LA & N Interests, Inc. v. Fish

• Court: Texas Court of Appeals
• Writing for the Court: Before ROBERTSON and CARSON, JJ., and MORSE
• Citation: LA & N Interests, Inc. v. Fish, 864 S.W.2d 745 (Tex. App. 1993)
• Decision Date: 14 October 1993
• Docket Number: No. C14-92-00741-CV,C14-92-00741-CV
• Parties: LA & N INTERESTS, INC. d/b/a Ameritec Realty and Duane Kersten, Appellants, v. Michael L. FISH, Fran M. Griffin, Fran M. Griffin, Inc. d/b/a Fran Griffin Properties, Alyson Griffin, and North Houston Realty, Appellees. (14th Dist.)

Page 745

864 S.W.2d 745

LA & N INTERESTS, INC. d/b/a Ameritec Realty and Duane Kersten, Appellants, v. Michael L. FISH, Fran M. Griffin, Fran M. Griffin, Inc. d/b/a Fran Griffin Properties, Alyson Griffin, and North Houston Realty, Appellees.

No. C14-92-00741-CV.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 14, 1993.

Helena C. Papadopoulos, Houston, for appellants.

Dan Kennerly, Gary L. Murphree, Houston, for appellees.

Before ROBERTSON and CARSON, JJ., and MORSE, J., Assigned.

OPINION

ROBERT E. MORSE, Jr., Former Justice.

This appeal of summary judgments involves breach of contract, tortious interference with contract, and conversion. LA & N Interests, Inc. d/b/a Ameritec Reality ("Ameritec Realty") and Duane Kersten sued Michael L. Fish; Alyson Griffin, Fran M. Griffin, and Fran M. Griffin, Inc. d/b/a Fran Griffin Properties (collectively "Griffin Properties"); and North Houston Realty ("Houston Realty"). Ameritec Realty and Kersten sought to recover a real estate commission on the sale of a house and/or damages for interference with their buyer's brokerage agreement with Fish and conversion of their fee expectancy. The trial court granted Fish's and Griffin Properties' motions for summary judgment and severed the remaining cause against Houston Realty. Ameritec Realty and Kersten appeal the summary judgments. We affirm in part, reverse in part.

On or about July 28, 1991, Ameritec Realty and Fish entered into a Buyer's Representation Agreement (the "Agreement"). The Agreement was signed by Fish, as buyer, and Kersten as agent for Ameritec Realty. Kersten was an independent contractor broker under contract to Ameritec Realty.

Under the Agreement, Ameritec Realty was Fish's "exclusive agent to represent and assist [Fish] in locating and negotiating the terms and conditions for the purchase or other acquisition of real property...." The Agreement ran from July 28 to October 19, 1991, and provided that Ameritec Realty "shall inform all prospective Sellers, Lessors and their agents, with whom [Ameritec Realty] negotiates pursuant to this Agreement, that [Ameritec Realty] is acting on behalf of [Fish], and shall be paid a Professional Service Fee as provided in Paragraph 5 hereof." Paragraph 5 states that "[Fish] shall have no liability or obligation to pay a Professional Service Fee to [Ameritec Realty]." The Agreement specified that the then unknown "Seller" would pay Ameritec Realty's fee.

Spring Creek Oaks, Inc. owned a piece of property and listed it with Houston Realty. Griffin Properties negotiated a contract for the sale of the property to Fish. Neither Ameritec Realty nor Kersten was involved in the transaction. The participating brokers, Griffin Properties and Houston Realty, split a $7,800 commission.

In sum, Ameritec Realty and Kersten contend that (1) after Fish signed the Agreement with them, he purchased real property with the assistance of Griffin Properties, (2) Griffin Properties knew of the Agreement between Ameritec Realty and Fish, (3) the seller of the property paid a commission to Griffin Properties and Houston Realty, (4) the Agreement entitled Ameritec Realty and Kersten to at least a share of the commission, and (5) Fish and Griffin Properties were liable for the share of the commission paid to Griffin Properties. Ameritec Realty and Kersten also claimed actual and punitive damages for tortious interference with the Agreement and conversion of their fee expectancy.

The trial court granted Fish's and Griffin Properties' summary judgment motions, and Ameritec Realty and Kersten appeal.

In two points of error, Ameritec Realty and Kersten complain that the trial court erred in granting the summary judgments because Fish's and Griffin Properties' summary judgment proofs did not establish that there were no issues of material fact.

The movant for summary judgment has the burden to show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we take evidence favorable to the non-movant as true. Id. We indulge every reasonable inference in favor of the non-movant and resolve any doubts in his favor. Id. If the movant's motion and summary judgment proof facially establishes his right to judgment as a matter of law, then the burden shifts to the non-movant to raise fact issues precluding summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). A defendant, to be entitled to summary judgment, is required to disprove at least one essential element of each pleaded cause of action or otherwise show that plaintiffs could not succeed on any theory pleaded. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975).

The order granting the summary judgments did not specify the grounds on which the judgments were based. In this circumstance, we affirm the summary judgments on any ground raised by the respective motions that is supported by the summary judgment proof and the applicable law. Wavell v. Roberts, 818 S.W.2d 462, 464 (Tex.App.--Corpus Christi 1991, writ denied).

Fish's Summary Judgment

Fish moved for summary judgment against Kersten on grounds that Kersten was not a party to the Agreement. Fish moved against Ameritec Realty on grounds that (1) Ameritec Realty did not have a real estate license, and (2) there was no written, signed promise by Fish to pay a commission.

Kersten Not a Party to Agreement

It was undisputed that the trial court granted Fish and Griffin Properties' special exceptions to Ameritec Realty and Kersten's pleadings. Fish and Griffin Properties complained that Ameritec Realty and Kersten had not pled facts establishing that Kersten had any claims against Fish and Griffin Properties in Kersten's individual capacity. Specifically, Fish and Griffin Properties argued that the pleadings did not allege facts establishing that Kersten was a party to the Agreement. Ameritec Realty and Kersten amended their pleadings, but Fish and Griffin Properties contend that the pleading deficiencies were not cured.

The question of whether a contract is ambiguous is one of law for the court. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). If the language of the contract can be read to have a certain or definite legal meaning or interpretation, the contract is not ambiguous, and construction of the contract is then a matter of law for the court. Id. at 393.

It was undisputed that the Agreement attached to Ameritec Realty and Kersten's pleadings was the basis of their claims against Fish. Kersten's name does not appear as a party in the Agreement. Under the unambiguous, express terms of the contract, Ameritec Realty, as broker, (1) was appointed as Fish's agent, (2) was to perform the services for Fish, (3) was authorized to use subagents, and (4) was not authorized to assign the Agreement without Fish's prior written consent. The Agreement ended with the following signature block:

EXECUTED THIS 28 day of July, 1991
                Ameritec Realty (hand printed)    Michael L. Fish (signature)
                --------------------------------  ---------------------------
                BROKER                                                  BUYER
                BY:    Duane Kersten (signature)
                --------------------------------
                       AGENT
                

We find that the Agreement is unambiguous and that Kersten was not a party to the contract. Kersten has no legally cognizable interest in the commission and cannot maintain an action on the Agreement in his own name and in his own right. See Schmidt v. Matise, 747 S.W.2d 883, 885 (Tex.App.--Dallas 1988, writ denied). Not being named as the broker in the Agreement, Kersten could not recover a real estate commission even under a theory of partial performance. Boyert v. Tauber, 834 S.W.2d 60, 64 (Tex.1992).

As for Kersten's tortious interference claim, we observe that Fish could not interfere with his own contract, the Agreement. Barker v. Brown, 772 S.W.2d 507, 510 (Tex.App.--Beaumont 1989, no writ). However, Kersten seems to argue that Fish interfered with Kersten's independent contractor agreement with Ameritec Realty. But Kersten never pled that Fish, or anyone else, induced or forced Ameritec Realty to breach its contract with Kersten. We find that the independent contractor agreement provided no basis for a tortious interference claim by Kersten against Fish.

As for Kersten's conversion claim, we have found that Kersten was not a party to the Agreement and therefore had no cognizable interest in the commission. Without a legal right to the commission, Kersten has no claim for conversion against Fish. See Cissne v. Robertson, 782 S.W.2d 912, 918 (Tex.App.--Dallas 1989, writ denied).

In sum, we find that Fish established as a matter of law that Kersten, in his individual capacity, could not recover against him. We affirm Fish's summary judgment to that extent.

Ameritec Realty's License

Section 20(a) of the Texas Real Estate License Act ("RELA") provides:

A person may not bring or maintain an action for the collection of compensation for the performance in this state of an act set forth in Section 2 of this Act without alleging and proving that the person performing the brokerage services was a duly licensed real estate broker or salesman at the time the alleged services were commenced....

TEX.REV.CIV.STAT.ANN. art. 6573a, § 20(a) (Vernon Supp.1993) (emphasis added).

Fish argues that Ameritec Realty did not allege in its pleadings that it had a real estate license. Fish further contends that Ameritec Realty did not have a license. If either of Fish's contentions is true, Ameritec Realty could not maintain a cause of action for recovery of a real estate commission.

The Agreement was incorporated into Ameritec Realty's pleadings as an exhibit. The Agreement contained the statement, "THIS AGREEMENT is made by and between Ameritec Realty...