O.I.C., Inc. v. Wilcox , 738 P.2d 630 ( 1987 )

PER CURIAM:

Plaintiff, a real estate broker, brought this action against defendants to recover a sale’s commission under a written listing agreement. The trial court granted defendants’ motion for summary judgment, ruling that enforcement of the listing agreement was barred by the statute of frauds. Plaintiff appeals.

Marilee Faulkner, a saleswoman for plaintiff, went to the home of defendant Betty Frandsen to inquire whether she would list for sale with plaintiff a cafe located in Castle Dale, Utah. Frandsen explained that her father (defendant Delbert Wilcox) owned the property, but that she thought he would want her to list the property for him. At Faulkner’s request, Frandsen signed her name and her father’s name on a printed listing agreement furnished by Faulkner. It provided that for six months plaintiff would have the sole and exclusive right to sell the cafe and that plaintiff’s commission would be 12 percent of the sales price, but not less than $18,000. Wilcox was apparently not informed of the listing agreement and independently sold the property during the six-month period.

Plaintiff brought this action against Wilcox and Frandsen on the listing agreement, seeking the $18,000 commission, costs, and attorney fees. Defendants answered alleging, inter alia, that Wilcox had not authorized Frandsen to act as his agent and that plaintiff’s claim was barred by the statute of frauds. Plaintiff moved for summary judgment on the ground that Frandsen had signed the listing agreement and was liable thereon. Frandsen filed a motion in opposition and also moved for summary judgment based upon her affidavit that she had no written authorization to list the property and that plaintiff had made no inquiry of her authority. After a hearing, the trial court granted defendant’s motion “dismissing this action, with prejudice as to any claim for damages under the real estate listing.”

The statute of frauds, codified at Utah Code Ann. §§ 25-5-1 to 9 (1984) provides:

In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof, is in writing subscribed by the party to be charged therewith:

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(5) Every agreement authorizing or employing an agent or broker to purchase or sell real estate for, compensation.

Utah Code Ann. § 25-5-4 (1984) (emphasis added).

It is undisputed that Wilcox did not sign the listing agreement, nor did he authorize Frandsen to sign for him as his agent. Furthermore, Utah Code Ann. § 25-5-1 (1984), requires that in real property transactions, the agent of the seller must have written authorization:

No estate or interest in real property, other than leases for a term not exceeding one year, nor any trust or power over or concerning real property or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared otherwise than by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.

(Emphasis added.) See also Williams v. Singleton, 723 P.2d 421 (Utah 1986).

Plaintiff contends that even though its action against Wilcox was barred by the statute of frauds, its complaint stated a cause of action against Frandsen for damages it sustained by Frandsen’s misrepresenting her authority to act as an agent. Plaintiff argues that it should not have been precluded by the summary judgment from pursuing this cause of action. A short answer to plaintiff’s contention is that plaintiff presented nothing to the trial judge at the hearing on the motion for summary judgment to support a cause of action against Frandsen for misrepresentation of her authority. On the other hand, Frandsen supported her motion for summary judgment with her affidavit that Faulkner came to Frandsen’s home where Frand-sen disclosed to her that she had no ownership in the property and stated only that she thought her father would want her to list the property. She signed both her name and her father’s name on the listing agreement at the request of Faulkner. She did not designate that she was signing as agent for her father. Plaintiff did not file a counter-affidavit or make any other attempt to controvert Frandsen’s sworn statements. Under these circumstances, the trial court did not err in granting summary judgment. There was no factual dispute since nothing was presented to show that there had been any misrepresentation by Frandsen of her authority.

Judgment affirmed.