Mitchell v. Rawls

• Decision Date: 20 August 1986
• Docket Number: No. 55759,55759
• Citation: 493 So.2d 361
• Parties: Charles L. MITCHELL, d/b/a Mitchell Real Estate v. James M. RAWLS and Kerry M. Rawls.
• Court: Mississippi Supreme Court

Page 361

493 So.2d 361

Charles L. MITCHELL, d/b/a Mitchell Real Estate v. James M. RAWLS and Kerry M. Rawls.

No. 55759.

Supreme Court of Mississippi.

Aug. 20, 1986.

Ronald W. Lewis, Hill & Lewis, Oxford, for appellant.

William C. Spencer, Holly Springs, for appellee.

Before DAN M. LEE, ROBERTSON and GRIFFIN, JJ.

GRIFFIN, Justice, for the Court:

This is a suit for a real estate commission appealed from the Chancery Court of Marshall County. At the conclusion of the complainant's case, the appellees moved to dismiss on the ground that the complainant had not made out a case. The chancellor agreed and, near the end of his ruling, he made the following statement:

I feel that under the terms of the contract and the listing agreement that he prepared, the terms of which were used on his form of which he had full knowledge and understanding, that he is not entitled to recover in this instance. Therefore, the Defendant's motion for a directed verdict under Rule 50 will be sustained. (emphasis added)

Appellant argues here that the chancellor erred in that he did not follow the accepted standard for direction of a verdict. The general rule is that on a motion for directed verdict the court should consider the evidence in the light most favorable to the party presenting it, and indulge in all favorable inferences to be drawn therefrom, and, if either be sufficient to support a verdict, overrule the motion. Edwards v. Cleveland Food, Inc., 437 So.2d 56 (1983); King v. Dudley, 286 So.2d 814 (Miss.1973); Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652, 655 (Miss.1975).

The chancellor inadvertently cited Rule 50. Actually the Rule applicable is Rule 41(b), Miss.R.Civ.P., the pertinent part of which reads as follows:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court may make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any other dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

We have heretofore considered this question in Davis v. Clement, 468 So.2d 58, 61-62 (Miss.1985), wherein we said:

We emphasize that this motion was presented to a trial judge sitting without a jury. In such a setting, the trial court is not required to look at the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable favorable inferences. Notions emanating from Paymaster Oil Co. v. Mitchell, 319 So.2d 652 (Miss.1975), and many other similar cases--whether arising in the context of a motion for a directed verdict, a request for a peremptory instruction or a motion for judgment notwithstanding the verdict--have no application here.

....

If, considering the evidence fairly, as distinguished from in the light most favorable to the plaintiff, the trial judge would find for the defendant--because plaintiff has failed to prove one or more essential elements of his claim, because the quality of the proof offered is insufficient to sustain the burden of proof cast upon the plaintiff, or for whatever reason--the proceeding should be halted at that time and final judgment should be rendered in favor of the defendant. [footnote omitted]

Obviously, when there is doubt, the trial judge generally ought to deny the motion to exclude and dismiss but such is the exercise of sound discretion, not obligation imposed by law.

The construction we here give Rule 41(b), Miss.R.Civ.P., is wholly consistent with that given Federal Rule 41(b) upon which our rule has been patterned. See, e.g., Hersch v. United States, 719 F.2d 873, 876-877 (6th Cir.1983); Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138, 144 n. 8 (5th Cir.1979); Woods v. North American Rockwell Corporation, 480 F.2d 644, 645-646 (10th Cir.1973); Emerson Electric Co. v. Farmer, 427 F.2d 1082, 1086 (5th Cir.1970).

Now, having pointed out the proper standard of proof, a short recitation of the facts of the case is in order. The appellant is a real estate broker and on April 28, 1982, the appellees listed their property with him. The listing was for a 90-day period and during that time the appellant was to be paid a commission regardless of who might have secured the sale and if the property was sold within a six-month period of the termination of the agreement to a purchaser to whom the appellant had shown the property or negotiated with concerning it, the commission was still due. The property was sold to a Mr. James L. Luvene in late June of 1983. Mr. Luvene had been shown the property by the appellant and another real estate broker.

Appellant did not show Luvene the property during the 90-day period but contends that the listing agreement was orally extended because of the following testimony by Mr. C.L. Mitchell:

I said, Mr. Rawls, don't you think we need to sign another listing agreement. And Mr. Rawls told me sitting there in his living room that the contract that I had was sufficient; to go ahead and operate on that contract and he would honor it.

Mr. Mitchell further testified:

Mr. Rawls told me at that time that it would be perfectly all right to go right ahead and operate under the old listing; that he and his wife were of ill health and needed to get away from here. He wanted to sell the house and he wanted me to work on it. My sign was in front of the house and remained in front of the house until I went out and got it the latter part of April [1983].

Q [By Mr. Spencer]: Well, I think that is fine. He told you he was willing to work under the old listing?

A Yes, sir.

Two witnesses other than the appellant testified on his behalf, Cecil Mitchell, his father, and James Luvene, the buyer. Their testimony was conflicting as to both events and dates leading up to the eventual sale of the house. There appears to be no dispute, however, that the efforts of the appellant were terminated prior to the sale. Also Luvene testified that the appellant was a "hindrance to the sale". The chancellor, in a colloquy with the attorneys after the close of the case but before his final ruling, made the following statement:

The main problem that I have are the things you gentlemen stated from the very inception: the issue in this case; which simply is, was the contract extended beyond its termination date by oral representations of the Defendant? And that is all it boils down to and whether it was extended under an implied version or a common law version is one of the things the Court has to consider.

The evidence here would support a finding that the contract was not extended beyond its termination date. The chancellor went to great length to point out the conflicts in the testimony, and at one point made the following statement: "It just appears to me from what I have heard at this point that the plaintiffs unfortunately have been derelict." This would appear to support a finding that the appellants were in fact a "hindrance". There appears to be a lack of specificity as to ultimate finding of facts. We proceed on the assumption that his findings of fact are consistent with the judgment. In Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983), we said the following:

With respect to issues of fact where the chancellor made no specific finding, we are required by our prior decisions and by sound institutional considerations to proceed on the assumption that the chancellor resolved all such fact issues in favor of appellee. Harris v. Bailey Avenue Park, 202 Miss. 776, 791, 32 So.2d 689, 694 (1947); Cheek v. Ricker, 431 So.2d 1139, 1143-44 (Miss.1983).

See also PMZ Oil Co. v. Lucroy, 449 So.2d 201, 205 (Miss.1984).

We should not disturb the chancellor's finding...