Premier Realty, LLC v. I.T.J. Investments, Inc. ( 2009 )

McAnany, J.,

concurring in part and dissenting in part: I concur with the majority that no commission was earned with respect to 12518 W. Bitner Court. However, I must dissent from the majority’s decision to remand plaintiffs’ claim for trial with respect to 12534 W. Bitner Court.

In July 2005, Premier Realty, LLC, d/b/a Remax Premier, and Thomas C. Lassley (plaintiffs), became I.T.J. Investments, Inc.’s (ITJ), exclusive agent for marketing 12534 W. Bitner Court. They agreed in the listing agreement to “promote the interests of the Seller with the utmost good faith, loyalty and fidelity.” When they entered into a similar, and conflicting, exclusive agency agreement with the Plummers, they still owed the utmost good faith, loyalty, and fidelity to ITJ. Plaintiffs were ITJ’s exclusive agent until they were no longer ITJ’s exclusive agent. Plaintiffs brought to ITJ an offer from the Plummers while plaintiffs were still ITJ’s exclusive agent. When ITJ rejected it, plaintiffs immediately (and without consulting with die Plummers) increased the offer by $2,900. Obviously, plaintiffs had the authority to offer a higher purchase price than the Plummers initially offered to ITJ. In my opinion, plaintiffs breached their fiduciary duty to ITJ by attempting to consummate a sale of the property for a price they knew was not the highest price the Plummers were wilting to pay for the property. I find no error by the district court in granting summary judgment to ITJ on this claim.