*1 COMPANY, INC CURIS v REAL ESTATE SCHULTES 1987, 14, Decided at Detroit. No. 91452. Submitted October Docket 20, 1988. June Inc., brought Company, in the 32- an action Real Estate against and Diane Curis to Michael Curis A District Court brokerage allegedly earned recover against Michael Curis. in favor of court found Court, Cynthia appealed Wayne D. Ste- Circuit He and the J., granted. appealed by phens, Curis leave affirmed. Appeals The Court held: findings of appellate set a trial court’s court will aside An finding findings clearly only A is are erroneous. fact when those when, support although clearly is evidence there erroneous it, reviewing is left with a the entire evidence court on been made. that a mistake has and firm conviction definite rule, give special appellate defer- applying courts should this upon findings they its are based court’s when to the trial ence credibility. of the evi- A review of the witnesses’ assessment Appeals belief that the trial with the left the Court of dence clearly findings of fact were erroneous. court’s Reversed. Timms, J., give greater deference to J. C. dissented. He court, position findings in a better of the trial which credibility witnesses. He would affirm. assess the Appeal Findings — — of Fact Court Rules. 1. findings appellate of fact will set aside a trial court’s An court erroneous; finding findings clearly is are when those when, support although clearly evidence to there is erroneous it, reviewing is left with a entire evidence court on the made; in been conviction that mistake has and firm definite give rule, special appellate defer- applying should courts this References 2d, seq. Appeal 820 et and Error §§ Am Jur 2d, seq. 38 et Am Jur Brokers §§ 2d, seq. 44 et Statute of Frauds §§ Am Jur Agreement agreements requiring within statute between brokers as writing. 44 of real estate be for the sale
for commissions ALR2d 741. Schultes Real Estate v Curis findings ence to the upon trial court’s are based its (MCR credibility assessment of the 2.613[C]). witnesses’ — Frauds, 2. *2 Statute of Brokers. parties The mere fact to an to a commis- not, sion in the sale of real are licensed brokers does itself, requirements of remove the contract from the (MCL 566.132[e]; of 26.922[e]). statute frauds MSA Schultes, John C.
Miro, (by Weiner, Miro & P.C. Andrew S. Con- way), for defendant. Gillis, P.J., J.
Before: H. and Gribbs and J. C. Timms,* JJ. Defendant-appellant appeals
J. H. P.J. Gillis, granted leave ing from the circuit order court’s affirm- judgment awarding plaintiff the district court’s brokerage commission. We reverse. listing 28, 1982, On June obtained a Pokorny, from Doctor and Mrs. vendees, land contract of the home at 80 Stillmea- Pokornys agreed dow in Grosse Pointe Shores. The pay plaintiff percent a seven commission if it sold agent their interest the home. Plaintiff’s attempted Paula Moore to sell the home. (hereinafter Defendant Michael Curis defen- dant), a broker, licensed real estate made an offer September pro- 30, to Moore on 1982. The offer selling commission, vided that broker, as the would be reduced from seven percent. pur- Defendant, three and one-half as the chasing broker, would his waive three and one-half percent commission in order to make the offer more attractive dant’s cost. home with his seller and reduce defen- purchasing Defendant, who was acting wife, was also his as own * judge, sitting Appeals by assignment. Circuit on the Court of Opinion the Court Company. Pokornys, Investment of Curis on behalf broker presented to the offer defendant’s Moore rejected it. who 12, 1982, for a title
On October Pokornys city owed search and learned mortgages county and an taxes and had two and attorney’s property. also lien on the Doctor contract vendor the land learned Joseph Sazyc. offer. 27, made another
On October higher offer, but its his first This offer was terms were similar. dant’s second offer. than rejected defen- purchased the 20, 1982, defendant December On directly on then foreclosed He from home Pokornys’ failed land contract Plaintiff at- redeem, he received home. to tempted period expired. *3 redemption property until the to sell the Pokornys the between the time What occurred rejected defendant offer and defendant’s second dispute. purchased in the home is requested a trial, that he testified At manager, meeting Schultes, with Alice handling with Moore’s he was dissatisfied Moore claimed that transaction. Defendant of the kept calling to inform him that there were him higher and, not if he did the home other offers on offer, be sold the home would increase his someone else. to handle the sale. Ms. Schultes then asked Defendant that Ms. claimed Defendant meeting Sazyc, suggested between then Schultes arrange- Pokornys if to see and defendant the Sazyc would where ment could be worked out Pokornys to the and enable his demands reduce thereby, money from the sale some receive secure plaintiff. for a commission to defendant and a sale up; meeting did not A was set Schultes Estate v Curis arranged meeting. who the know Before the meet- ing, Moore called defendant and told him that she bringing sign was a commission for him to letter meeting place. before the could take Defendant that stated he would look the letter over. Defen- meeting. Pokornys dant attended the present; not were attorney however, their was. Defendant surprised present. was At that the were not meeting, nothing resolved; the lunch was how- presented agree- ever, Moore defendant with an providing pay plaintiff ment that he com- directly if mission he home from gave Sazyc. agreement Defendant read the attorney, Bringer. to his Paul Because defendant agree- commission, never had signed. ment
lunch. Defendant claimed he was never asked by thereafter contacted Ms. Schultes. Defendant was contacted on the Moore signed purchase day after he time, At that she told defendant plaintiff had received better offers for the Pokor- nys’ represent interest and that she could not agreement. signed he defendant unless Defen- already purchased told dant Moore he had property. Ms. Schultes that defendant testified asked for a person- with her. Defendant asked her meeting, ally handle the transaction. At that de- help obtaining fendant also asked for her home. to work with suggested higher prices some *4 suggested and also that defendant could mitigate Sazyc his stance on the owing Thereafter, the amount on land contract. contacted Ms. and her that Moore defendant told Sazyc to meet
wanted with spend money could not more than he Pokornys. had offered the unable to Defendant was 169 Opinion of Court the plaintiffs Sazyc and, therefore, asked for reach meeting help. another with Ms. had Defendant you.” "I of take care Schultes. He told her Although will mentioned, Ms. Schultes no amount was they were understood that that it was claimed talking of the seven com- one-half about meeting Sazyc and defen- The between mission. place 12. Prior to the dant took on November following plaintiffs prepared office agreement: agreement if results hereby agreed
It is 80 Stillmeadow property of known as sale Curis, that Michael Dr. Czak and and between [sic] price of the sale shall be 3.5% Inc. to Schultes Dr. Czak [sic]
Michael Curis Estate, Inc.
Schultes Real that defendant asked Moore Ms. Schultes claimed agreement bring lunch meet- drafted ing. if meeting. Sazyc appeared Ms. Schultes could at explain why Sazyc’s Dr. was on the name alleg- agreement edly agreed had even to Ms. Schultes conceded it.
never listed morning, Ms. out from next Schultes found Pokornys’ Pratt, friend Bill and Moore and present attorney lunch at the meet- who had been agent ing also real estate who was unsigned. plaintiff, *5 Schultes Real Estate v Curis Opinion of the Court subsequent Schultes’ efforts contact defendant Bringer by telephone or were unsuccessful and she later learned from that defendant Sazyc. had from Plaintiff attempts Pokornys’ continued its est until the to sell the inter- redemption period was over. Pokornys rejected that,
Moore testified after the offer, defendant’s second asked her to set defendant called her and up meeting Moore telephone obtained unlisted number from Safe’s Pokornys. suggested meeting at Chop but, Paul’s far, House because too was meeting was held at Pernie’s. Moore claimed that promised defendant if Moore defendant, meeting. to cover
brought Sazyc meeting. Moore, to the
Bringer, Sazyc Pratt and were at the represented plaintiff. Pratt, Moore al plaintiff’s agent, represented also the Po kornys because were unable to attend. Moore brought testified ing she concern meeting. the commission to the Moore claimed arranged that Ms. Schultes and defendant had preparation of the document and had over telephone sign the the that defendant would it before
meeting. agree Moore asked Curis two or ment three times. Defendant declined to do stating: worry, so, "Don’t I’ll handle it later.” stop Moore did not meeting,
there. After the she tried to call defen messages, dant and left he but never returned her calls. 26.922(e) 566.132(e); provides: MCL MSA following In the an agreement, cases contract or void, agreement, promise shall be unless con- promise, or a or tract or note memorandum writing signed by party thereof is in to be charged therewith, by or person authorized him: 169 (e) agreement, promise, or contract An upon the sale of interest
commissionfor
real estate.
*6
Thompson
Carey’s
v
Real
335 Mich
(1953),
Supreme Court
474; 56
255
our
held
NW2d
agreement concerning
no
a commis-
written
plaintiff,
required
real
the
a
estate
to re-
sion was
agent
where
employed by
defendant,
the
percentage
compensation
of
a
the commis-
as
ceive
sions on sales
originated by him. Our Court noted
protect
purpose
real
of
to
the statute was
against
or fraudulent
unfounded
estate owners
compensation
and, therefore,
due
claims of brokers
salesman-employee
his
a
estate broker to
from real
contemplated
type
un-
not the
of commission
was
der
Mich
Schatten,
also Borisoff v
335
statute. See
684;
NW2d
Borisoff,
12;
he refused Supreme Court noted that there was Our agree- Legislature require for the no reason brokers for services rendered ment between their writing and, in there- mutual to be benefit compensation fore, it due from one real held that is within contem- estate broker another plation the statute of frauds. distinguish attempts Benzos, claim- Estate v Curis
ing promise involved a broker’s to furnish a exchange customer for one-half of a written acquired commission to be from the landowner. protection Defendant claims that this case involves of a landowner from false claims of a commission protection and, therefore, he falls under the statute of frauds even he was a real estate Phillippe Shapell broker. Defendant relies on v Rptr (1984), Industries, Inc, 207 Cal where the Appeals purchas- California Court of held that the er’s status as a licensed real estate broker was protected irrelevant because the statute of frauds purchasers as well as sellers of real estate from agents false claims of commission real estate brokers.
The district court found that defendant met with help buy Ms. Schultes and asked her to him sug- Thereafter, home. *7 gested promised and defendant a commission to if a sale was made between and Moreover, defendant. the trial court found that acting defendant was as a broker when he made promise writing therefore, no was re- quired. The circuit court affirmed. appellate
An court will set aside the trial court’s findings only findings of fact when those are 2.613(C). clearly erroneous. MCR See also Michi- gan Psychotherapy Ass’n of Clinics v Blue Cross & (After Michigan Remand), Blue Shield of App (1982), 505, 513; 325 NW2d 471 lv den 417 (1983). finding clearly Mich 1096 A of fact is although when, erroneous there is evidence to support reviewing it, the court on the entire evi- dence is left with a definite firm and conviction Michigan that a mistake has been made. Ass’n of Psychotherapy supra, p applying Clinics, 513. In appellate give special rule, this courts should def- findings erence to the trial court’s are App 386 378 Mich Opinion op the Court upon of the witnesses’ credi- based bility. its assessment 2.613(C). re Fritz See also In MCR 69, 75-76; NW2d findings of fact the trial court’s We believe clearly First, do believe we erroneous. were pay plaintiffs promised to commis- that defendant sion in the event from that he
Sazyc. Ms. testi- Schultes’ and Moore’s While mony point, the conflicted with defendant’s on this represented Pokornys at this fact that Pratt meeting supports
defendant’s claim that meet- persuade Sazyc ing only to reduce intended was concerning Pokornys’ land con- his demands be made between the tract so a sale could Pokornys If a direct sale were to and defendant. be Sazyc, defendant and there made between representa- their need for the be no present. tive be addition, Moore differed in Ms. Schultes and agreement why the commission
their version of prepared 12. Schultes While Ms. on November was prepare the that Moore her testified asked agreement pursuant instructions, to defendant’s request and testified that she made no such Moore that pursuant agreement drafted Ms. Schultes was telephone prior Ms. conversation had with defendant. Schultes
Furthermore, itself we nóte that provided signature by defendant, as an individ- ual, and Moore con- As Sazyc for ceded, there no facts, can con- these we commission. Given for the was scheduled clude that *8 by purpose defendant. When described and Moore realized that defendant Schultes Sazyc involving might not reach an plaintiff, they to drafted commission to be refused to which defendant Estate v Curis J. C. J. Timms, Dissent pay he had not a commis- Sazyc directly. if he sion home from Assuming promise, that defendant made such a clearly we also hold the trial court erred acting found that defendant was as a doing in broker so. We note that defendant was attempting purchase property for his own Ordinarily, purchaser use. not purchased; aas would
pay a commission on the sale of he making
however, in his offers to the Pokornys, defendant acted aas broker to reduce the amount of commission the pay thereby, and, have to home to himself. reduce the cost of the dealings
But, in defendant’s Sazyc, defendant received no commission which he Instead, could divide with purchase pay price would and,, then, have separate and additional three and plaintiff. Therefore, one-half commission to acting we conclude that defendant was as an indi- purchaser promise vidual if such was made broker, even he was a licensed real estate protection he was entitled to the of the statute of Phillippe, supra. Compare frauds. Benzos, See su- pra, acting clearly where the defendant was as a agent real estate for a commission.
Reversed. J.,
Gribbs,
concurred.
(dissenting).
C.
I
J.
J.
Timms,
respectfully dissent.
Although
agree
majority
I
with the
as to the
appellate
reviewing
role of
court
trial
findings,
courts’
I
do
find that
trial
court’s
findings
2.613(C); Michigan
clearly
of fact
MCR
are
erroneous.
Psychotherapy
Ass’n of
Clinics
(After
Michigan
v Blue Cross & Blue
Shield
Remand),
App 505,
513;
NW2d
(1982), lv den