Nystrom v. First Nat. Bank of Fresno

• Decision Date: 08 June 1978
• Court: California Court of Appeals Court of Appeals
• Parties: Larry C. NYSTROM, Plaintiff and Appellant, v. FIRST NATIONAL BANK OF FRESNO, a National Banking Corporation, Defendant and Respondent. Civ. 3192.

Page 711

146 Cal.Rptr. 711

81 Cal.App.3d 759

Larry C. NYSTROM, Plaintiff and Appellant, v. FIRST NATIONAL BANK OF FRESNO, a National Banking Corporation, Defendant and Respondent.

Civ. 3192.

Court of Appeal, Fifth District, California.

June 8, 1978.

[81 Cal.App.3d 761] Richardson & Gaskill and Vincent J. McGraw, Fresno, for plaintiff and appellant.

McCormick, Barstow, Sheppard, Coyle & Wayte and James H. Perkins, Fresno, for defendant and respondent.

OPINION

NAIRN, ^* Associate Justice.

STATEMENT OF THE CASE

This is an appeal by the plaintiff from a summary judgment granted to the defendant in an action for damages for breach of contract. Both sides moved for summary judgment promptly after the case was at issue. Both agreed that the legality or illegality of the letter agreement (see Appendix A, post, at p. 715) was a matter of law and not of fact. The trial court granted defendant's motion for summary judgment, ruling that the agreement sued on was illegal and unenforceable. Plaintiff's appeal followed.

The record on appeal consists of a clerk's transcript and a reporter's transcript of the hearing of the motions for summary judgment.

The notice of appeal specifies that the appeal is "from the Order (on Motion and Counter-Motion for Summary Judgment) entered by the court on September 30, 1976. . . ." The order referred to is a formal order granting defendant's motion for summary judgment and denying plaintiff's motion for summary judgment, but it includes the following sentence which may serve to give it the status of a judgment:

"Defendant shall have Judgment against Plaintiff as prayed together with its costs of suit."

An order granting a motion for summary judgment is a nonappealable preliminary order. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 59, pp. 4074-4075.) A summary judgment itself is of course appealable. (Code Civ. Proc., § 437c.) It does not appeal that any judgment other than the order dated September 30, 1976, has been entered. The case is similar in this respect to California State Employees' Assn. v. State of California (1973) 32 Cal.App.3d 103, 108 Cal.Rptr. 60, where the court set matters straight in a preliminary footnote as follows:

"No judgment of dismissal was ever entered on the demurrers interposed by the defendants . . . . The appeal of these defendants is from the orders sustaining the demurrers without leave to amend. Such orders, of course, are nonappealable. (Citation.) However, neither party has raised the point. In fact, both parties have acted as though the appeal were perfectly proper. In the interests of justice and to prevent unnecessary delay, we will deem the orders to incorporate judgments of dismissal and will interpret petitioners' notice of appeal as applying to the dismissal. Accordingly, the orders sustaining the demurrers without leave to amend are modified by adding thereto a paragraph to each order dismissing the actions. (Citations, including 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 336 and 337, pp. 4313-4316.)" (California State Employees' Assn. v. State of California, supra, 32 Cal.App.3d at p. 106, fn. 1, 108 Cal.Rptr. at p. 62.)

In accordance with the above authority and in the interests of judicial economy, we treat the trial court's order entered September 30, 1976, as a judgment.

An order denying a motion for summary judgment is nonappealable. (Stanton v. Andrews (1959) 170 Cal.App.2d 269, 270, 338 P.2d 529; Nevada Constructors v. Mariposa etc. Dist. (1952) 114 Cal.App.2d 816, 818, 251 P.2d 53.) Insofar as appellant has attempted here to appeal from the order denying his motion for summary judgment, the appeal will be dismissed.

STATEMENT OF THE FACTS

A loan made by respondent on a certain apartment property being in default, respondent took possession of the property and began foreclosure proceedings. Respondent then entered into a letter agreement with appellant, a real estate broker, for appellant to act on behalf of respondent "to collect rents and/or obtain renters" for the property, for a fee of 5 percent of the rents collected, "payable when the property goes to Trustee's Sale or the default is cured." The agreement further provided that if respondent obtained a deed to the property as a result of a trustee's sale, the property would be listed for sale on an exclusive listing with plaintiff at 6 percent commission "for a minimum of ninety days." ¹ According to a declaration of appellant, the letter agreement was written and signed after he had a conversation with an officer of respondent in which appellant stated that he would be willing to collect rents on behalf of respondent only if he could be assured of being the listed broker when and if respondent obtained title. Pursuant to the letter agreement, appellant "made frequent trips to the apartment building, talked to all of the tenants and made up rent schedules," and the rents he collected were remitted to respondent. Shortly after the letter agreement was signed, appellant was advised by an officer of respondent that the property was going to be "deeded back" to respondent and that appellant should find a buyer. Appellant submitted an offer for the property to respondent but it was declined, appellant being told there had been a refusal by the persons in possession of the property to deliver the promised deed. The trustee's foreclosure sale was set for August 21, 1974. Respondent obtained title to the property by deed in lieu of foreclosure on or about July 30, 1974, and subsequently sold the property and paid commission to another broker without notifying appellant there had been any change in the arrangement with him. The lawsuit followed.

ISSUES

I. Was the letter agreement between respondent and appellant illegal according to Business and Professions Code section 10176, subdivision (f), because it lacked a definite termination date?

II. Did the agreement that appellant would be given an exclusive listing of the property if respondent obtained a deed to the property "as a result of a Trustee's Sale" become inoperative when respondent acquired the property not as a result of a trustee's sale but by deed in lieu of foreclosure three weeks before the scheduled date of the trustee's sale?

DISCUSSION

I. Was the agreement illegal under Business and Professions Code section 10176, subdivision (f)?

Appellant's analysis of the letter agreement is that it is an agreement to collect rents and secure tenants for the apartments in the process of foreclosure and that as additional consideration for that contract, respondent agreed to give appellant an exclusive listing, and that the letter agreement itself was not an exclusive listing. Under such an interpretation, the starting date of the exclusive listing might be uncertain, but there was a definite termination date.

Respondent's contention is that the document itself was an exclusive listing and the termination date was, therefore, uncertain.

Section 10176 of the Business and Professions Code lists a number of acts which if committed by a real estate licensee may be grounds for suspension or revocation of his license. Subdivision (f) describes one of these forbidden acts in the following terms:

"(f) Claiming, demanding, or receiving a fee, compensation or commission under any exclusive agreement authorizing or employing a licensee to perform any acts set forth in Section 10131 for compensation or commission where such agreement does not contain a definite, specified date of final and complete termination." (Emphasis added.)

Section 10131 of the Business and Professions Code defines "real estate broker" and describes the main functions and activities of real estate brokers. Thus the effect of section 10176, subdivision (f), is to forbid a real estate broker to write an exclusive listing agreement with a property owner "where such agreement does not contain a definite, specified date of final and complete termination."

In Dale v. Palmer (1951) 106 Cal.App.2d 663, 235 P.2d 650, a real estate broker had a listing agreement with the developer of a residential subdivision which in effect gave the broker the exclusive right to sell every house in the subdivision until 30 days after the last notice of completion was filed for the development. Differences arose between the parties and the developer terminated the agreement. In the lawsuit which followed, the Court of Appeal held that the listing agreement lacked a definite, specified date of final and complete termination, contrary to section 10176, subdivision (f), and that the agreement, therefore, was illegal and unenforceable. It was not enough, the court said, that the agreement would terminate by a date which would become determinable at a later time. The trial court in the present case based its ruling squarely on the holding of Dale.

Appellant argues that a closer precedent on its facts than Dale v. Palmer, supra, 106 Cal.App.2d 663, 235 P.2d 650, is Lowe v. Loyd (1949) 93 Cal.App.2d 684, 209 P.2d 851, where an exclusive real estate listing agreement was upheld although it did not specify a termination date. The agreement there provided that it was "to continue in full force and effect for a period of 90 days from date hereof, and thereafter until revoked by me in writing, but to terminate automatically six months after end of listing period." Thus as the court saw it the agreement did indeed "contain a definite, specified date of final and complete termination" in that it would terminate no longer than 90 days plus six months from the date of the agreement.

The statute (Bus. & Prof.Code, § 10176, subd. (f)) expresses a public policy against open-ended exclusive real estate listing contracts. The Court of Appeal in Wilson v. Stearns (1954) 123 Cal.App.2d 472, 267 P.2d 59, quoted the following observation the trial judge had made in that case " 'In enacting this section (Bus. & Prof.Code, § 10176), I think the evil which the legislature had in mind was...