Campbell v. Vencel , 1992 Ind. LEXIS 266 ( 1992 )

604 N.E.2d 601 (1992)

Horace CAMPBELL, et al., Appellant (Defendant below),
v.
Steve VENCEL, Appellee (Plaintiff below).

No. 47S04-9212-CV-967.

Supreme Court of Indiana.

December 11, 1992.

Bruce A. Hewetson, Bedford, for appellant.

Edward F. McCrea, Bloomington, for appellee.

Nat. Assn. of Realtors, Inc. William J. Wood, Indianapolis, Elkhart County Bd. of Realtors, Inc., Nancy A. McCaslin, James L. McCaslin, Elkhart, for amicus curiae.

SHEPARD, Chief Justice.

Appellants Horace R. and Helen P. Campbell signed a listing agreement with a real estate agent, Steve Vencel. During the listing period, the Campbells themselves sold the farm and refused Vencel's demand for the commission he believed he should receive under the agreement.

Vencel sued the Campbells for his commission and the trial court entered summary judgment in his favor. It awarded a total of $15,081.

The Campbells appealed, raising two issues which they said precluded summary judgment. First, the Campbells contended that they were fraudulently induced to sign the listing contract. Second, they asserted that they had entered into the agreement by mistake. The Court of Appeals rejected both these allegations of error. It reversed, however, holding sua sponte that Vencel could not receive a commission under Indiana law because the sale had not been the result of his effort. Campbell v. Vencel (1992), Ind. App., 594 N.E.2d 807. Vencel petitions for transfer to this Court, and we grant his petition.

The Court of Appeals properly rejected the two central contentions raised on appeal, fraudulent procurement and mistake. We summarily affirm the Court of Appeals determinations on these issues. Ind. Appellate Rule 11(B)(3). We vacate that portion of the Court of Appeals opinion declaring that a real estate broker may not recover a commission unless the broker is the producing cause of the sale or has furnished a ready, willing and able customer.

The two errors raised by appellants being rejected, we affirm the judgment of the trial court.

DeBRULER, DICKSON and KRAHULIK, JJ., concur.

GIVAN, J., dissents and would grant transfer and adopt the concurring opinion of SHARPNACK, J.