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Eubanks v. Wade

Court of Appeals of Mississippi

May 16, 2017

JOHN EUBANKS APPELLANT
v.
KIM WADE D/B/A KIM WADE REAL ESTATE APPELLEE

          DATE OF JUDGMENT: 04/06/2015

         HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WINSTON L. KIDD JUDGE

          ATTORNEY FOR APPELLANT: RENEE M. PORTER

          ATTORNEYS FOR APPELLEE: JOE S. DEATON III JOHN RICHARD MAY JR. DAVID FORD BERRY IV

         En Banc.

          GRIFFIS, P.J.

         ¶1. This appeal considers whether the trial court properly granted a motion to dismiss. Finding reversible error, we reverse the Hinds Count Circuit Court's judgment and remand for further proceedings consistent with this opinion.

         ¶2. In July 2009, John Eubanks and Kim Wade entered into an "exclusive authorization and right to sell listing agreement." Eubanks authorized Wade to sell Eubanks's real property and residence for a commission. Wade represented himself to Eubanks as a broker, agent, and member of the Jackson Mississippi Association of Realtors. Wade informed Eubanks that he would list Eubanks's property online via the Multiple Listing Service ("MLS").

         ¶3. In September 2009, Wade found a buyer who executed an offer to purchase Eubanks's property. Wade presented the buyer's offer to Eubanks with a contract accepting the buyer's offer. Eubanks noticed the "as is" provision was stricken and initialed by the buyer. Wade admitted he added the "as is" provision to the contract, but the buyer refused to agree to such a provision. Eubanks acknowledged he and Wade never discussed a warranty provision, and there was no mention of the warranty provision in their contract.

         ¶4. The buyer's mortgage application was denied by a lending institution and the closing scheduled for the next day was cancelled. Eubanks claims that he made numerous attempts to contact Wade. The "for sale" signs were removed from Eubanks's property. In November 2009, Eubanks contends that the sale listing on MLS was removed without his knowledge or consent. He later learned that his property was listed on the MLS website with multiple inaccuracies. Eubanks also discovered that Melissa Reese, a woman with whom he had never met, was named in the listing as the agent. Further, Eubanks contends that these actions indicated that the agreement he had with Wade had expired.

         ¶5. In November 2009, Eubanks contacted the potential buyer. Eubanks and the buyer entered into a lease/purchase agreement in which the buyer agreed to lease the property from November 2009 through March 2010, with a balloon payment for the balance payable March 2010. Wade removed the lock box from the residence, but refused to return the keys to Eubanks.

         ¶6. Wade contacted Eubanks and threatened to put a lien against the property for his commission in the amount of $5, 137.50, preventing the ultimate sale of the home in March 2010. Eubanks refused to execute an extension of the original listing agreement, and Wade placed a lien against Eubanks's property in this amount.

         ¶7. Eubanks filed a claim against Wade with the Mississippi Real Estate Commission. Then, Wade informed Eubanks that he would release the lien if Eubanks dismissed the complaint filed with the Commission. Eubanks asserts that he entered this agreement with Wade under duress. Regardless, in March 2010, Eubanks and Wade executed a "release and cancellation of lien." As a result, Eubanks and the buyer closed on the sale of the property shortly thereafter. However, after the closing, no money was exchanged and Wade renewed his lien. Eubanks also renewed his claim with the Commission.

         ¶8. The Commission found that Wade committed several violations. The Commission executed an order in July 2010 that stated that Wade was not a participant in MLS or the Jackson Association of Realtors at the time Eubanks's property was listed. The Commission further found clear and convincing evidence that Wade violated the Mississippi Real Estate Broker License Act, codified at Mississippi Code Annotated section 73-35-2l(1)(a) (Rev. 2012), and the Commission's rules and regulations. Wade was sanctioned and censured.

         ¶9. On July 2, 2010, Wade filed a complaint against Eubanks in the circuit court. The complaint alleged that Eubanks breached their agreement for the sale of Eubanks's property. Apparently, no answer was filed. On December 29, 2010, the circuit judge entered a default judgment against Eubanks. This action was pending before a different circuit judge. Eubanks claimed that he was never served with the complaint and filed a motion to set aside the default judgment, which was still pending when the judgment was entered in this action. As part of the motion to set aside the default judgment, Eubanks also claims that the circuit court did not conduct a hearing on damages after the default was entered.

         ¶10. In August 2011, Eubanks filed a lawsuit against Wade and Melissa Reese in the circuit court. In the complaint, Eubanks alleged that Wade committed negligence, gross negligence, extortion, fraud, breach of fiduciary duty, acting without authority, failure to communicate, and substantial misrepresentations in the sale of his property. Wade filed an answer and raised several affirmative defenses. However, the answer did not mention the default judgment against Eubanks.

         ¶11. In 2013, Wade filed a motion to dismiss Eubanks's lawsuit. The motion argued that the circuit court should dismiss the complaint based on a theory of res judicata, because he received a default judgment against Eubanks in 2010. Eubanks filed a response and a hearing was set on December 19, 2013. The hearing was continued and it was reset for a telephonic conference on January 13, 2014.

         ¶12. On April 6, 2015, the circuit court entered an order granting Wade's motion to dismiss with prejudice. It is ...


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