Snell v. Parlette
| Decision Date | 05 June 1979 |
| Docket Number | No. 20975,20975 |
| Court | South Carolina Supreme Court |
| Parties | Joyce SNELL and the Huguenin Company, Appellants, v. Marion PARLETTE d/b/a Marion Parlette Company, Respondent. |
Stuart G. Anderson, Jr., and Charles W. Marchbanks, Greenville, for appellants.
Robert M. Ariail, Greenville, for respondent.
This is a dispute between two real estate agencies over the division of a real estate commission. The lower court held that respondent Marion Parlette d/b/a Marion Parlette Company was entitled to 11/12 of the commission and that appellants Joyce Snell and The Huguenin Company were entitled to 1/12 of the commission. We affirm.
Broadus Durant, Sr. died in Greenville on September 10, 1965, leaving as part of his estate a tract of land that is the subject of this action. By order of the circuit court dated November 7, 1967 the twelve heirs of Broadus Durant, Sr. were named, and the widow of Broadus Durant, Sr., Nancy Durant, was directed to sell the property within a reasonable time and divide the proceeds among the twelve heirs. Nancy Durant is not one of the twelve named heirs.
On April 29, 1976, appellant Joyce Snell, a real estate agent for appellant The Huguenin Company, obtained an exclusive listing for the Durant property. The listing was signed by Joyce Snell, Nancy Durant, Myrtice Durant Thomason and Broadus Durant, Jr. Myrtice Durant Thomason and Broadus Durant, Jr. are the only heirs of Broadus Durant, Sr. who reside in this State. This exclusive listing expired on October 26, 1976 and its validity is not at issue.
On October 12, 1976 Myrtice Durant Thomason and Broadus Durant, Jr. executed an extension of the exclusive listing agreement through April 26, 1977. Nancy Durant did not sign the extension although she was present when it was executed.
Thereafter, on or about March 25, 1977 respondent Marion Parlette d/b/a Marion Parlette Company located a purchaser for the Durant property. Parlette prepared a contract of sale and presented it to The Huguenin Company to obtain the signatures of the twelve heirs. Before the contract of sale was executed by the heirs, The Huguenin Company modified the contract so as to require the twelve heirs to pay a commission of ten percent "to Joyce Snell and/or Marion Parlette, Realtor." A dispute subsequently arose between the realtors over the division of the commission and this action was initiated by appellants.
The matter came before Judge Eppes without a jury on stipulations, exhibits and depositions. It was agreed that appellants would be entitled to one-half the commission under Rule No. 15 of the Rules and Regulations of Professional Practice of the Greenville Board of Realtors as a listing broker if at the time of the sale appellants held a valid exclusive listing for the property. It is undisputed that appellants' only claim to a portion of the commission is its claim under Rule No. 15 of the Greenville Board of Realtors; and it is further undisputed that this claim cannot exceed one-half the commission.
Since appellants initiated this action, the burden was upon them to establish their claim under Rule No. 15 by a preponderance of the evidence. Thus, the central question at trial was whether appellants established that they held a valid exclusive listing for the property at the time of sale.
The only listing held by appellants at the time of the sale was the extension listing signed by Myrtice Durant Thomason and Broadus Durant, Jr. Appellants contended at trial, however, that this listing was binding on Nancy Durant and all twelve heirs. Appellants argued that Nancy Durant acquiesced in the extension listing agreement even though she did not sign it, and that Myrtice Durant Thomason possessed the requisite authority to sign the extension listing agreement for the ten nonresident heirs.
The only evidence introduced by appellants to establish these contentions were the stipulations of testimony of appellant Snell and Myrtice Durant Thomason. Ms. Snell's stipulation of testimony contains the following statement:
That during the tenure of the original listing, Snell talked with all members of the Durant family and owners of the property involved about the listing and on every occasion all members of the family acquiesced in the handling of the business affairs of the family by Myrtice Thomason; that due to the age of Nancy Durant and her physical and mental condition, the majority of all dealings with her were through Myrtice Thomason.
That on October 12, 1976, an extension agreement of the original listing was executed by Myrtice D. Thomason and Broadus Durant, Jr., in the presence of and with the acquiescence and consent of Nancy Durant and with the acquiescence and consent of other owners of the property; that the extension agreement was attached to the original listing and further efforts were made by Joyce Snell and The Huguenin Company to market the properties involved. On October 12, 1976, Nancy Durant signed another extension agreement on adjacent property not involved in this action.
The stipulation of testimony of Myrtice Durant Thomason contains the following statement:
That on or about October 12, 1976, an extension agreement was signed by Myrtice Thomason and Broadus Durant extending the initial listing until April 26, 1977. That the extension was executed at Nancy Durant's home and in Nancy Durant's presence and that Nancy Durant acquiesced in said extension; that the majority, if not all, of the remaining owners of the property were contacted by telephone and acquiesced in the extension of the listing. That Defendants deny that Nancy Durant acquiesced in the extension.
The lower court found as a fact (1) that the extension listing agreement was not binding on Nancy Durant because she did not sign it; and (2) that the extension listing agreement was not binding on the ten nonresident heirs because Myrtice Durant Thomason was not authorized to sign the extension listing agreement for them. Appellants challenge each of these findings on appeal.
The lower court further found that appellants did have a valid exclusive listing agreement for the Durant property to the extent of the interest owned by Myrtice Durant Thomason and Broadus Durant, Jr. Thus, the lower court found that appellants possessed a valid exclusive listing agreement for 2/12 of the Durant Property. The lower court applied Rule No. 15 to this finding and awarded appellants one half of the portion of the commission attributable to the 2/12 of the property owned by Myrtice Durant Thomason and Broadus Durant, Jr. The balance of the commission was awarded to respondent as the selling broker.
As this is an action at law tried by the judge without a jury, the findings of fact by the trial judge have the force and effect of a jury verdict and are conclusive on appeal unless they are found to be without evidentiary support, or are controlled by an error of law. We may review the evidence, not to determine the preponderance thereof, but to determine whether there is any evidence that reasonably supports the factual findings by the judge. We are not at liberty to decide the appeal on the basis of our view of the preponderance of the evidence. Townes Assoc. Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).
First, appellants argue that Nancy Durant's...
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