Opinion
No. 05-08-00751-CV
Opinion Filed June 25, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. CC-06-16138-E.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
MEMORANDUM OPINION
Midas Financials sued SCH-Trident alleging SCH breached an exclusive loan brokerage agreement by allowing another company to obtain financing for SCH to purchase a piece of commercial property. SCH filed a counterclaim claiming Midas had failed to obtain financing during the term of the agreement and failed to return SCH's deposit. Following a bench trial, the trial court entered a take-nothing judgment on all claims. Both parties appeal. Midas and SCH entered into an agreement in which Midas was given an exclusive right to obtain a loan commitment in the amount of approximately $9,825,000 for SCH to construct a shopping center in Dallas. The sixty-day exclusively period was to begin on the date SCH "provided to Midas all documents and instruments initially requested by Midas." Midas was to receive 2% of the loan commitment as a broker's fee. SCH gave Midas a deposit of $10,000 to be applied to the broker's fee. The agreement was signed on September 3, 2004. The parties dispute the date on which the sixty-day exclusivity period actually began. According to Midas, it did not begin until December 10, 2004, the date on which SCH finally provided Midas with a document it had initially requested. Thus, Midas asserts it had the exclusive right to obtain financing until, at a minimum, February 8, 2005. In the alternative, Midas asserts the exclusivity period was extended to February 16, 2005 by SCH's conduct. SCH, on the other hand, asserts the sixty-day period began on September 3, 2004, the date the contract was executed, and expired sixty days later on November 2, 2004. SCH admits that it was aware that Midas believed the agreement was still active well after that date, that it did not inform Midas of its contrary position, and, in fact, actively encouraged Midas to continued to seek financing. Midas's efforts, however, were unavailing. On January 26, 2005, Midas and SCH representatives attended a meeting. According to Midas, at that meeting, SCH agreed to give Midas two more weeks to seek financing. SCH disputes this claim and asserts it only attended the January 26 meeting to get its financial documents back. The next day, on January 27, 2005, SCH entered into an agreement with another loan broker, Enterprise America. Midas was unaware that SCH had entered into another loan brokerage agreement and continued its efforts to obtain financing for SCH. On February 4, 2005, Midas obtained an "expression of interest" letter from Cathay Bank. Midas contacted SCH to inform it of Cathay Bank's interest. A meeting followed on February 11, 2005. Midas claims the purpose of the February 11, 2005 meeting was to discuss the expression of interest. It is undisputed that Cathay Bank never agreed to provide a loan commitment to SCH. On February 16, 2005, SCH's attorney sent Midas a letter informing it that the loan brokerage agreement had expired. The following day, Enterprise America obtained a loan commitment from First National Bank. It is undisputed that Midas never contacted First National Bank on behalf of SCH. Midas sued SCH alleging it breached the brokerage agreement when SCH entered into the brokerage agreement with Enterprise America. SCH responds that, at the time it signed its agreement with Enterprise America, the agreement had already expired. It also claims it is entitled to a return of its $10,000 deposit because Midas failed to perform under the contract. The trial court entered a take-nothing judgment against both parties. In a prejudgment letter ruling, the trial court stated that, assuming SCH breached its contract with Midas, Midas could not prevail because Midas would not have obtained financing in the requisite time period regardless of SCH's breach. The trial court further concluded SCH was not entitled to the return of its deposit because SCH had also breached the agreement and because it had unclean hands. This appeal followed. In its appeal, Midas contends the trial court erred in rendering judgment against it. Because we conclude Midas was not damaged by SCH's breach, we resolve this issue against it. The measure of damages in a breach of an exclusive brokerage contract is the fee the broker would have earned but for the wrongful conduct of the defendant. See Park v. Swartz, 110 Tex. 564, 566, 222 S.W. 156, 157 (Tex. 1920). A broker makes out a prima facie right to recover the fee it would, presumably, have earned but for the defendant's breach by showing its readiness and willingness to perform the contract and that it was denied the opportunity to perform through the defendant's wrongful breach. Id. The premise of this measure of damages is the presumption the broker would have actually earned the fee had the defendant not breached. A defendant may avoid liability by showing the broker could not or would not have performed the contract, regardless of its breach. See Park, 110 Tex. 564, 566, 222 S.W.2d at 156-57. We conclude the record in this case shows Midas could not or would not have performed regardless of SCH's breach. For Midas to perform, it was required to obtain a loan commitment within the sixty-day exclusivity period — at the latest February 16, 2005. As of that date, Midas had not actually obtained a loan commitment. There is no suggestion Midas would have been able to obtain a loan commitment had SCH not breached. Midas nevertheless asserts it can recover because it was prevented from performing because SCH had entered into a competing loan brokerage agreement with Enterprise America. We fail to see how SCH's agreement with Enterprise American, by itself, prevented Midas from obtaining a loan commitment from a lender. In reaching this conclusion, we reject Midas's reliance on McDonald v. Davis, 389 S.W.2d 494 (Tex.Civ.App.-Houston 1965, no writ). In McDonald, the plaintiff broker was given a six-month exclusive right to sell commercial property. Id. at 495. Two months into the six-month period, the property owner notified the broker it was withdrawing the property from the market. Id. at 496. The broker still had four months to perform, but was prevented from doing so by the property owner's action. The Court concluded that the act of withdrawing the property from the market, during the term of the agreement, made it impossible for the broker to perform. Id. at 496. The Court further acknowledged that the property owner could have avoided liability if he could prove that the broker could not or would not have performed regardless of the breach. Id. at 498 (op on reh'g). In this case, unlike McDonald, Midas had the opportunity to perform, but did not. The trial court could have thus found that Midas would not have performed regardless of SCH's breach. We now turn to SCH's cross appeal. In the trial court, SCH filed a cross-action for breach of contract asserting it was entitled to return of its $10,000. The trial court entered a take-nothing judgment against SCH because SCH had itself breached the contract and because SCH had unclean hands. In this point, SCH presents five sentences generally asserting, with no legal argument or citation to authority, that it performed, but Midas did not. Bare assertions of error, without argument or authority, waive error. Bufkin v. Bufkin, 259 S.W.3d 343, 354 (Tex.App.-Dallas 2008, pet. denied); Sullivan v. Bickel Brewer, 943 S.W.2d 477, 486 (Tex.App.-Dallas 1995, writ denied); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court has discretion to waive point of error due to inadequate brief). When a party fails to adequately brief a complaint, he waives the issue on appeal. Devine v. Dallas County, 130 S.W.3d 512, 513-14 (Tex.App.-Dallas 2004, no pet.). We conclude this point is inadequately briefed and presents nothing to review. We resolve the cross-point against SCH. We affirm the trial court's judgment.