Whalen v. Bistes

45 So. 3d 290, 2010 Miss. App. LEXIS 530, 2010 WL 3749080
CourtCourt of Appeals of Mississippi
DecidedSeptember 28, 2010
DocketNo. 2009-CA-00660-COA
StatusPublished
Cited by3 cases

This text of 45 So. 3d 290 (Whalen v. Bistes) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whalen v. Bistes, 45 So. 3d 290, 2010 Miss. App. LEXIS 530, 2010 WL 3749080 (Mich. Ct. App. 2010).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. Michael Whalen sought specific performance or, alternatively, damages for breach of contract, relating to a land-sale agreement he attempted to broker between Gregory Bistes Jr. and the Bradshaw . Family Limited Partnership. The chancellor granted summary judgment in Bistes’s favor and found that Whalen’s undisclosed dual-agency representation of both Bistes and the Partnership made delivery ineffective and rendered the contract unenforceable. The chancellor also held that because Whalen lacked a real-estate license while acting as a realtor and brokering the land acquisition, he entered court with unclean hands and could not seek equity. Based on Whalen’s violation of Mississippi’s real-estate-licensure laws and his failure to act with the heightened scrutiny required in dual-agency relationships, we find no manifest error in the chancellor’s judgment and affirm.

FACTS

¶ 2. Whalen approached Bistes on behalf of the Partnership seeking to purchase a parcel of land in Long Beach, Mississippi, owned by Bistes and Gay Bistes Palmisa-no. On April 25, 2003, Bistes offered to sell the property and signed an “Agreement to Purchase and Sell” on behalf of himself and Palmisano. The agreement had been prepared by Whalen and proposed that Bistes sell the land to the Part[292]*292nership for $84,800. The Partnership had to accept the terms of the agreement and deposit a $5,000 promissory note with Bistes by May 1, 2003. The contractual language also provided for deposit of the note with the seller’s agent. Though the agreement did not identify who Whalen represented in the transaction, the contract required Bistes pay Michael Whalen Realty Investment a six-percent commission “if sale is consummated.”

¶ 3. Whalen presented the contract to Tom Bradshaw, who on April 30, 2003, on behalf of the Partnership, deposited a $5,000 note with Whalen. Though the contract contained a May 1, 2003, deadline for acceptance, Whalen neither informed Bistes of the Partnership’s acceptance nor mentioned the delivery of the note until May 10, 2003.

¶ 4. On May 10, Whalen visited Bistes in Slidell, Louisiana, and told Bistes the contract was signed. But Bistes claimed the contract was void and unenforceable since he had not received a signed acceptance or the promissory note by the May 1 deadline. Whalen informed the Partnership of Bistes’s position that the Partnership had not timely accepted the terms of the land-sale agreement. But the Partnership instructed Whalen to proceed with the closing. The Partnership also directed Whalen to record the contract, which he did on May 12, 2003. Several weeks later, Bistes was notified by mail of a June 27, 2003, closing date. Bistes did not respond or attend the closing.

¶ 5. On July 1, 2003, Bradshaw mailed a letter to Bistes purporting to assign the Partnership’s rights under the contract to Whalen. Whalen claims this assignment entitled him to specific performance of the contract. On July 8, 2005, Whalen filed a lis pendens claim in the Harrison County Chancery Court.

¶ 6. The chancellor granted summary judgment in Bistes’s favor, which Whalen now appeals.

STANDARD OF REVIEW

¶ 7. “This Court reviews summary judgments de novo.” Point S. Land Tr. v. Gutierrez, 997 So.2d 967, 975 (¶ 18) (Miss.Ct.App.2008) (quoting Stallworth v. Sanford, 921 So.2d 340, 341 (¶ 5) (Miss.2006)). Summary judgment is proper where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). When a motion for summary judgment is made and supported, “an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). In determining whether the trial court properly granted summary judgment, we view the evidence in the light most favorable to the non-moving party. Gutierrez, 997 So.2d at 975 (¶ 18) (citing Moss v. Batesville Casket Co., 935 So.2d 393, 399 (¶ 17) (Miss.2006)).

DISCUSSION

I. Contract and Dual Agency

¶ 8. It is undisputed Whalen acted as an agent for the buyer — the Partnership. Whalen also admitted during his deposition he had acted as the seller’s (Bistes’s) agent and as a dual agent. Though he claims a dual agency exists, Whalen admits he never informed Bistes of the dual-agency relationship, nor did he request that Bistes execute a dual-agency acknowledgment. Further, the contract at issue does not state who Whalen represented in the land transaction.

[293]*293¶ 9. Mississippi Code Annotated section 73-35-35 (Rev.2008) authorizes the Mississippi Real Estate Commission to adopt rules and regulations governing real-estate business conducted in Mississippi. The Commission requires that an agent involved in a dual-agency arrangement ensure both parties explicitly acknowledge the dual relationship on a form provided by the Commission. Code of Miss. Rules 50 025 001-10, Mississippi Real Estate Commission Rule IV.E.3(c)(3) (2004) (emphasis added). And dual representation by realtors is permitted under Mississippi Code Annotated section 73-35-21(l)(e) (Rev.2008) if the dual representation takes place with the full knowledge of all parties. Lane v. Oustalet, 873 So.2d 92, 96 (¶ 16) (Miss.2004).

¶ 10. The chancellor found that “delivery of the contract to Mr. Whalen by the seller was not delivery to the buyer because of Mr. Whalen’s undisclosed dual agency.” To refute this reasoning, Whalen cites a real-estate regulation and argues that the specific requirement that brokers disclose their agency relationships “does not abrogate the laws of agency as recognized under common law[.]” Code of Miss. Rules 50 025 001-7, Mississippi Real Estate Commission Rule IV.E.l (2004).

¶ 11. Under traditional agency law, knowledge and information acquired by an agent transacting the principal’s business is imputed to the principal, even if not communicated by the agent to the principal. Pittman v. Home Indem. Co., 411 So.2d 87, 89 (Miss.1982) (citations omitted). Whalen argues this imputed-knowledge theory should apply equally in the realm of undisclosed dual agencies. Whalen reasons the knowledge he acquired from the Partnership was imputed to his other principal, Bistes. Whalen also argues that because the Partnership accepted the land-sale agreement and delivered the required promissory note to Whalen before the May 1 deadline, the contract became enforceable between Bistes and the Partnership that day. And Whalen contends a fact issue arose as to whether delivery and acceptance were imputed to Bistes, regardless of Whalen’s failure to inform Bistes of the acceptance until after the deadline.

¶ 12. To support this argument, Whalen cites Lane and argues the issue of whether knowledge has been imputed to a principal in a dual-agency case is a question that should have been submitted to the jury. We note, however, that in Lane the supreme court stopped short of creating a bright-line rule imputing knowledge held by a dual agent to either or both principals. Lane, 873 So.2d at 97 (¶ 22). And perhaps most importantly, unlike this case, the Lane

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Bluebook (online)
45 So. 3d 290, 2010 Miss. App. LEXIS 530, 2010 WL 3749080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whalen-v-bistes-missctapp-2010.