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12/01/88 D.B. Corkey Company, Inc., v. Alfred N. Koplin Et Al.

December 1, 1988

D.B. CORKEY COMPANY, INC., PLAINTIFF-APPELLANT

v.

ALFRED N. KOPLIN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

531 N.E.2d 1044, 176 Ill. App. 3d 1096, 126 Ill. Dec. 417 1988.IL.1735

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, D.B. Corkey Company, Inc., brought suit against defendants, Alfred N. Koplin, Jean V. Koplin, and Caroline Koplin, seeking to recover a real estate brokerage commission allegedly owed to plaintiff. Plaintiff claimed that it had produced a ready, willing and able buyer for property owned by defendants, but that defendants refused to consummate the transaction or pay the commission. The circuit court of Du Page County granted defendants' motion for summary judgment finding that no brokerage agreement existed between the parties. The issue on appeal is if a material question of fact exists as to whether there was a brokerage contract, either express or implied in fact, under which plaintiff is entitled to a commission. For reasons set forth below, we affirm.

From our review of the record, including the depositions filed in support of and in opposition to the motion for summary judgment, we have gleaned the following facts. Donald Corkey (Corkey), president of the plaintiff corporation, is a licensed real estate broker specializing in commercial transactions. Alfred Koplin (Koplin) and his wife, Jean, own eight office buildings and one apartment building, which are located in Oak Brook, Hinsdale, and Elmhurst. The Koplins' daughter, Caroline, is beneficiary of a trust holding title to one of the properties; Alfred Koplin has the power of direction to sell all of the properties and manages the properties. Corkey and Koplin met during the course of lease transactions involving the Koplin properties. In those transactions, Corkey represented tenants. He did not represent defendants or receive a brokerage commission from them.

Corkey testified at his deposition that in June 1984, at the Conclusion of a lease transaction, Koplin raised the issue of a possible sale of the properties. Observing that Corkey seemed to represent some "heavy hitters," Koplin asked Corkey if he thought any of them would be interested in buying the properties. Koplin said he had recently turned down $50 million and wanted approximately $52 million. They discussed the various properties and Corkey said he would "see what was going around." According to Corkey, this was the entirety of the June 1984 conversation.

The parties' next contact was in November 1984. Corkey testified that Koplin called and said he wanted to sell the property for $54 million. Corkey said that Koplin suggested to Corkey, "'Why don't you put a 5% commission on top of that?' He said, 'I don't care what you get.'" Up to this point, no written brokerage contract had been entered into, nor had Corkey told Koplin he was acting as defendants' broker.

On November 5, 1984, Corkey sent a letter to Koplin introducing an investment analyst for the Travelers Insurance Corporation, which Corkey identified as "my client." The letter stated that plaintiff would be entitled to a commission of 5% of a "Net" price established by Koplin payable at closing. The letter concluded: "If the foregoing is acceptable, please sign where indicated below and return a copy for my files." Koplin did not sign the letter or return it to Corkey.

In early 1985, Corkey contacted the Holladay Corporation regarding the potential sale of the Koplin properties. Prior to the transaction at issue here, Corkey had acted as a real estate broker for Holladay on other occasions. He had received commissions from Holladay in those instances and was also a limited partner in a partnership whose other partners were Holladay's employees. Corkey testified that he was actively looking for property on Holladay's behalf. After some initial correspondence between the parties, in which Corkey referred to Holladay as his clients, defendants indicated that they were interested in selling only one property at a time. Because Holladay was only interested in buying all of the properties at once, Discussions between the parties temporarily ceased.

Negotiations concerning the properties resumed in June 1985. Although the parties dispute who initiated the contact, Koplin informed Corkey that defendants still might be interested in selling all of the properties together. A meeting was then arranged among Corkey, Koplin, and officers from Holladay. Although Koplin denied reaching an agreement during the meeting, Corkey testified that Koplin and one of Holladay's officers, Richard Haase, shook hands on a deal that would yield $52 million net to defendants.

Prior to this meeting, Corkey sent two letters to Koplin. One purported to reinstate Holladay as a potential buyer and to register plaintiff as broker "in the event a sale [was] consummated with [Holladay]." No means of accepting this proposal, as was included in the earlier letter regarding Travelers Insurance, was provided. The second letter indicated Holladay's interest in buying the properties and requested a letter of intent which would be subject to "our review" of certain documents requested in the letter. Once again, Corkey referred to Holladay as his client throughout both letters. John Phair, another Holladay officer, whose deposition is a part of the record here, testified that prior to Corkey sending these letters, Corkey had asked to represent Holladay again. Phair also testified that he and Corkey had negotiated over the amount of the commission, that Corkey was acting as Holladay's broker, and that the commission would be paid by Holladay. Koplin was not a party to these negotiations.

After the meeting, Holladay's attorney prepared a draft contract of sale. Holladay delivered the contract, which called for a sale price of $51 million, along with a $100,000 earnest money check, to Corkey for him to present to Koplin. Koplin did not sign the draft contract, and Corkey returned the check to Holladay. Corkey and Koplin then sat down and discussed the proposal, with each making comments and handwritten notations on it. The notations indicated that the purchase price would be $53,750,000, the net price Koplin was seeking. Notations also reflect an increase in the earnest money deposit. Paragraph 15 of the draft contract originally provided that defendants would pay a commission to plaintiff as set forth in a separate written agreement between Corkey and Koplin. This provision was manually crossed out, and the word "Revise" was written in the margin. Corkey testified ...


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