Nowell v. Andrew Wright Enters., Inc.

691 P.2d 1107, 143 Ariz. 79, 1984 Ariz. App. LEXIS 524
CourtCourt of Appeals of Arizona
DecidedJune 21, 1984
DocketNo. 1 CA-CIV 6395
StatusPublished
Cited by2 cases

This text of 691 P.2d 1107 (Nowell v. Andrew Wright Enters., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nowell v. Andrew Wright Enters., Inc., 691 P.2d 1107, 143 Ariz. 79, 1984 Ariz. App. LEXIS 524 (Ark. Ct. App. 1984).

Opinion

OPINION

GREER, Judge.

The issue in this appeal is whether the trial court erred in granting summary judgment in favor of the seller, appellee Wright Enterprises, Inc., and against the real estate broker, appellant S.C. (Samantha) No-well. We find no error and affirm.

On March 19, 1980, Andrew Wright, president of Wright Enterprises, Inc., signed a listing agreement with Nowell, a real estate agent, on behalf of Wright Enterprises. Wright Enterprises owned various parcels of real estate in Pima County. This listing agreement stated a five percent commission rate, but described no property. Instead, the phrase “Call Lister” was written in several blank spaces in the listing agreement which would normally contain the property’s description. No property was described in the listing agreement, apparently because Wright told Nowell that he had not yet decided whether he would sell stock in Wright Enterprises and/or certain real estate holdings of Wright Enterprises. Subsequent to the execution of the listing agreement, Wright Enterprises sold certain of its real property. Nowell seeks a commission with respect to that sale.

The trial court granted summary judgment in favor of Wright Enterprises and against Nowell on the basis that the writing did not comply with the Statute of Frauds. This appeal followed.

The applicable Statute of Frauds, A.R.S. § 44-101(7), states:

No action shall be brought in any court in the following cases unless the promise or agreement upon which the action is [81]*81brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person by him thereunto lawfully authorized:
7. Upon an agreement authorizing or employing an agent or broker to purchase or sell real property, or mines, for compensation or a commission.

The Statute of Frauds requirement for brokerage contracts has been strictly enforced in Arizona. Olson v. Neale, 116 Ariz. 522, 570 P.2d 209 (App.1977). In order to satisfy the Statute of Frauds, a listing agreement must show both the fact of employment, Maricopa Realty & Trust Co. v. VRD Farms, Inc., 10 Ariz.App. 524, 460 P.2d 195 (1969), and the amount of the commission to be paid. Gray v. Kohlhase, 18 Ariz.App. 368, 502 P.2d 169 (1972). No-well argues that the listing agreement need not specifically describe the property to be sold.

This contention presents a question of first impression in Arizona: to what degree must real property be described in a listing agreement before a real estate agent may bring an action to recover a commission? Since Arizona has no case law directly on point, Nowell relies heavily upon a passage from Pray v. Anthony, 96 Cal.App. 772, 274 P. 1024 (1929), wherein the court stated:

[T]he essential part of a contract to employ a real estate broker, so far as the statute of frauds is concerned, is the matter of the employment and consequently need not describe the land specifically, if the terms of the employment can be made definite without it. The description of the land and its identity are only incidental to the main purposes of the contract, and, since contracts of that nature do not purport to involve the title or right of possession of land, much greater liberality is allowed in construing and curing defective descriptions therein than in cases of executory contracts to convey land or in deeds of grant, for, as stated, so far as the statute of frauds is concerned, the terms of the employment are the essential parts. The well-established rule is, therefore, that broker’s contracts are not to be declared void merely because of a defect, uncertainty or ambiguity in the description of the property to be sold, when such defect can be cured by allegations and proof of extrinsic facts or circumstances.

274 P. at 1026 (citations omitted). See also Needham v. Abbot Kinney Co., 217 Cal. 72,17 P.2d 109 (1932) (approved rule stated in Pray).

We do not- accept Nowell’s contention that, in view of this language, the phrase “Call Lister” is sufficient reference to the subject property to satisfy the Statute of Frauds. In our opinion, the listing agreement must contain some descriptions of the property. As one commentator stated:

Note that even in jurisdictions taking a more liberal view of what constitutes a sufficient description, the position has been taken that parol evidence may not be employed to make the actual identification of the property, or to create a description of it.

30 A.L.R.3d 935, 945 n. 17 (1970). In the cases cited by Nowell, which take a “liberal view of what constitutes a sufficient description,” the brokerage contracts provided some description of the property in question. Needham (authorization specifically covered “the properties owned by the Abbot Kinney Company”); Pray (written authorization designated property as “my house”); Central Idaho Agency, Inc. v. Turner, 92 Idaho 306, 442 P.2d 442 (1968) (listing agreement described property as “Clara Turner farm”); Gifford v. Straub, 172 Wis. 396, 179 N.W. 600 (1920) (written authorization designated property as “my place”). The courts in California and Idaho have specifically recognized that the brokerage contract must contain some property description. In Glazer v. Hanson, 98 Cal.App. 53, 276 P. 607 (1929), the court stated, “[i]n short, a description of land sought to be sold under a broker’s contract can be cured but not created by parol evidence.” 276 P. at 611. In Turner, the Idaho Supreme Court stated that parol “ev[82]*82idence may be presented, not to create a description, but to cure a defective one otherwise sufficient.” 442 P.2d at 447. Thus, even under the approach taken in California, Idaho, and Wisconsin, the listing agreement must provide some description of the property. In this case, the listing agreement did not contain any description of the property offered for sale.

Arizona has applied the Statute of Frauds more strictly than California, at least with respect to the amount of a commission. We stated in Gray v. Kolhase, supra:

A memorandum on which an action by a real estate broker to recover commission is based must contain the terms and conditions of the promise sought to be enforced____
We recognize that there is a minority view followed in California that the amount of commission may be shown by parol where there is a sufficient memorandum to show the fact of employment. See Beazell v. Schrader, 59 Cal.2d 577, 30 Cal.Rptr. 534, 381 P.2d 390 (1963).

18 Ariz.App. at 370, 502 P.2d 169 (emphasis in original). We emphasized the importance of the Statute of Frauds and held contrary to the California view:

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691 P.2d 1107, 143 Ariz. 79, 1984 Ariz. App. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nowell-v-andrew-wright-enters-inc-arizctapp-1984.