Prahm v. Pickford Real Estate, Inc.
| Decision Date | 08 January 2014 |
| Docket Number | D062477 |
| Court | California Court of Appeals |
| Parties | OLE PRAHM, Plaintiff and Appellant, v. PICKFORD REAL ESTATE, INC., Defendant and Respondent. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2010-00056983-CU-BC-NC)
APPEALS from a judgment of the Superior Court of San Diego County, Thomas P. Nugent, Judge. Reversed and remanded with directions.
Burkhardt & Larson and Philip Burkhardt for Plaintiff and Appellant.
Rheinheimer Smigliani Drake and Jane Rheinheimer, Elizabeth Drake for Defendant and Respondent.
Following a bench trial on plaintiff and appellant Ole Prahm's complaint for recovery of a real estate broker's commission, the trial court found Prahm was theprocuring cause of the sales transaction and awarded him $120,210 in damages, constituting one-half of the commission received by defendant and respondent Pickford Real Estate, Inc., doing business as Prudential California Realty (Prudential). The court also awarded Prahm prejudgment interest from the date of the filing of his complaint under Civil Code1 section 3287, subdivision (b).
Prahm appeals, contending the court erred by (1) failing to award him the full $247,225 commission due him under Multiple Listing Service (MLS) rules and pursuant to section 3302 and (2) computing prejudgment interest from the date of the filing of his complaint, rather than from December 31, 2007, the date escrow closed and Prahm's commission was to be paid. He argues his success on either of these contentions will entitle him to recover an additional $13,134.70 in expert witness fees under Code of Civil Procedure section 998.
Prudential cross-appeals. It contends the court erred by awarding Prahm prejudgment interest from the date Prahm filed his complaint. It also contends there is no substantial evidence to support the court's finding that Prahm was the procuring cause of the sales transaction.2
We conclude substantial evidence supports the court's finding that Prahm was the procuring cause of the sales transaction at issue and entitled to a commission, but the evidence does not support its findings as to Prahm's damages because his entitlement to a 2.5 percent commission was fixed by Prudential's MLS listing, and there is no evidence the parties' entered into an enforceable modification of that listing. We further conclude Prahm is entitled to prejudgment interest as a matter of law on the commission amount, which was payable to him upon the close of escrow on December 31, 2007. We lack jurisdiction as to Prahm's challenge pertaining to his Code of Civil Procedure section 998 pretrial offer to compromise. Accordingly, we reverse the judgment and direct the trial court to enter a new judgment described below.
Some of the background facts are taken from the parties' stipulated facts within their joint trial readiness conference report, and from the trial court's statement of decision. Because the court found in Prahm's favor on the procuring cause issue, we view the evidence supporting its finding in the light most favorable to Prahm.
Prahm is a licensed real estate salesperson under California law and a subscriber to the MLS.3 In 2006 and 2007, Prahm was an agent of Coldwell Banker, an MLS broker participant. Prudential is a real estate broker licensed under California law and a broker participant with the MLS.
In August 2006, Prudential entered into a written listing agreement with Donald Sammis in his capacity as a limited partner of a partnership, in which Sammis agreed to list real property in Rancho Santa Fe, California (the Sammis property or the property) with Prudential at a list price of between $15,750,000 and $17,750,000, under terms specified in the agreement. The California Association of Realtors form agreement, labeled an "Exclusive Authorization and Right to Sell," states in part, "Seller has been advised of Broker's policy regarding cooperation with, and the amount of compensation offered to, other brokers . . . by offering MLS Brokers: . . . 2.500 percent of the purchase price . . . ."
That same month, Prahm received an email from a family friend who informed him that her cousin who lived on the East Coast, Janice Joerger, wanted to look at houses in the Rancho Santa Fe area of San Diego for potential purchase. The next day, Prahm telephoned Janice Joerger and she emailed Prahm her contact information. Prahm began taking steps to locate properties within the Joergers' parameters of style, privacy andviews, starting with about 70 homes and narrowing it down to about 36. During the rest of the month and into October, Prahm communicated about nine times with the Joergers via their joint email address concerning several houses in the area and general information about Rancho Santa Fe.
In October 2006, Prudential filed Sammis's property with the MLS and by doing so made a unilateral, contractual offer of compensation to other MLS broker participants for their services in selling the property. Consistent with the listing agreement, the MLS listing filed by Prudential specifies the compensation to the buyer's agent as 2.5 percent of the gross selling price.
In March 2007, Prahm met with Janice Joerger to discuss the properties she wanted to see. He brought several property listings, including for the Sammis property, which he placed first on his list. Prahm felt the Sammis property had all of the qualities the Joergers wanted in a house. He printed out the MLS listing for the property, and made notes on it related to his upcoming March 16, 2007 showing. He also contacted Kathleen Hawkes, Sammis's selling agent with Prudential, and told her he wanted to show the property to a prospective purchaser who he had prequalified for his financial ability to purchase a house of that value. Prahm and Janice Joerger met on March 16, 2007, and toured the Sammis house and other houses. Janice Joerger was impressed with the Sammis property and felt it had everything they were looking for. By early April, Kurt Joerger had arrived in San Diego, so Prahm emailed Hawkes to schedule another viewing of the Sammis property and communicated with the Joergers regarding the schedule.
On April 12, 2007, Prahm and the Joergers toured several houses, arriving last at the Sammis property. According to Prahm, they parked separately in the circular driveway and for about 45 minutes walked through the house room by room, through the garage to a guest house. The Joergers asked Prahm how to develop the property in view of the fact it was on two legal parcels, and inquired about the presence of easements, the homeowners association, remodeling, and the size of the master living room. Kurt Joerger had asked Prahm about the development potential for the property, and so Prahm conducted some research with the homeowners association manager and sent a lengthy email to the Joergers with information from the association, telling them the lot could not be split and giving them information about the history of lot split attempts, the driveway, and an open field on the property. Given his conclusion that the property constituted only one legal lot, Prahm related that he had estimated its value at no more than $10 million.
After that meeting, Prahm and the Joergers exchanged emails about properties other than the Sammis property. On April 19, 2007, Prahm emailed the Joergers about his opinion on the value of the Sammis property, and sought feedback from them about what they had seen. Kurt Joerger responded by telling Prahm that the Sammis property was "all positive," and "the only real contender"; his only perceived problems with the property were road noise, renovation and total cost; and the other properties did not meet his expectations. During April 2007, Prahm continued to look for properties at Kurt Joerger's request, and he scheduled appointments for other homes as well as the Sammis property during high traffic times. On or about April 24, 2007, they went to the Sammisproperty and assessed the view and road noise. Thereafter, Prahm advised Hawkes that the Joergers were still interested in the property.
In early May 2007, Prahm prepared a residential purchase agreement for the Sammis property at a purchase price of $11,750,000, a number the Joergers had asked Prahm if Sammis might be willing to accept. Prahm did not present the offer to the Joergers; he prepared it for his file so he would be ready in the event they became willing to make an offer. During May 2007, Prahm continued email communications with the Joergers concerning drawings they had asked him to provide on the Sammis property and another property, and about finding rental housing in Rancho Santa Fe. Kurt Joerger thanked Prahm for his time and patience, and told Prahm he had appreciated speaking directly with Mr. Sammis. Prahm also continued to show the Joergers properties in areas surrounding Rancho Santa Fe. In late May 2007, Prahm sent the Joergers a sample residential purchase contract and discussed an exclusive buyer-broker agreement. Because Prahm was planning a trip out of the country, he also prepared a real estate agency relationship disclosure form so that he would have the paperwork executed before he left.
On June 18, 2007, while Prahm was away, Kurt Joerger sent a letter of intent on the Sammis property to Cathy Gilchrist, another agent working with Hawkes, offering $10,000,000 subject to acceptable financing. Joerger added a postscript on his email to Gilchrist stating, "I will copy [Prahm] on this upon his return." When Prahm returned from his trip in mid-June 2007, he was surprised to learn about Joerger's offer. On June...
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