Summary
noting full concurrence of each judge on the panel
Summary of this case from Oconee Inv. Grp., LLC v. TurkeyOpinion
A99A1878, A99A2022.
DECIDED: NOVEMBER 18, 1999.
Real estate commission. Whitfield Superior Court. Before Judge Temples.
John T. Longino, for appellant.
Grant, Konvalinka Harrison, H. Wayne Grant, David C. Higney, Minor, Bell Neal, James H. Bisson III, for appellees.
Robert O. Johnson was hired to manage certain real property owned by Smith Foster. After Johnson brokered the sale of a parcel of this real property to Oriental Weavers Rug Manufacturing Company, Inc. ("Oriental"), he filed an action against Foster and Oriental to recover a commission for his services. Because Johnson is not a licensed real estate broker, the trial court denied Johnson's motion for partial summary judgment and granted Foster's and Oriental's motions for summary judgment. These appeals followed. Held:
A person doing business in Georgia without the requisite real estate license has no standing to sue for commissions allegedly earned. OCGA § 43-40-24 (a). See Mathews v. Greiner, 130 Ga. App. 817, 818-819 (1) ( 204 S.E.2d 749). And because this rule is based on public policy and purpose, it is immaterial that its operation may benefit one who may have deceitfully induced the performance of another by agreeing to pay such a commission. Krizan v. Newman Company, 153 Ga. App. 337, 339 (3) ( 265 S.E.2d 68), affirmed at 246 Ga. 214, 216 ( 271 S.E.2d 135). It is therefore immaterial in the case sub judice that Smith Foster and Oriental failed to honor a provision in the parties' real estate sales contract which provided that Johnson would receive a 5 percent commission for his efforts. See Unifund General, Inc. v. Orr, 191 Ga. App. 836, 838 (3) ( 383 S.E.2d 199). The only remaining issue, then, is whether Johnson can sue for a broker's commission based on OCGA § 43-40-29 (a) (8)'s exception that Georgia's real estate licensure law does not apply to "[a]ny person employed on a full-time basis by the owner of property for the purpose of providing property management services or community association management services, selling, buying, leasing, managing, auctioning, or otherwise dealing with such property." OCGA § 43-40-29 (a) (8) (formerly Ga. Code § 84-1403).
Although OCGA § 43-40-29 (a) (8) appears to create a broad exception, this Code subsection cannot be a basis for circumventing the rule that only licensed brokers have standing to sue for a commission. Berchenko v. Fulton Federal Savings Loan Association of Atlanta, Inc., 244 Ga. 733, 734 (2) ( 261 S.E.2d 643). To this issue, the Georgia Supreme Court specifically held in Berchenko that OCGA § 43-40-29 (a) (8) does not apply to any full time employee who receives or intends to receive a fee, commission or other valuable consideration for brokerage services. The Supreme Court explained in Berchenko that the exception was enacted to prevent technical violations of the law by those whose employment is incidental to real estate transactions — such as real estate attorneys. Id. at 234 (2), supra.
Although, in the case sub judice, Johnson claims to qualify under OCGA § 43-40-29 (a) (8)'s exception based on proof that he was Smith Foster's full-time operations or property manager, Johnson's claim for a fee is not based on services he provided which were incidental to the real estate sales transaction at issue. Johnson's claim is based wholly on his expectation of a commission for providing real estate brokerage services as defined under OCGA § 43-40-1 (2). This expectation is what disqualifies Johnson's action for a broker commission under the Georgia Supreme Court's holding in Berchenko v. Fulton Federal Savings Loan Association of Atlanta, Inc., 244 Ga. 733, 734 (2), supra. This Court's holding in Piedmont Engineering Construction Corporation v. Balcor Partners-84 II, Inc., 196 Ga. App. 486, 492 (3) ( 396 S.E.2d 279), is not based on a claim for a broker's sales commission as is the circumstance in the case sub judice. Piedmont Engineering is thus distinguishable upon the facts and not controlling in the case sub judice.
While the evidence does not undisputedly show that Johnson was a full-time employee or that he was even Smith Foster's employee (Johnson was actually employed by corporate entities owned and operated by Foster), we accept Johnson's construction of the facts because, as a party responding to motions for summary judgment, he must be given the benefit of all reasonable doubts and the construction of the evidence and all inferences and conclusions therefrom. Lau's Corporation, Inc. v. Haskins, 261 Ga. 491 ( 405 S.E.2d 474).
The trial court did not err in granting Foster's and Oriental's motions for summary judgment.
Judgments affirmed. Johnson, C. J., and Phipps, J., concur.