## Facts

- Berry and Shebelut owned a 72-unit apartment building in Madera, California.
- They entered an exclusive listing agreement with Charles Tingey Associates, Inc., requiring the owners to accept an offer from a “ready, willing, and able” buyer on specified terms, including a $1,650,000 price, unless the parties expressly agreed otherwise.
- The listing authorized cooperation with other brokers and contemplated commission sharing.
- Tingey arranged for Steve Schmidt & Co., a licensed broker, to assist in locating a buyer in exchange for a portion of the commission.
- Steve Schmidt (acting personally) submitted an offer to purchase on the price and terms contemplated by the listing agreement.
- Berry did not accept the conforming offer; instead, he issued a counteroffer adding terms not contained in the listing.
- Schmidt rejected the counteroffer and maintained his original offer; Berry refused to sell without the added terms, and no sale closed.
- Schmidt & Co. sued for declaratory relief and damages, seeking its share of the commission; the trial court granted summary judgment for $57,750 (3.5%), plus attorney’s fees and costs.

## Issues

1. Whether a real estate broker earns a commission by producing a ready, willing, and able buyer on the listing’s stated terms when the seller refuses to proceed and no sale closes.
2. Whether the seller’s counteroffer adding new terms defeats the broker’s right to a commission after a conforming offer has been produced.
3. Whether a broker’s commission claim is barred or factually disputed because the prospective buyer was the broker himself.
4. Whether triable issues of material fact existed that precluded summary judgment.

## Decision

- The Court of Appeal affirmed summary judgment for Schmidt & Co.
- The court held the commission was earned when Schmidt & Co. produced a ready, willing, and able buyer on the exact terms specified in the listing.
- Berry could not avoid the commission by insisting on additional terms after a conforming offer was produced and then refusing to sell.
- On the record presented, Berry failed to raise a triable issue regarding the buyer’s ability to perform or any nondisclosure/conflict barring recovery.

## Legal Principles

- Absent an express agreement making commission contingent on consummation, a broker generally earns a commission upon producing a buyer ready, willing, and able to purchase on the listing’s specified terms, even if the sale does not close due to the seller’s refusal.
- A seller who agrees to accept a conforming offer cannot defeat the broker’s earned commission by later demanding more favorable or additional terms and refusing to proceed when the buyer will not accept them.
- Summary judgment is proper where the broker shows a conforming offer and the buyer’s readiness and financial ability, and the seller offers only conclusory or legally immaterial opposition.
- A broker’s status as both broker and prospective buyer does not automatically bar commission recovery where the undisputed record shows no misleading conduct or nondisclosure that would defeat the claim.

## Conclusion

The court enforced the listing agreement’s ready-willing-and-able standard and affirmed that Schmidt & Co. earned its commission once it produced a buyer meeting the listing terms; Berry’s refusal to sell unless new terms were added did not eliminate the commission obligation, and no triable facts barred summary judgment.


Steve Schmidt & Co. v. Berry, 183 Cal. App. 3d 1299 (Cal. Ct. App. 1986)