However, there is no evidence that Lifestyle Mansour agreed to pay that percentage.5 And although there is evidence that these parties continued to negotiate the commission rate, no agreement was ever reached. For this reason, the verdict is not sustainable.
A case on point is Perimeter Realty v. GAPI, Inc.,6 which involved a suit by two brokers to recover real estate commissions. In that case, there was evidence that the buyer and seller proceeded to negotiate the sale without the brokers after the brokers brought them together. Moreover, the seller never signed the written commission agreement drafted by the brokers and continued to propose a lesser fee. The brokers agreed to share a commission,...
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