Bensen v. Gall
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NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
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No. 90-466
Hal Bensen Supreme Court
On Appeal from
v. Chittenden Superior Court
John D. Gall and the Estate of December Term, 1991
Arthur W. Mason
John P. Meaker, J.
Christopher D. Ekman of Heilmann, Ekman & Associates, Inc., Burlington,
for plaintiff-appellant
John J. Boylan, Burlington, for defendant-appellee Gall
Keith J. Kasper of McNamara, Fitzpatrick, McCormick & Mertz, Burlington,
for defendant-appellee Estate of Mason
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J. This is the second time that the events giving rise to
this controversy have been before the Court. In Colony Park Assoc. v. Gall,
154 Vt. 1, 572 A.2d 891 (1990), we affirmed an award of specific performance
of a contract for the sale of land by defendants to Colony Park Associates
(Colony Park). Plaintiff, a real estate broker, brought this action seeking
a commission for the sale. The trial court granted summary judgment to
defendants because plaintiff did not have a written listing agreement as
required by Rule 2.11 of the Vermont Real Estate Commission. On appeal,
plaintiff argues that language in the contract of sale met the requirement
of the rule, that events in the specific performance trial collaterally
estopped defendants from denying their obligation to pay the commission, and
that denial of a commission will unjustly enrich defendants. We affirm.
By letter dated December 7, 1984, defendant Gall authorized plaintiff
to sell the property There was no written listing agreement. Colony Park
became interested in the property and, on May 31, 1985, submitted to
defendants a letter of intent detailing the terms on which they would
purchase. This led to an August 20, 1985 contract of sale prepared on
plaintiff's standard form. The following words were above defendants'
signature:
I AGREE TO SELL THE ABOVE DESCRIBED PROPERTY ON THE
TERMS AND CONDITIONS HEREIN STATED AND AGREE TO PAY THE
ABOVE SIGNED REALTOR AS FEE FOR SERVICES THE SUM OF Ten
percent (10%) of Selling price (excluding the $18,000.
payable to Arthur W. Mason for foundation, etc.)
DOLLARS, OR ONE-HALF THE DEPOSIT IN CASE SAME IS FOR-
FEITED BY PURCHASER, PROVIDED THE SAME SHALL NOT EXCEED
THE FULL AMOUNT OF THE COMMISSION. COMMISSION TO BE
PAID OUT OF FIRST MONEY RECEIVED.
Defendants refused to pay the commission and refused to close. Plaintiff
sued for the commission.
The superior court dismissed the action because plaintiff failed to
obtain a written listing agreement as required by Rule 2.11(2) of the
Vermont Real Estate Commission. (FN1) In relevant part, the rule provides:
(2) Before showing real estate for sale, lease or rent,
you must have executed a written contract with the
seller listing said real estate for sale, lease or rent,
or the express permission of the broker who has such a
listing agreement. A listing agreement shall contain:
(a) Identification of the type of listing agreement
in bold face type stating either: NONEXCLUSIVE
(open); EXCLUSIVE AGENCY; EXCLUSIVE RIGHT TO SELL,
LEASE OR RENT.
(b) Clear property description and location.
(c) All terms and conditions of sale, lease or
rental.
(d) The agreement date and specific expiration date
not to exceed twelve (12) months from the date of
agreement. A listing agreement cannot contain any
provision for automatic extension or renewal beyond
the expiration date.
(e) A statement of the amount of commission to be
paid the broker, clearly stated in the listing
agreement.
(f) The signatures of all parties to the listing
contract
. . . .
(4) Copies of all listing . . . contracts executed
by a broker shall be given to all parties involved
at the time of the execution.
In response to plaintiff's argument that the contract for sale of the
property met the requirements of the rule, the court held that it did not
contain all the items required by the rule and that a purchase-and-sale
contract could not cure deficiencies in a listing agreement. The court also
denied relief based on equitable estoppel and collateral estoppel.
We recently summarized the law with respect to listing agreements and
the requirements of the rules of the Real Estate Commission in MacDonald v.
Roderick, 3 Vt. L.W. 23, 25 (Jan. 3, 1992). Drawing on our case law and the
effect of public policy requirements on the enforceability of contracts as
set forth in { 179(a) of the Restatement (Second) of Contracts, we stated:
[A] violation of the rules of the Real Estate Commission
with respect to the form or content of a listing
agreement will bar recovery of a commission only if the
violation somehow taints the agreement or makes its
enforcement unfair. That taint will always be found
where the agreement is oral because the requirement of a
writing ensures that the parties are fully aware of the
terms of the agreement. When, as here, the claim is
that the violation occurred because of failure to use
required language or because of the omission or
misstatement of a required term, there will be no effect
on the broker's right to recover a commission unless the
violation makes recovery unfair in the particular case
before the court.
MacDonald, 3 Vt. L.W. at 25. The trial court here correctly denied
plaintiff a commission because he failed to have a written listing
agreement, unless there is a reason to except this case from the general
rule. Plaintiff argues three such reasons.
The first is that enforcement of the rule gives defendants a windfall,
because the undisputed evidence shows that they retained plaintiff and he
produced a ready, willing and able buyer who paid defendants a purchase
price above that sought by them. Plaintiff argues that under theories of
unjust enrichment and equitable estoppel defendants should be required to
pay the commission.
It is clear that defendants retained the entire proceeds of the sale
free of plaintiff's commission, even though plaintiff's work procured the
sale. This is the necessary consequence of enforcing the Real Estate
Commission rule by denying a commission when the broker fails to comply with
it. To allow plaintiff to prevail on this argument would eliminate the
enforcement mechanism for the rule. In cases from other jurisdictions on
which plaintiff relies, the courts have held that violation of a statute or
rule requiring a listing agreement to be in writing is not a defense to a
broker's action for a commission. See Coldwell Bankers-Gordon Co. Realtors
v. Roling, 703 S.W.2d 572, 576 (Mo. App. 1986); Finlay Commercial Real
Estate, Inc. v. Paino, 133 N.H. 4, 10, 573 A.2d 125, 128 (N.H. 1990). In
jurisdictions such as ours, where violation of the rule or statute
requiring a written listing agreement is a defense to the claim for a
commission, the defense cannot be avoided on unjust enrichment or equitable
estoppel theories. See Currie v. Marano, 13 Conn. App. 527, 531-32, 537 A.2d 1036, 1038-39 (1988); Maynes Real Estate, Inc. v. McPherron, 353 N.W.2d 425, 427-28 (Iowa 1984); Heyman v. Adeack Realty Co., 102 R.I. ___,
___, 228 A.2d 578, 581-82 (1967). These cases are consistent with the
contract principles on which we relied in fashioning our enforcement rules,
see MacDonald, 3 Vt. L.W. at 25, because the broker is primarily blameworthy
for the violation of the rule. See J. Calamari & J. Perillo, Contracts {
22-7, at 900-01 (3d ed. 1987). We cannot allow the relief plaintiff seeks
when to do so would wholly undermine the enforcement of the rule.
Plaintiff's second argument is that the lack of a written listing
agreement is cured by the provisions of the purchase-and-sale contract. If
the purpose of the commission rule were solely to serve as the equivalent of
a statute of frauds, this argument would prevail. See 12 V.S.A. { 181
(statute of frauds fulfilled if contract or "some memorandum or note thereof
is in writing, signed by the party to be charged therewith"). The purchase-
and-sale contract was signed by defendants and contained the essential
terms of the commission contract.
The purpose of the commission rule, however, is broader. It is
intended "for the protection of the public to establish fair dealings
between parties, standardize the procedure and practices in the real estate
business and to prevent fraud." Green Mountain Realty v. Fish, 133 Vt. 296,
299, 336 A.2d 187, 189 (1975). The rule regulates listing agreements, as
opposed to purchase-and-sale contracts or agreements to pay a commission. A
listing agreement precedes the broker's services which are rendered pursuant
to the agreement. We cannot view the purchase-and-sale contract as a
listing agreement. See Howland v. Schweir, 7 Conn. App. 709, 714, 510 A.2d 215, 218 (1986) (services must be rendered pursuant to a listing agreement);
Del Greco Realty Co. v. Lamoureuk, 39 Conn. Supp. 95, ___, 489 A.2d 1232, 1233 (1983) (listing agreement must "precipitate the services").
This is more than a distinction of form. See Green Mountain Realty,
133 Vt. at 299, 336 A.2d at 189-90 (the "only legitimate evidence" of a
contract between broker and seller is a "listing agreement containing all
the ingredients expressly mandated by law"). The rule requires that the
broker and seller agree on the terms under which services are rendered
before the services commence, and that they sign a written document
specifying the terms of that agreement, and each receive copies of the
agreement. This standardization of procedure ensures that consumers of
broker services are fully informed and are treated fairly.
The language of the purchase-and-sale contract on which plaintiff
relies is largely "boilerplate" on plaintiff's standard form. Were we to
hold that this language could be enforced without a written listing
agreement, we would eliminate a major incentive for plaintiff to comply with
the rule. Dispensing with the absolute requirement that parties work out
the terms of a commission agreement at the onset of their relationship would
permit the details to be worked out, instead, at the time of the sale of the
property. This would be the case even though the bargaining positions of
the broker and sellers may have changed significantly. The wisdom of the
rule is apparent in the present case, in which the dispute was apparently
caused, at least in part, by the absence of clear terms of agreement between
the parties at the outset. See Green Mountain Realty, 133 Vt. at 299, 336 A.2d at 189 (wisdom of rule made apparent by changing relationship of broker
and seller).
We conclude that as in other consumer protection situations, the
circumstances call for the enforcement of a prophylactic rule under which a
broker without a written listing agreement cannot recover a commission. See
Currier v. Letourneau, 135 Vt. 196, 200, 373 A.2d 521, 525 (1977) (the law
on the question is "unequivocal; a duly executed listing agreement is the
sole vehicle upon which a broker can predicate recovery of any commission").
Licensed brokers are able to conform to this rule, and it is fair that they
bear the risk of failure to obtain a written listing agreement. See
Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 946,
948 (1981) (brokers who fail to follow statutory requirement of a written
listing agreement "do so at their peril"). Because we decide that the
purchase-and-sale contract cannot serve as a listing agreement to comply
with Rule 2.11, we do not address the trial court's conclusion that the
language of the purchase-and-sale contract was inadequate because it did not
cover all the terms specified in the rule.
Plaintiff's final argument is that defendants are collaterally estopped
from denying the existence of a valid and binding listing agreement. This
claim was presented to the trial court based, in part, on a finding of fact
and a conclusion of law of the trial court in the specific performance suit
between the purchaser, Colony Park, and the sellers, defendants in this
action. The court found that defendants listed the property with plaintiff
on December 7, 1984. The conclusion responded to defendants' argument that
specific performance should be denied because the broker, plaintiff here,
agreed without informing defendants to split his commission with a partner
in Colony Park, who was also a broker. The court held that the commission
arrangement had no effect on the availability of specific performance and
added: "[Defendants] owed the agreed commission to Bensen: he was entitled
to the full amount based on his having procured a willing buyer for the
accepted purchase price." Plaintiff argued that the finding that there was
a listing and the conclusion that defendants owed the commission were
binding on them and determined this litigation.
Collateral estoppel, or issue preclusion, applies only if the
following criteria are met:
(1) preclusion is asserted against one who was a party
or in privity with a party in the earlier action; (2)
the issue was resolved by a final judgment on the
merits; (3) the issue is the same as the one raised in
the later action; (4) there was a full and fair
opportunity to litigate the issue in the earlier action;
and (5) applying preclusion in the later action is fair.
Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587
(1990). Even if we assume that the issue of the plaintiff's entitlement to
the commission was raised in the specific performance action, see Berisha
v. Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984) (collateral estoppel
applies to issues "'necessarily and essentially determined'" in the earlier
proceeding, quoting Land Investment, Inc. v. Battleground Assoc., 138 Vt.
316, 326, 415 A.2d 753, 759 (1980)), there was not a full and fair oppor-
tunity to litigate it, and it would be unfair to apply preclusion here.
The obligation to pay a commission, and the presence of an enforceable
listing agreement, were peripheral to the issues in the specific performance
action. To have required defendants to fully litigate the issues presented
here in the earlier action would have created a largely irrelevant sideshow
of proportions equal to the main action for no apparent purpose.
On appeal, plaintiff has shifted the focus of the collateral estoppel
claim to positions defendants took during the trial of the earlier case and
the court's statement, in response to evidentiary exceptions, that it would
"assume that the execution of the Deposit Receipt and Sales Agreement by
Mason . . . is a listing agreement." In support of this argument, plaintiff
has provided us with excerpts from the transcript of the trial in the
specific performance litigation that plaintiff did not bring before the
trial court in this case. We conclude that plaintiff has failed to preserve
this claim below and is precluded from raising it here for the first time.
MacDonald, 3 Vt. L.W. at 24.
Affirmed.
FOR THE COURT:
Associate Justice
FN1. As the rule has been amended, it has had different numbers while
retaining the same substance for the purpose of this appeal. Originally, it
was Rule 16. See Green Mountain Realty, Inc. v. Fish, 133 Vt. 296, 298, 336 A.2d 187, ___ (1975). The version cited by the trial court and quoted here
as 2.11 is as it was amended in 1979. Now it is Rule 26. See MacDonald v.
Roderick, 3 Vt. L.W. 23, 24 (Jan. 3, 1992).
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