Heard, considered, and decided by the court en banc.
1. A written listing agreement is valid and enforceable if it substantially complies with the requirements for listing agreements under Minn. Stat. § 82.195 (2002) and the parties' course of conduct demonstrates that they have waived any deficiencies in compliance.
2. A written listing agreement that does not contain a definite termination date is terminable at will.
3. The creation of an "override" remedy for a terminated real estate broker, under Minn. Stat. § 82.195, was intended to be an alternative to, and did not abrogate, a broker's equitable "procuring cause" remedy.
4. Genuine issues of material fact preclude the grant of summary judgment for the principal on a contract that was executed by its agent and did not expressly exclude the principal as a party.
5. The district court did not abuse its discretion in denying a plaintiff's motion to amend the complaint to add a claim that could not withstand a motion for summary judgment.
Affirmed in part, reversed in part and remanded.
The opinion of the court was delivered by: Hanson, Justice.
Court of Appeals Hanson, J.
Dissenting, Anderson, Russell A., J., and Blatz, C.J.
Appellant Gary Rosenberg, a licensed real estate broker, seeks review of a grant of summary judgment dismissing his claim for commissions on condominium sales that closed after his listing agreement was terminated. The main questions presented are whether Rosenberg's agreement with respondent Heritage Marketing LLC ("Marketing") was terminable-at-will and, if so, whether Rosenberg was due any commissions on purchase agreements or reservation agreements that he obtained before termination but that closed after termination. Inherent in the latter question is the issue whether Minn. Stat. § 82.195 (2002), which regulates the content of real estate listing agreements, should be construed to abrogate a broker's equitable remedy to recover a commission as a procuring cause of a sale that is completed after the listing agreement is terminated. We affirm in part, reverse in part and remand to the district court.
In 1996, Dan Hunt and Arnie Gregory met with Rosenberg to discuss the marketing and sale of approximately 350 individual condominium units in a real estate development that was to be constructed in four phases over several years. In April of 1997, Hunt and Gregory entered into an agreement with Timothy Burnham (doing business as Builders Alliance), as project and sales manager, and Rosenberg (doing business as Shelter Consultants), as sales person.*fn1 The April agreement contemplated that Hunt, Gregory and Burnham would form a new corporation that would be the party to the agreement with Rosenberg. In fact, while Gregory signed individually, Hunt signed as "Chief Manager, Heritage Marketing, LLC."
Gregory and Hunt subsequently formed two corporations, respondent Heritage Renovations, LLC ("Renovations"), to be the owner and developer of the project, and Marketing, to provide marketing and sales services to Renovations. The April agreement was then replaced in July 1997 by a new agreement that was signed by Gregory and Hunt on behalf of Marketing (hereafter the "July Agreement"). The July Agreement describes Rosenberg's role under the heading "Sales Person Proposal." It states that Rosenberg will receive commissions of "2.5% on coop sales and 3.5% on in house sales" and that Rosenberg will receive a draw against commissions of $3,000 per month together with an advance of $1,500 per unit at the time that each purchase agreement was approved. The July Agreement does not explicitly state a date for its expiration, but does state that Rosenberg is "to work the model sales center hours throughout the time frame of the project."
Under a section entitled "Advance Payment to Shelter Consultants [Rosenberg]," the July Agreement provides:
$1,500 TO BE PAID TO SHELTER CONSULTANTS AT TIME OF APPROVED P.A. BALANCE OF COMMISSION DUE AT CLOSING LESS ANY ACCUMULATED DRAW.
BUILDING 2 AND ALL OTHERS
$500 TO BE PAID TO SHELTER CONSULTANTS AT TIME OF APPROVED P.A. AND ADDITIONAL $1,000 TO BE PAID AT THE TIME OF 50% PRESALE IN EACH BUILDING BALANCE OF COMMISSION TO BE PAID AT CLOSING LESS ANY ACCUMULATED DRAW.
IF A SALE CANCELS MONEY ADVANCED WILL BE CREDITED AGAINST NEXT NEW SALE OR SHELTER CONSULTANTS WOULD PAY BACK THE $1,500.
Rosenberg sold units for phases 1 and 2 from July 1997 through 2000. In September 2000, Rosenberg also began to sell units for phase 3. On February 14, 2001, Marketing sent Rosenberg a fax effectively terminating his services and instructing him to stop selling units on Marketing's behalf. Rosenberg claims that he had almost 40 purchasers under contract at the time of his termination; 18 as purchase agreements and 20 as reservation agreements. He claims that he is entitled to receive commissions on sales to these purchasers even though the sales were not closed until after his termination. Rosenberg agrees that he has been paid his full commission on all sales that closed before his termination.
Renovations and Marketing moved for summary judgment, arguing that the July Agreement was invalid because it did not include all of the terms required for a "Listing Agreement" under Minn. Stat. § 82.195 (2002). The district court denied Marketing's motion, determining that the July Agreement was valid because it satisfied the critical requirements of the statute and Marketing had waived the right to object to its deficiencies by operating under the Agreement for several years. The court further determined that the Agreement was terminable at will, but that issues of fact were still present as to what Rosenberg was owed. The court dismissed Renovations as an unnecessary party because it was not named in the July Agreement.
After continued discovery, Rosenberg moved to amend his complaint to include a claim that the arrangement between the parties was actually a joint venture. Marketing renewed its motion for summary judgment. The district court denied Rosenberg's motion to amend and granted Marketing's motion for summary judgment, determining that Rosenberg had been lawfully terminated and that he had been paid all commissions due to him through his termination date. The court concluded that Rosenberg's failure to include an "override clause" in the July Agreement, as authorized by Minn. Stat. § 82.195, precluded any claim for commissions on sales that closed after his termination date.*fn2
The court of appeals affirmed, concluding that (1) the July Agreement did not create a joint venture and (2) summary judgment was appropriate because the July Agreement was terminable at will and Rosenberg had been paid all of the commissions due at the time of termination. Rosenberg v. Heritage Renovations, LLC, No. C7-03-94, 2003 WL 21694604 at *2-4 (Minn. App. July 22, 2003) (unpublished opinion). We granted review.
On an appeal from summary judgment, we must determine whether (1) there exist any genuine issues of material fact, and (2) whether the district court correctly applied the law. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 345 (Minn. 2003). We view the evidence in a light most favorable to the nonmoving party. Id. The construction of a contract, unless ambiguous, is a question of law, as is the construction of a statute. Id. at 346. Questions of law are reviewed by this court de novo. Id. at 345.
Marketing argues that the July Agreement is void, and Rosenberg's action cannot be brought, because the July Agreement does not contain all of the "contents" of a listing agreement that are specified in Minn. Stat. § 82.195, subd. ...