Madison - St. Clair Record

Tuesday, September 17, 2019

Realtors claim buyback argument already litigated, seek to dismiss suit

By Heather Isringhausen Gvillo | Sep 8, 2015


A realty firm and its realtors seek to dismiss a couple’s lawsuit alleging breach of contract based on an “ambiguous” buyback provision.

Mark A. Fuesting and Judy A. Fuesting filed their lawsuit on June 17 against Joyce Tebbe and Donald W. Brown Inc., doing business as Coldwell Banker Brown Realtors.

According to the complaint, the Fuestings hired Tebbe as their real estate agent in October 2009. The suit states that when Tebbe informed the plaintiffs of the property for sale at 35A Colonial Drive in Highland, they were reluctant. But when she offered to include a three-year buyback provision, they accepted and entered into a contract to purchase the house on Oct. 5, 2009. They planned to close on the property on Nov. 6, 2009.

The plaintiffs claim they attempted to invoke the buyback provision in early 2013, filing suit against the sellers to enforce it and sell back the property for the sum of $108,000. They claim the Madison County Circuit Court found the language of the provision to be ambiguous on Feb. 5, 2015.

They accuse Tebbe of breach of duty by drafting a vague document, failing to consult with an attorney and failing to instruct and properly inform the plaintiffs of their rights and responsibilities.

The defendants filed a motion to dismiss through attorney Michael T. Kokal of Heyl Royster Voelker & Allen in Springfield on Aug. 13. They argue that collateral estoppel is an “equitable doctrine that precludes a party from re-litigating an issue decided in a prior proceeding.”

The defendants claim the Fuestings did not comply with the “buy back provision” by failing to exercise the agreement within the three year term.

They argue that the issue concerning whether the plaintiffs “listed” the property and complied with the contractual terms is identical in both cases, meaning this case has already been litigated and the defendants were not the proximate cause of their alleged damages in this case.

The defendants also claim Counts VII and VIII should be dismissed for failure to state a claim and Counts III through VI should be dismissed because they do not constitute misrepresentations or fraud. They argue that “statements by a realtor as to the legal effect of the contract cannot form the basis of a fraud or misrepresentation count.”

“In this case, plaintiffs’ allegations cannot satisfy the first element of the cause of action because all the realtors are allegedly doing is allegedly giving their opinion as to the legal effect of contract documents. That legal effect cannot form the basis of a fraud or misrepresentation claim.

“Finally, the representations at issue here were dependent on the future conduct of the Holzinger’s, the sellers of the property. It is also well established that opinions or promises of future performance are not actionable in fraud,” the motion states.

Further, the defendants argue that the three-year statute of limitations has expired, making dismissal proper.

The Fuestings seek a judgment in excess of $50,000, plus attorney’s fees and costs.

The plaintiffs are represented by Randall P. Steele of Steele Law Offices in Glen Carbon.

Madison County Circuit Court case number 15-L-766

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