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Podolsky and Associates L.P. v. Discipio

June 30, 1998


The opinion of the court was delivered by: Justice Gordon

Appeal from the Circuit Court of Cook County

No. 95CH4776

Honorable Richard E. Neville, judge Presiding.

Plaintiff Podolsky and Associates L.P. ("Podolsky") appeals a judgment entered at the close of evidence in a bench trial in the circuit court of Cook County that it was not entitled to a commission for a sale of real estate. It argues the court should have entered judgment in its favor on its breach of contract action or, in the alternative, that it is entitled to a retrial because the court erred in excluding certain evidence. For the reasons stated below, we affirm.


In November 1990, Podolsky entered into two agreements (collectively, "the listing agreements") to act as exclusive agent with authority to sell two separate but contiguous parcels of land (collectively, "the property"). Whether Podolsky was entitled to a commission under the listing agreements was the subject of its suit in circuit court. One agreement covered a parcel of property owned by Francis and Mary Discipio, and the other covered a parcel owned by Francis and Anthony Discipio, as well as other persons who settled with Podolsky prior to trial. (The defendants will thus be collectively referred to as "the Discipios.") Other than the descriptions of the parcels and the names of the sellers, the agreements were identical.

The Discipios demanded $5.00 per square foot for the property, and required that the sale be made for "cash at closing," but otherwise did not limit Podolsky's authority to sell the property on their behalf. No reference to any other prerequisites to a sale appear on the face of the listing agreements. They provided that Podolsky would be entitled to a commission "payable in full at the closing of the sale:

(a) for your [Podolsky's] services in procuring a purchaser, on the above terms or such other terms as the undersigned shall accept, or (b) if the property is sold by you, by the undersigned, or by or through any other person, during the period hereof, or (c) if the property is sold within six (6) months after the terminating date hereof to a purchaser, on behalf thereof [sic], to whom it was submitted by you or your representatives, provided such party is identified on a list submitted to the undersigned within thirty (30) days after the expiration of this agreement."

The agreements also provided that the Discipios would "cooperate with you [Podolsky] in any way possible in bringing about a sale of said property and to refer to you all inquiries of brokers or others interested in said property, and that all negotiations or dealings shall be with and through you as agent."

The listing agreements were of 12 months duration, but provided that they could "be continued thereafter for additional specified periods by mutual agreement of the parties hereto as may be set forth in writing and signed by same." In October 1991 and November 1992 they were extended by letter agreements through November 1992 and November 1993, respectively. They were not extended past November 1993, and in November 1993, within 30 days after the final term expired, Podolsky submitted a list of purchasers to whom it had shown the property in accordance with subsection (c), quoted above. One of the entities listed was Town & Country Homes ("Town & Country"). The Discipios sold the property to Town & Country more than six months after November 1993, when the listing agreements finally expired.

Before trial, the court granted the Discipios' motion in limine to exclude any reference to the fact that Francis Discipio had been suspended from the practice of law for two years. The court granted the motion on the basis that the Illinois Supreme Court "had to make a finding that he no longer was under the burden of whatever happened before" since Francis had been readmitted to the practice of law. Francis testified at trial that in May 1993 Town & Country had sent him a written contract offering to purchase the entire property at the price of $5.00 per square foot. Francis testified that he did not remember whether the contract was already signed by a Town & Country representative when he received it. Before receiving the contract Francis had received a telephone call from Peter Brennan, general counsel for Town & Country, in which Brennan told him that Town & Country had an interest in the property. Francis testified that he told Brennan that there was "an exclusive" on the property, and referred him to Podolsky. He did not negotiate with Town & Country prior to receiving the offer.

In June 1993, several months prior to the expiration of the final extension of the listing agreements, there was a meeting between the Discipios and Milton Podolsky, Randy Podolsky and John Musgjerd, all of whom were representatives of Podolsky. It was at this meeting that Podolsky first learned of the existence of Town & Country as a potential purchaser, when Francis showed the Town & Country offer to the Podolsky representatives. Francis stated that Randy attempted to photocopy the offer, but he did not allow him to do so "because I [(Francis)] wanted him to negotiate directly with Town & Country." He allowed Randy to write down notes regarding the offer, but never gave a copy of it to Podolsky. He testified that he destroyed the offer at some point after the meeting, without keeping a copy, because the offer was "not acceptable." He testified that the contract through which the Discipios later (after the expiration of the listing agreement) sold the property to Town & Country differed from the 1993 offer in that the final contract recited a minimum square footage and also provided for the disposition of crops being grown on the land.

Peter Brennan, general counsel to Town & Country, testified that it was his understanding that Francis represented all of the defendants until November 1994, at which time Brennan was notified that certain of the defendants were being represented by another attorney. He believed that he called Francis in June 1992 and told him that Town & Country was interested in purchasing the property. He did not remember Francis telling him at that or any time that the property was under an exclusive listing agreement with Podolsky. Brennan testified that he did not remember any negotiations regarding the purchase once Town & Country offered $5.00 per square foot. He testified that he never discussed issues of square footage with any of the Discipios, and Francis never complained about how any of the contracts were worded with respect to what was included in the square footage subject to the contract. He also did not recall any negotiation regarding crops. Although Brennan did not specifically recall whether there had been any negotiation with Francis after Brennan sent him the contracts in June 1993, he stated that if there had been any, "it would have been minimal." Brennan stated that it was his practice to send out Town & Country's contracts with the "seller's [sic]" signature already thereon, although sometimes he would not, if the contract had not yet been negotiated. He did not have any drafts or copies of the offer he had sent in June 1993. Brennan did not remember ever speaking with anyone from Podolsky regarding the property. Brennan stated that Town & Country at all times had the capacity to close on the contracts sent to the Discipios in 1993 or 1994.

Brennan and Francis both testified that in 1989, before entering the listing agreement with Podolsky, the Discipios had negotiated with Town & Country for the sale of this same property. Those negotiations had gone so far as to produce a written contract signed by both parties, but the sale had fallen through before closing for reasons irrelevant to this case.

Milton and Randy Podolsky testified to a different version of what transpired at the June 1993 meeting. They both stated that the Town & Country offer was signed, and when Francis showed it to them he stated that he had the property "sold" for $5.00 per square foot, but he intended to wait until the term of the listing agreement had expired to "finish the deal" so that he would not have to pay them a commission, because they had not done any work. He did not ask Podolsky to do anything in the future, and said nothing about minimum square footage or crops. ...

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