Lieberman Corp. v. Jezewak

778 S.W.2d 328, 1989 Mo. App. LEXIS 1051, 1989 WL 78892
CourtMissouri Court of Appeals
DecidedJuly 18, 1989
DocketNo. 55479
StatusPublished

This text of 778 S.W.2d 328 (Lieberman Corp. v. Jezewak) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lieberman Corp. v. Jezewak, 778 S.W.2d 328, 1989 Mo. App. LEXIS 1051, 1989 WL 78892 (Mo. Ct. App. 1989).

Opinion

KAROHL, Judge.

This appeal involves a judgment in favor of Lieberman Corporation for a real estate commission on the sale by Norman L. Jeze-wak and Donna Jezewak, his wife, of a condominium owned by the Jezewaks. The trial court found from the evidence the Jezewaks agreed to sell their condominium to a purchaser during the period they [329]*329agreed to pay a real estate commission if a “willing and able purchaser is procured by the undersigned REALTOR, or by us... There is no dispute the purchaser was procured by Jezewaks. The defense was the contract expired before the purchaser was procured. No findings of fact were requested or made. The judgment in favor of Lieberman depends upon a finding that Jezewaks breached the listing contract. The sole issue on appeal is whether there was substantial evidence to support a finding that they did. Both parties offered evidence in support of their position. In this court tried case the trial court found in favor of Lieberman and awarded a judgment for a real estate commission. We affirm.

We review this appeal from a judgment in a court tried case according to Rule 73.01(c) as interpreted in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence in the light most favorable to Lieberman, the prevailing party. Morrison v. Jack Simpson Contractor, Inc., 748 S.W.2d 716, 718 (Mo.App.1988). We consider all fact issues were found in accordance with the result reached. Id. We must accept as true the evidence and permissible inferences therefrom and disregard contrary evidence. Duley v. Leininger, 527 S.W.2d 456, 458 (Mo.App.1975). Further, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Within the constraint of these principles the record discloses the following evidence available to the trial court in support of Lieberman’s claim.

Monte Turner, agent for Lieberman, prepared a uniform listing contract on September 4, 1984. The provisions of the contract supporting Lieberman’s claim and relevant to the issue of appeal are:

If within 6 months after the date of this listing, a ready, willing and able purchaser is procured by the undersigned REALTOR, or by us, or by any other person, or if said property shall be contracted by us to be sold to, leased to, or exchanged with any person procured by the undersigned REALTOR, or by us, or by any other person ...
******
By his signature hereto, the Owner acknowledges that he has read and approved the information on the reverse side regarding the above addressed property, and that he authorizes the undersigned REALTOR to rely upon said information in advertising and promoting the property.
******
[On reverse side appears]
ADDRESS
AD: :7:4:0: :F:A:I:R:F:I:E:L:P: :L:A:K:E: :D:R: ******
LIST DATE
LD: :S:E:/:0:6:/:8:4: [September 6, 1984]

Turner gave the following testimony in support of Lieberman. He prepared the listing contract on September 4, 1984. He completed the information on both the front and back, including the express listing date of September 6, 1984. The contract granted an exclusive listing for six months. Accordingly, it expired, by its terms, on March 6, 1985. The preparation date of September 4, 1984, appears at the top the contract. September 4, 1984, was a Tuesday. Turner testified he prepared and signed the contract on that day. He gave the contract to Norman Jezewak because Norman told him Donna Jezewak was out of town and he would take the contract, obtain her signature and return the signed contract. It was for that reason the list date of September 6th was noted on the reverse side. The executed contract was returned to Turner by Norman Jezewak on the following weekend and subsequently signed by the President of Lieberman Corporation d/b/a Lieberman Realty Company on Monday, September 10, 1984.

The Lieberman Corporation undertook to find a purchaser. They expended time and money in advertising and showing the property. They never located a purchaser who was ready, willing and able to purchase the condominium.

Turner testified that on March 6, 1985, he received a phone call from a friend who was a real estate agent for another compa[330]*330ny. During the conversation she congratulated Turner for the sale of the Jezewak condominium. The agent, also a witness for Lieberman during the trial, informed Turner that the former wife of Nat Dub-man told her that Mr. Dubman had purchased Jezewaks’ condominium. This testimony, if believed by the trial court, supported Lieberman’s theory that the Jeze-waks procured a purchaser within six months of September 6, 1984, by at least March 6, 1985.

Lieberman also offered testimony of employees of Commonwealth Land Title Company. They testified Norman Jezewak placed an order with Commonwealth for a commitment for title insurance for Dubman as the purchaser of the condominium for an agreed price of $360,000. Commonwealth was told the price and was requested to complete its work by March 17, 1985, anticipating a closing of April 1, 1985. They also were told there had been an earnest deposit given to Norman Jezewak in the amount of $10,000. In regard to this transaction Norman Jezewak met with an employee of Commonwealth Title on March 6, 1985. The Commonwealth order form noted the customer was Norman Jezewak. He was known by employees of Commonwealth to be knowledgeable in real estate matters. The requested effective date for the title insurance policy was February 19, 1985, naming Dubman as the proposed insured.

An exhibit offered by Lieberman, the order form of Commonwealth Land Title Insurance Company, bears the date March 6, 1985. However, another exhibit, a commitment for title insurance issued by Commonwealth Land Title Insurance Company, states an effective date of February 19, 1985, and lists the proposed insured as Nat Dubman.

Lieberman offered an exhibit, a general sale contract which bears the date March 6, 1985, and the signatures of Donna M. Jeze-wak and Norman L. Jezewak. In this contract the Jezewaks agreed to sell to Nat Dubman the condominium for $360,000, $10,000 earnest money and $350,000 cash on closing. On March 7, 1985, Dubman gave a personal check to Jezewaks in the amount of $10,000. There is a second general sale contract in evidence, dated April 8, 1985. The second contract is substantially the same as the first, but the place of closing was changed from Commonwealth Land Title Company to Lawyers Title Insurance Company and the closing date changed from April 1, 1985, to April 15, 1985. The second contract was executed by both Jezewaks and Dubman. Ultimately, the property was closed at Lawyers Title Insurance Company for the agreed price and conveyed to Dubman.

Lieberman relies upon the above direct evidence that the Jezewaks procured a purchaser, Dubman, by March 6, 1985. In addition, there was some indirect evidence in support of Lieberman’s theory.

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Related

Ham v. Morris
711 S.W.2d 187 (Supreme Court of Missouri, 1986)
Morrison v. Jack Simpson Contractor, Inc.
748 S.W.2d 716 (Missouri Court of Appeals, 1988)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
Three-O-Three Investments, Inc. v. Moffitt
622 S.W.2d 736 (Missouri Court of Appeals, 1981)
Duley v. Leininger
527 S.W.2d 456 (Missouri Court of Appeals, 1975)

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Bluebook (online)
778 S.W.2d 328, 1989 Mo. App. LEXIS 1051, 1989 WL 78892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lieberman-corp-v-jezewak-moctapp-1989.