White v. Fox

• Decision Date: 09 June 1983
• Docket Number: No. 17653,17653
• Citation: 665 P.2d 1297
• Parties: Parley WHITE dba Parley White Realty Company and Mount Olympus Realty, Inc., Plaintiffs, Respondents and Cross-Appellants, v. Arlen FOX and Janyce B. Fox, his wife, Defendants, Appellants and Cross- Respondents.
• Court: Utah Supreme Court

Page 1297

665 P.2d 1297

Parley WHITE dba Parley White Realty Company and Mount Olympus Realty, Inc., Plaintiffs, Respondents and Cross-Appellants, v. Arlen FOX and Janyce B. Fox, his wife, Defendants Appellants and Cross- Respondents.

No. 17653.

Supreme Court of Utah.

June 9, 1983.

Anthony M. Thurber, Salt Lake City, for defendants, appellants and cross-respondents.

Scott W. Cameron, Salt Lake City, for plaintiffs, respondents and cross-appellants.

DURHAM, Justice:

This is an action by the respondents Parley White Realty Company and Mount Olympus Realty Company for real estate commissions allegedly due and owing from the appellant Arlen Fox. The case was tried before a jury, which found that the respondents had waived their rights to the real estate commission under the listing agreement. We affirm.

Mr. Fox has been a builder and developer of residential property in the Salt Lake City area for approximately 25 years. During that time, he has had numerous dealings with many of the real estate brokers in the area, including the respondents. On January 2, 1976, Mr. Fox executed a six-month exclusive listing agreement with Mount Olympus Realty regarding his property in Sandy, Utah. Rex Gardner was the listing agent in that agreement.

In late January or early February of 1976, Phyllis Scott, a real estate agent for Parley White Realty, and Mr. Gardner showed Mr. Fox's property to Ronald Dee and his family. Because Mr. Fox was not home and because Mr. Gardner did not have the correct key to gain access to Mr. Fox's home, Ms. Scott and Mr. Dee returned a few days later to examine the interior of the house. Several days thereafter, Ms. Scott telephoned Mr. Dee to inquire about his interest in purchasing Mr. Fox's property. Mr. Dee stated that the asking price was too high. A few weeks later, Ms. Scott again telephoned Mr. Dee, who informed her that he just couldn't afford the price. Mr. Dee testified at trial that Ms. Scott stated at this time: "Well, why don't you and Arlen get together and make your own deal on it then." During this same time period, Ms. Scott had discussed with Mr. Fox the possibility of selling the property to, or exchanging properties with, Mr. Dee. Mr. Fox informed Ms. Scott that, if he were to trade properties with Mr. Dee, there would not be any room for payment of a commission pursuant to the listing agreement. According to Mr. Fox's testimony, Ms. Scott told him that if he could get together with the Dees, who were friends of hers, and make a trade on their own, to "go ahead and do it."

Subsequent to these conversations, Mr. Dee contacted Mr. Fox to discuss the possibility of exchanging properties. In May of 1976, Mr. Fox went to the offices of Mount Olympus Realty to discuss with Mr. Gardner the statements made by Ms. Scott. Upon his arrival, Mr. Fox ran into Mr. Prothero, the real estate broker for Mount Olympus Realty, who informed Mr. Fox that Mr. Gardner was not in the office. Mr. Fox informed Mr. Prothero of the situation, namely, that if properties were to be exchanged there would not be any room for payment of a commission. Mr. Prothero responded by stating that Mr. Fox "had to do whatever he had to do to make the deal."

On May 25, 1976, as a result of these conversations, Mr. Fox and Mr. Dee executed an Earnest Money Receipt and Offer to Purchase Agreement which provided for the exchanging of Mr. Fox's property located in Sandy, Utah, for Mr. Dee's property located in Riverton, Utah. On July 9, 1976, one week after the listing had expired but within the listing period, Mr. Fox and Mr. Dee exchanged their respective properties. In August of 1976, Ms. Scott learned that Mr. Fox and Mr. Dee had exchanged properties. On September 21, 1976, over six months since the last contact between Ms. Scott and Mr. Fox or Mr. Dee, Ms. Scott sent a letter to Mr. Fox, and a copy to Mr. Dee. In that letter, Ms. Scott indicated for the first time that she felt that she was entitled to a commission. In an effort to resolve the dispute, Mr. Fox, Mr. Dee, Ms. Scott, Mr. White and Mr. Gardner held a meeting at a restaurant near the office of Parley White Realty, but were unable to reach an agreement.

On April 12, 1977, after failing to resolve the dispute, the respondents filed suit against Mr. Fox and Mr. Dee to collect the real estate commission allegedly due under the listing agreement. At trial, the parties stipulated that the respondents were entitled to a real estate commission under the terms of the listing agreement, unless they had waived their rights to that commission. After a jury trial, the jury returned a Special Verdict in which they specifically found that the respondents had waived their rights to a commission under the listing agreement. Both parties appeal that verdict.

On appeal, Mr. Fox argues that the trial court erred in failing to award him attorney's fees. On cross-appeal, the respondents advance several points of error, which raise the following issues: (1) Did the trial court err in denying the respondents' motion for a directed verdict on the grounds that the evidence was insufficient to allow the question of waiver to go to the jury? (2) Was the evidence insufficient to support a finding of waiver? (3) Did the trial court err in instructing the jury that the burden of proof regarding waiver is by a preponderance of the evidence rather than by clear and convincing evidence? (4) Did the trial court err in instructing the jury on the issue of waiver on the grounds that any modification or waiver of a contract that is within the statute of frauds must also comply with the statute of frauds? (5) Did the trial court err in instructing the jury that a real estate agent can waive the commission of his/her broker? We address these issues in the above order.

With respect to Mr. Fox's point of error regarding the trial court's failure to award him attorney's fees, this Court has espoused the principle that:

Utah adheres to the well-established rule that attorney's fees generally cannot be recovered unless provided for by statute or by contract.

Turtle Management, Inc. v. Haggis Management, Inc., Utah, 645 P.2d 667, 671

(1982) (citation omitted). See also Devore v. Bostrom, Utah, 632 P.2d 832 (1981); Mecham v. Benson, Utah, 590 P.2d 304 (1979). Mr. Fox has failed to cite, and our research has failed to reveal, any statutory provision which would permit the awarding of attorney's fees to Mr. Fox. With respect to contractual provisions, however, the listing agreement provides that:

In case of the employment of an attorney to enforce any of the terms of this agreement, I [Mr. Fox] agree to pay a reasonable attorney's fee and all costs of collection.

This contract provides that only the real estate broker may recover attorney's fees in the event of default, but contains no similar provision in favor of Mr. Fox.

Mr. Fox urges this Court to adopt an exception to the above-quoted rule to provide for reciprocal application of one-sided attorney's fees provisions. In support of his argument, Mr. Fox cites a California and an Oregon statute. See Cal.Civ.Code § 1717 (West Supp.1983); Or.Rev.Stat. §§ 20.096 & 20.097 (1981). Utah, however, does not have a similar statute and we are not inclined to create one by judicial fiat. Mr. Fox also urges this Court to create an exception to the above-quoted rule pursuant to the doctrines of contract of adhesion and unconscionability. If in fact the present case did involve a contract of adhesion, the exception that Mr. Fox urges might merit consideration. However, this is not a case involving persons in unequal bargaining positions. Mr. Fox has been a real estate developer in the Salt Lake City area for approximately 25 years. During that time, he has dealt with numerous real estate brokers, including the respondents. By his own testimony, Mr. Fox has stated that, of the thousands of properties he has listed, he has frequently required that the broker modify the listing contract as a condition of obtaining the listing. Because the present case involves persons of relatively equal bargaining power and does not involve a flagrantly unjust provision or agreement, the doctrines regarding contracts of adhesion and unconscionability are inapplicable. See, e.g., Bekins Bar V Ranch v. Huth, Utah, 664 P.2d 455 (1983). See generally, e.g., J. Calamari & J. Perillo, The Law of Contracts § 1-3 at 6 & § 9-44 at 336-43 (2d ed. 1977). Thus, the trial court did not err in failing to award attorney's fees to Mr. Fox.

In their first issue, the respondents claim that the trial court erred in denying their motion for a directed verdict. With respect to directed verdicts, this Court has recently stated that:

In directing a verdict the trial court may not weigh the evidence. Rather, the court must consider the evidence in the light most favorable to the party against whom the motion is directed and resolve controverted facts in his favor. If the evidence and its inferences would cause reasonable men to arrive at different conclusions as to whether the essential facts were or were...