Swendeman v. Parent CA3

Filed 5/15/13 Swendeman v. Parent CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

ROBERT E. SWENDEMAN, C066310

Plaintiff and Respondent, (Super. Ct. No. 34200800021019) v.

DOROTHY O. PARENT, Individually, etc.,

Defendant and Appellant.

In this action by the seller’s broker to recover a commission for the sale of real estate, the seller, Dorothy O. Parent, advanced two theories to avoid payment of the commission. The trial court rejected the first theory she pursued at trial: that the land purchase agreement, which included the broker’s right to a commission, had expired. It also rejected the second theory she asserted for the first time in objecting to the statement of decision: that the land purchase agreement was not a bilateral contract, but an option that expired by its own terms. The court awarded the broker a 5 percent commission on the sales price set forth in the land purchase agreement, though the sale ultimately was not consummated

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pursuant to the land purchase agreement but was instead concluded at a higher price according to the terms of a settlement agreement the seller reached with the buyer, Enterprise Rancheria, after the seller repudiated the contract. The seller appeals. We affirm.1 FACTS The parties cite many more facts than are relevant to the disposition of the limited issue of the broker’s right to a commission. The material facts are few. “It has long been the law of this state that any right to compensation asserted by a real estate broker must be found within the four corners of his employment contract. [Citations.] By the same token, however, ‘[the] parties to a broker’s contract for the sale of real property are at liberty to make the compensation depend upon any lawful conditions they see fit to place therein. [Citations.]’ [Citation.] In short it is the contract which governs the agent’s compensation, and that contract is strictly enforced according to its lawful terms.” (Blank v. Borden (1974) 11 Cal.3d 963, 969.) We begin, therefore, with the terms of the land purchase agreement, which provides for the broker’s commission. On September 29, 2003, defendant seller sold 63 acres in Butte County to the buyer tribe, Enterprise Rancheria, for a purchase price of $459,197. The land purchase agreement was subject to a number of terms and conditions, including: “Subject to: 1. [United States Department of Housing and Urban Development] Approval, EIR Report, All Gov. Agencies approval of the project, prior to close of escrow. 2. Upon removal of all contingencies, close of escrow will occur within 10 days.” The parties stated time was of the essence but expressly provided that “if either party fails to comply with any contingency in this Agreement within the time limit specified, this Agreement