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CHANCELLOR v. L. J. HOOKER COMMER. REAL ESTATE

June 30, 1988

RONALD CHANCELLOR, Plaintiff,
v.
L. J. HOOKER COMMERCIAL REAL ESTATE, INC., Defendant



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE.

 This case comes before the Court on defendant's motion for summary judgment and the opposition thereto. The facts of the case are set forth below.

 I

 The parties entered into an employment contract ("the contract or agreement") in which plaintiff agreed to act as a real estate broker/salesperson for defendant and defendant agreed to pay plaintiff for his sales and brokerage activities on a commission basis. The matter presently before the Court involves brokerage services provided by plaintiff which resulted in the exclusive listing for Merrill Lynch *fn1" of property known as St. Cecilia's Academy ("St. Cecilia's"), located in the District of Columbia. Mr. Chancellor alleges that he obtained the exclusive listing through negotiation with the owners of the property and by putting together a brochure on the property. Plaintiff's Dep. at 33-4. Plaintiff stated further that he did "most of the work on the package" in response to questions regarding any assistance provided by another employee, George McConnell. Id. at 34.

 The record before the Court indicates that by letter dated March 16, 1984, representatives of the defendant indicated that because of their efforts in securing an exclusive listing of St. Cecilia's, two employees, Ronald Chancellor and George McConnell, would be entitled to split 25% of the listing commission on the sale of St. Cecilia's. The language of the March 16, 1984 letter provides: "The following decision was reached with regards to commission split. Ronald Chancellor and George McConnell will, if and when they receive the executed listing agreement, be entitled to 25% of the listing commission. This commission will be shared between both agents. Reasons for this decision are: both agents are actively pursuing the execution of the listing and George is writing the proposal." The listing agreement was obtained from St. Cecilia's.

 In July of 1984, plaintiff related that he ceased working regularly for defendant because he "spent a lot of time at the beach" in Rehobeth, Delaware. Plaintiff's Dep. at 8-9. During October of 1984, defendant sent a certified letter dated October 16, 1984, return receipt requested, terminating plaintiff's employment because of his absence from work. This certified letter was sent to plaintiff's District of Columbia address located on the first page of the contract. *fn2" It is undisputed that this certified letter was never claimed. *fn3" Additionally, defendant sent a copy of the termination letter via Federal Express to plaintiff at his residence in Delaware. Although plaintiff does recall receiving a letter sometime in October terminating his employment due to his failure to return to work, he cannot remember when he received the copy of the letter at his home in Rehobeth. Id. at 9-10.

 At an unspecified time subsequent to his departure and termination from Merrill Lynch, Mr. Chancellor states that he contacted a managerial employee of the defendant, George Dewey. They discussed various transactions that plaintiff participated in during his employment with defendant. Mr. Chancellor contends that during his initial conversation with Mr. Dewey, it was indicated to him by Mr. Dewey that his commission as a result of the sale of St. Cecilia's was $ 18,000. Dep. at 15-9. According to plaintiff, there was no discussion as to how that figure was selected. Id. at 60. When plaintiff questioned Mr. Dewey regarding that particular figure, Mr. Dewey responded, "I can't tell you what happens through the deal." Id. at 61. He also asserts that because of his termination from the company, Mr. Dewey "was a little less able to talk" about the deal. Id. at 16.

 In a later conversation it is alleged that Mr. Dewey telephoned him to report that George McConnell had requested arbitration of the part of the commission from the sale of St. Cecilia's that plaintiff and Mr. McConnell were to split. Id. at 18. Plaintiff was informed of the nature and date of this intra-company proceeding, including the procedure, namely that the company arbitrators would come down from Stanford, listen to the case, and make their own decision. Id. at 58-9; 62-3. Further he also understood that if Mr. McConnell received more money he would receive less. Id. at 62. Mr. Chancellor stated that he asked whether he should attend the arbitration and whether he should bring his attorney. Id. at 59. According to plaintiff, Mr. Dewey responded that such action was not necessary and there was nothing plaintiff could do to deny Mr. McConnell's right under the employment agreement to arbitrate. Id. at 58-9. Further, shortly before disbursement of the commission, Mr. Dewey called him and informed him of the result of these proceedings. Id. at 57. At that time plaintiff was advised by Mr. Dewey that the arbitrators held against him because he had not signed a pending deals list. Id. at 65.

 Sometime after he received the news regarding the company arbitration, plaintiff brought this action against his former employer for breach of contract and in quantum meruit seeking an $ 18,000 commission which he claims defendant owes him. Defendant maintains that under the terms of the employment contract, plaintiff is not entitled to any recovery.

 In its motion for summary judgment defendant contends that there is no genuine issue for trial, because plaintiff's employment contract bars his claims for three independent reasons. First, plaintiff's employment contract requires that he provide a transaction list of brokerage activities, from which any commission will be sought, within fifteen days of termination. *fn4" It is undisputed that plaintiff did not prepare such a list. Secondly, defendant contends that since the sale of St. Cecilia's occurred more than 120 days after the termination of plaintiff's employment, plaintiff is not entitled to recovery under the contract even if he had prepared a transaction list. *fn5" Finally, the defendant maintains that this dispute has already been resolved by intra-company arbitration, which is provided for under the employment contract. *fn6" The arbitrators held that plaintiff was not entitled to a commission, because of his failure to submit a transaction list. Pursuant to the employment contract the arbitration is binding. *fn7"

 Plaintiff's response offers two bases in support of recovery based on breach of contract in this case. First, plaintiff contends that defendant breached the contract in that the notice of termination was not provided according to the terms of the contract. Second, plaintiff relies on certain oral representations made by an employee of the defendant indicating that plaintiff would be paid the commission at issue. The Court finds these arguments to be unpersuasive on the facts of this case.

 II

 The employment agreement in this case is a written document that established an employment at will contract which was terminable by either party for any reason. Paragraph 15 of the contract provides that all notices including those relating to termination were to be ". . . in writing served either personally or by certified mail, return receipt requested, at the respective addresses set forth on the first page of this Employment Agreement." Based on the record in this case, the Court cannot conclude that the defendant breached the notice requirement under the employment agreement. Not only did defendant comply with the notice requirement as it relates to the address given by plaintiff on the agreement but it sent a second notice to him at his actual location in Delaware. Plaintiff admits that he received the copy of the notice. The fact that plaintiff did not claim a certified letter sent to him at a ...


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