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DECEMBER 17, 2004; 2:00 p.m. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2003-CA-001176-MR

JOHN LAWSON REALTY CO., INC.; MAC PROPERTIES, INC.

APPELLANTS

v.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE STEPHEN K. MERSHON, JUDGE ACTION NO. 02-CI-006569

DON ERLER; RE/MAX COMMERCIAL BROKERS

APPELLEES

OPINION AFFIRMING ** ** ** ** ** ** ** ** BEFORE: SCHRODER AND TACKETT, JUDGES; EMBERTON, SENIOR JUDGE.1 John Lawson Realty Co., Inc. and MAC

TACKETT, JUDGE:

Properties, Inc. bring this appeal from an order of the Jefferson Circuit Court granting summary judgment to Don Erler and Re/Max Commercial Brokers on their claim that they were entitled to compensation for their efforts in assisting the

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Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

appellants in a real estate transaction; from an order awarding Erler $13,675.00 for his efforts in the transaction; and from an order denying the appellants' motion to alter amend or vacate judgment. Because the circuit court correctly granted the

appellees summary judgment on the issue of their entitlement to compensation for their participation in the real estate transaction, and because we find no error in the circuit court's assessment of proper compensation, we affirm. Don Erler is a real estate agent in Jefferson County, Kentucky, and is the owner of Re/Max Commercial Brokers. acted as Re/Max Commercial Brokers' agent in the events surrounding this case. Erler became aware of property for Erler

residential apartment housing owned by John Lawson Realty and MAC Properties located on Haney Way in Jefferson County. John

Lawson is the president of John Lawson Realty and MAC Properties and acted as their agent in the transactions described herein. Erler also became aware that Chris Dischinger, a developer acting as agent for Equity Holdings Group, LLC, was interested in purchasing property in this zoning category. With the

intention of facilitating the sale and purchase of the subject property, Erler introduced Lawson and Dischinger. subsequently went out of town. During his absence Erler received word from Dischinger that Lawson wanted to sign a contract on the Haney Way property Erler

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which would include a compensation provision for Erler. told Dischinger to go ahead and sign the contract.

Erler

A 90 day

option contract, with an additional 60 day extension provision, was executed on February 27, 2002, entitling Dischinger to purchase the property for $425,000. Paragraph 4(e) of the

contract included the provision "Sellers are to pay a finder's fee to Don Erler, Re/Max Commercial Brokers per separate agreement." The paragraph also contained a provision that John

Lawson Realty was to receive a commission from MAC Properties per separate agreement. No separate written agreement between

Lawson and Erler was ever executed. Dischinger and Lawson did not consummate the original option contract by the termination date of the agreement. August 1, 2002, Lawson and Dischinger executed an agreement voiding the February 27, 2002, agreement; however, on August 2, 2002, Dischinger and Lawson entered into a second agreement. The second agreement was reflected in two separate contracts. The first contract provided for the sale of the property owned by MAC Properties to be purchased by Dischinger for $185,000. The second contract provided for the purchase of the property owed by John Lawson Realty to be purchased by Dischinger for $240,000. The new contracts omitted any provision for a fee to On

be paid to Erler, though the MAC Properties contract retained a provision for payment of a commission by MAC Properties to John

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Lawson Realty Co. carried forward.

The deposits from the original agreement were This time the terms of the agreement were

fulfilled, and the property was transferred to Dischinger's principal, Equity Holdings Group. Erler sought payment for a commission or finder's fee on the transaction; however, he could not reach an agreement with Lawson. On August 30, 2002, Erler and Re/Max Commercial

Brokers filed a complaint in Jefferson Circuit Court against John Lawson Realty Co. and MAC Properties seeking payment of a commission or finder's fee for their participation in the sale of the Haney Way property. Each side moved for summary judgment. On January 9,

2003, the trial court entered an order granting Erler summary judgment on his claim for compensation for his participation in the sale of the Haney Way property. The decision reflected that

statute of frauds issues had been satisfied, and stated that Erler was entitled to be compensated for his efforts pursuant to the doctrine of quantum meruit. On March 21, 2003, a bench On April 14, 2003, the

trial was held on the issue of damages.

trial court entered an order awarding Erler $13,675.00 as compensation for his participation in the sale. The trial court This

denied the appellants' motion to alter, amend or vacate. appeal followed.

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The appellants contend that Erler is not entitled to compensation for his participation in the sale of the Haney Way property because such compensation amounts to a real estate commission in the absence of a writing in contravention of Kentucky Revised Statutes (KRS) 371.010(8) and Louisville Trust Co. v. Monsky, Ky., 444 S.W.2d 120 (1969). provides as follows: No action shall be brought to charge any person: . . . . Upon any promise, agreement, or contract for any commission or compensation for the sale or lease of any real estate or for assisting another in the sale or lease of any real estate . . . . unless the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by his authorized agent. "[KRS 371.010(8) is plain, positive, and unambiguous. It is controlling of [the] right to sue on a verbal contract. [There is] no such right." Monsky, supra, at 121. Moreover, a KRS 371.010(8)

real estate agent may not recover in quantum meruit in the absence of a written contract. Id.

In Louisville Trust Co. v. Monsky, Thomas C. Bean was a licensed real-estate broker. Bean called Monsky and asked if

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the latter was interested in selling his real estate consisting of a full block at Thirtieth and Chestnut Streets in Louisville. About a year later, Cabot Corporation signed a "real estate and purchase contract" addressed to Thomas C. Bean "as agent," in which Cabot agreed to purchase the property for $125,000. The

contract included the provision that "Seller [Monsky] will pay any real estate commission payable." on June 23, 1965. Monsky accepted this offer

Pursuant thereto, on July 8, 1965, Monsky A dispute arose at this time in

deeded the property to Cabot.

which Monsky contended he did not agree to pay Bean a commission, or that having once agreed to pay the commission, he later terminated that agreement. Bean took the position that he

and Louisville Trust Company (which provided Bean office space) were entitled to a 5-percent commission. Monsky held that Bean was not entitled to a commission for his participation in the sale because there was no writing as required by the statute of frauds provision contained in KRS 371.010(8). The decision also held that Bean was not entitled

to recover on quantum meruit in the absence of a written contract or memorandum complying with the statute of frauds. The present case is distinguishable from Monsky because the February 27, 2002, writing signed by Lawson as agent for the appellants was sufficient to comply with the statute of frauds. The whole purpose of the writing required by a Statute

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of Frauds is to provide evidence of a contract.

Shpilberg v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., Ky., 535 S.W.2d 227, 229 (1976). A memorandum signed by the party to be charged

is sufficient if it relieves the court of the necessity of relying upon parol evidence to establish the existence of the contract. Koplin v. Faulkner, Ky., 293 S.W.2d 467, 470 (1956).

KRS 371.010(8) requires only a memorandum or note of the agreement signed by the person to be charged. It follows that

the agreement need not be a formal contract between the parties, but, rather, the writing need only establish the existence of the contract. 133 (1981); See Restatement (Second) of Contracts

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