In re: the Estate of Sherwood Thomas Perl, Deceased.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1471

In re: the Estate of Sherwood Thomas Perl, Deceased.

Filed May 7, 2018
Affirmed
Klaphake, Judge*

Hennepin County District Court
File No. 27-PA-PR-09-590

Morgan W. Kavanaugh, Wilkerson & Heg na, PLLP, Edina, Minnesota (for appellant
Property Advisors Realty, LLC)

William H. Henney, Minnetonka, Minnesota (for respondent Charles Perl)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Klaphake,
Judge.
U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Appellant real-estate listing agent challenges the district court’s summary judgment
in favor of respondent seller (the estate) on appellant’s commission claim against the estate.
Appellant argues that the district court misinterpreted the agreements. We affirm.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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D E C I S I O N
We review the district court’s summary -judgment decision de novo to determine
whether any genuine issue of material fact exists and whether the district court correctly
applied the law. Citizens State Bank Norwood Young Am. v. Brown , 849 N.W.2d 55, 61
(Minn. 2014). Summary judgment is appropriate when the evidence, v iewed in the light
most favorable to the nonmoving party, establishes that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a matter of law. Minn. R. Civ.
P. 56.03.
Generally, a real estate broker earns a commi ssion under a listing agreement by
producing a purchaser “ready, willing, and able to purchase at the price and on the terms
fixed by the seller.” Olson v. Penkert, 252 Minn. 334, 34 2, 90 N.W.2d 193, 200 (1958).
A listing agreement is a contract. See Ro senberg v. Heritage Renovations, LLC , 685
N.W.2d 320, 324 (Minn. 2004).
“Absent ambiguity, the interpretation of a contract is a question of law.” Roemhildt
v. Kristall Dev., Inc., 798 N.W.2d 371, 373 (Minn. App. 2011), review denied (Minn. July
19, 2011). “Whether language in a contract is plain or ambiguous is a question of law that
we review de novo.” Storms, Inc. v. Mathy Constr. Co. , 883 N.W.2d 772, 776 (Minn.
2016). When the language of a contract is clear and unambiguous, this court enforces t he
agreement of the parties as expressed in the contract. Dykes v. Sukup Mfg. Co., 781 N.W.2d
578, 582 (Minn. 2010). “[A contract] is ambiguous only if its language is susceptible to
more than one reasonable interpretation. ” Sayer v. Minnesota Dep’ t of Transp., 790
N.W.2d 151, 157 (Minn. 2010).

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When Sherwood Thomas Perl died, he owned a seven -acre parcel of property on
which he and his son, Gregg Perl, had operated a landscaping business. Respondent
Charles Perl was appointed personal representative of Sherwood Perl’s estate. The estate
entered into a listing agreement with appellant Property Advisors Realty, LLC, to sell the
property. The listing agreement was effective from February 21, 2016, through April 21,
2016.
The listing agreement listed the property at $2,150,000 , with a five perce nt sales
commission to Property Advisors. The standard form part of the agreement contains the
following provision: “[I]f before this Contract expires [Property Advisors] presents a
buyer who is willing and able to buy the Property at the price and terms required in this
Contract but [the estate] refuses to sell, Seller shall still pay [Property Advisors] the same
compensation.” But the parties added a provision stating that the estate “may sell to Gregg
Perl with no commission paid to Property Advisors Realty. Gregg Perl shall have 45 days
from list date to secure financing.”
In late February and early March, Property Advisors received two offers to buy the
property. On March 22, 2016, Gregg Perl made an offer to purchase the property for the
list price, and the sale to him closed on October 18, 2016. Property Advisors’ written
statement of claim for a $107,500 commission was disallowed, and Property Advisors filed
a petition for allowance of the claim.
Property Advisors argues that the Gregg Perl clause only bars Property Advisors
from earning a commission on sales to Gregg Perl, but does not apply to commissions
earned before Gregg Perl offered to buy the property . Property Advisors argues that,

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because it received offers to buy the property before Gregg Perl made his offer, it is entitled
to its commission. We disagree. The added provision expressly allows the estate to sell
the property to Gregg Perl “ with no commission paid” to Property Advisors. The phrase
“with no commission paid” is not limited or qualified to apply only to a commission on a
sale to Gregg Perl. By its plain language, the phrase means that Property Advisors will be
paid “no commission” if the property is sold to Gregg Perl. Also, because the five percent
commission clause i s part of the standard form contract and the Gregg Perl clause is an
added term, it supersedes the commission clause. See Osgood v. Medical, Inc., 415 N.W.2d
896, 901 (Minn. App. 1987) (“Where a term is later added to a printed contract and the
term conflicts with the printed form, the later term controls.”) , review denied (Minn. Feb.
12, 1988).
It is undisputed that Gregg Perl had financing available by a contract for deed within
the 45-day period, and his use of an alternative method of financing was not prohibited
under the contract.
Because Gregg Perl secured financing within 45 days of the listing agreement and
the property was sold to him, the district court properly granted summary judgment for the
estate.
Affirmed.