9101 Richmond, Inc. and Peter Vilandos v. Greenberg & Company, Inc.--Appeal from 11th District Court of Harris County

NUMBER 13-99-262-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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9101 RICHMOND, INC.

AND PETER VILANDOS, Appellants,

v.

GREENBERG & COMPANY, INC., Appellee.

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On appeal from the 11th District Court

of Harris County, Texas.

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O P I N I O N

Before Justices Dorsey, Ya ez, and Kennedy[1]

Opinion by Justice Kennedy

This case was tried before the court. Appellant is Peter Vilandos (Vilandos) who owned a piece of real estate in Harris County. Appellee is Greenberg and Company, a commercial real estate broker, hereinafter AGreenberg.@ The trial court entered judgment for appellee in the amount of $19,500 against the appellant and escrow agent, payable out of escrowed funds and an award of $3,750 as attorney=s fees against appellant. Appellee belately filed a brief herein.[2]

Vilandos and Greenberg entered into a real estate listing agreement whereby Greenberg was to find a buyer for a piece of real estate, hereinafter Athe property,@ owned by Vilandos. At the time of the signing, Greenberg was aware that Vilandos had a tenant on the property, Discount Tire Company (Discount Tire), and that Discount Tire had a preemptive right, i.e., first refusal to purchase the property, which was a right to meet any purchase price offer by any third party in order to buy the property.

Greenberg was unable to find a buyer for the property during the six-month term of the agreement and it was mutually terminated. Subsequently, Greenberg notified Vilandos of a prospective buyer, James F. Eubank, II (Eubank), and drafted an earnest money contract between Vilandos and Eubank for the sale of the property for $650,000. Because this sum was less than what was originally sought, Greenberg agreed to reduce his commission to three percent. Vilandos signed this contract.

Before the closing of the sale by Vilandos to Eubank, Discount Tire announced its intent to exercise its option to purchase the property. It is at this point that the source of the controversy began.

In order to effectuate the sale from Vilandos to Eubank, Greenberg sent a notice to Discount Tire asking if they intended to exercise their purchase option. Discount Tire replied in the affirmative. Greenberg then proceeded to send an earnest money contract to Discount Tire, which, after some changes were made, Discount Tire signed and returned to Greenberg, however, Vilandos never signed the instrument. The sale by Vilandos to Discount Tire was completed.

At the conclusion of the evidence the trial judge stated:

THE COURT: The issue in this case involves whether or not B the determinative issue in this case is whether or not by bringing the Eubank contract in that led to Discount Tire to exercise its right of first refusal, which they were not required to do until such a time as Mr. Eubank signed plaintiff=s Exhibit 1, entitles the plaintiff to an earnest money contract B I mean to a real estate commission. That is the position taken by Mr. B by plaintiff in this case that when Mr. Vilandos and Mr. Eubank signed the contract which entitled him to a commission whether or not that led to an entitlement of the plaintiff to a commission paid by the defendant at such a time as the property sold to Discount Tire because of the or pursuant to their exercising their right of first refusal which was not triggered until plaintiff=s Exhibit 1 was received.

I conclude that at that point the contract was earned and therefore render judgment in favor of the plaintiff and against the defendants in the amount of . . .

Appellant=s brief brings four points of error, as follows:

1. The trial court erred in determining that Eubank was a ready, willing, and able purchaser of the real property at issue, because Eubank terminated his earnest money contract with Peter Vilandos.

2. The trial court erred in determining that the contract commission was earned at the point where Eubank and Vilandos signed the contract, because the contract was contingent upon a closing.

3. The trial court erred in determining that Greenberg was the procuring cause of the sale between Discount Tire and Vilandos, enabling him to a three percent commission, because the earnest money contract was subject to Discount Tire=s preemptive right.

4. The trial court erred in entitling Greenberg and Company to a three percent commission for the sale of the property, purchased by Discount Tire, because no earnest money contract existed entitling Greenberg to any commission for the transaction between Vilandos and Discount Tire.

We grant the relief sought in points of error two, three, and four for the reasons set out later. First, we recognize the law which governs the trial of a case by a judge without a jury. In a bench trial, the trial judge passes on the witnesses= credibility and the weight given the witnesses= testimony, and can reject or accept any witness=s testimony in whole or in part. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580-81 (Tex. App.BHouston [1st Dist.] 1997, pet. denied). When, as here, the record contains the reporter=s record of the trial, the trial court=s implied findings may be challenged for legal and factual sufficiency, under the same standards that govern challenges to a jury=s findings. (citation omitted). The appellant=s burden on appeal is to show that the judgment of the court below cannot be sustained by any theory raised by the evidence. Friedmand v.New Westbury Village Assoc.,787 S.W.2d 154,157 (Tex. App.BHouston [1st Dist.] 1990, no writ).

Appellant has met this burden in the case before us. There was no contract between appellee and appellant concerning the sale of the property to Discount Tire. Appellant had not only the right, but also the duty to sell to Discount Tire upon demand independent of anything Greenberg did. Greenberg=s production of Eubank no doubt precipitated the sale to Discount Tire but a commission for such action was not contemplated by the language of any agreement between Greenberg and Vilandos. We hold that the judgment of the trial court cannot be sustained by any theory raised by the evidence.

We REVERSE AND RENDER the judgment below and order that appellee take nothing either by way of commission or attorney=s fees. Costs of appeal are adjudged against appellee.

NOAH KENNEDY,

Retired Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 6th day of December, 2002.

[1] Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

[2] Appellee filed a brief just eight days short of a year after he received a copy of appellant=s brief. The brief is late and we decline to consider it. Tex. R. App. P. 38.6(b).

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