Premier Realty, LLC v. I.T.J. Inv., Inc.
| Decision Date | 19 June 2009 |
| Docket Number | No. 99,991.,99,991. |
| Citation | 209 P.3d 741 |
| Parties | PREMIER REALTY, LLC, d/b/a Remax Premier and Thomas C. Lassley, Appellants, v. I.T.J. INVESTMENTS, INC., Appellee. |
| Court | Kansas Court of Appeals |
David L. Dahl, of Johnson, Kennedy, Dahl & Willis, of Wichita, for appellants.
James R. Gilhousen, of Crockett & Gilhousen, of Wichita, for appellee.
Before McANANY, P.J., GREEN and CAPLINGER, JJ.
Premier Realty, LLC, D/B/A ReMax Premier (Premier), and Thomas C. Lassley (collectively referred to as Plaintiffs), real estate broker and a real estate agent, respectively, appeal from a summary judgment entered in favor of I.T.J. Investments, Inc. (ITJ), which denied them commissions under an exclusive right to sell agreement with ITJ. On appeal, the Plaintiffs contend that they alleged facts sufficient to permit a recovery of a commission under Kansas law because they had substantially performed their obligation under the listing agreement to sell a residence identified as 12518 W. Binter Court. We disagree. The record fails to show that the residence was sold, leased, or exchanged within the conditions and the time limit in the listing agreement. In addition, the Plaintiffs assert that they were entitled to a commission on a second residence identified as 12534 W. Binter Court because the evidence showed that ITJ hindered or prevented the Plaintiffs' ability to perform their part of the listing agreement, which excused the Plaintiffs' nonperformance of a condition precedent. The question whether the contract could have been performed was a disputed material question of fact, requiring us to remand for a trial on this issue. Accordingly, we affirm in part, reverse in part, and remand for trial.
ITJ is a developer of new homes; it is owned by Ray Jacoby and his wife. ITJ entered into a "`Listing Agreement Exclusive Seller Agency'" with the Plaintiffs on the properties located at 12518 and 12534 W. Binter Court to run from July 18, 2005, to January 18, 2006. This agreement was an "`Exclusive Right to Sell Agreement.'" The parties also entered into extensions of the 12518 and 12534 W. Binter Court listings to run through June 3, 2006.
Ronald Johnson is a retired accountant and friend of Jacoby's. He has known Jacoby for more than 40 years and still does Jacoby's accounting work. On one occasion, Johnson and his wife met Lassley when they came to look at 12518 W. Binter Court. Nevertheless, Plaintiffs never presented ITJ with an offer, written or otherwise, for the purchase of 12518 W. Binter Court. Plaintiffs also never notified ITJ that they considered Johnson as a prospective purchaser procured by them, required by paragraph 3 of the listing agreement. During the exclusive listing period, Jacoby instructed Lassley to pull 12518 W. Binter Court off the market because Johnson was going to live there. Moreover, Jacoby stated that he told Johnson that Johnson would "'get that house,'" referring to 12518 W. Binter Court. One witness, Jesse Helms, stated by affidavit that Jacoby told him and Lassley that Jacoby was selling the house to Johnson, but then paused and said, "`[W]ell, I'm just kind of giving it away, I'm not making any money on it.'"
Johnson began to occupy 12518 W. Binter Court in May 2006. Jacoby allowed Johnson to occupy the home based on their friendship. No deed was executed in Johnson's favor, and Johnson has never purchased or leased 12518 W. Binter Court. Nevertheless, Jacoby stated that if Johnson died, his wife would be allowed to continue living in 12518 W. Binter Court. Johnson sold his previous residence, and Jacoby stated that Johnson could sell 12518 W. Binter Court and keep the money from the sale.
On May 20, 2006, Lassley met Scott and Erika Plummer, who signed the guest book at an open house for 12534 W. Binter Court. Lassley requested that the Plummers enter into an Exclusive Buyer Agent agreement, the language of which requires a buyer's agent to "`promote the interest of the Buyer with the utmost good faith, loyalty, and fidelity.'" Lassley obtained signatures from the Plummers on a Transaction Broker Addendum, but not from Jacoby. Lassley also obtained the Plummers' signature on a purchase contract for 12534 W. Binter Court. Nevertheless, Jacoby objected to the sale price he had previously set, whereupon Lassley raised it by $2,900. The purchase agreement for 12534 W. Binter Court was contingent upon the sale of the Plummers' existing home, and Jacoby contended that he did not sign the purchase agreement for that reason.
Premier's managing broker, Todd Davis, stated by affidavit that he had a conversation with Jacoby in May 2006, during which time Jacoby said he would not sign the contract relative to the Plummers for 12534 W. Binter Court as long as he was being pressed for commission on 12518 W. Binter Court. Lassley echoed this allegation. Davis also stated that Jacoby looked only at the front page of the contract for 12534 W. Binter Court and he did not look at or mention the contingencies. Lassley likewise alleged that Jacoby did not mention contingencies until after this lawsuit was filed. When ITJ's listing with the Plaintiffs expired, it listed 12534 W. Binter Court with another broker, and the home was sold to the Plummers.
Plaintiffs sued ITJ for alleged commissions owed, in the amount of $29,874, for the sale or transfer of the subject properties under the exclusive listing agreement. ITJ moved for summary judgment, and the trial court granted ITJ's motion and dismissed all of Plaintiffs' claims.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. Korytkowski v. City of Ottawa, 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53 (2007).
A factual issue is not genuine unless it has legal controlling force as to a controlling issue, while a disputed fact immaterial to the issue does not preclude summary judgment. Muhl v. Bohi, 37 Kan. App.2d 225, 229, 152 P.3d 93 (2007). When there is no factual dispute, appellate review of an order for summary judgment is de novo. Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008). When reasonable minds could differ as to conclusions drawn from the material facts, summary judgment must be denied. Korytkowski, 283 Kan. at 128, 152 P.3d 53.
Plaintiffs first argue that the trial court's reliance on Wright v. Shepherd, 31 Kan. App.2d 484, 66 P.3d 921 (2003), is misplaced because it deals with an option contract. Nevertheless, Plaintiffs' argument is without merit. In Wright, the trial court determined that the broker was not entitled to a commission under an option contract when the option was exercised after the listing agreement expired. Although this situation differs from the present case, the trial court merely used Wright to set forth the general rules of contract construction, which are applicable to the present.
The trial court in the present case cited Wright for the proposition that the exclusive listing agreement must be interpreted and applied by its "'express terms and conditions.'" See 31 Kan.App.2d at 486-87, 66 P.3d 921 (citing Harrin v. Brown Realty Co., 226 Kan. 453, 459, 602 P.2d 79 [1979]). As Wright explains, this is the well-established law in Kansas regarding determination of commissions for real estate brokers, and nothing in the Wright decision implies that this law applies only to option contracts. Wright's applicability is further supported by the near identical wording of the Wright broker's exclusive listing agreement and Plaintiffs' listing agreement in the present case.
The interpretation and legal effect of written instruments are matters of law, and appellate courts exercise unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005). If a contract's terms are clear, the parties' intent is determined from the language of the contract without applying rules of construction. Anderson v. Dillard's Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007).
The parties to a broker's listing agreement are free to make the compensation of the broker dependent on any lawful conditions. The important question is what does the listing agreement provide? Paragraph 2 of the listing agreement states that before the Plaintiffs are entitled to a commission, one of two alternative events must occur:
"[T]he Broker [must produce] a ready, willing and able buyer for the property at the price and subject to the terms stated, or later agreed upon, or if the sale, lease or exchange of the property is made by the Seller or any other persons, during the term of the exclusive right to sell listing agreement."
Generally, construction of a listing agreement is construed against the broker because it is the broker who has authored the agreement. Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 449, 337 P.2d 992 (1959) ().
The Plaintiffs first argue that Johnson was a ready, willing, and able buyer. ITJ responds that the Plaintiffs did not provide evidence of Johnson's ability to buy sufficient to establish a dispute as to a material fact.
The trial court reasoned that Johnson...
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