Marotta v. Iroquois Realty Co.

• Citation: 412 N.E.2d 797
• Decision Date: 24 November 1980
• Docket Number: No. 3-280A51,3-280A51
• Parties: Thomas J. MAROTTA, Appellant (Defendant Below), v. IROQUOIS REALTY COMPANY, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 797

412 N.E.2d 797

Thomas J. MAROTTA, Appellant (Defendant Below), v. IROQUOIS REALTY COMPANY, Appellee (Plaintiff Below).

No. 3-280A51.

Court of Appeals of Indiana, Third District.

Nov. 24, 1980.

Lea Anne Bernstein, Zionsville, for appellant.

HOFFMAN, Judge.

This is an appeal by defendant-appellant Thomas J. Marotta from a judgment entered in favor of plaintiff-appellee Iroquois Realty Company, enforcing payment of a commission allegedly due under an agreement to sell real estate. Marotta raises the following issues for review:

(1) whether the judgment is contrary to law because Iroquois failed to comply with IC 1971, 25-34-1-9 (Burns Code Ed.);

(2) whether the trial court erred in excepting a condition contained in the purchase agreement;

(3) whether the amended judgment is erroneous; and

(4) whether the trial court failed to consider the intent of the parties.

Marotta contends that the judgment is contrary to law insofar as Iroquois failed to comply with IC 1971, 25-34-1-9 (Burns Code Ed.). ¹ That statute provides as follows:

"In all actions for the collection of a commission or other compensation for the sale of real estate and filed in the courts of this state after October 1, 1949, it shall be alleged and proved therein that at the time the cause of action arose the party seeking relief was a duly licensed real estate broker or real estate salesman of the state of Indiana."

The argument advanced is that Iroquois introduced no evidence at trial to indicate it was a duly licensed real estate broker. This contention is unavailing.

It appears from the record that Marotta admitted Iroquois was a duly licensed broker, both in his responsive pleading and in the pretrial order. His answer reads in relevant part as follows:

"1. That the Defendant admits to entering into an agreement between the Defendant and John and Elberta (sic) Choate dated May 17, 1975, with Iroquois Realty Co. acting as agent and licensed sales broker."

The pretrial order provides in part:

"The Defendant, THOMAS J. MARATTA (sic), admits that an agreement was entered into between himself and JOHN and ALBERTA CHOATE, on May 17, 1975, with the Plaintiff acting as agent and licensed sales broker, but alleges that he is without information as to whether or not said agreement was valid or binding at its execution or thirty (30) days after its acceptance by the Defendant and denies that he is indebted to the Plaintiff.

"G. The contested issues of fact are:

1. The indebtedness of the Defendant to the Plaintiff.

2. Whether the conduct of the Defendant was malicious and guilty of wanton disregard of the rights of the Plaintiff.

3. The validity of the Choate purchase agreement.

4. Whether or not the Plaintiff performed the services required under the Choate purchase agreement.

5. The indebtedness of the Plaintiff to the Defendant.

6. Whether or not the Plaintiff performed the services required under the Davis purchase agreement.

7. Whether or not the Plaintiff used fraud and false pretenses to obtain moneys from the Defendant.

8. The extent of damages of the Plaintiff and Defendant, if any."

A pretrial order stipulation is conclusive upon the parties and the judicial tribunal unless it is withdrawn, amended or supplemented as provided by Ind.Rules of Procedure, Trial Rule 15(B) and Trial Rule 16(I-J). Wynder v. Lonergan (1972), 153 Ind.App. 92, 286 N.E.2d 413. Moreover, a pretrial order delineating the issues of the case supplants the allegations raised in the pleadings and controls all subsequent proceedings in the case. Thus the issues become those found by the trial court's pretrial order. City of Hammond, Lake County v. Drangemeister (1977), Ind.App., 364 N.E.2d 157.

Obviously the matter of compliance with IC 1971, 25-34-1-9 was not a triable issue. There is nothing in the record to indicate that Marotta withdrew his admission in the pretrial order or that the order was modified to reflect a factual controversy over Iroquois's status as a licensed broker.

To counter this conclusion Marotta maintains that compliance with IC 1971, 25-34-1-9 is not a proper subject for admissions or waiver since it involves the capacity to sue. ² Analysis of decisions from other jurisdictions fails to support that position. Albers v. Fitschen (1966) 274 Minn. 375, 143 N.W.2d 841 involved an action to enforce payment of a broker's commission for the sale of real estate. In response to defendant's contention that the judgment should be vacated because plaintiff's complaint failed to allege, as required by statute, that he was a licensed real estate broker, the court noted:

"There is not a great deal of authority bearing on the effect of the failure to allege a statutory condition precedent in a complaint for recovery of damages. It is necessary to consider whether such a condition relates to the right to the commission as distinguished from the remedy to enforce payment of it. The case before us is to be distinguished from those actions brought against a municipality where the right to bring such actions is statutory in its origin and the necessity for filing a claim in substantial compliance with the statute is made a condition precedent to the commencement of the action. It is important to note in this case that the plaintiff's claim is not statutory but rests upon the common-law right to recover for his services pursuant to an agreement. The provision of § 82.16 does not deprive the plaintiff of any contractual right which may have grown out of the transaction. The provision requiring the allegation and proof of the existence of a license is more in the nature of a statute of limitations, which creates a defense which might be waived by a defendant who fails to assert it. It is established that a defendant, by answering to the merits and going to trial without in any manner attempting to avail himself of a statute of limitations, waives such defense, although it appears on the face of the complaint that the statute has run. Schmitt v. Hager, 88 Minn. 413, 93 N.W. 110; Hardwick v. Ickler, 71 Minn. 25, 73 N.W. 519; Board of County Commrs. of Itasca County v. Miller, 101 Minn. 294, 112 N.W. 276; 11 Dunnell, Dig. (3 ed.) § 5661. The same rule applies here. We conclude that Minn.St. 82.16 is remedial; it regulates or limits the enforcement of a right and provides a defense which may be waived." 143 N.W.2d at 843.

As against the allegation that plaintiff failed to show it was a licensed real estate broker under a similar statute, that being an essential element of proof for recovery of a commission, the court in White v. Watson Enterprises, Inc. (1973) 129 Ga.App. 203, 199 S.E.2d 357, overruled on other grounds Mock v. Canterbury Rlty. Co. (1980) 152 Ga.App. 872, 264 S.E.2d 489, opined:

"That proof, however, was waived by defendants when, in their answer, they admitted that they would owe the $888 real estate commission fee upon closing the sale of the property. The affidavits filed in support and in opposition to the motion for summary judgment show that the sale was in fact consumated. Thus, by this conditional admission in its answer and the undisputed fact of the subsequent closing of the sale, the defendants have admitted that plaintiff was entitled to the real estate sales commission and impliedly admitted plaintiff was a licensed broker or salesman." 199 S.E.2d at 359.

And in Sonnenblick-Goldman of Miami Corp. v. Feldman (1972) Fla.App., 266 So.2d 48 there appears the following language:

"An examination of the record reveals that the New York corporation did not raise the affirmative defense of illegality in connection with appellee's lack of a brokerage license. Rule 1.110(d), R.C.P., F.S.A. See Tiseo v. Arnold, Fla.App.1970, 237 So.2d 21. Furthermore, since the broker's license issue was not raised at the pre-trial conference, the trial court properly excluded evidence on this issue at trial. See Vaughn v. Smith, Fla.1957, 96 So.2d 143." 266 So.2d at 50.

Cf. Albert-Hopkins Corp. v. Caputo (1970) 357 Mass. 765, 258 N.E.2d 70 (by general denial in an action to recover a broker's commission, defendants made it incumbent upon plaintiff, which alleged in its complaint that it was a duly licensed real estate broker, to prove compliance with the licensing statute).

Marotta next urges that the trial court erred in excepting a condition contained in the purchase agreement between himself and the Choates. The challenged finding reads as follows:

"The Court finds that the said purchase agreement is a valid contract, complete on its face, excepting for one item, that is to say, that 'No more than 30 days after the acceptance of this purchase agreement shall be allowed for obtaining...