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Lowe v. Hodges

December 30, 1998

RONALD E. LOWE APPELLANT
v.
KEMPE HODGES APPELLEE



Before Thomas, P.j., Diaz, Herring, And Southwick, JJ.

The opinion of the court was delivered by: Herring, J., For The Court:

DATE OF JUDGMENT: 09/10/97

TRIAL JUDGE: HON. C. E. MORGAN III

COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - CONTRACT

TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN FAVOR OF DEFENDANT/APPELLEE

¶1. Ronald E. Lowe filed a complaint with the Circuit Court of Attala County, Mississippi, seeking a real estate commission he alleged was owed him pursuant to an oral agreement between Kempe Hodges and himself. Lowe alleged that he agreed to act as agent in selling a piece of property for Hodges. The ultimate purchasers came to Hodges through an advertisement that Lowe had placed in a newspaper. Lowe showed the real property to the purchasers, and they subsequently purchased it from Hodges. Thereafter, Hodges refused to pay Lowe a commission on the sale, alleging that there was never any agreement that he do so. Lowe filed suit for the amount of the commission ($1,629) plus attorney's fees and court costs. Hodges answered and moved to dismiss the action, citing the statute of frauds requirement that any contract for the sale of land must be in writing. The trial court found that the oral agreement to pay Lowe a commission was unenforceable due to the statute of frauds and dismissed the case. Thereafter, Lowe appealed to this Court. We find that the agreement between Lowe and Hodges did not fall within the statute of frauds and was not required to be in writing. Thus, we reverse and remand.

A. THE FACTS

¶2. Ronald E. Lowe is engaged in the real estate business in Attala County, Mississippi. Lowe claims that he was contacted by Kempe Hodges to help him with the sale of real estate belonging to Hodges. Lowe asserts that he orally agreed to advertise the Hodges property and to show the land to prospective buyers for Hodges, in exchange for a commission on the sale price. Lowe further claims that he and Hodges agreed that Lowe would attempt to sell the land for the sum of $800 per acre, and Lowe would lower his regular commission to three percent of the sales price. Lowe showed the property to several clients, and also placed signs on and advertised the property in a local Attala County newspaper. Finally, he arranged for the sale of the property to Randall Hodges *fn1 and Tammy Criswell for the sum of $54,320. As stated, Hodges refused to pay Lowe a commission after the sale, and Lowe filed this action for the amount of his commission, plus attorney's fees and court costs.

¶3. Both parties agree at some time during the summer of 1996, Hodges and Lowe discussed the property in question and the possibility of Lowe attempting to sell the land for Hodges. However, whether or not an oral agreement between the parties existed is contested. Hodges claims that no agreement was ever reached, while Lowe contends that an oral agreement was reached between the parties that Lowe would attempt to sell the property and receive a commission for doing so. Both parties agreed that any such agreement was not in writing. Hodges claims there was no such agreement at all and that he knew nothing of Lowe's efforts to sell the land.

¶4. The trial court dismissed Lowe's complaint on the basis that if any such oral agreement existed, it was in violation of the statute of frauds and was therefore unenforceable. The trial court also ordered Lowe to pay the attorney's fees which Hodges incurred while defending Lowe's lawsuit against him.

B. THE ISSUES

¶5. Lowe raises the following assignments of error on appeal which are taken verbatim from his brief:

I. THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT'S MOTION TO PREVAIL WITHOUT TESTIMONY FROM THE APPELLANT TO SHOW THAT THE DOCTRINE OF EQUITABLE ESTOPPLE EXISTED BY VIRTUE OF THE FACTS ...


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