Opinion
July 23, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 485
Michael T. Vaggalis, Denver, for plaintiff-appellee.
Seawell, Cohen & Sachs, Jeffrey L. Smith, Denver, for defendant-appellant.
RULAND, Judge.
Defendant Eagle County Development Corporation (ECDC) appeals from a judgment entered in favor of plaintiff based upon a claim for a finder's fee in the amount of $20,000. We affirm.
Substantially all of the material facts in this case are undisputed. ECDC was the sole general partner of Indian Creek, Ltd., (a limited partnership) which owned approximately 230 acres of undeveloped land in Eagle County, Colorado. At the request of ECDC, plaintiff, a licensed real estate broker, agreed to search for parties who could contribute capital and were interested in the development of the Eagle County property. In exchange for these services, ECDC agreed to pay a finder's fee upon consummation of a development arrangement although no specific compensation was agreed upon during the initial discussions.
Thereafter plaintiff introduced representatives of ECDC to the vice-president of Percy-Wilson Mortgage & Finance Corporation (PWMF). During the course of their negotiations, PWMF brought in Northwestern Life Insurance Company (Northwestern) as an additional contributor to provide the total capital required for development of the property.
PWMF, Northwestern, and Lion's Ridge Corporation (a wholly owned subsidiary of ECDC) ultimately entered into a joint venture agreement for the purpose of purchasing 42 acres of the property from Indian Creek and acquiring an option to purchase the balance of approximately 190 acres.
The joint venture was restructured in order to substitute Indian Creek for Lion's Ridge. In conjunction with this transaction, a purchase and option agreement was entered into between the joint venture (with Indian Creek as one of the joint venturers) and Indian Creek as title holder of the subject property. By this agreement, the joint venture carried out its objective by purchasing 42 acres from Indian Creek and acquiring an option on the remaining 190 acres.
Following execution of the joint venture and purchase and option agreements, ECDC remitted to plaintiff a finder's fee of $10,000. Contending that this fee was inadequate, plaintiff met with ECDC to resolve the matter. As a result of discussions at this meeting, plaintiff and ECDC entered into a letter agreement whereby plaintiff retained the $10,000 and ECDC agreed that if the joint venture exercised its option to purchase the 190 acres, plaintiff would receive an additional $20,000.
Approximately two years after execution of the purchase and option agreement, a third party submitted an offer for purchase of the 190 acres for approximately 1.9 million dollars. This offer was ultimately accepted and a sale consummated. Thereafter plaintiff claimed the balance of his finder's fee. ECDC denied plaintiff's claim, and plaintiff then filed the present action. ECDC defended, contending that the joint venture never exercised its option and also asserted as an affirmative defense that there was no consideration supporting the letter agreement to pay plaintiff the additional $20,000.
Trial was to the court. Following presentation of evidence from both parties, the trial court made findings of fact and conclusions of law determining that the joint venture had exercised its option and entered judgment for plaintiff. In this appeal, ECDC first contends that the trial court erred in concluding that the joint venture exercised its option pursuant to the terms of the purchase and option agreement, and thus ECDC reasons that plaintiff was not entitled to the balance of the finder's fee. We disagree.
Under the terms of the option granted the joint venture, if Indian Creek received a bona fide offer to purchase the 190 acres, the joint venture was obligated to either: (1) Acquire the 190 acres at the offering price; or (2) acquire the 190 acres at the option price, in which case the joint venture had the right to consummate the sale with the offeror; or (3) surrender its option. Notwithstanding these terms, Indian Creek, PWMF, and Northwestern negotiated a different method for consummating the sale. This arrangement was formalized by a written contract which recited, Inter alia, that Indian Creek, Northwestern, and PWMF had agreed to amend the terms of the joint venture. The contract specifically provided that Indian Creek would transfer the 190 acres to the joint venture, retaining record title solely for the benefit of the joint venture. In consideration for this transfer, the capital contributions of the parties to the joint venture were revised and the profits from sale of the 190 acres were established with the result that Indian Creek's share was substantially increased.
Plaintiff called the vice-president of PWMF as a witness and he testified in effect that the intent of the parties was for the joint venture to exercise its option in order to consummate a sale to the third party. The purpose of the final contract was to amend the joint venture agreement so that, in lieu of the joint venture paying the option price to Indian Creek in order to consummate a sale to the third party, Indian Creek trasnferred the land to the joint venture as a capital contribution thus increasing substantially its share of profits from the sale.
ECDC called its former president who testified that in his opinion the option was never exercised, and the parties had, in effect, negotiated a totally different transaction. He relied primarily on the fact that all the joint venturers had executed formal waivers of their option. However, the vice-president of PWMF testified that the sole purpose of the waivers was to clear the title to the 190 acres.
Based upon this evidence, the trial court resolved the option issue in favor of plaintiff. There being substantial evidence to support the trial court's findings and conclusions in this regard, we are not at liberty to disturb same upon review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Plaintiff cites Scott v. Huntzinger, 148 Colo. 225, 365 P.2d 692 for the proposition that in order for plaintiff to earn a finder's fee, an option must be exercised in conformity with the terms thereof. That case is not applicable here. In Scott the option was never exercised and a sale was made after the option expired. In the case at hand, the option was in full force and effect, and the trial court correctly determined that it was exercised although pursuant to amended terms which were mutually agreed upon by the parties.
ECDC finally contends that the trial court failed to make written findings and conclusions relative to its claim that the letter agreement with plaintiff was unsupported by consideration. According to ECDC, the evidence established that there was no consideration, and the judgment should be reversed. Again, we disagree.
In its findings, the trial court specifically referred to the relationship between plaintiff and ECDC as being represented by 'the agreement'. By this finding, the trial court necessarily found against ECDC's claim that there was no consideration, and there is evidence to support the trial court's determination. See Johnson v. Neel, 123 Colo. 377, 229 P.2d 939.
The judgment is affirmed.
COYTE and ENOCH, JJ., concur.