*1 Argued 1996; September and submitted December resubmitted In Banc 24,1997 affirmed December CO., HOMES REAL PRESTIGE ESTATE an Oregon corporation, Homes, dba ERA Appellant, v. HANSON,
Jack Respondent. A91664)
(94-CV-0104; CA *2 Gilstrap argued appellant. the cause for David V. With Gilstrap, Davis, Harris, him Hearn & on the briefs was Welty, P.C. argued respondent.
Walter L. the cause for With Cauble Salisbury, Versteeg Schultz, Cauble, him on the & brief was Dole. MUNIZ,
DE J. concurring part; dissenting part. Warren, J., MUNIZ, DE J. brought broker, action
Plaintiff, a real estate this for recovery or, alternative, breach of contract quantum based on appeals grant It meruit. the trial court’s of defen- summary judgment. dant’s motion for We affirm. Defendant owns real in Grants Pass. On September 11, 1993, defendant listed the for sale plaintiff, giving plaintiff right to list and with exclusive through September Septem- 11,1993, sell the from April plain- 1994, 1994. On defendant withdrew ber brought alleging authority. Plaintiff then this action tiff’s parties’ agreement, that, under the terms of the it was enti- $14,940. tled to comprised preprinted of three Listing Form,” A “Residential Data an “Addendum to
forms: Agreement” Input/Change and a “Data Order.” On the Resi- Form, was dential Data next to “Price” written “$277500.” Input/Change signed November, form, The “Data records the Order” price change
“Listing $277,500 Price” as and a *3 provide, $249,000.1 amount to The documents from that part: “If, listing period, the is sold or trans- during firm, by by any person, corporation, ferred owner or or REALTOR; sub-agents produce(s) pur- or if Broker or willing purchase property; chaser to the or listing period a days expiration within 120 after the of said any the has person sale is made to whom been by sub-agents, Broker or owner a fee of shown specified writing of unless otherwise on 6% the sale in the event foregoing apply this contract. The shall not subject property with another Broker owner has listed is, agreement. It how- following date of this ever, time there shall be a reasonable understood any to close allowed after termination of this money deposited. on which earnest has been transaction * H=*
«:): :f: * [*] $249,000. damage Plaintiffs claim is for six “Broker is authorized to sell at the price specified and terms (or owner(s) herein with consent for a lesser sum or on other terms)[.]
[******] “The term sale shall be deemed to include transfer title, trade, exchange, lease/option lease or to which trade, owner consents. In the event exchange of an or Bro- permitted ker is represent compensation receive parties. from both
«Hi * * [**]
“The sell, SOLE and EXCLUSIVE RIGHT to exchange, rent or lease the herein described hereby granted to undersigned Real Estate A Broker. full fee as stated above shall sale paid be to the Broker in the event of a owner(s) or persons acting on behalf of the owner(s) during the term of this contract. In case withdraw(s) authority hereby given prior expira- to said Owner(s) tion Broker the said fee the same as sale had been consummated Broker .” (Emphasis supplied.)
The trial court held: “Here listing agreement sets forth the circumstances under which Plaintiff can earn a commission. All involve a sale of the property by the broker or others or production buyer, bonafide neither of which occurred in this case.”
On a motion for summary judgment, we review the record in light most favorable to the nonmoving party, plaintiff here. Jones v. General 404, 939 Motors Or Corp., 325 (1997). P2d 608 The parties agree that the contract is unam biguous. The interpretation of the terms of an unambiguous contract is a question of law the court. Timberline Equip. v. St. Paul Fire & Ins., Mar.
(1978). As there are no issues of fact resolved, to be the only question is whether defendant is entitled to judgment as a *4 matter of law. ORCP 47.
Plaintiff acknowledges that the court was correct that plaintiff would be entitled payment commission the event of an actual sale or if it a provided willing buyer and however, defendant refused to sell. It argues, that the court recognize failing a third situation in which a com- erred argues italicized mission would be owed. Plaintiff that the payment language specifically calls for ofa commission above consummated” if the as had been “the same if a sale expiration of the broker’s owner withdraws plaintiff listing agreement. commission, contends, That the obligates applies here and defendant to the situation no dis- $249,000 because the contract makes listing price and the tinction the sale between argues plaintiff Defendant that focuses on argues that, context, the lan out of context. Defendant guage (1) plaintiff if on which relies means that someone during than sells the other the broker the period, gets produced a fee the the broker as the broker had (2) buyer, and fee is owed if the owner the the even withdraws nothing authority. argues that broker’s Defendant there is obligates pay, plaintiff claims, as the contract that him to listing price withdrawing the brok fee of six ofthe authority if sale has occurred. er’s no agree instance,
We In the we with defendant. first reject plaintiffs position is no distinction between that there listing price price agreement. The and the sale under the the Input/Change clearly $249,000 Order” refers to as “Data the “listing price,” agreement provides the the bro- the that may price a lesser ker sell at that listed or for the Accordingly, listing price sum with the owner’s consent. only price Fur- is for becomes thermore, sale that amount. fisting commis- does not determine the paragraph, above, that sion. The first set out establishes price: during “If fist- on the sale commission is calculated ing period, property is “owner sold or transferred” the sup- price.” (Emphasis a fee of 6% the sale paragraph dealing rights plied.) uses the broker’s with the bro- to determine the commission when that calculation not ker does make the sale. gives paragraph sentence broker first “[t]he to sell SOLE EXCLUSIVE RIGHT” broker recognize remaining
property. However, the two sentences might In the broker occur. that a sale someone than provides stated event, that a “full fee as
761 paid and, above”will be even the owner has withdrawn the authority, broker’s the broker will receive “said fee” as a sale “had been consummated words, Broker.” In other the of the paragraph fee is to be calculated as in one—six plaintiffs interpretation, Under the owner would immediately listing price be liable for six as a penalty withdrawing authority irrespective the broker’s family of the reasons for withdrawal —death of a member, ill- change ness of the owner or a However, of mind. the context by plaintiff support relied on does not reading. requirement Instead, the that the commission be according provi- calculated sion to the sale shows that the apply buyer was intended to in the situation when a found but the owner withdraws the so as to save the holding commission.2The trial court did not err in that a com- property. mission involves a sale of the argues Plaintiff also that the trial court erred in dis missing quantum meruit claim. The court held that the listing agreement was complete
“the agreement of parties. enforceable, It is an unambiguous express Therefore, contract. Quan- Plaintiffs tum Meruit claim that is inconsistent with express con- tract cannot lie.” explained We App Patterson, Kashmir v. 43 Or (1979), 47-48, 602 P2d 294 aff'd (1980): “Quantum, meruit is a form of restitution where the plaintiff performed has services for defendant and seeks to recover their fair law, value. The in appropriate situations, will imply quasi-contract. a It is not consensual. It is not a contract. It is a remedial device which the law affords to accomplish justice and prevent unjust Quan- enrichment. tum presupposes meruit that no enforceable contract (Citation omitted.) exists.” 2 agreement presents also buyer covers the situation when the broker immediately circumstances, before the terminates. Under those parties “under[stand] that there shall abe reasonable time allowed after termina * * * tion money to close deposited.” transaction on which earnest has been
762 may Pleading quantum meruit be bene- both a contract and may plaintiff show that it did not sub- ficial where facts stantially perform that it is entitled to the but contract App at 48. furnished. 43 Or reasonable value of the services legally ultimately enforce- cannot be a valid However, there covering implied the same serv- and an contract able contract Berry P179 al., 136 Or Const. Co. v. et ices. Porter (1931); Kashmir, Or at 48. listing agreement It contract. is a valid
Here, the plaintiff obligation specifically in the covers defendant’s plaintiffs defendant withdraws event agreement expires. *6 obligation in arises the event
That did not err in The trial court sale, did not occur here. which dismissing plaintiffs quantum meruit claim.
Affirmed. dissenting part. concurring part, in
WARREN, J., properly agree dismissed I that the trial court While majority opin- quantum plaintiffs claim, meruit because in this case and issue mischaracterizes the contract ion comes to wrong result, I dissent. assuming majority the follow- frames the issue The unambiguous; parties agree ing: interpretation is that the contract unambiguous contract is a of an Thus, the of fact to be resolved. law; and there are no issues only question majority defen- is whether contends that the analysis judgment law. This as a matter of is entitled to dant the start. is flawed from say
Although parties the contract is do both party wrong. unambiguous, they asserts that While each are unambiguous extent that it must be to the the contract is very interpretation party’s interpreted is favor, each finding certainly precluded an from not different. We are argu- party ambiguity in its own has confidence because each pre- interpretation Only so clear as to is ment. if defendant’s summary judg- by any person would clude doubt reasonable Corp. appropriate. v. Devel. Western ment See be Pacific Exchange P2d 1246 Co., 848 Summitt (1993). susceptible than one to more contract is Because this interpretation, majority reasonable I cannot concur in the opinion. agreement provided, part:
“If, during listing period, is sold or trans- by ferred by any firm, owner or person, corporation, or REALTOR; or if Broker or sub-agents produce(s) pur- chaser and willing purchase property; or if days within after the of said period a sale is made to person to whom the property has been by sub-agents, shown Broker or owner a fee of % of the sale unless specified otherwise in writing on this contract.” listing agreement provided, part:
The addendum to the “The SOLE and sell, EXCLUSIVE RIGHT to exchange, rent or lease the herein described property hereby granted to undersigned Real Estate A Broker. full fee as stated paid above shall be to the Broker in the event of a owner(s) by person or acting on behalf of the owner(s) owner(s) during the term of this contract. In case withdraw(s) the authority hereby given prior to said expi- ration Broker the said fee the same as if a sale had been consummated Broker.” specific language upon relied here
and listing agreement: below is found in the addendum to the owner(s) withdraw(s) authority “In hereby given case prior expiration to said Broker the said fee the same as if a sale had been con- Prestige summated Broker.” contends that the trial court construing agreement “gave erred in because it no effect whatever” to this clause and thus ran afoul of ORS 42.230 omitting “bargained for” term. Further, asserts disputed provision permits only that the one reasonable con- percent struction: that the reference to “said fee”means six of price, price agreed the ‘list” which is the for which Hanson property. sell the majority opinion price holds that the “list” is
completely price. different than the However, “sale” it fails to in the con- condition that under one other the fact
reconcile pro- price. The contract the sale becomes tract the list buyer willing provides a and that if the broker vides entitled sell, the broker is still refuses to and the owner though occurred. no sale has even of the sale necessarily Thus, refer to the list must The six “[t]he did not majority trial court it holds in error when is prop- holding of the involves a sale a commission err provide Interpreting erty.” this contract 761. at price, if owner withdraws the list commission, on for a based authority is both sensible to sell reasonable. majority opi- insinuating that the however, not,
I am point wrong. interpretation is, the contract is of nion’s capable disputed than one reasonable ofmore entitled to a realtor is mean that the It could construction. commission authority to list seller revoked because the agreement. expiration of the before and sell the to a commission that the realtor is entitled also mean It could revoking only the realtor’s after sold the the seller agreement. Both con- language of the with the are consistent structions may reject it as a mat- that we neither is so unreasonable ambiguity Accordingly, resolution of exists. The an law. ter of the majority ambiguity presents fact and the summary grant affirming opinion court’s the trial errs in judgment. Armstrong, join
Riggs, in this JJ., Landau and dissent.