Opinion
Docket No. 103533.
Decided April 20, 1989.
Meklir, Schreier, Nolish Friedman, P.C. (by Samuel A. Meklir), for plaintiff.
Robert J. Kauflin and Bernard P. Penzien, for defendants Lancon, McNamara, and Butala.
Mager, Monahan, Donaldson Alber (by Lawrence M. Scott and Michael J. Farley), for defendants Purcell and L. Mason Capitani, Inc.
Before: DANHOF, C.J., and BEASLEY and MacKENZIE, JJ.
Plaintiff appeals as of right from a Macomb Circuit Court opinion and order which granted summary disposition in favor of defendants Paul McNamara, Larry Butala, and Lancon Investment Company. MCR 2.116(C)(10). We affirm.
Plaintiff brought this action to recover a real estate commission. On August 30, 1982, plaintiff doing business as Dero Industrial Group, and McNamara, as a partner in Lancon Investment Company, signed a listing agreement regarding a piece of property owned by Lancon. The agreement provided:
If said property is sold or leased by us directly or for us by others within twelve (12) months after expiration of this agreement to a purchaser or tenant to have had the property submitted oral, written or shown to them by DERO/Real Estate Co. Inc. during the term of this agreement you shall be entitled to a full commission payable as provided above, if agent provides list of same to owners within 48 hours after expiration of listing.
The agreement was to run for ninety days, plus fifteen days for preparation. On November 22, 1982, plaintiff gave McNamara a list of the people and companies to which plaintiff had shown the property. Leonard Brillati was named on the list.
On November 22, 1982, the parties entered into a new listing agreement which would expire on April 30, 1983. The second agreement contained the same language as the first agreement with regard to the payment of a commission. On April 29, 1983, plaintiff sent McNamara a list of the people and companies to which plaintiff had shown the property. Although he had been shown the property only once, in October, 1982, Leonard Brillati was also named on this list.
On October 20, 1983, Leonard Brillati executed an offer to purchase the property. Larry Butala, as representative for Lancon, accepted the offer. The agreement included a provision which stated:
If this offer is accepted by the Seller and if title can be conveyed in the condition required hereunder, the Purchaser agrees to complete the sale within TEN (10) days after delivery of the title commitment, however, if the sale is to be consummated in accordance with paragraph B, then the closing will be governed by the time there specified for obtaining a mortgage. In the event of default by the Purchaser hereunder, the Seller may declare a forfeiture hereunder and retain the deposit as liquidated damages, the same to be Seller's sole remedy.
The deposit was $10,000. On December 28, 1983, Larry Butala, as a partner in Lancon Investment Company, and Leonard Investment Company by Leonard Brillati entered into a land contract for the sale of the property. Defendants McNamara, Butala, and Lancon Investment Company refused to pay plaintiff a commission on the sale of the property. Plaintiff brought this action to recover the commission. The parties moved for summary disposition. The lower court granted summary disposition in favor of defendants McNamara, Butala, and Lancon Investment Company. The court concluded that McNamara, Butala, and Lancon Investment Company were not obligated to pay plaintiff a commission pursuant to the plain language of the August 30, 1982, listing agreement because the October 20, 1983, agreement constituted an option, not a sale. The court noted that if the prospective buyer declined to proceed with buying the property, then the seller's sole remedy under the October 20, 1983, agreement was to retain the $10,000 deposit. The December 28, 1983, land contract was entered into more than twelve months after the August 30, 1982, listing agreement expired.
The land contract was entered into less than twelve months after the November 22, 1982, listing agreement expired. However, the court explained that Brillati was not contacted during the term of the November 22, 1982, agreement, as required by the language of that agreement. Therefore, the court concluded that plaintiff was not entitled to a commission under the November 22, 1982, agreement.
On appeal, plaintiff claims that the lower court erred in concluding that he was not entitled to a commission. Where a contract's language is unambiguous, this Court must construe it according to its plain meaning. Friske v Jasinski Builders, Inc, 156 Mich. App. 468, 472-473; 402 N.W.2d 42 (1986), lv den 428 Mich. 880 (1987); DeVries v Brydges, 57 Mich. App. 36, 41; 225 N.W.2d 195 (1974). The listing agreements unambiguously state that plaintiff would be entitled to a commission if the property were sold or leased within the relevant time period. To the extent that the "sold" term is ambiguous, it must be construed against plaintiff since he drafted the listing agreements. Petovello v Murray, 139 Mich. App. 639, 642; 362 N.W.2d 857 (1984); United Coin Meter Co v Gibson, 109 Mich. App. 652, 657; 311 N.W.2d 442 (1981), lv den 414 Mich. 898 (1982).
Plaintiff essentially contends that the property was sold when Butala and Brillati entered into the October 20, 1983, agreement, not when they entered into the December 28, 1983, land contract. We disagree. The October 20, 1983, agreement was an option because it did not bind the prospective purchaser to buy the property. Deane v Rex Oil Gas Co, 325 Mich. 625, 629; 39 N.W.2d 204 (1949). If the prospective purchaser declined to proceed, then the seller's sole remedy was to retain the $10,000 deposit as liquidated damages. The October 20, 1983, agreement was not a binding contract of sale for which a court would declare specific performance. Smith-Burns Investment Co v Jones, 240 Mich. 89, 93; 214 N.W. 946 (1927). See also LeBaron Homes, Inc v Pontiac Housing Fund, Inc, 319 Mich. 310; 29 N.W.2d 704 (1947).
We consider plaintiff's remaining arguments to be abandoned on appeal because they are not supported by citation of authority. Tringali v Lal, 164 Mich. App. 299, 306; 416 N.W.2d 117 (1987).
Affirmed.