## Facts

- E.N. and Marsha Frady listed a Bosque County farm for sale with Bart May, a real estate broker, under a written agreement providing a 6% commission if May procured a ready, willing, and able buyer during the listing term (ending March 1, 1997).
- May advertised and showed the property, but no buyer was obtained before the listing term expired.
- After expiration, May and Ed Frady discussed renewing the listing; May continued marketing and showing the farm under an oral understanding, but no new written listing was executed.
- In May 1997, another broker (Bert Nichols) contacted May about the farm; May showed the property to Nichols several times.
- Nichols offered the Fradys the asking price ($975 per acre), and on May 30, 1997, Nichols and the Fradys signed an earnest money contract with a $5,000 deposit and an August 1, 1997 closing date.
- The sale did not close by August 1, and the earnest money contract expired under its terms.
- The Fradys later sold the farm to Nichols under a second contract on substantially similar terms but did not pay May any commission.
- May sued for his commission; after a bench trial, the trial court entered judgment for May, and the Fradys appealed.

## Issues

1. Whether the Texas Real Estate Licensing Act required a written commission agreement that was lacking because the sale did not close under the first earnest money contract and the written listing had expired.
2. Whether legally and factually sufficient evidence supported the findings that May was entitled to a commission, including that he was the procuring cause and that Nichols was a ready, willing, and able buyer.

## Decision

- The court of appeals affirmed the judgment awarding May the commission.
- The court held the commission agreement was not contingent on closing under the initial earnest money contract negotiated through May.
- The court concluded the written listing agreement provided sufficient writing to satisfy the Real Estate Licensing Act’s writing requirement.
- The court held the evidence was legally and factually sufficient to support that May procured a ready, willing, and able buyer and was the procuring cause of the ultimate sale to Nichols.

## Legal Principles

- A broker earns a commission under a listing agreement by producing a ready, willing, and able buyer on the seller’s stated terms, unless the commission obligation is expressly conditioned on a specified event.
- A seller may not avoid a broker’s commission by allowing an initial contract with the broker-procured buyer to lapse and then selling to the same buyer under a new contract on substantially similar terms, when the broker’s efforts produced the buyer and sale.
- The Texas Real Estate Licensing Act requires a written, signed agreement to pay a commission; a written listing agreement can satisfy this requirement even if later dealings occur after the listing term and the sale ultimately closes under a subsequent contract, absent an express contractual limitation tying commission solely to closing under a particular sale contract.
- On legal and factual sufficiency review, evidence that the broker introduced the buyer, showed the property, obtained an offer on the seller’s terms, and the seller later closed with the same buyer on similar terms can support findings of procuring cause and entitlement to commission.

## Conclusion

The court held that the broker’s right to a commission arose from the written listing’s promise to pay upon procurement of a ready, willing, and able buyer, and that the sellers’ later closing with the same buyer under a second, similar contract did not defeat that right; the judgment for the broker was affirmed.


Frady v. May, 23 S.W.3d 558 (Tex. App.—Fort Worth 2000, pet. denied)