C. Porter Vaughan, Inc. v. DiLorenzo

689 S.E.2d 656, 279 Va. 449
CourtSupreme Court of Virginia
DecidedFebruary 25, 2010
Docket090110
StatusPublished
Cited by4 cases

This text of 689 S.E.2d 656 (C. Porter Vaughan, Inc. v. DiLorenzo) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C. Porter Vaughan, Inc. v. DiLorenzo, 689 S.E.2d 656, 279 Va. 449 (Va. 2010).

Opinion

689 S.E.2d 656 (2010)

C. PORTER VAUGHAN, INC., Realtors
v.
Most Reverend Francis X. DILORENZO, Bishop of The Catholic Diocese of Richmond.

Record No. 090110.

Supreme Court of Virginia.

February 25, 2010.

*657 Joseph E. Blackburn, Jr. (Blackburn, Conte, Schilling & Click, on brief), Richmond, for appellant.

William F. Etherington (Leslie A. Winneberger; Beale, Davidson, Etherington & Morris, on brief), Richmond, for appellee.

Present: All the Justices.

OPINION BY Justice DONALD W. LEMONS.

In this appeal from the dismissal of an action for real estate brokerage commissions, we consider whether the trial court erred when it sustained a demurrer of the defendant, the Most Reverend Francis X. DiLorenzo ("Bishop DiLorenzo"), to the amended complaint of C. Porter Vaughan, Inc., Realtors ("Vaughan") on the grounds that its claim for a breach of an oral agreement was barred by the statute of frauds.

I. FACTS AND PROCEEDINGS BELOW

Vaughan filed a complaint against Bishop DiLorenzo, the Bishop of the Catholic Diocese of Richmond, alleging that Bishop DiLorenzo had "employed" Vaughan, through its agent Marie Beitz ("Beitz"), to act as the real estate broker in the offering for sale of several properties located on North Laurel Street and South Cathedral Place in the City of Richmond ("the Chancery Buildings"). The complaint further alleged that Vaughan marketed the property to several potential purchasers, including Virginia Commonwealth University ("VCU"), the ultimate purchaser of the property. As a result of these marketing efforts, Vaughan alleged that it was owed a real estate commission in the amount of $242,400 for its services rendered in procuring a purchaser for the Chancery Buildings.

Bishop DiLorenzo filed a demurrer to Vaughan's complaint in which he argued that the complaint failed to satisfy the requirements of Code § 11-2(7), namely because the complaint "fail[ed] to allege a writing which *658 complie[d] with the statute of frauds and as such any alleged contract is unenforceable." The trial court sustained Bishop DiLorenzo's demurrer and granted Vaughan leave to amend its complaint.

In its amended complaint, Vaughan repeated its assertion that it marketed the Chancery Buildings to several potential buyers, including VCU, on behalf of Bishop DiLorenzo. Additionally, Vaughan alleged that Bishop DiLorenzo "entered into an oral agreement" for Vaughan to act as the real estate broker in the offering for sale of the Chancery Buildings.

As evidence of the purported oral agreement between the parties, Vaughan referred to several writings. The first was a November 28, 2006 letter to Beitz from the director of real estate and insurance services for VCU ("the VCU Letter"). The VCU Letter requested Beitz's "client's permission to allow VCU to order one or more appraisals of the" Chancery Buildings. On a signature line labeled "APPROVED," Monsignor Thomas F. Shreve ("Shreve") signed the VCU Letter. In its amended complaint, Vaughan refers to Shreve as "Vicar General of the defendant."

A second writing, dated March 2, 2007, was a letter from Bishop DiLorenzo to Beitz in which he thanked her for "forwarding the contract from David Solodar to purchase the Chancery buildings." Bishop DiLorenzo informed Beitz that he was "unable to accept [Solodar's] offer at the current bid." The letter informed Beitz that the Chancery Buildings would be "off the market for 14 days from today's date" so the Cathedral of the Sacred Heart could pursue its option to buy the Chancery Buildings. Bishop DiLorenzo then noted that after consultation with his staff and attorney, he was "establishing the sale price of the Chancery Buildings at $5,600,000.00." Bishop DiLorenzo signed this letter.

The third writing consisted of a purchase agreement for the Chancery Buildings ("the Solodar Agreement") between Bishop DiLorenzo and David Solodar ("Solodar"). The Solodar Agreement identified Bishop DiLorenzo as the seller, and Solodar as the buyer, of the Chancery Buildings, which were identified in the Basic Terms and Definitions section of the agreement. The writing provided for a purchase price of "approximately Five Million Dollars" and set forth the terms of purchase.

The Solodar Agreement also contained a paragraph entitled "BROKERAGE COMMISSION," which stated, in pertinent part,

[i]t is understood that the Seller has engaged Marie Beitz of C. Porter Vaughan to represent [Bishop DiLorenzo] in the transaction. Seller shall, so long as Closing occurs, be responsible for the commission in the amount of four percent (4%). Other than Marie Beitz, neither party has engaged the services of a real estate broker or agent in negotiation or consummating the Closing of the conveyance of the [Chancery Buildings].... This paragraph shall survive the Closing or termination of this Agreement.

Bishop DiLorenzo signed the Solodar Agreement on March 8, 2007.

The fourth writing Vaughan introduced was a letter, dated August 6, 2007, from Bishop DiLorenzo to Beitz. The letter read,

Dear Marie:
Thank you for your letter of July 23, 2007 regarding the withdrawal of the offer to purchase the property on Cathedral Place and Laurel Street.
Certainly we both regret that the sale did not go through. These things happen, and I just want you to know that I appreciate all you did on our behalf.
With gratitude and every best wish, I remain,
Sincerely yours in Our Lord, Most Rev. Francis X. DiLorenzo

The letter bore the signature "Francis X. DiLorenzo."

Vaughan's amended complaint alleged that after the Solodar Agreement was terminated, Bishop DiLorenzo entered into negotiations with the VCU Real Estate Foundation without Vaughan's knowledge, and he sold the Chancery Buildings by deed dated December 14, 2007 to the VCU Real Estate Foundation for $4,040,000. Despite Vaughan's assistance in marketing the Chancery Buildings to the VCU Real Estate Foundation, Bishop DiLorenzo *659 refused to pay the real estate commission to which Vaughan claims it is entitled. The amended complaint alleged that Bishop DiLorenzo owed Vaughan $242,400.

In response to Vaughan's amended complaint, Bishop DiLorenzo filed a demurrer, in which he contended that Vaughan failed to plead either "a written []or oral agreement for the sale of real estate which sets out the necessary terms to include parties, duration and compensation." While Bishop DiLorenzo conceded that the "documents attached to the Amended Complaint evidence the existence of an oral contract for the sale of real estate," he argued that "[n]one of those documents, however, read together, constitute a writing required by Virginia Code § 11-2(7)."

The trial court sustained Bishop DiLorenzo's demurrer and ordered Vaughan's amended complaint dismissed with prejudice. In its accompanying letter opinion, the trial court found that "the only writing signed by the defendant which ostensibly relates to the ultimate sale of the property is an August 6, 2007 letter from Defendant to Marie Beitz, Plaintiff's agent." The trial court held that the contents of that letter were "not sufficient to prove that Defendant intended for Beitz to receive a commission for her assistance in the sale of his property," and the statements in the letter "cannot be considered the essential terms of the contract." Regarding the Solodar Agreement, the trial court held that its brokerage commission clause "cannot be imputed to the sale" of the Chancery Buildings to VCU.

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Cite This Page — Counsel Stack

Bluebook (online)
689 S.E.2d 656, 279 Va. 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-porter-vaughan-inc-v-dilorenzo-va-2010.