The Summit Real Estate Group v. Bernard Fallon, et al.

Trial Digest   ·   January 22, 2009

Real Estate Broker Sues For Unpaid Commission Based
Upon Oral Extension of Listing Agreement

REAL PROPERTY

Broker-Commissions/Purchase-Sale: Residential Property

ORANGE COUNTY SUPERIOR COURT

The Summit Real Estate Group v. Fallon, No. 00CC05384
Mason L. Fenton. Jury Trial. Verdict/judgment: 10/1/2001

VERDICT/JUDGMENT: NONSUIT

Defendant’s motion for nonsuit was granted on the basis of the Statute of Frauds. Vote: Not reported. Deliberations: Not reported.
TRIAL COUNSEL
Plaintiff: Eric P. Francisconi, Barnes, Crosby, Fitzgerald & Zeman, Irvine.

Defendant: Jeffrey S. Benice, Law Offices of Jeffrey S. Benice, Irvine. Martha J. Mosier, Coldwell Banker, Mission Viejo.

FACTS/CONTENTIONS

According to defendant: A real estate broker sued to collect a sales commission it alleged was based on an oral extension of the listing agreement. The plaintiff was The Summit Real Estate Group. The defendant’s were Bernard Fallon and Coldwell Banker. Defendant Fallon had retained plaintiff real estate brokers to located a purchaser for his home. Plaintiff acted as defendant’s real estate broker pursuant to an agreement entered into by the parties on August 11, 1999. This agreement expired six months later on February 11, 2000. At no time during plaintiff’s six month listing did it present any offers to defendant to purchase the property. Two weeks later, on February 26, 2000 defendant signed a new listing agreement with a different broker, co-defendant Coldwell Banker. Shortly after the listing agreement expired with plaintiff, plaintiff previewed defendant’s home to a potential buyer with defendant’s knowledge and consent. At the time of the expiration of their listing agreement, February 11, 2000, this potential buyer had not seen the home or made any offer to purchase it. However, as an accommodation to plaintiff, defendant orally granted plaintiff an additional period of time to March 27, 2000 in order to conclude a purchase transaction with the potential buyer. During the extension period, plaintiff presented an offer from the potential buyer, and defendant made several counteroffers. Defendant’s final offer to sell the property was $3,907,000. The counter-offer’s terms mandate that if the prospective buyer failed to respond by March 20, 2000, it was deemed “revoked.” The prospective buyer failed to respond on March 20,2000. On March 29, 2000, the same buyer submitted a new offer through defendant’s new broker, Coldwell Banker. During the period between March 29, 2000 and April 7, 2000, defendant and the potential buyer exchanged six counteroffers. On April 7, 2000, defendant and the buyers reached an agreement, and defendant sold his residence to the buyer for $4.1 million. Co-defendant broker received the entire real estate commission. Plaintiff alleged that it was entitled to the commission received by co-defendant. Plaintiff claimed that defendant had agreed to “protect” plaintiff’s commission in the event that the specific potential buyer were to purchase the property, that it was plaintiff who procured the sale, and that plaintiff had registered the buyer in writing under the listing agreement’s “safety clause.”

Defendant contended that the offer that he received from the buyer while plaintiff was the real estate broker had expired, and that co-defendant Coldwell Banker had become the listing agent. Thus, the Statute of Frauds barred plaintiff’s claim.

CLAIMED INJURIES
NA

CLAIMED DAMAGES
According to defendant: $126,000 unpaid real estate commission.

SETTLEMENT DISCUSSIONS
According to defendant: Demand: $60,000. Offer: None.

TRIAL EXPERTS
Not reported.

COMMENTS
According to defendant: After plaintiff rested its case, defendant Fallon moved for a nonsuit. Defendant Coldwell Banker settled at the beginning of trial.

Martha J. Mosier represented defendant Coldwell Banker. Jeffrey S. Benice represented defendant Bernard Fallon and submitted the information for this report.



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