Choice Homes, LLC v. Donner
| Decision Date | 24 June 2022 |
| Docket Number | S-21-572. |
| Citation | 311 Neb. 835,976 N.W.2d 187 |
| Parties | CHOICE HOMES, LLC, appellant, v. Heidi DONNER, individually and as Personal Representative of the Estate of Jeffrey B. Jackson, deceased, appellee. |
| Court | Nebraska Supreme Court |
Christian R. Blunk, of Harris & Associates, P.C., L.L.O., and Douglas W. Ruge, for appellant.
William N. Beerman and Patrick M. Flood, Omaha, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee.
Choice Homes, LLC (Choice), appeals from an adverse summary judgment. Most of its claims stemmed from two failed purchase agreements—where it attempted to buy real estate (the property) from the owners and then sell it to the buyers. After the closing failed, the buyers purchased the property directly from the owners. Choice sued for money damages on the purchase-related claims and on a defamation claim for an online review posted by one of the buyers. The district court found that the Nebraska Real Estate License Act1 (the Act) barred Choice's claims regarding the failed transaction and that the review contained only opinions and undisputedly true factual statements. Finding no reversible error, we affirm.
Before detailing the events underlying this appeal, we provide context by describing the property and identifying the persons involved.
The property features a residential home that sits on a slope and abuts a river.
Historically, the property suffered from erosion issues. Periodically, the property's slope would "collapse." Occasionally, since 1993, an engineering company conducted soil sample studies to monitor the property's erosion.
Around 2008, the slope behind the residential home suffered a significant collapse that required repairs. The engineering company conducted another soil sample study on the slope and proposed a plan to "rehab" the slope in 2009.
Following the study, the property's slope was regraded. However, the engineering company did not conduct another soil sample study after the slope was repaired.
Choice is a construction contractor that buys real estate and constructs residential homes. Often, Choice works with clients to purchase real estate and build a "custom" residential home on it.
Choice was owned by two individuals—Jason Gillman and Chad Bumsted. Choice claimed that Gillman and Bumsted were its only employees, because it delegated all its construction work and "office work" to subcontractors. None of Choice's employees were licensed real estate brokers, licensed associate brokers, or licensed salespersons. (For convenience, we refer to licensed real estate brokers, licensed associate brokers, and licensed salespersons collectively as "licensees.")
During the relevant events, Gillman served as Choice's primary representative. The vast majority of Choice's conduct occurred through Gillman, acting on its behalf. For instance, Gillman negotiated with the owners and buyers, signed legal documents, and made representations on behalf of Choice. Bumsted played only a minor role, by corresponding with third parties through email.
Alan and Carol Parsow (collectively the owners) owned the property. They were not named as parties in Choice's complaint, but their conduct is pertinent to the instant appeal. The record does not show whether the owners were deposed or otherwise involved in any discovery proceedings.
Heidi Donner and Jeffrey B. Jackson (collectively the buyers) sought to purchase the property. At the time of the events preceding Choice's lawsuit, Jackson was Donner's husband. The buyers had previous interactions with Gillman. They were Gillman's neighbors; he socialized with them, sharing drinks together and parking his motor home in their "tailgate" location during Nebraska football games. Jackson passed away in January 2019—less than a month after the buyers purchased the property from the owners, but before Choice filed its complaint.
Because the district court decided the case by summary judgment, we summarize the events in the light most favorable to Choice.
In 2018, Choice discovered the owners were considering selling the property and commenced negotiations with them. Choice entered into an oral agreement with the owners—where if "[Choice] found a buyer interested in [the property, the owners] would execute a purchase agreement and sell [it] to [Choice] for [a set price]."
Soon after, Gillman approached the buyers, proposing that they purchase the property from Choice. Gillman showed the property to the buyers multiple times.
On September 6, 2018, Jackson and Gillman communicated via text message regarding the condition of the property. (Throughout this opinion, we quote Jackson's and Gillman's text messages without correcting grammatical errors.) Jackson asked, Gillman responded, Gillman's text seemed to be referencing the soil sample study conducted after the property's slope collapsed, but before it was regraded.
One day after Jackson and Gillman's conversation via text messages, the buyers agreed to purchase the property from Choice. Choice executed two separate purchase agreements on the same day—one with the owners and one with buyers. In one agreement, Choice agreed to purchase the property from the owners for $750,000; in the other, it agreed to sell the property to the buyers for $1.3 million. The terms of both purchase agreements set the closing date of October 31, 2018, through an escrowed transaction. The purchase agreement also required the buyers to provide Choice an additional $70,000 for "lost building fees," because the buyers chose a different contractor to build a new home on the property. Ultimately, Choice expected to profit by $620,000 from the transaction.
Following the parties’ signing their respective purchase agreements, each party began to complete their contractual duties to close on the property.
Choice and the owners completed most of their contractual obligations under their purchase agreement. The owners completed a seller disclosure statement, as required by Neb. Rev. Stat. § 76-2,120 (Reissue 2018), which disclosed the previous erosion issues. Choice also obtained a loan to purchase the property from the owners.
However, the events differed between Choice and the buyers. Choice failed to complete its contractual obligations, and the buyers ultimately chose not to purchase the property.
Choice never provided a current title insurance commitment or a complete abstract of title to the buyers, as required under the purchase agreement. Choice directed a third party to prepare and deliver these documents to the buyers. However, the buyers denied receiving them.
Additionally, Choice never completed its own seller's disclosure statement. Choice provided the owners’ seller disclosure statement to the buyers.
On October 5, 2018, Jackson texted Gillman and indicated that the buyers would not close on the property, claiming Choice did not disclose the erosion issues. Jackson stated, "I will not execute the contract as the erosion was not advised up front and I am very concerned[.]" Donner testified that Jackson was upset that Gillman did not disclose any information or reports on the property's erosion history. Donner stated, "Most our information came from Carol Parsow about the erosion."
Gillman responded to Jackson's refusal to close by reaffirming his representation that the property no longer suffered from erosion issues. Gillman stated, However, Choice never sought to force the buyers to close on the property, because "there wasn't a whole lot of communication after that point."
Gillman claimed in his deposition that Alan Parsow communicated with him after the buyers told Choice that they would not purchase the property. Gillman testified that Alan Parsow stated:
[The owners were not] going to pursue [their purchase agreement] with [Choice] and make [it] close on [the purchase agreement] because if [the owners] would have, [it] would have had to close because [it] had a [purchase agreement] to close with [the owners], and he basically said [the owners were not] going to pursue [the purchase agreement].
After Choice's conversations with the owners, it never sought to enforce its purchase agreement with them, because "that was about it after that."
Choice did not close on the property pursuant to either purchase agreement.
In November 2018, the owners communicated with the buyers directly and inquired whether they would be interested in purchasing the property. Gillman attempted to interject Choice into the owners and buyers’ discussions to "try[ ] to keep the agreements between [it, the owners, and the buyers] alive." However, the owners and buyers chose not to involve Choice in the discussions.
The owners sold the property to the buyers for $825,000 on December 24, 2018. Choice was not involved in the sale. Jackson passed away on January 12, 2019.
Months later, Donner posted a negative "Google Review" of Gillman and "Choice Custom Homes" (the review). For convenience, we quote the review in full in the analysis section.
Choice sued Donner, both as an individual and in her capacity as the personal representative of Jackson's estate (hereafter collectively Donner). It did not include the owners as parties in the action. We first summarize the pleadings and then turn to the arguments asserted on summary judgment.
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