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COURT OF APPEALS DECISION DATED AND RELEASED July 16, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1943
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
THE HERITAGE GROUP,
Plaintiff-Respondent,
v.
GERALD R. JONAS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: MICHAEL J. BARRON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Gerald R. Jonas appeals from a judgment
entered after a trial to the court, where the trial court ruled that The
Heritage Group was entitled to a real estate sales commission. He also appeals from an order denying his
motion for reconsideration. Jonas
claims the trial court erred in its determination because Heritage did not procure
a “ready, willing and able” purchaser.
Because the trial court's finding that Heritage procured a ready,
willing and able purchaser was not clearly erroneous, we affirm.
I. BACKGROUND
On September 15, 1988,
Jonas signed an exclusive one-party listing contract with Heritage to sell
certain property to a potential purchaser, Darrell Harding. The listing contract gave Heritage the
exclusive right to negotiate the sale of the property to Harding for thirty days. The asking sales price of the property was
$2.5 million. The contract stated that
the broker would receive a sales commission pursuant to the following terms:
Seller
gives Broker the sole and exclusive right to procure a purchaser for the
property described below at the price and upon the terms set forth in this
contract. If a purchaser is procured
for the property by Broker, by Seller, or by any other person, at the price and
upon the terms set forth in this contract, or at any other price or upon any
other terms accepted by Seller during the term of this contract, ... Seller
agrees to pay Broker a commission as set forth in this contract regardless when
the transaction closes.
The
contract also contained a standard override clause which stated:
If,
as to the property or any part of it, a purchaser is procured ... within six
months after the expiration of this contract to any person or to anyone acting
for any person with whom Seller, Broker or any of Broker's agents negotiated or
personally exhibited by showing the property prior to the expiration of this
contract ... Seller agrees to pay Broker the commission set forth in this
contract.
The listing period
expired with no agreement reached between Jonas and Harding. On March 21, 1989, Harding offered to
purchase the property for $2.5 million as “a cash offer.” This offer was made within the override
period under the September 15, 1988, listing contract. Jonas counteroffered for $3.5 million, based
on improvements he had made on the property during the interim. Harding rejected the counteroffer, and no
agreement was reached for the sale of the property.
Heritage filed suit
against Jonas seeking to obtain payment of a commission. Heritage asserted that Harding's March 21,
1989, offer to purchase demonstrated that it had procured a purchaser and,
therefore, was entitled to a commission.
The trial court granted summary judgment in favor of Jonas. Heritage appealed to this court. We reversed the grant of summary judgment
and remanded for a trial because there were genuine issues of fact in dispute.
The case was tried to
the court in March 1995. The trial
court ruled in favor of Heritage, specifically finding that Harding was a
ready, willing and able buyer. The
trial court concluded, therefore, that Heritage had procured a purchaser and, under
the terms of the contract, was entitled to its commission. Judgment was entered. Jonas moved for reconsideration, which was
denied by order of the trial court.
Jonas now appeals.
II. DISCUSSION
Jonas claims the trial
court erred in finding that Heritage had procured a purchaser. He claims that Harding was not “able” to
purchase the property because he did not have the $2.5 million cash in
hand. The trial court disagreed,
finding that Harding was, in fact, an able purchaser because he had the ability
to secure the funds necessary for the purchase. Findings of fact by a trial court shall not be set aside on
appeal unless clearly erroneous.
Section 805.17(2), Stats. Based on our review of the record, we cannot
conclude that the trial court's finding in this regard was clearly
erroneous. In making this finding, the
trial court reasoned:
We
got testimony from Mr. Harding, number one, that he was, in fact, a ready,
willing and able buyer, that he had worked with several lenders and he normally
had no difficulty in getting financing especially in this case with the
extremely high cash flow that would be more than enough to service the debt.
In
addition, a year or two before; and that is, at the end of '86 he had a net
worth of 2.4 million if you believe his figures.
He's
also indicated that he had met with Mr. Scott Wilson at the TriCity Bank. And while he never got any written
commitment -- that is not abnormal.
It
would be abnormal for somebody who's a sophisticated investor such as Mr.
Harding was to give somebody a cash offer, offer to purchase without a strong
inference that he would get financing for this property.
Nobody
who's got a net worth of two and a half million dollars is going to go out and
give a cash offer and risk losing some of that equity he has in other buildings
because of any lawsuit that might accrue because of this failure to buy a
building for two and a half million dollars assuming that Jonas agreed to it
unless he had some strong belief that he was going, in fact, to get the
financing.
In addition, there was discussions with Terry
Cleary (phonetic) at Hopkins Savings & Loan. So I don't think there's any question in my mind that Mr. Harding
was, in fact, a ready, willing and able buyer based on what I heard here in the
last day-and-a-half.
The
trial court made this finding after listening to all the testimony, including
Harding's attestations, which were supported by his net worth, his credit
rating and his sophistication with real estate purchases. This evidence is sufficient to support the
trial court's finding that Harding was financially “able” to purchase the property. Based on the foregoing, we cannot conclude
that the trial court's finding that Harding was a ready, willing and able
purchaser was clearly erroneous.
Further, we are not
persuaded by Jonas's contention that Harding could only be considered an able
purchaser if he had shown that he had the $2.5 million purchase price as cash
in hand. Jonas cites Chalik &
Associates v. Hermes, 56 Wis.2d 151, 201 N.W.2d 514 (1972) in
support of this proposition. Our
reading of Chalik differs from Jonas's interpretation. On a cash sale, the Chalik
case merely requires that the buyer have sufficient assets, which in part may
consist of the property to be purchased, and a credit rating that enables the
purchaser with reasonable certainty to command the requisite funds at the
required time. Id. at
162, 201 N.W.2d at 520. Moreover, the
facts in the instant case are distinguishable from those present in Chalik. The purchaser in Chalik, who
was found not to be “able,” was in a different financial position than
Harding. The Chalik
purchaser had only $37,000 in liquid assets on a $95,000 offer to purchase and
intended to accomplish the purchase via a land contract. Id. at 155, 160, 201 N.W.2d
516-17, 519. The evidence in the
instant case shows that Harding had a net worth of $2.4 million and intended
the transfer to be a cash purchase.
Accordingly, we are not persuaded by Jonas's claim that the Chalik
case requires a reversal of the judgment in the instant case.
Jonas's remaining
contention, that the trial court relied on erroneous factors in reaching its
finding of fact, is not supported by citation to authority. Accordingly, we decline to address it. W.H. Pugh Coal Co. v. State,
157 Wis.2d 620, 634, 460 N.W.2d 787, 792 (Ct. App. 1990).[1]
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.