James William Meddress, Jr., and Martha Jane Meddress, Co-trustees of the Jim and Jane Meddress Joint Revocable Trust v. Beckie Brooks d/b/a The Beckie Brooks Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOSEPHINE LINKER HART, JUDGE

DIVISION I

JAMES WILLIAM MEDDRESS, Jr., and Martha Jane Meddress, Co-trustees of the Jim and Jane Meddress Joint Revocable Trust

APPELLANTS

V.

BECKIE BROOKS d/b/a The Beckie Brooks Company

APPELLEE

CA01-107

September 19, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CV 99-5834]

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

Appellants, sellers of a certain parcel of commercial real property, bring this appeal from the circuit court's granting of a motion for summary judgment awarding a real estate commission and attorney's fees to appellee, a real estate broker who had executed a listing agreement with appellants. Specifically, appellants argue that the granting of summary judgment was improper because, under the terms of the listing agreement, they had no obligation to pay a commission to appellee upon the sale of the property. Further, they argue that because the court erred in granting appellee summary judgment, the court likewise erred in awarding attorney's fees. We affirm.

The parties agree about the relevant facts. Appellants entered into a "Joint ExclusiveListing Agreement" with appellee and an identically titled agreement with C.J. Cropper

Company.1 The agreement signed by appellants and appellee provided, in paragraph 7, that

if said Property is sold ... by [appellee] or any other person, association, corporation or by [appellants] during the period of this contract ... [appellants] agree[ ] to pay [appellee] a professional fee of eight (8) % or as specified ... in Paragraph 13 ("Special Conditions") of this agreement, based on the gross amount of the sale ....

Paragraph 13 of the agreement provided as follows:

This is a joint-exclusive listing with the C. J. Cropper Co. [Appellants] shall only [have] to pay the broker that makes the sale the fee specified in Para. # 7. Upon closing of such sale, the broker that makes the sale shall pay the other joint broker twenty percent (20%) of said fee.

Appellants subsequently signed a purchase contract with Belz-Burrow II, Limited Partnership as the purchaser. Belz-Burrow, however, was Cropper's client, so Cropper terminated his listing with appellants and undertook to represent only Belz-Burrow. The purchase contract, signed by appellant, appellee, Belz-Burrow, and Cropper, provided that appellee represented appellants as the seller's agent and that Cropper represented Belz-Burrow as the buyer's agent. Cropper specifically rejected any subagency under appellee, and appellants represented that they had not dealt with any other broker or agent except appellee. The contract further provided that appellants, as the sellers, would pay a brokerage fee to appellee and that Belz-Burrow, as the buyer, would pay a brokerage fee to Cropper. The parties further agreed that the contract could not be amended except by written agreement executed by all parties.

However, a subsequent extension agreement to the purchase agreement that was not signed by appellee eliminated any mention of appellants paying appellee a fee. Appellee notified all parties by letter that she expected to be paid a fee. The transaction, however, closed for the purchase price of $642,000, with Belz-Burrow paying a 3.5% commission of $22,470 to Cropper and no commission being paid to appellee.

After hearing the parties' respective motions for summary judgment, the circuit court denied appellants' motion and granted appellee's motion, awarding appellee a commission of $51,360, prejudgment interest, and attorney's fees of $2,500. In so ruling, the court concluded that it was not persuaded by appellants' argument that Cropper's termination of his listing agreement with appellants terminated appellee's listing agreement with appellants. Further, the court noted that "[t]here is no reason to resort to extrinsic evidence in this matter, because the terms of the ... listing agreement were complete and clear."

On appeal, appellants argue that the court erred as a matter of law in interpreting the joint exclusive listing agreement as requiring appellants to pay a commission to appellee. Appellants note that the agreement anticipates that only the broker that procured a buyer for appellants was entitled to a commission, with the other broker receiving 20% of the funds received by the procuring broker. Appellants conclude that because Cropper terminated his agreement with appellants and because Cropper procured Belz-Burrow as a purchaser, then the commission owed by appellants was "effectively waived."2 Further, appellants contendthat the circuit court erred in construing the purchase contract as modifying the listing agreement. Appellants also insist that they are "relying on the express terms of the contract, not the procuring clause doctrine...."

In a case where the parties agree on the facts, the appellate court simply determines whether the appellee was entitled to a judgment as a matter of law. Aloha Pools & Spas, Inc. v. Employer's Ins. of Wausau, 342 Ark. 398, 403, 39 S.W.3d 440, 443 (2000). Presented here is a question of the interpretation of a written agreement. A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Boatmen's Arkansas, Inc. v. Farmer, 66 Ark. App. 240, 242, 989 S.W.2d 557, 558 (1999).

We conclude that the agreement is unambiguous; therefore, its construction and legal effect are questions of law. Paragraph 7 of the agreement provided that a "a professional fee of eight (8) % or as specified ... in Paragraph 13" would be paid to appellee. Paragraph 13 provided that this was a joint listing indicating that appellants "shall only [have] to pay the broker that makes the sale" the specified fee. Appellants would have us conclude that Cropper's termination of its participation in the listing agreement likewise terminated appellee's participation in the agreement and its right to receive a commission. We, however, cannot find any provision in the listing agreement that supports appellants' position. Despite Cropper's termination of its participation in the listing agreement, appellee's listing agreement remained in force.

Further, appellants argue that Cropper "procured" the sale, and therefore, under theterms of the listing agreement, appellee cannot claim a commission as the listing agent that made the sale.3 Cropper, however, terminated its listing agreement with appellants. Thus, Cropper no longer jointly listed the property and could not receive the benefits derived from the listing agreement; only appellee remained to continue representation of appellants under the listing agreement. Consequently, only appellee could have been the broker that "makes the sale" under the listing agreement, entitling appellee to the payment of the commission provided in Paragraph 7. Therefore, we conclude that appellee was entitled to a summary judgment as a matter of law. And because we conclude that summary judgment was proper, we also conclude that the award of attorney's fees was proper.

Affirmed.

Pittman and Roaf, JJ., agree.

1 While some of the terms in the listing agreements differed, those differences are not relevant to this appeal.

2 Appellants did not argue below that, in the alternative, appellee was entitled to only 20% of the commission as the non-procuring agent, nor do they do so on appeal.

3 As previously noted, appellants disavow any reliance on the procuring cause doctrine, see Halbert v. Block-Meeks Realty Co., 227 Ark. 246, 297 S.W.2d 924 (1957), and only rely on the express terms of the listing agreement.