High Tide Cafe v. Frenk
High Tide Cafe (High Tide) entered into a listing agreement with G.R. Bill Business Brokers, Inc. (G.R. Bill) to sell its restaurant business. The listing agreement, which entitled G.R. Bill to a broker's commission in the event the sale was "accomplished," did not contain an attorney fees clause. G.R. Bill found a buyer, and High Tide and the buyer entered into a purchase contract that acknowledged G.R. Bill's right to payment of a commission in accordance with the terms of the listing agreement. The parties to the purchase contract opened an escrow, and the escrow instructions, which acknowledged G.R. Bill's right to payment of a commission "upon the close of escrow" and contained two attorney fees clauses, defined "close of escrow" as the transfer of a specified liquor license to the buyer. Although the liquor license was transferred to the buyer, and both High Tide and the buyer agreed in writing that the other contingencies were satisfied, the buyer refused to sign escrow closing instructions.
High Tide appeals, contending the judgment should be reversed because (1) the phrase "in the event a sale . . . is accomplished" in the listing agreement unambiguously conditioned High Tide's payment of a commission to G.R. Bill on a completed or consummated sale; (2) the consummation of a sale means payment of the purchase price and conveyance of title, and thus the sale of High Tide's business was never completed or consummated because the buyer breached the contract; and (3) G.R. Bill was not entitled to an award of attorney fees because the listing agreement did not contain an attorney fees provision, and G.R. Bill was not an intended third party beneficiary of the purchase agreement or escrow instructions.
Court conclude the court did not err in (1) finding that High Tide was contractually obligated to pay G.R. Bill's $30,000 commission because the sale was "accomplished" within the meaning of the listing agreement, and (2) awarding reasonable attorney fees to G.R. Bill as the prevailing party. Accordingly, court affirm the judgment.
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