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No. 120035
| G.C.
Timmis & Company |
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David V. Timmis (248) 312-2800 |
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Plaintiff-Appellant,
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| vs (Appeal
from Ct of Appeals) |
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(Oakland
-- Cooper)
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Guardian Alarm Company,
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Barry M. Rosenbaum (248) 353-7620 |
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Defendant-Appellee,
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Brief on Appeal>>
Defendant-Appellee's Brief on Appeal>>
Michigan Association of Realtors Amicus
Curiae Brief>>
Background
G. C. Timmis & Company is a registered investment advisor with the
Securities and Exchange Commission and a broker-dealer member of the
National Association of Security Dealers. Timmis & Company claims
that its director and principal, Gerald C. Timmis, III, and defendant
Guardian Alarm Company entered into an oral agreement in August 1997.
According to the plaintiff's complaint, under the terms of the oral
agreement, Timmis & Company was to assist Guardian Alarm in the
"successful purchase of a security monitoring agreement from MetroCell
Security," for which Guardian would pay a fee to Timmis & Company.
Timmis & Company further claimed that Guardian Alarm did purchase
a security monitoring agreement from MetroCell Security for $1.4 million,
but did so in a clandestine way to avoid Guardian's alleged contractual
commitment to Timmis & Company. Guardian Alarm denies that the agreement
existed and that it acted to avoid any obligation. Guardian Alarm moved
to dismiss. Guardian Alarm argued that, under Michigan's real estate
brokers licensing act, Timmis & Company was required to be a licensed
real estate broker before negotiating the purchase of a business or
business opportunity. The act provides in part that an unlicensed person
"shall not maintain an action ... for the collection of compensation
for the performance of an act or contract for which a license is required
by this article." The act defines "real estate broker"
in part as one "who ... negotiates the purchase or sale or exchange
of a business, business opportunity, or the goodwill of an existing
business for others." Timmis & Company responded that it was
not required to be licensed under the act because it was seeking compensation
for investment banking services, not for assisting Guardian Alarm in
negotiating the purchase of a business. Oakland County Circuit Judge
Jessica Cooper denied the defendant's motion, but the Court of Appeals
reversed in a 2-1 published opinion. The Court of Appeals concluded
that because the plaintiff's activity constituted "negotiat[ions]
[for] the purchase or sale or exchange of a business," it was required
to have a real estate broker's license. Because the plaintiff had no
license at the time it engaged in the negotiations on defendant's behalf,
plaintiff's claim failed as a matter of law, the Court of Appeals stated.
The plaintiff appeals.
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