Cavagnaro v. Coldwell Banker Alfonso Realty, Inc.
| Docket Number: | 2006-CA-01818-COA Linked Case(s): 2006-CA-01818-COA ; 2006-CT-01818-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-19-2008 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Breach of fiduciary duty - Waiver of real estate commission - Dismissal of claim - M.R.C.P. 41 - Attorney’s fees - M.R.C.P. 52(a) Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, ISHEE, ROBERTS AND CARLTON, JJ. Non Participating Judge(s): LEE, P.J. AND GRIFFIS, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 09-26-2006 Appealed from: Harrison County Circuit Court Judge: Roger T. Clark Disposition: Harrison County Circuit Court affirmed the ruling of the County Court of Harrison County, which awarded Coldwell Banker Alfonso Realty (Alfonso) a real estate commission in the amount of $30,900, attorneys’ fees of $5,000, and $2,416.51 in expenses. Case Number: A2401-2005-00211 |
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| Party Name: | Attorney Name: | |||
| Appellant: | C.A. CAVAGNARO AND WANDA CAVAGNARO |
FLOYD J. LOGAN |
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| Appellee: | COLDWELL BANKER ALFONSO REALTY, INC. | GAIL D. NICHOLSON, CHESTER D. NICHOLSON |
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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 - Breach of fiduciary duty - Waiver of real estate commission - Dismissal of claim - M.R.C.P. 41 - Attorney’s fees - M.R.C.P. 52(a) |
| Summary of the Facts: | C.A. and Wanda Cavagnaro were the owners of a residence and lot in Long Beach. After the Cavagnaros purchased the residence, they paved the driveway. Unbeknownst to the Cavagnaros, the paved driveway encroached on the neighbor’s property by twenty-eight inches. When the couple made the decision to sell the property, they entered into a 120-day exclusive authorization to sell agreement with Coldwell Banker Alfonso Realty and its agent, Barbara Gay. The Hartnetts, residents of Arkansas, desired to relocate to the Mississippi Gulf Coast and hired Sandra Hutchison, also an Alfonso agent. Subsequently, the Cavagnaros and the Hartnetts entered into a contract for the sale and purchase of real estate for the Long Beach residence with a purchase price of $515,000. Alfonso was authorized by the contract to act as a dual agent. The encroachment was discovered when a survey of the property was done. None of the parties involved in this action were aware of the encroachment prior to this survey. Due to the discovery of the encroachment, the closing did not take place as scheduled. Rather, the Hartnetts executed an addendum to the sales contract which granted an additional ten days to cure the encroachment and provided that the seller would incur the cost and the purchaser would receive “clear title, no exceptions.” Mrs. Cavagnaro signed the addendum; however, the portion which required the seller to incur the costs of removing the encroachment was struck through. At the conclusion of the ten-day extension, the Hartnetts sought the return of their earnest money deposit and signed a release at Alfonso’s request. The contract of sale required that, prior to returning the earnest money, the agent was to provide written notice to the seller by either hand delivery, signed for by the addressee, or by certified mail, with both stating that the repayment of the earnest money would be made unless the party submitted a written protest within five days of the notice. Prior to returning the earnest money, Gay took the release to Mrs. Cavagnaro, who refused to sign it. Gay signed the mutual release on the line designated for the broker’s signature and returned the money to the Hartnetts. The Hartnetts subsequently purchased another home in Pass Christian. Gay acted as the seller’s agent, and Hutchison as the buyer’s agent. The two shared the commission from the sale of the property. The Cavagnaros eventually signed a listing agreement with another realtor and sold their home to another buyer. When the Cavagnaros allegedly refused to pay certain expenses, Alfonso filed suit in justice court which ruled in favor of Alfonso. After the Cavagnaros appealed to county court, they filed a counterclaim against Alfonso alleging breach of fiduciary duty and negligent failure to close the Hartnett sale. Alfonso answered the counterclaim by moving to dismiss the underlying action for the expenses and later filed a declaratory judgment action in the chancery court seeking a resolution as to whether Alfonso was entitled to the commission from the Hartnett sale. After the Cavagnaros filed a motion to dismiss the declaratory judgment on the grounds that Alfonso had elected its remedy in the justice court, the chancellor transferred the declaratory judgment action and the appeal to the county court and ordered the cases consolidated. Alfonso then moved to voluntarily dismiss the justice court complaint without prejudice because the appeal was before the county court de novo. The county court granted the motion, and the justice court action was dismissed without prejudice. At the conclusion of the bench trial, the Cavagnaros moved to dismiss the counterclaim. The county court entered judgment in favor of Alfonso and awarded a real estate commission in the amount of $30,900, attorney’s fees in the amount of $5,000, repairs costs in the amount of $2,416.52, court costs, and prejudgment interest at a rate of 8%. The Cavagnaros appealed the county court judgment to circuit court which affirmed the county court judgment. The Cavagnaros appeal. |
| Summary of Opinion Analysis: | Issue 1: Breach of fiduciary duty The Cavagnaros argue that Alfonso is estopped from claiming a commission due to a breach of its fiduciary duty and that Alfonso breached its fiduciary duty when Gay ordered a survey on the property only two days before the scheduled closing, proposed an extension of only ten days to cure the encroachment problem, and abandoned efforts to close the sale within a reasonable time only to begin negotiating to sell the Hartnetts another property. As the county court noted, there was no evidence that Alfonso had any knowledge of the encroachment until the survey was completed, and the Cavagnaros had a survey of the property done in 1990 which revealed no encroachment problems or other information that would lead anyone to anticipate a problem. Thus, there is no evidence that Alfonso breached its fiduciary duty with respect to the survey. With regard to the ten-day period, there is no evidence that Alfonso breached its fiduciary duty to the Cavagnaros in setting the ten-day extension period. As the circuit court found, while Alfonso decided on the ten-day time period, the Cavagnaros executed the addendum agreeing to the ten-day extension. Therefore, they were aware that they would have only ten days to cure the problem and voiced no objection to the time period. With regard to the sale of the other property, there is no evidence in the record indicating that Alfonso’s agents breached any duty to the Cavagnaros in negotiating the sale of another property to the Hartnetts. Alfonso did not simply abandon the sale of the Cavagnaros’ home. Although Mrs. Cavagnaro refused to sign the mutual release, Alfonso told Mrs. Cavagnaro that it was going to return the earnest money to the Hartnetts, and it is undisputed that Mrs. Cavagnaro did not object or inform Alfonso not to do so. Issue 2: Waiver of commission The Cavagnaros argue that the county court erred in finding that Alfonso did not waive the commission by unilaterally returning the earnest money to the Hartnetts. As the circuit court found, when the ten-day extension period expired and the encroachment problem had not been cured, the Hartnetts requested return of their earnest money deposit and signed the release required by Alfonso. Alfonso agent Gay then hand delivered the release to Mrs. Cavagnaro and informed her that the earnest money was going to be returned to the Hartnetts. Although Mrs. Cavagnaro refused to sign the release, it is undisputed that she did not object to the return of the earnest money. While Alfonso may have never specifically informed the Cavagnaros of the right to object to the return of the earnest money, the contract of sale, which Mrs. Cavagnaro signed, clearly stated that the parties had the right to object to the return of the money within five days of the notice. Although Alfonso did not wholly comply with the contract, Mrs. Cavagnaro was notified that the earnest money would be returned. If Mrs. Cavagnaro did not want Alfonso to return the money, she should have made some effort to make her wishes known. Accordingly, this claim is without merit. Issue 3: Dismissal of claim The Cavagnaros argue that the county court erred in finding that Alfonso was entitled to $2,416.52 in expenditures for repair costs because Alfonso moved to dismiss the claim for the expenditures by voluntary nonsuit in the county court under M.R.C.P. 41. However, as the circuit court found, the record indicates that the justice court complaint was dismissed without prejudice. Thus, the dismissal of the justice court action did not preclude the county court from awarding the expenditures to Alfonso. Issue 4: Attorney’s fees The Cavagnaros argue that the county court arbitrarily awarded $5,000 in attorneys’ fees to Alfonso with no proof to support the amount. As the circuit court found, an itemized list of attorneys’ fees was admitted into the record showing a fee amount of $9,801.65. The county court awarded approximately half of this amount to Alfonso, or $5,000. While the county court did not specifically mention the pertinent factors nor make any specific factual findings, it is clear from the language of the trial judge’s order that the judge did in fact apply the factors. Moreover, if the Cavagnaros were dissatisfied with the county court’s lack of specific factual findings regarding the factors, they were provided a mechanism under M.R.C.P. 52(a) for requiring that the court make such findings. In addition, the Cavagnaros have not demonstrated why the award is unreasonable or unwarranted. |
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