Wyoming Realty Co. v. Cook
| Citation | 872 P.2d 551 |
| Decision Date | 21 April 1994 |
| Docket Number | No. 93-122,93-122 |
| Parties | WYOMING REALTY COMPANY, a Wyoming corporation, and Joe Bowen, Appellants (Plaintiffs), v. Allen L. COOK and Carol A. Cook, Appellees (Defendants). |
| Court | United States State Supreme Court of Wyoming |
Frank J. Jones, Wheatland, for appellants.
Henry F. Bailey, Jr., Cheyenne, for appellees.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
The issue presented by this case is whether the public policy of this state requires a written listing for the sale of real estate by a licensed broker in order for the broker to recover a commission in an instance in which a sale of the property was completed through the efforts of the broker. The trial court ruled "Wyoming Statutes and regulations of the Wyoming Real Estate Commission clearly indicate a public policy which requires written listing and commission agreements." A summary judgment was entered denying recovery of the broker's commission. An ancillary procedural question exists as to whether genuine issues of material fact foreclose the entry of a summary judgment. We hold the trial court's interpretation of the law was erroneous, and genuine issues of material fact require a trial. The summary judgment entered by the trial court is reversed, and the case is remanded for trial.
The appellants, Wyoming Realty Company and Joe Bowen (collectively Bowen), state the issues to be:
1. Do genuine issues of material fact exist which preclude the granting of summary judgment?
2. Does the public policy of this state require written listings for the sale of real estate by licensed brokers?
As appellees, Allen L. Cook and Carol A. Cook (Cooks), state the issues similarly:
1. Was the trial court correct in determining no genuine issue of material fact existed?
2. Was the trial court correct in determining public policy requires written listings for the sale of real estate by licensed brokers?
Bowen is licensed as a real estate broker, and he is the sole shareholder of Wyoming Realty Company, a corporation which has been in the real estate business in Wheatland for the past thirty-seven years. The Cooks have resided in the Wheatland vicinity for approximately seventeen years. Allen Cook is employed by Basin Electric Power Cooperative, and he spends an additional forty hours a week in ranching and real estate operations. Bowen and the Cooks had been involved in one previous real estate transaction out of which Bowen earned a $10,000 commission from the Cooks.
On April 1, 1991, the Cooks purchased a ranch known as the Dunlop or Ark-la Ranch. Within nine months, they sold the ranch to William R. and Barbara M. Whitney (Whitneys) for $600,000. The Cooks and Bowen never executed a written listing agreement for the ranch. The Cooks knew, however, that Bowen was trying to sell the ranch by advertising and showing it to potential purchasers during the summer of 1991. Allen Cook admits he gave Bowen consent to show the property sometime during that summer. The Whitneys responded to one of Bowen's advertisements concerning the ranch. They traveled from California and inspected the property in early December, and they purchased the ranch on December 20, 1991. Allen Cook concedes Bowen found the buyers (the Whitneys) for the ranch.
At the closing on December 20, 1991, the standard five percent commission, amounting to $30,000 in this instance, was discussed. The attorney for the Cooks prepared a $20,000 promissory note for Allen Cook to sign at the closing, which reflected the balance owed to Bowen on a sales commission of $30,000. At the closing, Allen Cook had to leave early. He did not sign either the promissory note or the closing statement, which also reflected the $20,000 promissory note. On December 23, 1991, Allen Cook wrote Bowen a check for $14,540.30, reflecting "commission, Ark-la taxes & filing fees." At a later time, Allen Cook requested his attorney to revise the $20,000 promissory note so it would be contingent on the Whitneys' continued monthly payments to him and obligate him to pay the additional commission only in installments. Allen Cook refused to sign the second promissory note, as drafted by his attorney, because of a disagreement with Bowen over an unrelated, subsequent real estate transaction.
Bowen filed this action, based on a theory of quantum meruit, seeking to recover the $20,000 due on his sales commission; $3,306 for repairs that had been made at the ranch; and, in addition, damages for libel and malicious prosecution because of a complaint Cook had filed against Bowen with the Wyoming Real Estate Commission (Commission). After discovery had been completed on May 24, 1993, the district court granted a partial summary judgment sought by the Cooks, which denied recovery by Bowen of the balance of the sales commission. The district court also dismissed without prejudice the libel and malicious prosecution claim, ruling it was premature, and the court deferred disposition of the claim for repair work pending its resolution at trial. Bowen appealed the partial summary judgment entered by the district court.
The Wyoming legislature did contemplate the use of written listing agreements in enacting WYO.STAT. § 33-28-111 (1987). In subsection (a)(xx), the legislature, in establishing the disciplinary power of the Commission over licensees, included the power to discipline for:
Failing to obtain written listing agreements identifying the property and containing all terms and conditions under which the property is to be sold including the price, the commission to be paid, the signatures of all parties concerned and a definite expiration date; * * *.
This statute, as implemented by the Commission's rules and regulations, is primarily regulatory in nature.
The rules and regulations that have been promulgated also contemplate the use of written listing agreements by licensees. For example, the Commission's definition of written listing agreements is:
The term "written listing agreements" means any real estate agency employment agreement, including but not limited to buyer's brokerage agreement, seller's listing contract and property management contract.
WYOMING REAL ESTATE COMMISSION RULES AND REGULATIONS Section 3(g) (May 20, 1991).
The listing of property is referred to consistently a second time in the Commission's rules and regulations with respect to the furnishing of copies of documents:
A broker, shall at the time of signing, deliver a copy of any document to the party or parties executing the same when such instrument has been prepared by the broker or under his supervision, or is within his control, including but not limited to instruments relating to the employment of the broker, the listing of property, the consummation of a lease, purchase, sale or exchange of property, or to any other type of real estate transaction in which he participates as a broker.
WYOMING REAL ESTATE COMMISSION RULES AND REGULATIONS Section 9(a) (May 20, 1991).
Nebraska has adopted legislation that provides:
Every contract for the sale of lands between the owner thereof and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the owner of the land and the broker or agent. * * *
NEB.REV.STAT. § 36-107 (1988 Reissue).
In Kaus v. Bideaux, 709 F.2d 1221 (8th Cir.1983), the United States Court of Appeals interpreted this statute in an instance in which the written listing agreement had expired, and the parties went forward under a verbal arrangement. It affirmed an award to a broker for the balance of a sales commission. The court stated:
Defendants' primary contention is that the district court erred in concluding that Neb.Rev.Stat. § 36-107, which requires that sales agreements between real estate brokers and owners be in writing, did not bar plaintiffs from recovering the remaining balance of the commission. In reaching this conclusion, the court reasoned that this statute, an extension of the statute of frauds, see Svoboda v. DeWald, 159 Neb. 594, 68 N.W.2d 178 (1955), would not operate to...
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