### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00340- CV

Don Cox, Appellan t

v. Texas Association of Realtors, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0305 1, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

T h e b ackg round of this case and the nature of the dispute are well known to t h e parties, and acc ording ly , we need not rec ite them in detail here

. See Tex. R. App. P. 47.1 (direc ting appellate courts to issue opinions that are as “brief a s p racticable” but addre ss issues nece ssary to final dispositi on); id. R. 47.4 (ex p l ai n i ng that memorandum opinions should be “no longe r than

nece ssary to advise the pa

rties of the c ourt’s dec ision and the basic r easons f or it”). Don Cox is a rea l estate broker who helped broker a deal under which I I AT Service s Company (“I I AT”) ag ree d to lease a portion of a building from the Texas Association of Realtors (the “Associa tion”). After that ag ree ment expired, I I AT and the Association ag ree d to enter into another lease ag ree ment under which I I AT would lease the premises for ten y ear s. At the end of the ten-y ear lease , the parties rene wed the lease for an additional six teen- y ear period. The dispute in this

case cente rs around Cox ’s belief that he was entitled to a 4% commission calc ulated on the entiretyof the six teen- y ear term. The Association, on the other hand, felt that C o x wa s not entitled to a

commission on the six teen- y ear term but ag ree d to pay Cox the 4% commission calc ulated on a teny ear term. The dispute ultimately resulted in Cox filing a lawsuit ag ainst the Association in which he alleg ed that the Association brea ched an ag ree ment betwee n the parties by failing to pay his commission for the full six teen- y ear term. After Cox filed his suit, the Association filed a motion for summ ar y j u d gm ent 1

asser ting that Cox ’s claims are barr ed beca use there is no commission ag ree ment betwee n the parties
t h at co m plies with the require ments of the Real Estate L icensing Act, which is codified i n t h e occupations code. The occupations code mandates that a “per son may not maintain an action in this
state to rec over a commission for the sale or purcha se of rea l estate unless the promise or ag ree ment

on which the action is based, or a memorandum, is in writing and signe d by the party ag ainst whom the action is broug ht or by a person authorized by that party to sign the document.” Tex. Occ

. Code Ann. § 1101.806(c) (West 2012). To comply with this provision, the m emora ndum or agr eeme nt must: “(1) be in writing and must be signe d by t h e p erson to be char g ed with the commission; (2) promise that a definite commission will be paid, or must ref er to a written commission schedule ; (3 ) s tate the name of the broker to whom the commission is to be paid; and (4) either i t s el f o r b y ref ere nce to some other exis ting writing , identify with rea sonable cer tainty the land to be convey ed.” Lathem v. Kruse , 290 S.W .3d 922, 925 (Tex. App.—Dallas 2009, no pet.). Moreove r, the supreme court has cautioned that the statutory require ments are “cle ar and unequivoca l” and that co u rt s

We note that the parties take issue with whether the Association’s motion for summary 1 judgme nt is a n o -e v i d ence motion for summary judgme nt as well as a traditional motion for summary judgme nt. Given our re solution of this case , we ne ed not dec ide this issue. 2should construe them strictly

. Trammel Crow Co. No. 60 v. Harkin s o n , 9 4 4 S

. W.2d 631, 636-37

(Tex. 1997) (construing prede cessor statute that was near ly identically worde d and wa rning that if broker proce eds without written ag ree ments, he “doe s so at his or her ow n peril”)

. On appea l, Cox contends t h at the absenc e of a commission ag ree ment comply ing with the statutory require ments should n o t h ave resulted in a summary judgme nt in favor of the Association in this case beca use there is a fac t issue reg arding whether an exception t o those require ments was met. Specifica lly , Cox contends that “[p] artial perf ormanc e is a well-re cog nized, equitable exception” to the statutory require ments for enfor cea ble commission ag ree ments and that the Association’s partial pay ment of a commission to Cox established the exception or, at a minimum , cre ated a fac t issue reg arding whether the exception applies. Assuming for the sake of arg ument that partial perf ormanc e could serve as an exception to the statutory require ments, we do not be lieve that the actions underta ken would be sufficie nt to c rea te a fac t issue reg arding whether that exception applies in this case . That exception has been applied to circ umstances in which courts ag ree d to enfor ce written rea l-estate- commission agreements that failed to prec isely descr ibe the p ro p er t y at i ssue when the “broker fully perf orms; the ot her party knowing ly acc epts the brok er ’s service s by completing the transac tion and rec eiving the benef its from that transac ti o n ; t h e p arty charg ed the commission has signe d the ag ree ment; and the commission amount is documented.” Colli ns v. Beste , 840 S.W .2d 788, 792 (Tex. App.—For t Worth 1992, writ denied) ; see Carmack v. Beltway Dev

. Co. , 701 S.W .2d 37, 41-42 (Tex. App.—Dallas 1985, no writ). The exception has not been employ ed to excuse the absenc e of a written commission ag ree ment or to establish the amount of a commission not memorialized in a commission ag ree ment. Cf. Harkinson , 944 S.W .2d at 635

3(explaining that statute require s written commission ag ree ment beca use “[t] he obliga tion to pay and the amount of that commiss ion are subject to misrepre sentation”); see also Carmack , 701 S.W .2d
at 41 (explaining that “[a]ll owing a broker to rec over on the g round of his perf ormanc e alone would permit enfor ceme nt of any commission agr eeme nt fully perf ormed by the broke r whether or not it complies with” statutory require ments, which “would unduly expose the public to fra udulent claims for c ommissi ons”).

I n addition to arg uing that an exception a pplies, Cox also alleg es that there is a fac t issue reg arding whether there was an enfor cea ble memorandum ag ree ment b etween the parties that would satisfy the s tatutory require ments. When making this assertion, Cox ref ers to multiple documents and communications betwee n the parties and arg ues that those documents and exchang es constitute a memorandum ag ree ment when construed toge ther. Assumin g that those documents could proper ly be construed toge ther, we wo u l d be unable to conclude that a fac t issue exis ts reg arding whether the statutory require ments have been met. Even rea d toge ther, those documents do not establish a written ag ree ment signe d by the Association under which the Association ag ree d
to definitely pay Cox a commission for the full s ix teen y ear s of the rene wal. See Lathem , 290 S.W .3d at 925. Finally , Cox a r g u e s th a t s u mm a r y judg ment was improper beca use there is a fac t issue reg arding whether the terms of the commission ag ree ment betwee n Cox and the Assoc iation that was signe d in 1989 could proper ly establish the statutory require ments for the transac tion at issue in this appea l. Although the terms of the 1989 commission ag ree ment explained that it applied to rene wals of the 1989 lease betwee n the Association and I I AT, the terms of the lease that beca me eff ective afte r

4the expiration of the 1989 lease demonstrate that the Association and I I AT intended to enter into an

entirely new ag ree ment rathe r than rene w the 1989 lease

. See Tawes v. Barnes , 340 S.W .3d 419, 425 (Tex. 2011) (explaining that c ontrac t construction is question of law). I n fac t, the l ang uag e of the 1999 lease states that it “re place [d] any exis ting lease ” betwee n the parties and that “any such exis ting lease

. . . shall become null and void.” Acc ording ly , we do not believe that the terms of the 1989 commission ag ree ment could establish the statutory require ments for the transac tion a t issue in this case. For these rea sons, we cannot conclude that the district court err ed by g ranting summary judgme nt in favor of the Association and must, there fore , overr ule Cox ’s issues on appea l. Having overr

uled Cox ’s issues on appe al, we a ffirm the judg ment of the district cour t.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and Rose Affir med Filed: Apr il 24, 2013

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