Summary
The Supreme Court of Nebraska held that a real estate brokerage listing agreement for an exchange of land stated a claim for breach of contract and was not rendered unenforceable by Nebraska's written-agreement requirements for brokerage services. The court reversed dismissal of the amended complaint and remanded for further proceedings. It affirmed the denial of a motion to disqualify opposing counsel, finding no abuse of discretion because the attorney's prior work was not the same or substantially related matter.
Topics
Practice areas
Questions Presented
- Whether Neb. Rev. Stat. § 76-2422 governs real-property exchanges as well as sales.
- Whether § 76-2422 operates as a statute of frauds rendering the listing agreement unenforceable.
- Whether McCully's amended complaint adequately stated a claim for breach of contract or unjust enrichment sufficient to survive a motion to dismiss.
- Whether the district court abused its discretion by denying McCully's motion to disqualify Baccaro's counsel.
Holdings
- Section 76-2422 applies to real-property exchanges because the incorporated definition of brokerage activities expressly includes negotiating or attempting to negotiate an exchange of real estate.
- Section 76-2422 does not operate as a statute of frauds and does not render a brokerage agreement void or unenforceable merely because the agreement does not satisfy the statute-of-frauds requirements applicable to contracts for the sale of land.
- The amended complaint adequately stated a claim for relief because, construed together with the listing agreement, it alleged an exchange based on a listed value of $1.6 million, Baccaro's breach after McCully performed, and sufficient terms of compensation.
- The district court did not abuse its discretion in denying McCully's motion to disqualify Baccaro's counsel because the evidence did not establish that counsel had represented McCully in the same or a substantially related matter.
Key quotations
“We therefore find that § 76-2422 does not operate as a statute of frauds.” (119)
“We find that when read together, the listing agreement and the amended complaint set out sufficient terms of compensation to state a claim upon which relief could be granted.” (120)
“Preparing those documents cannot be considered "the same or a substantially related matter" with regard to this case.” (122)
Factual background
McCully and Baccaro entered into an exclusive right-to-sell-or-exchange listing agreement for Baccaro's Hooker County ranch, covering December 23, 2006, through December 1, 2007. During the listing term, McCully allegedly found a buyer willing to exchange another ranch for Baccaro's ranch plus $180,000; after Baccaro counteroffered a direct exchange, the buyer later accepted that counteroffer. McCully alleged that Baccaro refused to consent to the exchange until after the listing agreement expired in order to avoid paying a commission. McCully also sought disqualification of Baccaro's counsel based on an alleged prior attorney-client relationship.
Procedural history
McCully sued Baccaro alleging breach of a real estate listing agreement and, alternatively, unjust enrichment or quantum meruit. The district court granted Baccaro's motion to dismiss, concluding that the listing agreement was unenforceable under the statute of frauds, and denied McCully's motion to disqualify Baccaro's attorney. The Nebraska Supreme Court reversed the dismissal, affirmed the denial of disqualification, reinstated the amended complaint, and remanded.
Remand instructions
Reinstate McCully's amended complaint and conduct further proceedings consistent with the opinion. The denial of the motion to disqualify Baccaro's counsel remains affirmed.