Nollner v. Thomas
| Decision Date | 28 March 1975 |
| Docket Number | No. 7145,7145 |
| Citation | 91 Nev. 203,533 P.2d 478 |
| Parties | E. T. NOLLER and Lila V. Nollner, Appellants, v. Floyd A. THOMAS, Respondent. |
| Court | Nevada Supreme Court |
The appellants were the owners of real property known as the 'Hitchin' Post Motel' located in Clark County, Nevada. On September 4, 1969 they engaged the respondent, a licensed real estate broker, to assist them in the sale of that property and executed a non-exclusive listing agreement for a period of one hundred eighty (180) days, with a grace period of sixty (60) days. If a sale had been made during the grace period to anyone with whom respondent had negotiated during the original term, a commission would be paid.
During the 180 days respondent introduced the ultimate buyer, James D. Childress, to the appellants, and exhibited the real property to him. During the original term respondent also had inserted advertisements concerning the real property in the local newspapers.
The listing agreement expired on March 4, 1970, and up to that time no written offers of purchase were submitted by respondent to the appellants. On March 10, 1970, and again on March 13, 1970, the respondent, on behalf of Childress, tendered written purchase offers to apellants. Both offers were rejected. On March 29, 1970, appellant, E. T. Nollner, and respondent met to discuss the terms upon which appellants would sell, and at this meeting Nollner agreed to reduce the asking price by $5,000 to $170,000, and suggested that respondent agree to reduce his commission by a commensurate amount. Respondent refused.
Respondent contacted appellants on April 4, 1970, and again on April 7, 1970, regarding the sale of the property. On April 7, 1970, Nollner, in a conversation with respondent, indicated that he was considering taking the property completely off the market. On that same date Nollner made application to change the zoning on the property to accommodate an overnight campground. Such zoning had been an integral factor in both of the written offers made by respondent on behalf of Chidress. Respondent indicated that he may have had some contact with appellants and Childress concerning the property after April 7, 1970, but his testimony is very vague and indefinite. The 60-day grace period expired on May 5, 1970.
After July 1, 1970, Childress directly contacted appellants concerning the possibility of a three-way trade involving the Hitchin' Post, the Childress residence and the residence of Lester and Elizableth Simmons. Prior to that time the negotiations had become stagnant because appellants could not use and did not want the Childress two-story home which Childress needed to dispose of so he could move to the Hitchin' Post an escrow was opened on July 16, 1970, and the entire three-way transaction was concluded on July 31, 1970.
Upon learning of the transaction, respondent made a demand for a commission which was rejected by appellants, and suit was brought. After a trial before the court, without a jury, respondent was awarded a judgment in the amount of $9,756, from which this appeal is taken.
Appellants contend that the trial court erred as a matter of law in its interpretation of the listing agreement, as well as in its conclusion that respondent was the procuring cause, and that appellants acted in bad faith in consummating the sale with Childress.
The trial court seems to base its finding of appellants' bad faith upon the fact that Nollner (1) had listed the property for sale for $200,000 with other brokers; (2) had applied to have the zoning of the property changed from H--2 (highway frontage) and R-E (residence estates) to T-C (mobile home park); and (3) had told respondent that, 'I'm seriously considering taking the property off the market altogether.'
The threat of Nollner 'to take the property off the market altogether,' or words to that effect, upon which the trial court finds 'bad faith,' was meaningless to this transaction. Such a statement, made on April 7, 1970, could not possible have prejudiced respondent and amounted to bad faith against him, because during the grace period respondent had a continuing right, regardless of appellants' actions or intentions, to sell the property upon the terms of the original agreement to anyone to whom he had shown the property during the original six (6) months. On the other hand, since respondent had no right during the grace period to show the property to or negotiate with new prospects, he therefore had no interest or right in having the property remain on the market. The fact that appellants listed the 'Hitchin' Post Motel' property with another broker on February 16, 1970, at a price of $200,000 was not significant and certainly not prejudicial to respondent. He did not have an exclusive listing, and the higher price could have only enhanced his chances to sell it for $175,000, and upon the terms of his listing agreement. The listings on June 7, 1970 and July 1, 1970 at a price of $200,000 were executed at a time well beyond respondent's grace period and could not be considered prejudicial to him. Appellants' proceeding to obtain a change of zoning to the classification of 'mobile home park' during the grace period could do nothing but improve respondent's chances to procure a sale with Childress or anyone else with whom he might have acquainted the property during the original six months. It did nothing to...
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