Bonasera v. Roffe

• Decision Date: 19 June 1968
• Docket Number: CA-CIV,No. 1,1
• Citation: 442 P.2d 165,8 Ariz.App. 1
• Parties: Thomas BONASERA, Appellant, v. Don ROFFE and Mary A. Roffe, his wife, Appellees. 448.
• Court: Arizona Court of Appeals

Page 165

442 P.2d 165

8 Ariz.App. 1

Thomas BONASERA, Appellant, v.Don ROFFE and Mary A. Roffe, his wife, Appellees.

No. 1 CA-CIV 448.

Court of Appeals of Arizona.

June 19, 1968.

Shimmel, Hill Kleindienst & Bishop, by Richard A. Black, Phoenix, for appellant.

Stevens & Leibow, by Howard P. Leibow, Phoenix, for appellees.

HATHAWAY, Chief Judge.

Bonasera sued the Roffes for the sum of $2,500, allegedly the unpaid balance of a commission of $3,000 which the Roffes orally promised to pay Bonasera to find a buyer for Roffe's Red Rooster Tavern.The property consisted of furniture, fixtures, equipment and a leasehold interest in realty.

The cause was tried to the court.At the conclusion of the trial, the matter was taken under advisement.Subsequently, judgment was entered for the defendants.The court found that the transaction constituted, '* * * one complete and entire transaction involving both the lease of realty and the sale of personal property, and that it was necessary for the plaintiff to be a licensed real estate broker in order to obtain a commission * * * the plaintiff not hold a real estate broker's or salesman's under the Statute cannot recover a commission. * * *'

The record discloses that Bonasera was a salesman for a beer distributor and did not hold a real estate broker's or saleman's license.

On appeal, Bonasera maintains that the trial court erred in holding that A.R.S. § 32--2152 rendered the agreement unenforceable.He contends that a real estate broker's license is not required of a person who engages in a single, isolated transaction.A.R.S. § 32--2152 provides that an action for collection of compensation earned by a real estate broker or salesman may be maintained in the courts of Arizona.The statute further provides:

'To commence the action the complaint shall allege that the plaintiff was a qualified licensed broker or salesman at the time the claim arose.Prior to hearing the action the court shall require the plaintiff to prove the alleged qualifications.'

Included in A.R.S. § 32--2101, the definitions section of the article, is the following:

'1.'Broker' or 'real estate broker' means a person, other than a salesman who, for another, For compensation or other valuable consideration, or with the intent, in the expectation, or upon the promise of receiving or collecting compensation or other valuable consideration:

'(f) Assists in or directs the procuring of prospects or listings or the negotiation or closing of Any transaction which results or is calculated to result in the sale, exchange, Leasing or renting of any real estate.'(Emphasis added.)

A.R.S. § 32--2122 provides:

'It shall be unlawful for any person to engage in the business of a real estate broker or salesman without first obtaining a license as prescribed in this chapter and otherwise complying with the provisions of this chapter.'

The purpose underlying the statutes governing those occupied in real estate activities, is to protect the public from unscrupulous and unqualified persons.Northen v. Elledge, 72 Ariz. 166, 232 P.2d 111(1951).Our Supreme Court has adhered to a strict application of A.R.S. § 32--2152(quoted above) to implement the intent expressed in the statutes.Accordingly, the courts will not be a party to the collection of fees sought in violation of the law.Hall v. Bowman, 88 Ariz. 409, 357 P.2d 149(1960).The underlying public purpose is not served in subjecting an unsuspecting public to untested, unregulated practitioners of isolated transactions.We are of the opinion that these statutes are broad enough to...