Opinion
July 10, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Gorsuch, Kirgis, Campbell, Walker & Grover, John L. Ferguson, Denver, for plaintiff-appellant.
Keller & Dunievitz, Alex Stephen Keller, Denver, for defendant-appellee.
COYTE, Judge.
Plaintiff filed suit against defendant seeking to collect a real estate commission. Defendant filed an answer which contained the affirmative defense of res judicata. Each party filed its pre-trial statement and defendant also filed a motion for summary judgment, which was granted. Plaintiff appeals contending that res judicata was not applicable and that the case was erroneously dismissed on that ground. We agree and reverse. Defendant listed certain property with plaintiff for sale to '1 Party, Stearns' Rogers,' for $213,150 with the provision that the owner, defendant, had the right to refuse sale if he intended to proceed with construction. This listing contained no time limitation. Plaintiff submitted two option contracts to defendant which he refused to sign, and a third contract was submitted to Stearns-Roger, Inc., which it refused to sign. Plaintiff then filed suit for commission, and at the conclusion thereof the trial court found that the refusal of Stearns-Roger, Inc., to accept the contract terminated the negotiations and that no agreement was consummated between defendant and Stearns-Roger, Inc., by plaintiff which either complied with the terms of the listing agreement or was satisfactory to both the defendant and Stearns-Roger, Inc. It then dismissed plaintiff's complaint. No appeal was taken from this decision. Defendant subsequently sold the listed property to Stearns-Roger, Inc., and thereupon plaintiff filed the present suit for a commission.
Plaintiff admits that it made no further effort to sell the property after the first lawsuit, but contends that the purchase by Stearns-Roger, Inc., from defendant, without any further effort on its part, is sufficient to entitle it to a commission.
The applicable rule is well stated in Chaffee v. Widman, 48 Colo. 34, 108 P. 995, wherein it is stated:
'The general rule applicable to the case at bar is that in order for a real estate broker to be entitled to commission he must have accomplished all that he undertook to do under his contract of employment; that employment; that is to say, he must have found and produced a person who was ready, willing and financially able to purchase the property which he was engaged to sell at the price, and upon the terms and conditions fixed by his employer, and must make it appear that he was the efficient agent or procuring cause of the sale, and that the means employed by him and his efforts resulted in a sale . . . When a broker opens negotiations, but fails to bring the prospective purchaser and owner together, and they are abandoned without fault of the owner, and the latter subsequently sells to the same party, without further effort on the part of the broker, the owner is not liable to the broker for commissions.'
Plaintiff contends that its first suit may have been brought prematurely, but that, even so, it is not barred from bringing the second suit since it initially brought the parties together and the ultimate sale was the result of its prior efforts.
This case was decided on a motion for summary judgment by the trial court when it concluded that all matters in controversy between the parties were determined as of the date of entry of final decree in the first case on February 8, 1971. The rule for granting summary judgment by the trial court is set forth in McKinley Construction Co. v. Dozier, 175 Colo. 397, 487 P.2d 1335:
'A summary judgment denies a litigant the right to a trial of his case, and should therefore not be granted where there appears to be any controversy concerning the material facts. Smith v. Mills, 123 Colo. 11, 225 P.2d 483. It may or may not develop under the evidence that the defendant in error is entitled to prevail as a matter of law; but such a determination cannot be made at this juncture.'
While it is conceded there was no further effort on the part of plaintiff to sell the property of defendant to Stearns-Roger, Inc., after completion of the first action, this sale created a new situation from which could flow the right of a commission to plaintiff if it is determined by the trier of fact that plaintiff had not abandoned its listing and that the efforts of plaintiff in attempting to sell the property to Stearns-Roger, Inc., was the efficient and procuring cause of the ultimate sale. Rauch v. Rhoades, 172 Colo. 152, 470 P.2d 854; Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033. Judgment reversed and cause remanded with directions to reinstate plaintiff's complaint and for further proceedings thereon.
SILVERSTEIN, C.J., and DWYER, J., concur.