This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-96-333

Wagner Homes, Inc.,
f/k/a Wagner Realty, Inc.,
Respondent,

vs.

Jack Lehtinen, et al.,
Appellants.

Filed July 30, 1996
Reversed
Davies, Judge

Dakota County District Court
File No. C6-95-8066

Mark. A. Olson, Olson Law Office, 2605 E. Cliff Rd., Burnsville, MN 55337 (for Respondent)

Steven D. Soltau, 3601 Minnesota Dr., Suite 880, Edina, MN 55435 (for Appellants)

Considered and decided by Schumacher, Presiding Judge, Davies, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Appellants Jack and Carolyn Lehtinen challenge summary judgment in favor of respondent Wagner Homes, Inc. (Wagner), arguing that Wagner's breach of contract action is barred by the statute of limitations. We agree and reverse.

FACTS

On August 5, 1987, Jack Lehtinen and Wagner executed a one-month listing agreement giving Wagner the exclusive right to sell the Lehtinens' 77-acre parcel. That document provides that Lehtinen would pay a commission of

10% of funds received if I sell or agree to sell the property before this contract ends. In addition, if before this contract ends you present a Buyer who is willing and able to buy the property at the price and terms required in this contract, but I refuse to sell, I will still pay you the same commission. * * * I agree to pay your commission in full upon the happening of any of the following events: (1) The closing of the sale, (2) My refusal to close the sale, or (3) My refusal to sell at the price and terms required in the contract.

On August 26, 1987, Keith Harstad and the Lehtinens entered into an agreement whereby Harstad would purchase the 77-acre parcel for $269,500 and the Lehtinens would provide marketable title by the closing date. The following day, the Lehtinens countersigned a letter from Wagner agreeing "to pay Wagner Realty the 10% sales commission at the time [they] receive any and all payments from * * * Harstad," including a $2,695 payment "due at closing."

In January 1988, following the Lehtinens' failure to cure title defects, Harstad commenced an action against them for specific performance. In February 1991, the district court determined that the Lehtinens had acted in bad faith and Harstad was entitled to specific performance of the contract; the court ordered the Lehtinens to provide marketable title. In January 1994, the Lehtinens were finally divested of title by court order.

In May 1995 (more than seven years after the Harstad action commenced), Wagner filed suit against the Lehtinens for its commission. Wagner moved for summary judgment, and the Lehtinens moved to dismiss the action in part based on the six-year statute of limitations contained in Minn. Stat. ' 541.05. In December 1995, the district court granted summary judgment in favor of Wagner, explaining that the cause of action was not barred by the statute of limitations because it did not accrue until January 5, 1994, at the time that Harstad deposited the required purchase money with the court. The Lehtinens now appeal from that order.

D E C I S I O N

On appeal from summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). In doing so, we view the evidence in the light most favorable to the nonmoving party. Id.

The Lehtinens argue that the district court erred in concluding that, for purposes of Minn. Stat. ' 541.05, subd. 1(1) (1994), Wagner's cause of action accrued on the date the real estate sale was deemed closed, January 5, 1994. In the alternative, the Lehtinens contend that the district court erred by granting summary judgment because the case involves a fact question for the jury. We need not address the Lehtinens' alternative argument because we agree (1) that the district court erred in determining the date Wagner's action accrued and (2) that the statute of limitations bars Wagner's claim.

Minn. Stat. ' 541.05, subd. 1(1), provides that contract actions must generally be commenced within six years. The statutory period begins to run from the time the action could have been commenced. Leisure Dynamics v. Falstaff Brewing, 298 N.W.2d 33, 37 (Minn. 1980). The court has no power to extend or modify a statutory limitation period. DeMars v. Robinson King Floors, 256 N.W.2d 501, 505 (Minn. 1977).

In determining that Wagner's action accrued in January 1994, the district court recognized that a broker's right to a commission stems from the agreement between the parties. See Albers v. Fitschen, 274 Minn. 375, 376, 143 N.W.2d 841-43 (1966) (action to enforce payment of commission "rests upon common-law right to recover for * * * services pursuant to an agreement"). Indeed, "[a] broker is entitled to his commission when he has performed all that he undertook to perform." Greer v. Kooiker, 312 Minn. 499, 510, 253 N.W.2d 133, 141 (1977).

The language of the August 5, 1987, listing agreement conditioned Wagner's right to the commission simply on the presentation of a buyer "willing and able" to purchase the property at the specified terms, regardless of whether the Lehtinens completed the transaction. Wagner presented such a buyer.

Wagner maintains that the August 27, 1987, letter modified the agreement by making closing and payment a condition precedent to Wagner's right to the commission. A listing agreement is, however, an enforceable bilateral contract that cannot be modified without reciprocity of consideration. Klawitter v. Billick, 308 Minn. 325, 330-31, 242 N.W.2d 588, 592 (1976). Because Wagner had no duties to perform after Harstad and the Lehtinens signed the purchase agreement, the commission had been earned. There was no consideration supporting the alleged August 27 promise to modify the terms of the August 5 contract.

Wagner claims that the Lehtinens cannot now claim they breached the contract in January 1988 because in the underlying action they repeatedly denied that they refused to sell the property. In ordering specific performance, however, the district court determined that the Lehtinens "refused to act according to the terms of the contract." This means that the Lehtinens breached that contract, and thus that Wagner's cause of action accrued at the latest when Harstad, a "willing and able" buyer, commenced a specific performance action based on the Lehtinens' failure to make the property marketable for closing. Wagner did not commence an action within six years of that date and his action was therefore untimely. A timely action might well have been stayed pending the resolution of Harstad's action, but the action had to be timely commenced nonetheless. This action is barred by Minn. Stat. 541.05, subd. 1(1).

Finally, both parties moved to strike matters from the other's brief, claiming the items are outside the record on appeal. See Minn. R. Civ. App. P. 110.01 (record on appeal consists of "papers filed in the trial court, the exhibits, and the transcript of the proceedings"). The document Wagner requests be stricken is, however, actually part of the record. Moreover, the Lehtinens' motion fails to identify any items outside the record. The parties' respective motions are denied.

Reversed.


Footnotes

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