United States District Court, D. South Carolina, Anderson/Greenwood Division
JUSTIN WINTER & ASSOCIATES, LLC d/b/a Justin Winter Sothebys International Realty, Plaintiff,
DONALD H. MCIVER, and JUDITH S. MCIVER, Defendants DONALD H. MCIVER, AND JUDITH S. MCIVER, Counterclaimants,
JUSTIN WINTER & ASSOCIATES, LLC d/b/a Justin Winter Sothebys International Realty, and JUSTIN WINTER, Counter Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF AND
COUNTER DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
an action for breach of contract and related claims. Pending
before the Court is Plaintiff Justin Winter & Associates,
LLC (JWA) and Counter Defendant Justin Winter's (Winter)
motion for partial judgment on the pleadings. Having
carefully considered the motion, the response, the reply, the
record, and the applicable law, it is the judgment of the
Court the motion will be granted.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
a real estate broker operating in Oconee County, South
Carolina. Winter is the president and broker-in-charge of
JWA. In October 2014, JWA entered into an Exclusive Right to
Sell Listing Agreement (Listing Agreement) with Defendants
and Counter Claimants Donald H. McIver and Judith S. McIver
(the McIvers) to sell a property located at 311 Knollwood
Drive in Salem, South Carolina (Knollwood). Under the Listing
Agreement, JWA agreed to use its best efforts to secure a
buyer ready, willing, and able to purchase Knollwood on terms
acceptable to the McIvers; and the McIvers agreed to pay JWA
a commission of five percent of the sales price for its
services if JWA represented both the buyers and the McIvers.
The commission was “earned, due and payable when an
agreement to purchase . . . is signed by [the
McIvers].” ECF No. 1-1 at 11. The Listing Agreement
also provided: JWA “agrees to defer the commission
until the closing date or extension thereof stated in the
agreement . . . . Deferral is agreed to solely as an
accommodation to [the McIvers] and such deferral shall in no
way be construed as a waiver of the brokerage fee.”
Id. at 12. The Listing Agreement expired on October
10, 2015. Id. at 11. On October 12, 2015 Donald H.
McIver (Mr. McIver) emailed Winter, asking to extend the
Listing Agreement for an additional year “under the
terms and conditions of the just expired listing.”
Id. at 16.
26, 2016, buyer Rodney R. Smith (Smith) and the McIvers
entered into a Designated Agency Agreement with JWA whereby
Winter would represent the McIvers and JWA's agent Trip
Agerton (Agerton) would represent Smith. Under the terms of
the Designated Agency Agreement, JWA was required, through
Winter, to supervise Winter and Agerton, and was prohibited
from taking action detrimental to the interests of Smith or
the McIvers. The same day, the McIvers entered into a
Purchase Agreement with Smith for Smith to buy Knollwood.
Under the Purchase Agreement, Smith agreed to purchase
Knollwood for a price of $1, 080, 000, payable through a
combination of cash and financing, but Smith's obligation
to purchase Knollwood was not contingent upon obtaining
financing. The Purchase Agreement set September 9, 2016 as
the closing date.
September 2, 2016, Smith sent an email to Agerton, which
Agerton forwarded to Winter. Winter then emailed Mr. McIver
explaining Smith had “applied for a mortgage to take
advantage of low interest rates, and the lender has been
delayed in receiving an appraisal.” ECF No. 6-5 at 1.
The email noted, though Smith could purchase the Knollwood
property by liquidating securities, Smith preferred to
purchase the home with financing, and in any case, could not
liquidate securities in time to close on September 9, 2016.
Smith proposed postponing the closing to September 30, 2016,
paying rent to the McIvers, and taking over utilities in the
interim. Winter added:
As we do not have any other buyers nor do we have a back up
contract I strongly urge you to consent to the extension by
signing and returning the attached Addendum. I wish to
reassure you that I have no concerns whatsoever of
[Smith's] intention to close, and I often see delays in
closing when banks are involved.
Id. The same day, the McIvers signed a Purchase
Agreement Addendum prepared by Agerton, which extended the
closing date to September 30, 2016, and obligated Smith to
pay rent and take over utilities and alarm service at
Knollwood in the interim.
September 22, 2016, Smith requested the closing date be
delayed to October 10, 2016. Agerton prepared a second
Addendum to the Purchase Agreement, which extended the
closing date to October 10, 2016, and obligated Smith to pay
rent, utilities, and homeowner's insurance in the
interim, as well as reimburse the McIvers for October
homeowner's association dues. The McIvers signed the
second Addendum on September 27, 2016.
October 10, 2016, Smith emailed Agerton indicating he would
not be purchasing Knollwood. Agerton forwarded the email to
Winter, who forwarded it to Mr. McIver. On October 27, 2016,
Mr. McIver instructed Winter and JWA via email to lower the
list price on Knollwood, make the listing active again, and
extend the listing until the property sold.
meantime, on October 20, 2016, the McIvers filed a lawsuit
against Smith for specific performance, breach of contract,
and fraud in relation to the July 2016 Purchase Agreement.
McIver v. Smith, Civil Action No.:
8:16-cv-03455-MGL, ECF No. 1 (D.S.C. Oct. 20, 2016). In May
2017, that lawsuit settled. As part of the settlement, Smith
purchased Knollwood for $1, 100, 000, closing on May 11,
2017. After the closing, JWA received a check for $27, 000
from the closing attorney.
6, 2017, JWA filed the instant lawsuit against the McIvers in
the Court of Common Pleas for Oconee County, South Carolina.
ECF No. 1-1. JWA brought claims for: 1) breach of contract,
2) breach of contract accompanied by a fraudulent act, and 3)
unjust enrichment. The McIvers removed the action to this
Court on June 21, 2017. ECF No. 1. On July 11, 2017, the
McIvers filed counterclaims against JWA for breach of
contract, and against JWA and Winter for breach of fiduciary
duty. ECF No. 6.
October 24, 2017, JWA and Winter filed their motion for
partial judgment on the pleadings seeking judgment as to
JWA's claim for breach of contract and as to
Defendants' counterclaims for breach of contract and
breach of fiduciary duty. ECF No. 17. Defendants responded,
ECF No. 18, and JWA and Winter replied, ECF No. 19. The