Maly Commercial Realty, Inc. v. Jack Maher, Sr.

• Court: Missouri Court of Appeals
• Decided: September 10, 2019
• Docket: WD82183, WD82278
• Status: Published

Opinion

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT MALY COMMERCIAL REALTY, ) INC., et al., ) Appellants, ) ) v. ) WD82183 ) (consolidated with WD82278) JACK MAHER, SR., et al., ) Respondents. ) FILED: September 10, 2019 Appeal from the Circuit Court of Boone County The Honorable Kimberly J. Shaw, Judge Before Division One: Cynthia L. Martin, P.J., and Victor C. Howard and Alok Ahuja, JJ. Maly Commercial Realty, Inc. and Mel Zelenak (collectively “Maly”) sued

Aegis Investment Group II, LLC and Jack Maher Sr. (collectively “Aegis”) in the

Circuit Court of Boone County. Maly alleged that it was entitled to a real-estate

commission related to Aegis’ sale of a piece of commercial property in Columbia.

The circuit court entered judgment for Aegis following a bench trial. Maly appeals.

It argues that the judgment is not supported by substantial evidence and is against

the weight of the evidence. Maly also argues that the circuit court should have

placed the burden on Aegis to prove that negotiations with the property’s ultimate

purchaser were abandoned after Maly introduced Aegis to that purchaser. We

affirm. Factual Background1 Zelenak is a real-estate broker with Maly in Columbia. Zelenak had worked

on previous real-estate transactions with Anup Thakkar, a local businessperson

who owned multiple Dunkin’ Donuts franchise stores. In 2014, Thakkar was

looking for a small parcel of property on the north side of Columbia on which to

construct a new Dunkin’ Donuts franchise store. Thakkar asked Zelenak about

property at the southwest corner of Rangeline Street and Blue Ridge Road (the

“Blue Ridge property”).

The Blue Ridge property was a 40-acre tract of land owned by Aegis. Maher

was one of Aegis’ members. He was also a licensed real estate broker. Maher’s

company had a listing agreement with Aegis for the Blue Ridge property.

Zelenak was aware that Maher was part of the group which owned the Blue

Ridge property, and he knew Maher from prior dealings. In early November 2014,

Zelenak contacted Maher about the Blue Ridge property, and arranged a meeting.

On November 12, 2014, Maher, Zelenak, Thakkar, and one of Thakkar’s business

partners met at Maher’s office to discuss the property. The meeting was brief. At

trial, Maher described the meeting as simply “a meet-and-greet,” because “Thakkar

wanted to buy a lot [in the Blue Ridge property], and I said I wasn’t interested.” Maher was not interested in selling because he wanted to ground lease the

property. He testified that Aegis’ plan for the property was “to hopefully get a

grocer to develop it and retain ownership, so that you retain income forever, no[t]

just one-time sales.” Thakkar testified of the November 2014 meeting: “[v]ery fast,

I learned that Mr. Maher and his group were not interested in selling the property

or . . . part of it.”

1 “In the appeal of a bench-tried case, the appellate court views the facts in the light most favorable to the trial court’s judgment.” Pearson v. AVO General Servs., LLC, 520 S.W.3d 496, 500 n.1 (Mo. App. W.D. 2017) (citation omitted).

2 After the meeting Thakkar sent an email to an engineer with whom he

worked, with copies to Maher and Zelenak. Thakkar stated that he and his

partners were interested in buying a portion of the Blue Ridge property and asked

the engineer to determine how much land would be necessary to fit his planned

Dunkin’ Donuts store.

The next day, Maher sent an email to the engineer stating that the

discussion with Thakkar about the Blue Ridge property was preliminary, and that

there was no deal. Maher also sent an email to another member of Aegis, letting

him know about his meeting with Thakkar. In the email, Maher wrote that he

informed Thakkar that Aegis had not set a price for sale of the property, and that it

preferred to ground lease the property. In his response, Maher’s fellow member

asked whether it was “smart to give up a corner for a ¾ acre lot,” given that Aegis

was hoping to attract a “big box” store to the site.

On December 3, 2014, Maher sent Thakkar, Zelenak, and the engineer an

email, stating that he and the engineer had discussed the property and that Maher

was not sure that they had the access that Thakkar desired on “a .75 acre hard

corner location.” In the email, Maher nevertheless stated that Aegis would “look at

any possibility.” Thakkar testified that, by the middle of December 2014, it was clear that

Aegis’ and Thakkar’s interests were “not aligned”: “it was quite clear that they just

were not interested in selling any portion at that point, and . . . I was not interested

in . . . doing a land lease or a build-to-suit at that time.”

Maher testified that, after December 2014, he did not have any further

contact with Zelenak regarding the Blue Ridge property. Zelenak admitted that he

had “no direct involvement” concerning the sale of the Blue Ridge property after

December 2014. Specifically, Zelenak acknowledged that he had no involvement with the property in 2015 or 2016, or in the negotiations that culminated in the

3 2017 sale of the property to Thakkar’s group. Zelenak did, however, send Thakkar

information regarding other properties on the north side of Columbia for a possible

Dunkin’ Donuts location.

Thakkar testified at trial that he did not have any contact with Maher in

2015.2 In 2016, Thakkar happened to have a conversation with another member of

Aegis, who was apparently unaware of the prior communications between Thakkar

and Maher in late 2014. Thakkar testified:

So, as I recall, I was at Providence Road Dunkin’ Donuts, happened to run into a dear friend of mine, Mr. Sanjeev Ravipudi. He . . . was a doctor here in town. And we just happened to have a . . . casual conversation, and part of that conversation led to what my plans were, as far as where we’re going. And I expressed that, you know, just looking at, you know, some properties over in the north side. . . . [A]nd he happened to mention that he had a property over on the north side . . . and . . . he wanted me to check it out so [I] asked a little more information on that. He gave me, and I said, “Oh, yes, that's a property that, you know, I looked at about a year ago or so and – and nothing unfortunately came off of it.” Following his conversation with Dr. Ravipudi, Thakkar “reintroduced” himself to

Maher, and the two “started conversation again.” It took several months, and

“several communications,” before Maher would consider selling a portion of the Blue

Ridge property, “but he finally decided that he may entertain it, so then we started

negotiating the pricing.”

Maher and Thakkar agreed on a price in January 2017. On March 3, 2017,

Aegis and RPA Investment LLC (of which Thakkar was a member) entered into a

contract for the sale of a one-acre tract within the Blue Ridge property, and on

September 7, 2017, Aegis executed a warranty deed conveying one acre of the Blue

2 Maher’s testimony differed slightly from Thakkar’s. Maher testified that during 2015, he would not talk to Thakkar “for four or five, six months, and then, poof, we’d talk for two or three months. And then again it would die, and that was the scenario for the next three years.”

4 Ridge property to RPA Investment. Maher was listed as the broker of the sale.

Consistent with their listing agreement, Aegis paid Maher’s real estate company a

six-percent commission on the sale.

After the sale, Maly filed a petition against Aegis, asserting a quantum

meruit claim. Maly alleged that Zelenak was the procuring cause of the sale to RPA

Investment, and that it was therefore entitled to half of the commission paid to

Maher’s company. The case was tried to the court on June 5, 2018. On June 20,

2018, the circuit court entered its judgment in Aegis’ favor.

Maly appeals.3

Standard of Review “In reviewing a court-tried case, the appellate court will uphold the judgment

of the trial court unless it is not supported by substantial evidence, is against the

weight of the evidence, or erroneously declares or applies the law.” Ridgway v. Dir.

of Revenue, 573 S.W.3d 129, 132-33 (Mo. App. E.D. 2019) (citing White v. Dir. of

Revenue, 321 S.W.3d 298, 207-08 (Mo. 2010)).

Analysis I. Although neither party raised an issue concerning our appellate jurisdiction, “the Court has an obligation, acting sua sponte if necessary, to determine its

authority to hear the appeals that come before it.” Glasgow Sch. Dist. v. Howard

Cnty. Coroner, 572 S.W.3d 543, 547 (Mo. App. W.D. 2019) (citation and internal

quotation marks omitted). “A prerequisite to appellate review is that there be a

final judgment.” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. 1997) (citing

§ 512.020, RSMo). “If the trial court’s judgment is not final, the reviewing court

3 Maly’s original appeal was dismissed for lack of jurisdiction because its notice of appeal was filed out of time. Maly Commercial Realty, Inc. v. Maher, No. WD82082 (Mo. App. W.D. Oct. 26, 2018). On October 29, 2018, this Court granted Maly Realty’s motion for leave to file a late notice of appeal under Rule 81.07(a).

5 lacks jurisdiction and the appeal must be dismissed.” Glasgow Sch. Dist., 572

S.W.3d at 547 (citation omitted). “A final, appealable judgment resolves all issues

in a case, leaving nothing for future determination.” Archdekin v. Archdekin, 562

S.W.3d 298, 304 (Mo. 2018) (citation and internal quotation marks omitted).

A finality issue arises in this case because Aegis Group requested, in the

prayer for relief of its answer, that it be awarded its reasonable attorney’s fees. The

circuit court’s judgment did not address this fee request.

We recently addressed a similar issue in Ruby v. Troupe, No. WD82014, 2019

WL 3781691 (Mo. App. W.D. Aug. 13, 2019). As we explained in Ruby, Aegis did not

adequately plead a claim for attorney’s fees, because it did not allege a basis for its

claim of attorney’s fees in its answer; a bare statement in a prayer for relief is not

sufficient. Id. at *2–3. In addition, even if Aegis had adequately pleaded an

attorney’s fee claim, it abandoned that claim because it did not present any

evidence, at trial or otherwise, concerning its attorney’s fees, nor did Aegis file a

motion for attorney’s fees. Id. at *3.

The trial court’s judgment was final because it resolved the only claim before

the court: Maly’s quantum meruit claim. Because we have jurisdiction over this

appeal, we turn to the merits of Maly’s arguments. II. In its first Point, Maly argues that the trial court erred when it entered

judgment in favor of Aegis, because the judgment was not supported by substantial

evidence and was against the weight of evidence.4

4 A substantial evidence challenge and an against the weight of the evidence challenge are distinct claims and “must appear in separate points relied on in the appellant’s brief to be preserved for appellate review.” Southside Ventures, LLC v. La Crosse Lumber Co., 574 S.W.3d 771, 783 n.4 (Mo. App. W.D. 2019) (citation and internal quotation marks omitted). Although Maly combined both arguments in a single Point, we review both claims because our preference is to resolve cases on the merits rather than based on procedural defects. Id.

6 The elements of a quantum meruit claim to recover a real estate commission

are that the plaintiff provided brokerage services to the seller, the seller accepted

the services, and the plaintiff was the procuring cause of the sale. Incentive Realty,

Inc. v. Hawatmeh, 983 S.W.2d 156, 162–63 (Mo. App. E.D. 1998); see also Williams

v. Enochs, 742 S.W.2d 165, 168–69 (Mo. 1987); C. Myers & Simpson Co. v. Feese

Real Estate, Inc., 705 S.W.2d 600, 602 (Mo. App. W.D. 1986). Here, the parties

agree that the only issue is whether Zelenak was the procuring cause of the sale.

“Procuring cause is a sine qua non of quantum meruit recovery of a real

estate commission.” Williams, 742 S.W.2d at 167 (citation omitted).

For a real estate broker’s services to constitute the “procuring cause” of a sale, the broker’s initial efforts in calling the prospective purchaser’s attention to the property must have set in motion a series of events which, without break in continuity and without interruption in negotiations, eventually culminates in the sale. Id. (citation omitted). “[T]he issue as to whether a broker has been the procuring

cause of sale is ordinarily one of fact to be determined by the trier of the facts.”

Holman v. Fincher, 403 S.W.2d 245, 250 (Mo. App. 1966) (footnote omitted); see

also, e.g., Douros Realty & Constr. Co. v. Kelley Props., Inc., 799 S.W.2d 179, 182

(Mo. App. E.D. 1990).

In reviewing Maly’s challenges to the evidence supporting the judgment, it is significant that Maly bore the burden of proving it was the procuring cause of the

sale to Thakkar’s group.

When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party’s uncontradicted or uncontroverted evidence. If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party. Generally, the party not having the burden of proof on an issue need not offer any evidence concerning it. [¶] Consequently, substantial evidence supporting a judgment against the party with the burden of proof is not required or necessary.

7 Adoption of K.M.W., 516 S.W.3d 375, 382 (Mo. App. S.D. 2017) (citations and

internal quotation marks omitted). Because the circuit court is entitled to

disbelieve the evidence of the party bearing the burden of proof, even if the opposing

party presents no contrary evidence, “relief based on a claim that the trial court’s

judgment against the party having the burden of proof is against the weight of the

evidence is rarely granted.” Matter of Killian, 561 S.W.3d 411, 417 (Mo. App. S.D.

2018) (citations and internal quotation marks omitted).

But even disregarding the fact that the circuit court had the right not to

believe Maly’s evidence, substantial evidence – and the weight of the evidence –

supported the conclusion that Zelenak’s efforts were not the procuring cause of the

2017 sale. Although Zelenak introduced Maher and Thakkar in November 2014,

the discussions which Zelenak instigated ended in December 2014. Both Maher and

Thakkar testified that there was no prospect of a transaction at that time, because

Aegis was not interested in selling all or part of the Blue Ridge property, and

Thakkar was not interested in leasing. It is not enough that Zelenak introduced

Maher to the property’s ultimate purchaser. “[A]lthough it is material and

important to determine who first found or discovered the prospective purchasers,

such a determination is not conclusive.” Staubus v. Reid, 652 S.W.2d 293, 294 (Mo. App. S.D. 1983); see also Holman, 403 S.W.2d at 250 (noting that a broker may not

be the “procuring cause” entitled to a commission “even though he had found or first

contacted the ultimate contracting party, showed him the property involved, or

interested him in it, or had provided the principal with such party's name”) (citation

and footnote omitted).

After the parties’ discussions ended unsuccessfully in December 2014,

Thakkar testified that he and Maher did not have any contact during 2015.

Confirming that no sale was anticipated, the evidence indicated that Zelenak showed Thakkar other potential north Columbia building sites. Then, in 2016, Dr.

8 Ravipudi – who was apparently unaware of the earlier discussions – independently

suggested to Thakkar that he consider the Blue Ridge property during a “casual

conversation.” Thakkar then “reintroduced” himself to Maher, and the two “started

conversation again.” It took several months after this resumption of discussions

before Maher would even consider selling a portion of the Blue Ridge property to

Thakkar. Discussions in 2016 and 2017 between Thakkar and Maher – in which

Zelenak was uninvolved – then led to the eventual sale.

Given this evidence that there was a definitive break in the negotiations

between Thakkar and Maher at the end of 2014, and that discussions resumed in

2016 through the operation of an independent cause, the circuit court was fully

entitled to find that Zelenak was not the procuring cause of the 2017 sale

transaction.

Point I is denied.

III. In its second Point, Maly argues that the trial court erroneously applied the

law because the court did not place the burden on Aegis to prove that Thakkar and

Aegis abandoned their initial negotiations, or to prove that a new force renewed the

abandoned negotiations and replaced Zelenak as the procuring cause of the sale.

There are several defects in this argument. First, in its opening Brief Maly

cited no legal authority to support its claim that Aegis bore the burden of proving

that the negotiations in November-December 2014 were abandoned. “If a party

does not support contentions with relevant authority or argument beyond

conclusory statements, the point is deemed abandoned.” Martin v. Summers, 576

S.W.3d 249, 257 n.12 (Mo. App. W.D. 2019) (citation and internal quotation marks

omitted). While Maly may have cited legal authority supporting its burden-of-proof

argument in its reply brief, that came too late. Patrick v. Altria Grp. Distrib. Co., 570 S.W.3d 138, 146 n.8 (Mo. App. W.D. 2019).

9 Even if the circuit court was required to place the burden of proof on Aegis to

show that Thakkar and Maher abandoned their initial negotiations, there is no

indication in the record that the court failed to do so. Neither party requested that

the circuit court make findings of fact, and from the judgment it cannot be

determined how the circuit court allocated the burden of proof between the parties.

Moreover, even if Aegis bore the burden of proof (an issue we do not decide), the

evidence at trial was sufficient to prove, by a preponderance of the evidence, that

Thakkar and Maher abandoned their late-2014 negotiations, and that their

discussions resumed only through the fortuitous and independent efforts of a

previously uninvolved party (Dr. Ravipudi). As discussed in § II above, both

Thakkar and Maher testified that there was no prospect of a sale transaction at the

end of 2014, because Aegis was not interested in selling any portion of the property.

It was only after more than a year had passed, the parties were “reintroduced,” they

“started conversation again,” and several months of negotiations followed, that

Maher was even willing to entertain the prospect of selling a small lot to Thakkar’s

group. Further negotiations were required to agree on the precise size, and price, of

the lot Aegis ultimately sold. In light of this evidence, Aegis satisfied any burden to

prove that the initial negotiations were abandoned, and that those negotiations resumed through circumstances unrelated to Zelenak.

Point II is denied.

Conclusion The judgment of the circuit court is affirmed.

Alok Ahuja, Judge All concur.