Perimeter Realty v. Gapi, Inc.
| Decision Date | 30 March 2000 |
| Docket Number | No. A99A2282, No. A99A2283. |
| Citation | 533 S.E.2d 136,243 Ga. App. 584 |
| Parties | PERIMETER REALTY et al. v. GAPI, INC. et al. GAPI, Inc. et al. v. Perimeter Realty et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Stanley E. Kreimer, Jr., Atlanta, for appellants.
Bondurant, Mixson & Elmore, M. Jerome Elmore, Lynn M. Adam, David G. Brackett, Holt, Ney, Zatcoff & Wasserman, Joseph S. Jacobson, Jay F. Castle, Atlanta, for appellees. PHIPPS, Judge.
Perimeter Realty, JSH Properties, Inc., and Holliday, Fenoglio & Tyler (collectively "the brokers") claim a commission on transfers of real estate by Eugene Anderson, president of GAPI, Inc., then known as Anderson Properties, Inc., and GAPI, Inc. (collectively "Anderson Defendants") of Atlanta, to Highwoods/Forsyth Limited Partnership of North Carolina. The brokers' agents were initially unaware of one another's discussions with Anderson regarding financing or selling Anderson Defendants' real estate. As negotiations proceeded, Anderson Defendants brought the brokers together, and the brokers agreed to share a commission. Anderson Defendants later relieved the brokers from direct participation in the real estate transfer but continued to negotiate their commission. After the transactions were completed, the brokers were paid nothing, and they sued Anderson Defendants and Highwoods under numerous theories of recovery. All parties filed motions for summary judgment.
The trial court denied summary judgment to the brokers as to issues of liability for a commission and for attorney fees, and we affirm. We affirm the trial court's denial of summary judgment to Anderson Defendants on the brokers' claim of quantum meruit. The trial court found that there were fact questions as to issues of fraud and conspiracy and denied summary judgment to Anderson Defendants on those claims. We disagree and reverse. We affirm the trial court's grant of summary judgment to Anderson Defendants on claims of Racketeer Influenced & Corrupt Organizations Act violations and breach of contract. The court further granted summary judgment to Highwoods as to all claims against it, and we affirm.
Case No. A99A2282 is the brokers' appeal. Case No. A99A2283 is Anderson Defendants' cross-appeal.
JSH Properties, Inc.
On September 7, 1996, Thomas Ross, a real estate agent with JSH Properties, Inc., met Anderson at the home of one of JSH's brokers, William Marett. Ross told Anderson that, through Ross's uncle who worked for Highwoods, he knew that Highwoods was interested in expanding into Atlanta. Ross asked Anderson whether he would be interested in selling his company. Ross deposed that Anderson responded yes and agreed that if Ross introduced Anderson to Highwoods and Highwoods acquired Anderson Defendants' real estate, Ross would be entitled to a commission.
Three days later, Ross and Marett met Anderson at Anderson's office. During that meeting they discussed issues relating to the exchange of Highwoods's partnership units for Anderson Defendants' real estate, whether Anderson could effectuate a property sale without his partners' approval, and a commission fee arrangement. In his deposition, Ross stated that they concluded that he would represent Anderson Defendants as their real estate agent and that they:
actually agreed on a commission structure at that meeting, which was one percent of all income-producing properties that were transferred, based on the total value of the income-producing properties; one percent of any value that they put on his business as an entity; and two percent of any raw land that was transferred.
According to Ross, Anderson gave him an information package of Anderson Defendants' real estate, and "Anderson authorized me to represent him to sell every piece of property that was in the package that he gave to me, which was a complete package of every property that he owned and properties that he managed." Ross further deposed:
Anderson represented himself to be in a position to bind the partners, and he said that he would pay a commission. We went over the fee structure. When I say he, I mean he was there as a partner and he was, you know, discussing a commission agreement, and I drafted the agreement to—to cover him personally and to cover all of any entity related to Gene Anderson or Anderson Properties, Inc. or GAPI, you know. To cover almost every entity that could possibly be related to Gene Anderson that he could bind.
Ross deposed that he reduced the oral agreement to writing, then delivered copies of it to Anderson some time before September 23. Anderson never signed the document.
Ross forwarded Anderson Defendants' information package to Paul Kreckman, one of his contacts at Highwoods. He then set up a meeting for September 25 for Highwoods to meet Anderson.
Holliday, Fenoglio & Tyler
In July 1996, William Tyler, a real estate broker with Holliday, Fenoglio & Tyler, met with Anderson to discuss procuring equity or debt financing for three development projects. Tyler entered into a written 90-day exclusive agreement, dated July 31, 1996, with Anderson Defendants that provided that he would make presentations to a defined list of potential candidates. Anderson requested that Tyler place Highwoods on that list. The agreement provided, "If the [financing] commitment is obtained by [Holliday, Fenoglio & Tyler] and accepted by [Anderson Defendants], then [Anderson Defendants] agree to pay a commitment fee to us in the amount equal to one and one-half percent [of] the total of project cost minus your equity contribution."
Although Tyler prepared materials regarding the three development projects for potential lenders or investors, he did not prepare anything for Highwoods specific to the three projects. He did, however, prepare "certain information on the Atlanta industrial markets for Highwoods," and between September 5 and September 15, Tyler contacted a Highwoods partner, who was located in Tennessee, to ascertain whether Highwoods had any interest in financing a project in the Atlanta area, without disclosing Anderson Defendants' name. The Tennessee partner referred Tyler to John Turner, naming Turner as the person who would be in charge of any activities in Atlanta.
On September 23, Anderson invited Tyler to a meeting to discuss "what [they had] been working on." At that meeting, Tyler learned that two other brokers were also working on matters between Anderson and Highwoods and that a meeting between Anderson and Highwoods had been scheduled for September 25. Tyler deposed that during the September 23 meeting, his agreement with Anderson was extended. After the September 23 meeting, Tyler spoke with Turner regarding opportunities for engaging in a joint venture with, or providing equity financing to, Anderson Defendants. But it is undisputed that none of the three projects named in the exclusive agreement was developed.
Perimeter Realty
On August 20, 1996, Thomas Adler, director of Highwoods Properties, Inc. (the general partner of Highwoods/Forsyth Limited Partnership), contacted Sam Scaffide, principal broker of Perimeter Realty, regarding Highwoods becoming a "major player" in the Atlanta market. Two days later, Scaffide telephoned Anderson, and without disclosing Highwoods' identity, told Anderson that a real estate investment trust ("REIT") was interested in purchasing properties in the Atlanta area. Scaffide told Anderson that the REIT would not pay any brokers' commission, and Anderson stated that as the seller, Anderson Defendants would pay the commission. Scaffide deposed that they agreed to work in "good faith together" but that no property prices were discussed and no amount of commission was determined.
By August 29, Anderson had forwarded to Scaffide an information package concerning Anderson Defendants, and Scaffide forwarded the package to Adler of Highwoods. Adler agreed to forward the material to either Turner or Ron Gibson, both Highwoods executives, and to set up a meeting with Anderson. But around September 16, Adler telephoned Scaffide and told him that Turner and Gibson had contacted Anderson and scheduled an introductory meeting for September 25. At that point, Scaffide revealed to Anderson that Highwoods was the REIT that had expressed an interest in purchasing Atlanta property. Several days later, Anderson invited Scaffide to attend a September 23 meeting, where Scaffide learned that two other brokers were also working on matters between Anderson Defendants and Highwoods.
Recognizing that several brokers might claim a commission in connection with a Highwoods's acquisition of Anderson Defendants' real estate and intending to pay only one fee to one broker, Anderson invited Ross, Tyler, and Scaffide to a meeting on September 23, 1996, in anticipation of the September 25 meeting with Highwoods. At that meeting, Anderson introduced the agents to each other, informing them that they each had been working on the same transaction from different angles. Anderson suggested that they confer with each other about their respective roles to avoid a dispute among the brokers that could jeopardize a transaction between Highwoods and Anderson Defendants. The brokers agreed to share a commission equally, and Ross reported to Anderson that their decision was:
based upon the commission agreement that he had agreed to with Bill Marett and [Ross], and we stated at that time that it was one percent of the total value of income-producing properties, one percent of any value put on his company as an entity, and two percent of any land that was transferred in the transaction.
According to Ross, Anderson responded,
At the end of the meeting, the attendees agreed that Ross would draft a written commission agreement for approval by the parties. Ross...
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