Summary
In Backus, the plaintiff — a real estate broker licensed in Texas but not Colorado — assisted a Colorado broker in finding a buyer for the defendant's property, but the defendant backed out of the deal.
Summary of this case from Alderman v. Bd. of Governors of the Colo. State Univ.Opinion
No. 79CA0678
Decided February 7, 1980. Certiorari denied August 5, 1980.
In action by Texas real estate broker to recover under a listing agreement for the sale of real property, the trial court granted summary judgment in favor of the seller of the property. The broker appealed.
Affirmed in Part Reversed in Part
1. JUDGMENT — Summary — Motion Before Answer — No Supporting Documents — Allegations of Complaint — Taken as True. Where, before filing an answer, defendant moved for summary judgment, and neither party filed affidavits or other supporting documents, for purposes of appeal of the summary judgment entered, the facts alleged in the complaint will be accepted as true.
2. BROKERS — Texas Broker — No Agreement — Property Owner — Cooperative Agreement — With Colorado Broker — No Direct Claim — Against Property Owner. In action to recover on real estate listing agreement, Texas real estate broker had no contract with property owner, but rather had agreement with Colorado broker to cooperate in seeking buyer for owner's property and to share commission; thus, the trial court properly concluded that the Texas broker could not pursue a claim for a commission directly from the property owner; such broker could demand direct compensation only from the Colorado broker.
3. Listing Agreement — Property Owner and Colorado Broker — Assigned — Texas Broker — Entitled to Proceed — Summary Judgment — Assignment Claim — Error. Where Texas real estate broker alleged that listing contract existed between Colorado broker and property owner and that he had been assigned the Colorado broker's rights under that contract, the Texas broker was entitled to proceed against the property owner as if he were the Colorado broker; thus, summary judgment was erroneously entered for property owner on broker's assignment claim.
4. UNJUST ENRICHMENT — Condition — No Enforceable Contract — Allegations Required — Stated. A plaintiff is entitled to recover based on the unjust enrichment of a defendant when the plaintiff has no alternative right on an enforceable contract; and to assert a claim under such theory, a plaintiff must allege that he conferred a benefit which was known to or appreciated by the defendant, and which the defendant accepted or retained, making it inequitable for him to retain the benefit without payment.
5. BROKERS — Texas Broker — Unjust Enrichment Claim — Substantially Alleged — Assignment Claim Fails — No Enforceable Contract — Summary Judgment — Against Broker — Error. Where Texas real estate broker sought to recover relative to listing agreement entered by property owner with Colorado broker, which broker had assigned his rights under the contract to plaintiff, the elements necessary to a claim for unjust enrichment were substantially alleged, and since if plaintiff's assignment claim fails, he would have no right under an enforceable contract, the trial court erred in entering summary judgment against plaintiff on his unjust enrichment claim.
6. Out-of-State Broker — Cooperative Agreement — Colorado Broker — Permitted by Statute — May Pursue — Other Claims for Relief. Since, by statute, out-of-state broker is permitted to enter cooperative agreement with broker licensed in Colorado, such a broker, even though unlicensed in Colorado, is permitted to assert other claims for relief which might form the basis for recovery against one who breaches real estate listing agreement.
Appeal from the District Court of Pueblo County, Honorable Matt J. Kikel, Judge.
Predovich, Ward Banner, Donald J. Banner, for plaintiff-appellant.
Rothgerber, Appel Powers, Michael D. Nosler, for defendant-appellee.
Albert Lee Backus instituted this action against Apishapa Land and Cattle Company to recover under a listing agreement for the sale of real property. The trial court granted Apishapa's motion for summary judgment. We affirm in part and reverse in part.
Before filing an answer, Apishapa filed its motion for summary judgment pursuant to C.R.C.P. 56(b), and neither party filed affidavits or other supporting documents. Consequently, in reviewing the judgment, the facts alleged in the complaint, being the only facts before us, are accepted as true. See Tamblyn v. Denver, 118 Colo. 191, 194 P.2d 299 (1948).
According to the complaint, Apishapa entered into a listing agreement with H. L. Cook to sell Apishapa's real property. Cook, a real estate broker licensed in Colorado, also agreed with Backus, a broker licensed in Texas, to cooperate in seeking a buyer for Apishapa's property, and to share the commission due on the Apishapa-Cook contract. Apishapa breached the agreement with Cook by withdrawing the property from sale, and it refused to pay the "commission" provided by the agreement in the event of such withdrawal. Cook assigned his right, title, and interest to Backus in any commission due pursuant to the agreement with Apishapa.
Backus claimed relief based on the Apishapa-Cook agreement and Cook's assignment to him, and on Apishapa's unjust enrichment. The trial court ruled that Backus was precluded from seeking recovery on these theories because he was not licensed as a broker or real estate salesman pursuant to the Colorado statute.
I.
Backus argues that, while § 12-61-102, C.R.S. 1973, (Repl. Vol. 5) prohibits an unlicensed broker from entering into a contract for the sale of Colorado property in his own right, a real estate broker licensed in another state who cooperates with a broker licensed in Colorado pursuant to § 12-61-101(4)(n), C.R.S. 1973, (Repl. Vol. 5) is not precluded from seeking recovery of a commission directly from the seller.
[1] The trial court properly concluded that Backus may not pursue a claim for a commission directly from Apishapa; however, it improperly concluded that § 12-61-102 prohibits all recovery under the circumstances here. The proper basis for this ruling is that Backus had no contract with Apishapa. Apishapa's contract was with the licensed broker Cook. Even though Apishapa did business with Backus, Backus' rights to a portion of the moneys due derive from his agreement with Cook, and he may demand direct compensation only from Cook. See Becker v. Arnold, 42 Colo. App. 178, 591 P.2d 596 (1979). Consequently, Backus cannot maintain a contract action directly against Apishapa.
II.
Summary judgment was erroneously entered, however, as to Backus' other two claims for relief. Summary judgment is proper only when there is no genuine issue as to any material fact, and when the moving party is entitled to judgment as a matter of law. Abrahamsen v. Mountain States Telephone Telegraph Co., 177 Colo. 422, 494 P.2d 1287 (1972).
[2,3] In his complaint, Backus alleged that a contract existed between Cook and Apishapa and that Cook assigned his rights under the contract to Backus. Since an assignee of contract rights stands in the shoes of the assignor, Backus may proceed against Apishapa as if he were Cook. See Farmers Acceptance Corp. v. Howard K. Delozier Construction Co., 178 Colo. 291, 496 P.2d 1016 (1972).
III.
[4] Backus may also proceed alternatively on his claim for unjust enrichment. C.R.C.P. 8(e)(2). A plaintiff is entitled to recover based on the unjust enrichment of a defendant when the plaintiff has no alternative right on an enforceable contract. 12 S. Williston, Contracts § 1479 (W. Jaeger 3d ed. 1970). A plaintiff relying on unjust enrichment must allege that he conferred a benefit which was known to or appreciated by the defendant, and which the defendant accepted or retained, making it inequitable for him to retain the benefit without payment. See Dass v. Epplen, 162 Colo. 60, 424 P.2d 779 (1967). These elements have been substantially alleged here. See C.R.C.P. 8(a). Accordingly, Apishapa was not entitled to judgment as a matter of law, since, if Backus' assignment claim fails, he will have no right under an enforceable contract. Under such circumstances, Backus may be able to recover for unjust enrichment.
[5,6] We do not agree with Apishapa's argument that Backus' claims based on the theories of assignment and unjust enrichment were properly dismissed because they were a subterfuge for avoiding the prohibitions against claims by unlicensed brokers. The argument would have merit if Backus' activities in connection with the real estate were prohibited by law. See Benham v. Heyde, 122 Colo. 233, 221 P.2d 1078 (1950); Reed v. Bailey, 34 Colo. App. 20, 524 P.2d 80 (1974); § 12-61-102, C.R.S. 1973, (Repl. Vol. 5). Here, however, Backus' activities were within § 12-61-101(4)(n), added by Colo. Sess. Laws 1977, ch. 177, at 772, which establishes an exception to § 12-61-102 and allows a real estate broker licensed in another state to enter into a cooperative relationship with a licensed Colorado broker. Therefore, he is not prohibited from asserting other claims for relief which might form the basis for recovery.
That portion of the summary judgment dismissing Backus' direct claim against Apishapa for the broker's commission is affirmed. The remainder of the summary judgment dismissing Backus' claim as an assignee of Cook and his claim for unjust enrichment is reversed and the cause is remanded for further proceedings on these two claims.
JUDGE COYTE and JUDGE SMITH concur.