Foshee v. Harris , 170 Ga. App. 394 ( 1984 )

Carley, Judge,

dissenting.

I cannot concur in the majority’s determination to affirm the trial court’s grant of summary judgment. I believe that the majority unduly focuses upon the “net to owner” language in the contract. “[I]f a purchaser procured by the broker buys from the owner, even at a less price than that given the broker, the owner would be liable for the broker’s commission if the broker’s effort was the procuring cause of the sale. [Cits.]” (Emphasis supplied.) Tidwell & Yarbrough Realty Co. v. Foster, 123 Ga. App. 192, 193 (180 SE2d 259) (1971). Therefore, the only issue in this case is whether the plaintiffs were the procuring cause of the subsequent sale to the one prospect to whom they had shown the property and with whom they had negotiated extensively.

The majority relies extensively upon certain language of the Tidwell case referred to above, to-wit: “A broker with whom property is listed for sale does not make out a case of procuring cause, however, by merely showing that he first located the ultimate purchaser, if it further appears that without interference by the owner he was unsuccessful in bringing about an offer which could be consummated, and that the sale was made after he had abandoned his effort. [Cits.]” (Emphasis supplied.) Tidwell & Yarbrough Realty Co. v. Foster, supra at 193. It is true that the plaintiffs in this case were unsuccessful in bringing about a sale which could be consummated during the term of the contract because of the owner’s insistence upon the “net to seller” provision. However, the record clearly shows that this is not a case where the plaintiffs are relying merely on their finding of the ultimate purchaser to show that they were the procuring cause of the subsequent sale. This case differs from the cases relied upon by the majority in that, here, the contract itself provides a definition of “procuring cause” by the inclusion of the provision whereby the defendants expressly agreed that the plaintiffs’ commission would be earned if the defendants sold the property within three months of December 1,1981, “to a purchaser to whom the above described property was offered during the continuance of this agency . . .” This specific and unequivocal agreement by the defendants was not conditioned upon any particular sales price. Thus, the “net to seller” clause has no bearing on the issue of procuring cause. While, as the majority emphasizes, the plaintiffs did accept the “net to seller clause,” it must also be recognized that the defendants accepted the clause providing that, under certain circumstances, the plaintiff would be entitled to a commission after the expiration of the term of the contract.

Accordingly, it is my opinion that the judgment of the trial court granting summary judgment to the seller should be reversed because the trial court erroneously construed the contract only on the basis of the inapplicable “net to seller” clause to the total exclusion of the applicable “procuring cause of the sale” clause. Cf. Benton v. Lester, 158 Ga. App. 696 (282 SE2d 174) (1981).

It is to be noted that appellants challenge only the grant of appellees’ motion for summary judgment and do not enumerate as error the denial of appellants’ motion for summary judgment. However, even if the denial of appellants’ motion for summary judgment were before us, we could not reverse that denial because genuine issues of material fact remain under the terms of the applicable “procuring cause of the sale” clause in that there has not yet been a determination as to whether or not the provision requiring appellants to supply a list of prospects was a condition precedent to recovery under the terms of the contract. Roush v. Dan Vaden Chevrolet, Inc., 155 Ga. App. 372 (2) (270 SE2d 902) (1980). “[S]ince issues of fact remain for decision, the trial court erred in granting summary judgment [to appellees] on [appellants’] contract claim.” Edwards v. McTyre, 246 Ga. 302, 303 (271 SE2d 205) (1980).

I am authorized to state that Presiding Judge Shulman, Judge Sognier and Judge Pope join in this dissent.