Battlefield, Inc. v. Neely

• Decision Date: 07 January 1983
• Docket Number: No. 5718,5718
• Citation: 656 P.2d 1154
• Parties: BATTLEFIELD, INC., a Wyoming corporation, Appellant (Defendant), v. Ellen L. NEELY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1154

656 P.2d 1154

BATTLEFIELD, INC., a Wyoming corporation, Appellant (Defendant), v. Ellen L. NEELY, Appellee (Plaintiff).

No. 5718.

Supreme Court of Wyoming.

Jan. 7, 1983.

Don W. Riske, of Riske & Edmonds, P.C., Cheyenne, for appellant.

Gerald R. Mason and William H. Twichell, of Mason & Twichell, P.C., Pinedale, for appellee.

Before ROONEY, C.J. ^* , RAPER, THOMAS and ROSE ^**, JJ., and GUTHRIE, J., retired.

ROSE, Justice.

On July 30, 1980 appellee Ellen L. Neely filed a complaint against appellant Battlefield, Inc., a Wyoming corporation, alleging breach of an oral employment agreement and claiming unpaid real estate commission damages in the sum of $22,600.86. Battlefield denied the material allegations of the complaint and proffered affirmative defenses, including the allegation that the appellee's conduct violated the Wyoming Real Estate License Act, and the interpretative rules promulgated by the Wyoming Real Estate Commission, and that she was not exempt from its licensing provisions by § 33-28-101, et seq., W.S.1977. ¹ It was urged that appellee's action was therefore barred by Wyoming law.

When the issues were joined, the appellant Battlefield, Inc. filed a motion for summary judgment which was denied. The case then went to trial and the jury returned a verdict for the plaintiff-appellee for $18,588.34. A judgment was entered on the verdict and Battlefield appeals. We will affirm.

FACTS

In the early part of July, 1979 Mr. Jack Richardson, president of Battlefield, Inc., approached Ms. Neely and offered to employ her to market real estate which appellant Battlefield owned. The appellee accepted the offer in August of 1979. At that time, Ms. Neely had been making preparation to obtain a real estate license but Jack Richardson, who had undisputed authority to speak for the appellant corporation in all matters with which we are in this appeal concerned, advised her to terminate these efforts explaining that her work for the corporation would be such that she would not need a license. Richardson represented to Ms. Neely that the real estate law exempted "regular employees" of owners of real estate, and that this would be the relationship that she and Battlefield would enjoy during their association. To be certain that Ms. Neely would be comfortable with the exemption and would be positive that it applied to her, Richardson examined with Ms. Neely the section of the Wyoming statute which spoke to this issue, namely, § 33-28-103, W.S.1977, supra n. 1. Therefore, Mr. Richardson, when he employed Ms. Neely, not only knew that she was not licensed, but he had also represented to her that she was exempt from the licensing The terms of the employment proposal were that Ms. Neely was to show properties to prospective purchasers and would be paid 25% of the gross amount of any sales which she brought to fruition. On occasion she was directed to show the property to purchasers referred to her by Mr. Richardson. She was to use only the forms provided by appellant and was told how those forms must be filled out. The corporation provided Ms. Neely with the maps, price lists, disclosures and all other documents that were necessary for selling the property. While she could solicit potential purchasers on her own, and from time to time was directed to show the property to purchasers referred to her by Mr. Richardson, she did not have the authority to bind appellant to contracts without Richardson's approval. The record discloses that the corporation retained the exclusive authority to either accept or reject any sale prospect which Ms. Neely presented. Appellant also reserved the right to fire appellee at any time for any reason.

requirement of the Wyoming statutes. Whether Ms. Neely was possessed of a license or not was in no way a factor in either her employment or the subsequent termination of her services.

Richardson exercised control over appellee's advertising--he introduced Ms. Neely to potential purchasers, he accompanied her on various occasions where he instructed her and controlled her selling procedures so that appellee was obliged to sell in absolute conformance with Mr. Richardson's instructions and could not make any sales except in the authorized manner.

Mr. Richardson was highly sophisticated in the handling of real estate transactions and was knowledgeable in the law with respect to such matters, while appellee was not possessed of this kind of knowledge or experience. It is noteworthy that appellant had hired and paid compensation for doing the same or similar work to at least one other person who was not licensed. Richardson admits Ms. Neely would have been paid if she had not broken her agreement, regardless of whether or not she had a real estate license. Of course, whether the appellee did or did not breach her contract is not in any way at issue in this appeal. Ms. Neely sold for the appellant only and it is conceded that Battlefield was the recipient of substantial benefits from her efforts and services.

Ms. Neely commenced working under those conditions and, after accompanying Mr. Richardson to the property and being introduced to several prospective purchasers, she was directed to write up certain contracts that were then entered into by the parties. When this was accomplished, Richardson ordered the bank to deduct 25% of the payments received on those contracts and to deposit these monies to the credit of appellee, which the bank did.

Ms. Neely continued working under this arrangement until approximately November 15, 1979, when, because of some personal differences that she had with Mr. Richardson, her employment was terminated and, on or about March 28, 1980, the bank was instructed to discontinue paying Ms. Neely her portion of payments received on such contracts as she had previously caused to be executed and upon which payments were being made.

The record tells us that, at the time of her termination, appellee had sold $90,250 worth of property, having a deferred-payment price of $119,598.75. At that time she had done all things necessary to complete the sales and there remained nothing further for her to do but collect the monies earned. The evidence is that appellee had earned but was unpaid compensation in the amount of $26,042.44, in spite of which fact the jury returned a verdict of only $18,588.34. Ms. Neely has not, however, cross appealed.

Such other facts as we consider relevant will be referred to later in this opinion.

Before addressing the issues, we should perhaps observe that we perceive the appellant to be urging some rather shocking positions in this appeal. Particularly, we see the appellant coming to this court asking it to reach some blatantly inequitable decisions in order to help the corporation avoid

its honest obligations. Courts do not like to aid litigants in avoiding their contractual obligations by joining in their games of hide-and-seek behind statutory technicalities--especially is this so where the other party has performed and the party looking to avoid the contract has reaped all the benefits of the performance. We will not aid and abet such efforts if we can possibly avoid it.

ISSUES

The appellant defines the two issues for our consideration as follows:

(1) "WHETHER THE APPELLEE, AS A MATTER OF LAW, WAS A 'REGULAR EMPLOYEE' OF THE APPELLANT AS CONTEMPLATED BY THE EXEMPTION FROM THE REQUIREMENTS OF THE WYOMING REAL ESTATE LICENSE ACT AS SET OUT IN W.S. 33-28-103."

(2) "WHETHER THE APPELLANT, WHOSE SOLE ACTIVITY WAS THE SALE OF ITS OWN REAL PROPERTY, IS THE TYPE OF 'OWNER OF REAL ESTATE' CONTEMPLATED BY THE WYOMING LEGISLATURE IN ITS ADOPTION OF W.S. 33-28-103."

Another way of describing the issues identified by this appeal is to say that we are concerned with whether or not Ms. Neely is exempt from the Wyoming real estate licensing provision of the statute and whether the appellant is the type of owner contemplated by the exemption provision.

ARGUMENT I

Was Ms. Neely Exempt From the Licensing Act?

A. Was the appellee a subdivider and thus NOT exempt from licensing under § 33-28-103, W.S.1977?

One of the tenuous grounds urged by appellant is that it should not have to pay Ellen Neely her commissions (even though she earned them) for the reason that she is not exempt from the mandatory licensing provisions of the Act since she was a subdivider--and § 33-28-103, supra, denies licensing exemption from those persons who

"as subdividers, sell or offer for sale subdivisions."

We hold that Ms. Neely was not a subdivider under the statute and therefore is not, by the subdivider language, denied her real estate license exemption.

Appellant's contention in this respect vividly points to its paper-thin underpinning in this appeal because, if Ms. Neely is precluded from licensing exemption because she is a "subdivider," then Battlefield is also a "subdivider" without a real estate license. If Battlefield's position were to be upheld, the result would be for us to take the money that Ms. Neely has earned and give it to Battlefield although, under Battlefield's theory, both are guilty of the same infraction of the law. The appellant asks a lot of the justice system when it proposes that we accept this sort of an offer, and we respectfully decline to do it for the reason that neither Ms. Neely nor Battlefield is denied the privileges of the licensing exemption statute by reason of the subdivider exception contained therein.

The class excluded from licensing exemption under § 33-28-103, W.S.1977 is "subdividers" who sell or offer for sale "subdivisions." Fortunately, the term "subdivision" is defined in § 33-28-102(a)(vi), W.S.1977 as follows:

"The term 'subdivision' means any land or tract of land in another state which is divided or proposed to be divided into five (5) or more lots, parcels, units or interest, for the purpose of disposition as a part of a common promotional plan and where any subdivision is offered by a single...