Opinion
47813.
ARGUED JANUARY 3, 1973.
DECIDED JUNE 14, 1973.
Action for broker's commission. Muscogee Superior Court. Before Judge Smith.
Grogan, Jones Layfield, Richard A. Childs, for appellants.
Jack A. King, for appellee.
The grant of summary judgment to plaintiff for recovery of a real estate commission was proper but the dismissal of defendants' supplemental counterclaim was error.
ARGUED JANUARY 3, 1973 — DECIDED JUNE 14, 1973.
Plaintiff brought suit to recover a real estate agent's commission allegedly earned for the sale of real estate. The complaint alleged that the defendants refused to close the sales transaction with the purchasers at the appointed time. The amount of commission claimed was $888. In addition to the $888 the plaintiff made demand for attorney fees and $321.50 which represented the amount that plaintiff expended to make certain repairs to the property to make the same salable and insurable by the Federal Housing Administration, which expense was alleged to have been authorized by the defendants. In its answer the defendants admitted that plaintiff was given a listing to sell this property; that the plaintiff procured a buyer for the property who executed a sales contract; that defendant refused to close the sale but that the refusal was proper under the circumstances; and that upon final consummation of the sale and payment of the contract price defendants would be indebted to the plaintiff for the real estate commission in the amount claimed. The defendants denied that they authorized the repairs in the amount of $321.50.
Later, the parties entered into a stipulation in which it was agreed that the payment of "liens" on the property by the closing attorney out of the proceeds of the purchase price of the sale was made in order to facilitate the closing, and it was agreed it would not be deemed to be a waiver of any rights or admission of any type by any of the parties and that the payment of the liens was done merely to facilitate the consummation of the closing of the loan. Thereafter, plaintiff filed an amendment which showed that a lien in the amount of $321.50 for the labor and material claimed in plaintiff's original complaint had been satisfied by payment when the sale of the property was closed and, therefore, the issue raised as to this item was moot. Then plaintiff moved for summary judgment supported by an affidavit. In its motion plaintiff struck all claims for damages except the commission in the amount of $888. Defendants submitted an opposing affidavit and additionally filed a motion requesting the filing of a supplemental counterclaim which the trial court granted. The counterclaim sought $321.50, the disputed cost of repairs to the property, based on the allegation that the plaintiff, by deleting the repair cost from his complaint and treating it as paid contrary to the stipulation, forced the defendants to counterclaim for this amount in order to show that plaintiff and not defendants was responsible for the repair cost. It was also alleged that the plaintiff caused the delay in closing the sale from June 16, 1972 to August 9, 1972, and that the plaintiff had acted in bad faith, was stubbornly litigious, and caused the defendants unnecessary expenses and expenses in fulfilling the sales contract as follows: (a) Increase in loan discount rate — costing $71.75. (b) Additional closing fee of $100. (c) Additional landscaping cost — $84. (d) Additional utility bills in the amount of $19. (e) Loss of working time in the amount of $250. (f) Additional litigation expenses in the sum of $500. The total of damages demanded by way of the counterclaim amounted to $1,346.25.
The trial court granted the plaintiff's motion for summary judgment and dismissed the defendants' counterclaim.
1. The defendants contend that the plaintiff, who had the burden of proof on its motion for summary judgment, failed to show that it was a licensed real estate broker or salesman under Code § 84-1413, an essential element of proof for the recovery of a commission. Beets v. Padgett, 123 Ga. App. 68 ( 179 S.E.2d 560). That proof, however, was waived by defendants when, in their answer, they admitted that they would owe the $888 real estate commission fee upon closing the sale of the property. The affidavits filed in support and in opposition to the motion for summary judgment show that the sale was in fact consummated. Thus, by this conditional admission in its answer and the undisputed fact of the subsequent closing of the sale, the defendants have admitted that plaintiff was entitled to the real estate sales commission and impliedly admitted plaintiff was a licensed broker or salesman.
2. At first glance it appears that the total amount of damages sought by the counterclaim is in excess of plaintiff's amended demand for the real estate commission of $888. Of course, the filing of a legally sufficient counterclaim in excess of plaintiff's claim ordinarily requires the denial of a motion for summary judgment. Rubel Baking Co. v. Levitt, 118 Ga. App. 306 ( 163 S.E.2d 437). However, of the amount sought, the $500 claimed as litigation expenses cannot be recovered as the provisions of Code § 20-1404 are not available to a defendant by way of counterclaim. Pittman v. Dixie Ornamental Iron Co., 122 Ga. App. 404 ( 177 S.E.2d 167). Defendant has also conceded this point. Thus, eliminating this $500, the defendants' counterclaim is reduced to the amount of $846.25, which is less than plaintiff's claim. This removes Rubel as controlling. By the pleadings and the undisputed facts plaintiff has shown its entitlement to the real estate commission of $888. Accordingly, we affirm the lower court's judgment granting summary judgment to the plaintiff.
3. It appears that the supplemental counterclaim as filed was procedurally correct. With the exception of the $500 claimed for litigation expenses, the other items of damage appear to be properly asserted by way of counterclaim. Therefore, it was error for the trial court to dismiss the supplemental counterclaim in toto as it appears to be a claim upon which relief can be granted for all the alleged items of damage except the $500 litigation expenses.
We affirm that part of the lower court's judgment granting summary judgment to the plaintiff for his real estate commission but reverse as to the dismissal of the counterclaim.
Judgment affirmed in part; reversed in part. Deen and Quillian, JJ., concur.