Matthew P. Apodaca v. ERA First Advantage Realty, Inc. (mem. dec.) ( 2020 )


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  •       MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                         FILED
    regarded as precedent or cited before any                                Dec 03 2020, 8:31 am
    court except for the purpose of establishing                                  CLERK
    the defense of res judicata, collateral                                   Indiana Supreme Court
    Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
    Robert R. Faulkner                                       Max E. Fiester
    Evansville, Indiana                                      Terrell, Baugh, Salmon & Born,
    LLP
    Evansville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Matthew P. Apodaca,                                      December 3, 2020
    Appellant-Defendant,                                     Court of Appeals Case No.
    20A-SC-505
    v.                                               Appeal from the
    Warrick Superior Court
    ERA First Advantage Realty,                              The Honorable
    Inc.,                                                    Benjamin R. Aylsworth,
    Magistrate
    Appellee-Plaintiff.
    Trial Court Cause No.
    87D02-1907-SC-1365
    Kirsch, Judge.
    [1]   Matthew P. Apodaca (“Apodaca”) appeals the trial court’s ruling that Apodaca
    owes a real estate sale commission to ERA First Advantage Realty, Inc. (“ERA
    Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020                   Page 1 of 8
    Realty”) for a purchase of residential real estate that Apodaca negotiated and
    closed on his own. On appeal, Apodaca raises three issues, but we reach only
    one of those issues, which we restate as follows: whether the trial court erred in
    ruling that Apodaca was required to pay a commission to ERA Realty and its
    agent because ERA Realty and its agent failed to fulfill conditions precedent
    under the contract.
    [2]   We reverse and remand.
    Facts and Procedural History
    [3]   In early 2019, Apodaca lived in California, and his job as a field engineer for
    Siemens Corporation involved significant travel. Tr. Vol. 2 at 25. He searched
    the internet for real estate for investment purposes, but once he learned that
    housing in Indiana was much cheaper than housing in California, he began to
    look for homes in Warrick County as a potential home for him and his fiancée
    so he could travel less, and he and his fiancé could settle down and start a
    family. Id. at 26-27. At some point “before March” of 2019, Apodaca
    discovered a residence in Elberfeld, Indiana (“the Elberfeld residence”) that was
    listed as “for sale by owner property.” Id. at 27. Apodaca contacted the owner
    of the Elberfeld residence. Id. At this point, Apodaca had not reached out to
    any southwestern Indiana realtors about the Elberfeld residence. Id.
    [4]   On March 6 or 7, 2019, Apodaca contacted Michael Melton (“Melton”), a real
    estate agent for ERA Realty. Id. at 6. Beginning on March 7, 2019, Apodaca
    began sending text messages to Melton about properties that Apodaca wanted
    Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020   Page 2 of 8
    to view. Ex. Vol. at 3-6. In none of his communications with Melton did
    Apodaca ask Melton about the Elberfeld residence. Tr. Vol. 2 at 19; Ex. Vol. 3 at
    3-6. At some point before March 16, 2019, Apodaca contacted the owner of the
    Elberfeld residence, and the owner agreed that Apodaca could come view the
    residence on March 16, 2019, at 3:00 p.m. Tr. Vol. 2 at 28.
    [5]   Apodaca and Melton met for the first time on the morning of March 16, 2019,
    so they could view several properties in the area later that day. Id. at 10.
    Melton presented Apodaca with a contract. Id. at 11, 20, 22. Several hours
    after Apodaca and Melton started looking at properties, Apodaca told Melton
    for the first time that he had arranged to view the Elberfeld residence on his
    own. Id. at 21. Apodaca and his fiancée viewed that property on their own at
    3:00 p.m. the same day. Id. at 21, 28, 30.
    [6]   At some point on March 16, 2019, Apodaca signed a contract with ERA
    Realty. Id. at 11. In pertinent parts, the contract, designated as a “Loyalty
    Agreement – Buyer’s Exclusive Agency Contract”, provided as follows:
    This Contract is entered into and shall commence on 3/16/19 by
    [ERA Realty] and [Apodaca] . . . . [Apodaca] employs [ERA
    Realty] for the purpose of exclusively assisting [Apodaca] to
    locate property described below or other property acceptable to
    [Apodaca], and to negotiate terms and conditions acceptable to
    [Apodaca] for purchase of property.
    ....
    C. [ERA REALTY’S] COMPENSATION:
    Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020   Page 3 of 8
    ....
    2 . Commission: In consideration for the services to be
    performed by [ERA Realty], [Apodaca] also agrees to pay [ERA
    Realty] a commission of $ Paid by Seller or Paid by Seller % of
    the total purchase price; however, the total commission paid to
    [ERA Realty] shall not be less than $ Paid by Seller. . . . [ERA
    Realty] shall use [ERA Realty’s] best effort to cause the seller or the
    seller’s agent to satisfy [Apodaca’s] obligation to [ERA Realty].
    The commission shall be due, earned and promptly paid if:
    a. [Apodaca or any other person acting for [Apodaca] or on
    [Apodaca’s] behalf, acquires any real property or interest as
    described herein during the term of this Contract through the
    services of [ERA Realty] or otherwise.
    ....
    F. FURTHER CONDITIONS:
    [Apodaca] will compensate [ERA Realty] 3% on the purchase price of a
    for sale by owner if the seller will not pay [Apodaca’s] agent commission.
    [Apodaca] will call [Melton] prior to scheduling appointments
    with for sale by owners and let [Melton] schedule the
    appointments.
    Appellant’s App. Vol. 2 at 18-19 (emphasis added).
    [7]   Apodaca negotiated the terms of the purchase of the Elberfeld residence on his
    own and closed the sale himself. Tr. Vol. 2 at 30. Melton had no role in the
    sale. Id. at 21. At some point before May 20, 2019, Apodaca purchased the
    Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020      Page 4 of 8
    Elberfeld residence for $450.000. Id. at 15-16, 21, 30; Appellant’s App. Vol. 2 at
    17; Ex. Vol. 3 at 6. Melton did not receive a commission from Apodaca, which
    under the terms of the contract would have been $13,500.00. Tr. Vol. 2 at 16-17.
    There was no evidence that Melton, or anyone else on behalf of ERA Realty,
    ever attempted to collect any commission from the seller of the Elberfeld
    residence or that the seller refused to pay the commission.
    [8]   On July 17, 2019, ERA Realty sued Apodaca by filing a “Statement of Claim.”
    Appellant’s App. Vol. 2 at 10. Even though ERA Realty alleged damages for lost
    commissions of $13,500.00, it agreed to the jurisdictional limit of $6,000.00 by
    filing the claim in the Small Claims Division of Warrick Superior Court. Id.
    On January 30, 2020, the trial court conducted a hearing on ERA Realty’s
    claim. Tr. Vol. 2 at 2. On February 3, 2020, the trial court entered judgment
    against Apodaca, finding and concluding as follows:
    The Court FINDS that the contract executed by . . . [Melton] and
    [Apodaca] on the morning of March 16, 2019 is valid and
    enforceable. [Melton] had performed work in preparation prior
    to that date for [Apodaca’s] benefit and [Apodaca] testified about
    thoughtful discussion and consideration with his spouse prior to
    ultimately deciding to enter into the binding contractual
    agreement and without being subject to duress. As a result of the
    foregoing reasons, the Court ORDERS that the Plaintiff shall
    possess a Judgment against [Apodaca] in the full amount being
    requested, $6,000.00, plus court costs.
    Appellant’s App. Vol. 2 at 8. Apodaca now appeals.
    Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020   Page 5 of 8
    Discussion and Decision
    [9]    Apodaca argues that the trial court erred in finding that he was liable under the
    contract to pay a commission to Melton because he maintains that Melton was
    entitled to a commission under the contract only if Melton fulfilled conditions
    precedent in the contract. In addressing Apodaca’s claim, we will assume
    without deciding that Apodaca would owe Melton the commission if Melton
    fulfilled the conditions precedent in the contract.
    [10]   When a trial court enters findings of fact and conclusions of law, findings
    control only as to the issues they cover, and a general judgment standard
    controls as to issues upon which there were no findings. Jernas v. Gumz, 
    53 N.E.3d 434
    , 443 (Ind. Ct. App. 2016), trans. denied. A general judgment entered
    with findings will be affirmed if it can be sustained on any legal theory
    supported by the evidence. 
    Id.
     We review facts from a bench trial under the
    clearly erroneous standard and thus defer to the trial court’s opportunity to
    assess witness credibility. Branham v. Varble, 
    952 N.E.2d 744
    , 746 (Ind. 2011).
    This deference is “particularly important in small claims actions, where trials
    are informal, ‘with the sole objective of dispensing speedy justice’ between
    parties according to the rules of substantive law.” 
    Id.
     (quoting City of Dunkirk
    Water & Sewage Dep’t v. Hall, 
    657 N.E.2d 115
    , 116 (Ind. 1995)). “Interpretation
    of a contract presents a question of law.” Jernas, 53 N.E.3d at 443. “We review
    questions of law de novo and owe no deference to the trial court’s legal
    conclusions.” Id.
    Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020   Page 6 of 8
    [11]   In arguing the contract required Melton to fulfill conditions precedent before
    being entitled to a commission, Apodaca points to section C2 and section F of
    the contract. In pertinent part, section C2 provides:
    Commission: In consideration for the services to be performed
    by [ERA Realty], [Apodaca] also agrees to pay [ERA Realty] a
    commission of $ Paid by Seller or Paid by Seller % of the total
    purchase price; however, the total commission paid to [ERA
    Realty] shall not be less than $ Paid by Seller. . . . [ERA Realty]
    shall use [ERA Realty’s] best effort to cause the seller or the seller’s agent
    to satisfy [Apodaca’s] obligation to [ERA Realty].
    Appellant’s App. Vol. 2 at 18 (emphasis added). Section F provides:
    [Apodaca] will compensate ERA Realty 3% on the purchase price of a for
    sale by owner if the seller will not pay [Apodaca’s] agent commission.
    [Apodaca] will call [Melton] prior to scheduling appointments
    with for sale by owners and let [Melton] schedule the
    appointments.
    Id. at 19 (emphasis added).
    [12]   Apodaca contends that there was no evidence before the trial court that Melton
    made any effort to cause the seller to pay any obligation for a commission that
    Apodaca may have owed Melton. Apodaca also claims there is no evidence
    that the seller refused to pay the commission. Thus, he claims the trial court
    erred as a matter of law in ruling that Apodaca was required to pay a
    commission to Melton.
    Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020          Page 7 of 8
    [13]   We agree with Apodaca. “Under contract law, a condition precedent is a
    condition that must be performed before the agreement of the parties becomes a
    binding contract or that must be fulfilled before the duty to perform a specific
    obligation arises.” Ind. State Highway Comm’n v. Curtis, 
    704 N.E.2d 1015
    , 1018
    (Ind. 1998). “As a general rule, an express condition must be fulfilled or no
    liability can arise on the promise that the condition qualifies.” 
    Id.
     Here, the
    contract required Melton to make “best effort to cause the Seller . . . to satisfy
    [Apodaca’s] obligation to [Melton].” Appellant’s App. Vol. 2 at 18. Under the
    contract, Apodaca was not liable for the commission unless the seller “[would]
    not pay the . . . commission.” Id. at 19. There is no evidence that Melton or
    any other person on behalf of ERA Realty made such efforts or that the seller
    refused to pay the commission. Therefore, the evidence is undisputed that
    Melton and ERA Realty failed to fulfill conditions precedent to collection of the
    commission. Thus, the trial court erred as a matter of law in finding that
    Apodaca was required to pay the commission to Melton for Apodaca’s
    purchase of the Elberfeld residence. Accordingly, we reverse the trial court and
    direct it on remand to enter judgment for Apodaca on ERA Realty’s Statement
    of Claim.
    [14]   Reversed and remanded.
    Pyle, J., and Tavitas, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 20A-SC-505 | December 3, 2020   Page 8 of 8
    

Document Info

Docket Number: 20A-SC-505

Filed Date: 12/3/2020

Precedential Status: Precedential

Modified Date: 12/3/2020