Sierra Pacific Industries v. Carter

Opinion

RHODES, J.

*

Joseph H. Carter, a licensed California real estate broker for the past 26 years, appeals an order of the trial court granting respondent Sierra Pacific Industries’ motion for a new trial in an action involving the sale of real property.

During the fall of 1975, Sierra Pacific purchased, for a lump sum, various timberlands and six other pieces of real property, including the

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subject of this dispute, a ten-acre parcel in Willow Creek on which five duplexes and two single family units are located.

After the acquisition, Sierra Pacific requested Carter’s assistance in selling the nontimberland properties, including the Willow Creek parcel. Carter was familiar with the property, having participated in efforts to sell it to others prior to its purchase by Sierra Pacific. Acting in reliance on Carter’s representation as to the value of the Willow Creek parcel, Sierra Pacific commissioned him to sell it for an asking price of $85,000, of which Sierra Pacific would receive $80,000 and Carter, $5,000. The trial testimony was in conflict over whether, if Carter were able to find a buyer willing to pay more than $85,000, the excess was to be equally divided or whether it would go entirely to Carter under a net listing agreement.

Although the parties entered into an oral agreement, no writing was prepared memorializing the agreement nor could notes about the agreement taken by Sierra Pacific’s treasurer be located for use at trial. Pursuant to the agreement, appellant showed the Willow Creek property to several prospective buyers but was for a time unable to secure a sale at the asking price of $85,000. Finally, in June of 1976, Carter sold the property for that amount to his daughter and son-in-law, Debbie and David Benson and, by his own admission, retained a $5,000 commission without informing respondent of his relationship to the buyers.

Sierra Pacific instituted a fraud action against Carter based on the foregoing facts. The jury impaneled to hear the matter returned a general verdict in Carter’s favor. Judgment was entered accordingly. Thereafter Sierra Pacific moved for a new trial. The motion was granted as to all issues and on all grounds asserted: inadequacy of damages, insufficient evidence and verdict against the law. Carter appeals, claiming that the order granting the new trial cannot be sustained on any of the grounds enumerated.