Maly Commercial Realty, Inc. v. Maher
| Decision Date | 10 September 2019 |
| Docket Number | WD 82183 (consolidated with WD 82278) |
| Citation | 582 S.W.3d 905 |
| Parties | MALY COMMERCIAL REALTY, INC., et al., Appellants, v. Jack MAHER, Sr., et al., Respondents. |
| Court | Missouri Court of Appeals |
David G. Brown, Columbia for appellant.
Jeffrey O. Parshall and Clayton L. Thompson, Columbia for respondent.
Before Division One: Cynthia L. Martin, P.J., and Victor C. Howard and Alok Ahuja, JJ.
Maly Commercial Realty, Inc. and Mel Zelenak (collectively "Maly") sued Aegis Investment Group II, LLC and Jack Maher Sr. (collectively "Aegis") in the Circuit Court of Boone County. Maly alleged that it was entitled to a real-estate commission related to Aegis' sale of a piece of commercial property in Columbia. The circuit court entered judgment for Aegis following a bench trial. Maly appeals. It argues that the judgment is not supported by substantial evidence and is against the weight of the evidence. Maly also argues that the circuit court should have placed the burden on Aegis to prove that negotiations with the property’s ultimate purchaser were abandoned after Maly introduced Aegis to that purchaser. We affirm.
Zelenak is a real-estate broker with Maly in Columbia. Zelenak had worked on previous real-estate transactions with Anup Thakkar, a local businessperson who owned multiple Dunkin' Donuts franchise stores. In 2014, Thakkar was looking for a small parcel of property on the north side of Columbia on which to construct a new Dunkin' Donuts franchise store. Thakkar asked Zelenak about property at the southwest corner of Rangeline Street and Blue Ridge Road (the "Blue Ridge property").
The Blue Ridge property was a 40-acre tract of land owned by Aegis. Maher was one of Aegis' members. He was also a licensed real estate broker. Maher’s company had a listing agreement with Aegis for the Blue Ridge property.
Zelenak was aware that Maher was part of the group which owned the Blue Ridge property, and he knew Maher from prior dealings. In early November 2014, Zelenak contacted Maher about the Blue Ridge property, and arranged a meeting. On November 12, 2014, Maher, Zelenak, Thakkar, and one of Thakkar’s business partners met at Maher’s office to discuss the property. The meeting was brief. At trial, Maher described the meeting as simply "a meet-and-greet," because "Thakkar wanted to buy a lot [in the Blue Ridge property], and I said I wasn't interested." Maher was not interested in selling because he wanted to ground lease the property. He testified that Aegis' plan for the property was "to hopefully get a grocer to develop it and retain ownership, so that you retain income forever, no[t] just one-time sales." Thakkar testified of the November 2014 meeting: "[v]ery fast, I learned that Mr. Maher and his group were not interested in selling the property or ... part of it."
After the meeting Thakkar sent an email to an engineer with whom he worked, with copies to Maher and Zelenak. Thakkar stated that he and his partners were interested in buying a portion of the Blue Ridge property and asked the engineer to determine how much land would be necessary to fit his planned Dunkin' Donuts store.
The next day, Maher sent an email to the engineer stating that the discussion with Thakkar about the Blue Ridge property was preliminary, and that there was no deal. Maher also sent an email to another member of Aegis, letting him know about his meeting with Thakkar. In the email, Maher wrote that he informed Thakkar that Aegis had not set a price for sale of the property, and that it preferred to ground lease the property. In his response, Maher’s fellow member asked whether it was "smart to give up a corner for a ¾ acre lot," given that Aegis was hoping to attract a "big box" store to the site.
On December 3, 2014, Maher sent Thakkar, Zelenak, and the engineer an email, stating that he and the engineer had discussed the property and that Maher was not sure that they had the access that Thakkar desired on "a .75 acre hard corner location." In the email, Maher nevertheless stated that Aegis would "look at any possibility."
Thakkar testified that, by the middle of December 2014, it was clear that Aegis' and Thakkar’s interests were "not aligned": "it was quite clear that they just were not interested in selling any portion at that point, and ... I was not interested in ... doing a land lease or a build-to-suit at that time."
Maher testified that, after December 2014, he did not have any further contact with Zelenak regarding the Blue Ridge property. Zelenak admitted that he had "no direct involvement" concerning the sale of the Blue Ridge property after December 2014. Specifically, Zelenak acknowledged that he had no involvement with the property in 2015 or 2016, or in the negotiations that culminated in the 2017 sale of the property to Thakkar’s group. Zelenak did, however, send Thakkar information regarding other properties on the north side of Columbia for a possible Dunkin' Donuts location.
Thakkar testified at trial that he did not have any contact with Maher in 2015.2 In 2016, Thakkar happened to have a conversation with another member of Aegis, who was apparently unaware of the prior communications between Thakkar and Maher in late 2014. Thakkar testified:
Following his conversation with Dr. Ravipudi, Thakkar "reintroduced" himself to Maher, and the two "started conversation again." It took several months, and "several communications," before Maher would consider selling a portion of the Blue Ridge property, "but he finally decided that he may entertain it, so then we started negotiating the pricing."
Maher and Thakkar agreed on a price in January 2017. On March 3, 2017, Aegis and RPA Investment LLC (of which Thakkar was a member) entered into a contract for the sale of a one-acre tract within the Blue Ridge property, and on September 7, 2017, Aegis executed a warranty deed conveying one acre of the Blue Ridge property to RPA Investment. Maher was listed as the broker of the sale. Consistent with their listing agreement, Aegis paid Maher’s real estate company a six-percent commission on the sale.
After the sale, Maly filed a petition against Aegis, asserting a quantum meruit claim. Maly alleged that Zelenak was the procuring cause of the sale to RPA Investment, and that it was therefore entitled to half of the commission paid to Maher’s company. The case was tried to the court on June 5, 2018. On June 20, 2018, the circuit court entered its judgment in Aegis' favor.
Maly appeals.3
"In reviewing a court-tried case, the appellate court will uphold the judgment of the trial court unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Ridgway v. Dir. of Revenue , 573 S.W.3d 129, 132-33 (Mo. App. E.D. 2019) (citing White v. Dir. of Revenue , 321 S.W.3d 298, 307-08 (Mo. 2010) ).
Although neither party raised an issue concerning our appellate jurisdiction, "the Court has an obligation, acting sua sponte if necessary, to determine its authority to hear the appeals that come before it." Glasgow Sch. Dist. v. Howard Cnty. Coroner , 572 S.W.3d 543, 547 (Mo. App. W.D. 2019) (citation and internal quotation marks omitted). "A prerequisite to appellate review is that there be a final judgment." Gibson v. Brewer , 952 S.W.2d 239, 244 (Mo. 1997) (citing § 512.020, RSMo ). "If the trial court’s judgment is not final, the reviewing court lacks jurisdiction and the appeal must be dismissed." Glasgow Sch. Dist. , 572 S.W.3d at 547 (citation omitted). "A final, appealable judgment resolves all issues in a case, leaving nothing for future determination." Archdekin v. Archdekin , 562 S.W.3d 298, 304 (Mo. 2018) (citation and internal quotation marks omitted).
A finality issue arises in this case because Aegis Group requested, in the prayer for relief of its answer, that it be awarded its reasonable attorney’s fees. The circuit court’s judgment did not address this fee request.
We recently addressed a similar issue in Ruby v. Troupe , No. WD82014, 580 S.W.3d 112, 2019 WL 3781691 (Mo. App. W.D. Aug. 13, 2019). As we explained in Ruby , Aegis did not adequately plead a claim for attorney’s fees, because it did not allege a basis for its claim of attorney’s fees in its answer; a bare statement in a prayer for relief is not sufficient. Id. at 114–16, 2019 WL 3781691, at *2–3. In addition, even if Aegis had adequately pleaded an attorney’s fee claim, it abandoned that claim because it did not present any evidence, at trial or otherwise, concerning its attorney’s fees, nor did Aegis file a motion for attorney’s fees. Id. at 115–16, 2019 WL 3781691, at *3.
The trial court’s judgment was final because it resolved the only claim before the court: Maly’s quantum meruit claim. Because we have jurisdiction over this appeal, we turn to the merits of Maly’s arguments.
In its first Point, Maly argues that the trial court erred when it entered judgment in favor of Aegis, because the judgment was not supported by substantial evidence and was against the weight of evidence.4
The elements of a quantum meruit claim to recover a real estate commission are that the plaintiff provided brokerage services to the seller, the...
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