Susan Tausch sued D. R. Horton, Inc.-Torrey d/b/a Torrey Homes “Torrey Homes” for real estate commissions that Torrey Homes allegedly failed to pay Tausch after firing her. Following a bench trial, the trial court awarded Tausch the commissions and further awarded her attorney fees. Torrey Homes appeals from this ruling. Since the undisputed evidence reveals that prior to Tausch’s lawsuit Torrey Homes had already paid Tausch all of the commissions to which she was entitled under her employment contract, the trial court erred as a matter of law in failing to enforce the contract as written. We therefore reverse. Viewed in the light most favorable to the trial court’s ruling, the evidence reveals that Torrey Homes hired Tausch as a real estate sales agent on June 21, 1999. In September of that year, Tausch began selling homes in a community developed and owned by Torrey Homes. The commissioned sales agreement signed by Tausch allowed her to sell homes in the community provided that she would be an exclusive sales agent for Torrey Homes: For so long as Tausch is employed by Torrey, Tausch shall devote . . . her entire productive time, ability and attention to the business of Torrey. During the time Tausch is affiliated with Torrey, Tausch shall not directly or indirectly render any services of a business, commercial, or professional nature to any other person or organization, whether for compensation or otherwise, who is in competition with Torrey or any Torrey entity. . . . No bonuses or incentives or other compensation will be paid for closings after termination except as is expressly provided for in this Agreement. The agreement called for a specific commission payment structure in the event that Tausch was terminated from her employment with Torrey Homes:
The commissions listed on Exhibit “A” 1.5 of home sales price minus a sales assistant override charge shall be paid for all sales which close on or before the date of termination. For sales closing after the date of termination , the following schedule will apply; no bonuses or incentives will be paid after termination except only as follows: i Closings within 7 days of the date of termination, commissions shall be paid in the amount of one hundred 100 percent of Schedule “A”; ii Closings between 8 and 30 days of the date of termination, commissions shall be paid in the amount of eighty 80 percent of Schedule “A”; iii Closings between 31 and 60 days of the date of termination, commissions shall be paid in the amount of fifty 50 percent of Schedule “A”; . . . iv Closings between 61 and 90 days of the date of termination, commissions shall be paid in the amount of twenty 20 percent of Schedule “A”; v Closings over 90 days after the date of termination, no commissions shall be paid. . . . Emphasis supplied.
