Bowlerama, Inc. v. Woodside Realty Co.
| Decision Date | 06 April 1988 |
| Docket Number | No. 86-317,86-317 |
| Parties | BOWLERAMA, INC., a Wyoming corporation, Appellant (Plaintiff), v. WOODSIDE REALTY COMPANY, a Colorado corporation; and Ronald M. Swearingen, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Don W. Riske, Cheyenne, for appellant.
Timothy G. Williams of Guy, Williams, White & Argeris, Cheyenne, for appellees.
Joseph B. Meyer, Atty. Gen., Donna Rice McCrea, Asst. Atty. Gen., for amicus curiae Wyoming Real Estate Com'n.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
Sadly, this case is illustrative of the changing mores of a society that, with increasing frequency, feels no obligation to honor its agreements. Greg Anderson and Daniel Graeber, owners of all of the stock of Bowlerama, Inc., seek here to renege on their promise and recover back an agreed commission paid upon the sale of their bowling alley.
Appellant sued Woodside Realty and Ronald M. Swearingen to recover a real estate commission in the sum of $61,000, claiming technical violation of the Wyoming Real Estate License Act of 1971, Section 33-28-114(b), W.S.1977. This appeal is from summary judgment in favor of Woodside Realty and Swearingen.
Appellant states the issues as:
We affirm.
Greg Anderson and Dan Graeber had been trying, without success, for more than three years to sell their bowling alley located in Cheyenne, Wyoming. Anderson and Graeber contacted a close friend, Bud Shafter of Denver, Colorado, who was the general manager of four bowling alleys and knowledgeable in the bowling alley business, to seek help in selling their bowling alley. Shafter suggested a Colorado realtor, Ronald Swearingen, who had been active in offering Colorado bowling alleys for sale and who had been dealing with several prospective purchasers. The four men met on April 15, 1983, in Ft. Collins, Colorado and discussed the potential sale. Swearingen informed appellant that he was not licensed in Wyoming and would have to associate with a Wyoming broker. Following the meeting, Swearingen contacted Eileen Proffit of Uinta Realty in Evanston, Wyoming who, with the approval of her broker, agreed to associate as resident broker. On April 18, 1983, Anderson and Swearingen met in Denver, and an interim agreement was prepared and sent to Graeber. Swearingen then prepared a listing agreement on a Wyoming exclusive listing form, circulated it to the co-owners and their Cheyenne attorney, then mailed it to Uinta Realty for execution. Proffit and her broker executed the agreement on June 1, 1983. Graeber initially denied that he was aware that a Wyoming broker, Uinta Realty, had been associated. He conceded, however, at the end of his deposition, that he knew of the Wyoming broker's association, stating:
"In my own mind, after seeing all the documents and going through all this testimony, I think that Uinta Realty was probably typed on the first initial agreement that I signed."
The listing agreement provided for a broker's fee of 8% of the selling price with a referral fee of 90% of the total commission to be paid to Swearingen and Woodside Realty.
After the listing agreement was executed, Swearingen contacted John Mason, a prospective purchaser with whom he had been working and who was interested in purchasing a bowling alley, and advised him concerning the availability of Bowlerama. Mason asked to deal directly with the sellers and was assured that would be alright. Thereafter, negotiations for the sale were had between Mason, appellants, their Cheyenne attorney, and their accountants. Swearingen was in contact with the parties by phone from his Colorado office and visited Wyoming a couple of times concerning the sale.
Within three months the parties concluded an agreement for the sale and purchase of Bowlerama and delivered an earnest money check in the amount of $10,000 to Swearingen's Denver office. Uinta Realty was advised of the transaction. Swearingen came to Cheyenne for the closing at the request of appellant's Cheyenne attorney. He prepared settlement sheets for the closing, renegotiated his commission, reducing it from $108,000 to $61,000, and received from Mr. Graeber a commission check in the amount of $61,000. Swearingen deposited the check and forwarded $4,000 to Uinta Realty as its share of the commission. The sale was concluded. The parties were satisfied. Each received what they bargained for. There was no claim of fraud, dishonesty, deceit or overreaching. Almost two and one-half years after the sale was concluded, Graeber was informed by a lady who worked for the Wyoming Real Estate Commission that he might be able to recover back the commission he had paid and that he should talk to attorney Riske, who, six months later, filed this lawsuit to recover back the commission paid. There was no factual dispute. The trial court denied recovery back of the commission, granting Swearingen and Woodside Realty summary judgment.
Summary judgment is only appropriate on a dual finding that there is no genuine issue of material fact and that the prevailing party is entitled to judgment as a matter of law. Hurst v. State, Wyo., 698 P.2d 1130 (1985). The record on appeal must be viewed most favorably to the party opposing the motion, giving to him all favorable inferences that may be reasonably drawn from the record. Olson v. A.H. Robins Co., Inc., Wyo., 696 P.2d 1294 (1985). Summary judgment is not appropriate when material issues of fact exist. Siebken v. Town of Wheatland, Wyo., 700 P.2d 1236 (1985). A fact is material if it would establish or refute one of the essential elements of a cause of action or defense asserted by either party. Schepps v. Howe, Wyo., 665 P.2d 504 (1983).
"(M) Assists or directs in the negotiation of any transaction calculated or intended to result in the sale, exchange, lease or rental of real estate." Section 33-28-102(a)(iii), W.S.1977.
Clearly, Swearingen, acting as a broker in procuring prospects and being licensed in the state of Colorado, was a nonresident broker.
With respect to a nonresident broker licensed in another state, as was Swearingen in this case, § 33-28-110(a), W.S.1977, provides that
"[i]t is unlawful for any licensed broker to compensate any person who is not a licensed broker, associate broker or salesman for performing any of the acts regulated by this act [§§ 33-28-101 through 33-28-206]; provided, however, that a licensed broker may pay a commission to a licensed broker of another state if the nonresident broker does not conduct in this state any of the negotiations for which a commission is paid." (Emphasis added.)
With respect to civil liability, § 33-28-114(b), W.S.1977, provides:
"If any person receives any money or the equivalent thereof as a fee, commission, compensation or profit by or in consequence of a violation of any provision of this act [§§ 33-28-101 through 33-28-206], he shall, in addition, be liable to a penalty of not less than the amount of the sum of money so received and not more than three (3) times the sum so received as may be determined by the court, which penalty may be recovered in a court of competent jurisdiction by any person aggrieved." (Emphasis added.)
Although not raised by the parties, it seems to us that any claim for recovery of the share of the commission paid reposes with the aggrieved person, who in this case must be the licensed Wyoming broker (Uinta Realty). If the nonresident broker (Ronald Swearingen) conducted negotiations in the state of Wyoming, he may not have been entitled to receive a share of the commission. But Uinta Realty, the aggrieved person, does not assert that claim. It does not seem that appellant, under the provisions of § 33-28-114(b), W.S.1977, is an aggrieved person who can recover the penalty provided. The listing agreement was with a Wyoming broker. A nonresident broker was involved. A buyer was produced, the bowling alley was sold, the services were rendered, and appellant became obligated to pay the agreed commission. Appellant received what it bargained for. Appellant paid for the services of the real estate broker and, under the statute, may not qualify as an aggrieved person.
Appellant nevertheless asserts that it is an aggrieved person under the statute, that appellee Swearingen violated the Wyoming statute by conducting negotiations in Wyoming without being licensed in Wyoming and, as a result, appellant should recover back the $61,000 commission already paid. Even if we assume that appellant was an aggrieved person under the statute, we conclude that the trial court, nevertheless, was correct in denying appellant's claim to recover the commission.
Section 33-28-110(a), W.S.1977, permits a broker licensed in another state to associate with a Wyoming...
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