Parrish v. Ragsdale Realty Co., Inc.

• Decision Date: 16 July 1975
• Docket Number: No. 50783,No. 1,50783,1
• Citation: 218 S.E.2d 164,135 Ga.App. 491
• Parties: J. G. PARRISH v. RAGSDALE REALTY COMPANY, INC., et al
• Court: Georgia Court of Appeals

Page 164

218 S.E.2d 164

135 Ga.App. 491

J. G. PARRISH v. RAGSDALE REALTY COMPANY, INC., et al.

No. 50783.

Court of Appeals of Georgia, Division No. 1.

July 16, 1975.

Lang & Broome, Edward Lang, Decatur, for appellant.

Donner, Brown & Rosenbluth, R. Jeffrey Morrison, Robert W. Coleman, S. Phillip Heiner, Atlanta, for appellees.

WEBB, Judge.

Parrish appeals from the grant of appellees' motion for summary judgment and the dismissal of his complaint with prejudice.

The amended complaint alleged in substance that Parrish was a licensed real estate broker; that he was employed by James B. Gilmore on behalf of Jabco Industrial Properties, Inc. to locate and arrange the purchase of a 540-acre industrial park from Southeast DeKalb Industrial Park, Inc.; that the fee to be paid him by the purchaser was $100 an acre; that he began negotiations with the seller, supplied Gilmore with information on the park and introduced Gilmore to the seller; that a contract was prepared and submitted to the seller for its approval about May, 1969 but the sale was not consummated; and that on August 10, 1972, Jabco Twenty-One, Inc., a wholly owned subsidiary of Jabco Industrial Properties, Inc. purchased the Park.

The complaint further alleged that appellees Jabco Industrial Properties, Inc., Ragsdale Realty Co., James B. Gilmore and Douglas Harris conspired to complete the sale but to avoid paying the agreed commission of $100 an acre to Parrish; that in furtherance of the conspiracy Jabco Twenty-One, Inc. was organized to complete the purchase of the park; that appellees wrongfully and fraudulently failed to contract Parrish to inform him that the sale was about to take place, since he was the procuring cause of the sale; that the fee of $54,000 was paid to Ragsdale Realty and divided in an unknown ratio among the appellees; and that since the sale as consummated was the result of the work and efforts of Parrish he was entitled to compensation in the amount of $54,000.

The appellees answered, denying the essential allegations, and moved for summary judgment based upon the pleadings, depositions and affidavits of the parties.

On appeal Parrish contends that the grant of the motion for summary judgment was erroneous because (1) there are genuine issues of material fact as to the performance required of him in order to earn his commission; (2) the evidence, construed most favorably to him, would authorize a jury to find that the sale of the park was procured directly from his efforts within a reasonable time; (3) he, rather than Harris acted as finder of the property and procured its sale; (4) he did not lose his right to compensation under his employment contract by not being present at all negotiations, or at the closing, or because the transaction was completed on terms different from those first proposed; and (5) there was a genuine issue as to whether Gilmore and Harris entered into a conspiracy to deprive him of his rightfully-earned commissions.

As we subsequently hold, these contentions are without merit. The deposition of Parrish established the following facts. During the period between 1966-1969 he did business as a sole proprietorship under the name of Parrish Realty, which was primarily engaged in selling land; his function and business was 'acting as what would be considered a real estate broker.' In 1968 Gilmore expressed to Parrish an interest in warehouse sites and also in purchasing an industrial park for Jabco. Parrish had learned in 1966 that William A. Kelly, the majority stockholder in Southeast DeKalb Industrial Park, was interested in selling the park and Gilmore expressed an interest in acquiring it when told it might be available. Parrish 'went out, got the plat, got the sewer and water information . . . and all other real estate type documentation . . ., the street layout and the railroad layout . . . I think I also got a topo map and presented these to Mr. Gilmore . . . I took him out and showed him the boundaries of the property, the various lots that could be considered . . . I introduced him to Mr. Kelly personally . . .'

Parrish and Gilmore verbally agreed that the commission, if the sale was put together, would be '$100 an acre on the park,' and that the park consisted of 'approximately 500-plus acres.' The commission would have gone to Parrish Realty Company because it was a broker's commission rather than a finder's fee. Appellant had an 'open listing' and would receive 'a commission on the sale of real estate.'

However, Kelly rejected Gilmore's proposal tye day it was presented in late 1968 or early 1969. Parrish had no subsequent dealings with any of the parties involved, and there were no further negotiations about the property until late in 1971 or early 1972.

Parrish was employed in 1969 by Stirling Homex Corporation and until July, 1972 sold modular construction in nine Southeastern States, working out of Montgomery, Alabama and Jackson, Mississippi. During this time he was in Atlanta only on weekends and did not have an office or a telephone listing for his real estate business, although his license was hung in the office of an attorney. The first time that Parrish had any knowledge or reason to believe that further negotiations might be taking place in regard to the Industrial Park was when he drove by it had ...