NAJJAR, JULIA 7/8/2017

CONTRACT-MOD14-CANTRELL-WAIND & ASSOCIATES, INC. V. GUILLAUME

MOTORSPORTS, INC.
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Court of Appeals of Arkansas, Division I. | May 6, 1998 | 62 Ark. App. 66 |

968 S.W.2d 72

Document Details Outline

West
standard Cantrell-Waind & Assocs., Inc. v. Guillaume Headnotes
Citation: Motorsports, Inc., 62 Ark. App. 66, 968 S.W.2d Attorneys and
72 (1998) Law Firms
Opinion
All Citations: 62 Ark. App. 66, 968 S.W.2d 72 All Citations

Search Details

Search Query:CANTRELL-WAIND & ASSOCIATES, INC. v.

GUILLAUME MOTORSPORTS, INC.; Court of
Appeals of Arkansas, 1998.; 62 Ark.App. 66, 968
S.W.2d 72

Jurisdiction: Arkansas

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Date: July 8, 2017 at 4:38 AM

Delivered By: Julia Najjar

Client ID: NAJJAR JULIA

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Comment: Judgment On Motion or Summary Proceeding

Implied Adoption of Lease Contracts
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CONTRACT-MOD14-CANTRELL-WAIND & ASSOCIATES, INC. V. GUILLAUME

MOTORSPORTS, INC.
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Performance or Breach Duration and

Termination of Contract Duties and Liability to
Principal Nature of Real Estate Broker-Vendor
Relationship

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Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66 (1998)

968 S.W.2d 72

commission; (2) duty of good

Original Image of 968 faith and fair dealing was
S.W.2d 72 (PDF) included in the contract; and (3)
62 Ark. App. 66 whether lessors actions
Court of Appeals of prevented or hindered the
Arkansas, occurrence of the condition
Division I. precedent precluded summary
CANTRELLWAIND & judgment.
ASSOCIATES, INC., Appellant,
v. Reversed and remanded.
GUILLAUME MOTORSPORTS,
INC., Appellee.
No. CA 971186.
| West Headnotes (6)
May 6, 1998.
*** Start Section
[ Brokers
...
1] Performance of
After lessees exercised
Services Within Time
option to purchase leased
Specified
premises, real estate broker
brought action against lessor to
65Brokers
recover its commission. The
65VCompensation
Circuit Court, Benton County,
65k47Sufficiency
Tom Keith, J., granted summary
of Services of Broker
judgment for lessor. Broker
65k50Performance
appealed. The Court of Appeals,
of Services Within Time
Bird, J., held that: (1) under
Specified
lease, closing of sale before
specified date was condition Term of lease with
precedent to payment of brokers option to purchase,
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Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66 (1998)

968 S.W.2d 72

which provided that a with the lessees before

commission would be that date.
due to the real estate 5 Cases that cite
broker only if closing on this headnote
the sale occurred before
specific date, was a
condition precedent.
Cases that cite this [ Judgment
headnote 6] Landlord and
Tenant Cases

228Judgment
228VOn Motion or
[ Contracts Summary Proceeding
2] Tests of 228k181Grounds
Performance in General for Summary Judgment
228k181(15)Partic
ular Cases
Duty of good faith 228k181(24)Landl
and fair dealing was ord and Tenant Cases
included in lease with
option to purchase, Fact question as to
which provided that whether lessors actions
commission would be prevented or hindered
due to real estate occurrence of condition
broker only if closing on precedent to payment
sale occurred before a of real estate broker fee
specific date; upon lessees exercise
accordingly, lessor was of option to purchase
obligated not to leased premises
deliberately avoid precluded summary
closing the transaction
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Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66 (1998)

968 S.W.2d 72

judgment in brokers
action against lessor to On August 1, 1994,
recover commission. appellee, represented by its
2 Cases that cite president and sole stock-holder
this headnote Todd Williams, agreed to lease
real property in Bentonville to
Kenneth Bower and Kay Bower.
The lease gave the Bowers an
Attorneys and Law Firms option to purchase and provided
**72 *67 David G. Nixon, for the payment of a commission
Michael D. Holland, Fayetteville, to appellant, the real estate
for Appellant. broker in this transaction, as
Jerry B. Dossey, Bentonville, follows:
for Appellee. In the event of the exercise
Opinion of this option within the first
BIRD, Judge. twenty-four (24) month period,
ten per cent (10%) of the
CantrellWaind & monthly rental payments shall
Associates, Inc., has appealed apply to thepurchase price.
from a summary judgment Thereafter, this credit shall
entered for appellee Guillaume reduce two per cent (2%) per
Motorsports, Inc., in its action to year until the expiration of the
recover a real estate brokerage original lease term hereof, to the
commission. Because we agree effect that the credit will be eight
with appellant that the *68 per cent (8%) during the third
circuit judge erred in his year, six per cent (6%) during
interpretation **73 of the the fourth year, and four per
applicable law and because cent (4%) during the fifth year.
genuine issues of material fact The sales price shall be
remain to be tried, we reverse $295,000.00. GUILLAUME
and remand. MOTORSPORTS, INC., agrees [to]
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Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66 (1998)

968 S.W.2d 72

pay CANTRELWAIND &

ASSOCIATES, INC., a real estate *** Start Section
commission of $15,200.00 upon ... Bank of Bentonville,
closing of sale of the property notified Mr. Bower on July 19,
under this Option to Purchase, 1996, that the loan had been
provided the closing occurs approved and that she awaited
within two (2) years from the notification of a closing date. In
date of execution of the Lease his deposition, Young said that he
with Option to Purchase. attempted to set a July closing
date on behalf of the Bowers but
The Bowers attorney, had been told by Ms. Whitehead,
Charles Edward Young, III, Reeves, and a representative of
notified Williams in writing on the title company that Williams
April 23, 1996, that the Bowers had told them he would be out of
chose to exercise the option to the country in late July and
purchase, and that they unavailable for closing until after
anticipated closing at the earliest August 1.
possible date. Young also sent a
copy of this letter to Samuel *69 Young also said that he
Reeves, appellees attorney. had asked Reeves if Williams
Soon after this, Williams would utilize a power of attorney
approached Mr. Bower and for closing before August 1 but
offered to credit him with one- Williams refused. Williams did
half of the appellants $15,200 not leave the country and was in
commission if he would agree to Bentonville July 22 through 25.
delay closing until after August 1, Closing occurred on August 14,
1996. Mr. Bower declined this 1996, and the commission was
offer. not paid.

Ruth Ann Whitehead, a... Appellant filed a complaint

against Guillaume Motorsports,
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Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66 (1998)

968 S.W.2d 72

Inc., on August 12, 1996, for ... and that the trial court
breach of contract. Appellee erred in granting summary
moved for summary judgment on judgment in appellees favor.
the ground that it was under no Appellant argues that, although
obligation to close the appellee had no duty to insure
transaction before August 1. In that closing occurred before
support of its motion, appellee August 1, 1996, it did have a
filed the affidavits of Ms. duty not to actively hinder or
Whitehead and Mr. Carroll, who prevent the transaction from
stated that, to their knowledge, a closing before that date.
closing date was not scheduled Appellee contends that the
before August 14, 1996. circuit court acted appropriately
in refusing to extend its
Appellee Williams also filed obligations beyond those created
his affidavit stating that a closing by the express terms of the
date was not established before contract and that Williams was
August 14, 1996, and that the under no obligation to make
Bowers had not demanded an himself available for a closing
earlier closing date. Further, he date that would have entitled
admitted: While I did in fact appellant to a commission.
approach Kenneth Bower with a
proposal to reduce the purchase [1] [2] The term of the
price if he would agree to contract providing that a
establish a closing date after commission would be due
August 1, 1996, my offer was not appellant only if closing occurred
accepted and no such before August 1, 1996, is a
agreement... condition precedent. See *71
Stacy v. Williams, 38 Ark.App.
192, 834 S.W.2d 156 (1992).
*** Start Section When a contract term leaves a
decision to the discretion of one
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Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66 (1998)

968 S.W.2d 72

party, that decision is virtually fulfillment of a condition in a

unreviewable; however, courts contract, and the condition would
will become involved when the have occurred except for such
party making the decision is hindrance or prevention, the
charged with bad faith. Vigoro performance of the condition is
Indus., Inc. v. Crisp, 82 F.3d 785 excused and the liability of the
(8th Cir.1996). promisor is fixed regardless of
the failure to perform the
In Willbanks v. Bibler, 216 condition. Moreover, while
Ark. 68, 224 S.W.2d 33 (1949), prevention by one party to a
the Arkansas Supreme Court contract of the performance of a
held that he who prevents the condition precedent excuses the
doing of a thing shall not avail nonperformance of the condition,
himself of the nonperformance it must be shown that the
he has occasioned. Id. at 72, nonperformance was actually
224 S.W.2d at 35. See also due to the conduct of such party;
Samuel Williston, The Law of if the condition would not have
Contracts 677 (3d ed.1961). happened whatever such
This principle is expressed in 17A conduct, it is not dispensed with.
Am.Jur.2d Contracts 703
(1991): [3] A party has an implied
One who prevents or makes obligation not to do anything
impossible the performance or that would prevent, hinder, or
happening of a condition delay performance. See Housing
precedent upon which his liability Auth. of the City of Little Rock v.
by the terms of a contract is ForcumLannom, Inc., 248 Ark.
made to depend cannot avail 750, 454 S.W.2d 101 (1970);
himself of its nonperformance. **75 Dickinson v. McKenzie, 197
Even more broadly, where a Ark. 746, 126 S.W.2d 95 (1939);
promisor prevents or hinders the Townes v. Oklahoma Mill Co., 85
occurrence, happening, or Ark. 596, 109 S.W. 548 (1908);
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Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66 (1998)

968 S.W.2d 72

Smith v. Unitemp Dry Kilns, Inc., Garland, 17 Ark.App. 1, 701

16 Ark.App. 160, 698 S.W.2d 313 S.W.2d 392 (1986). Accordingly,
(1985); City of Whitehall v. we hold that the circuit court
Southern Mechanical erred in failing to recognize that
Contracting, Inc., 269 Ark. 563, a duty of good faith and fair
599 S.W.2d 430 (Ark.App.1980). dealing was included in this
contract and, therefore, appellee
[4] [5] Comment b to was obligated to not deliberately
section 225 of the Restatement avoid closing the transaction
(Second) of Contracts (1981) before August 1, 1996.
provides that the non-occurrence
of a condition of a duty is said to Our above holding requires
be excused when the condition a determination of whether there
need no longer occur in order for is a genuine issue of material
performance of the duty to fact as to whether appellees
become *72 due: It may be actions prevented or hindered
excused by prevention or the occurrence of the condition
hindrance of its occurrence precedent. The burden of
through a breach of the duty of sustaining a motion for summary
good faith and fair dealing. The judgment is on the moving party.
Restatement (Second) of Moeller v. Theis Realty, Inc., 13
Contracts 205 (1981) states: Ark.App. 266, 683 S.W.2d 239
Every contract imposes upon (1985). On appeal, we must view
each party a duty of good faith the evidence in the light most
and fair dealing in its favorable to the non-moving
performance and its party. Undem v. First Natl Bank,
enforcement. This legal 46 Ark.App. 158, 879 S.W.2d 451
principle also applies to contracts (1994). It is our task to
providing for the payment of determine whether the
commissions to real estate evidentiary items presented by
agents. McKay and Co. v. the moving party in support of
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Cantrell-Waind & Associates, Inc. v. Guillaume Motorsports, Inc., 62 Ark. App. 66 (1998)

968 S.W.2d 72

the motion left a material before August 1; and that

question of fact unanswered. Williams had stated to Ms.
Johnson v. Harrywell, Inc., 47 Whitehead that he would be
Ark.App. 61, 885 S.W.2d 25 unavailable to close the
(1994). Summary judgment is transaction until after August 1
not proper where evidence, because he would *73 be out of
although in no material dispute, the country. In his deposition,
reveals aspects from which and in his answers to appellants
inconsistent hypotheses might requests for admission, appellee
reasonably be drawn and Williams admitted that he was in
reasonable minds might differ. Id. fact in Bentonville from July 22
It is not the role of summary through 25 and that he did not
judgment to weigh and resolve leave the country.
conflicting testimony but to
simply decide whether such In its brief, appellant
questions exist to be resolved at asserts...
trial. Jones v. Abraham, 58
Ark.App. 17, 946 S.W.2d 711
(1997). A summary judgment
analysis does not evaluate
evidence beyond the question of
whether a dispute exists. Id.

[6] Appellant presented

evidence that all of the
requirements for the transaction
to close had occurred by July 19,
1996, and that Mr. and Ms.
Bower were eager to close before
August 1; that Williams was
aware that closing could occur
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