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Cochran v. Kennelly D/B/A KPK Commercial

The trial court erred in denying the plaintiff's suit for a supersedeas bond, since she received a judgment for the recovery of money and exercised her statutory right to move the trial court for a such bond

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This dispute arose out of a listing agreement between the seller of real property and a broker. In Case No. A10A1588, the seller William Cochran and Cochran’s Service Center and Sales, Inc. collectively “the Cochran defendants” appeal from the trial court’s final judgment in favor of Kathryn P. Kennelly d/b/a KPK Commercial “Kennelly” on her claim for a commission following the sale of the property. In Case No. A10A1861, Kennelly appeals from the trial court’s denial of her motions to dismiss the Cochran defendants’ appeal and for supersedeas bond. We affirm in Case No. A10A1588, but hold that the court erred in denying Kennelly’s motion for supersedeas bond and therefore affirm in part and reverse in part in Case No. A10A1861. The record reveals that in December 1999, William Cochran entered into a listing agreement with Kennelly for the sale of certain real property.1 Under the agreement, Kennelly was to receive a commission of 10 of the “gross sales price” of the property. The agreement provided that even if the property was not sold “by or through the efforts” of Kennelly, she would still receive the commission.

Kennelly marketed the property for a year. But in October 2000, unbeknownst to Kennelly, the Cochran defendants entered into an agreement to sell the property to a church for $1,150,000. The sale to the church closed in May 2001, and the Cochran defendants do not dispute that the property was sold for $1,150,000. In May 2002, Kennelly filed a complaint against the Cochran defendants and the closing attorney to recover her expected 10 commission of $115,000, and she later amended her complaint to seek 18 interest from the date of the closing.

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