Masiello Real Estate, Inc. v. Matteo
| Citation | 266 A.3d 1243 |
| Decision Date | 15 October 2021 |
| Docket Number | No. 20-257,20-257 |
| Parties | MASIELLO REAL ESTATE, INC. v. Michelle MATTEO, Dow Williams, Michael Torre Nelson |
| Court | United States State Supreme Court of Vermont |
Jeremy S. Grant and Gary F. Franklin of Primmer Piper Eggleston & Cramer PC, Burlington, for Plaintiff-Appellant.
John C. Mabie of Windham Law, PLC, Brattleboro, for Defendant-Appellee Williams.
PRESENT: Reiber, C.J., Robinson, Eaton and Cohen, JJ., and Howard, Supr. J. (Ret.), Specially Assigned
¶1. Masiello Real Estate, Inc. appeals the superior court's conclusions of law on its breach-of-contract, quantum-meruit, and negligent-misrepresentation claims following a bench trial. Masiello's claims stem from seller Dow Williams’ refusal to pay it a real estate commission under their right-to-market agreement. We affirm.
¶2. The superior court made the following findings of fact based on evidence introduced at trial. Seller owned a 276-acre property in Halifax and Guilford, Vermont. In 2013, he executed a one-year, exclusive right-to-market agreement with Chris Long, a real estate broker who worked for Masiello. Seller and broker agreed on a $435,000 asking price and a fixed $25,000 broker commission. The agreement had a one-year "tail" that compelled seller to pay the commission if, within twelve months of the agreement's expiration, seller sold the property and Masiello was the procuring cause. Broker listed the property on several real estate websites, including "Farm and Forest."
¶3. During the contract term, broker showed the property to several potential buyers and received one offer below the asking price, which seller rejected. When the contract term expired in February 2014, seller and broker entered into a second listing agreement with the same provisions and a new one-year tail. Broker did not show the property during the term of the second agreement, which expired on January 1, 2015.
¶4. In August 2015, Michelle Matteo and Torre Nelson, a Massachusetts couple interested in buying a Vermont property, reached out to broker. They sought to buy a property for a sum between $200,000 and $250,000. Broker showed Ms. Matteo and Mr. Nelson several other properties, none of which interested them. Mr. Nelson, recalling seeing the listing in Farm and Forest, inquired about seller's property. Broker contacted seller for a new listing agreement, and the two executed a third right-to-market agreement with a term of August 25 to September 30, 2015 and a one-year tail. Around this time, broker showed Ms. Matteo the property. However, the term of the third listing agreement expired, and no offer was made.
¶5. In November 2015, broker sent a follow-up email to Ms. Matteo, who replied that she needed to sell her house in Massachusetts before she could move forward with a purchase in Vermont. A second exchange to the same effect occurred in February 2016.
¶6. In June 2016, Ms. Matteo contacted broker, asking to walk the property again. Broker in turn emailed seller to obtain a new listing agreement. Seller declined, explaining that he and his wife were no longer motivated to sell but that broker could try for a deal under specified financing parameters. Seller added, "We will not sign a listing agreement but will honor you getting paid as a buyer broker, not a selling broker and will not engage them otherwise." Broker replied that he could not flip fiduciary duties and offered to proceed with negotiations to try to obtain an offer of $435,000. Seller agreed to consider an offer for that sum but was clear that he was "not signing anything new except for a sales agreement as specified." Seller said, "We, in good faith, have told you we would accept an old offer." That month, Ms. Matteo visited the property alone and broker contacted her to determine her interest. The prospective buyers did not respond or make an offer at that time.
¶7. In August 2016, Ms. Matteo sent another Vermont realtor a list of properties she was interested in seeing. That same month, Mr. Nelson, having obtained seller's contact information from seller's neighbor, contacted seller directly and asked if he was still selling. Between August and September 2016, Mr. Nelson and seller discussed the fact that seller wanted $400,000 for the property and buyers wanted seller to consider a lower price. No offer was made at that time. The tail of the third right-to-market agreement expired on September 30, 2016. Between September and November of that year, Mr. Nelson and Ms. Matteo looked at other properties with the other realtor and made an unsuccessful offer on one of those other properties.
¶8. The prospective buyers renewed contact directly with seller in November 2016, with Mr. Nelson asking if the property was still available. Seller told Mr. Nelson that he wanted to net $425,000 on the sale. The parties negotiated until eventually seller sold the property to Ms. Matteo and Mr. Nelson on January 20, 2017.
¶9. Believing that it was improperly cut out of the sale, Masiello sued seller and buyers in the superior court under several theories, including breach of contract, quantum meruit, and negligent misrepresentation. After dismissing the claims against buyers, the court held a bench trial and issued a written decision rejecting Masiello's claims against seller. It concluded that because the property was not sold during the tail period, and because Masiello was not the procuring cause, no commission was due under the contract. The court further held that there was no negligent misrepresentation and that Masiello was not entitled to recovery under quantum meruit.
¶10. On appeal, Masiello argues that it is owed a commission because it was the procuring cause of the sale and was prevented from completing the sale during the tail period because seller negotiated directly with buyers. Masiello also maintains that seller breached the agreement by failing to direct Mr. Nelson's August 2016 inquiry to broker. Relatedly, it argues that seller's failure to direct Mr. Nelson's inquiry to broker waived strict enforcement of the tail period. Masiello further contends that broker's June 2016 email exchange with seller created an agency relationship that entitles Masiello to the commission under agency principles. Finally, Masiello assigns error to the superior court's conclusions on the quantum-meruit and negligent-misrepresentation claims.
¶11. Masiello does not challenge the superior court's findings of fact, but its conclusions of law. Our review of these is plenary and nondeferential. Okemo Mountain, Inc. v. Lysobey, 2005 VT 55, ¶ 13, 178 Vt. 608, 883 A.2d 757 (mem.). "We uphold trial court conclusions if they are supported by findings that are, in turn, supported by the evidence." Id.
¶ 12. We first consider Masiello's breach-of-contract arguments. The relevant language of the tail provision is as follows:
[Seller] also agrees to pay the full commission due under this Agreement if, within 12 month(s) after the Expiration Date or earlier termination of this Agreement, [seller] directly or indirectly enters into a purchase and sale contract, sells, exchanges or closes on the sale or exchange of the Property and [Masiello] is the procuring cause thereof. For purposes of this Agreement, [Masiello] will be regarded as the procuring cause of any such agreement, sale, exchange or closing if its efforts are the foundation upon which the negotiations are begun that result in a purchase and sale contract, sale, exchange or closing.
¶ 13. "Our goal when interpreting contractual provisions is to give effect to the intent of the parties as it is expressed in their writing." Southwick v. City of Rutland, 2011 VT 105, ¶ 5, 190 Vt. 324, 30 A.3d 1298. When the language of the contract is unambiguous, we take the plain meaning of the words the parties used to represent their intent. Id.
¶ 14. Under the plain language of this contract, to be entitled to the commission, the sale must have been effected within twelve months of the expiration of the agreement "and" Masiello must have been the procuring cause of the sale. Masiello argues at length that it should receive the commission even though the sale took place after the tail period, including its argument that seller waived the tail period. We conclude that Masiello was not the procuring cause of the sale within the tail period. Following the parties’ arguments in the superior court and before this Court, we read the words "procuring cause" in the contract in light of our settled law governing the payment of real estate commissions.1
¶15. "Under Vermont law, to be entitled to a commission, a broker must show that he [or she] procured a purchaser ready, willing, and able to purchase at the price and upon the terms prescribed by the seller." Osler v. Landis, 138 Vt. 353, 356, 415 A.2d 1316, 1318 (1980). To shoulder this burden, the broker "must show more than incidental relationship to the resulting sale"—he must "show that his efforts dominated the transaction." Gilmer v. Fauteux, 168 Vt. 636, 638, 723 A.2d 1150, 1152 (1998) (mem.) (quotations omitted).
¶ 16. In Gilmer, for example, the broker called the buyer (Cersosimo) on the phone four times about the property over the course of years, but the buyer did not make an offer. Then, as the broker was negotiating with two other potential buyers, the owner sold the property directly to Cersosimo. This Court held that the broker did not procure the sale, observing that "[e]ven assuming that [broker] first interested Cersosimo in the property, that fact is not enough to demonstrate that he procured the sale." Id. ; see also M.E. Walbridge Agency, Inc. v. Rutland Hosp. Inc., 123 Vt. 149, 154, 186 A.2d 179, 183 (1962) (Holden, J., dissenting) ().
¶ 17. A different result obtained in Ellis-Gould Corp. v. Kelly, ...
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