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Click here for the full text of this decision FACTS:This appeal arises from a suit to recover a real estate brokerage commission. The appellee, C.B. Richard Ellis-El Paso L.L.C., sued the appellant, American Garment Properties Inc., claiming that AGP had failed to pay the full amount of its real estate commission pursuant to their Agency Agreement and the Purchase Agreement. AGP asserted that the parties had orally modified their agreement to reduce the commission. CBRE-El Paso moved for summary judgment as a matter of law and the trial court granted the motion. In its sole issue, AGP contends the trial court erred in granting summary judgment because its summary judgment evidence raised a fact issue that CBRE-El Paso orally agreed to reduce its commission. HOLDING:Affirmed. AGP asserts that it raised a fact issue that CBRE-El Paso orally agreed to reduce its commission by $13,500 for each month the closing was delayed. AGP argues that CBRE-El Paso’s oral agreement to reduce its commission was effective and therefore, the trial court erred in granting summary judgment. Specifically, AGP contends that the statute of frauds formerly contained in 20(b) of the Texas Real Estate License Act, does not prevent subsequent oral modification of the parties’ agreement because the RELA only imposes the requirement that the agreement be in writing upon the broker, but no such requirement on the public. AGP contends that the plain language of statute of frauds provision in the RELA demonstrates its limited application to only the broker. AGP argues that the only prohibition is that “an action may not be brought” in a court of this state “for the recovery of a commission” for the sale or purchase of real estate unless the promise or agreement is in writing and signed by the party to be charged. Therefore, the statute imposes a requirement upon the broker to have a written agreement in order to recover a commission, but imposes no such requirement upon the public from whom the broker is attempting to recover. The court disagrees with AGP’s narrow reading of the statutory provision for several reasons. First, the plain language does not expressly state that the written agreement requirement to the parties’ transaction applies only to the broker. Rather, the RELA statutory provision, like other sections of the Statute of Frauds, is primarily focused on the specific requirements of the parties’ promise or agreement in the context of real estate commissions. Second, as a general principle of contract law, “[w]here a contract within the Statute of Frauds is not enforceable against the party to be charged by an action against him, it is not enforceable by a set-off or counterclaim in an action brought by him, or as a defense to a claim by him.” Restatement (Second) of Contracts, 138 (1981). Under AGP’s interpretation of the statute, the parties could mutually agree to orally modify their commission agreement, but CBRE-El Paso would nevertheless be barred from bringing any action to recover under that modified agreement because it would be an unenforceable agreement pursuant to the statute of frauds provision. To hold that the commission agreement would be unenforceable against one of the parties, but not the other, is at the very least untenable and would clearly be contrary to the purpose of the RELA’s statute of frauds provision, that is, to prevent fraud by imposing a requirement that such agreements be in writing. Finally, the Texas Supreme Court has not treated oral agreements to modify a real estate commission agreement raised defensively by owners any differently from oral agreements asserted by brokers seeking to recover their commissions. The court concludes that the RELA statute of frauds provision in effect at the time applies in this case and AGP’s summary judgment evidence concerning oral modification of the Purchase Agreement did not preclude summary judgment. OPINION:Chew, J.; Barajas, C.J., Larsen and Chew, JJ.

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