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Robert E. Swendeman v. Dorothy O. Parent

May 15, 2013

ROBERT E. SWENDEMAN, PLAINTIFF AND RESPONDENT,
v.
DOROTHY O. PARENT, INDIVIDUALLY, ETC., DEFENDANT AND APPELLANT.



(Super. Ct. No. 34200800021019)

The opinion of the court was delivered by: Raye , P. J.

Swendeman v. Parent CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this action by the seller's broker to recover a commission for the sale of real estate, the seller, Dorothy O. Parent, advanced two theories to avoid payment of the commission. The trial court rejected the first theory she pursued at trial: that the land purchase agreement, which included the broker's right to a commission, had expired. It also rejected the second theory she asserted for the first time in objecting to the statement of decision: that the land purchase agreement was not a bilateral contract, but an option that expired by its own terms.

The court awarded the broker a 5 percent commission on the sales price set forth in the land purchase agreement, though the sale ultimately was not consummated pursuant to the land purchase agreement but was instead concluded at a higher price according to the terms of a settlement agreement the seller reached with the buyer, Enterprise Rancheria, after the seller repudiated the contract. The seller appeals. We affirm.*fn1

FACTS

The parties cite many more facts than are relevant to the disposition of the limited issue of the broker's right to a commission. The material facts are few.

"It has long been the law of this state that any right to compensation asserted by a real estate broker must be found within the four corners of his employment contract. [Citations.] By the same token, however, '[the] parties to a broker's contract for the sale of real property are at liberty to make the compensation depend upon any lawful conditions they see fit to place therein. [Citations.]' [Citation.] In short it is the contract which governs the agent's compensation, and that contract is strictly enforced according to its lawful terms." (Blank v. Borden (1974) 11 Cal.3d 963, 969.) We begin, therefore, with the terms of the land purchase agreement, which provides for the broker's commission.

On September 29, 2003, defendant seller sold 63 acres in Butte County to the buyer tribe, Enterprise Rancheria, for a purchase price of $459,197. The land purchase agreement was subject to a number of terms and conditions, including: "Subject to: 1. [United States Department of Housing and Urban Development] Approval, EIR Report, All Gov. Agencies approval of the project, prior to close of escrow. 2. Upon removal of all contingencies, close of escrow will occur within 10 days." The parties stated time was of the essence but expressly provided that "if either party fails to comply with any contingency in this Agreement within the time limit specified, this Agreement will not terminate until the other party delivers written notice to the defaulting party requiring compliance within 24 hours after receipt of notice. If the party receiving the notice fails to comply within the 24 hours, the non-defaulting party may terminate this Agreement without further notice."

Plaintiff Robert E. Swendeman, doing business as T'N'T Real Estate, is named as the selling broker and represented the buyer. The section of the land purchase agreement describing the terms of his commission provides: "Seller agrees to pay in cash the following real estate commission for services rendered, which commission Seller hereby irrevocably assigns to Broker(s) from escrow: [¶] . . . [¶]

"5% of the accepted price . . . to the selling Broker: T'n'T Real Estate without regard to the agency relationship. Escrow instructions with respect to commissions may not be amended or revoked without the written consent of the Broker(s).

"If Seller receives liquidated or other damages upon default by Buyer, Seller agrees to pay Broker(s) the lesser of the amount provided for above or one half of the damages after deducting any costs of collection including reasonable attorney fees.

"Commission will also be payable upon any default by Seller, or the mutual rescission by Buyer and Seller without the written consent of the Broker(s), which prevents completion of the purchase. This Agreement will not limit the rights of ...


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