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Schaller v. Weier

February 14, 2001

LESLIE A. SCHALLER, PLAINTIFF-APPELLANT,
v.
RAYMOND J. WEIER AND GLORIA L. WEIER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County. No. 94-L-1191 Honorable Patrick M. Young, Judge, presiding.

Justices: Honorable Charles W. Chapman, P.J. Honorable Thomas M. Welch, J., and Honorable Richard P. Goldenhersh, J., Concur

The opinion of the court was delivered by: Presiding Justice Chapman

The plaintiff, Leslie A. Schaller, brought an action against the defendants, Raymond Weier and Gloria Weier, for the payment of a broker's commission. After a bench trial, the judge found in favor of Raymond Weier and Gloria Weier. On appeal, Leslie Schaller contends that (1) the court denied her due process by failing to provide her with a jury trial, (2) the court erred in denying her motion for recusal and in failing to treat her motion for recusal as a motion for substitution as of right, and (3) the court's decision denying her commission was against the manifest weight of the evidence and should be reversed. For the following reasons, this court concludes that the plaintiff waived the jury-trial argument, that both the denial of the motion for recusal and the failure of the judge to consider the motion for recusal as a motion for substitution as of right were proper, and that the judgment of the trial court denying the payment of a commission was not against the manifest weight of the evidence.

FACTS

In 1964, Raymond Weier and Gloria Weier were married. In 1965, they bought a nursing home, known as "Weier Retirement & Nursing Home." They owned both the business and the property as joint tenants. Although Gloria Weier actively participated in the running of the business for the first few years by paying bills, answering the telephone, and performing additional clerical duties, Raymond Weier was the primary operator of the nursing home.

Early in 1991, Leslie Schaller approached Raymond Weier about the possible sale of the nursing home. On May 24, 1991, Raymond Weier and Leslie Schaller entered into a "Commercial Listing Agreement" (Agreement), which provided that she would represent him in the attempt to locate a buyer for the nursing home. Although Gloria Weier knew of the Agreement, she was not a signatory or a party to it.

The Agreement stated that Raymond Weier would pay Leslie Schaller a commission of 4% of the sale price upon closing and that the ending date of the Agreement was July 24, 1991. Both Raymond Weier and Leslie Schaller agreed to an extension until September 15, 1991, as evidenced by the handwritten notation and initials on the Agreement. It also appears that the parties extended the Agreement until March 31, 1992, again evidenced by handwritten notation and Raymond Weier's initials.

Leslie Schaller testified that she requested Raymond Weier to initial additional extensions but that he refused and told her it wasn't necessary." He said, "I'm not going to screw you out of your hundred thousand dollars ***. You don't have to worry about that ***." Raymond Weier denied making those statements.

It is clear that Leslie Schaller introduced Raymond Weier to F. Michael Bridges (Mike Bridges), the eventual buyer of the nursing home. There is some question, however, as to when this introduction took place. Leslie Schaller insists that the introduction occurred prior to the ending date of the Agreement, including any extensions. Raymond Weier appears to be unclear as to when he first met Mike Bridges. He testified that he did not remember meeting Mike Bridges in 1992, although it is possible he may have been a party to a telephone conversation with Mike Bridges and Leslie Schaller around Christmas 1992. He also testified that he may have met Mike Bridges in 1993 and that he did not meet Mike Bridges until 1994.

Leslie Schaller testified that she continued to have "active participation" in the negotiations between Raymond Weier and Mike Bridges until February 1994. This participation took the form of meetings with both parties and their attorneys to arrange financing. She testified that she also picked up and delivered financial statements and other paperwork.

Mike Bridges was the only potential buyer ever interested in the sale, with one exception. There was a brief attempt to arrange a purchase by Leslie Schaller either on her own behalf or on the behalf of some other person, which she undertook in March 1994. This took place during a time when Mike Bridges was having problems obtaining the financing necessary to make the purchase.

Raymond Weier and Gloria Weier closed the deal with Mike Bridges, his wife, Billie Jo Bridges, and their corporate entity, "Swansea Care Center, Inc.," on June 16, 1994. Leslie Schaller was not notified of the closing and therefore was not present. Raymond Weier also did not notify Leslie Schaller that he was not going to pay her the commission. In fact, within the "Asset Purchase Agreement," the provision entitled "Commission to Realtor," which required Raymond Weier to pay Leslie Schaller the commission, had a handwritten addition stating "Omit RJW." This was the first indication that Raymond Weier refused to pay Leslie Schaller her commission. When Leslie Schaller heard of the closing from Mike Bridges' attorney, she requested her commission, and Raymond Weier refused to pay it.

Raymond Weier and Gloria Weier had made an oral agreement prior to the closing that they would split the proceeds of the sale evenly between them. It is unclear, and unimportant, whether or not this agreement was made in contemplation of divorce. Raymond Weier and Gloria Weier were divorced on June 12, 1995. It appears that the split of the proceeds of the sale was effectuated.

Leslie Schaller's original counsel of record filed a jury demand on December 13, 1994, but he failed to pay the jury fee of $180 to the clerk of the circuit court as required by the local rules for the 20th Judicial Circuit. Subsequently, Leslie Schaller's current counsel was notified on February 11, 1999, that, because the jury fee had ...


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