Sutton v. Roth, Wehrly, Heiny, Inc., 3-1279

Citation418 N.E.2d 229
Decision Date10 February 1981
Docket NumberNo. 3-1279,3-1279
PartiesMaurice SUTTON and Lorraine Sutton, Appellants (Defendants Below), v. ROTH, WEHRLY, HEINY, INC., Appellee (Plaintiff Below). A 334.
CourtCourt of Appeals of Indiana

David Peebles, Fort Wayne, for appellants.

Gary J. Rickner and John F. Lyons, Barrett, Barrett & McNagny, Fort Wayne, for appellee.

HOFFMAN, Presiding Judge.

Maurice and Lorraine Sutton appeal the judgment of the trial court in favor of Roth, Wehrly, Heiny, Inc., (Realty Corp.) in a breach of contract action. The issues as stated by the Suttons are:

(1) whether plaintiff Corporation can recover, when it has failed to prove that it is a licensed real estate broker as required by statute (2) whether there was sufficient evidence, or any evidence, to support a finding that the termination of the listing agreement was in bad faith, that there were "negotiations" while the listing agreement was in effect, and that plaintiff-appellee did not abandon the contract by withdrawing the property from the market, thereby creating an estoppel, all of which are essential elements which plaintiff must prove in order to recover; and

(3) assuming a termination in bad faith by defendants-appellants, whether plaintiff-appellee can recover a full commission as damages, or whether it must prove its expenses and the value of its services as the proper measure of damages.

On November 2, 1976 the Suttons entered into an exclusive listing contract with the Realty Corp. for the purpose of selling a motel. The contract was to extend from November 2, 1976 to May 2, 1977. The clause at issue in this action provides:

"If said real estate is sold or exchanged within 90 days after the expiration of the term of this agreement to any person, firm or corporation with whom during the exclusive period of this listing you, your representatives or myself or ourselves had negotiations relative to the purchase of said property for said price listed herein or for a price and upon terms acceptable to me or us. I or we agree to pay you for your services a sum equal to 7% of the gross sales or exchange price thereof, provided, however, that this extension clause shall not be applicable and binding during the term said real estate is relisted with some other licensed Broker under an exclusive listing contract. This contract is enforceable without relief from valuation and appraisement laws and with attorney fees."

In December 1976 an agent for the Realty Corp. showed the motel to three men, including David Nolan. The group decided against investing in the motel. Sometime later David Nolan and his wife entered into negotiations with the Suttons for the purchase of the motel. The purchase contract was signed on June 15, 1977.

On February 28, 1977 Mr. Sutton contacted the Realty Corp. and requested a cancellation of the listing contract. The agent to whom Sutton talked stated that it was against the Realty Corp.'s policy to cancel an exclusive listing contract. Instead of cancelling the contract, the agent agreed to withdraw the motel from the Multiple Listing Association and to stop advertising the motel. This would allow the contract to die a natural death. The contract was neither cancelled nor returned to the Suttons.

On May 9, 1977 an agent from the Realty Corp. sent a letter to the Suttons advising them that if anyone with whom negotiations were held during the term of the contract in fact purchased the land within ninety days after expiration of the contract, it was entitled to a commission. When the land was sold on June 15, the Suttons refused to pay the commission. The Realty Corp. thereafter brought this action for breach of contract. At trial the jury returned a verdict in favor of the Realty Corp. for the sum of $23,837.

The Suttons initially contend that the judgment is contrary to law and not supported by sufficient evidence in that the Realty Corp. failed to prove that it is a licensed real estate broker under the laws of the State of Indiana. 1 Such proof is required by IC 1971, 25-34-1-9 (Burns Code Ed.) 2 which provides:

"Commissions Actions to collect Allegations. In all actions for the collection of a commission or other compensation for the sale of real estate and filed in the courts of this state after October 1, 1949, it shall be alleged and proved therein that at the time the cause of action arose the party seeking relief was a dully licensed real estate broker or real estate salesman of the state of Indiana."

This Court's standard of review for sufficiency claims is well established. An appellate court will neither weigh the evidence nor judge the credibility of the witnesses, but will look only to that evidence most favorable to the appellee and the reasonable inferences to be drawn therefrom. The verdict of the jury will be set aside only where it is against all the evidence, where there is a total lack of evidence or where it is contrary to uncontradicted evidence.

Although the evidence as to whether the Realty Corp. was a licensed broker is limited, the exclusive listing contract was admitted into evidence without objection. The contents of the contract at the very least raise the inference that the Realty Corp. was a licensed broker. In particular, the contract makes provisions for what is to occur if the property is relisted with some other licensed broker after expiration of the contract, but before the ninety-day extension has elapsed. This in itself is sufficient evidence to determine that the Realty Corp. complied with the statute.

The Suttons next contend that the evidence is insufficient to support a finding that the termination of the contract was done in bad faith. Additionally the Suttons charge that there is insufficient evidence to establish that negotiations had taken place during the life of the contract and also that the Realty Corp. did not abandon the contract when it withdrew the motel from the market. According to the Suttons, these are essential elements which must be proven by the Realty Corp. before any recovery can be allowed.

Initially it must be noted that this is a breach of contract action. The plaintiff (Realty Corp.) in such cases must prove that it has performed or offered to perform the terms of the contract up to the time of the alleged breach....

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    ...the evidence, where there is a total lack of evidence, or where it is contrary to uncontradicted evidence. Sutton v. Roth, Wehrly, Heiny, Inc., (1981) Ind.App., 418 N.E.2d 229, 232, trans. denied. This court will not reweigh evidence or resolve the credibility of witnesses. Riverside Insura......
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    ...avoid coverage, the burden of proving that the loss was known is on the party seeking to avoid coverage. See Sutton v. Roth, Wehrly, Heiny, Inc. (1981) Ind.App., 418 N.E.2d 229, 232 (holding that, in a breach of contract action, defendant has burden of proof on any matters of avoidance) tra......
  • Goldman v. Fadell
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 4, 1988
    ...In such circumstances, the Indiana courts have concluded that a broker has complied with the statute. See Sutton v. Roth, Wehrly, Heiny, Inc., 418 N.E.2d 229, 232 (Ind.Ct.App.1981). When we view all of the evidence presented in the light most favorable to Fadell, the non-movant in this moti......
  • Consolidated Roofing & Supply Co., Inc. v. Grimm
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    ...for which the Grimms had the burden of proof. See Wagstaff v. Remco Inc., 540 P.2d 931, 934 (Utah 1975). Cf. Sutton v. Roth, Wehrly, Heiny, Inc., 418 N.E.2d 229, 232 (Ind.App.1981); Foster v. Jackson, 339 So.2d 865 (La.Ct.App.1976). Once Consolidated had made a prima facie showing that ther......
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