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No. 3--02--0109

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

Plaintiff Joanne Gretencord, a real estate broker, sueddefendant Dana Cryder to recover a six percent brokerage commission on the sale of defendant's farm property. After abench trial, the circuit court found in plaintiff's favor andentered judgment against defendant in the amount of $41,900. Defendant appeals, arguing that the court's decision was contraryto the manifest weight of the evidence. We reduce the amount ofthe judgment to $41,490 and affirm the trial court's decision inall other respects.

The real estate here at issue consisted of an undivided one-half interest in a 320-acre tract of agricultural land in KendallCounty (Cryder Farm). Defendant inherited his interest upon thedeath of his father in 1993. The other undivided one-halfinterest was owned by defendant's aunt, Mary Moss. Kirk Friestadwas the tenant farmer of Cryder Farm at all times relevant tothis action.

In 1996, defendant needed money. He tried to obtain a bankloan, but he was told that his undivided one-half interest in thefarm could not be used as collateral. The prospect ofdefendant's selling his interest in the farm upset Moss. Consequently, Moss' attorneys instructed defendant not to contacther about the matter. Defendant honored his aunt's request andasked his attorney, Timothy Malmquist, to do so as well. Priorto July 3, 1996, defendant told Friestad that he was consideringlisting the property for sale. Friestad said he wished he couldbuy it, but he did not think he could afford such a large tract.

On July 3, defendant entered into an agreement withplaintiff granting her the exclusive right for three months tosell his undivided one-half interest in the farm. The agreementspecified the marketing price as $691,500 and named Richard Olsonas plaintiff's designated agent. The agreement further provided:

"Section 2. Commission

If during the term of this Agreement, *** the propertyis sold or exchanged at any price and upon any termswhich Seller accepts, Seller shall pay Broker acommission of 6% of the total purchase price of thesale or exchange. Seller agrees that such a commissionshall be paid if the property is sold or exchanged bySeller within a protection period of 3 months followingthe term of this agreement *** to anyone to whom Brokerhas made aware of the property and of whom Seller hasreceived notice from Broker within 30 days of theexpiration of the three month period."

and

"Section 4. Sellers Duties

Seller agrees to immediately refer to the DesignatedSeller's Agent all prospective purchasers or brokerswho contact Seller for any reason and to provide theDesignated Sellers [sic] Agent with their names andaddresses."

During the period that the agreement was in effect, Olsonobtained a written offer from William Eisenbrandt to purchase theentire Cryder Farm for $1,384,000. The offer was accepted bydefendant, but it was contingent on Moss' execution of the salescontract. Malmquist and Olson communicated the offer to Mossthrough her attorneys. Malmquist forwarded copies of the listingagreement and Eisenbrandt's offer to Moss' attorneys. Aroundthis time, Friestad approached Eisenbrandt. Friestad said hethought Eisenbrandt had purchased the farm, and he was concernedabout who would be farming it. Eisenbrandt told Friestad thatthe sale was not complete, and he could not comment on a farmtenancy arrangement. After Eisenbrandt related this visit toOlson, Olson telephoned Malmquist to inquire about Friestad'sinterest in purchasing the property. Malmquist assured Olsonthat Friestad was not an interested buyer.

Olson subsequently visited with Friestad in person in August1996. Friestad told Olson that he wanted to purchase the farm,but he could not afford to buy Dana's share of it. Consequently,Olson did not further pursue Friestad as a prospective purchaser.

In the meantime, Moss refused to sell, and Eisenbrandtproposed purchasing defendant's share of the farm if Moss wouldagree to a partition. Moss' attorneys did not respond to Olsonand Malmquist regarding a partition before the listing agreementexpired at midnight, October 2.

On October 3 and 4, defendant contacted Malmquist aboutselling his interest in the farm to Friestad and filing apartition suit against Moss. Malmquist indicated that if Olsonhad not shown the farm to Friestad, defendant had no liabilityunder the listing agreement. On October 7, Friestad came toMalmquist with a written offer to purchase defendant's undividedone-half interest in the farm for $4,000 per surveyed acre. Onthat date, he tendered $10,000 in earnest money to defendant andagreed to pay an additional $40,000 when the contract was signed. On October 8, 1996, the First Midwest Bank approved Friestad'srequest for a $640,000 loan to purchase 160 acres of Cryder Farm. Negotiations between defendant and Friestad resulted in acontract executed on October 11, 1996, for the sale ofdefendant's undivided one-half interest for $652,500. Thetransaction was closed on February 3, 1997.

At trial, defendant testified that, while the agreement wasin effect, he told Friestad he had a 90-day listing agreement. Friestad admitted that he was aware as early as July 1996 thatdefendant had listed his interest in the farm with plaintiff, buthe said he could not recall if he knew the date the listingagreement expired. He said he had had discussions with Mossprior to October 7, 1996, and that she had agreed to partitionthe farm if Friestad were to purchase defendant's share. Friestad admitted that his loan would not have been approvedwithout Moss' prior agreement to a partition. Friestad thoughtthe partition documents were executed in March 1997, or some timeafter the closing on defendant's interest. Both defendant andMalmquist admitted that, although they discussed defendant'sproperty with Friestad at various times during the period of thelisting agreement, they did not refer him to Olson as aprospective purchaser or provide his name and address to Olson.

Based on the evidence, the trial court found that Friestadcontacted defendant about the property either directly or throughhis attorney after Olson visited with Friestad in person, andthat Friestad dealt directly with Moss behind defendant's back. The court found that Friestad carefully waited until he knew thelisting agreement had expired before he made his written offer topurchase at a price practically equal to the listing price, lesssix percent, thereby saving himself the cost of plaintiff'scommission. Although the court found no purposeful dishonesty ondefendant's part, the court ruled that, under the circumstances,defendant owed a duty to refer Friestad to Olson as a prospectivebuyer pursuant to the listing agreement, and that defendant'sfailure to do so constituted a breach of contract. Accordingly,the court entered judgment for plaintiff.

On appeal, defendant argues that the trial court erroneouslyfound that he owed a duty under the listing agreement to referFriestad to Olson. He does not dispute that he discussed theproperty with Friestad during the listing period after Olson metwith Friestad in August 1996. Rather, he claims only that he didnot know that Friestad was a prospective purchaser until afterthe listing agreement expired. He argues that the $41,900judgment is unfair; he should not be punished for Friestad'sconduct, especially since he did not receive any more money fromthe sale than he would have received if the property had beensold to Eisenbrandt.

A circuit court's verdict will not be disturbed on reviewunless it was against the manifest weight of the evidence. Louisv. Lexington Development Corp., 253 Ill. App. 3d 73, 625 N.E.2d289 (1993). A verdict is against the manifest weight of theevidence when an opposite conclusion is clearly evident and wherethe court's finding of fact is arbitrary and not based on theevidence. Louis, 253 Ill. App. 3d 73, 625 N.E.2d 289. Generally, this court will defer to the court's findings of factwhere several inferences are reasonable from conflictingtestimony and where the facts must be determined based on anassessment of the witnesses' credibility. Louis, 253 Ill. App.3d 73, 625 N.E.2d 289; Family Tailored Homes, Inc. v. Manfield,233 Ill. App. 3d 477, 599 N.E.2d 198 (1992).

Here, the question at trial was not whether defendant knewor believed that Friestad was a prospective purchaser, butwhether he was, in fact, a prospective purchaser who contacteddefendant about the property during the term of the listingagreement. "Prospective" means "[i]n the future; lookingforward; contemplating the future." Black's Law Dictionary 1222(6th ed. 1990). Undisputed facts and reasonable inferences fromthe evidence at trial established that Friestad, notwithstandinghis denials of ability to pay, was a "prospective" purchaseri.e., contemplating the future purchase of defendant's property--who contacted defendant throughout the term of the listingagreement. Defendant informed Friestad that he intended to sellhis interest in the farm even before he entered into the listingagreement. At that point, Friestad said he wanted to buy theproperty but could not afford it. Later, in anotherconversation, defendant informed Friestad that he had a 90-daylisting agreement with plaintiff. This information was not amatter of general publication. It would be of interest, however,to a prospective purchaser who was willing to wait in the wingsto make a deal for six percent less than the listed price. SeePodolsky & Associates, L.P. v. Discipio, 297 Ill. App. 3d 1014,697 N.E.2d 840 (1998).

Defendant's duty to refer was not dependent on defendant'sbelief that Friestad could afford to pay for the property and wasnot extinguished by Olson's failure to show Friestad the land hehad been farming for several years. See Family Tailored Homes,233 Ill. App. 3d 477, 599 N.E.2d 198 (real estate agent's failureto show property to ultimate buyer who lived 50 yards away andwas known to seller did not absolve seller of liability underexclusive listing agreement, where offer to purchase was madewithin two days of expiration of listing agreement). Instead ofrelying on Friestad's asserted inability to pay the listed price,defendant had only to refer Friestad to Olson and to provideOlson with Friestad's name and address pursuant to section 4 ofthe listing agreement. Defendant did neither. By not complyingwith his contractual duty, defendant assumed the risk thatFriestad would deal with Moss behind his back, arrange hisfinances and make an offer defendant would not refuse immediatelyafter the listing agreement expired.

Notwithstanding defendant's lack of bad faith, his failureto comply with his duty to refer exposed him to liability underthe contract. Cf. Podolsky, 297 Ill. App. 3d 1014, 697 N.E.2d840 (broker not entitled to commission where trial court believedseller's testimony that he told prospective purchaser to dealwith broker during term of listing agreement and sold property tosame entity more than six months after listing agreementexpired). Accordingly, the trial court did not err in grantingjudgment for plaintiff.

Last, we note that the judgment awarded is $410 in excess ofthe amount prayed for in plaintiff's complaint. Plaintiff suedfor $41,490, which is six percent of the listed price of$691,500. No evidence was admitted at trial to support an awardgreater than $41,490, and it appears that the amount awarded($41,900 plus costs) was a scrivener's error. Therefore,pursuant to our powers under Supreme Court Rule 366(a) (155 Ill.2d R. 366(a)), we modify the award by reducing it to $41,490 pluscosts. See Carlson v. City Construction Co., 239 Ill. App. 3d211, 606 N.E.2d 400 (1992).

The judgment of the circuit court of Grundy County isaffirmed as modified.

Affirmed as modified.

McDADE, P.J., and SLATER, J., concur.