Howard & Mills v. Triple F Investments
Published: Oct. 22, 2002 | Result Date: Aug. 15, 2002 | Filing Date: Jan. 1, 1900 |Case number: 72E1150077401 Arbitration – $76,093
Court
American Arbitration Association
Attorneys
Plaintiff
Defendant
David M. Cohen
(David M Cohen APC)
Facts
The arbitration centered around a real estate commission dispute. The claimant was retained under an exclusive
listing agreement to sell certain properties for the respondent. At issue was the sale of a parcel of land, a
building on the land, a leasehold and a business opportunity.
The respondent claimed that no commission was due because the listing agreement had expired by the time an
offer was received on the properties.
The claimant argued that a commission was due because it had procured the buyer, because the respondent had
waived the expiration of the listing agreement, because the respondent breached the implied covenant of good
faith and fair dealing and/or because the respondent had exhibited actual fraud.
The exclusive listing agreement expired on April 28, 2000. Prior to the expiration of the
agreement, the claimant had entered into negotiations with a buyer for the purchase of the
properties. The claimant met with the respondent to discuss the offer on May 5, 2000 and
actually presented the offer on May 11, 2000. The respondent asked for time to consider the
offer. According to the claimant, as of May 11, 2000, the respondent had already signed an
exclusive listing agreement with another broker, William Pentz of Daum Commercial Real
Estate, to sell the properties, and the respondent simply took the offer presented by the claimant
and gave it to the new broker. William Pentz then asked the buyer to resubmit a new offer
deleting the claimant as the listing agent and inserting Pentz instead. The deal ultimately closed
with Pentz receiving a commission of $42,000.
Settlement Discussions
The respondent offered to execute a mutual release if it was paid $13,000 as a reduced sum for attorney's fees and costs incurred. The claimant did not respond.
Other Information
The claimant asked for $42,000 in compensatory damages plus $34,093 in attorney's fees and costs. The respondent asked for a defense verdict and attorney's fees and costs in the amount of $42,304. The arbitrator, Irene Guimera of Guimera & Guimera, awarded the claimant $42,000 in compensatory damages and $34,093 in attorney's fees and costs plus the expenses of the arbitration which totaled $3,068. William Pentz testified in his deposition and at trial that he did not receive any offer from the respondent and had no knowledge of the buyer who had been procured by the claimant until the buyer presented an unsolicited offer to him in late May of 2000. Pentz's testimony was contradicted by the respondent, by the buyer's broker and by a letter that Pentz had himself written to the buyer in mid-May setting forth the terms that the seller would accept.
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