Opinion
Rehearing Denied Nov. 23, 1971. Certiorari Denied Jan. 31, 1972. Not Selected for Official Publication.
Creamers&sCreamer, Thomas C. Singer, Denver, for plaintiff-appellant.
Davis, Grahams&s Stubbs, Robert H. Harry, James E. Culhane, Denver, for defendant-appellee, Ford Leasing Development Co.
ENOCH, Judge.
This is an action by plaintiff-appellant, Mack Dahman, to recover real estate brokerage commissions claimed to be due under an express or implied contract with defendant-appellee, Ford Leasing Development Company. The parties will be referred to as they appeared in the trial court. Trial was to a jury which returned a verdict for defendants. The other defendants named in the caption are not involved in this appeal. Plaintiff's assignments of error relate to certain jury instructions given by the trial court and its refusal to give certain instructions requested by plaintiff. The evidence received at trial is not part of the record and is not material to the determination of this case.
I
The first issue presented by this appeal concerns the burden of proof which a real estate broker must meet to recover a commission under an express or implied contract. The court's instruction No. 2 stated that the plaintiff was required to establish his case by 'clear and convincing evidence' and defined this phrase as meaning 'evidence which is stronger than a preponderance of the evidence and which is unmistakable and free from serious or substantial doubt.' Instruction No. 4 set forth the various elements of an express contract and provided that each element must be established by 'clear and convincing evidence' for the plaintiff to recover. Instruction No. 10 covered the various elements of an implied contract and contained the same instruction relative to the burden of proof as that contained in No. 4.
This case was tried in January 1970. In all civil actions accruing after July 1, 1971, the burden of proof has been established by the Legislature as 'by a preponderance of the evidence.' Colo.Sess. Laws ch. 138, p. 579 (1971). The only exceptions to this standard burden of proof are in actions seeking exemplary damages and body execution.
We find no merit in plaintiff's contention that the burden of proof should have been by a preponderance of the evidence. At the time of trial, it was a well established rule in Colorado that a claim for real estate brokerage commissions must be proven by clear and convincing evidence. Fletcher v. Garrett, 167 Colo. 60, 445 P.2d 401; Fistell v. Thomas, 144 Colo. 94, 355 P.2d 105; Hayutin v. De Andrea, 139 Colo. 40, 337 P.2d 338.
Although Colorado Jury Instructions 23:31, tendered by plaintiff, supported his position, it was clearly in conflict with case law and was correctly rejected by the trial court in favor of an instruction reflecting the prevailing law. See C.R.C.P. 51.1(1). We note that this instruction was amended by the Supreme Court on November 30, 1970, changing the burden of proof from a 'preponderance of the evidence' to 'clear and convincing evidence' to conform with the existing case law.
Colorado Jury Instructions 23:32, also tendered by plaintiff, relates to proof of implied contracts in general and does not specifically pertain to real estate brokerage commission cases. Even if this instruction had been intended to be used in this type of case, it too would have been in conflict with case law.
II
Plaintiff also alleges instruction No. 2 erroneously defined 'clear and convincing evidence' as being 'evidence which is stronger than a preponderance of the evidence and which is unmistakable and free from serious or substantial doubt.' This definition is set forth in Colorado Jury Instructions 3:2, and there are numerous cases in Colorado supporting such a definition by words of similar import. See Whatley v. Wood, 157 Colo. 552, 404 P.2d 537; Olinger Mutual Benefit Association v. Christy, 139 Colo. 425, 342 P.2d 1000.
III
The final argument of plaintiff is that to require real estate agents to prove by clear and convincing evidence that they are entitled to commissions constitutes unconstitutional class discrimination. We do not agree. In the absence of any legislative expression, the courts have the duty and the responsibility to determine the burden of proof required in the various types of cases. Courts have required clear and convincing proof in a wide variety of cases where special dangers of deception exist or where other policy considerations so dictate. Colorado adopted the clear and convincing standard of proof in real estate commission cases to guard property owners from liability to real estate agents for 'purely technical reasons' and, at the same time, assure to the broker compensation for services properly and actually rendered. Johns v. Ambrose-Williamss&sCo., 136 Colo. 390, 317 P.2d 897. This determination is not so unreasonable or arbitrary as to constitute a denial of equal protection. See Wheeler v. Rudolph, 162 Colo. 410, 426 P.2d 762.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.