Simonini v. Passalacqua

California Court of Appeal Apr 28, 1986 No. A018716Published

Before: Rouse

AI Brief

AI-generated · verify before citing

Holding. The court held that the term 'agent holding the contract' in Probate Code section 761 refers exclusively to an agent under a listing contract as defined in section 760, and therefore an agent who merely procures an initial bid without a listing contract is not entitled to a commission.

Issues

Whether an agent who procures an initial bid for an estate property, but lacks a listing contract, is entitled to a commission under Probate Code section 761.

Disposition. reversed

Quotations verified verbatim against the opinion

“In order to reconcile sections 760 and 761, we conclude that the language “agent holding the contract” (§ 761) refers specifically to the agent under a listing contract as described in section 760.”

“Such a commission would only be justified where the agent who obtained the original bid was the listing agent.”

[402]

Opinion

ROUSE, J.

Intervener Roman Catholic Bishop of Santa Rosa appeals from the trial court’s order awarding a commission on the estate sale of certain real property to real party in interest, Key land Properties, Inc. (Key land). Intervener contends that the Probate Code

does not authorize such a commission. We agree and reverse.

The present controversy evolves out of a partition action involving the estates of two individuals who held a joint tenancy interest in a parcel of real property. Intervener was allowed to intervene in the action because, as sole distributee of defendant estate, he had an expectant two-thirds interest in the property.

On February 2, 1982, the trial court entered a stipulated interlocutory judgment ordering a sale of the real property. The court appointed a referee to appraise and sell the property either in a public sale or by private sale conducted as “private sales of real property of estates of deceased persons as required by law.”

The referee did not list the property with a real estate broker or agent. On February 5, 1982, he reported to the trial court that he had accepted an offer to purchase the property from John Andersen, who was represented by the real estate brokers Key land, real party in interest on appeal.

A hearing on the motion to confirm the sale to Andersen was held on April 1, 1982. At the hearing intervener submitted an increased bid consisting of a written offer to purchase for $271,400 over three years or $222,000 in cash. The trial court confirmed the sale on terms to intervener. Intervener was not represented by a broker, but appeared through his attorney. Although sale to intervener was confirmed at the hearing, an award of a commission on the sale was taken under submission.

On June 1, 1982, the referee wrote the court recommending payment of a commission to Key land. Intervener petitioned the court to protest the referee’s ex parte request, and requested an evidentiary hearing on the matter. No evidentiary hearing was held, and on June 2, 1982, the trial court issued an order granting payment of a real estate commission of $10,000 to Key-land.

Simonini v. Passalacqua

AI Brief

ROUSE, J.

More from California Court of Appeal

Related research

AI Brief