Opinion
March 25, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Allen, Mitchell & Rogers, Jack D. Vahrenwald, Fort Collins, for plaintiff-appellant.
Karowsky, Witwer & Oldenburg, Charles A. Karowsky, Greeley, for defendant-appellee.
RULAND, Judge.
Plaintiff, Daugaard Real Estate, Inc., a licensed real estate firm, appeals from a summary judgment dismissing its complaint to recover a real estate commission. We affirm.
Daugaard's complaint seeks recovery of a six percent commission based upon an oral listing agreement with defendant, David M. Lewis, for the sale of a ranch owned by Lewis in Weld County, Colorado. Lewis answered denying the allegations of the complaint and moved for summary judgment. This motion was supported by the affidavit of the purchaser, Otto Stephenson. Daugaard responded with a counter-affidavit by its employee.
Insofar as material here, the affidavits disclose the following undisputed facts. The sales price was $216,000. Daugaard's employee solicited a written offer from Stephenson on a portion of the ranch which was combined with a written offer by a third person for the balance of the ranch, the two offers totalling $192,000. These offers were forwarded to Lewis on March 29, 1973. On approximately April 3, Lewis came to the office of Daugaard and advised that the offers were unacceptable. Daugaard's employee suggested a counter-offer, and Lewis declined advising that the original sales price was firm.
Daugaard's employee then contacted Stephenson and suggested additional offers, but Stephenson declined. According to the employee's affidavit, he continued to maintain contact with the parties. However, approximately two weeks later, 'both . . . (Stephenson and Lewis) appeared to lose any interest whatsoever in consumating (sic) the purchase of the ranch and neither would accept or make any further offers regarding the same.'
Stephenson's affidavit states that sometime after April 5, 1973, he answered an advertisement appearing in the newspaper which offered the ranch for sale. At the time of answering the ad, Stephenson was not aware that the land advertised was the ranch belonging to Lewis. After 'considerable negotiations,' he entered into a contract with Lewis to buy the entire ranch at the advertised price of $216,000. Stephenson's affidavit concludes with the statement that Daugaard 'had absolutely nothing to do with the fact that . . . (Stephenson) eventually purchased a ranch from David M. Lewis.'
While Daugaard's complaint in effect alleges that Lewis circumvented Daugaard by negotiating directly with Stephenson in an effort to avoid paying the commission, this allegation is contradicted by the statements in Stephenson's affidavit that the negotiations were renewed as a result of the newspaper ad and not through the efforts of Daugaard. The statement in the affidavit controls as against the allegation in the complaint because it stands uncontradicted in the counter-affidavit filed by Daugaard. C.R.C.P. 56(e).
Summary judgment is proper and should be granted when there are no disputed issues of fact. O. C. Kinney, Inc. v. Paul Hardeman, Inc., 151 Colo. 571, 379 P.2d 628. An owner may not circumvent a broker and appropriate his client, change the terms of sale, and sell directly in order to avoid a commission. See Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033. However, where, as here, the broker has an oral listing which does not grant an exclusive right to sell the property, negotiations through the broker are abandoned, and subsequent negotiations and ultimate sale of the property result solely from the seller's newspaper advertising efforts, the seller is not liable for payment of a commission. The applicable rule is stated in Chaffee v. Widman, 48 Colo. 34, 108 P. 995, as follows:
'When a broker opens negotiations but fails to bring the prospective purchaser and owner together, and they are abandoned without fault of the owner, and the latter subsequently sells to the same party, without further effort on the part of the broker, the owner is not liable to the broker for commissions.'
Therefore, the trial court was correct in granting the motion for summary judgment. Judgment affirmed.
ENOCH and STERNBERG, JJ., concur.