Opinion
Nov. 26, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 948
Hindry & Meyer, P.C., Thomas J. Kerwin, Richard W. Breithaupt, Denver, for plaintiff-appellant.
Grant, Shafroth, Toll & McHendrie, P.C., Frank H. Shafroth, Denver, for defendant-appellee.
RULAND, Judge.
Plaintiff, Hans R. Gramiger, filed the present action to recover one-half of a real estate broker's commission. From a judgment for defendant, Roy Reid, following a trial to the court, Gramiger appeals. We affirm.
The record reflects that both Gramiger and Reid are licensed real estate brokers doing business in Aspen, Colorado. Gramiger obtained an exclusive right-to-sell listing on 'The Lodge' located in Aspen which listing expired by its terms on October 11, 1969. The listing also provided that if the lodge were sold within 90 days following October 11 to any purchaser with whom Gramiger had negotiated and whose name was disclosed to the owner, then Gramiger was entitled to a full commission.
Based on conflicting evidence, the trial court found that on August 25, 1969, Reid telephoned Gramiger to advise him that he was in contact with a prospective purchaser for the lodge and inquired whether a commission-sharing arrangement was possible. Gramiger agreed to cooperate with Reid on the basis of an even division of any commission that might result from a sale to Reid's prospect. Reid then pursued his efforts to sell the property. However, no agreements were reached between the lodge owner and Reid's prospect prior to expiration of the 90-day extension period of Gramiger's listing on January 9, 1970.
Reid obtained an exclusive right-to-sell listing from the lodge owner on January 19, 1970. Negotiations between Reid's prospect and the lodge owner were ultimately successful, culminating in a written contract on February 19, 1970, and a closing of the sale on March 24, 1970. Reid refused to share the commission, thus prompting Gramiger to file the present action.
The oral agreement between Gramiger and Reid relative to division of the commission did not specify a time within which Reid was to perform. The trial court concluded that performance was to be completed within a reasonable time and found that a reasonable time for completion of the sale between Reid's prospect and the lodge owner was on or before January 9, 1970. The sale not being comsummated until after that date, the court determined that the commission-sharing agreement was no longer in effect.
In this appeal, Gramiger, who is now represented by counsel other than trial counsel, contends that since the trial court did not specify which evidence it relied upon to find that a reasonable time had expired on January 9, 1970, the trial court's findings are inadequate pursuant to C.R.C.P. 52(a). We disagree.
The trial court's findings of fact and conclusions of law are sufficient under C.R.C.P. 52(a) if the reviewing court can determine on what basis the trial court reached its decision and whether there is competent evidence to support that decision. Hipps v. Hennig, 167 Colo. 358, 447 P.2d 700; Westland Nursing Home, Inc. v. Benson, Colo.App., 517 P.2d 862. Here it is clear that the trial court's findings were based upon the 90-day extension clause of Gramiger's listing.
Gramiger next asserts that the trial court arbitrarily determined that approximately four and one-half months constituted a reasonable time. Gramiger contends that negotiations pursued with diligence for sale of motel property require a minimum of six months and points to testimony to that effect from the agent who represented the lodge purchaser.
A reasonable time for performance of a contract by a broker depends upon the nature of the contract involved and the particular facts and circumstances of each case. See Cocquyt v. Shower, 68 Colo. 89, 189 P. 606. Gramiger relied upon testimony concerning the procedure followed by the purchaser of the lodge in this and other transactions. However, this procedure is influenced by the fact that the agent resides in Colorado and his principals who reside in Chicago are infrequently available to inspect new properties in Colorado. Moreover, this particular purchaser follows a set procedure in evaluation and negotiation which other purchasers might deem inefficient. The trial court was not obligated to accept this evidence as conclusive on the issue of what was a reasonable time for performance. See Geiger v. Kiser, 47 Colo. 297, 107 P. 267.
We note also that Gramiger's contention presupposes that the right to a commission would exist after the expiration of the 90-day extension clause in Gramiger's listing. There is no evidence that either party contemplated or expected at the time the sharing agreement was made that another listing could be obtained from the lodge owner by either party after Gramiger's listing expired.
Finally, Gramiger asserts that Reid breached a fiduciary duty to Gramiger and that the trial court's judgment should be reversed on this basis. The alleged breach of fiduciary duty was not set forth as a separate claim in the complaint, as an issue in the pre-trial order, nor was it raised in the motion for a new trial. While Gramiger in presenting oral arguments pro se to the trial court on the motion for new trial referred to 'the ingredient of good faith' required of Reid in performance of their commission-sharing agreement, this statement was not sufficient, coming after the trial, to raise this contention as an issue in the case. See C.R.C.P. 15(b). Accordingly, we do not consider it on review. C.R.C.P. 59(f).
Judgment affirmed.
PIERCE and VAN CISE, JJ., concur.