Morrow v. Barger, 17013

• Decision Date: 29 May 1987
• Docket Number: No. 17013,17013
• Citation: 103 Nev. 247,737 P.2d 1153
• Parties: I. Claire MORROW, Appellant, v. Fay BARGER, Anne Barger, John C. Carpenter, Respondents.
• Court: Nevada Supreme Court

Page 1153

737 P.2d 1153

103 Nev. 247

I. Claire MORROW, Appellant, v. Fay BARGER, Anne Barger, John C. Carpenter, Respondents.

No. 17013.

Supreme Court of Nevada.

May 29, 1987.

Gregory D. Corn, Reno, for appellant.

A. Grant Gerber, P. Michael Marfisi, Elko, for respondents.

OPINION

PER CURIAM:

I. Claire Morrow claims she is entitled to a real estate broker's commission pursuant to a written listing agreement, an oral listing agreement or an implied listing agreement for the sale of the ranch of Fay and Anne Barger. The district court granted the Bargers' motion for summary judgment concluding as a matter of law that no employment agreement existed and that Claire Morrow was not the procuring cause of the sale.

The Facts

For several years prior to 1979, Fay Barger and Anne Barger had been attempting to sell their Nevada ranch through several different brokers. On March 7, 1979, the Bargers signed a written listing agreement with Claire Morrow, a licensed real estate broker. The 1979 agreement, which was of indefinite duration, is signed by the Bargers and states:

We authorize Bob and Claire Morrow of Ruby Mountain Real Estate to sell the ranch at the terms listed above and if a sale is closed to any buyer registered with us in writing, we will pay Ruby Mountain Real Estate a brokerage fee of 5% of the sale price at close of escrow.

Between the spring of 1979 and the spring of 1981, Robert ("Bob") Morrow, salesman, agent, and husband of Claire Morrow, contacted John Carpenter, Max Spratling, and Burke Peterson. Bob Morrow gave Spratling some maps of the Barger ranch, explained the grazing rights and showed him most of the ranch including the cattle. Bob Morrow informed Carpenter of Spratling's interest and provided Carpenter with a copy of the Morrows' investigations into the water rights, deeded acres, BLM grazing rights, AUM permits, farm machinery, irrigation and equipment relating to the Barger ranch. Claire Morrow registered Peterson, Carpenter, and Spratling as buyers with the Bargers under the 1979 written listing agreement. An offer, allegedly from Peterson and Spratling, was prepared by Claire Morrow but never signed by any party nor accepted by the Bargers.

On December 5, 1980, the Morrows and the Bargers executed another listing agreement. This listing expired on April 15, 1981; a sixty-day grace period ended on June 15, 1981. No offers were presented to the Bargers as a result of the 1980 listing agreement.

When the 1980 listing expired, the Bargers declined to execute another written listing agreement with the Morrows. The Morrows claim that Fay Barger orally asked them to continue their efforts to sell the ranch. The Bargers decided to farm the property that summer of 1981. When Bob Morrow contacted the Bargers again in October of 1981, Fay Barger indicated that he was working on a deal to sell the ranch with Carpenter. After this point in time, the Morrows claim that they were excluded from the deal.

On March 5, 1982, the Bargers sold their ranch in a complex series of transactions which involved eight conveyances. The parties to the transaction involved, at different stages, Peterson, Spratling, Carpenter, and Kennecott Copper Corporation of Utah. Kennecott traded the interest it acquired in the Barger ranch to the Spratlings for land owned by them in Utah. Claire Morrow asserts that the sale reflects the transaction which she and Bob Morrow helped promote between the Bargers and Carpenter, Peterson and Spratling.

Discussion

NRCP 56(c) provides that summary judgment shall be rendered if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." On appeal, all evidence favorable to plaintiff must be accepted as true. Crockett v. Sahara Realty Corp., 95 Nev. 197, 591 P.2d 1135 (1979).

Before a real estate agent is entitled to a commission, the real estate agent must prove (1) that an employment contract existed and (2) that he or she is the procuring cause of the sale. Shell Oil Company v. Ed Hoppe Realty, Inc., 91 Nev. 576, 580, 540 P.2d 107, 109-10 (1975). Claire Morrow makes three alternative claims that an employment agreement did exist at the time of the sale of the Barger ranch. She claims an employment agreement existed in the form of a written listing agreement, oral listing agreement, or implied listing agreement.

The district court found that the 1979 written listing agreement did not create a valid "exclusive" listing agreement pursuant to NRS 645.320 because that contract did not contain a termination date. ¹ The district court did not address the validity of the 1979 written listing agreement as a "non-exclusive" listing agreement. ² Claire Morrow argued in her opposition to summary judgment that the 1979 listing agreement could be an enforceable contract if viewed as a "non-exclusive" listing agreement.

The testimony in the depositions supports a conclusion that the 1979 listing agreement was not intended to be an "exclusive" listing agreement. Fay Barger claims he only entered into open listing agreements with the myriad of brokers who tried to sell the Barger ranch. Claire Morrow's description of the 1979 written listing agreement reveals that she did not intend the 1979 written listing agreement to be "exclusive." Claire Morrow believed that if she registered a buyer under the 1979 listing agreement and continued to work with that buyer, she would receive a commission for those buyers. She believed that this arrangement existed until either she or the Bargers canceled the agreement. Claire Morrow did not state that she believed that she was the only agent who could sell the property.

Claire Morrow's position is that the 1980 written listing agreement did not supercede the 1979 written listing agreement. Claire Morrow asserts that the 1980 written listing agreement was executed in order to pin down the Bargers to a lower price for any newly registered buyers which she submitted during the period from December 5, 1980 until April 15, 1981. She claims that the 1979 written listing agreement was not terminated by either party. Whether the 1979 listing agreement was terminated by the 1980 listing agreement is a question of fact.

Claire asserts that the 1979 written listing agreement was enforceable in March 1982, when the ranch was sold. When the 1980 written listing agreement ended and the Bargers declined to enter into another written listing agreement, Claire claims that the Bargers orally encouraged the Morrows to continue pursuing the sale of the ranch. The meaning and significance of this alleged oral arrangement upon the 1979 listing agreement is a question of fact.

If the evidence in favor of the Morrows is viewed as true, then a genuine issue of material fact exists as to whether the 1979 written listing agreement was in effect at the time of the 1982 sale. Nonetheless, the 1979 written listing agreement would be binding only if the terms of the ultimate sale of the ranch in March of 1984 fall within the terms articulated in the 1979 written listing agreement.

Claire Morrow raises an alternative claim for recovery pursuant to an oral employment agreement. The district court found that no contract of employment existed as the result of oral promises made to the Morrows by the Bargers after the expiration of the 1980 listing agreement in April 1981. ³ Claire Morrow stated at her deposition and in an affidavit that after the 1980 written listing agreement expired, the employment relationship went to an open oral listing agreement. Claire Morrow asserts that Fay Barger represented to the Morrows that they should continue working on the sale of the ranch. Claire Morrow asserts that Fay Barger assured the Morrows that their "interest would be protected."

The district court appears to have erred by finding that there was no oral listing agreement subsequent to April 15, 1981. This error, however, is harmless since Claire's contacts with Peterson, Spratling, and Carpenter occurred from the spring of 1979 until March of 1981. No significant efforts were expended by the Morrows pursuant to any oral contract subsequent to April 15, 1981.

Finally, Claire Morrow asserts that an employment relationship existed by virtue of an implied open listing agreement. If the broker procures a purchaser willing to pay a lower price than the terms of the listing agreement, the seller cannot deprive the broker of his or her commission by conducting the final negotiations and selling at that lower figure to the purchaser procured by the broker. Humphrey v. Knobel, 78 Nev. 137, 141, 369 P.2d 872, 874 (1962) (seller sold property fourteen days after listing agreement expired).

A promise to pay the reasonable value of services may be implied, and a real estate agent may recover under the theory of quantum meruit, unless the parties have executed an exclusive listing agreement which is invalid under NRS 645.320. Bangle v. Holland Realty Investment Company, 80 Nev. 331, 335-36, 393 P.2d 138, 140 (1964); see Shell Oil, 91 Nev. 576, 540 P.2d 107 (seller took benefits of broker's efforts and sold property directly to buyer). A broker who produces a ready, willing and able buyer will be entitled to a commission in the amount of the reasonable value of services rendered on consummation of the sale even when there is no express agreement as to amount. Campbell-Leonard Realtors v. El Matador Apartment Company, 220 Kan. 659, 556 P.2d 459, 463 (1976). The vendor cannot benefit by his own attempt to exclude a broker. See Humphrey, 78 Nev. 137, 369 P.2d 872; Close v. Redelius, 67 Nev. 158, 215 P.2d 659 (1950).

The district court erred by concluding that, as a matter of law, Claire Morrow did not state a claim for recovery pursuant to an implied listing agreement.

Claire Morrow presented evidence,...