Hopper v. DenhamHopper v. Denham
- Reporters:
- , ,
- Before:
- Dudley
Bobby Hopper, the appellant, and his wife, Lois, sold a tract of commercial real estate in Springdale to Consumers Market, Inc., for $450,000.00. The appellee, Mary Denham, a real estate broker, demanded a broker’s commission of eight percent of the sales price. The Hoppers denied owing a commission to appellee or her agency. The appellee then filed suit against both Hoppers and, in a jury trial, was awarded the full commission of eight percent, or $36,000.00, plus pre-judgment interest of $4,-154.29 against Bobby Hopper. He appeals the award. We affirm.
In February, 1980, appellant Bobby Hoрper placed signs on the tract. The signs contained the words “For Sale by Owner” along with his name and telephone number. He removed the signs shortly afterward. Subsequently, an agent for appellee’s agency сontacted appellant, hoping that the contact would result in a listing arrangement for the agency. Appellant declined to execute a written listing agreement but agreed that, should the agent or аgency procure a buyer, the appellant would receive $500,000.00 and the agency would receive any part of the sales price over that amount. Pursuant to this understanding, two of appellee’s аgents, the appellant, and a representative of Consumers Market, the potential buyer, met in July, 1980. At this time the tract was offered to Consumers for $555,000.00, but the offer was not accepted.
At a second meeting, in August, 1980, thе Consumers representative expressed interest in a sale if the price were lowered. Following this meeting, the appellee’s agents and the appellant discussed reducing the price. The appellee alleged that a new arrangement was made in which appellant would pay eight percent of the sale price to the agency as a commission. The existence of this agreеment, testified to by appellee’s agents, was denied at trial by appellant.
No progress was made toward a sale in the following months, and appellant had the impression that the appelleе’s agency was no longer trying to sell the tract to Consumers. Appellant also stated that he had given up on selling the land to Consumers. Later, appellant, through direct contact with Consumers, consummated a sаle of the property for $450,000.00. The deed was dated February 26, 1981, and filed of record on February 27,1981. Appellee sued appellant and his wife, Lois Hopper, for the commission. The trial court granted a directed verdict in favor of Lois Hopper but let the case against appellant go to the jury. The jury returned a $36,000.00 judgment against appellant. The trial court, upon motion by appellee, awarded prе-judgment interest of $4,154.29.
Appellant first argues that the trial court erred by failing to grant a directed verdict in his favor for either of two reasons: (1) that only one contract was proved and under that contract aрpellee could collect a commission only if a buyer were found ready, willing, and able to purchase the tract at a price of more than $500,000.00; or (2) that any contract between appellеe and appellant was abandoned by appellee.
We find no merit in either contention. First, two of appellee’s agents, Jerry Allred and Elam Denham, testified about a second mutual agreement by whiсh appellee was to receive a commission of eight percent of the sales price for procuring a ready, willing, and able buyer. For performance of that second agreement, it was not necessary that the agent make the sale. It has long been held that a broker, employed to sell property, is entitled to his commission where he initiated negotiations between the principal аnd another which resulted in a sale by the principal, Hodges v. Bayley, 102 Ark. 200, 143 S.W. 92 (1912). Second, appellee’s agent most closely involved
Appellant nеxt argues that the court erred in denying his motion for a new trial challenging the sufficiency of the evidence. However, since the trial court was correct in finding that the evidence was sufficient to deny the motion for a directed verdict, it necessarily follows that a motion for a new trial based upon the insufficiency of the evidence was correctly denied. Green v. Gowen, 279 Ark. 382, 652 S.W.2d 624 (1983).
The appellant contends that onе of his requested instructions was erroneously refused. The trial court correctly refused the instruction because other instructions were given which covered the subject. A party is not entitled to his particular prеference in the wording of instructions, and a trial judge is not required to give repetitious or redundant instructions. Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982).
The appellant next contends that the trial court erred in refusing to set asidе the verdict because of misconduct on the part of appellee’s counsel. He argues that appellee’s counsel improperly conducted voir dire and made statements during closing аrgument which were improper but in neither instance was an objection made. By not objecting to questions on voir dire and to statements made during closing argument, the trial court was not apprised of the allegеd error and was not given a chance to correct the mistakes, if any. Therefore, the matter is not preserved for appellate review, Wasp Oil, Inc. v. Arkansas Oil and Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). For the rare exceptions to the basic requirement of an objection in the trial court see Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). However, the appellant did object when, during opening statement, the appellee’s counsel referred to the net profit made by the appellant in the transaction. The trial court sustained the objection and admonished the jury: “ . . . . the jury will disregard any statement with respect to the amount of net profit the Hoppers may or may not have received, that’s not an issue in this lawsuit.” Later, while appellee’s attorney was questioning the appellant, the following colloquy took place:
Q. For $450,000.00. Why did you sell it for $450,000.00.
A. Because, I made a sizeable profit on it.
Q. How much did you make?
Mr. Ludwig: [appellant’s attorney] Objection, your honor.
The Court: Sustained.
Q. O.K., alright, that’s fair enough. You don’t deny you mаde a sizeable profit on it, do you?
The Court: Mr. Cummings, I sustained an objection with reference to profit.
Mr. Cummings: [appellee’s attorney] Yes, Sir, Judge.
The Court: Profit has nothing to do with the issues in this case, and the jury is so instructed.
Mr. Ludwig: Thank you, Your Honor.
The trial court prevented error by sustaining the objection and, on the court’s own motion, admonished the jury with the limiting instruction. The appellant was apparently satisfied with the admonition for there was no request for a mistrial. It was only after the adverse verdict that appellant argued that the statement and questions were so unfair that the jury verdict is tainted. In these circumstances, no reversible error appears. Boyette v. State, 250 Ark. 536, 465 S.W.2d 901 (1971).
Appellant contends that, sinсe he and his wife owned the tract as tenants by
Upon appellee’s motion, the trial court awarded prejudgment interest of six percent from date the complaint was filed, April 8, 1981, to the date of judgment, March 14, 1983. The appellant argues that “to permit the appellee to make a separate request of the court on the issue of interest violates the appellant’s right to a trial by jury.” We find no merit to the argument. An award of pre-judgment interest is а matter of law and the right to a trial by jury does not extend to matters of law. As we stated in Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981), “[w]here prejudgment interest is collectible at all, the injured party is always entitled to it as a matter of lаw. Nothing is left for the jury’s consideration.”
Appellant further contends that the award of prejudgment interest was erroneous because the amount of appellant’s liability did not become clear until the conclusion of the trial. The test for an award of pre-judgment interest is whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action. Lovell v. Marianna Federal Savings & Loan Assn., 267 Ark. 164, 589 S.W.2d 577 (1979). If such a method exists, pre-judgment interest should be allowed, because one who has the use of another’s money should be justly required to pay interest from the time it lawfully should have been paid.
Appellant urges that the post-judgment award of interest at a rate of ten percent was an abuse of discretion by the trial court and, instead, six percent shоuld have been awarded.
Appellant also argues that post-judgment interest should accrue only on the jury award of $36,000.00 and not on the court’s pre-judgment interest award of $4,154.29. The purpose of awarding interest would be frustrated if appellee were not compensated for the loss of use of all of his money, both before and after judgment.
Affirmed.
Adkisson, C.J., and Hickman, J., dissent.