A Few Particular Points Out of an Otherwise Uninteresting Decision

A Few Particular Points Out of an Otherwise Uninteresting Decision

      A decision rendered last week by the Kentucky Court of Appeals, it reviewing an effort to in effect relitigate a matter that had already been determined by arbitration, is not particularly noteworthy. There are, however, few nuggets that are worth a bit of attention. Eitel v. Duncan Commercial Real Estate LLC, No. 2015-CA-000506-MR, 2017 WL 65607 (Ky. App. Jan. 6, 2017).

      This dispute arose out of a real property purchase by Robbins. Eitel asserted that she was entitled to a real estate commission on the sale. Duncan, whose involvement in the transaction is not detailed in the opinion, did receive a commission. Robbins, on whose behalf Eitel alleged she had been the realtor giving rise to her right to a commission, “at the closing,… executed an affidavit stating Eitel was not his broker for the transaction.” Still, Duncan was willing to pay to Eitel a referral fee of 25% of the commission he earned. Eitel refused that offer and initiated an arbitration proceeding before the Kentucky Association of Realtors. That arbitration panel awarded Eitel the amount of the previously offered referral fee. After a KAR procedural review of the award, it was affirmed, and Duncan paid over the amount of the referral fee. Eitel then attempted to move this dispute to the courts, an effort that was rejected.

      Initially, Eitel sought to bring the action on her own behalf and also on behalf of Eitel Real Estate Group, a Kentucky business corporation. On the basis that a corporation may be represented in court only by legal counsel, “Thus, insofar as Eitel personally undertook to represent the corporation, as a nonprofessional she was prohibited from doing so.” 2017 WL 65607, *3. Although not addressed the opinion, that Eitel Real Estate Group, Inc. was administratively dissolved in 2002 for failure to file its annual report with the Kentucky Secretary of State.

     One of the tort claims that Eitel sought to allege in court was that Duncan’s actions constituted tortious interference with a contract and business relationship between Eitel and Robbins. This claim failed on the basis that there was no contract at issue. Rather:

However, absolutely no reference appears in the record as to the existence of any brokerage contract between herself and Robbins - whether oral or written, and she even admitted to the arbitration panel no contract existed. There can absolutely be no interference with a contract that does not even exist. Id.

The court also affirmed an award of attorneys fee’s against Eitel, finding they were provided for in the agreement.

[S]he has clearly continued to contest the results of the arbitration as being incorrect. Duncan was therefore required to seek judicial confirmation of the award and, under the express language quoted above, is entitled to recover a fee for its retained counsel.  2017 WL 65607, *4.