Tammariello Properties, Inc. v. Medical Realty Co., Inc.

• Decision Date: 04 October 1989
• Docket Number: No. 88-489,88-489
• Citation: Tammariello Properties, Inc. v. Medical Realty Co., Inc., 549 So.2d 1259 (La. App. 1989)
• Parties: TAMMARIELLO PROPERTIES, INC., Plaintiff-Appellee, v. MEDICAL REALTY COMPANY, INC., et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana

Page 1259

549 So.2d 1259

TAMMARIELLO PROPERTIES, INC., Plaintiff-Appellee, v. MEDICAL REALTY COMPANY, INC., et al., Defendants-Appellants.

No. 88-489.

Court of Appeal of Louisiana Third Circuit.

Oct. 4, 1989.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Greg Guidry, Lafayette, for defendants-appellants.

Juneau, Judice, Hill & Adley, Pat Juneau, Lafayette, for plaintiff-appellee.

Before STOKER, DOUCET and YELVERTON, JJ.

YELVERTON, Judge.

This was an action brought by a realtor against the owner of property to determine whether a realtor's commission was contractually due on a sale, and if so, whether the commission included an assessment of the value of a portion of the property which was donated. Both sides moved for summary judgment. A summary judgment was granted for the realtor, and the owner appealed. We affirm the judgment decreeing that a realtor's commission was due. We reverse the judgment for a commission on the donated part, and grant summary judgment in favor of the owner holding that a fee assessed against the donation is not recoverable.

Tammariello Properties, Inc. (Tammariello) is the realtor. Medical Realty Company, Inc. (Medical Realty) and later, after liquidation, its shareholders, were the owners of the Hamilton Medical Building in Lafayette, the property involved in the sale and donation.

On March 26, 1985, Medical Realty entered into a contract entitled "Exclusive Right to Sell Agreement" (listing agreement) with Tammariello, whereby Medical Realty agreed to pay Tammariello a commission on the gross sales price of the Hamilton Medical Building. Because Medical Realty had already approached Lafayette General Hospital about buying the property, that original listing agreement expressly excluded Lafayette General as a potential purchaser of the property for whom a commission would be due unto Tammariello.

On June 4, 1985, the original listing agreement was amended by a document entitled "Addendum to Listing Agreement for the Sale of the Hamilton Medical Building located at 1211 Coolidge Boulevard," which provided for Lafayette General Hospital to be a potential purchaser of the property for whom a commission would be due unto Tammariello.

The initial listing agreement provided for an expiration date of August 15, 1985. However, on August 9, 1985, Medical Realty extended that agreement with Tammariello pursuant to the same terms and conditions as set out in the original listing agreement as amended. This second agreement did not expire until February 15, 1986, and included no exclusions of potential purchasers.

On March 10, 1986, Tammariello caused to be delivered to Medical Realty, by certified mail, a letter enclosing a list of persons with whom it had conducted negotiations regarding the purchase of the property. Specifically listed therein were the names of J.J. Burdin and Tom Becnel, as members of the Board of Directors of Lafayette General Hospital.

On December 30, 1986, Medical Realty, pursuant to a voluntary liquidation, transferred to its shareholders the assets of the corporation, including undivided interests in the property which had been listed with Tammariello. Contemporaneously therewith, the shareholders, by combination sale and donation, transferred the property to Lafayette General Hospital in two transactions. The improvements on the property were sold for $1,800,000 in cash, and the land itself was donated. The total value of the property, improvements and land, was appraised at $2,242,000.

Based on undisputed facts both sides filed motions for summary judgment. The trial court granted Tammariello's motion, and awarded him a realtor's fee of $89,680, based on a commission of four percent assessed on the cash part of the sale and the appraised value of the donated land.

Medical Realty (now its shareholders) on this appeal attack this judgment primarily on the ground that no commission was due at all, and alternatively, that no commission was due on the donated part.

WHETHER A COMMISSION IS CONTRACTUALLY DUE?

First, appellants contend that the June 4, 1985, addendum to the original listing agreement did not remove Lafayette General Hospital from the previous exclusion list, but rather excluded only a member of the Lafayette General Hospital staff or organization.

The trial judge found that the aforementioned addendum expressly amended the original listing agreement to include Lafayette General Hospital as a potential purchaser.

We agree with the trial judge. The addendum provided:

... that should any staff or member of the Lafayette General Hospital be involved in the purchase of the building, that Tammariello Properties would be due a commission agreed to on the initial listing agreement.

The unrebutted facts establish that Burdin, President of Lafayette General Hospital, was involved in the eventual purchase of the property, thus the terms of the listing agreement and addendum thereto encompassed the sale between appellants and Lafayette General Hospital. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La.C.C. art. 2046; Kalmn, Inc. v. Walker Louisiana Properties, 488 So.2d 340 (La.App. 3d Cir.1986).

Next, the Medical Realty shareholders contend that the word "contact" as used in the listing agreement means initial contact or contact that is initiated by some minimal effort or activity of the broker.

The trial judge found that there was contact as contemplated by the extension clause in the listing agreement. We agree.

The pertinent provision of the extension clause provides as follows:

If, after the expiration of this agreement, owner sells the property to any person who had contacted owner directly....

The interpretation of a contract is the determination of the common intent of the parties. La.C.C. art. 2045. The words of this contract are clear and suggest that the parties intended any contact, whether initial or otherwise. La.C.C. art. 2046.

Medical Realty also argues that there was no contact between Lafayette General Hospital and Medical Realty between June 4, 1985, and February 15, 1986, the date of termination of the listing agreement, sufficient to activate the extension clause.

This argument has no merit. As explained in the trial judge's reasons for judgement, letters dated June 4, 1985, and July 24, 1985, between Burdin, Executive Vice-President of Lafayette General Hospital, and Dr. Edgar Breaux of Medical Realty, clearly indicate direct contact by Lafayette General Hospital with Medical Realty during the terms of the listing agreement and after the addendum of June 4, 1985. Furthermore, the letter dated July 31, 1985, from Burdin to Dr. Breaux and an affidavit of Burdin corroborate that such direct contact took place.

We are mindful of the circumstance that statements in Burdin's two affidavits, regarding whether negotiations were conducted between Lafayette General Hospital and Medical Realty during the term of the listing agreement, are in conflict. However, other unrebutted and uncontroverted evidence corroborate the statement in Burdin's first affidavit submitted by Tammariello in support of its motion for summary judgment, and directly refutes the statement in Burdin's second affidavit submitted by Medical Realty in opposition to Tammariello's motion for summary judgment.

We hold that the trial judge was correct in his finding that contact was made between Lafayette General Hospital and Medical Realty, appellant, during the term of the listing agreement. We likewise find that the trial judge was justified in concluding that there was no genuine...