Asserting its entitlement to a real estate brokerage commission, Southeast Properties, Inc. sued Killearn Partners, Inc. and Ted Liberty, the vice-president of Killearn. Southeast sought to recover under theories of breach of contract, procuring cause, quantum meruit and fraud. Citing the Georgia Brokerage Relationships in Real Estate Transactions Act BRRETA codified at OCGA § 10-6A-1 et seq., Killearn filed a motion for judgment on the pleadings or, in the alternative, to dismiss for failure to state a claim upon which relief may be granted, contending that the lack of a written brokerage contract barred Southeast’s action as a matter of law. After Killearn submitted evidence outside the pleadings, the trial court converted Killearn’s motion to one for summary judgment. The court denied summary judgment, but certified the case for immediate review. We granted interlocutory review to decide whether BRRETA, as amended in 2000, forecloses other causes of action filed by a broker when no written engagement agreement has been executed. We find that BRRETA does not do so and affirm. This case arises from Southeast’s claim to a substantial real estate commission on Killearn’s acquisition of certain real property in south Fulton County. Southeast claimed that it “acted as agent and representative of, and on behalf of, Defendant Killearn in procuring the transaction regarding the development of the Bear Claw Property.” Southeast asserted that it had an understanding with Killearn under which Southeast would provide real estate brokerage services to Killearn in exchange for “an amount not less than Seven Percent 7 of the value of the joint venture . . . for the Bear Claw Property transaction.” In claiming a right to a commission, Southeast asserted that it had acted as Killearn’s real estate agent in pursuing the transaction and by undertaking significant professional services on Killearn’s behalf, including performing an assessment of the feasibility of Killearn’s acquisition of the property in south Fulton.
Despite entering factual findings that “there was no written contract between the parties,” and no brokerage engagement as defined by OCGA § 10-6A-3 4,1 the trial court denied summary judgment to Killearn. The court rejected Killearn’s argument that without a written brokerage engagement, there can be no agency relationship in a real estate brokerage context. The court also found that Southeast “acted in a real estate agency relationship with Killearn, its clients, and performed acts which were greater than ministerial acts; thus, Southeast was not a transaction broker.”
