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Maly Commercial Realty, Inc. v. Maher

Court of Appeals of Missouri, Western District, First Division

September 10, 2019

MALY COMMERCIAL REALTY, INC., et al., Appellants,
JACK MAHER, SR., et al., Respondents.

          Appeal from the Circuit Court of Boone County The Honorable Kimberly J. Shaw, Judge

          Before Cynthia L. Martin, P.J., and Victor C. Howard and Alok Ahuja, JJ.

          Alok Ahuja, Judge

         Maly Commercial Realty, Inc. and Mel Zelenak (collectively "Maly") sued Aegis Investment Group II, LLC and Jack Maher Sr. (collectively "Aegis") in the Circuit Court of Boone County. Maly alleged that it was entitled to a real-estate commission related to Aegis' sale of a piece of commercial property in Columbia. The circuit court entered judgment for Aegis following a bench trial. Maly appeals. It argues that the judgment is not supported by substantial evidence and is against the weight of the evidence. Maly also argues that the circuit court should have placed the burden on Aegis to prove that negotiations with the property's ultimate purchaser were abandoned after Maly introduced Aegis to that purchaser. We affirm.

         Factual Background[1]

         Zelenak is a real-estate broker with Maly in Columbia. Zelenak had worked on previous real-estate transactions with Anup Thakkar, a local businessperson who owned multiple Dunkin' Donuts franchise stores. In 2014, Thakkar was looking for a small parcel of property on the north side of Columbia on which to construct a new Dunkin' Donuts franchise store. Thakkar asked Zelenak about property at the southwest corner of Rangeline Street and Blue Ridge Road (the "Blue Ridge property").

         The Blue Ridge property was a 40-acre tract of land owned by Aegis. Maher was one of Aegis' members. He was also a licensed real estate broker. Maher's company had a listing agreement with Aegis for the Blue Ridge property.

         Zelenak was aware that Maher was part of the group which owned the Blue Ridge property, and he knew Maher from prior dealings. In early November 2014, Zelenak contacted Maher about the Blue Ridge property, and arranged a meeting. On November 12, 2014, Maher, Zelenak, Thakkar, and one of Thakkar's business partners met at Maher's office to discuss the property. The meeting was brief. At trial, Maher described the meeting as simply "a meet-and-greet," because "Thakkar wanted to buy a lot [in the Blue Ridge property], and I said I wasn't interested." Maher was not interested in selling because he wanted to ground lease the property. He testified that Aegis' plan for the property was "to hopefully get a grocer to develop it and retain ownership, so that you retain income forever, no[t] just one-time sales." Thakkar testified of the November 2014 meeting: "[v]ery fast, I learned that Mr. Maher and his group were not interested in selling the property or . . . part of it."

         After the meeting Thakkar sent an email to an engineer with whom he worked, with copies to Maher and Zelenak. Thakkar stated that he and his partners were interested in buying a portion of the Blue Ridge property and asked the engineer to determine how much land would be necessary to fit his planned Dunkin' Donuts store.

         The next day, Maher sent an email to the engineer stating that the discussion with Thakkar about the Blue Ridge property was preliminary, and that there was no deal. Maher also sent an email to another member of Aegis, letting him know about his meeting with Thakkar. In the email, Maher wrote that he informed Thakkar that Aegis had not set a price for sale of the property, and that it preferred to ground lease the property. In his response, Maher's fellow member asked whether it was "smart to give up a corner for a ¾ acre lot," given that Aegis was hoping to attract a "big box" store to the site.

         On December 3, 2014, Maher sent Thakkar, Zelenak, and the engineer an email, stating that he and the engineer had discussed the property and that Maher was not sure that they had the access that Thakkar desired on "a .75 acre hard corner location." In the email, Maher nevertheless stated that Aegis would "look at any possibility."

         Thakkar testified that, by the middle of December 2014, it was clear that Aegis' and Thakkar's interests were "not aligned": "it was quite clear that they just were not interested in selling any portion at that point, and . . . I was not interested in . . . doing a land lease or a build-to-suit at that time."

         Maher testified that, after December 2014, he did not have any further contact with Zelenak regarding the Blue Ridge property. Zelenak admitted that he had "no direct involvement" concerning the sale of the Blue Ridge property after December 2014. Specifically, Zelenak acknowledged that he had no involvement with the property in 2015 or 2016, or in the negotiations that culminated in the 2017 sale of the property to Thakkar's group. Zelenak did, however, send Thakkar information regarding other properties on the north side of Columbia for a possible Dunkin' Donuts location.

         Thakkar testified at trial that he did not have any contact with Maher in 2015.[2] In 2016, Thakkar happened to have a conversation with another member of Aegis, who was apparently unaware of the prior communications between Thakkar and Maher in late 2014. Thakkar testified:

So, as I recall, I was at Providence Road Dunkin' Donuts, happened to run into a dear friend of mine, Mr. Sanjeev Ravipudi. He . . . was a doctor here in town. And we just happened to have a . . . casual conversation, and part of that conversation led to what my plans were, as far as where we're going. And I expressed that, you know, just looking at, you know, some properties over in the north side. . . . [A]nd he happened to mention that he had a property over on the north side . . . and . . . he wanted me to check it out so [I] asked a little more information on that.
He gave me, and I said, "Oh, yes, that's a property that, you know, I looked at about a year ago or so and - and nothing ...

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