Cloverleaf Plaza, Inc. v. Cooper & Co., Inc.Cloverleaf Plaza, Inc. v. Cooper & Co., Inc.
Cloverleaf Plaza, Inc. (“Cloverleaf“), and DLC Partnership (“DLC“) are the former owners of Cloverleaf Plaza Shopping Center in Mobile, Alabama. Jake Doster, president of Cloverleaf and a partner in DLC, decided to sell the shopping center. Upon hearing of Doster‘s plans to sell, Glenn Southеrland, a real estate broker with Cooper Company Inc. (“Cooper“), contacted Doster to obtain a listing agreement for the property. Southerland told Doster that he had a purchaser for the property if Doster would sell.
Glenn Southerland presented another potential purchaser, Capital Realty Management, Inc. (“Capital“), whose lawyer, Richard Davis, began negotiatiоns with Cloverleaf‘s lawyers, Tom Garth and David Johnson, with respect to the sale of the property. Cooper sent another non-exclusive listing agreement tо Cloverleaf, which agreement would expire on August 31, 1987. Cloverleaf, however, never signed this listing agreement. On August 21, Capital made an offer to purchase Cloverleaf Shopping Center. The parties agree that there were two points in the offer that Cloverleaf would not accept: 1) that the seller be required to obtain estoppel letters from the tenants of the shopping center; and 2) that the seller pay off the then current management compаny, the amount being about $150,000. The lawyers continued to negotiate. The parties disagree as to whether, after the further negotiations, they ever reached an agreement as to the terms just mentioned. Cooper asserts that Cloverleaf agreed to pay the management company and to obtain thе estoppel letters. Cloverleaf denies agreeing to either.
In the meantime, Doster, acting on behalf of Cloverleaf and DLC, was negotiating directly with Kеn Montgomery, who was a real estate broker with Triple Crown Realty.1 On September 2, 1987, Montgomery offered to purchase the shopping center for $3,025,000, which was higher than the $3,012,000 offered by Capital. Further, Montgomery‘s offer did not require that Cloverleaf pay the management company or obtain estoppel lеtters. On September 8, 1987, Capital‘s lawyer submitted an unsigned sales contract to Tom Garth, Cloverleaf‘s lawyer, reflecting their negotiations that had taken place after the original offer of August 21 had been rejected. On September 3, however, Doster had accepted an offer from Triple Crown, whose rights were then assigned to Tillman‘s Corner Limited Partnership. Cloverleaf paid Triple Crown a $100,000 commission. Upon hearing of the sale to Triple Crown, Capital contendеd that its lawyer and Cloverleaf‘s lawyer had reached an agreement. Cooper contended that it had presented a buyer who was ready, willing, and ablе to buy on terms negotiated with Cloverleaf‘s lawyer, and that, therefore, it was due to be paid a $100,000 commission. A jury verdict was returned in favor of Cooper, awarding it $100,000 plus interest. Judgment was entered by the trial court, after which Cloverleaf filed a motion for a JNOV or, in the alternative, a new trial on the ground that the verdict was against the great weight of the evidence. The trial court denied both of Cloverleaf‘s post-judgment motions, from which denial Cloverleaf appeals. We affirm.
Unless a jury verdict is unsupported by the evidence or is so against the weight of the evidence as to be manifestly and palpably wrong, a judgment based upon thаt verdict, which was sustained by the trial court‘s denial of a post-judgment motion for new trial, will not be reversed on either an “insufficiency of the evidence”
Cloverleaf and DLC аrgue that a commission is not owed Cooper because, they say, there was no listing agreement in effect at the time Capital was presented as a potential purchaser. They argue that the agreement entered into on December 13, 1986, was ineffective because it was limited to Stuart Davies; that the second agreement expired by its own terms on March 16, 1987; and that Doster never signed the third and final agreement that Cooper presented Cloverleaf in August 1987, whiсh was to expire on August 31, 1987. Without a valid listing agreement, Cloverleaf argues, no commission is due. However, in Alabama, a contract between a seller and real estate broker, whereby the broker is to procure a purchaser for realty, need not be in writing. Hover v. Whittaker-Warren Agency, 56 Ala. App. 255, 321 So.2d 213 (Ala.Civ.App. 1975). Further, a signature is merely an indication of mutuality and assеnt, which may be shown in other ways; and, if a contract is accepted and acted upon, it need not be signed, provided a statute does not provide otherwise. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297 (Ala. 1986). Capital‘s lawyer, Richard Davis, testified in deposition that he dealt solely with Cloverleaf‘s lawyer, because of ethical considerations. Further, hе testified that after hearing about the deal between Doster and Triple Crown, he was told by Cloverleaf‘s lawyers to just sit back and wait because it was doubtful that that deal would go through, and then Capital would be back in the “driver‘s seat.” Southerland, Cooper‘s broker, testified that he was told by Garth, “[D]on‘t worry about your commission — it‘s covered.”
Moreover, the jury was entitled to infer from the totality of the evidence that Cloverleaf‘s lawyer was authorized to pursue negotiations for thе sale of the property to Cooper‘s client and that the terms of the sale as agreed upon through these negotiations with Cooper‘s client аmounted to the procurement of a “ready, willing and able” purchaser of the Cloverleaf property. As this Court has stated:
“It is not for us to decide the issues оf fact in the case, but whether there is sufficient evidence upon which the verdict of the jury may be predicated. If there is a conflict in the evidence in а material respect it is for the jury to settle that conflict and not for the court. . . .”
Herrington v. Hudson, 262 Ala. 510, 514, 80 So.2d 519, 522 (1955).
In summation, the evidence was such that a reasonable jury could have gоne either way; however, the jury rendered its verdict in favor of Cooper, and this Court will not disturb the judgment entered thereon.
Accordingly, this judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.