Leary v. Stockman, et al.
| Docket Number: | 2005-CA-01514-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-12-2006 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Contractual relationship - Procuring cause of sale - Aggrieved person - Section 73-35-31(2) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 07-01-2005 Appealed from: Harrison County Chancery Court Judge: Jim Persons Disposition: JUDGMENT IN FAVOR OF DEFENDANTS Case Number: C2402-04-791(1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | TIMOTHY LEARY D/B/A TIMOTHY LEARY REAL
ESTATE |
WILLIAM CARL MILLER |
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| Appellee: | DAVID STOCKMAN, KEVIN BZOCH, TONYA ZIMMERN, DANNY ZIMMERN, STOCKMAN & CO., INC., REMAX SOUTHERN REALTY AND SCOGGINS REALTY | ARTHUR F. JERNIGAN, SAMUEL ERNEST LINTON ANDERSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Contractual relationship - Procuring cause of sale - Aggrieved person - Section 73-35-31(2) |
| Summary of the Facts: | Through his corporation, Coastal Land Development Company, Inc., Richard Landry attempted to establish a condominium project called Beau View Towers in Biloxi. Coastal eventually failed to meet its financial obligations and faced a complaint for judicial foreclosure. Coastal attempted to find alternative sources of financing, but those sources required a number of sold units as a condition precedent. Landry entered into a written agreement with Timothy Leary, a real estate broker licensed in Mississippi. Leary agreed to sell condominium units individually or the project as a whole. In exchange, Coastal agreed to compensate Leary on a commission basis. Shortly afterwards, Leary met Tonya Zimmerman, a real estate agent licensed in Florida. Zimmerman was aware of a group of individuals who expressed interest in purchasing the project. Leary agreed to split his commission with Zimmerman, should Zimmerman’s group purchase the project. Although, the group did not purchase the project, Zimmerman continued to search for potential purchasers. Zimmerman contacted Davis Heritage, Ltd., a Florida development company. Davis Heritage was interested in purchasing the entire project. Representatives of Davis Heritage met with Landry and negotiated a contract to purchase the project. Davis Heritage and Coastal entered into a contract entitled “Contract for the Purchase and Sale of Real Estate.” The contract provided brokerage fees for four percent of the sale price; one percent each to Stockman, Bzoch, Tonya Zimmerman, and Danny Zimmerman. The chancellor (in the foreclosure proceedings) ratified the contract. Leary sued Zimmerman seeking brokerage fees and penalties. The chancellor found that Leary lacked standing to qualify as a “person aggrieved” and that Leary was not entitled to recover under the Mississippi Real Estate Brokers Act. Leary appeals. |
| Summary of Opinion Analysis: | Issue 1: Contractual relationship Leary argues that the chancellor erred in finding that Leary failed to establish a contractual relationship between himself and Zimmerman or any other defendant. It is undisputed that Leary and Zimmerman never executed a written agreement. Although Leary maintains that he and Zimmerman had a verbal agreement to split any commissions, Zimmerman disputes that assertion. To prove the existence of an implied contract for broker’s services, it must appear that the broker performed such services under circumstances as to give the recipient thereof some reason to think that they were not gratuitous and not performed for some other person but with expectation of compensation from recipient, and services must have been beneficial to person sought to be made liable. Before a broker is entitled to a commission, he must call the purchaser’s attention to the property and begin negotiations that lead to a sale. The chancellor found that Leary was not a procuring cause of the Davis Heritage purchase. The chancellor did not err in his finding of that fact. Leary testified that Zimmerman was the procuring cause of the Davis Heritage purchase. Issue 2: Procuring cause of sale Leary argues that a cooperating arrangement or agreement between two brokers is in the nature of a joint venture between the two professionals and, as to third parties, the acts of each broker in the pursuance of the cooperating agreement is the act of the other. He argues that where one of the cooperating brokers, while acting under such a cooperating agreement, procures a purchaser, then both brokers have been the procuring cause of the sale. As already stated, Leary testified that Zimmerman was the procuring cause of the Davis Heritage purchase. In light of Leary’s testimony, the chancellor was not manifestly wrong in his decision. Issue 3: Aggrieved person The chancellor found that Leary failed to present any evidence that he was entitled to a commission from the Davis Heritage transaction and that Leary could not show that he had a reasonable expectation of financial profit from the sale. Consequently, the chancellor found that Leary was not an aggrieved person within the context of section 73-35-31(2) and that Leary did not have standing to recover the statutory penalty. Leary argues that he qualifies as a “person aggrieved” because he had a financial interest in receiving his commission. Section 73-35-31(2) applies to situations in which a foreign broker or agent receives a commission from either the buyer or the seller; so that the foreign broker or agent is penalized for his unlicensed transaction. Leary’s remedy was through breach of contract, rather than through the statute. Although Leary is undoubtedly aggrieved by the factual circumstances, that does not necessarily mean he qualifies as a “person aggrieved” by Zimmerman’s unlicensed real estate transaction within the context of section 73-35-31. Rather, he was aggrieved by Zimmerman’s alleged breach of contract. |
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