Stuart v. Coldwell Banker & Co., 16867

• Decision Date: 02 June 1977
• Docket Number: No. 16867,16867
• Citation: 552 S.W.2d 904
• Parties: Robert C. STUART, Appellant, v. COLDWELL BANKER & COMPANY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 904

552 S.W.2d 904

Robert C. STUART, Appellant, v. COLDWELL BANKER & COMPANY, Appellee.

No. 16867.

Court of Civil Appeals of Texas, Houston (1st Dist.).

June 2, 1977.

Rehearing Denied June 30, 1977.

Philip C. Koelsch, Robbins & Crowder, Winston P. Crowder, Houston, for appellant.

Roger R. Wright, Jr., Houston, for appellee; Woodard, Hall, McCrory, Henry & Primm, Houston, of counsel.

EVANS, Justice.

This is an action to recover a real estate commission on the lease of certain property belonging to the appellant. After a nonjury trial, judgment was entered in favor of the appellee for the sum of $33,378.50, the amount of its claimed commission, and for an additional sum of $5,000.00, which was awarded to the appellee as attorney's fees. The trial court's judgment will be affirmed.

An amended brief was filed by the appellant, just prior to oral submission, in which his points of error were increased from seven to twenty-three, and which, for the first time, sets forth his contentions that the evidence is factually insufficient to support the trial court's judgment. The appellee opposes the filing of this amended brief.

In order to effectuate the cause of justice, an appellate court has the authority to permit an appellant to file an amended brief and to include therein additional points of error, either prior to or after submission, upon such reasonable terms as it may prescribe. Rules 422, 429 and 431, T.R.C.P. Warren Independent School Dist. v. Southern Neches Corp., 405 S.W.2d 100, 104 (Tex.Civ.App. Beaumont 1965, writ ref'd n.r.e.), 404 S.W.2d 809 (1966). However, litigants are entitled to an expeditious determination of their appeal, and the rules should be given an interpretation which will further, and not impede, the orderly disposition of the cause. King v. Cron, 285 S.W.2d 833, 834 (Tex.Civ.App. San Antonio 1955, writ ref'd n.r.e.), cert. denied, 352 U.S. 843, 77 S.Ct. 67, 1 L.Ed.2d 59 (1956).

As appellee correctly points out in its opposition to the filing of the amended brief, the additional points of error included in the amended brief do not raise new assignments which substantially change the contentions advanced by the appellant in his original brief. Thus, this court can perceive no harm, prejudice or delay which will result from the filing of the amended brief, and leave to file is granted.

On January 12, 1973 the appellant, Robert C. Stuart, and a third party, Lister Properties Company, executed a lease option agreement which provided that in consideration of the sum of $11,000 paid to the appellant, Lister Properties Company was granted an exclusive option to lease, for a 51 year term, a tract of eight acres to be surveyed out of a larger tract of land belonging to the appellant. The agreement provided that the option was subject to being exercised by Lister Properties Company within a period of 11 months following the date of the agreement.

On the same day, January 12, 1973, but at a later hour, the appellant executed and delivered to the appellee the following commission agreement which constitutes the basis for this suit:

"January 12, 1973

Mr. J. Michael Boyd

COLDWELL, BANKER AND COMPANY

3700 Buffalo Speedway

Houston, Texas 77006

Dear Mr. Boyd:

As consideration for your services in securing Lister Properties, Inc., to lease my property at Bellfort and Telephone Road in Houston, Texas, I agree to pay Coldwell, Banker and Company as a real estate commission Thirty-Five Thousand One Hundred Twenty-Eight and 80/100 Dollars ($35,128.80) which is 1.640% of the total guaranteed annual rental provided for in the lease document. This sum is to be payable over a period of eighteen (18) months at One Thousand Seven Hundred Fifty and No/100 Dollars ($1,750.00) per month, which is to be paid out of the money received from Lister Properties. At the end of the 18-month period, the balance remaining will be paid in one payment. Any part or all of this sum may be prepaid at any time at my option.

It is understood and agreed that this commission is payable only if Lister Properties, Inc., executes the option to lease my property. The 18-month payout period will begin on the date Lister Properties exercises its option.

Sincerely,

/s/ Robert C. Stuart

Robert C. Stuart

2510 Inwood Drive

Houston, Texas 77019

Subsequently, on November 1, 1973, Lister Properties Company exercised the lease option agreement and assumed possession of the property under the lease. The appellee thereafter brought this action to recover its real estate commission.

The trial court found, among other facts, that the appellant had been introduced to the president of Lister Properties Company by the appellee's employees; that following such introduction, such employees negotiated and performed services for the appellant, at his request, which led to the execution of the lease option agreement, and thereafter continued to perform services for and at the request of appellant; and that after the exercise of the option by Lister Properties on November 1, 1973, appellant paid the appellee the amount representing the first monthly installment provided in the commission agreement, but had paid no additional monies thereunder. It further found that Lister Properties Company had constructed a retail shopping center on a portion of the property covered by the lease option agreement and had regularly paid the appellant the monthly rentals provided by the lease option agreement, which the appellant had accepted under protest. The court concluded (a) that the commission agreement constituted a clear and unequivocable promise by the appellant to pay the real estate commission to the appellee; (b) that such agreement, when considered with the lease option agreement, sufficiently described the land so that it could be located on the ground; (c) that the appellee had been the procuring cause of the agreement between the appellant and Lister Properties Company; and (d) that appellee was entitled to the amount of its claimed commission and attorney's fees.

The first contention advanced by the appellant is that his written promise to pay the real estate commission to the appellee is unenforceable because that writing was not executed until after the time he executed the lease option agreement with Lister Properties Company. The appellant also contends that the agreement is invalid in that it does not sufficiently identify the prospective lessee.

Article 6573a § 20(b) Tex.Rev.Civ.Stat.Ann. (Supp.1976-1977) provides as follows:

"An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by him to sign it."

The appellee was required to plead and prove that its claim for a commission was based upon an instrument in writing within the contemplation of this statute. Tobin v. J. D. Blanton Constr. Co., 392 S.W.2d 881, 883 (Tex.Civ.App. Texarkana 1965, writ ref'd n.r.e.). However it was not required to prove that such writing was in existence at the time it first rendered services on appellant's behalf, nor that such writing predated the agreement between the appellant and the prospective lessee. 12 Am.Jur.2d, Brokers § 51, p. 811; Bridwell v. Sandefur, 341 S.W.2d 710 (Tex.Civ.App. Waco 1960, writ dism'd); Maloney v. Strain, 410 S.W.2d 650 (Tex.Civ.App. Eastland 1966, no writ). The language relied upon by the appellant in Tobin, supra, to the effect that a writing need be in effect prior to the sale or lease, is dictum insofar as it pertains to the case at bar, and that decision does not constitute authority for the proposition advanced by appellant.

The lease option agreement and the commission agreement were both executed by the appellant on the same date and as part of an integrated transaction involving the prospective leasing of appellant's land.

In the commission agreement the appellant agreed to pay a commission to the appellee in consideration for its services in securing "Lister Properties, Inc." to lease "my property at Bellfort and Telephone Road in Houston, Texas" as provided in the "lease...