Manecke v. Kurtz (Lawyers Weekly No. 12-07-0878, 15 pp.) (Wanda G. Bryant, J.) Appealed from Mecklenburg County Superior Court. (F. Lane Williamson, J.) N.C. App. Full-text opinion.
Holding: The defendant-buyers’ real estate agent’s emails to the plaintiff-seller’s agent did not bind the buyers, and the buyers never ratified their agent’s assertion that they had accepted the seller’s counter-offer.
We affirm summary judgment for defendants.
On Aug. 22, 2010, defendants signed an offer to purchase plaintiff’s residence. Plaintiff made a counter-offer.
In reply, defendants’ real estate agent, Thomas Wells, emailed plaintiff’s agent, Linda Schafer, saying defendants “are really excited about their new home and agree to the counter offer….” Wells later emailed Schafer a copy of a $20,000 earnest money check. In that email, Wells said that defendant Jerrold Kurtz would be overnighting the earnest money deposit check and that Wells “should also have the initialed changes to the contract tomorrow.”
On Aug. 25, 2010, Wells emailed Schafer informing her that he had received defendants’ deposit and that he would deliver it to Schafer’s office the next day. Wells also said he would have the initialed changes to the contract at that time.
However, on Aug. 26, 2010, defendants informed Wells that they were not going to sign the counteroffer. They instructed Wells to tear up their earnest money check. Wells telephoned Schafer to tell her defendants were no longer interested in buying plaintiff’s property.
Plaintiff fails to offer facts to establish that defendants granted Wells the authority necessary to bind them to a real estate contract. A real estate agent in
North Carolina, absent special authority, does not have the power to bind his principal in a contract to convey real property.
By affidavit, defendant Jerrold Kurtz states that Wells was authorized to negotiate a contract for the purchase of real property but defendant denies vesting Wells with “any special authority … to enter into a binding contract….”
In his deposition, Wells acknowledged that he did not possess actual authority to bind defendants by contract to purchase plaintiff’s property. Therefore, plaintiff has failed to establish a genuine issue of material fact as to whether Wells acted with actual authority.
Plaintiff also failed to show that Wells had apparent authority to bind defendants. The record provides no evidence that defendants held Wells out as possessing authority to bind them in contract or permitted Wells to represent himself as having such authority.
Plaintiff contends that by agreeing to the terms of plaintiff’s counteroffer, Wells acted to bind defendants to the contract to purchase plaintiff’s property, and defendants ratified that contract by sending the facsimile of the $20,000 check intended to notify plaintiff that defendants were sending an earnest money deposit. Wells’ communications to plaintiff did not bind defendants in contract. Thus, plaintiff cannot maintain the argument that defendants ratified the contract to which Wells allegedly bound them.
The contract states that it shall become binding when it has been signed or initialed by both parties. Wells’ email that defendants “agree to> [sic] the counter offer [sic]” does not indicate that the contract reflecting the counteroffer had been signed. Moreover, Wells’ email that he “should also have the initialed changes to the contract tomorrow” is not an indication that the contract had been initialed or signed. To the contrary, it indicates only when Wells expected to receive the signed or initialed contract.
Plaintiff has failed to establish a genuine issue of material fact as to whether defendants ratified a contract entered into by Wells or were bound by the terms of the counteroffer based on the email communications updating plaintiff about the status of the documents expected to be delivered.