Huang v. RE/MAX Leading Edge

• Decision Date: 09 June 2022
• Docket Number: 21-P-155
• Citation: 101 Mass.App.Ct. 150,190 N.E.3d 518
• Parties: Biping HUANG & another v. RE/MAX LEADING EDGE & others.
• Court: Appeals Court of Massachusetts

101 Mass.App.Ct. 150

190 N.E.3d 518

Biping HUANG & another¹

v.RE/MAX LEADING EDGE & others.²

No. 21-P-155

Appeals Court of Massachusetts, Middlesex.

Argued December 13, 2021.

Decided June 9, 2022.

Charles G. Devine, Jr. Boston, (Lei Zhao Reilley also present), for the plaintiffs.

John D. Leone, Arlington, for Xinhang Sun & another.

Jennifer L. Markowski, Boston, for RE/MAX Leading Edge & another.

Present: Shin, Englander, & Hand, JJ.

SHIN, J.

Biping Huang, a licensed real estate broker, claims that her former clients, Xinhang Sun and Jing Ma, breached a verbal agreement to give Huang the exclusive right for one year to help them find and purchase a new home in Winchester.³ According to Huang, after she performed diligently under the agreement for several months, Sun and Ma revoked the agency without cause and purchased a home through a different broker, RE/MAX Leading Edge. Around the same time, Sun and Ma hired RE/MAX Leading Edge to sell their existing home, also purportedly in violation of their verbal agreement with Huang.

Huang filed a complaint in Superior Court based on these allegations, raising a breach of contract claim against Sun and Ma and claims of tortious interference and G. L. c. 93A violations against RE/MAX Leading Edge and its owner, Paul Mydelski (together, RE/MAX). A judge allowed RE/MAX's motion to dismiss the claims against it under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and a second judge allowed Sun and Ma's motion for summary judgment. Huang appeals, arguing that the respective judges erred in allowing the motion to dismiss and the motion for summary judgment.

We conclude that summary judgment should not have entered as to that part of Huang's claim that is premised on Sun and Ma's alleged agreement to give Huang the exclusive right to act as their buyer's agent for one year. While accepting as true Huang's assertion that such an agreement existed, the second judge concluded that the agreement was unenforceable because it was not reduced to writing. Pursuant to an express exemption in the Statute of Frauds, however, a contract to pay for the services of a licensed real estate broker need not be in writing. As Sun and Ma do not otherwise challenge the enforceability of the agreement, nor do they argue that Huang will be unable to prove breach and damages, we vacate so much of the judgment as grants summary judgment to Sun and Ma on Huang's claim related to the buyer's agent agreement. We affirm the remainder of the judgment.

Background. The following facts, many of which are disputed, are taken from the summary judgment record. We recite them in the light most favorable to Huang, the nonmoving party. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680, 46 N.E.3d 24 (2016).

On May 22, 2016, Huang entered into a verbal agreement with Sun and Ma to act as their "exclusive buyer's agent."⁴ The terms of the agreement, as attested to by Huang, were as follows. For a period of one year, Huang would have the "exclusive right to help [Sun and Ma] in their procuring a new home that was acceptable for purchase by them." To that end, Sun and Ma "agreed to refer all potentially acceptable real property to [Huang] and to notify other real estate agents of [the] exclusive agency." In exchange, Huang agreed to use "reasonable efforts" to help Sun and Ma find and purchase a new home, including by "assist[ing] in locating properties, ... arrang[ing] showings, analyz[ing] financing alternatives, giv[ing] advice concerning real estate practices and procedures, assist[ing] in negotiations, arrang[ing] inspections ..., and coordinat[ing] activities throughout the process." Huang's "compensation would be paid directly from the listing fee," but "[i]f the fee received from the listing agent was less than [two percent] or there was no listing agent involved and the [s]eller refused to pay a commission," Sun and Ma were responsible for "the difference up to [two percent] of the sales price." Sun and Ma were entitled to terminate the agreement if dissatisfied with Huang's performance and Huang did "not cure[ ] within a reasonable period of time after notice."

At the same meeting, Sun and Ma requested that Huang serve as the listing agent for their current home, located on Vine Street in Winchester, once they found a new home to purchase. Huang provided an estimated value of the Vine Street property, and the parties agreed that Huang, as "exclusive agent," would sell it for a discounted listing agent fee, plus a standard fee paid to the buyer's agent if one existed.

It is undisputed that, between May 2016 and February 2017, Huang showed Sun and Ma a number of homes for sale in Winchester and advised them about matters such as property evaluations and mortgage applications. Huang drafted and submitted offers on behalf of Sun and Ma for four of these homes, including one on Hemingway Street. In early February 2017, after a month-long negotiation between Huang and the seller of the Hemingway Street home, Sun and Ma indicated that they were prepared to accept the seller's most recent counteroffer. To help complete the purchase, Huang agreed to provide Sun and Ma a three-month bridge loan. She prepared a loan agreement and later revised it after Sun and Ma asked that the amount of the loan be rewritten for tax purposes.

Sun and Ma did not go forward on their purchase of the Hemingway Street property, however. Instead, on February 18, 2017, days after asking Huang to revise the loan agreement and with no notice to her, Sun and Ma made an offer to purchase a property on Bridge Street in Winchester. The offer, which was accepted the same day, stated that Sun and Ma were "introduced" to the property by "RE/MAX Leading Edge." Two days later, Sun and Ma sent Huang an e-mail message stating:⁵

"We have decided to hire an American agent at Re/Max to buy a house. Because that house has not yet been listed on the market, they would not agree to have you contact them as our buyer's agent on our behalf.^{[6 ]} Therefore we really are very sorry. After all you have shown us so many houses, responded to every request from us, and left no questions from us unanswered. We have prepared an Amazon gift card for you. It is merely a token of our appreciation and we cannot express our gratitude enough. Please accept it."

In April 2017 Sun and Ma purchased the Bridge Street property for $999,000. The same month, they sold the Vine Street property, with RE/MAX as listing agent, for $502,000.

Discussion. 1. Summary judgment. We review a grant of summary judgment de novo to determine whether, viewing the facts most favorably to the nonmoving party, the moving party is entitled to judgment as a matter of law. See Bulwer, 473 Mass. at 680, 46 N.E.3d 24. The elements of a breach of contract claim are "that there was an agreement between the parties; the agreement was supported by consideration; the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result." Id. at 690, 46 N.E.3d 24. Although Huang would have the burden of proof at trial, it was Sun and Ma's burden on summary judgment to show that Huang "ha[d] no reasonable expectation of proving" one of these elements. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711, 575 N.E.2d 734 (1991).

a. Buyer's agent agreement. Huang argues that, contrary to the second judge's rationale for granting summary judgment, a verbal agreement to provide real estate brokerage services is valid and enforceable in Massachusetts. Sun and Ma argue otherwise, pointing to our statement in Cantell v. Hill Holliday Connors Cosmopulos, Inc., 55 Mass. App. Ct. 550, 555, 772 N.E.2d 1078 (2002), that "[a]bsent a written agreement to the contrary, a real estate broker is entitled to a commission only if the broker is the efficient and predominating cause of [the] subsequent transaction between the parties." Based on this, Sun and Ma contend that, even if they verbally agreed that Huang would be their exclusive buyer's agent for one year, Huang's claim is still subject to "the general rule that required Huang to show that she was the ‘efficient and predominating’ cause" of Sun and Ma's purchase of the Bridge Street property. In essence, this is an argument that a real estate brokerage contract must be in writing to be enforceable.

As Huang correctly observes, however, the Statute of Frauds contains an express exemption for "contract[s] to pay compensation for professional services of ... a licensed real estate broker or real estate salesman acting in their professional capacity." G. L. c. 259, § 7. See Meredith & Grew, Inc. v. Worcester Lincoln, LLC, 64 Mass. App. Ct. 142, 152, 831 N.E.2d 940 (2005) (commercial mortgage brokering services fell within exemption in G. L. c. 259, § 7, for services provided by "real estate broker," and so agreement to pay for such services was not required to be in writing). Our statement in Cantell -- which did not involve a real estate brokerage contract at all -- was dictum, and elsewhere in the opinion we recognized that the Statute of Frauds contains exemptions for certain "providers of services, such as ... licensed real estate brokers." Cantell, 55 Mass. App. Ct. at 553, 772 N.E.2d 1078.⁷ Furthermore, although we quoted Cantell’s dictum in Zang v. NRT New England Inc., 77 Mass. App. Ct. 665, 673, 933 N.E.2d 694 (2010), that part of Zang was itself dictum, as the Statute of Frauds was not germane to our decision. To the extent that dictum conflicts with the Statute of Frauds, the text of the statute must prevail. See Tristram's Landing, Inc. v. Wait, 367 Mass. 622, 630, 327 N.E.2d 727 (1975) (requirement that real estate brokerage contract be in writing "may be worthy of legislative consideration, but we do not think we should establish such a requirement by judicial decision").

Sun and Ma raise no other argument why they are entitled to judgment as a matter...