*1 Gary dba Shelter ROSENBERG
Consultants, Appellant, RENOVATIONS, LLC,
HERITAGE LLC, Heritage Marketing,
Respondents.
No. C7-03-94.
Supreme Court of Minnesota. 29, 2004.
Rehearing Aug. Denied *2 and,
(“Marketing”) was terminable-at-will
so,
if
was due
whether
purchase agreements
commissions on
agreements that he obtained
reservation
*3
termination but
that closed after
before
in
ques-
termination.
Inherent
the latter
whether
tion is the issue
(2002),
regulates
which
the con-
listing agreements,
tent of real estate
abrogate
be construed to
a broker’s
should
remedy
equitable
to recover
commission
of a
procuring
as
sale
completed
after the
part,
terminated.
affirm in
reverse
and remand to the district court.
part
Gregory
In
Dan Hunt and Arnie
met with
to discuss the market-
ing
approximately
and
individu-
sale of
al condominium units
a real estate de-
velopment that was to
constructed in
be
In
phases
years.
April
four
over several
1997, Hunt
into an
Gregory
and
entered
Timothy Burnham
agreement
(doing
with
Alliance),
project
business as Builders
manager,
Rosenberg (doing
and sales
and
Consultants),
business as Shelter
as sales
agreement
person.1
April
contemplat-
Hunt, Gregory
Burnham
ed
and
corporation
would form a new
that would
party
agreement
be the
with Rosen-
fact,
berg.
Gregory signed
while
indi-
vidually,
Manager,
Hunt
as “Chief
OPINION
Heritage Marketing, LLC.”
HANSON, Justice.
Gregory
subsequently
and Hunt
formed
Appellant Gary Rosenberg,
corporations,
respondent Heritage
a licensed
two
broker,
Renovations,
(“Renovations”), to
grant
real estate
seeks review of a
LLC
be
summary judgment dismissing
developer
project,
his claim the owner and
Marketing,
provide marketing
for commissions on condominium sales that
and
April
closed after his
to Renovatiоns. The
agreement was ter-
sales services
questions presented
agreement
replaced
minated. The
then
main
signed by
Rosenberg’s agreement
are whether
with
a new
that was
respondent Heritage
Gregory
Hunt on behalf of
Marketing LLC
voluntarily
dispute.
1. In
Burnham
withdrew
project
from the
and is not involved with this
(hereafter
purchasers
The most 40
under contract at the
“July Agreement”).
Rosenberg’s
termination;
purchase
describes
time of his
18 as
July Agreement
Person Pro-
heading
“Sales
agreements
agree-
role under
and 20 as reservation
Rosenberg will re-
It states that
posal.”
ments. He claims that he is entitled to
coop
“2.5% on
sales
commissions of
ceive
pur-
receive commissions on sales to these
in house sales” and
and 3.5% on
though
chasers even
the sаles were not
against
receive a draw
Rosenberg will
closed until after his termination. Rosen-
$3,000
together
per
month
commissions
berg agrees
paid
that he has been
his full
$1,500
unit at the
per
an advance of
on all sales that
commission
closed before
agreement was
purchase
time that each
his termination.
July Agreement does
approved. The
*4
Marketing
Renovations and
moved for
expiration,
a date for its
explicitly state
summary judgment, arguing
July
Rosenberg
“to work
but does state
Agreement was invalid because it did not
throughout
model sales center hours
include all of the
for a
required
terms
project.”
the time frame of the
“Listing Agreement” under Minn.Stat.
Pay-
“Advance
a section entitled
Under
§ 82.195
The district court denied
[Rosenberg],”
ment to Shelter Consultаnts
motion,
Marketing’s
determining that the
July Agreement provides:
July Agreement was valid
it
because
satis-
1, 23 UNITS
BUILDING
fied the critical
of the statute
$1,500
BE PAID
TO
TO SHELTER
Marketing
had waived the
AT TIME OF AP-
CONSULTANTS
object
un-
operating
to its deficiencies
P.A.
OF COM-
PROVED
BALANCE
Agreement
years.
der the
for several
AT CLOSING LESS
MISSION DUE
Agree-
court further determined that the
ANY ACCUMULATED DRAW.
will,
ment was terminable at
but that is-
ALL OTHERS
BUILDING AND
present
sues of fact were still
as what
BE PAID TO SHELTER
TO
$500
Rosenberg was owed. The court dis-
AP-
AT TIME OF
CONSULTANTS
unnecessary
an
missed Renovations as
PROVED P.A. AND ADDITIONAL
July
party because it was not named
$1,000
BE PAID AT THE TIME
TO
Agreement.
IN EACH BUILD-
OF 50% PRESALE
ING BALANCE OF COMMISSION
discovery, Rosenberg
After continued
BE PAID AT
LESS
TO
CLOSING
to include a
complaint
moved to amend his
DRAW.
ANY ACCUMULATED
arrangement
claim
between
AD-
IF A
MONEY
SALE CANCELS
joint
Mar-
parties was
venture.
actually
BE
WILL
CREDITED
VANCED
summary
keting renewed its motion for
NEXT NEW SALE OR
AGAINST
judgment.
The district
court denied
WOULD
SHELTER CONSULTANTS
Rosenberg’s
granted
motion to amend and
$1,500.
PAY
THE
BACK
summary judg-
for
Marketing’s motion
ment,
Rosenberg had
determining that
1 and
Rosenberg
phases
sold units for
had
lawfully terminated and that he
been
Septem-
July
through
from
2000.
him
paid all commissions due to
been
2000, Rosenberg
began
also
to sell
ber
termination date. The court
14, 2001,
through his
phase
February
for
units
On
in-
Rosenberg’s
failure to
concluded
a fax
Rosenberg
sent
effective-
July
an “override clause”
clude
ly terminating
instructing
services and
his
as authorized
Marketing’s Agreement,
stop selling
him to
units on
any claim for commis-
precluded
al-
Rosenberg claims that he had
behalf.
(2)
description
property
of the real
that closed after his termi-
sions on sales
involved;
nation date.2
(3)
price
any
required
the list
terms
affirmed,
appeals
conclud
The court
seller;
by the
(1)
July Agreement
did not
ing that
(4)
compensation
the amount of
(2) summary
joint
venture and
create
comput-
commission
the basis
because the
judgment
appropriate
was
commission;
ing the
July Agreement
terminable at will and
(5)
explaining
all of the com
paid
had been
a clear statement
at the time of termination.
that will
missions due
events or conditions
entitle
Renovations, LLC,
commission;
Rosenberg Heritage
a broker to a
C7-03-94,
*2-4
No.
time requirements listing agreem eated the for a person re- agreement with the a written substantially ent.3 This rule was similar quired to be licensed.” MinmStat. to and was later codified in (2002). Rosenberg argues 1 & subds. opportunity § 82.195. have not had the duly July licensed and the that he was question address the whether section requirement for a Agreement satisfied required predecessor rule writing. compliance. strict substantial determined that sec- The district court appeals did so R.M. Parranto but ruled that the applied tion 82.195 (Minn. Bernick, Co. v. valid because it substan- Agreement was App.1984). appeals The court of conclud section 82.195 and tially complied with compliance that the substantial doctrine ed had waived deficiencies rule. Id. applied of Rueben conduct. its course of question writing court held that Compliance Substantial satisfied the under both the Gibbs, 322- Rueben though and the rule even it did not statute *6 857, 23, (1973), 858 we ad- 210 N.W.2d expiration contain a date. Id.4 We definite previous statutory requirement a dressed and hold agree with R.M. Parranto Co. writing be in be- that a compliance that the substantial doctrine of estate broker can maintain an fore the real applies Rueben to section 82.195. There, bro- action for a commission. Dealing Course of agree- an informal sales ker had written Even if section were viewed as 82.195 pur- ment after the seller had frauds, generally recog- statute of we have buyer. Id. at agreement chase requirements of a statute of nized that the 322-23, at 858. observed 210 N.W.2d by parties’ may superceded frauds be defin- that there were no rules statutes Carlstrom, 347 performance. Berg v. listing agreement. contents of a ing the promulgated by a commission unless the violation makes first the Com- 3. The rule was Department recovery particular in 1982 as Minn. R. case merce 2800.3800, unfair in the before renumbered was later the court. 20,May eventually repealed by Act and of Burley, Props., v. 278 Ill. But see Brian Inc. 1993, 309, 32, 1993 Minn. Laws 1814. ch. 522, 272, 956, App.3d 662 N.E.2d 214 Ill.Dec. Roberts, Practice-Real See Eileen Minnesota (holding that 525 Estate Law 1.11% licensing act violated the expiration date was by omitting a definite 1, Roderick, 158 Vt. 4. See also MacDonald Invest., void); Bangle Realty 80 v. Holland 369, (1992): 603 A.2d 372 331, 138, (1964) ("[e]n- Nev. 393 P.2d 140 * * * the violation When the claim is that agreement] precluded be is [of forcement required occurred because of failure tо use termi to contain definite cause of its failure language or because of the omission or date.”). nation term, required of a there will misstatement recover no on the broker's to be effect 326 (Minn.1984) (“An 809, agree- pre- with no definite date is 812
N.W.2d v. Minneso- sumed to be at will. Martens may taken out of the statute ment be * * * * * Co., Mfg. Min. ta & by part performance frauds (Minn.2000). Wohlrabe, 107, 110, In Pine Bank v. River State Doyle v. Mettille, (Minn.1983), (1954) (“That adherence “[wjhere hiring we said that is for an perfec- of the statute or to the strict letter * * * term, employment is indefinite drafting convey- of the written tion in the said to be ‘at-will.’ This means that the in themselves is illus- ance are not ends employer summarily can dismiss the em- by equitable trated doctrine * * any or no *.” ployee reason reason used as an instrument may stаtute not be may, performance and that part of fraud July Agreement express does not instances, the transaction whol- place some definite termination date. It refers to statute.”). ly This was the outside some events that could used to deter- be by Wyoming Supreme taken view date, mine a termination such as the refer- listing agree- of an real estate Court oral project” time frame ence “the Cook, Wyoming Realty ment Co. v. All But it “Building Others.” that, (Wyo.1994) (holding P.2d not clear that these references were in- the statute of frauds can be because satis- tended to describe the termination event by performance full of one of the fied they because are incidental to other terms listing agree- the lack of a written parties, that do not dеal with termination.5 ment would not bar enforcement of the argue does different agreement). oral legal principles apply listing agree- conclusions, ments, court’s argues July
The district but instead July Agreement substantially complied Agreement not silent on the issue with section and that Rosenberg argues 82.195 duration. that the du- objections event, date, waived its deficiencies ration was defined not a dealing, appli- course reflect the sound because no one knew when the sale of principles. cation of these multiple completed. these units would be Agreement did contain the essential con- suggests He that the duration was to be required by section tents until the unit was last sold. *7 performance by parties extensive both sat- no Because thеre is definite date aspects isfied statute of frauds of sec- contract or even an event from which one tion 82.195. date, reasonably could determine a definite prop- we hold that the district court could
II. erly specific conclude that the lack of a Our conclusion that July Agree- termination date rendered the Agreement is a valid ment at will. terminable brings question us to the of whether the III.
Agreement 4-phase extends for the entire project July Agreement or is terminable at will. The conclusion that the Under law, employment agreement presents Minnesota is terminable at will the next Co., will, Lapadat Clapp-Thomssen brokerage at In v. firm was terminable stat- 606, (Minn.App.1986), ing: April Agreement is silent on the "[t]he appeals applied principlеs employ- duration; result, as a it is terminable issue of ment law to determine that a real estate bro- at of law.” will as matter manager ker’s to act as sales for a commissions, agreement. Accordingly, any, signed purchase if did what question: cannot to his termination? the claim for commissions be decid- Rosenberg prior earn at to look both requires ground Rosenberg us question simple This ed on the and at July Agreement of the pur- the terms had earned the commissions when the remedy. cause” “procuring equitable agreements signed. chase were Earned Commissions Procuring Cause his com
Generally, a broker earns Holle, Spring In Co. v. 248 Minn. performed all he has mission “when 51, 55, 315, (1956), we rec 78 N.W.2d v. perform.” Greer he undertook that a has a to a ognized broker 510, Kooikеr, 499, 253 N.W.2d has commission when the broker been the 133, constitutes a But what sale, procuring though cause for the even on the depends performance full broker’s completed after the sale the broker and agreement between exact and the com agreement has terminated Penkert, 252 Minn. the seller. Olson prior not to term mission had been earned 334, 342, 90 N.W.2d Olson, this rule is ination.6 As stated Olson, we said: principle that “no based on the contract that, authority is weight of great nonperform one can avail himself of the have employer and his unless the broker who has precedent ance of a condition contrary, the expressly stipulated nonperformance.” himself occasioned its compensation to his is entitled broker Minn, at 200. at 90 N.W.2d nеgotiations of the upon completion here, applied As this rule would lead undertook, irrespective which he that, conclusion because the termi- negotiated or not the contract whether Rosenberg by Marketing nation of caused or whether actually consummated closing, of the which nonperformance due to complete the contract is failure to only remaining condition for was the employer the default or refusal commissions, earn Market- Rosenberg to procured by the party to that of the of that condi- ing rely cannot on the failure carry it broker, the failure to long so all for commissions on tion and is liable any fault of the is not due to through procur- for which sales long as he has been broker or so brings This conclusion us ing cause. faith. guilty of fraud or bad common law of whether the question (emphasis at 201 Id. at estate broker who was remedy for a real added). of a sale has been procuring that he earned his Rosenberg argues replaced abrogated by section pur- he obtained commission when statutory remedy. “override” Olson, we applying but agreements, chase *8 deroga in Generally, statutes “expressly parties have conclude that strictly are to be of the common law tion contrary.” stipulated to Bank Acquisition Co. v. construed. Shaw that if a sale does not Agreement specifies (Minn. 873, River, 877 Elk 639 N.W.2d close, given to ultimately any advance Co., 222 2002); Express Am. Bloom v. purchase for the (1946). 253, 570, 249, 573 23 N.W.2d to the next Minn. applied be refunded or would 469, 471, Erickson, 234 recognized procuring Stead v. 6. Minnesota has Wann, 678, (1931); spanning Armstrong 29 remedy cases v. cause in numerous N.W. 679 Hagen 127, 345, (1882). Wright 126, See v. M.B. several decades. 346 12 N.W. Minn. Co., 62, (Minn. 1978); Realty 66 269 N.W.2d 328 property or who also 73 Am.Jur.2d Statutes 191 showed interest
See
presumed
legis
is not
during
listing.
the term of the
“[I]t
modify
abrogate
82.195,
to
lature intended
subd. 5
subject any
law on the
rule of the common
A
proposed interpretation
second
of sec
expressly
further than that which is
de
comprehensively
tion 82.195 is that it so
indicated.”).
addition,
In
clearly
clared or
subject
addresses
the effect of the
derogation
equi
of an
statutes that are
a listing agreement
termination of
on a
strictly
remedy
table
are likewise
be
right
that
broker’s
commissions
“supplant[],
im
construed so as not to
statutory
remedy
override
was
intended
equity’s normal func
pair!] or restrict!]
In Lynn
Realty
be exclusive.
Beechler
Co.
complete justice.” Swog
an aid to
tion as
(Minn.
Wamygora,
458, 465,
Taylor, 243 Minn.
ger v.
App.1986),
appeals
held that
In
N.W.2d
See also
re
the administrative
that preceded
rule
sec
432, 442,
Corp.,
Lakeland Dev.
Minn.
82.195,
tion
and authorized an override
(1967)).
remedy, superceded
procuring
cause
proposed interpretation
One
of section principles recognized in Spring Co. The
it
provides
82.195 is that
alternative
appeals
court of
held that the failure of the
remedy, allowing brokers to
establish
provide
protective
broker to
customer
they
to commissions even where
list within 72 hours after the
cause,
procuring
were not the
but then
listing agreement precluded
the bro
remedy
acсess to that more
limits
liberal
ker’s claim for
Lynn
commission.
by requiring
Co.,
Realty
Beechler
329 Minn, 464, in to at at chapter Swogger, in ex- N.W.2d any language elude 382, any equity common we said that “functions abrogate modify or as pressly supplement to rest of law the the where its law remedies. inadequate are to do complete remedies Second, leg- the importantly, and more justice.” in We held that the absence of any intent to disclaimed еxpressly islature express language necessary implication, or “Scope law in the abrogate the common statute, which had partition modified chapter 82. When section of and Effect” in- procedures partition for actions be enacted, legisla- was first chapter 82 terpreted restricting court’s equita- of scope and effect ture described jurisdiction to other plans ble consider “The for chapter requirement as follows: jus- necessary provide complete where to relationships of set agency disclosure 464-65, tice. Id. at at 382. N.W.2d are intended to chapter forth in this said: regula- for a minimum standard establish enactments, Statutory though they even not to ab- tory and are intended purposes, provide procedures pre- new to enforce May 20, rogate common law.” Act of existing rights equity, at law in are and 309, 1794, 9,§ Laws ch. harmony existing to read in be with added). (emphasis this law, body existing of of equita- inclusive amended, language was scope and effect intention principles, ble unless an to the idea but the amendment reinforced change repeal apparent. or it is not the com- replace statute did law, in providing: mon “Disclosures made Id. at at 382. for dis- accordance Similarly, we though have said that even in relationships set forth agency closure of governing the dissolution of a statutes satisfy to com- chapter
this are sufficient corporation prescribed specific procedures requirements.” Minn. mon law disclosure dissolution, grounds the statute (2002). Thus, Stat. subd. 3 eliminating not be should construed as expressly of initial version section pre-existing powers equity. court’s any abrogate the com- disclaimed intent Minn, at Corp., Lakeland Dev. mon version ex- law the amended recognized at 764-65. Thus we law recognized that common re- pressly by statute to authority the court’s are quirements continue to exist and not corporation was an alternative dissolve replaced by the statute. not eliminate the court’s remedy did ap- so. Third, imply general equitable power to do As we have been reluctant here, all plied likely agree law would abrogate an common intent de- expressly. application strict of section 82.195 to does do so where statute any recovery of respеct prive Rosenberg of com- particularly This true with Thus, pro- pensation for extensive work equitable principles and remedies. injury arising gence liability employer prescribed by accruing as a result of operation, ownership, chapter place maintenance exclusive and in the out this that, by providing liability employee, per- or use of motor vehicle” any other to such action, person spouse, "no shall recover representative, surviving par- in such sonal ent, kin, child, damages unless” dependent, for noneconomic detriment next or damage damages specified exceeds person sum of elements to recover on other entitled $4,000 permanent injury or the results injuiy account such death. injury, death dis- disfigurement, permanent § 176.031 And Minneso- Minn.Stat. ability days or for 60 more. statute ta's No-Fault Automobile Insurance 65B.51, and 3 negli- subds. 1 the common law "action modifies *10 matter) significant Marketing provision, for requiring duced benefit that as complete equity. not do extra-contractual, would that party seeking an equitable remedy must first show that the Fourth, earlier, permissive as noted the expressly contract gave notice that not language sug- of section 82.195 does equitable remedy might be available. The gest an intention exclusion. statute require does not an override clause be considerations, all Weighing of these we but included treats provid- remedy conclude that override Moreover, optional-“if applicable.” it as pro- ed section 82.195 was intended only language that could be construed to, abrogate, vide an alternative but not to restricting as civil actions on equitable the court’s authority to use the nar- agreement is subdivision which is procuring remedy cause necessary where rowly proscribe limited that “Licensees equity.8 to do A complete similar conclu- shall not seek to enforce an clause override sion was reached Colorado Court * * subd. unless Appeals in Telluride Real Estate Co. v. 4(a) (2002). Rosenberg does not seek to LLC, Affiliates, Penthouse 996 P.2d in this enforce override clause action (Colo.App.1999). rejected The court only thus does not violate the statute’s argument that a regulating statute proscription. relationships between real estate brokers 2(5) dissent’s reliance The on subdivision and sellers was intended to exist- supplant misplaced. law, of section 82.195 is The re- ing holding common statute quirement all subdivision that list- did not eliminate the common procur- law ing agreements contain “a clear statement ing remedy. cause explaining the events conditions that genuine Because materi issues of will entitle broker to a commission” ad- al fact with respect Rosenberg’s exist question dresses of when commissions claims, cause procuring we reverse the contractually are earned. As we discussed grant summary judgment Marketing for earlier, July Agreement explain did for and remand trial of those claims. contractually how commissions were to be earned, and we have concluded that be- rv. Rosenberg cause did nоt earn further reversal of Agreement, summary judg Our commissions under the Marketing ment for remedy. he had no contract But necessitates a review pro- Rosenberg’s curing against cause claim equitable doctrine is an reme- Renovations. dy only that is contends available where there is no that the district remedy; is, in dismissing contract erred all against where commis- claims Ren sions not contractually acting were earned at the ovations because was time of termination. do read an agent sub- for Renovations and he should be 2(5) (or any division other statute of pursue frauds able to both corporations. Market- noted, specifically recognizes 8. One article analysis only this is correct if no provides override clause to the alternativе very extension exists. clause reason procuring (referring remedy extension clause is to afford clause"): override clause as an "extension protections broker additional not allowed purpose procuring cause doctrine. of an clause is often extension Hyde, John & misunderstood. M. Norwood Cornelius J. Ex- some cases broker Agree- held to Listing be entitled to tension Clauses in Louisiana his commission ments, if "pro- he could show that he was the 42 La. L.Rev. 1012-13 curing (footnote omitted). cause” of the has sale. As been *11 (Second) § The correctly Agency of the district court ing argues that because party as a comments state: dismissed Renovations listing a party not Renovations was The not principal’s fact name is argues that Markеting also agreement. in the instrument and that there is no an for Renova- “agent” was not Marketing appearance agency upon writing the did not have tions because Renovations parties is the some evidence that intend- Marketing. over continuous control to agent ed that the alone was be liable. However, it is not evidence to sufficient the appeals The court of did not address that a or rebut the inference disclosed that there “agency” because it held issue to partially party disclosed is a principal and, against Marketing was no valid claim by agent. a contract made his thus, against no claim there could be valid Rosenberg, WL not, Renovations. Upon question the or un- whether But, we at *4. because reverse circumstances, person der the the third appeals the court of on the the decision of agent only, the accepted credit against Marketing, claim procuring cause binding the the written memorandum Rosenberg has the issue of whether stated evidence, agent not unless is conclusive takes on against a valid claim Renovations by the is specific principal its terms significance. renewed a party. excluded as argues that the rules of civil Rosenberg applies Id. at cmt. a. The same rule to not authorize the dismissal of procedure do principals: undisclosed undisclosed “[a]n grounds that the party merely party a on by is bound contracts and con- principal true the “necessary.” not It is by is veyances agent made on aсcount his “necessary” use of the word district court’s authority.” his Id. at acting within a concept a of neces- was misnomer. by not fact the changed And the rule is the a sary party arises where is not party §§ Id. writing. must be in at contract joined party’s presence recognizes and 193. Section 82.195 ability to necessary may action that a be possibility complete to relief avoid grant signed agent by stating that a by R. obligations. Minn. Civ. P. inconsistent may by either be join has to plaintiff 19.01. A to authorized person owner or “another can against plaintiff whom the state person property offer the for sale.” MinmStat. claim, joinder though even subd. “necessary” technically is not but person Ren- supporting the view that Evidence R. P. 20.01. only “permissive.” Minn. Civ. party to the was intended to be оvations the fact Agreement has includes question Rosenberg is whether Renovations, Rosenberg were payments commission against claim which stated Renovations, Marketing; made question turns on the whether Renovations identify Agreements Renova- albeit un- Reservation party, considered a should be Rosenberg’s compa- named, According tions as “Seller” and July Agreement. to the Consultants, Restatement, as “Seller’s ny, principal a disclosed Shelter Pur- agent”; and the New Construction subject liability an authorized upon “is * * * list likewise writing although pur- Agreements it chase contract in Further, May Agent.” agent, un- “Seller’s ports be the contract of Renovations and between party by Agreement as a principal less excluded for “subcon- Marketing provision has the terms of instrument which authorized parties.” Restatement tracts” agreement of control, through services to Renovations provide proprietorship sharing *12 subcontractors, subject profits losses, to approval by necessarily but not and (4) Lohmar, a Delgado Renovations. contract.” v. 289 (Minn.1979) 2 (citing n. Because the court did not district ad- Adams, Treichel v. 280 Minn. agency these and dress issues dismissed (1968); Rehnberg N.W.2d 263 v. Minneso- inappropriate ground, on an Renovations Homes, Inc., ta 52 N.W.2d Rosenberg opportunity not a foil given was (1952)). Although it appears agency to a present record on these issues. Rosenberg may participated have the record that is sufficient The does exist to initial stages development, pro- of the he preclude dismissal of Renovations under joint vides no propri- evidence he had either Minn. R. P. or 56. Civ. We etorship or control that he was to share summary judgment reverse the dismissing profits development. of the To Rosenberg’s against claims Renovations. contrary, listing agreement states that employed salesperson as a V. for specified par- commissions. And the Finally, Rosenberg argues that ties’ conduct under the district court in denying erred his mo they regarded demonstrates that Rosen- complaint tion amend his to include a commission berg as a agent, joint not a joint claim for breach of a venture. A venturer. may party complaint amend its after a responsive pleading only by is served We leave conclude that the district did of the court. Minn. Civ. R. P. 15.01. not abuse its discretion when it deniеd stated that the of plead Rosenberg’s have amendment motion to amend because ings liberally joint should be claim allowed unless of a venture would not survive party prejudiced. summary adverse would be a judgment Fabio motion. Bellomo, (Minn. v. in part, part Affirmed reversed in and 1993). But we have cautioned that remanded. deny court should motion a to amend a complaint where proposed claim could ANDERSON, Russell A. (dissenting). not withstand summary judgment. M.H. majority ignores Because the both the Services, Family Caritas intent legislature long- and our (Minn.1992). 282, 290 I standing precedent, respectfully dissent. law,
Under Chapter Minnesota four re 82 of the Minnesota is a Statutes quirements must comprehensive be met order to mandatory statutory create joint a venture. four requirements These regulаtion scheme for the of real estate “(1) (2) are contribution all by parties, joint brokers and salespersons.1 person No 1. There can be no comply licensed real estate brokers are (2002) shall obtain other owner legislature: Subdivision 1. mandatory is evidenced with the of real written authorization from nature of Minn.Stat. property signed listing agreement provisions Requirement. disputing the terms utilized * * *. chapter required Licensees fact that be effective to the effect that the override clause will not or conditions that will entitle commission; ments must be in clause, [*] (1) n Subd. 2. Contents. All (5) a definite [*] information a clear statement [*] if applicable, including unless writing regarding licensee explaining date; and must include: listing agree- a broker an override supplies statement the events broker, majority apparently salesperson, believes that act a real estate comprehensive beneath these clear and licensed. closing agent unless or real estate statutory prohibitions fact, subd. surviving equitable remedy common law clear that an real made unlicensed we have which to recover a com- allows broker may maintain action estate broker procuring mission when broker is of a commission. Reloca- for the collection completed of a sale after termination Corp. Realty Services v. Carlson tion *13 view, my In listing agreement. of the the Inc., 643, 645 Companies, listing into majority agree- has read this Enter., (Minn.1978); Inc. accord Dellwood provision” ment a “similar to an override Fund, Am. Estate 505 v. Pac. Real legislature clause that has clearly pro- the (D.Minn.), ajfd, F.2d 189 653 F.Supp. 82.195, § hibited. See Minn.Stat. subd. 3. Cir.1981). (8th 350 listing agreement that a requiring license addition to enforce has override clause seeks no brokers, this, as an action such maintain allow, upon notice, would proper that re- Rosenberg, required to obtain such are covery of commissions after termination of includes, listing agreement a listing The common law agreement. the “a clear among things, other statement majority is principle upon by relied the listing the events or conditions explaining agree- nowhere referenced the statute, ment, which, according a broker to commission.” must will entitle 2(5) (2002). 82.195, explaining A contain “a § clear statement subd. Minn.Stat. entitle events or conditions that will a bro- an over not” seek to enforcе broker “shall ker commission.” Minn.Stat. has protective ride unless a list clause 2(5). Wh,en 82.195, legislature § subd. 72 to the seller within been furnished or conditions that will provides that events listing of the expiration hours after entitle a broker to a commission must be 82.195, 4 § agreement. Minn.Stat. subd. in a “clear explained statement” Schuette, Douglas also See agreement, I conclude that a listing would Lynn (Minn.App.2000); claim, nor common law neither mentioned Realty Warnygora, Co. v. Beechler listing in a explained by a clear statement (Minn.App.1986). The agreement, is barred. provision may not length of the override beyond than months (and extend more majority specific relies on a and, listing agreement expiration amended) of chapter since section of here, a bro excеption applicable legislature intend- proposition agree not” include portion chapter abrogate ker “shall 82 to ed no clause, automatic exten cited ment a holdover common law. The section * * however, 82.197, § *.” sion, any provision majority, similar Minn.Stat. “or (2002), very applied terms its § subd. 3 subd. Minn.Stat. length of which is protective or an override clause the list within 72 hours seller with expiration more than six months after listing agreement; of the after listing agreement. of the clauses, (a) Subd. Override Licensees Ex- 3. Prohibited transactions. Subd. override clause shall not seek to enforce an cept provided in subdivision as otherwise protective has been furnished unless a list (b), paragraph licensees shall not include expi- after the within 72 hours seller сlause, auto- a holdover listing agreement. ration of the extension, provision, similar matic added). (2002) (emphasis Minn.Stat. ker], to “the for disclosure a man experience in this line of agency relationships set forth in business, this chap- knew protect how to himself in added.) ter.” (Emphasis so.”). Because the dis- transaction but failed to do I pute before us does not involve the disclo- would not remedy enforce a legis- agency sure of an relationship, prohibited. but rather lature has I respectfully dis- adequacy listing agreement, sent. wholly 82.197 is irrelevant. BLATZ, C.J. (dissenting). By admittance, his own Rosenberg, a join I in the dissent of Justice Russell A. licensed real estate broker with over 20 Anderson. years experience, failed to comply with express statutory provisions would allow entitlement to a commission
after termination of the listing agreement.
See Marks v. Walter G. McCarty Corp., 33
Cal.2d 205 P.2d
(“The plaintiff [a licensed real estate bro-