EITEL (MARY) VS. OWEN (LAFAYETTE G.)Annotate this Case
RENDERED: SEPTEMBER 19, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 06-CI-009668
LAFAYETTE G. OWEN
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BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
LAMBERT, JUDGE: Mary Eitel appeals the entry of summary judgment and
denial of a motion to vacate entered by the Jefferson Circuit Court regarding a real
estate fee she sought from Lafayette Owen. After careful review, we affirm.
Lafayette Owen (hereinafter Owen) contracted with Mary Eitel
(hereinafter Eitel) to sell his Oxford Hill Apartment complex in Jefferson County,
Kentucky. On August 20, 1993, the parties signed a listing agreement which
expired October 31, 1993. On September 7, 1993, Eitel obtained a written offer to
buy the property from Robert Emig and Robert Rogers for the price of
$1,000,000.00. Owen counter offered $1,060,000.00 on the same day. The buyers
rejected the counter offer and at the conclusion of the contract period the property
After the expiration of the contract, Owen began advertising the
property on his own. Robert Emig and Robert Rogers contacted him on their own,
and he was not aware they had previously made an offer on the property. On
August 1, 1994, Owen entered into a contract with Robert Emig and Robert Rogers
for $ 1,050,000.00, which included the sale of some personal property on the
premises. Eitel claims that Owen received $50,000.00 more from the proceeds of
the sale because he did not have to pay her a commission.
Eitel filed a complaint on October 31, 2006, to recover the value of
her services in locating the ultimate buyers of the property. Her complaint sought
recovery on several grounds: as the procuring cause for the sale based on the
listing contract; under a theory of unjust enrichment for the value she created in
marketing the property; and under a theory of restitution for the value of her
services. Owen filed a motion for summary judgment, which was initially
overruled on May 14, 2007. Owen filed a second motion which the court granted
on July 12, 2007, after the parties had briefed the issues. Eitel filed a motion to
vacate, and the court entered an order overruling the motion on October 24, 2007.
Eitel now appeals.
“The standard of review on appeal of a summary judgment is whether
the trial court correctly found that there were no genuine issues as to any material
fact and that the moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); CR 56.03. We are mindful
that “[t]he record must be viewed in a light most favorable to the party opposing
the motion for summary judgment and all doubts are to be resolved in his favor.”
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
On appeal, Eitel argues that she was the procuring cause for the sale
because she located the buyers that ultimately purchased the property, that she
sufficiently alleged bad faith to surpass summary judgment, and that a trial was
In Kentucky, the general rule is that a “real estate broker is entitled to
a commission where he has been the procuring cause of sale, even though the
owner enters into negotiations with the person so procured and consummates the
sale.” Mayo v. Century 21 Action Realtors, Inc., 823 S.W.2d 466, 468 (Ky.App.
1992). However, where a definite time is specified in the listing agreement, the
broker may only recover a commission (1) if the sale occurs within the specified
period or (2) if there is evidence that the owner “deferred the sale until after the
time limit with the intention and purpose of circumventing the broker’s right to the
commission.” Reedy v. Beauchamp, 211 S.W.2d 393, 394 (Ky. 1948). The trial
court found that Eitel was only entitled to a commission if the sale occurred before
the expiration of the agreement on October 31, 1993, or if a sale occurred within
the one month extension period ending November 30, 1993. The court found that
the sale occurred well after the expiration of these specified times. The court then
found that Eitel had failed to produce any affirmative evidence that Owen
intentionally deferred the sale to circumvent Eitel’s right to a commission and thus
that no bad faith existed.
A careful review of the record does not reflect that Owen intentionally
deferred the sale of the property to avoid paying Eitel a commission. Owen’s
affidavit, which was not contradicted by Eitel, establishes that he acted in good
faith. In fact, it was the buyers who rejected Owen’s counter offer under the
original agreement and who later made another offer, which was accepted. Had
Owen rejected all offers or delayed acceptance until immediately after the
expiration of the listing agreement, bad faith might be established. However, that
is not the case here. As it stands, we find that the trial court correctly determined
that no bad faith existed and the purchase of the property did not fall within the
listing agreement expiration period. Accordingly, summary judgment was proper.
For the foregoing reasons, the decision of the Jefferson Circuit Court
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis R. Carrithers
Bert M. Edwards