TRAMMEL CROW COMPANY NO. 60, et al., Petitioners, v. William Jefferson HARKINSON and Jeff Harkinson Investments, Inc., Respondents.
No. 95-1255.
Supreme Court of Texas.
Argued Oct. 24, 1996. Decided March 21, 1997.
Rehearing Overruled June 6, 1997.
944 S.W.2d 631
Our conclusion is consistent with two other cases dealing with related situations. In Charter Oak Fire Insurance Company v. Few, 456 S.W.2d 156, 160 (Tex.Civ.App.- Tyler 1970), rev‘d on other grounds, 463 S.W.2d 424 (Tex.1971), the court of appeals held that a husband had a community interest in his wife‘s compensation benefits when her injury and disability occurred during marriage. In General Insurance Company of America v. Casper, 426 S.W.2d 606, 608 (Tex.Civ.App.- Tyler 1968, writ ref‘d n.r.e.), the court held that a husband did not have a community interest in his wife‘s compensation benefits when her injury occurred during marriage but her disability did not begin until after divorce. In both those cases, as here, the issue is when the loss of earning capacity occurred. When it occurs outside marriage, compensation is separate property.
Because the land was purchased with Thomas’ separate property and was thus itself separate property, the district court had no authority to partition half of it to Eva. We therefore conclude, without hearing argument, that the judgment of the court of appeals must be reversed. TEX.R.APP. P. 170. Inasmuch as the district court‘s error may have affected its determination of a just and right division of the community, we remand the case to that court for reconsideration of that determination. See Jacobs v. Jacobs, 687 S.W.2d 731 (Tex.1985).
Kim M. Meaders, Douglas C. Kittleson, Edward P. Perrin, Jr., Dallas, for petitioners.
ENOCH, Justice, delivered the opinion of the Court, in which HECHT, CORNYN, SPECTOR, OWEN and BAKER, Justices, join.
The issue in this case is whether a real estate broker‘s claims for tortious interference with contract and prospective business relations and civil conspiracy to tortiously interfere are barred under the Texas Real Estate License Act absent a signed written commission agreement. The court of appeals held these claims were not barred. 915 S.W.2d 28. Because we conclude that the broker‘s claims for tortious interference and civil conspiracy are in essence claims to recover a commission in violation of section 20(b) of the Real Estate License Act,
Patterson/McLaine Group, Inc., authorized William Jefferson Harkinson, a licensed real estate broker, to act as its exclusive representative in locating rental space for Hunt Products Company, Inc. The exclusive representation agreement between Patterson/McLaine and Harkinson expressly provided that Harkinson “will look solely to the landlord/owner for his fee....” Harkinson found suitable space on LaReunion Parkway in Dallas. The property was owned by Trammell Crow No. 60 (Crow 60) and Petula Associates, Ltd., a joint venture. Trammell Crow Dallas Industrial (Crow Industrial) managed the property.
Upon finding the property, Harkinson began negotiating his commission and a lease with Richard Strader of Crow Industrial. Strader told Harkinson that the owners of the property would pay a 4½ percent cash commission to an outside broker who brought in a tenant for the space. Strader sent Harkinson an unsigned commission agreement providing for a 4½ percent upfront cash commission or a commission of 6 percent of each month‘s rental over the life of the lease. Harkinson redrafted the commission agreement making various changes in its terms, including providing for only a 4½ percent up-front cash commission. He signed the revised agreement and returned it to Strader to be signed by the owners. Neither the owners nor their agent ever signed any commission agreement with Harkinson.
Harkinson negotiated a lease for over $7,000,000. Seeking to reduce its rental obligation, Dan Patterson of Patterson/McLaine, without Harkinson‘s knowledge, agreed with
All defendants moved for summary judgment, asserting that, absent a written commission agreement, Harkinson‘s claims were barred by section 20(b) of the Texas Real Estate License Act (RELA).
I
Section 20(b) of RELA specifically provides:
An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by him to sign it.
Given that his contract actions are barred by section 20(b), Harkinson asserts that section 20(b) does not preclude his tortious interference claims for two reasons. First, he asserts that his claims are not for the recovery of a commission, but for tort damages resulting from the tortious interference with his oral commission agreement and the exclusive representation agreement. Second, section 20(b) does not bar his claims, Harkinson contends, because of our decision in Clements v. Withers, 437 S.W.2d 818 (Tex.1969). In Clements, we stated that although a written commission agreement was unenforceable under section 20(b), its uneforceability did not give third parties the right to interfere with the performance of oral contracts. 437 S.W.2d at 821. We find neither proposition persuasive.
A
Harkinson‘s claims, though couched in terms of a tort, are for the recovery of a real estate commission. Cf. Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex.1991) (considering contract and tort liabilities arising from the same conduct and injury). For each cause of action stated in his petition, Harkinson alleges that the defendants’ conduct damaged him in the amount of at least $346,500, the amount of his commission had the owners paid a 4½ percent up-front cash commission. Harkinson‘s pleadings belie his arguments in this
Beyond the damages allegations, an examination of Harkinson‘s tortious interference claims reveals the fallacy of his contention that he is seeking anything other than his lost commission.
The Oral Commission Agreement
Harkinson alleges that the Hunt defendants interfered with his oral commission agreement by knowingly and intentionally inducing Crow 60 and Petula to breach the oral commission agreement. Alternatively, Harkinson alleges that the Hunt defendants tortiously interfered with Harkinson‘s prospective business relation with Crow 60 and Petula by inducing the owners not to execute Harkinson‘s commission agreement. The allegation here is that but for the Hunt defendants’ conduct, Harkinson would have been paid his 4½ percent commission. These claims unquestionably seek recovery of a real estate commission.
The Exclusive Representation Agreement
Harkinson‘s claim for tortious interference with his exclusive representation agreement raises a more difficult question. Nevertheless, we conclude that this claim is nothing more than an indirect attempt to recover on his oral commission agreement.
Harkinson alleges that the Crow defendants interfered with his opportunity to be the exclusive representative to negotiate lease terms on behalf of Hunt Products. He alleges that the Crow defendants induced Patterson/McLaine to negotiate behind his back a lease that reduced the amount of his commission. The exclusive representation agreement, however, does not require the Hunt defendants, or any party, to pay Harkinson a commission. Accordingly, the Crow defendants’ actions did not as a matter of law interfere with any contractual right to a commission.
As we read Harkinson‘s claim, he asserts that had the Crow defendants not interfered with his exclusive representation agreement, he would have been paid his commission as the exclusive representative negotiating a lease for Hunt Products. Harkinson cannot make out a claim for tortious interference by bootstrapping his unenforceable oral commission agreement onto his exclusive representation agreement. He cannot do indirectly what the law says he cannot do directly.
The most that can be said of Harkinson‘s claim for tortious interference with the exclusive representation agreement is that the Crow defendants deprived Harkinson of the opportunity to act as the exclusive representative for negotiating lease terms on behalf of Hunt Products. But even this claim is illusory and wholly derivative of his unenforceable oral commission agreement. The loss of the opportunity to negotiate exclusively on behalf of Hunt Products in this instance translates only into the loss of the expectancy of receiving a commission at the end of the lease negotiations. The Legislature, in section 20(b), has nullified any such expectancy unless the broker has a signed written commission agreement. We hold that Harkinson‘s claim for tortious interference with his exclusive representation agreement is in essence a claim to recover a commission in violation of section 20(b). Harkinson relies on LA&N Interests, Inc. v. Fish, 864 S.W.2d 745 (Tex. App.- Houston [14th Dist.] 1993, no writ), in which, on similar facts, the court of appeals reversed summary judgment on a broker‘s claim for tortious interference with an exclusive representation agreement. For the reasons we have just expressed, we conclude that section 20(b) precludes such claims. We disapprove of LA & N to the extent that it holds otherwise and permits a claim on these facts for tortious interference with the exclusive representation agreement.
Harkinson‘s claims for tortious interference with both his oral commission and exclusive representation agreements seek recovery of a real estate commission, either directly or indirectly, upon an oral commission agreement. His claims are barred by section 20(b) of RELA unless saved by some other law.
B
Harkinson argues that our decision in Clements, 437 S.W.2d at 820-21, is that other law that preserves his claims. We disagree.
Our decision in Clements derived, at least in part, from a subtle but critical factual distinction. In Clements, the landowner and the broker had a commission agreement evidenced in writing and signed by the party to be charged. Id. at 820. That writing violated the predecessor to section 20(b) not because the commission agreement was unwritten and unsigned, but because the writing lacked an adequate property description required by the general statute of frauds and the statute of conveyances. Id. This type of technical deficiency in a writing is different than a total absence of any signed writing.
We said in Clements that the written commission agreement, though unenforceable for failure to satisfy the statute of frauds and statute of conveyances, was not void or illegal, nor against public policy. Id. at 821. When, as in this case, there is no signed written commission agreement in the first place, public policy as expressed in section 20(b) precludes any action to recover a commission, whether sounding in tort or in contract.
We also said in Clements that “to prevent fraud by those who would misrepresent verbal promises, the statutes require written proof in certain cases before performance can be enforced in the courts.” 437 S.W.2d at 821. Unlike the present case, the promise enforced in Clements was not oral and therefore was not subject to misrepresentation. The commission to be paid was spelled out in a signed writing. Harkinson‘s claims against the Hunt and Crow defendants necessarily entail proof of an oral commission agreement between Harkinson and the Crow defendants. The obligation to pay and the amount of that commission are subject to misrepresentation, precisely the evil the Legislature intended to eliminate in section 20(b).
Our holding in Clements should be limited to its facts. While sympathetic to Harkinson‘s claims, those sympathies do not permit us to ignore the Legislature‘s unequivocal expression of intent set out in section 20(b). The Legislature was quite explicit: a broker may not recover a commission unless the commission agreement is in writing and signed by the party to be charged.
We hold that Harkinson‘s claims for tortious interference with contract and prospective business relations are precluded by section 20(b) of RELA. Because section 20(b) bars Harkinson‘s tortious interference claims, his claims for conspiracy to commit tortious interference likewise fail. See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). The trial court properly rendered summary judgment against Harkinson on his tortious interference and conspiracy claims.
In his cross-application, Harkinson argues that the court of appeals erred in affirming summary judgment on his promissory estoppel claim. Harkinson contends that the Crow defendants may not rely on and benefit from section 20(b) as a defense because Strader repeatedly promised Harkinson that the owners would sign the commission agreement and Harkinson relied on these promises. Harkinson relies on our decision in “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937-38 (Tex.1972), where we recognized the doctrine of promissory estoppel as an exception to the statute of frauds.
In “Moore” Burger, a tenant was induced to refrain from bidding on the purchase of certain property by individuals who promised to lease the property to the tenant if they purchased the property. The tenant signed an agreement to lease and a lease, but the purchasers of the property never did, though they had promised to do so. Instead, the purchasers sold the property to a third party, who refused to honor the lease. We held that summary judgment for the purchasers was improper because the evidence raised a fact issue as to whether enforcement of the statute of frauds would itself plainly amount to a fraud. Id. at 938.
“Moore” Burger is not dispositive. “Moore” Burger considered the application of promissory estoppel against the general statute of frauds, now
From its very nature a claim for commission cannot be made until earned. The sale is made, or the agent procures the purchaser ready and able to buy, and not until then does the right to the commission accrue. It accrues by virtue of a contract express or implied. But the statute says that no such contract shall be valid unless in writing. To hold that performance takes a claim of this character out of operation of the statute would, in our opinion, leave nothing for the statute to operate on.
Id. at 231 (citing Weatherhead v. Cooney, 32 Idaho 127, 180 P. 760, 761 (1919)).
We reached the same conclusion more recently in Boyert v. Tauber, 834 S.W.2d 60 (Tex.1992). There, a broker sued to recover a commission on a written agreement that did not identify the broker with the specificity section 20(b) requires. We held that the doctrine of partial performance would not render the agreement enforceable. Id. at 63-64. To hold otherwise would be in direct opposition to the expressed will of the Legislature and would unduly expose the public to fraudulent claims for commissions. Id. at 64.
Following Boyert and Landis, we decline to hold the doctrine of promissory estoppel is an exception to section 20(b) of RELA. Promissory estoppel generally is a defensive doctrine in that it estops a promisor from denying the enforceability of the promise. Wheeler v. White, 398 S.W.2d 93, 96 (Tex.1965). It may apply when there is a promise that the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, and does induce such action or forbearance, if injustice can be avoided only by enforcement of the promise. “Moore” Burger, 492 S.W.2d at 937 (citing RESTATEMENT (SECOND) OF CONTRACTS § 90 (1979)).
As a licensed real estate broker, Harkinson cannot act or forbear from acting in reliance on anything less than a signed written commission agreement. When a broker does so and relies on a promise to sign a written agreement that would satisfy section 20(b), the broker inevitably does so at his or
*
The trial court properly rendered summary judgment that Harkinson take nothing. We reverse that part of the court of appeals’ judgment reversing summary judgment on Harkinson‘s tortious interference and civil conspiracy claims and render judgment that Harkinson take nothing from the Crow defendants and Dan Patterson. We affirm the remainder of the court of appeals’ judgment. As neither Hunt Products Company, Inc. nor Patterson/McLaine Group perfected an appeal in this Court, the court of appeals’ judgment is final as to these parties.
GONZALEZ, J., filed an opinion concurring in part and dissenting in part, in which PHILLIPS, C.J., and ABBOTT, J., join.
GONZALEZ, Justice, joined by PHILLIPS, Chief Justice and ABBOTT, Justice, concurring and dissenting.
I concur in the Court‘s judgment to the extent that it bars Harkinson‘s claims against the owners of the property, Trammell Crow Company No. 60 and Petula Associates, Ltd., and Petula‘s parent company, Principal Mutual Life Insurance Company, and its manager Douglas Achtemeier (“owners“). However, as to the other defendants, the Court refuses to follow precedent, holds that a cause of action for interference with a written exclusive agency contract is barred by section 20(b), the statute of frauds provision of the Real Estate License Act (“RELA“), and for the first time in Texas jurisprudence, allows that provision to be asserted as a defense by persons who were not parties to a commission agreement with which they interfered. Because section 20(b) does not apply to such a situation, I would follow Clements v. Withers, 437 S.W.2d 818, 821 (Tex.1969), and Warren v. White, 143 Tex. 407, 185 S.W.2d 718, 719-20 (1945), and would enforce 1 the duties placed on real estate agents by article 6573a, section 15 of the Texas Real Estate License Act.
This is an appeal from a summary judgment. Thus, I will restate some pertinent facts, indulging every reasonable inference in favor of the non-movants and resolving any doubts in their favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985). William Jeff Harkinson, a licensed real estate broker, entered into a signed, written exclusive agency agreement with Hunt Products (“Hunt“) which provided that for one year, Harkinson would be Hunt‘s exclusive representative in its search for office/warehouse lease space. Harkinson negotiated this contract with Dan Patterson, an officer, director, and shareholder of Hunt, and John J. McLaine, Chairman and Chief Executive Officer of Hunt. Hunt agreed that it would refer all inquiries it received to Harkinson, and Harkinson agreed to look only to the prospective landlord/owner for his brokerage fee.
Harkinson located some property of which Trammell Crow Dallas Industrial (“Industrial“) is the manager. Industrial was acting as an agent on behalf of the building owners, Trammell Crow Company No. 60 and Petula Associates. Harkinson began negotiations for lease space with Richard Strader, a lawyer/real estate agent employed by Industrial. Thomas Leiser was Strader‘s immediate supervisor throughout this process. During the negotiations, Harkinson gave Strader a copy of his exclusive agency agreement with Hunt. Harkinson and Strader orally agreed that Harkinson would be paid a 4½% up-front cash commission for locating a tenant for the property.1 Strader then sent Harkinson a written commission agreement, which Harkinson did not sign. Instead, he revised it to reflect the terms of the oral agreement, signed the revised agreement, and returned it to Strader. Harkinson asked Strader several times when a copy of the signed commission agreement would be returned to him. Each time, Strader told Harkinson that the revised agreement was acceptable and that
After Patterson read the lease, he considered whether reducing Harkinson‘s commission would lower the price Hunt would have to pay to lease the premises. Instead of working with Harkinson, his exclusive agent, Patterson went behind Harkinson‘s back and contacted another broker, Jim Massey, who began secret negotiations on Patterson‘s behalf with Strader and Leiser to cut Harkinson‘s commission in order to lower Hunt‘s rental rate. After a conversation with Massey, Leiser told Strader to call Patterson directly to discuss this matter. Patterson asked Strader whether lowering Harkinson‘s commission would result in a lower rental rate for Hunt, and Strader told him it would. Patterson also asked Strader whether the owners had a signed commission agreement with Harkinson, and Strader told him they did not. Strader then told Patterson that he thought a $30,000 commission for Harkinson would be fair, and a second proposed lease agreement was drafted. This second proposal provided for a lower rental rate.
Harkinson was kept completely in the dark about the discussions that led to the second proposal. He eventually received the new proposal along with a letter from Strader stating that the reduced rental rate resulted from lower construction costs and “other savings.” Harkinson later learned that the “other savings” included money saved by reducing his commission. When Harkinson asked about the reduction in his commission, McLaine advised Harkinson to accept the lower commission because Hunt was definitely going to lease the building. Leiser told Harkinson that his options with regards to the $30,000 commission were to “take it or leave it.” Approximately a month later, Hunt signed a lease for the building, agreeing to pay $7,700,000 in rent over the term of the lease. Industrial, as agent for the owners, collected a 6% commission of $462,000. Strader personally received $103,950 as his part of this commission. Harkinson refused the $30,000 offer, and this lawsuit followed.
I.
Harkinson‘s claims against Patterson are (1) tortious interference with the oral commission agreement between Harkinson and the owners, (2) tortious interference with Harkinson‘s prospective business relations with the owners, and (3) civil conspiracy to tortiously interfere. For two reasons, section 20(b) of RELA does not bar these claims: First, the actual wording of the statute, and second, the purpose behind it.
Section 20(b) reads:
An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by him to sign it.
In Clements, just as in the case before us, the tortious interference suit was not brought against the party to be charged the commission, but against a third party who interfered with the plaintiff‘s right to that commission. Id. The majority attempts to distinguish Clements on the fact that in that case, there was a signed commission agreement that was deficient in its description of the property, while the deficiency in our case is that the written commission agreement was not signed by the owners. The Court declares there is a difference between the “technical deficiency” in the Clements writing and a total absence of any signed2 944 S.W.2d at 635. However, the Court gives no authority for this proposition. The Court has crafted the only authority by setting up separate, ad hoc categories under the heading of “unenforceable contracts,” still allowing for a cause of action for interfering with one type of unenforceable contract in Clements, while disallowing a claim for tortious interference with another type of unenforceable contract in this case.
In Clements, we stated that the RELA statute of frauds “does not give third parties the right to interfere with the performance of oral contracts.” Id. at 821 (emphasis added). Nevertheless, today‘s opinion states that the fact that there was at least some signed writing in Clements is a “critical factual distinction” from the present case. 944 S.W.2d at 635. If that is true, why did we in Clements state that third parties may not interfere with oral contracts? Clements, 437 S.W.2d at 821. If the Court is intimating that we meant to say “oral contracts evidenced by a signed writing,” it should state as much and admit that it is overruling Clements.
In its further attempt to distinguish Clements, the Court refers to the “public policy” of section 20(b) as precluding an action for tortious interference with Harkinson‘s unenforceable contract with the owners. To support this statement, the Court curiously cites to the statute itself and to our decision in Travel Masters, Inc. v. Star Tours, Inc., 827 S.W.2d 830, 833 (Tex.1991). However, in Travel Masters, we held that the covenant not to compete in that case was an unreasonable restraint of trade and unenforceable as against public policy. As a result, this covenant could not form the basis of a tortious interference claim. Id. Travel Masters does not provide authority for the proposition that because the agreement between Harkinson and the owners is unenforceable, it is also against public policy. If that broad statement were true, Travel Masters would have overruled Clements, in which we stated that even though the contract was unenforceable, there was not “any public policy opposing its performance.” Clements, 437 S.W.2d at 821; see Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487, 489-90 (1943) (interpreting RELA‘s statute of frauds and stating that it does not render void or illegal a promise or contract within its terms, but merely establishes a rule of evidence).
Nor does section 20(b) itself indicate that an agreement unenforceable under the statute is also against public policy. The predecessor to section 20(b), which was virtually identical to the current version, rendered the commission agreement in Clements unenforceable. Act of June 1, 1955, 54th Leg., R.S., ch. 383, § 1, 1955 Tex. Gen. Laws 986, 1001 (repealed) (current version at
II.
Besides its express wording, the fact that section 20(b) is RELA‘s statute of frauds provision is enough to indicate that it should not be used to bar claims against third parties to real estate commission agreements. Section 20(b) is to be interpreted consistently with the general statute of frauds provision found in the Business and Commerce Code. Boyert v. Tauber, 834 S.W.2d 60, 63 n. 2 (Tex.1992) (citing
Furthermore, today‘s holding is not in line with the purpose of section 20(b) as we identified it in Warren v. White, 143 Tex. 407, 185 S.W.2d 718 (1945). In that case, real estate broker T.C. Warren had a written agreement to be paid a commission by Mrs. Claude Kelly if he sold Mrs. Kelly‘s ranch. Another broker, A.J. White had a prospective purchaser for a ranch. He and Warren orally agreed that in consideration for Warren‘s furnishing White with the necessary information about the ranch for sale, White would sell the ranch to his customer and they could divide the commission between them. Id. When White did not honor the agreement, Warren sued for his share of the commission. After examining other states’ similar real estate statutes of frauds provisions, we held that the purpose of the RELA statute of frauds was to protect the property owner from the imposition of false claims by real estate brokers. Id. 185 S.W.2d at 719. It did not apply to an agreement between brokers to share benefits, we reasoned, because this was not one between the owner and broker for the payment of a commission for the sale of land. Id. at 720.
Similarly, the suit by Harkinson against Patterson is not to enforce an agreement between a broker and a landowner. It is to recover for a third party‘s interference with such an agreement, and thus does not fall within the purposes of section 20(b). In fact, the damages for which Harkinson sued are even farther removed from the recovery of a real estate commission than those claimed by the plaintiff in Warren. In Warren, there is no disputing that the suit was for a portion of the actual fee that was paid by the owner of the property. Id. at 718. Still, the RELA statute of frauds did not apply because it was intended to regulate the relationship between property owners and brokers. See id. at 719; Brice v. Eastin, 691 S.W.2d 54, 57 (Tex. App.-San Antonio 1985, no writ) (stating that the RELA statute of frauds was designed to protect the landowner from the
III.
The claims with regard to Industrial, Strader, and Leiser, are (1) tortious interference with Harkinson‘s exclusive representation agreement with Hunt, and (2) civil conspiracy to tortiously interfere. These are not claims for interference with Harkinson‘s commission agreement with the owners, but rather for interference with his opportunity and right to exclusively represent Hunt. Again, section 20(b) is a statute of frauds provision that governs commission agreements between real estate brokers and property owners. Therefore, it should not be invoked as a defense to interfering with a completely separate exclusive agency agreement.
I fully understand that a commission cannot be recovered against the party to a commission agreement unless a signed writing evidences the agreement. However, that requirement does not apply to Industrial, Strader, and Leiser. They were not the owners of the property. In their capacities as real estate agents for the owners, they were not the parties to be charged with the commission. Instead, they were agents who gained financial rewards by interfering with Harkinson‘s rights under his exclusive agency agreement with Hunt. Still, the Court insists on allowing a statute of frauds provision to act as a defense to this egregious conduct. I will not join such a radical departure from our state‘s statute of frauds jurisprudence.
Furthermore, the Legislature has declared that this alleged conduct is unethical and unlawful. Section 15 of article 6573a in part provides as follows:
Sec. 15. (a) ... The commission may suspend or revoke a license issued under the provisions of this Act at any time when it has been determined that:
...
(6) the licensee, while performing an act constituting an act of a broker ... has been guilty of:
...
(N) negotiating or attempting to negotiate the sale, exchange, lease, or rental of real property with an owner, lessor, buyer, or tenant, knowing that the owner, lessor, buyer, or tenant had a written outstanding contract, granting exclusive agency in connection with the transaction to another real estate broker;
...
(V) conduct which constitutes dishonest dealings, bad faith, or untrustworthiness....
Here, Harkinson had a written, signed exclusive agency agreement with Hunt and Patterson/McLaine. This vested in him rights which only he could exercise and obligated Industrial, Strader, and Leiser not to interfere with Harkinson‘s right to make a reasonable fee. Under the above statute, real estate brokers are prohibited from negotiating with a tenant knowing that the tenant has “grant[ed] exclusive agency in connection with the transaction to another real estate broker.”
IV.
The court states that it is sympathetic to Harkinson‘s claims. 944 S.W.2d at 635. Harkinson does not need or want our sympathy. He merely requests that we enforce his rights to have his contracts protected from interference by others, and that we take note of the serious allegations of unethical and illegal conduct on the part of the defendants. Regrettably, today‘s decision will cause consternation and confusion in the real estate industry. The validity of exclusive agency agreements of the type involved is now ques-
For all of the above reasons, in my opinion, there exist issues of material fact that preclude a summary judgment. Thus, I would affirm the judgment of the court of appeals to the extent it allows tortious interference and civil conspiracy causes of action against parties not charged with the commission agreement between Harkinson and the owners. I would remand this cause to the trial court for a trial on the merits.