Exotex Corp. v. Rinehart

MACY, Justice,

specially concurring.

I agree that the default judgment entered against Exotex Corp. should be set aside. I do not, however, agree with the rationale the majority utilized to justify its decision and, consequently, specially concur.

W.R.C.P. 55(b)(1) provides that the clerk may enter a default judgment when the plaintiff's claim is for a sum certain or for a sum which can, by computation, be made certain. The majority concludes that the clerk did not have authority to enter a default judgment in this case because Rine-hart's claim was not for a sum certain. I disagree with that conclusion.

The majority quotes from Leet v. Joder, 75 Wyo. 225, 295 P.2d 733, 738 (1956), to justify its decision. The portion of the Leet case quoted by the majority states that, when a listing contract is breached by the principal, a broker is entitled to recover only the damages he actually incurred as a result of the principal's breach. The majority indicates that, under Leet, Rinehart was required to prove his actual damages and he could not simply present a claim for his commission. The majority concludes, therefore, that Rine-hart's claim was not for a sum certain.

The majority ignores the remainder of the Leet decision. What the majority neglected to point out is that the Leet decision goes on to state that, if a broker has performed the contract by providing a purchaser for the property, he may institute an action on the listing contract to recover his commission. *832Leet, 295 P.2d at 788-39. We discussed the Leet decision in E & E Mining, Inc. v. Flying "D" Group, Inc., 718 P.2d 58 (Wyo.1986). In that case, we stated that, when the broker has performed his obligation under a listing contract, he is not limited to a suit for his actual damages. 718 P.2d at 62. The broker may sue on the contract to recover his commission. Id.

The majority insists that a broker earns his commission only when a sale is finalized. Wyoming law does not, however, support the majority's position. The Wyoming Supreme Court has held that a broker is entitled to his commission when he has found a purchaser who is ready, willing, and able to purchase the property according to the seller's terms, even if the sale is not consummated. See Hill v. Hamilton, 368 P.2d 957, 959-60 (Wyo.1962); Gerritsen v. Draney, 351 P.2d 667, 673-74 (Wyo.1960). Other authorities agree with this statement of the law:

Apart from stipulations in the broker's contract to the contrary, the right to compensation by a broker who has procured a person ready, willing, and able to purchase the property on the terms specified by the employer is not lost by a failure of completion of the transaction because of the employer's default or refusal to go through with the deal. In other words, when a real estate broker produces a purchase offer for the exact amount and in keeping with the other terms specified in a listing agreement, the owner is not bound to the purchase offer if he or she, for whatever reason, does not want to sell to that offeror; however, in such a case, the broker is entitled to a commission for his or her performance of the listing agreement.

12 Am.Jur2d Brokers § 248 at 890-91 (2d ed.1997).

Rinehart was entitled to sue for his commission after he procured a purchaser who was ready, willing, and able to purchase Exo-tex's property according to Exotex's terms. The record clearly sets out the sales price and the commission percentage. Rinehart's claim for his commission was, therefore, a claim for a sum certain. Under these circumstances, I believe that the clerk had authority to enter the default judgment.

In my opinion, Exotex's assertion that the district court abused its discretion when it refused to set the default judgment aside pursuant to W.R.C.P. 55(c) and W.R.C.P. 60(b) is the dispositive issue in this case. W.R.C.P. 55(c) states:

(c) Setting aside default. -For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

W.R.C.P. 60(b) states in pertinent part:

(b) Other reasons. -On motion, and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (8) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Exotex maintains that it was entitled to relief from the default judgment pursuant to W.R.C.P. 60(b)(6). W.RGCP. 60(b)(6) is known as the "catch-all" clause, and, under that provision, a judgment may be set aside for "any other reason justifying relief from the operation of the judgment." Vanasse v. Ramsay, 847 P.2d 993, 998 (Wyo.1993). A defaulting party is entitled to be relieved from a default judgment under the catch-all clause only when extraordinary cireum-stances are present. Id. In U.S. Aviation, Inc. v. Wyoming Avionics, Inc., 664 P.2d 121, 127 (Wyo.1983), this Court recognized that "the purpose of Rule 60(b)(6) is to provide courts with the power to vacate judgments whenever such action is appropriate to accomplish justice."

*833In the case at bar, the undisputed essential facts disclose that: (1) Exotex was not a party to the sales agreement with Pronghorn Construction; (2) Rinehart was aware that Exotex had been deleted as a seller in the sales agreement; (8) when the sales agreement was executed, there was no written contract obligating Exotex to pay a sales commission to Rinehart; and (4) Exotex owned only a small portion of the property which had been included in the sales agreement.

I would hold that Exotex was entitled, under W.R.C.P. 60(b)(6), to be relieved from the default judgment which was entered in favor of Rinehart because good cause existed for setting aside the entry of default. Extraordinary cireumstances were present in this case which justify relieving Exotex from the default judgment. Exotex should not, under any cireumstances, be obligated to pay Rinehart's commission on the entire sale because it owned only a small portion of the land which was included in the sales agreement. A judgment which is so obviously unfair and unjust should not be allowed to stand. -It is appropriate to vacate the default judgment pursuant to W.R.C.P. 60(b)(6) to accomplish justice in this case.