Richardson v. Schaub

RICHARDSON, individuаl, Jack D. an Battlefield, Inc., Wyoming

corporation, Appellants (Defendants), SCHAUB, individual,

Donald V. Inc.,

H & S (Plaintiffs).

corporation, Appellees

No. 89-149.

Supreme Wyoming. Court of

Aug. Honaker, Hamp- Honaker &

Richard H. ton, appellants. Springs, Rock Durham, M. Van A. Snow and Paul John Cott, McCarthy, Salt Bagley, & Cornwall Jr., Thomas, Utah, F:L. City, Lake Kemmerer, appellees. URBIGKIT, C.J., Before related below which to the Bennett-Card- *

THOMAS, CARDINE, MACY er land trade? GOLDEN, JJ. Appellees’ “3. Are claims barred Statute of Frauds? THOMAS, Justice. regard “4. Appellants’ With counter- eye, controversy At its this revolves loan, repayment Appel- claim for of a did 15(b), application the around of Rule W.R. the limi- lees waive defense of statute of At the C.P. the close of the trial tations?” granted joint to amend court motion the the in his Schaub addresses same issues pleadings to evidence. It conform to the brief, he in but restates them for effect judgment entered in of then favor Donald way: this (Schaub) H Inc. Marketing, Schaub and & S the “1. Did trial court discre- abuse its against and and Jack D. Richardson Battle- denying tion in trial motion for a new field, (Richardson) Inc. for a commission surprise unfair upon regarding based the by arranging of land earned a trade Bennett-Carder land trade? in engineering accomplished work Richard- there sufficient sus- Is evidence to specific subdivision. claim “2. son’s Since that portion tain of judgment the enterеd pleaded commission fees had not been below which related to the Bennett-Card- by that a contends sub- er trade? sequent upon motion for a based new trial Appellees’ “3. Are surprise should claims barred granted. have been Collat- respect issues are' Statute Frauds? eral asserted with whether the record evi- contains sufficient Appellants’ “4. re- Is counterclaim for judgment to sustain the for the com- dence payment of a loan barred the statute fees; mission whether the claim is barred limitations, equitable doc- frauds; by the statute of and whether trines of set-off or laches?” permitted Richardson should have been 25, 1975, January On Richardson entered repayment on a recover counterclaim for agreement into an with Schaub and Harold because loan Schaub had waived de- pursuant Hesner to which Hes- Schaub and of statute of In its rul- fense limitations. ner, commission, for a were to market 30% question ings, trial court resolved the in a and sell lots subdivision owned sufficiency of evidence in favor of Richardson. land was located north Schaub and concluded that his claim was Kemmerer, in County, Lincoln and barred frauds. The not statute of the Commissary identified as Ranch Subdi- did, however, permit trial court Schaub to time, vision. that At Richardson loaned the defense assert of statute of limitations $10,600 up Hesner and Schaub for start repayment to Richardson's claim for of a costs, undisputed it is loan and that the light Our loan. review of the record Battlefield, repaid. was not Inc. H & S and pertinent persuades law there is us Marketing, parties Inc. were not complained rulings error the several no agreement because did Hesner and Schaub of, judgment we affirm the of the trial 21, 1975, incorporate February not until court. Richardson, shareholder, as the sole Richardson sets forth the issues incorporate did until 1975. not November way: assigned In Hesner his interest in judgment “1. Where entered on a venture to Schaub and left H & Market- S pleaded, which was never did the claim ing, marketing Inc. addition to denying court trial abuse its discretion land, selling the Schaub and H & S Market- upon a motion for a new based trial ing, engi- Inc. were involved in subdividing, surprise? unfair Commissary neering, surveying Is there persuasive

“2. sufficient evidence to sus- Ranch The record lands. portion tain of the entered it is of this the law case that Schaub argument. * ChiefJustice at time of oral

Richardson, continuing periоd In the their business re- from 1975 to Richard- son and their Schaub conducted business corporations, Bat- lationships, treated relationship pursuant to a number of modi- Inc., tlefield, H S as Inc. and & original agreement. fications of the egos main- respective their alter without May they executed separation of the individu- taining true parcels convey title to some corporate identities. We see no al and permit Schaub and Hesner in order to them corpora- to ‍‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‌‌‌‌​‌​​​​​​‍treat the reason for the court property to sell the owners. ar- differently. tions rangement fall of continued until the When embarked this busi- forward, From 1976 Richardson and venture, ness he was licensed to sell essentially their defined relation- Wyoming. upon ship by real in He agreement. estate relied oral Pursuant to that agreement, and H & S attorneys the several and real advice of Inc. were to commission receive on 30% concluding that, estate in at that brokers sales, property they obligat- but also were time, any he did not need to obtain license pay pro to of ed rata share licensing under statutes re- the costs. lating agents. and 33- to brokers See §§ 1984, Beginning August in of -206, Richardson Richardson was 28-101 to W.S.1977. unilaterally agreement so adjusted the the fact concerned about that Schaub only paid he of commissions to Schaub 10%. 1979, had In no license. Schaub became Schaub endeavored to contact Richardson and, 1982, salesman in licensed real estate explanation adjustment, of the but he obtained a real estate broker’s license. July In responded. Richardson never This latter license became inactive at the 1987, action, after Schaub commenced end of 1983. stopped paying Richardson commissions al- marketing Commissary In the Ranch together.1 Subdivision, exchanged prop- was complaint, alleged In his breach erty being in to its or services addition sold contract, contract, anticipatory breach exchange for cash or credit. one the relief, quasi-contract. he sought For Associates, transactions, Bennett-Carder & monetary accounting, a damages, an de- (Bennett-Carder) Inc. received in ten lots attorney claratory judgment, and fees. Commissary the Ranch in ex- Subdivision presented alleg- Richardson a counterclaim change engineering work a different property ing that had сonverted tract, Canyon the Ranch Subdivi- the paid his own use had never devel- sion, being opment agreed. services at with those valued fees as he had $122,450. also Richardson owned The trial held to the court from Spring Canyon Ranch subdivision which is through 1988. At October October Commissary north Ranch subdivi- evidence, the conclusion Schaub and sold sion. Richardson the entire plead- moved to amend both property, Spring Canyon Ranch and Schaub ings to to the conform opportunity granted had to earn commissions motions in no trial court these accord- 15(b), lands. ance with W.R.C.P.2 court from the sale of these Rule necessary Battlefield, Neely, to conform to the to cause them 1. In Inc. may 1983), (Wyo. issues had occasion evidence to raise these be this court to consider Battlefield, time, any any party against suit Richardson and made motion of another non-payment judgment; of commissions for sales even after but failure so amend Inc. for trial of f lands. does not the result of the these subdivision affect objected at the issues. If trial evidence W.R.C.P., 15(b), states: ground Rule within the on the that it is not issues may pleadings, the court allow made to the evidence.— "Amendments conform plеadings and shall do so. the freely to be amended are issues not raised When presentation of the merits of by express implied when the of the tried consent thereby and the parties, they respects in the action will be subserved be treated all as shall objecting satisfy party the court that they pleadings. in fails to if been raised had preju- pleadings may evidence would be the admission of such of the Such amendment findings then entered its Appellate of fact and conclu- ap- Rules Procedure. This and, January sions of law on in peal, therefore, is limited to the issues response arguments to additional and re- presented by Richardson. quests in correspondence submitted Richardson earnestly contends counsel, supplemented briefs them on that the trial court in failing grant erred March 1989 and March 1989 to his motion for a new trial prem which was appropriate correct ways. them surprise ised on the basis of proceed any recovery court limited of commissions ings. Analysis depends upon of this issue during peri- Schaub to those earned proper application 59, W.R.C.P., of Rule od that he was a licensed real estate bro- states, pertinent part: ker.3 The entered in- * * * “(a) A may granted new trial $36,735, interest, plus cluded for Schaub’s parties, all or and on all or

services connection with the Bennett- part of the issues. aOn motion for a Carder land trade. The court ruled that new trial an action tried without a $10,600 Richardson’s claim for the loan was jury, the may open judgment, court if barred the statute of limitations. With entered, one has been take additional tes- respect to the claim for share of Schaub’s timony, findings amend of fact and con- costs, the court concluded it clusions of law findings or make new was unable to determine the amount of conclusions, entry and direct the aof simply Schaub’s share and awarded Rich- judgment. Subject provisions new the damages. ardson in nominal $1.00 The may granted of Rule a new trial be judgment incorporating the several deter- any following for of the causes: April minations was entered on ing dismissed, these motions and then denied amount. The sions. judgment. Richardson’s motion was based damages in the amount of the assessment of his evidence. dence with for commissions on the Bennett-Carder sessment of upon parties submitted motions for a new trial or, Following in the judgment that the evidence tradе, his Schaub initiated a surprise alternative, and the Schaub’s upon Richardson’s error in the amount of the as- respect the and claimed damages, of the trial trial court held a entry sufficiency to a claimed different motion to alter or amend the supported respect of the court, newly judgment, cross-appeal asserted error sufficiency to the claim motion, of the evi- them, hearing but discovered its conclu- it was find- both be- on of adoption Procedure. See Harden v. based on been adhered to in of a trial court on a motion for a new trial tion. Medlock v. (Wyo.1990); on the motion will not be overturned on motion for a new appeal in the absence of an abuse of discre- afforded broad prudence against; “(3) applying (Wyo.1986). 88 P. 217 : n Accident or of the surprise * * #: this rule to its decision on a DeJulio could not have (1906). *.” discretion, Wyoming The same standard has surprise, sf: Merrick, trial, since reviewing the trial court is Foster, ^[*] long and its decision Rules of Civil Card, Wyo. 786 P.2d 881 the decision ^[*] before the ordinary guarded ! n procedur- discretion, cause of Schaub’s failure to meet exercising its a trial al deadlines established court find it will useful to consider whether rendered, maintaining dice prohibited him his actiоn or defense or service which is un- may grant the merits. The court a con- through der this act 33-28-101 [§§ 33-28-206] objecting party tinuance to enable the to meet brokers, to other than licensed licensed asso- such amendment.” ciate brokers or licensed salesmen unless the person was licensed under this act at the time ruling premised 3. The of the trial court was offering perform any act or service or 33-28-115, W.S.1977, upon § which states: procuring any promise to contract for the instituted, "No recovery or action suit shall be nor payment compensation any contem- had, any be court of this state plated act or service." any person compensation act done moving has Richardson to show party surprise demonstrated has failed circumstances, and, following under the criteria: there would impact no need to examine the (1) surprise? Was there actual discloses, other factors listed. The record bearing (2) Did the facts have material however, that failed to demon- presented by the case? issues strate that the of a new result trial would (3) pri- Was court’s decision based 7). (Factor probably be different This was marily on those facts? cоurt, a trial to the and the new trial could have simply taking been effected (4) surprise a inat- Was the result of the 59(a), testimony. additional Rule W.R.C.P. negligence the mov- tentiveness testimony additional that Richardson ing party? advised the court he wished to offer did not (5) prompt- Was the for new trial motion persuade the court that its trial decision ly filed? have been would different. trial court (6) reasonably moving party Did act potential perceived testimony hardly surprising time of the event? than an more attack on Schaub’s credibili- (7) probably trial Would a new achieve ty, and court stated it found different result? to be a credible witness. We con- that there is clude no demonstration of S.E., Adoption In re Mont. part on the of the trial abuse discretion (1988). Surprise only a is denying court Richardson’s motion for a ground affording a new “or trial when trial, and regard new its dinary prudence guarded could not have affirmed. 59(a)(3), it. against” Rule W.R.C.P. Sur ground a new prise issues, is available as framing In his the Rich discovery trial if the utilization available points to fact that claim ardson the the prevented the procedure could have pleaded. never was At the conclusion of surprise. Bradley, trial, however, claimed Anderson v. the both Richardson 1979). (Utah Oukrop 590 P.2d 339 v. the moved to amend to Cf. Wasserburger, (Wyo.1988). P.2d 755 233 object to the and neither conform way to ed in the other's motion. Rule The in this instance demonstrates record 15(b), W.R.C.P., in its is clear statement surprise in that Richardson did not suffer implied express or con by that issues tried 59(a)(3). required by the manner Rule be as if raised in the sent shall treated to commissions earned on Schaub referred pleadings. Jankovsky Halladay Mo applied land trades to be tors, (Wyo.1971). That im 129 interroga- in to costs answers Richardson’s to, certainly in plied consent extends Ben- tories. Schaub also mentioned the cludes, in party those situations which the dep- specifically land trade in a nett-Carder that led to the mo produces the evidence by attorney. osition conducted Richardson’s Miller, Wright & A. Federal tion. 6A C. trial, concerning At the first the evidence and Procedure: Civil Practice § educed the Bennett-Carder land trade was (1990). correctly The trial court invoked in the course of Richardson’s cross-exami- 15(b), complain cannot Rule and Richardson apparently nation of Schaub. Richardson plead the now Schaub’s failure about to bolster introduced this evidence order ap pleadings have been issue the because but, development costs his counterclaim for propriately amended. so, Rich- even the trial court concluded that issue, his third Rich arguing had to meet his ardson failed burden the evidence is not respect with to that counterclaim. ardson contends that proof circumstances, recovery for Ben support the Under these sufficient surprise light of the transaction. standard hardly can claim nett-Carder reviewing sufficiency of the is discovery prior of the evidence actual evidence review, this court as presenting efforts at a familiar one. On trial his own in favor of the during the course of the trial. sumes that evidence evidence true; and, party appended report successful leaves out of con- to that in that state- ment, entirely presented following appears: evidence sideration party the unsuccessful that conflicts Company “The has a verbal party; the evidence of the successful pay a commission of of the total 30% and affords to the evidence of the success- collections, interest, principal and to H & pаrty every ful favorable inference that handling S Inc. for all sales may reasonably fairly drawn from expenses.” and related Goss, (Wyo.1989). it. Goss v. P.2d 306 report, When read in the of the this context establishing evidence Bennett- reasonably parties, statement identifies the only land trade includes not testi- Carder matter, subject obligations and their mony but also a number of exhibits. (Second) each other. Restatement Con- Schaub, Richardson, Kessner, Harry (1981). tracts statement is suf- § engineer, all testified satisfy requirements ficient to our about the details of transaction and respect statute of or frauds with a note in it. how Schaub was involved The exhib- writing memorandum and subscribed supporting its include claim letters and party charged. to be demonstrating memoranda other Furthermore, even in the ab arrange engi- did land trade writing, sence of such the statute neering part, work on his own most frauds, was satisfied this instance the trial ample court found. There is performance. An oral contract is not judgment. evidence to sustain the court’s barred the statute of frauds when one contention, As an alternative parties fully performed. has Lam Richardson asserts that Schaub’s claim is Johnston, (Wyo. bousis v. 657 P.2d 358 Wyo barred thе statute of frauds. The 1983). The record demonstrates states, ming pertinent statute of frauds required Schaub had all that he done part: agreed to do in earn the order ‍‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‌‌‌‌​‌​​​​​​‍to “(a) following every agree- cases respect commission with to the Bennett- ment shall agree- be void unless such Carder land transaction. trade ment, or some note memorandum writing, by thereof be in and subscribed Finally, we turn to the conten charged party the to with: be tion incorrectly that the trial court ruled “(i) Every agreement by that its terms is rely upon that Schaub could the of statute (1) performed year not to be within one defending against limitations in the coun * * thereof;

from making the Sec- repayment terclaim for of the loan. 1-23-105, tion W.S.1977. Schaub raised the statute of as limitations statute, applying reply this we have held that an affirmative in his defense to Rich necessary is to some ardson’s counterclaim. it demonstrate sort of amended The evi writing signed by person charged dence concerning the be that Schaub offered the agent. loan Czapla or his authorized v. demonstrated that it was made in 1975 Grieves, (Wyo.1976). up repaid. 549 P.2d for start was not The 650 The costs and writing by any need not made as a loan was be memoran- not evidenced written contract, however, agreement dum of the nor must it that was offered at trial. The contemporaneously period bringing made with the of be for- limitations an action (Sec- agreement eight mation of the contract. Restatement recover on such is ond) 133, l-3-105(a)(ii), (1981). years. If 136 Section Contracts W.S.1977. §§ of writing repayment is such a included in no time is There fixed of Battlefield, loan, pay property obligation record. Inc. filed a arises immedi report Department ately, begins with the States and the of United statute limitations Housing Development run and Urban on to from the date of the loan. Johnson February signed Wold, (Wyo.1970). v. 714 1979. Richardson 475 P.2d That Battlefield, report president applicable rule is here. Inc. A Richardson filed Battlefield, years financial statement for Inc. is his counterclaim in some twelve

1311 argument repay- that the The structural flaw the ad demonstrated after Schaub by majority simple but fatal. loan due. vanced ment of the “agreement” The referred to broker’s of limi asserting statute majority prior occurred to the time defense, defending party tations as a acquired his broker’s license the statute the bar of support must agreement 1982. That is then void under party the other by proof, and limitations 33-28-115 and cannot be used to es W.S. to avoid the must introduce evidence then identify legal obligations. tablish and Dix statute. cases consequences of the See (Wyo. Ringsby, on v. 275 Limitations Action cited in 54 C.J.S. 1965); Capri, Wyo. 65 202 Owens (1987). met his burden § (1949). legal obligations Without the date of loan. The burden proving identified, (Second) of Restatement Con that the proof to demonstrate bar (1981) tracts cannot be satisfied. § apply limitations did not then statute of (Second) Without Restatement of Con E.g., that of Richardson. Olson v. became tracts, satisfied, being supra, § Co., (Wyo.1985). 696 P.2d 1294 Robins A.H. operate of frauds continues to statute There is no evidence this record dem prohibits agreement use of that as evidence case some onstrate that the comes within obligation by D. to establish an Jack Rich recovery exception prevent that would be (Richardson) pay thirty ardson ing by the statute of limitations. barred percent commission for the Bennett-Carder none, not di find and Richardson did We evidence, land trade. Without that there is any. rect us to support grant thirty no evidence to court is of the district percent With no commission. affirmed. suрported by cannot suf determination Kelly, ficient evidence. Kirkwood v. URBIGKIT, C.J., dissenting files a (Wyo.1990). P.2d 891 opinion. cause of To overcome the bar Schaub’s URBIGKIT, Justice, dissenting. Chief frauds, under the statute of the ma- action reasons lead me to consider Three report jority property looks first to a sub- erroneous. majority opinion to be Richardson, as President of Bat- mitted Inc., tlefield, Depart- to the United States A. PRESENTED ISSUES Development Housing and Urban ment First, the decision the trial court to (HUD) February 1979 which refers (Schaub) a commis allow Donald V. Schaub agreement.” earlier “verbal to some Associates, for the Bennett-Carder & sion “reasonably says majority supported trade is not suffi Inc. land matter, subject parties, identifies (Statute of W.S.’1-23-105 cient evidence. each other” and obligations and their Frauds) the “evidence” prohibits use of (Second)of Con- then looks to Restatement majority. Without that relied tracts, 131 to overcome stat- supra, § “evidence,” to allow there is no evidence agreement But if ute of frauds. for that land trade. a commission void, identify. obligations are no there legally contract allows a void majority Second, approve I the introduc- cannot binding many years later legally to become recovery and novel claim for tion of a new finally acquired a broker’s when Schaub by this post trial in the fashion evidenced agreements, if non-party to the license. A on a claim Judgment granted record. plaintiff as an any, successful becomes the pleaded and conse- neither asserted nor a participating in business as individual quently contested nor defended. never v. Ellis Rubin corporation. Ferguson Cf. Third, permits the award of a (Fla.App. holding P.A., 80 Offices, 559 So.2d Law corporation a commission to 1990). real estate because “Brokerage Agree under W.S. 33-28-115 dered void a written 1975 1. There is the time. licensed broker at Schaub was not a signed which is also ren ment” 1312 compensa- estate board in payment listed with the real contract never for any contemplated as act or service. Wyoming statutes well tion

violation Real Wyoming rules of the Estate as the added.) (Emphasis Commission. Aviation, Inc., Under Doran v. Imeson simply, story more we have To tell the 586, F.Supp. (D.Wyo.1976) 419 588 and Dix- unqualified corporation winning a on, 271, P.2d 405 W.S. 33-28-1152 which was never judgment on a claim illegal held to mean a contract is or void provеd an individual— pleaded nor made in of that statute. when it is violation corporation collecting on that not Void, — entered into a not voidable. Schaub judgment. “brokerage agreement” with Richardson many years a before Schaub became 1975— B. BACKGROUND only licensed broker. Schaub was specific April around one broker in from 1982 to appeal centers Jan- the trial If uary for which court award- the “verbal” re- transaction report The real estate commis- in the 1979 to HUD is void ed a commission. ferred to developer’s from claim comes land under W.S. 33-28-115 because Schaub was sion performed by engi- when he the broker’s trade for services broker made neering agreement, legal firm Bennett-Carder then there are no obli- $36,735 gations identify. and accrued in- Canyon Ranch of This means Restate- $15,857.28 (Second) Contracts, computed supra, back to 1984. ment terest of § legal operate The trial court awarded commission cannot because there are no obligations identify. it found was a licensed real The statute of because during the time the Ben- estate broker frauds then remains unsatisfied because transaction, despite writing the fact there is no note or memorandum nett-Carder “agreement” upon legal which the com- which can have effect. The statute that the operate. he was then mission was based occurred before of frauds continues licensed broker. This decision was made argue To that the Bennett-Carder land despite the fact that H & S Inc. awarding as the trade can serve basis realtor, oper- under which a Utah thirty percent Schaub a commission for the qualified provide real ated was never land trade because sales activities under our statutes. estate during trade occurred the time when result, easily this court condones rec- As a did have a broker’s license is to Wyoming real estate ognized violations of principles statutory violate the construc law, penal- involving both criminal and civil previously tion touted this court. See strongly reject approach. such an ties. I Cyr County v. Board Com’rs Platte (Wyo.1989); County, 780 P.2d 988-89 C. ANALYSIS State, (Wyo. Story v. 755 P.2d Insufficiency 1988); State, the Evidence.

I. v. 751 P.2d Schultz (Wyo.1988); Equalization v. State Bd. of states: W.S. 33-28-115 Co., (Wyo. Tenneco Oil instituted, No action or suit shall be 1985); Kamp Kamp, had, court of this recovery nor (Wyo.1982). by any person compensation state 989, renderеd, In P.2d at we said “it is not Cyr, done or 780 any act service inter necessary 33-28- to resort to construction or prohibited is under this act [§§ plain.” pretation meaning is We through 101 to other than where 33-28-206] brokers, give to all sections of the statute licensed associate bro- “effect licensed ordinary meaning” per- [give] words their kers or licensed salesmen unless the “purpose and direction” of the under this act at the to find the son was licensed says 33-28-115 perform any or statute. Id. at 988. W.S. offering time act no suit shall be instituted nor shall recov procuring any promise to service or 2. Then numbered W.S. 33-355.15.

1313 person was li the” real estate laws were ery be had “unless enacted. act at the time censed under this v. Curry, Chemical Co. 778 P.2d of offer Stauffer perform any pro ing 1083, act or service or (Wyo.1989), 1093 we said this court any, promise to contract curing statutory follows the rule of construction payment compensation contem legislature presumed that “the is to intend added.) plated (Emphasis act or service.” legislation adopt that is reasonable Schaub was not a licensed broker at the logical adopt and does not intend to stat- offering plain time of in 1975 or 1979. The Tоday’s that are futile.” holding utes is I meaning of the statute —as understand language inconsistent with that in Stauffer plain meaning Schaub cannot re —means legis- and renders futile the Chemical Co. during cover for a transaction the short lative enactment of W.S. 33-28-115. time he was a broker because Schaub was not licensed at the time of the “verbal Unpleaded II. Claim Award. agreement agreement.” Permitting the why original There a is second reason during period have force of Schaub’s present holding faulty. is plain brokerage license violates both the portray To the horrendous nature of the navigation meaning of the statute and the made, necessary mistake it is to review the principles al which we have said we use to proceedings record un- from which this understanding legislative in guide our expected gift ultimately to Schaub is de- County tent. v. See Archuleta Carbon Perhaps message, there rived. is a but it (Wyo. No. 787 P.2d 94 School Dist. exculpated cannot be from or stare decisis 1990) ex rel. State Workers’ Try “How to Lawsuits” handbooks and lec- Miller, (Wyo. Comp. Div. v. 787 P.2d 90 tures. 1990). After the close of evidence and before advanced, argument al The one other argu- the decision was mаde to submit final aside, equally fatally as an flawed. most is memoranda, by filed a ment rather normal majority argues had done “Schaub event wherein Richardson’s coun- occurred required he to do in order to all that sel first stated: agreed upon commission” under earn Honor, MR. HONAKER: Your performance rule of full discussed in record, Johnston, would like to make v. 657 P.2d 359- Defendant Lambousis (Wyo.1983). That statement is com amend the con- a motion to pletely unsupported simply begs the and. form to evidence. void, agreement question. If the Any objection? THE COURT: simply part commission” is “agreed make the same MR. SNOW: We would agreement. only way of that void motion. say all that majority can Schaub had done Any objection? THE COURT: required accept to do is to as valid he was No, MR. HONAKER: sir. agreement previously the law has held No, MR. SNOW: sir. Lambousis, is void. The discussions THE Then the motions for COURT: which, turn, Engle discusses P.2d granted. both sides are Chugwater, First Nat. Bank discussion, subject further Without McKeon, 36 (Wyo.1979) and Stewart v. colloquy closed and no ensued as to what (1927), P. 1024 refer to the

Wyo. might pleadings.” in “amended be involved performance full of verbal render contract which the law does not argument final memoran- the written before, agreеment was void. As noted trial, following ‍‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‌‌‌‌​‌​​​​​​‍dum then made Lambousis, void and reliance on caught threw out a small hook which misplaced. 358 is judgment: of a whale A needs to be added to Bowlerama, trade which Re- As Inc. v. Woodside of ten Commis- Exhibit is the trade Co., (Wyo.1988), alty arranged J., sary Ranch lots which Schaub Urbigkit, dissenting, “[tjhis I see deci- did exchange for work Bennett-Carder poorly servpng] purpose for which sion * * * Canyon agreements required trade the broker to Spring Ranch. light pay thirty percent development to in the course of de- costs trade came of Kessner. Spring fendants’ cross-examination Ranch. and this included Creek * * * $122,- The value of these was proof Richardson’s Creek Ranch * * * lots traded 450.- These were consequently included the traded services benefit, for Richardson’s involv- engineering out services for which first non-Commissary development Ranch ing phase exchanged. lands This record were work. evidence, any suggestive let is devoid evidence, alone valid that an provided 41 had Schaub’s basic Exhibit parties applied was ever made between each claim for commissions and included any pleaded issue that a commission unpaid were de- item for whiсh balances project paid would be for traded out devel- Actually, manded. and mem- opment respon- services. The histrionics in litigants made clear oranda filed both by Richardson under- sive contention are traded for services that lands accepted the trial court standable since subject not to commission since were gambit non-pleaded,3 non-proved to create obligated develop- pay only judgment, a but award four costs, thirty percent, the use of ment and though year’s interest and to do so even proportionately par- to each lands insured completed the transaction was not until ty- substantially departed after had engi- The Bennett-Carder trade out of long- from the scene and was no neering services for land did not first occur qualified by Wyo- himself to transact er Ranch, phase, Spring Canyon in the second brokerage ming real estate business. $40,000 had occurred in 1979 as a trade but surveying in the initial out for services absurdity, triggering To add to the Commissary project. Ranch First Phase upon event which a commission is now transaction, granted completed not the close of no claim had At the acceptance but was the any way any made in of these been would of the identified lots which serve as land trade transactions were activities for compensation Perhaps for their services. broker, Inc., H which the & S guidepost litigants, only if to serve as a Schaub, principle, com- and its should be pathway following post-trial initial ar- pensated. Actually, the evidence later gument contention to final subject the trial court on the had used appeal appendix attached as an reflect- in address- presented been ing subsequent pleadings on if this issue ing pleaded his thesis that oral case, upon, land decision.4 This was not a waiver see agreements were relied those issues, Accordingly, subject unpleaded acreage I total due us. I have 3. On the same majority following that a parcels cannot concur with the statute selected the to arrive at the properly pleaded to $40,000.00. of limitation defense was deny repayment fee Unit C-l lots 20 and total 25, ad- to Richardson for his cash and Unit C-3 lot Unit C-2 lots 43 obviously ongo- part were vances which ing 2. premise upon which this liti- account stated of lots totals 13.358 acres This combination gation admitted the debt аnd was tried. Schaub $40,074.00 per acre. $3000.00 based nonpayment should have been faced its lots, up pay you these we will If we end with accounting proceedings in the with its inclusion your I will be in $74.00. the difference case. which constitute this complete area next week and would like to time, possible. if the land transfer at that |40,000 Evidencing trade for which a first closing, express my apprecia- I want to not claimed and also not al- commission was working relationship tion the excellent we which, significant lowed are several exhibits during project. have had It has been part, relate: working you pleasure real Jack. H & S Letter of Bennett-Carder responsive January The letter was Marketing, Inc.: repre- to a 1979 handwritten note from Schaub agreed, originally we are receive our As stating: sentative of Bennett-Carder Commissary Ridge engineering fee Sorry delay getting this infor- about the parcels in land within the subdi- Subdivision you you. As I mentioned to on the per mation to $3000.00 acre is vision. I understand you determining phone, it is Jack’s desire that choose those price we are to use in

1315 Thur Co. v. January 25, Standard Uranium agreement Western of 1975 was exe- ston, (Wyo.1960), cuted, entity certain subsequently P.2d 377 and thе created 355 theory by express the ly of case tried operational not and its status as the transact- Title see resolution, implied consent entity or ing was confirmed. Guaranty Wyoming v. Midland Co. of Wyo- It serve well the interest of would Co., Mortg. (Wyo.1969) P.2d and 451 798 majority ap- if least had ming law the Douglas, v. Town Lore P.2d 367 355 of plied non-qualifi- trial court’s the thesis of (Wyo.1960). Doran, realtor, 586; F.Supp. cation of a Rosenblum, Rosenberg v. 91, Wyo. Allowing a to an Un- III. Commission (1953), any judgment P.2d 41 and to denied Corporation. qualified corporation. It not nec- unqualified the error, holding ut majority’s the In third far essary Wyoming to wander statutes preserve intent. terly legislative fails to recognition unqualified to achieve that Es By Through v. and Real Toavs State corporation engage cannot in the real es- Commission, tate (Wyo.1981); 635 P.2d 1172 Wyoming. 33-28- tate business W.S. Foster, pes Wyo. “ Ma 102(a)(xii) provides ‘person’ that means (1928). glossing over of P. 109 individuals, corporations, partnerships entity corporate between the distinction associations, foreign H & and domestic.” by cannot justified Schaub and Marketing, clearly acting Inc. was as a S portrays clearly the en record in this com- broker transaction which bargaining and terprise was between two and menced in 1975 continued until doc dealing corporations. Volumes of Bennett-Carder land transaction was com- entity providing that the uments reflect (despite even pleted in 1987 the fact brokerage service was not but li- had surrendered his Marketing, Inc., corporation he H & S Dixon, 1983). at the end of cense Indeed, owned controlled. Applicable to the unlicensed status of 271. advantage this distinction to his used specific H & S Inc. are two ar the statute of frauds. escape Wyoming statutes. despite the H Market gued that fact & S original reads: ing, Inc. did not exist when the W.S. 33-28-114 |40,000. $40,000.00. agree you totalling parcels This is fee will be We Our want— 13,000; work, fee, per acreage price upon we accept completion based on a all currently property marketing on an are value of within this subdivision. The in lots $4,500. per average of acre. payment based so taken shall be the lots enclosed, maps indicated on the I have average price upon at the time of market already which have been sold. those lots by will be The actual lots selected settlement. assistance, any please If I can be further agreement. mutual call hesitate to me. don’t above, Work, in addition that described confirmatory to communications were Both invoiced at set forth in will be the rates by approv- made reason, schedule. attached Should May ing received a letter of 1977 which was materialize, we planned subdivision and stated: from Bennett-Carder you performed date will invoice work agree- verbal letter will confirm our rates. at these engi- Saturday, May ment of last neering Jack, agree- my understanding our this is approximately to subdivide services concur, you sign please and return If ment. Wyo- County, acres of land Lincoln 800 ming. copy one of this letter. to be is in two tracts The land divided Sincerely, described as follows: ASSOCIATES,INC. BENNETT-CARDER & described] [land Associates, propose & Inc. /s/ necessary personnel, equipment Gene Bennett to furnish the C. survey subdivide the material Vice-President approximately 3 tracts into Canyon phase above two lots ser- Ranch second each, physical terrain and features acres was evidenced a selection vices settlement configuration mitting. of each tract The final convey- completed memorandum your subject approval. will We will be dated properties deed the described ance оf necessary approval plats furnish Conveyance May Battle- was made Planning Zoning County Commission field, Inc. County, Wyoming. Lincoln (a) broker, Any person acting as a regulatory purpose as- of the entire code. Toavs, sociate broker or salesman without first egregious 635 P.2d 1172. The na- obtaining guilty a license is of a misde- ture of this turn of events is not amelio- pun- meanor conviction shall be by contending justi- rated Schaub first by ished a fine of not more than one being fication could be found an ($1,000.00) ‍‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‌‌‌‌​‌​​​​​​‍by impris- thousand dollars or Battlefield, employee of Inc. and then con- in county jail onment for a term tending joint partner- that a venture and (6) Upon to exceed six months. convic- ship Obviously, Marketing, existed. H & S subsequent person tion of a violation employee Inc. was not an under the circum- punished by shall be a fine of not more stances. ($1,000.00) than one thousand dollars or every imaginable This file reflects trans by imprisonment county jail in the for a gression regulation. of real estate These (1) year term not to exceed one or both. transgressions include: lack of real estate corporation If a convicted it is shall be activities; licensing brokerage for sales рunished by a fine of not more than five leasing man a license from a broker who ($5,000.00). thousand dollars responsibility; registered has no realtor’s (b) any If person any money receives salespeople; use of unlicensed failure to fee, equivalent or the thereof as com- comply conform or with documentation re mission, compensation profit by or or quired by Wyoming rules Real Es consequence any provi- of a violation of Commission; finally, tate a suit for through sion of this act 33-28-101 [§§ entity commission fees that was nev shall, addition, 33-28-206], he be liable qualified er abe realtor.5 See W.S. penalty to a of not less than the amount through Wyo 33-28-101 33-28-206 and the money the sum of so received and not ming Regulations Real Estate Laws and (3) than more three times the sum so (12/12/88) for current text. may received as be determined court, penalty may which be recovered D. CONCLUSION competent jurisdiction by any a court of person aggrieved. I entry would reverse and remand for any in favor of Richardson on W.S. 33-28-115 reads: judgment granted Inc., H & S instituted, action or shall No suit be Doran, 586; F.Supp. Dixon, 405 P.2d had, recovery any nor court of this 271; 41; Owens, Rosenberg, 261 P.2d by any person compensation state for 174; Mapes, 266 P. reverse rendered, any act done or service deny recovery Ben- prohibited under this act 33-28- [§§ $36,- land trade nett-Carder transaction of through to other than 33-28-206] $15,857.28. plus assessed interest of brokers, licensed licensed associate bro- Technically, Richardson is entitled probably per- or licensed kers salesmen unless previously paid, to recover all fees but that son was licensed under this act at the goes beyond or contentions offering perform any time of act or presented, particularly cross-ap- so since a procuring any promise or to con- service peal by Richardson has not been made. payment compensation tract for the Bowlerama, Inc., 33-28-114. See W.S. Cf. contemplated act or service. J., Urbigkit, dissenting. Unfortunately, just this court does not interpret real estate code. APPENDIX Instead, Mapes, 266 P. 109. it either Cf. accepts appeared this transaction for undefined rea- first post-trial argument decides discussion son or without to void memorandum ^Schaub's (throw litigative process everything 5. The demonstrated be described as hit and miss record, sticks) having something punch where the burden of at the wall and see if trial, proоf, completion alleged, adjudication (you keep pouring everything before never bowl hopefully never asserted and never documented a claim in until favor is to be found determine). recovery granted, of the character can best flavor those who commissions on a trade that defen- themselves introduced into evi- dants (the 15, trial conclud- filed November consistently Plaintiffs taken dence. have 26, 1988), which stated: ed October position litigation, in this and defen- A which needs to be added to trade agreed, plaintiffs are dants have 41 is the trade of ten Commis- Exhibit commission on all entitled to Com- 30% arranged sary Ranch lots which Schaub missary Ranch lots traded where defen- did exchange in for work Bennett-Carder dants received the entire benefit. This is * * * Canyon Ranch. Spring exactly the situation involved with the light in the course of de- trade came to Bennett-Carder land trade. Schaub’s en- cross-examination of Kessner. fendants’ titlement under this claim is no different * * * $122,- The value of these lots was arranged if had for a trade than * * * by traded These were lots Commissary Ranch lots work done for benefit, for Richardson’s involv- per- on Richardson’s non-Commissary development ing Ranch сase, just sonal ranch. The work in this work. happened Spring Canyon to be on the argument post-trial Richardson’s memo- entirely property, Ranch and has accrued 1, randum filed December 1988 stated: to defendants’ benefit. Land Trade De- 8. Bennett-Carder for Defendants assert that Jack Richard- velopment Costs son, Schaub, not Don concluded the any place or in the first time a. For $122,450land trade with Bennett-Carder. context, Plain- any in their Trial Brief the they support position, of this cite $36,735.00 claim for lodge tiffs new testimony p. of Jack Richardson at 357 of say percent of the value they is 30 Harry p. Transcript and Kessner at 10 lots traded to Bennett-Carder However, Transcript. there 234 of the Canyon. Spring work on actually land trades with Ben- were two Richardson, not Don b. Jack involving development nett-Carder —one $122,450.00 land trade Commissary concluded the work on Ranch and the oth- * * * Prior to Spring Canyon Bennett-Carder. Ranch. The testi- with er on Spring Canyon, Ben- re- mony appears their work on Gene cited defendants of Bennett- work on the nett and Chuck Johnson late to the Bennett-Carder accepted Commissary property, from Richard- Ranch which does had Carder develоpment work not relate to this claim. exchange son C-2, 1, Those and C-3. on Units disputes that Richardson ar- C— directly conducted transactions were on ei- ranged the Bennett-Carder work Richardson. He testified that he was project. ther originally found Bennett- wholly inequitable. person who c. Plaintiffs’ claim neighbor in Rock through his own land to a Carder Richardson traded his Jack he, Richardson, ar- personally Springs, worked he had contractor properties. work on both ranged Plaintiffs now years, with over * ** documentary intro- evidence straight face that attempt to claim with a sup- by defendants themselves pay Richardson to duced should order the Court $36,735.00 ports this. for Richardson’s own them not without M-4, if the claim were land. Even introduced an exhibit Exhibit equity, it has never been defendants, in law and agree- basis a memorandum not now be addressed pleaded develop- and should trading of regarding ment Canyon the Court. Ranch in Spring ment work on Commissary Ranch was return reply stated: brief Schaub’s Schaub, Harry Kessner signed by Don Regarding 3. Bennett-Carder — perti- It stated and Chuck Johnson. develop- land trade for Bennett Carder part follows: nent in Defendants’ costs discussed ment [Commissary 10 Lots Ranch] 16, complain- р. defendants are Brief at 17, 18, Lots Unit C—1 legitimate claim ing regarding Schaub’s C-2 Lots 43 Unit Lot 2. Unit C-3 9, 49, 71 Lots Unit C-2 original.) (Emphasis 15, 16, Lots Unit C-3 filed findings and conclusions In initial $122,450 Payoff Total — did not the trial court January Ranch, County, Wyo- Lincoln Canyon claim, al- the Bennett-Carder address Survey. ming claims deny fit to though it found in full. Paid Spring Can- proration of the Richardson for 1/14/83 First trial development costs. yon Ranch Don Schaub /s/ supple- in attention was evidenced court Harry Kessner /s/ J. filed findings and conclusions mental /s/ Chuck Johnson the trial court stat- where March * * * ed: not warranty deed for this was commissions for 5, 1987, in- 4. Plaintiffs seeks May it until but [sic] executed Associates work-land Bennett-Carder in the the lots referenced each of cludes (5) receipt days after five trade. Within agreement. foregoing memorandum * * * order, inform Defendants shall trade, of this arranged this Schaub Since objections to writing in of their the Court of the value of entitled to he is 30% commissions, any, if Bennett-Carder traded, as if Rich- the same basis on objec- their the reasons for together with in trade painting received a ardson had (5) receipt of De- days after tions. Five perform if he had Bennett-Carder Plaintiffs objections, any, if fendants’ While it is personal his ranch. on work inform, writing how shall Court “сonclude” that Richardson did true in the sum interest Plaintiffs calculated deed, warranty this by signing the trade $22,450.32. shall also re- Plaintiffs If this every trade. be true as would objections. spond to Defendants’ respon- was the measure of who were trade, agreement in this sible filing responded in a detailed Richardson nullity because regard would be stated: March which deemed to have could never be not Plaintiffs of whether or The issue the close of the arranged a trade. At percent of the received 30 should have evidence, their Com- plaintiffs amended by the Defendants value of land owned which to conform to plaint development work was traded for claim. particular includes fully fairly litigat- already been has sup- also documentary evidence produced on this issue was ed. Evidence arranged the that fully the fact ports parties. The issue was by both survey on work Bennett-Carder parties earlier in their final ar- argued by both plain- This claim of Commissary Now, Ranch. Plaintiffs guments to the Court. corresponding effort for pro- is an relitigate tiffs’ the issue in their seek to In a letter from Gene development cost. con- posed Judgment. The Court should March dated to Don Bennett sider thе issue closed. engineering work on regarding in- land trade The Bennett-Garder Mr. Bennett Commissary project, Ranch Defendants land owned volved stated: accepted by market value which had a $122,450.00. The Bennett-Carder agreed, we are to receive originally As exchange for work trade for the Commis- land engineering fee our Spring on the parcels in land done Ridge sary Subdivision Canyon Defendants have I understand Subdivision. the subdivision. within beginning that Jack $3,000 price are contended from the per acre is the we Richardson, Schaub, concluded determining acreage not Don the total to use I the land trade with Bennett-Carder. Accordingly, have selected due us. * * * Can- to arrive at the Prior to their work following parcels $40,000. yon, Bennett and Johnson Unit C-l Lots 20 Gene Chuck fee of total erty arguably for costs which Schaub responsible for would result from accepted Bennett-Carder had being the only “winner” out of exchange Richardson affair, Spring Canyon big and a win- C-l, C-2, Those work on Units and C-3. that. ner at directly were transactions conducted * * * Defendants’ Exhibit M-4 shows that Richardson. re- business trade with the land Bennett-Carder was orig- lationship with Bennett-Carder was 5, 1987, actually May concluded until Richardson, by Jack who contin- inated long the relationship after between Plain- relationship years. over the ued Defendnats tiffs and had terminat- [sic] $36,735.00 The Plaintiffs’ claim for ed. entirely inequitable. Jack If Mr. Schaub a commis- now claims he traded his own land to a contractor sion as a licensed real estate personally over the had worked with broker, produce he has failed evidence attempt years, Plaintiffs now proof. to sustain his burden of He has straight a face that the Court claim with no contract produced though even a bro- pay Mr. order Richardson to over should legally required produce ker is written $36,735.00 them for Richardson’s own listing agreements. 33-28- See W.S. Page As noted 17 of Defen- land. at lll(a)(xx). fact, Schaub, Mr. if he Argument, Final the Bennett- dants’ seriously a claims on the commission land trade not even be Carder should trade, has failed to by the because it was considered Court provisions Wyo- numerous follow of the pleaded, and for never in fact was raised ming Real Estate Act. More- License Brief the first time Plaintiffs’ Trial over, simply produce has Schaub failed attempt to after the trial. Plaintiffs now concerning specific agreement evidence the untimеly resurrect claim. broker and the Ben- between owner on Considering that the claim relates to nett-Carder transaction. Subdivision, Canyon Spring the Court original Findings it did in its and As put the To should claim into context. Conclusions, the over- Court should now that point, the Court has indicated rule Plaintiffs’ claim this commission. for parties away should from the walk Marketing, respond- Inc. H & S and Schaub Canyon Spring affair. The Court has follows: ed as any compensation to ordered performed Spring Canyon, plaintiffs’ on Defendants have twisted work obligated has not claim for commissions on the Bennett- the Court expenses. recogni- pay any Spring Canyon beyond of the land trade almost Carder obligated pay fully claim is If in fact Schaub was tion. This described expenses percent Spring pages Reply of the on Can- 14-17 of Plaintiffs’ Brief. initially Ben- yon, plaintiffs then the Court could wash the While it is true that by simply preparation credit- this trade in the nett-Carder transaction overlooked $36,735.00 against plaintiffs his realized this was ing Schaub of Exhibit pay obligation percent legitimate of the ex- claim when defen- fact M-4. Accord- penses. dants introduced Exhibit trial, ingly, plaintiffs at the end of the clearly The evidence has shown to con- moved to amend their Canyon fi- Spring was a Subdivision form to the evidence. De- disaster the Defendants. nancial Schaub, Canyon, on while a velopment Spring costs borne The evidence broker, Defendants, ar- solely by exceeded the licensed real estate $300,000.00. proceeds performed by work Ben- ranged But sales to trade sum $41,930.95 nett, Associates, money the & Inc. on only are all the Carder $122,- Spring Canyon property have from Can- Ranch Defendants seen $36,735.00, property in the Commis- yon. To award Don 450.00 worth * * * interest, Plain- being sary involved Ranch subdivisions. plus allegedly trades. prop- own tiffs are entitled of such in the trade Defendants 30% pre- writing plaintiffs calculated the how the commission due judgment interest on * * * Defendants received value trade. on the Bennett-Carder Commissary traded for the what was $36,735 commission claimed is amount of (the development work Ranch 30%). ($122,450 times This amount Ranch) Spring Canyon just as defendants percent times 6 multiplied then things trad- received the value for other (January 2 months 1983 to years and (such Commissary Ranch lots ed for 1989). This calculation results March cars, paintings, jewelry). The evi- $15,857.28 interest. This amount is only ini- clear that Schaub not dence is original from the amount different Bennett-Carder, company tially found plaintiffs’ proposed calculated in interest perform development work willing to calculated in error. judgment, which was property, but he also return for traded * * * ruling in trial court entered a favor Ex- specific trade. arranged this H & Inc. on of Schaub and S defendants, M-4, introduced hibit 30,1989 then corrected for erro- March M-4 is Page this out. of Exhibit bears computation interest a nunc neous 13, 1983, January a memorandum dated April pro decision entered tunc by Harry signed by Don Ben- Johnson of Kesner Chuck [sic] trial then moved for a new de- The memorandum nett-Carder. alternative, or, in the to alter or amend ultimately conveyed ten lots scribes the judgment: deed, warranty by the to Bennett-Carder trial, grant pursuant to 1. To a new (cid:127) The page 1 of M-4. which is Exhibit 59(a) Rules Civil Rule memorandum states: “Bennett-Carder Procedure, single on the issue whether $122,450.00 pay off Assoc. Inc. ... total — not Plaintiffs were entitled to or Ranch, Spring Canyon Lincoln Coun- percent estate sales commission for real Survey, paid in full.” ty, Wyoming trade, the Bennett-Carder several more it took defendants While 2. To alter or amend warranty actually issue the years to 59(e) herein, pursuant entered to Rule ar- deed, clear that the trade was it is Procedure, Wyoming Rules of Civil involved ranged plaintiffs were still while disallowing recovery by Plaintiffs for the are entitled defendants. Plaintiffs with thereby land trade and interest on the Ben- to commission and reducing judgment by the amount of trade. nett-Carder $52,592.28. the defense Defendants have raised for this Motion are as grounds good in- Canyon was not a Spring that follows: or not this for them. Whether vestment 59(a)(3) Surprise, pursuant to Rule 1. Ben- totally irrelevant to the is true is W.R.C.P. received trade. Defendants nett-Carder in the assessment of the 2. Error Commissary Ranch for the traded value 59(a)(5) recovery, pursuant to amount of engineering services in the form of lots W.R.C.P. parties Canyon which the Judgment is not sustained 3. That the $122,450. Defendants agreed was worth contrary is evidence and sufficient to be relieved of are not entitled 59(a)(6) law, pursuant to Rule W.R.C.P. they are un- merely because obligation evidence, materi- Newly 4. discovered project with how the overall happy Defendants, which Defendants as- al for the have also out. Defendants turned diligence, not, reasonable have listing could is no written there serted trial, pur- produced at the already discovered and This issue has been agreement. 59(a)(7)W.R.C.P. suant to Rule has decided and the Court briefed of frauds defense. there no statute Judgment should be reduced 5. The under the circum- Supple- as it is excessive 4 of the Court’s paragraph Conclusions, circumstances are that it di- stances. The Findings mental $52,592.28 awarded Plaintiffs have been inform the Court plaintiffs rected effectively any pleading cured 15(b).] problem. [Citing notice W.R.C.P. pleaded, which was never claim resulting decision of the trial court discovered, pretried or tried. stated: A Memorandum of and an l^aw deny The Court will the motion for new Affidavit of Counsel are attached hereto why trial. There are several reasons incorporated herein. motion should be denied. The Court will and H & S Inc. re- not mention all of reasons. April memorandum dated sponded times, all Mr. a real At Schaub acted as 1989: estate broker for Mr. Richardson and litigation, Like all other issues in this Quality Realty, Battlefield. Neither nor has ar- the Bennett-Carder trade been else, anyone acted as for the sell- broker gued reargued. argued It was first Consequently, ers. all commissions arguments in the final which were sub- earned Schaub were broker’s commis- mitted to the court in the form of written sions. Those broker’s commissions Then, request of the briefs. at the Court earned before broker’s license was se- Supplemental Findings in its and Conclu- cured recovered. cannot be 6, 1989, plaintiffs and sions dated March Mr. is' entitled to com- broker’s again addressed this issue. defendants earned after he received mission his bro- position pages Plaintiffs’ was set forth ker’s license. Mr. Richardson is entitled through Response 7 of Plaintiffs’ against to offset these lawful broker’s Objections Supplemental Defendants’ commissions, proportionate Mr. Sehaub’s Conclusions, Findings plain- share of costs which were repeat Defendants tiffs will not here. particular to the sold. attributable already requested the Court to have once respect With to the Bennett-Carder land judgment regarding the Ben- amend the trade, the is able to ascertain from Court nett-Carder claim to correct the amount the evidence the amount of broker’s com- the interest due. Plaintiffs did not amendment, which resulted missions which were earned Mr. oppose that However, pro like all other sold in the nunc tunc. Schaub. by Mr. the Court is unable to precise ascertain from the evidence the Defendants claim that it was unfair to developments costs which amount of [sic] plaintiffs judgment in the sum of award specifically against incurred were $52,592.28 for commissions from the in the Bennett-Carder lots involved support trade. Bennett-Carder land Furthermore, it transaction. while assertion, they claim that the Ben- receive parties nice if the could would be properly nett-Carder trade was not trial, perfect Supreme Court has discovered, ‍‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‌‌‌‌​‌​​​​​​‍pretried or tried. pleaded, re- recognized, perfection is not They surprise claim and now want to perfection quired. spite of the lack relitigate this claim. case, in the in this the time evidence It is incredible that defendants are presenting passed. evidence has It is n claimingsurprise all of the facts when procedure for the rules of civil now time necessary support the Bennett-Carder time for something. to mean It is now amply produced in evidence claim were final. this case to become pointed previ- at the trial. As out (Emphasis original.) briefs, ous much of the critical evidence claim was introduced defen- on this At the conclusion of

dants themselves. trial, plaintiffs and both defendants amend the in this

moved to to the evidence. No

case to conform side, made either objection was * * * granted court the motions.

Case Details

Case Name: Richardson v. Schaub

Court Name: Wyoming Supreme Court

Date Published: Aug 20, 1990

Citation: 796 P.2d 1304

Docket Number: 89-149

Court Abbreviation: Wyo.