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05/21/97 COLDWELL BANKER HAVENS v. LOUIS RENFRO AND

May 21, 1997

COLDWELL BANKER HAVENS, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,
v.
LOUIS RENFRO AND GOLDA RENFRO, DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS AND MELVIN LIPE, ESCROW HOLDER, DEFENDANT.



Appeal from the Circuit Court of Jackson County. No. 94-L-7. Honorable William G. Schwartz, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court. Kuehn, P.j., and Welch, J., concur.

The opinion of the court was delivered by: Hopkins

JUSTICE HOPKINS delivered the opinion of the court:

Defendants, Louis and Golda Renfro, appeal from the trial court's order denying their motion for attorney fees pursuant to a listing agreement with plaintiff, Coldwell Banker Havens, Inc. (Coldwell Banker), filed after the first appeal in this case. The trial court, in denying the Renfros' motion for attorney fees, which was based upon the agreement, determined that since the appellate court reversed the trial court's original decision and found that Coldwell Banker was not entitled to a broker's commission because the agreement had been terminated by acts of the Renfros, the Renfros similarly cannot base their claim for attorney fees upon this same agreement which they successfully argued was terminated. The issue in this appeal is whether the court erred in determining that the Renfros were not entitled to attorney fees under the parties' original agreement. We reverse and remand for the reasons set forth below.

FACTS

This case is before this court for a second time. In the first appeal (Coldwell Banker Havens, Inc. v. Renfro, No. 5-94-0692 (September 13, 1995) (unpublished order under Supreme Court Rule 23 (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994))), Coldwell Banker claimed that the Renfros breached their contract (the exclusive listing agreement) with Coldwell Banker, and Coldwell Banker sought a broker's commission for the Renfros' sale of the property which was the subject of the listing agreement. The listing agreement was executed by the parties on June 24, 1992. The listing agreement was for a year but contained a termination clause which provided that either party could terminate the contract after 180 days, upon 30 days' written notice. The contract also provided that if the Renfros' property was sold within six months after the termination of the contract, Coldwell Banker still would be entitled to a broker's commission if the property was sold by the Renfros to a buyer who had been first shown the property, directly or indirectly, by Coldwell Banker. Coldwell Banker showed the property to Southern Illinois Hospital Corporation (the Corporation) sometime in November or December, but the Corporation did not make an offer. On December 1, 1992, Louis Renfro hand-delivered a typewritten letter to Coldwell Banker cancelling his listing contract with Coldwell Banker on December 31, 1992. It was shown that after Louis gave the notice of termination, he still had contact with Coldwell Banker regarding the property. The evidence conflicted at the first trial as to the number and dates of these contacts. The contract also contained a provision which stated, "In the event that any action is filed in relation to this listing, the unsuccessful party in the action shall pay to the successful party *** a reasonable sum for the successful party's attorney's fees." (Emphasis added.)

On December 3, 1993, the Renfros sold their property to the Corporation. Coldwell Banker claimed that it was entitled to a commission for the sale. Coldwell Banker filed suit to collect the commission, alleging in its complaint that Coldwell Banker was entitled to the commission because the sale was within six months of the termination of the contract. Coldwell Banker also claimed it was entitled to reasonable attorney fees under the contract.

The Renfros answered the complaint and in their answer included the affirmative defense that Louis had terminated the contract in writing on December 1, 1992, and a counterclaim for slander of title, based upon Coldwell Banker's recording of the listing agreement to place the Corporation on notice that Coldwell Banker was seeking a broker's commission. In the Renfros' counterclaim, one paragraph stated, "Said claimed lien subjected the counterplaintiffs to escrow $30,000 in funds which are lawfully the counterplaintiffs'[,] to incur substantial attorneys fees and court costs, and to suffer other damages." In the prayer for relief of the counterclaim, the Renfros sought the costs of the suit and reasonable attorney fees.

Following a hearing, the trial court made a finding, given the Renfros' actions after January 1, 1993, and after the termination notice given by Louis, as follows: "It was contrary to all principles of equity to allow the defendants to rely upon the December 1, 1992[,] letter to terminate the contract ***." The court further found that Louis's notice of termination of December 1, 1992, was ineffective, that the termination date of the contract was June 23, 1993, and that the sale of the property was within six months following the termination of the contract (December 22, 1993), thereby entitling Coldwell Banker to a broker's commission. The court also found that the Renfros failed to establish a prima facie case for slander of title. The court entered judgment in favor of Coldwell Banker, awarding it a broker's commission and attorney fees and denying the Renfros' counterclaim for slander of title. The Renfros appealed.

On appeal, this court reversed the trial court's decision. We concluded that the Renfros' notice terminating the listing agreement was effective. However, this court also addressed Coldwell Banker's entitlement to a broker's commission under the equitable principle of quantum meruit. This court determined that Coldwell Banker could not receive a broker's commission under this theory either, because there was no evidence that Coldwell Banker was the "procuring cause," given that Coldwell Banker had done nothing to assist in the sale after August or September 1993 and that Coldwell Banker had abandoned the Corporation as a potential purchaser, and therefore, Coldwell Banker had not produced a ready, willing, and able buyer for the Renfros.

The appellate court's mandate reversing the trial court's judgment was filed in the trial court on January 11, 1996. Within 30 days of the filing of the mandate, the Renfros filed a motion for an award of attorney fees as the "successful party" to the litigation, under the listing agreement provision previously quoted. Coldwell Banker objected to this motion. Following the hearing on the Renfros' motion and Coldwell Banker's objection, the trial court denied the Renfros' motion. This ruling provides the basis for the Renfros' second appeal.

ANALYSIS

As stated previously, the primary issue on appeal is whether the trial court erred in denying the Renfros' motion for attorney fees under the provision of the listing agreement which allowed the "successful party" to any litigation under the agreement to recover attorney fees. On appeal, the Renfros argue that since they became the "successful party" to the litigation initiated by Coldwell Banker, after the appellate court reversed the trial court in the first appeal, they are entitled to recover attorney fees and costs of suit. The Renfros claim that the trial court's refusal to award them attorney fees is contrary to law and that the trial court wrongfully based its denial of the Renfros' motion on this court's prior Rule 23 order.

Coldwell Banker argues that the trial court had no authority or jurisdiction to act on the Renfros' motion after the mandate of the appellate court was filed; that the "rule of the case doctrine" prohibits the trial court from considering the Renfros' motion; that since the Renfros did not make any claim for contractual attorney fees by filing a counterclaim for fees and presenting evidence on the counterclaim before the judgment of the trial court was rendered in the initial trial, they are not entitled to new additional ...


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