Rahmberg v. McLean, 16708
| Decision Date | 22 September 1982 |
| Docket Number | No. 16708,16708 |
| Citation | 640 S.W.2d 401 |
| Parties | Gene RAHMBERG, Appellant, v. Penny McLEAN, Appellee. |
| Court | Texas Court of Appeals |
Fred R. Granberry, San Antonio, for appellant.
Robert L. Strickland, Strickland & Dailey, San Antonio, for appellee.
Before ESQUIVEL, CANTU and BASKIN, JJ.
This is a suit under the Real Estate License Act, Tex.Rev.Civ.Stat.Ann. art. 6573a, Sec. 1 et seq. (Vernon 1982). The sole question for determination is whether a real estate salesman, who was duly licensed when she commenced real estate services which resulted in a sale but who had allowed her real estate license to lapse by nonpayment of dues at the time of execution of the earnest money contract, is statutorily precluded from sharing in the real estate salesman's commission.
Some of the parties were dropped from the suit and the remaining parties were realigned by order of the trial court. As realigned, Penny McLean was the plaintiff, Gene Rahmberg was the defendant, and Compass Enterprises, Inc. (Compass) was named interpleader. McLean was a licensed real estate salesman who left Landmark Realty to take a position in the farm and ranch division of Compass. Subsequently she was successful in obtaining employment in the farm and ranch division of Compass for her friend Rahmberg with whom she had worked at Landmark. McLean had many contacts in the field, especially in and around Maverick County. She often worked the field to develop prospective buyers or sellers. If she found a contact which she thought might be developed into a buyer or seller, she would often contact Rahmberg, and he would in turn work to effect a sale. McLean and Rahmberg agreed that they would split equally any fees or commissions for sales, purchases, rentals, or leases resulting from their cooperative work. This agreement was known and approved by the owner of Compass. McLean and Rahmberg would equally divide between themselves 60% of the broker's fee earned by Compass, and Compass would take the remaining 40%. The jury so found an agreement to split equally the commissions.
In the particular commission at issue, McLean had obtained the original listing for the sale of the Jack Kiesling Ranch in Maverick County; and the jury so found. The jury also found that Penny McLean obtained the purchaser for the Keisling property, David Schmidt. On two occasions Keisling made offers to sell, but Schmidt declined them. Finally, by earnest money contract dated February 21, 1979, Schmidt agreed to buy and Keisling agreed to sell the subject land. One clause in the earnest money contract agreed that the Seller would pay Compass a professional service fee or commission of 5% of the total sales price for the sale covered by the contract in accordance with a separate written agreement between Seller and Realty World, another real estate broker, dated as of the date of that contract.
Rahmberg claims that he is entitled to receive all of salesman's commission due under the 5% commission earned by Compass. The sole ground for this position is that McLean did not have an active real estate salesman's license at the time of the execution of the earnest money contract for the sale of the Keisling ranch on February 21, 1979. McLean admits that she had no active license at that time, having overlooked sending in her check for $25.00 to renew her license for the year 1979. It is undisputed that she was properly licensed in 1977 and 1978 when the services leading to the sale were commenced and that in November of 1979 she paid her license fee so that she was once more properly licensed in 1980. Under this undisputed evidence and the findings by the jury, the trial court entered judgment in favor of McLean for $13,768.65 which was held in the registry of the court by the interpleader. The Court also found that the interpleader would be entitled to receive $17,550.00 on May 3, 1981, and $16,275.00 on May 3, 1982, and that, by virtue of the jury's verdict, Penny McLean was entitled to receive 30% of those sums when paid, less a six per cent (6%) franchise fee payable to Realty World.
Both parties agree that the courts have consistently required strict compliance with the terms of the Real Estate License Act in determining whether a salesman is entitled to receive compensation for his/her services; and in fact both parties cite us to Coastal Plains Development Corp. v. Micrea, Inc., 572 S.W.2d 285 (Tex.1978) for that proposition.
In 1959, the Real Estate License Act was amended. Prior to that time, Section 13 of the Act provided that in order for a person to maintain an action for the collection of compensation for performance of those acts enumerated in the Act, he had to allege and prove that he was a duly licensed broker or salesman at the time the cause of action arose. By amendment in 1959, that provision was omitted, and the substituted Section 19 made it necessary in order to maintain such an action to allege and prove that the person performing the brokerage services was a duly licensed broker or salesman at the time the alleged services were commenced. Section 20(a) under which this suit is brought says essentially the same thing and sets the time at which the plaintiff must allege and prove that he/she was duly licensed to be at the time the alleged services were commenced. 1
Rahmberg cites us to the case of Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419 (Tex.1954) for the proposition we have stated above, that prior to 1959, the salesman need only be licensed at the time the cause of action arose. Rahmberg argues that the 1959 amendment requiring the salesman to be licensed when the services were commenced was in addition to the earlier provision and was added to the Act in order to "strengthen" it. Appellant would have us ignore the statement in Miers that "the first maxim of equity is that it will not suffer a right to be without a remedy"; and this we may not do.
We cannot accept that interpretation of the Legislature's action. The current section 20(a) requires a person seeking to collect compensation for the performance of any of certain enumerated acts to allege and prove that he was duly licensed at the time the alleged services were commenced. Rahmberg would require allegation and proof of a license at the time the alleged services were commenced and at all times thereafter until the cause of action for recovery of the commission arose. Rahmberg would have us apply a rule contrary to the consistent holdings by our courts that Section 20(a) of art. 6573a must be strictly applied.
The applicable rule was clearly enunciated in Anderson v. Republic National Life Insurance Co., 623 S.W.2d 162, 165 (Tex.App.--Fort Worth 1981, no writ), as follows:
The service for which appellant was to be compensated was his introduction, to appellees, of a purchaser. In our opinion, appellant "commenced" that service when he performed the first act of that service, Terry v. Texas Co., 228 S.W. 1019 (Tex.Civ.App.--Fort Worth 1920, no writ). The first act was performed when appellant introduced Mr. Horne to the appellees in the fall of 1975. Section 20 of art. 6573a was then in effect.
Here appellee McLean commenced her service when she introduced Jack...
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