Ross J. Boyert, D/b/a the Ross Group, Plaintiff-appellant, v. Laszlo N. Tauber, Defendant-appellee,andjulian D. Pars; Consolidated Financial Trust, Defendants, 973 F.2d 370 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 973 F.2d 370 (4th Cir. 1992)

Argued Oct. 1, 1991. Decided Aug. 25, 1992

Appeal from the United States District Court for the District of Maryland, at Baltimore; William M. Nickerson, District Judge.

Earl Landers Vickery, Vickery, Kilbride, Gilmore & Vickery, Houston, Tex., argued (Arnold Anderson Vickery, on brief), for plaintiff-appellant.

Roger Tehan Scully, II, Bethesda, Md., argued (William D. Quarles, Nancy A. Voisin, Venable, Baetjer, Howard & Civiletti, Washington, D.C., on brief), for defendant-appellee.

Before RUSSELL, Circuit Judge, BUTZNER, Senior Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.


In this diversity case governed by Texas law we certified to the Supreme Court of Texas the following questions:

(a) Whether the doctrine of partial performance permits a broker to maintain an action for a real estate commission where the memorandum evidencing the agreement refers to "outside brokers" but does not provide a complete listing of their names.

(b) Whether parol evidence may be admitted to identify the broker to whom a commission is owed in an action to recover a real estate commission based on a document signed by the purchaser acknowledging a debt to "outside brokers" but not providing a complete listing of their names.

The Supreme Court of Texas responded with an opinion that holds:

Neither parol evidence nor partial performance may be used to identify a broker when the reference in the writing required by the Real Estate Licensing Act, TEX.REV.CIV.STAT.ANN. art. 6573a, § 20(b) (Vernon Supp.1992), is to outside brokers. Accordingly, both certified questions are answered in the negative.

Boyert v. Tauber, 834 S.W.2d 60 (S. Ct. Tex.1992).

The opinion of the Supreme Court of Texas disposes of the issues in this case. Accordingly, the district court's grant of summary judgment in favor of Laszlo N. Tauber is affirmed.

We express to the Supreme Court of Texas our appreciation for its acceptance of our certification and its prompt decision on the certified questions.