Klaas v. Haueter

• Decision Date: 19 November 1987
• Docket Number: No. 7804-3-III,7804-3-III
• Citation: 49 Wn.App. 697,745 P.2d 870
• Court: Washington Court of Appeals
• Parties: Lawrence D. KLAAS, d/b/a Allied Brokers, Appellant, v. Roy HAUETER and Billee Haueter, husband and wife, Respondents.

Page 697

49 Wn.App. 697

745 P.2d 870

Lawrence D. KLAAS, d/b/a Allied Brokers, Appellant, v. Roy HAUETER and Billee Haueter, husband and wife, Respondents.

No. 7804-3-III.

Court of Appeals of Washington Division 3, Panel One.

Nov. 19, 1987.

James Kalamon, Diane Hermanson, Ellen Flood Gephart, Paine, Hamblen Law Firm, Spokane, for appellant.

John S. Glassman, Longfelder, Tinker Law Firm, Seattle, for respondents.

McINTURFF, Chief Judge.

Mr. Klaas obtained a judgment against Roy Haueter individually, but not against the community, for a real estate commission under an exclusive listing agreement. Mr. Klaas appeals claiming a basis for community liability exists. We disagree and affirm.

Because Roy and Billee Haueter's apartment building was operating at a loss, they decided to sell it. Mrs. Haueter had given Mr. Haueter her power of attorney. She stated the purpose of giving him the power of attorney was "strictly for convenience sake, because with our six children it wasn't always practical for me to come down to the office, or wherever he was, to sign papers." She said they had an understanding that Roy Haueter would not sign her name unless they had discussed it prior to the signing. Mrs. Haueter testified that by giving Mr. Haueter her power of attorney, she did not intend to be bound by contracts to which Mr. Haueter did not sign her name.

On August 16, 1982, Mr. Haueter signed their names to an exclusive listing agreement with Roger Kreimeyer, a real estate broker, authorizing a 6% realtor's commission. Roger Kreimeyer released Mr. and Mrs. Haueter from the exclusive listing contract. Mrs. Haueter testified she was aware of the terms of this contract and had authorized its execution.

On October 3, 1982, Mr. Haueter executed an exclusive listing contract with Larry Klaas. The contract was to expire on March 31, 1983, and contained an exclusion in favor of Dennis Weybright, Tomlinson Agency, which was to expire on midnight, November 5, 1982. ¹ Mrs. Haueter did not sign this exclusive listing contract, nor did Mr. Haueter sign her name under the power of attorney. At trial, Mrs. Haueter stated she had no knowledge of the listing agreement with Mr. Klaas until they were sued. She stated the listing agreement was something she would expect Mr. Haueter to discuss with her if he had signed her name to it.

The Haueters sold the apartment house through Mr. Weybright and Steve Gill on November 29, 1982, for $252,706. Under this agreement, Mr. Weybright received a 6% commission on the sale. The court concluded the sale through Mr. Weybright breached the exclusive listing agreement with Mr. Klaas and that Mr. Klaas had damages of $16,946.

The court entered a judgment against Mr. Haueter individually for the commission, interest and attorney fees. No judgment was entered against the community because the court found Mrs. Haueter did not expressly or impliedly authorize the listing with Mr. Klaas and did not ratify the contract.

The only issue is whether the court erred in holding that the exclusive listing contract for community real property signed only by Mr. Haueter is not binding on the marital community.

Generally, the signatures of both spouses are required to transfer community real property. ² The joinder requirement extends to an agreement to list community real property for sale with a broker. Whiting v. Johnson, 64 Wash.2d 135, 141, 390 P.2d 985 (1964). If one spouse enters into a contract to sell, lease, or list for sale community realty without the other spouse joining, and the nonjoining spouse either (1) authorizes such or consents thereto, or (2) subsequently sanctions or ratifies the signing spouse's act, neither the nonsigning spouse nor the community may thereafter disaffirm it. Whiting, at 141, 390 P.2d 985.

Under RCW 26.16.030(4), which requires joinder by both spouses to purchase community real property, it has been held the requirement is met when there are sufficient facts from which an estoppel may be found. Colorado Nat'l Bank v. Merlino, 35 Wash.App. 610, 616, 668 P.2d 1304, review denied, 100 Wash.2d 1032 (1983). "A community is estopped to deny liability due to the failure of one spouse to join a transaction when one spouse permits the other to conduct the transaction, both have a general knowledge of the transaction, and both are ready to accept the benefits which may come from it." Colorado Nat'l Bank, at 616, 668 P.2d 1304. Therefore, estoppel is a third exception to the requirement that both spouses sign the listing agreement.

Mr. Klaas first contends the requirement of joinder should not apply where both parties desire that the property be sold, because the purpose of the rule, to prevent a unilateral disposition of community property, is not served under these circumstances. Colorado Nat'l Bank, at 616, 668 P.2d 985. However, that case stated "Washington courts have held that RCW 26.16.030(4) [dealing with the joinder requirement to purchase community real property] should be construed strictly to shield the marital community from liability for the acts of one spouse acting alone." Colorado Nat'l Bank, at 619, 668 P.2d 985. We find this argument unpersuasive. Because community liability for the unilateral act of one spouse under the listing agreement would be the result of an exception to the joinder rule in this case, strict construction of the joinder rule furthers its purpose.

Second, Mr. Klaas argues that the exceptions of authorization, ratification or estoppel meet the requirement of joinder in this case despite the fact that Mrs. Haueter did not sign the listing agreement, nor did Mr. Haueter sign her name under the general power of attorney he possessed.

The trial court made the following findings of fact relevant to whether application of the authorization, ratification or estoppel theories constitute joinder in this case:

XX.

Billee Haueter wanted to sell the apartment house as early as August 16, 1982, and did not change her mind in that regard up to and including the date the apartment house was sold on November 29, 1982.

XXI.

At all times material hereto, Roy Haueter had authorization from Billee Haueter to sign documents for Billee Haueter as attorney-in-fact concerning all real estate matters, including the apartment house which is the subject of this lawsuit. Sometimes Roy Haueter signed Billee Haueter's name with the attorney-in-fact notation, and sometimes he signed her name without that notation. Billee Haueter had no objection to this.

XXII.

Billee Haueter was not aware of the specific Exclusive Listing Contract signed by plaintiff and Roy Haueter on October 3, 1982 (plaintiff's Exhibit 1). Roy Haueter did not sign Billee Haueter's name to Plaintiff's Exhibit # 1 either with or without the attorney-in-fact designation.

XXIII.

Billee Haueter did not expressly or by implication authorize or consent to listing the apartment house in question for sale through plaintiff prior to October 3, 1982, when Roy Haueter signed the Exclusive Listing Contract with plaintiff (plaintiff's Exhibit 1).

XXIV.

Billee Haueter did not, by her acts and conduct, subsequent to October 3, 1982, sanction or ratify the Exclusive Listing Contract signed by plaintiff and Roy Haueter (plaintiff's Exhibit 1).

A. Did Mrs. Haueter authorize Mr. Haueter to list the property with Mr. Klaas?

Authorization occurs when one spouse, prior to initiation of a transaction, indicates a willingness to allow the other to enter into a transaction. Nichols Hills Bank v. McCool, 104 Wash.2d 78, 83, 701 P.2d 1114 (1985). Authorization to purchase community real property may be found from conduct disclosing knowledge and approval of the transaction, the subject property and the financial impact on the community. Daily v. Warren, 16 Wash.App. 726, 731, 558 P.2d 1374, review denied, 88 Wash.2d 1017 (1977). In Daily, at 731, 558 P.2d 1374, the nonsigning spouse, Mrs. Warren, was found to have joined in the purchase of a tavern when:

(1) Mrs. Warren knew her husband was interested in purchasing the tavern; (2) she inspected the tavern with an eye to exercising her right to approve or disapprove, as she had done in the past; (3) she expressed approval to Mr. Warren after she had seen the tavern; (4) she permitted Mr. Warren to proceed without her in further negotiations for its purchase; (5) she knew of and approved the use of community funds for the original money deposit; (6) she knew Mr. Warren had actually signed a new agreement to purchase for $200,000 or more and believed he had put an additional $30,000 of community funds into a partial down payment and had agreed to pay a substantial additional sum in January; (7) she knew she had been listed as a "partner" on liquor license applications; (8) she knew of the arrangement under which the two men started working at the tavern, and (9) she acknowledged the purchase would have been consummated had Jessiman not become ill.

Finding of fact 22 states Mrs. Haueter did not know of the listing agreement; finding of fact 23 states Mrs. Haueter did not authorize the listing of the property with Mr. Klaas. These findings are supported by substantial evidence in the form of Mr. and Mrs. Haueter's testimony at trial, thus they will not be disturbed on appeal. Group Health Coop. of Puget Sound, Inc. v. Department of Rev., 106 Wash.2d 391, 397, 722 P.2d 787 (1986); Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 575, 343 P.2d 183 (1959). ³ Mr. Haueter stated he never discussed the Klaas listing agreement with Mrs. Haueter. Mrs. Haueter also denies Mr. Haueter ever discussed it with her and asserts she had no knowledge of the listing agreement until she was sued. Substantial evidence supports the trial court's finding that Mrs. Haueter did not expressly authorize the Klaas listing agreement.

Here, Mr. Klaas argues for a broader interpretation of authorization. He argues Mrs. Haueter's authorization to Mr. Haueter to sell the...