Durkin v. Delaney
| Decision Date | 28 May 2013 |
| Docket Number | C.A. No. PC 05-2566 |
| Parties | JAMES DURKIN d/b/a DURKIN COTTAGE REALTY v. GESELDA M. DELANEY |
| Court | Rhode Island Superior Court |
DECISION
This matter is before the Court for decision following a non-jury trial. Plaintiff James Durkin filed a Complaint for breach of contract to establish his right to a real estate commission arising out of Defendant Geselda M. Delaney's sale of property in Narragansett, Rhode Island. Defendant has filed a Counterclaim alleging breach of fiduciary duty and seeking compensatory and punitive damages. For the reasons set forth in this Decision, this Court finds in favor of Plaintiff as to his Complaint for breach of contract and awards him damages for the unpaid commission in the amount of $16,500, plus statutory interest and costs. It denies Plaintiff's request for attorney's fees under R.I. Gen. Laws § 9-1-45. This Court also denies Defendant's Counterclaim for breach of fiduciary duty and compensatory and punitive damages.
Plaintiff James Durkin d/b/a Durkin Cottage Realty is a licensed real estate broker with an office located in Narragansett, Rhode Island. Defendant Geselda M. Delaney is the formerowner of residential property located at 1414 Ocean Drive in Narragansett, Rhode Island (the Property).2 (Countercl. ¶ 4). Defendant, who was a resident of Pawtucket, Rhode Island, used the Property as a second home and often rented it when she was not using it personally. In renting the Property over the years, Defendant employed the services of Plaintiff. According to Plaintiff, it was customary during this time for him to have a signed rental agreement with Defendant, advertise the Property in print and on the Internet, show the Property, enter into rental agreements with tenants on behalf of Defendant, collect security deposits and rents due, and act as the contact person for issues arising with the Property during the rental period. In return for these services, Plaintiff testified that his company would receive a commission equal to twenty percent of the gross rental price of the Property. This arrangement between the parties led to the rental of the Property several times a year for approximately a decade.
A conversation between the parties in September 2004 led Plaintiff to believe that Defendant might cease the rental arrangement of years past and sell the Property. Further communication between Plaintiff and Defendant in December 2004 confirmed Defendant's intent to sell. Defendant then secured an outside appraisal of the Property using an appraisal company suggested by Plaintiff. The appraiser rendered a report, dated December 15, 2004, that assessed the Property's fair market value at $393,000. (Pl.'s Ex. 1, Appraisal Report). Plaintiff testified that he never saw the appraisal report until after he commenced this litigation—as it was prepared by the appraisal company at Defendant's direct request—and that Defendant told him that she had an appraisal for $300,000, which he thought was low.
Plaintiff claims that on January 20, 2005, he became aware that Defendant intended tosell the Property to Emily Huggins upon Huggins' return from a nursing trip abroad. He claims further that, at Defendant's request, he scheduled an appointment with her for January 22, 2005 to list the Property for sale. Huggins, who became closely acquainted with Defendant while cleaning the Property between rentals, was a former employee and close family friend of Plaintiff. In fact, Plaintiff testified that his relationship with the Huggins family was so amiable—prior to this litigation—that he had hosted an engagement party at his home for Huggins and her fiance Charles Cummiskey, III.
Plaintiff testified that on January 22, 2005—the date that he was scheduled to meet Defendant at his office to discuss listing her Property for sale—he received a call from Defendant reporting that she thought someone had broken into the Property because she had found the rear door open and damage to the door casing. After calling Plaintiff, Defendant called the Narragansett Police Department to report the incident. Plaintiff then traveled to the Property, surveyed the damage with Defendant, and was present when the police arrived to prepare an incident report. Officer Prest, who responded to the police call, testified that Defendant's demeanor was calm and unremarkable when he arrived at the Property to investigate the reported crime. Plaintiff had brought certain paperwork to the Property with him and proceeded to enter into a listing agreement with Defendant with respect to the sale of the Property (the "Agreement").
The Agreement is a standard "Exclusive Right to Sell Listing Agreement" published by the Rhode Island State-Wide Multiple Listing Service. (Pl.'s Ex. 2, Listing Agreement). By the boilerplate terms of the Agreement, Defendant granted Plaintiff the exclusive right to sell the Property for a period of six months, "[i]n consideration of Broker submitting this listing and corresponding photo(s) to State-Wide Multiple Listing Services, Inc. (MLS), . . . and of Broker'sefforts to procure a purchaser of subject real estate." Id. ¶ 2. The Agreement contained a "Terms of Sale" clause that set the listing price of the Property at $300,000. Id. ¶ 3. A "Compensation to Broker" clause followed the listing price, and stated that "[a]s compensation for services, Seller agrees to pay Broker . . . 6 percent of the gross sales price" under certain conditions, including:
In addition to the boilerplate terms of the standard listing agreement, Plaintiff added additional handwritten terms to Agreement. Id. On the first page of the Agreement, he wrote the number six in the blank next to the amount of the commission. Id. ¶9. In the bottom right hand corner of that page, Plaintiff also wrote "Commission to James Durkin to be paid outside of closing." Id. Defendant placed her initials at the bottom of this page and also signed the bottom of the page under the language about payment of the commission. Id. Under the "Additional Provisions" clause located on the second page of the Agreement, Plaintiff wrote "strictly to sell to Chuck Cumminskey [sic] + Emily Huggins if they want" and "no need to put into MLS." Id.¶ 15. The signatures of both Defendant and Plaintiff appear at the bottom of this page of the Agreement. Id. Plaintiff testified that he inserted these handwritten provisions concerning the sale to Huggins and Cummiskey, the MLS listing, and payment of his commission into the Agreement before Defendant signed it and with her knowledge and consent.3
The Agreement was the product of discussions between Plaintiff and Defendant on January 22, 2005. Defendant told Plaintiff that she had discussed selling the Property to Huggins and Cummiskey and wanted him to offer it to them for sale before anyone else. She also told Plaintiff that she may have discussed selling the Property to them for $275,000. Plaintiff agreed to contact Huggins and Cummiskey first to see if they wanted to buy the Property. He also explained to Defendant what the amount of his commission would be based either on the listing price or the lower price she mentioned and how it would affect her net proceeds from any sale. The next day, Plaintiff received a telephone call from Emily Huggins' father, a personal friend, and he told Mr. Huggins that he had met with Defendant to sign a listing agreement and that "Emily was all set" to buy the Property if she wanted.
Plaintiff testified that his next contact with Defendant was two days later when she called him to report that following Huggins' return to the United States, she had met with Huggins and Cummiskey and signed documents pertaining to the sale of the Property. Defendant indicated that Cummiskey, a Rhode Island licensed real estate agent, had prepared the documents. According to Plaintiff, Defendant then purportedly asked him whether any of these documentswere the same as the ones she had signed with him days earlier. Plaintiff claims that he then called Huggins who confirmed that she had signed a purchase and sales agreement with Defendant. Plaintiff explained that he already had a signed listing agreement with Defendant— of which Huggins denied knowledge—and expressed his disappointment with her for forcing Defendant to sign papers for the sale of the Property. Huggins, who testified for the Defendant, claims that the tone of this conversation was much more quarrelsome, with Plaintiff accusing her of trying to cheat him out of his commission.
In fact, the document that Defendant signed with Huggins and Cummiskey was a purchase and sale agreement—a standard form published by the Rhode Island Association of Realtors—which purported to list the purchase price of the Property as $275,000, made no mention of a listing agent or any commission to be paid, and set a closing date of February 28, 2005. See Pl.'s Exs. 6 & 14 ¶¶ 3 & 4, Purchase and Sale Agreement. At trial, Cummiskey admitted that he could not account for the original document, that he...
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