Riddle v. Driebe
| Decision Date | 04 February 1980 |
| Docket Number | No. 58807,58807 |
| Citation | 265 S.E.2d 92,153 Ga.App. 276 |
| Parties | RIDDLE v. DRIEBE. |
| Court | Georgia Court of Appeals |
Glover McGhee, John F. Sacha, G. Bland Byrne, Atlanta, for appellant.
John E. Talmadge, Barry S. Mittenthal, David A. Handley, Jack O. Morse, Atlanta, Charles J. Driebe, Jonesboro, for appellee.
Legal malpractice. The appellant Riddle seeks the reversal of a grant of summary judgment to attorney Driebe based upon the running of the statute of limitation. The rather convoluted facts of this case show that Executive Equities, Inc. unsuccessfully attempted to borrow $2,000,000 in order to purchase land. Appellant Riddle, becoming aware of the difficulty, prevailed upon Georgia International Corp. to act as guarantor for such a loan and Executive Equities was enabled to obtain the loan. As compensation to Riddle for his services, the president of Executive Equities orally agreed to pay Riddle a 10% real estate commission when and if the property was sold. A sale of the property would have provided Riddle with a commission of slightly in excess of $500,000, because of the enhanced value and sale price of the property. A tentative purchase option agreement which provided for the 10% commission was drawn up between Executive Equities and Riddle. This tentative agreement was never executed. The attorney for Executive Equities objected to such a large fee and apparently advised the president to seek a lower figure. This objection was communicated to Riddle. Riddle then asked his attorney, Driebe, to draw what ended up as an exclusive sales agency agreement. Riddle furnished Driebe with a copy of the tentative purchase option agreement. Driebe prepared a contract for Riddle in accordance with Riddle's directions which provided for the payment of a 10% sales commission. However, it further appears that both Riddle and the president of Executive Equities were aware that a separate purchase option agreement covering the commission objections of Executive Equities' attorney was to be signed by Riddle and Executive Equities spelling out a commission different from that provided in the sales agency agreement. It was understood by both Riddle and the president of Executive Equities that the exclusive sales agency agreement was to be contemporaneous with and be supplemental to the purchase option agreement drawn up by Executive Equities and was designed to overcome the objections of Executive Equities' attorney as well as to protect the 10% sales commission orally promised to Riddle. However, the sales agency agreement by its own terms was made subject to the aftersigned purchase option agreement. Driebe drew up the sales agency agreement in time for Riddle to carry it with him to the closing of the loan. Executive Equities and Riddle executed the sales agency agreement calling for a 10% commission immediately prior to Riddle's execution of the purchase option agreement. Riddle stated that he signed that latter agreement but did not examine its contents, assuming that it provided for the same commission as the sales agency agreement. The purchase option agreement actually provided that Riddle's commission would be limited to $100,000. Any discrepancy between the two documents was unknown to Driebe at the time of the signing. There was an amendment to the sales agency agreement subsequent to the signing of the purchase option agreement but the discrepancy between the 10% commission and the sum of $100,000 was not addressed. It is uncontested that Driebe was not present when either the purchase option agreement or the sales agency agreement was signed and did not give Riddle any advice as to whether to sign either document. Also, there is no contention that the terms of the sales agency agreement did not contain the provisions requested by Riddle. The original sales agency agreement prepared by Driebe is dated September 30, 1971, and the amendment thereto dated May 31, 1972.
In 1972 or 1973, the property sold. Riddle became aware of the discrepancy in the amount of commission and on or before October 5, 1973, sought the services of an attorney other than Driebe to assist him (Riddle) in collecting his 10% sales commission. This attorney communicated with Executive Equities and, referring to the sales agency agreement, indicated that Riddle would insist upon his 10% commission. After some negotiation, on October 10, 1973, the attorney for Executive Equities took the position that the $100,000 commission provided in the purchase option agreement took precedence over the 10% provision in the exclusive sales agency agreement and indicated, in effect, that if Riddle insisted upon the 10% figure, no commission would be paid until the discrepancy was resolved by litigation. Upon advice of counsel, on October 1, 1974, Riddle accepted the $100,000 and executed a full release to Executive Equities. Riddle offered evidence by deposition that Driebe had continued to insist in early 1974, a period of several months after the dispute arose with Executive Equities' attorney as to which of the two agreements was enforceable that the exclusive sales agency agreement was a valid and enforceable document. It is these protestations by Driebe that Riddle contends amounted to fraud on the part of Driebe and tolled the statute of limitation. Riddle filed the present complaint on October 20, 1977, over 51/2 years after the last document was prepared by Driebe, over four years after Riddle made demand for the 10% commission and was told that such payment would not be made because of the precedence of the purchase option agreement over the exclusive sales agreement, but less than four years after Driebe allegedly last stated that the sales agency agreement was a...
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