First Weber Group Northern Wisconsin, LLC v. Guyant

2011 WI App 84, 800 N.W.2d 494, 334 Wis. 2d 790, 2011 Wisc. App. LEXIS 421
CourtCourt of Appeals of Wisconsin
DecidedMay 26, 2011
DocketNo. 2010AP1140
StatusPublished

This text of 2011 WI App 84 (First Weber Group Northern Wisconsin, LLC v. Guyant) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Weber Group Northern Wisconsin, LLC v. Guyant, 2011 WI App 84, 800 N.W.2d 494, 334 Wis. 2d 790, 2011 Wisc. App. LEXIS 421 (Wis. Ct. App. 2011).

Opinion

VERGERONT, PJ.

¶ 1. This appeal concerns a dispute under a residential listing contract between the sellers of residential real estate and a real estate brokerage firm, First Weber Group Northern Wisconsin, LLC. After the expiration of the term of the contract, the sellers sold the property to a buyer with whom they had had contact during the contract's term. The dispositive issue on appeal is whether First Weber is entitled to a commission on that sale because the buyer was a "Protected Buyer" under the contract. The circuit court resolved this issue against First Weber, and First Weber appeals.

¶ 2. We conclude the buyer was a "Protected Buyer" under the contract and First Weber is therefore entitled to the commission. Accordingly, we reverse the [792]*792order dismissing the action and remand with directions to enter judgment against the Guyants for the commission due First Weber under the listing contract.

BACKGROUND

¶ 3. Joseph Guyant and Lisa Dotter-Guyant (collectively, the Guyants) signed a WB-1 Residential Listing Contract-Exclusive Right to Sell with First Weber.2 The contract gives First Weber the exclusive right to sell the Guyants' home. The list price was $79,900 and the agreed upon commission was 6.5%, with the term of the contract from July 2, 2008, through January 31, 2009. Judy Whitrock was the First Weber agent working with the Guyants to sell their home. Whitrock was also working with the Guyants in their efforts to purchase a new home in the area.

¶ 4. On January 9, 2009, three weeks before the expiration of the contract, a woman, later identified as Michele Bushman, stopped by the Guyant home and spoke with Joseph about the property. She had found the listing of the property online after driving past the house on an earlier occasion. Bushman asked if the Guyants would be willing to sell without a realtor. Joseph said he didn't know and he would have to talk to his wife. In response to her question on when the contract with the realtor would expire, Joseph told Bushman it was sometime in January. Bushman left her phone number with Joseph, saying to contact her if they were interested.

¶ 5. Lisa called Bushman that same evening. She told Bushman that if Bushman wished to see the house, [793]*793she would need to go through First Weber. Bushman insisted that she refused to work with a realtor. Lisa told Bushman that she would call Bushman after the listing contract expired to see if she wanted to view the house then.

¶ 6. Lisa sent an email to Whitrock on January 12 informing her that a woman stopped by and asked about the property but refused to go through a realtor. Lisa wanted to know whether, if the woman was interested in buying their home after the listing contract expired, Whitrock could assist them and, if so, how the fee would be determined. In the subsequent two weeks, there were emails between Lisa and Whitrock and a meeting during which Whitrock and Lisa discussed Bushman. Whitrock wanted either to contact Bushman herself or have Lisa do so. Lisa did not want either Whitrock or herself to contact Bushman before the expiration of the listing contract. In an attempt to resolve the issue, Whitrock proposed to reduce the commission to 3.5% for any sale to Bushman. She also proposed that the Guyants extend the listing contract with Bushman listed as an exception (meaning First Weber would not receive a commission for a sale to her) and that the Guyants enter into a buyers' agent agreement with First Weber for the purchase of a new house. The Guyants rejected these proposals and the parties did not reach a resolution. The listing contract expired on January 31, 2009, without either Lisa or Whitrock having any further contact with Bushman.

¶ 7. On February 2, 2009, Lisa called Bushman and arranged for Bushman to view the Guyants' property the next day. In March, the Guyants signed a new listing contract with Century 21 Professionals, LLC, in which Bushman was identified as an "exception" for two weeks. This meant that, if Bushman made an offer to [794]*794purchase the Guyants' home and the Guyants accepted within that time, the Guyants would not need to pay a commission to Century 21. During that two weeks, Bushman made an offer to purchase the Guyants' home for $68,000 and the Guyants accepted it. The sale closed in April 2009.

¶ 8. First Weber filed this lawsuit alleging that it was entitled under the listing contract to a commission of $4,420, or 6.5% of $68,000. At trial it presented three alternative legal theories in support of its right to recovery. First, First Weber argued that Bushman was a "Protected Buyer" as defined in the contract and therefore the term of the contract was extended as to Bushman for one year. Second, First Weber alleged that Lisa's conduct violated the cooperation requirements in the contract. Third, First Weber alleged her conduct violated the duty of good faith implied in every contract.

¶ 9. The circuit court determined that Bushman was not a "Protected Buyer" because the Guyants had not "negotiated" with Bushman as defined in the contract. The court also determined that Lisa did not violate the contract cooperation requirements and did not breach the duty of good faith implied in every contract.

DISCUSSION

¶ 10. On appeal First Weber contends that the circuit court erred because the undisputed facts show it was entitled to recover from the Guyants on each of its three legal theories.3 Because we conclude that the circuit court erred in determining that Bushman was not a "Protected Buyer" under the contract, we do not [795]*795address First Weber's contention that the court also erred in determining that the Guyants did not violate the contract cooperation requirements and the implied duty of good faith.

¶ 11. The facts material to the "Protected Buyer" issue are not disputed. Whether the circuit court properly construed the contract language and applied it to the undisputed facts presents a question of law, and our review is therefore de novo. See Galatowitsch v. Wanat, 2000 WI App 236, ¶ 11, 239 Wis. 2d 558, 620 N.W.2d 618.

¶ 12. The listing contract signed by the Guyants specifies several situations in which the broker earns the commission. One is when the seller sells the property during the term of the listing. The term of the listing is "extended for a period of one year as to any Protected Buyer." The definition of "Protected Buyer" potentially applicable here is "a buyer who personally, or through any person acting for such buyer . . . negotiates directly with Seller by discussing with Seller the potential terms upon which buyer might acquire an interest in the Property . . . ,"4

[796]*796¶ 13. Thus, the question presented is whether Bushman "negotiated" with the Guyants as defined in this provision—that is, "by discussing with [the Guy-ants] the potential terms upon which [she] might acquire an interest in [their] Property." If Bushman did, then she was a "Protected Buyer" and First Weber is entitled to a 6.5% commission on the price she paid the Guyants for their home because the sale took place within the one-year extension. If Bushman did not, then First Weber is not entitled to a commission because the sale took place after the expiration of the original listing term.

¶ 14. There are two cases that have applied this same definition of "negotiate": Sonday v. Dave Kohel Agency, Inc.,

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Bluebook (online)
2011 WI App 84, 800 N.W.2d 494, 334 Wis. 2d 790, 2011 Wisc. App. LEXIS 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-weber-group-northern-wisconsin-llc-v-guyant-wisctapp-2011.