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Cheek v. Jackson Wax Museum

December 11, 2009

ROBERT S. CHEEK, II, D/B/A CHEEK REAL ESTATE SERVICES, APPELLANT (PLAINTIFF),
v.
JACKSON WAX MUSEUM, INC., BY AND THROUGH ITS PRESIDENT, TIM SMITH, APPELLEE (DEFENDANT).



Appeal from the District Court of Teton County, The Honorable Nancy J. Guthrie, Judge.

The opinion of the court was delivered by: Kite, Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Jackson Wax Museum, Inc. (the Museum) entered into a brokerage agreement with Robert S. Cheek, II, doing business as Cheek Real Estate Services (CRES), in which Mr. Cheek agreed to act as the Museum‟s exclusive broker for leasing property owned by the Museum. Mr. Cheek found a tenant which entered into a lease with the Museum. The Museum paid Mr. Cheek the commission due under the brokerage agreement.

[¶2] After the term of the initial lease, the Museum and the tenant renegotiated the lease. The Museum did not pay Mr. Cheek a commission for the renegotiated lease. Mr. Cheek filed a complaint against the Museum seeking payment of the commission. The district court granted summary judgment for the Museum, finding that no commission was owed because the new lease was not an extension or renewal of the original lease, but was instead a new lease made directly between the Museum and the tenant.

[¶3] Mr. Cheek appeals the order granting summary judgment to the Museum, claiming the district court misinterpreted the new lease agreement. We agree and reverse the district court‟s order.

ISSUE

[¶4] The determinative issue presented is whether the district court misinterpreted the lease language when it concluded Mr. Cheek was not entitled to a commission for the renegotiated lease.

FACTS

[¶5] On December 1, 1993, Tim L. Smith, president of the Museum, and Mr. Cheek entered into a one year listing agreement providing that Mr. Cheek would act as the exclusive agent for leasing the Museum‟s property at 55 S. Cache Street in Jackson, Wyoming. Paragraph 5 of the listing agreement provided:

In the event that: (i) at any time during the term of this agreement a lease of all or any portion of the Premises, upon any terms acceptable to us, shall be made with any tenant who was procured by CRES, or by us, or by any other person: or (ii) at any time after the expiration or the termination of this agreement a lease of all or any portion of the Premises, upon any terms acceptable to us, shall be made with any tenant to whom the Premises were submitted by CRES, or by us, or by any other person during the term of this agreement; then, and in either such event, we agree to pay to CRES one (1) full commission as provided in paragraph 7 of this agreement.

Paragraph 7 of the listing agreement provided in relevant part:

The leasing commission shall be four percent (4%) of the aggregate rental for the entire term including renewals, extensions, or additional space. . . .

Paragraph 8 further provided:

Leasing commissions are earned upon the execution of a lease by the parties and are payable upon commencement. Landlord may also cho[o]se, at its option, to pay the commission over the first two years of the base term in four equal payments due at the end of each six months of the first two years. Commissions on renewals are payable upon commencement of the renewal term.

[¶6] In the fall of 1994, the parties agreed to extend the listing agreement for another year, until December 1, 1995. In August of 1995, Mr. Cheek found a tenant to lease the Museum property and the Museum and the tenant entered into a lease agreement. The lease term was from January 11, 1996, through January 10, 2006. Consistent with the terms of the listing agreement, the Museum paid Mr. Cheek his commission for the term of the lease.

[¶7] In 2006, Mr. Cheek became aware that the Museum and the tenant had entered into a second agreement, entitled "First Amendment to Lease Agreement," in which the tenant leased the property for another ten years. Mr. Cheek notified the Museum that he was entitled to his commission for the second lease. The Museum responded that Mr. Cheek was not entitled to a commission.

[¶8] Mr. Cheek filed this action against the Museum, alleging claims for breach of contract, quantum meruit and unjust enrichment. The Museum answered the complaint by denying the claims and asserting numerous affirmative defenses. The Museum then moved for summary judgment on Mr. Cheek‟s claims.

[¶9] In support of its motion, the Museum asserted Mr. Cheek was not entitled to a commission on the second lease because the Museum‟s obligation to him was discharged upon payment of the one full commission; the second lease was a distinct lease not covered by the listing agreement; and the parties‟ course of conduct showed there was no intent to allow the original lease to be renewed or ...


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