Gilmer v. Fauteux

• Decision Date: 22 December 1998
• Docket Number: No. 97-323.,97-323.
• Citation: 723 A.2d 1150
• Court: Vermont Supreme Court
• Parties: James David GILMER v. Norman FAUTEUX and Land East Construction Company.

723 A.2d 1150

James David GILMER v. Norman FAUTEUX and Land East Construction Company.

No. 97-323.

Supreme Court of Vermont.

December 22, 1998.

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendants appeal the superior court's decision awarding plaintiff James Gilmer a real estate commission. We reverse based on our determination that the record does not support the court's conclusion that plaintiff procured the sale of the subject property.

Defendant Norman Fauteux was designated in a 1991 divorce decree as the agent responsible for liquidating the divorcing couple's marital property, including properties owned by defendant Land East Construction Corporation (Land East). Fauteux sold eighteen properties without the services of a broker, but eventually hired plaintiff to help him sell the remaining properties. Between 1992 and 1995, Gilmer received commission payments for selling approximately fifteen parcels.

In September 1992, Fauteux and Gilmer entered into a nonexclusive one-year listing agreement concerning the subject property, known as the North Hartland Dry Kiln, which was owned by Land East. Fauteux agreed to pay Gilmer a commission if Gilmer procured a buyer for the property, which was listed at $1,000,000. As soon as the agreement was signed, Gilmer contacted the Cersosimo Lumber Company (Cersosimo) regarding the property, but the company expressed no interest in purchasing it. In September 1993, Fauteux and Gilmer signed a renewal one-year listing agreement concerning the property. By September 1994, the property had not sold, and Gilmer asked Fauteux to renew the listing agreement once again. Fauteux told Gilmer that he was reluctant to sign a renewal agreement because he was not sure whether his authority as liquidating agent would extend beyond December 1994. Nevertheless, Fauteux asked Gilmer to continue to seek a buyer for the property, assuring him that he would be paid a commission. Gilmer agreed to continue looking for a buyer with the understanding that Fauteux would sign a new listing agreement if he were reappointed as liquidating agent.

In January 1995, Gilmer notified Cersosimo that the asking price for the subject property had been reduced from $1,000,000 to $750,000. Soon thereafter, Gilmer began negotiating a deal with one prospective buyer and then with another when the first one withdrew its offer. On May 22, 1995, after Gilmer gave Fauteux the latest draft of a purchase and sale agreement negotiated with the second prospective buyer, Fauteux told Gilmer that he expected to be reappointed as liquidating agent. That same day, Gilmer gave Fauteux a renewal listing agreement with the understanding that he would sign it. Fauteux never signed the agreement and, in September 1995, sold the subject property to Cersosimo. When Fauteux refused to give Gilmer a commission, Gilmer sued Fauteux and Land East, seeking a broker's fee for the sale of the property.

Following a hearing, the superior court determined that Gilmer had procured the sale of the kiln, and thus was entitled to a commission in the amount of $58,750. The court acknowledged the general rule barring real estate commissions absent an executed written listing agreement, but concluded that an exception should apply in this case because the parties had expressed a mutual intent to abide by a written listing agreement that, though unsigned, contained the same terms as those contained in their prior agreements. Given the clear terms of the parties' agreement, the court found no reason to invoke the rule requiring an executed written agreement, which is aimed at ensuring that the parties are fully aware of the terms of the agreement. See MacDonald v. Roderick, 158 Vt. 1, 7, 603 A.2d 369, 373 (1992) (when listing agreement is oral, recovery of real estate commission will always be barred because the requirement of written agreement ensures that parties are fully aware of terms of agreement). On appeal, defendants argue that the superior court erred in allowing a commission without an executed written listing agreement and in concluding that Gilmer procured the sale to Cersosimo.

Because the record does not support the trial court's conclusion that Gilmer procured the sale of the subject property, we need not consider whether the absence of an executed written listing agreement in these circumstances precluded Gilmer from recovering a broker's fee. Merely listing a property with one broker does not preclude sale of the property through the efforts of the owner or another broker. See Kelly v. Beaudoin, 131 Vt. 27, 32-33, 298 A.2d 831, 834 (1973). Because...