Hasler v. Howard

Opinion

GILBERT, P. J.

Plaintiff lists his house for sale by defendant broker. The listing agreement provides for attorney’s fees to the prevailing party in an action regarding broker’s compensation. Plaintiff sues his real estate broker for selling his house below its value, but does not request return of the broker’s commission.

At a settlement conference, he offers to compromise his claim for the amount of the broker’s commission. The case does not settle and plaintiff dismisses his complaint. In the broker’s motion for attorney’s fees, she offers

[1025]

plaintiff’s settlement statement, not to establish that his complaint lacks merit, but to show the broker’s commission was an element of his damages claim.

Here we conclude the trial court properly excluded the settlement statement. We affirm.

FACTS

Geoff Hasler sued Cynthia D. Howard, a real estate broker, alleging fraud, breach of fiduciary duty and breach of duty to disclose. Hasler alleged in his complaint that he engaged Howard and other brokers to sell his home in the Montecito area of Santa Barbara. The brokers advised him that the maximum selling price he could expect was $3,795,000. A buyer offered $3,795,000. The brokers encouraged Hasler to accept the offer, and he did. The brokers did not disclose that they also represented the buyer. Hasler alleged the property was worth $4.5 million at the time of sale.

Hasler prayed for damages in the amount of the difference between the sales price and the value of the property; for “all damages that will compensate plaintiff”; for punitive damages; and for reasonable attorney’s fees and costs.

Hasler voluntarily dismissed his complaint prior to trial. The dismissal was not pursuant to a settlement.

Howard made a motion for attorney’s fees as the prevailing party. The motion was based on a provision in the listing agreement that stated: “In any action, proceeding, or arbitration between Seller and Broker regarding the obligation to pay compensation under this Agreement, the prevailing Seller or Broker shall be entitled to reasonable attorney’s fees and costs . . . .”