This appeal concerns the construction of an exclusive real estate listing agreement and the claims of a real estate broker and agents for a commission under that agreement. After reviewing appellant James E. Goodman’s numerous assertions of error, we find no error and affirm the trial court’s directed verdict in favor of real estate broker Frolik and Company, Inc. and its two affiliated agents on the issue of breach of contract. We also affirm the trial court’s decision to send to the jury the issue of expenses of litigation under OCGA § 13-6-11. Finally, we conclude that Goodman has demonstrated a consistent pattern of frivolous litigatiоn for the purpose of delay and therefore grant appellees’ motion for imposition of penalties under Rule 15 (b) of this Court.
Plaintiff/appellee Frolik and Company, Inc. d/b/a Re/Max In Town (“Re/Max”) is a real estate broker, and appellees Kelly and Freeman are licensed real estate agents affiliated with Re/Max. On January 28, 1994, defendant/appellant Goodman signed an exclusive listing agreement with Re/Max to market a house he and his family were renovating for sale. The agreement provided for an exclusive listing from January 28, 1994 to
In early 1994, Guillermo and Judith Rivera, represented by two other Re/Max agents, were looking for a home in the Virginia-Highlands area. The Riveras drove by the Goоdman property, saw the Re/Max sign, and attended an open house held by Kelly and Freeman. They later revisited the house with their agents. On March 20, 1994, the Riveras presented, in writing, a proposed real estate purchase contract on the property. Goodman made a counteroffer through the Riveras’ agents, but the Riveras decided not to accept it and broke off negotiations at that time. On May 3, 1994, after the listing agreement expired, the Riveras presented the same purchase contract form, changed with correcting fluid. The revised contract resulted in the same net price “exactly to a penny” that Goodman would havе received on the original price, less the commission. Goodman accepted the revised contract, and the closing took place on June
30,1994. The
When Kelly and Freeman discovered that the property had been sold to the Riveras during the extension period, Kelly and an attorney for Re/Max sent letters to Goodman demanding the commission. When Goodman refused, plaintiffs brought this action seeking damages for breach of contract and expenses of litigation, including attorney fees, under OCGA § 13-6-11. After the close of the evidence at trial, the trial court denied defendant’s motion for directed verdict and granted plaintiffs’ motion for directed verdict on the issue of breach of contract and commission owed, but let the issue of attorney fees go to the jury. The jury returned a verdict in favor of plaintiffs for $10,729.26, the full amount requested. Goodman filed four separate motions for new trial and for j.n.o.v. These were denied, and he appeals.
1. Goodman’s primary defense to Re/Max’s claim is lack of notice. He contends he had never heard of the Riveras, never knew that they were interested in the property during the exclusive listing period, and never saw the first contract.
1
But whether Goodman received
notice
of the Riveras’ offer is irrelevant under the clear terms оf the listing agreement. “[E]ach contract by which one employs another to sell real estate must be construed according to its particular stipulations.”
Howington v. Farm & Home Realty,
While Goodman claims the agreement is ambiguous, the language in question has been interpreted in several Georgia decisions. The term “submitted” includes showing a home to an individual “as a potential purchaser.”
Lowe v. Hadley,
As for Goodman’s contention that he was entitled to notice, this Court has held that virtually identical language in an exclusive listing agreement, without any mention of notice, would entitle the broker to a commission if the property was sold within the 90-day extension period.
Howington,
supra at 504.
2
Other cases have construed the same language with the addition of an express notice clause. See, e.g.,
Boss
&
Bowen, Inc. v. Head Realty Co.,
The agreement at issue here, like that in
Howington,
did not contain the notice language included in the
Boss & Bowen
and
The Georgia cases relied upon by Goodman to show an implied duty of notice deal with non-exclusive or “open” listing agreements in which no commission is owed for buyers not obtained through the
efforts of the real estate agent. See, e.g.,
Pate v. Milford A. Scott Real Estate Co.,
2. Goodman also asserts that the trial court erred in denying his motion for directed verdict as to Kelly and Freeman. He contends they should not have been parties to this action because they are not third-party beneficiaries of the agreement. Both Kelly and Freeman signed the listing agreеment, and the agreement itself expressly contemplates allocation of the commission.
We need not reach this contention, however, because Goodman did not raise it in a timely fashion below. The trial court correctly noted that Goodman never raised lack of standing as an issue in his pleadings. Further, this contention does not appear in the final pretrial order, which provides that no such motion is pending and does not enumerate it as a legal issue requiring special authorities. Goodman did not seek to amend the pretrial order; he did not raise the issue until the call of the case for trial. In the absence of a viable сlaim of surprise or unfairness, the trial court does not abuse its discretion in refusing to amend a pretrial order.
Mullinax v. Shaw,
3. Goodman also enumerates as error the trial court’s denial of his motion for directed verdict on the issue of misnomer. While this action was originally filed in the trade name “Re/Max In Town” under which Frolik and Company holds its real estate licеnse, plaintiffs moved in September 1996 to correct the name to “Frolik and Company, Inc. d/b/a Re/Max In Town.” Plaintiffs also filed an amended complaint on June 9, 1997, before entry of the pretrial order, correcting the name. Once again, the trial court noted that Goodman
never raised the issue of misnomer in his pleadings and did not rеspond to plaintiffs’ motion. Plaintiffs were authorized
4. Goodman contends the evidence was insufficient to submit to the jury the issue of expenses of litigation under OCGA § 13-6-11. As outlined above, however, the plain language of the agrеement established Goodman’s obligation to pay plaintiffs a commission, and the trial court correctly directed a verdict on the issue of his liability for the commission. Goodman’s position challenging his clear obligations under the agreement is wholly without merit. At a minimum, this raised a jury issue as to whether no bona fide controversy or dispute existed and authorized a recovery for stubborn litigiousness or causing unnecessary trouble and expense.
King Industrial Realty v. Rich,
5. Finally, Goodman asserts the trial court erred in refusing to consider an affidavit he filed with his motion for new trial, arguing that it contains newly discovered evidence. But Goodman has made no effort to comply with the six well-established rеquirements to obtain a new trial on the ground of newly discovered evidence, including due diligence. See
Shilliday v. Dunaway,
6. Plaintiffs have moved for frivolous appeal penalties. While Goodman asserts that “the proceedings to date in this case have violated due process and fundamental notions of basic fairness,” the record in this case demonstrates otherwise. In addition to the con duct already noted in this opinion, Goodman continued, even at trial, to contest matters that were not in dispute. For example, he denied in his opening statement that he had ever met Kelly or Freeman; on cross-examination, he admitted that he had met them but contended he had failed to recognize them in court. He only reluctantly admitted, after repeated questioning, that the Riveras signed a contract during the exclusive period. He also acknowledged that a commission would be owed for buyers who “seriously negotiated on the property” but denied that the Riveras did so.
Goodman’s repeated protestations that he was an unsophisticated seller and uninvolved in the project are unsupported by thе record. This property was not Goodman’s residence, but an investment property bought for the purpose of renovation and sale. His daughter testified that the property was a “family project” and that her parents participated. It is apparent from Goodman’s testimony as a whole that he is not a novice in the area of construction and sale of real property. In addition, as the owner of the property and party to the listing agreement, Goodman had an obligation to familiarize himself with the agreement’s terms and ensure they were carried out.
Even more significantly, Goodman is a long-time member of the bar who represented himself pro se through the trial and his multiple motions for new trial. Although he testified that he is not a real estate attorney and his primary area of specialty is trial law, he also acknowledged that since his admission to the bar in 1968, his practice has always included contract work. As an attorney of 30 years’ standing, Goodman knеw or should have known that the “notice” argument
In addition, Goodman persistently sought to delay the prоceedings below. Appellees point out that Goodman requested two extensions of time to respond to their motion for summary judgment and also requested a continuance of the trial. As noted above, Goodman filed four motions for j.n.o.v. and for new trial. These attempts to delay have continued on appeal; Goodman has requested extensions of filing deadlines on three separate occasions in this Court. He also attempted to avoid filing a supersedeas bond as ordered by the trial court, seeking to post a property bond with encumbered real estate.
Under these circumstances, it is apparent that Goоdman’s appeal is wholly without merit and was undertaken primarily if not entirely for purposes of delay. As a member of the bar, Goodman is or should be aware of the frivolity of this appeal even though he is no longer appearing pro se. Accordingly, we conclude this appeal is frivolous and impose a penalty of $1,000 against Goodman pursuant to Court of Appeals Rule 15 (b).
Judgment affirmed.
Notes
This claim is hotly disputed by Re/Max, which presented testimony and evidence that Goodman received the first offer via fax at his own request, discussed it at length with Kelly over the telephone, then presented a counteroffer to the Riveras seeking more earnest money. Freeman testified that he was present during this conversation. The Riveras also testified that they received a counteroffer from the owner but decided not to continue the negotiations at that time.
This Court found in favor of the seller in Howington, however, because no sale of the property took place within the 90-day extension period. Id. at 503-504.
In this 43-page brief, Goodman cites among other irrelevant items the Statute of Uses, 1536, 27 Hen. VIII, c. 10, and the Statute Quia Emptores, 1290, 18 Edw., c. 10.