Judges Charlie Bethel Christopher McFadden, Georgia Court of Appeals Judges Charlie Bethel (left) and Christopher McFadden, Georgia Court of Appeals (Photos: John Disney/ALM)

 

 

 

In a flurry of end-of-term opinions last week, the Georgia Court of Appeals broke ranks over whether someone without a real estate license should be able to collect a referral fee.

“Today, for the first time, our Court decides that an individual without a real estate license has standing to sue for commissions earned from the provision of real estate brokerage services. As this decision is contrary to previous interpretations of the real estate brokerage licensing statute in binding decisions of this Court and our Supreme Court, I respectfully dissent,” Judge Charlie Bethel wrote.

Before Gov. Nathan Deal nominated Bethel to the bench nearly a year ago, he was a state senator. So it was with a different perspective that he opined that the majority’s decision was not what the General Assembly had in mind with exceptions to the licensing requirement. Bethel said the exception was to be a safe harbor to protect nonbrokers from criminal prosecution if they assisted in an occasional real estate deal without expectation of compensation.

With the original panel of three split, the decision went to seven judges, enough to be called “whole court,” although the group now has 15 members. In the end, Bethel was the lone dissenter.

Judge Christopher McFadden wrote for the majority in affirming Green County Superior Court Judge Alison Burleson’s denial of a summary judgment motion lodged by Oconee Investment Group. Oconee filed this interlocutory appeal.

McFadden was joined by Presiding Judges Anne Barnes and M. Yvette Miller, as well as Judges Sara Doyle, Elizabeth Branch, Carla Wong McMillian and Clyde Reese.

McFadden’s decision means Lisa Denton Turk can go forward with her lawsuit against Oconee. As McFadden told the tale in his opinion, Oconee’s agent had offered to sell Turk multiple lots and trailers in a real estate development. She declined because she didn’t have the money. They reached an agreement under which Oconee would give Turk a specific lot and trailer in development if she referred a purchaser for the remaining lots and trailers at a set minimum price. She kept her end of the bargain, but Oconee refused to pay her as promised: The lot and trailer agreed upon or, failing that, a fee of $20,000, according to the court.

Instead, Oconee allegedly tried to short her with a fee of $7,200 or a credit toward the purchase of the lot and trailer. She declined and sued, alleging breach of contract and unjust enrichment.

“Oconee argues on appeal that it is entitled to summary judgment on the ground that OCGA § 43-40-24 (a) bars each of Turk’s claims because she did not have a Georgia real estate brokerage license,” McFadden wrote. “We disagree.”

McFadden said Turk falls within an exception carved out by a newer version of the law for real estate transactions.

Oconee was represented by Adam Rosenberg of the Law Office of Russell Wall in Greensboro. Rosenberg declined to comment, except to say he has filed a motion for reconsideration.

Turk’s attorney is Michael Ford of Ford & Josey in Atlanta. Ford could not be reached immediately.

The case is Oconee v. Turk, No. A17A1193.