Opinion
No. ED74173
January 19, 1999
APPEAL FROM: CIRCUIT COURT OF ST. LOUIS COUNTY; BERNHARDT C. DRUMM, JR., JUDGE.
Paul J. Puricelli, 7733 Forsyth, Suite 500, St. Louis, MO 63105 for appellant.
Richard S. Bender Sanford J. Boxerman, 7737 Forsyth, 4th floor, St. Louis, MO 65102, for respondent.
Before James A. Pudlowski, P.J., William H. Crandall, Jr., and Clifford H. Ahrens, JJ., concurring.
ORDER
Kaplan Real Estate Company, Inc. appeals from the portion of a judgment entered in favor of Wolken Real Estate Advisors, Inc. on its cross-claim for part of a real estate commission. The judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence; no error of law appears. An opinion would have no precedential value. However, the parties have been provided with a memorandum for their information only, setting forth the reasons for this order.
The judgment is affirmed. Rule 84.16(b).
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Kaplan Real Estate Company, Inc. (Kaplan) appeals from the portion of a judgment entered for Wolken Real Estate Advisors, Inc. (Wolken) on its cross-claim for part of a real estate commission. We affirm.
On August 27, 1995, Kaplan entered into a listing agreement with owners of certain real property to procure a purchaser for the property. This agreement provided for the property owners to pay a 6% sales commission of the gross selling price. During this time, Wolken represented Belle Meade Corporation (Belle Meade). Kaplan and Wolken discussed Belle Meade's purchase of the property, a condominium unit housing a restaurant. On December 26, 1995, Kaplan sent a facsimile to Wolken that provided the property's "address/legal description." The facsimile also provided "Commission: Six percent (6%), split equally between [Wolken] and [Kaplan]. I look forward to receiving your client[']s contract offer."
On March 5, 1996, Belle Meade and the property owners entered into a sales contract where Belle Meade agreed to purchase the property for $575,000. The sales contract provided that Belle Meade and the property owners represented that other than Wolken "(the Buyer's Broker)" and Kaplan "(the Seller's Broker)" no other brokers were involved in the transaction. The sales agreement also provided that the "[property owners] agree[ ] to pay a six percent (6%) sales commission to said brokers which shall be split 50/50 payable at closing." After the property owners failed to "close," Belle Meade brought an action against the property owners for specific performance. On May 29, 1996, Belle Meade entered into a second sales contract where Belle Meade agreed to purchase the property for $583,750. According to Kaplan and Wolken, the second sales contract was part of the settlement of Belle Meade's specific performance action against the property owners. The second sales contract again provided that Belle Meade and the property owners represented that no brokers other than Kaplan and Wolken were involved in the transaction.
The sales contract also provided for the sale of certain personal property.
The subject condominium unit is located within the Park Tower Condominium. The Park Tower Condominium Association had a right of first refusal to purchase any condominium unit. On July 3, 1996, the Park Tower Condominium Association exercised its right of first refusal and purchased the condominium unit on the same terms and conditions provided in the second sales contract between Belle Meade and the property owners.
The property owners refused to pay Kaplan a sales commission. Kaplan brought an action against the property owners alleging it was the "procuring cause" for execution of the first and second sales contracts and for the "ultimate acquisition" of the property by the Park Tower Condominium Association. According to Kaplan, it was therefore entitled to a broker's commission of six percent of the $583,750 purchase price for a sum of $35,025. Wolken brought a cross-claim against Kaplan. In its cross-claim, Wolken sought 50% of the sales commission for a sum of $17,512.50. Wolken pleaded alternative theories of quantum meruit and breach of contract. In its answer, Kaplan did not plead any affirmative defenses to Wolken's breach of contract claim. The trial court granted Kaplan's motion to bifurcate the trials of Kaplan's action against the property owners and Wolken's cross-claim, on the condition that the parties waive a jury trial on Wolken's cross-claim. A jury found for Kaplan on its action against the property owners and assessed damages of $35,025. The court entered judgment in accordance with the jury's verdict. Thereafter, the trial court heard Wolken's cross-claim. The court entered judgment for Wolken on its cross-claim awarding Wolken $17,512.50 and pre-judgment interest. Kaplan appeals from the portion of the judgment entered on Wolken's cross-claim.
As part of this judgment, the court also awarded Kaplan attorney's fees, costs and pre-judgment interest on Kaplan's action against the property owners.
The judgment in a court-tried case will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Where as in the present case the trial court does not enter findings of fact and conclusions of law, we presume that the factual questions are in accord with the judgment and affirm the court's decision under any reasonable theory presented and supported by the evidence. Corporate Interiors, Inc. v. Randazzo, 921 S.W.2d 124, 126 (Mo. App. E.D. 1996).
Kaplan argues in its second point that the trial court erroneously applied the law because:
(A) neither the Belle Meade sale agreements nor the listing agreement provide any basis for any recovery by Wolken because, inter alia, those agreements do not contain any contractual obligations running from Kaplan to Wolken and, therefore, Wolken's claim fails for failure of consideration, mutuality of agreement and mutuality of obligation and
(B) Wolken failed to present any evidence to support its claim and the undisputed evidence in the case established that Kaplan and Wolken did not reach any agreement concerning the sharing of a commission after the [property] owners reneged at closing.
In its first point, Kaplan discusses the standard of review.
In its appellate brief, Kaplan states "Wolken failed to prove any of its elements of its breach of contract claim. Wolken in fact failed to establish a contract with Kaplan at all." However, in its trial brief Kaplan stated:
As the Court is aware, plaintiff Kaplan was the listing broker for the defendant's [property owners'] restaurant property. Kaplan successfully prosecuted a claim against the defendants to recover Kaplan's contractual broker's commission in the amount of $35,025.
Wolken, who represented the buyer procured by Kaplan, now sues to take one-half of the commission. Wolken sues for breach of contract and for quantum meruit. There is no dispute that Kaplan and Wolken initially contracted to share in the commission. Wolken's deposition testimony demonstrates, however, that the parties' agreement terminated when the defendants failed to pay Kaplan at the closing. Kaplan and Wolken never agreed to share any commission beyond that point.
. . . .
Kaplan does not dispute that Kaplan initially agreed to share its commission with Wolken. In fact, David Wright confirmed the agreement by fax, a copy of which is attached as Exhibit A. However, Carl Conceller, Wolken's broker for the transaction, testified that the parties' agreement was not open ended:
. . . .
Kaplan and Wolken had no agreement beyond their understanding that they would share the commission if paid at closing (Concellor depo. at 25-26). When it became clear that the defendants did not intend to pay the commission at closing, Kaplan and Wolken began negotiating their respective obligations for continued participation in the commission. Wolken initially agreed to pay one-half of the costs associated with filing the broker's lien (Concellor depo. at 30). Up until the July 3 closing, that was the only understanding reached between the parties (Concellor depo. at 33-34).
There was never any meeting of the minds on how the commission would be shared — if at all — in the event that litigation was necessary:
. . . .
In short, by Wolken's own admission, the parties' agreement to share in the commission ended when the defendants failed to pay the commission at closing. Thereafter, the parties simply could not come to terms. Kaplan offered Wolken an opportunity to participate in the collection of the commission, with the corresponding opportunity to share in the rewards, but Wolken was not prepared to accept any of the risk. Kaplan understandably would not and did not agree to litigate on behalf of Wolken (Concellor depo. at 43).
During the trial on Wolken's cross-claim, Kaplan argued that "there will be no dispute that originally Kaplan and Wolken agreed to share this commission." Kaplan also states in its brief that "Kaplan and Wolken originally agreed to share the commission if it was paid at closing in the normal course. . . ."
To the extent Kaplan suggests that there never was an agreement between it and Wolken regarding the commission, this argument fails. See Fust v. Francois, 913 S.W.2d 38, 46 (Mo. App. E.D. 1995)(discussing judicial admissions). Accordingly, any argument that a contract did not exist for lack of consideration or mutuality of agreement and obligation also fails.
By its argument, Kaplan suggests that once the commission was not paid at closing thereby requiring litigation, Kaplan's and Wolken's agreement terminated and then the parties had to enter into a new contract. However, the proper analysis is not, as Kaplan suggests, whether the parties entered into a new contract. The proper analysis is in the first instance whether the contract that Kaplan admitted is applicable.
We note initially that Kaplan failed to plead termination of the contract as an affirmative defense. Rule 55.08 requires parties to set forth all applicable affirmative defenses. An affirmative defense seeks to defeat or avoid plaintiff's cause of action, and alleges that even if plaintiff's petition is true, plaintiff cannot prevail because there are additional facts that permit a defendant to avoid legal responsibility. Jones v. Landmark Leasing, Ltd., 957 S.W.2d 369, 375 (Mo. App. E.D. 1997). "A matter — such as termination — which seeks avoidance of a valid and subsistent contract is an affirmative defense." Weltscheff v. Medical Center of Independence, Inc., 597 S.W.2d 871, 878 (Mo. App. 1980); See Beuc v. Morrissey, 463 S.W.2d 851, 856 (Mo. banc 1971). At trial, Kaplan argued that the agreement "terminated." However, in its answer to Wolken's cross-claim Kaplan failed to raise any affirmative defenses to Wolken's breach of contract claim. Generally, the failure to plead an affirmative defense results in the waiver of that defense. Jones, 957 S.W.2d at 375.
In its trial brief, Kaplan stated that it "confirmed the agreement by fax, a copy of which is attached as Exhibit A." This facsimile provided "Commission: Six percent (6%), split equally between [Wolken] and [Kaplan]." The facsimile is clear, unambiguous and contains no qualifying terms regarding an equal split of the commission. By its own admission, Kaplan "confirmed the agreement" by facsimile. When judgment was entered against the property owners and in favor of Kaplan for the commission, Wolken was entitled to judgment for one-half of the commission. The parties' discussions regarding litigation against the property owners does not render the original agreement between Kaplan and Wolken to split the commission void. The trial court did not erroneously apply the law. Kaplan's second point is denied.
Kaplan argues in its third point that the trial court's judgment is against the weight of the evidence. Kaplan contends that "Wolken failed to establish any contractual obligation running from Kaplan to Wolken and the undisputed evidence established that Kaplan and Wolken did not reach any agreement concerning the sharing of a commission after the [property] owners reneged at closing." The previous discussion regarding Kaplan's second point applies and Kaplan's third point is denied.
In its fourth point, Kaplan raises an argument regarding Wolken's quantum meruit claim. Given our holding on Wolken's breach of contract claim, discussion of this point is unnecessary.
The judgment of the trial court is affirmed.