Ruskin v. Rodgers

Facts

P, a real estate broker, and D, a real estate salesman, entered into a written agreement for the joint purchase of a luxury apartment building and its conversion into condominiums. In May 1977, D, on the down low, discovered that a luxury apartment building was for sale. D expressed his desire to purchase the building if he could arrange financing. D said he would pay $2.7 million for the building if he was given a chance to get the money. The owner said he would consider such an offer (but had already turned down a $2.2 million dollar deal). D approached P and asked him general questions concerning the appropriate procedures for acquiring a rental unit and converting it to condominium ownership. P had been engaged in real estate brokerage and development for several years and had developed a number of apartment buildings. D told P he had an opportunity to acquire, develop, and market a 'plum' of a building. D asked P about his ability to fund the purchase of a building. P responded that he could do so. D asked P if P would be his consultant for a fee. P responded he wanted an equity position in such a project. In June 1977, D disclosed the location of the building and explained his development concept in detail. He agreed to give P 50 percent of any profits received from the project. P and D verbally agreed to work jointly to acquire and develop the building. On June 16, 1977, a memorandum of understanding was prepared. Both P and D began hunting for money. The person who had previously offered $2.2 million had made a new offer of $2.45 million on July 11, complete with a check and a written contract. D then agreed with P to a partnership arrangement with Wendlund. Defendant was anxious to submit an offer for $2.7 million before the expiration of the new offer on July 15, 1977. Wendlund instructed a party named Carlins to contact the owner's agent and discuss whether a figure lower than $2.7 million would be acceptable. Carlins contacted the agent on July 15 concerning an offer of $ 2.5 million. The agent responded that such an offer was totally different than what had been agreed upon and he 'would not even pass the offer along.' He told Carlins 'the deal was dead.' The agent called D and said the deal was dead. D became very angry and said that P had ruined the deal for him. The owner approved of the agent's rejection of the proposed offer. D was very upset with P. P testified D told him on the phone that D was going to see Robert Sheridan to inquire if he wished to buy the building. Sheridan was a real estate developer and vice-president of Pelham Corporation. P testified D did not tell him on that day that the partnership was terminated. P further testified, that after speaking with d the second time, he called Wendlund and told him the telephone inquiry had been misinterpreted. Wendlund stated he was prepared to offer $2.7 million for the building but could not get a contract drafted until at least Monday. This information was not communicated to D. Sheridan agreed to buy the building for $ 2.7 million and P and D would receive 10 percent of the profit. D and Sheridan entered into an oral agreement. Defendant was to receive 20 percent of the profits and 1 percent of the gross selling price of the units and was to have responsibility for marketing the apartments. Sheridan testified D told him he had been working with another individual, but the relationship had been terminated. A cashier's check for $100,000 and a contract were forwarded to the seller's agent. The executed the contract. The transaction was closed in due course. D's final deal with Sheridan was to have 25 percent of the net profits resulting from the entire transaction with a cash advance of $75,000. P filed an action against D for specific performance of their written agreement and other relief. P sought one-half of the profits realized by D as a result of D's dealings with Sheridan, an accounting, and damages for breach of the alleged partnership agreement. D's attorney moved for a continuance stating he was unprepared for trial because he had been involved in another case. The trial court denied his motion. On the day of the trial, D made another motion for a continuance due to his 'long depressive illness.' This motion was also denied and the trial began. During cross-examination of the first witness, D expressed a desire to discharge his attorney. The attorney made an oral motion to withdraw which was denied by the trial court. The court granted P specific performance and D appealed. D claimed in part that the trial court's denial of D's motion for a continuance and substitution of attorneys denied him the opportunity to effectively present his case.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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