William and Ella Snipes signed an exclusive seller listing agreement with real estate brokerage firm Marcene P. Powell & Associates, Inc. (“Powell & Associates”). The listing agreement was for the period of February 18, 2002 through August 18, 2002. It provided that Powell & Associates would have the exclusive right to show the Snipeses’ property and offer it for sale, would use its best efforts to procure a buyer, and would assist the Snipeses as requested with a sales contract. The Snipeses agreed, аmong other things, to pay Powell & Associates a real estate commission if, during the term of the agreement, Powell & Associates procured a buyer for the property or if the Snipeses entered into an enforсeable sales contract with any buyer, whether through the efforts of Powell & Associates or any other person. The agreement further provided that
In the event that Seller sells or contracts to sell the Property to any buyer introduced to the Property by Broker within 90 days after the expiration of the Listing Period, then Seller shall pay the commission referenced above to Broker at the closing of the sale or exchange of thе Property.
During the six-month listing period, Charles Folger telephoned Powell & Associates about two properties the firm had listed for sale, including the Snipeses’ property on which he had seen Powell & Associates’ “For Sale” sign. In her conversation with Folger, Marcene Powell discussed the price of the Snipeses’ property and whether the property could be divided. According to the Snipeses, Folger had no further contact with Powell & Associates regarding the property. However, Marcene Powell stated that she and Folger scheduled three appointments to visit the property, but that Folger either cancelled the appointmеnts or failed to appear as scheduled.
On October 8,2002, after the listing period expired but within 90 days after August 18, Folger purchased the property from the Snipeses. Powell & Associates did not receive a commission on the sale.
Claiming it was entitled to receive a commission for the sale, Powell & Associates sued the Snipeses. The Snipeses appeal from the grant of summary judgment to Powell & Associates and the denial of their motion for summary judgment. We affirm the judgment of the trial court.
1. The Snipesеs contend the trial court erred in granting summary judgment to Powell & Associates. They argue that Powell & Associates did not “introduce” Folger to the property by merely placing a “For Sale” sign and answering Folger’s phone call. They add that even if the actions were sufficient, the introduction did not occur within 90 days after the listing period expired as mandated by the contract for a commission to be due.
Contract construction involves a three-step analysis by the trial court: (1) the court must
(a) What must have occurred within 90 days of the listing period expiration date for Powell & Associates to be entitled to a commission?
While both parties in this сase take the position that the contract language is not ambiguous, they interpret it in ways which have opposing meaning. Powell & Associates maintains that the language clearly states that a commission is due if a sale or contract to sell оccurs within 90 days of the listing’s expiration date (assuming the broker introduced the buyer to the property during the listing period). The Snipeses, on the other hand, urge that the language clearly provides for payment of a commission if the introduction occurs within 90 days after the listing period expires.
Ambiguity exists when a contract contains an uncertain meaning, is duplicitous, and indistinct, or when a word or phrase may be fairly understood in more than one way.
Because the provision is ambiguous, the applicable rules of construction must be employed to determine the parties’ meaning.
The fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties. This is thе object of rules of interpretation, to discover the true intent of the parties, and in doing this we are to take the whole of the instrument together, and to consider this with the surrounding circumstances. The rules of grammatical сonstruction usually govern, but even these may be disregarded in order to effectuate the intention. So, also, sentences and words may be transposed, and conjunctions substituted for each other.... The cardinal rule of сonstruction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction. The construction which will uphold the contract in whole and in every part is to be preferred, and the whole contract is to be looked to in arriving at the construction of any part.5
The Snipeses’ contention that in order for Powell & Associates to obtain a commission, the firm had to introduce the buyer to the property after the listing period expired makes no sense in the context of the entire agreement. The agreement grаnted the firm the exclusive right to show the property and offer it for sale during the listing period. Powell & Associates had no authority under the agreement to show the property after the listing period expired.
On the other hand, under Powell & Associates’ interpretation, the firm was entitled to a commission if it introduсed a buyer to the property during the listing period, though the sale or the execution of a sales contract did not occur until the 90-day extension period began. This interpretation is consistent
Moreover, it is clear that the purpose of the clause at issue is to prevent parties from waiting for the listing period to expire beforе consummating the sale so that the sale can occur without the payment of a commission to the broker who participated in the transaction. The executive vice president of the Georgia Association of Realtors (GAR) testified by affidavit that GAR prepared the form used in this case, and that it revised the language of a previous form to substitute the word “submitted” for “introduced” in order to expand the factual situations under which a broker could obtain a commission on a property the broker had listed for sale. According to the witness, GAR intended to obligate sellers to pay commissions in situations where the broker told the buyer about the propеrty, provided the buyer with information about the property, or showed the buyer the property.
We note that the fact that the real estate board drafted the agreement form does not require a result in the Snipeses’ favor. While contracts, where the construction is doubtful, must be construed against the party drawing and executing them,
(b) Did Powell & Associates “introduce” the buyer to the property?
The Snipeses argue that the simple posting of a “For Sale” sign and the answering of a telephone inquiry regarding priсe do not amount to an introduction to the property. They posit that Powell & Associates’ actions had no causal connection or relationship to the sale which occurred about six weeks after thе listing period expired. Powell & Associates’ actions were sufficient.
In construing a contract, words are given their common meaning.
Charles Folger saw the “For Sale” sign on the property and called Powell in February 2002. He spoke to Powell about the Snipeses’ property. Although there is some dispute about the details of the conversation, as well as conflict regarding whether Powell and Folger sсheduled appointments for Powell to
2. In a separate enumeration of error, the Snipeses contend the trial court erred by denying their motion for summary judgment because they did not sell their property to a buyer Powell & Associates introduced to their property within 90 days after the expiration of the listing period. As discussed above, based on the language of the contract, Powell & Associates was entitled to a commission in this case. The Snipeses were not entitled to judgment as a matter of law, so the court properly denied their motiоn for summary judgment.
Judgment affirmed.
Notes
Sheridan v. Crown Capital Corp.,
Id. at 315 (1).
Salvatori Corp. v. Rubin,
Asian Square Partners v. Ly,
(Citation and punctuation omitted.) Redman Dev. Corp. v. Piedmont Heating &c.,
OCGA§ 13-2-2 (5).
See Perimeter Mall, Inc. v. Retail Sense, Inc.,
Id.; see Shore v. Loomis,
See generally Walston v. White,
OCGA § 13-2-2.
American Heritage Dictionary of the English Language (3rd ed.).
See Upper Cape Realty Corp. v. Morris, 53 Mass. App. 53 (
Id., citing Restatement (Second) of Agency § 448, comment d, at 357 (1958).