Mut. Dev. Corp. v. Ward Fisher & Co.

• Decision Date: 13 July 2012
• Docket Number: No. 2009–168–Appeal.,2009–168–Appeal.
• Citation: 47 A.3d 319
• Court: Rhode Island Supreme Court
• Parties: MUTUAL DEVELOPMENT CORPORATION v. WARD FISHER & COMPANY, LLP et al.

47 A.3d 319

MUTUAL DEVELOPMENT CORPORATION

v.WARD FISHER & COMPANY, LLP et al.

No. 2009–168–Appeal.

Supreme Court of Rhode Island.

July 13, 2012.

Lauren E. Jones, Esq., Providence, for Plaintiff.

Michael J. Polak, Esq., for Defendants.

Present: SUTTELL, C.J., FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice ROBINSON, for the Court.

The plaintiff, Mutual Development Corporation, appeals from the Superior Court's grant of summary judgment in favor of the defendants, Ward Fisher & Company, LLP (Ward Fisher) and WF Realty & Investment, LLC (WF Realty). On appeal, the plaintiff contends that the hearing justice improperly interpreted and applied subsection 6 of G.L.1956 § 9–1–4, the Statute of Frauds, in deciding that said subsection could properly be invoked with respect to an alleged oral finder's fee agreement between the plaintiff and the defendants, thereby barring recovery by the plaintiff.

This case first came before this Court on December 7, 2010, in accordance with an order directing both parties to appear and show cause why the issues raised on appeal should not be summarily decided. After considering the arguments of counsel at that show cause hearing as well as in their written submissions, we determined that cause had been shown.

Accordingly, we directed the case to proceed to full briefing and argument, and we also requested the parties to address (1) “the issue of whether there is a distinction between a finder and a broker with respect to real estate transactions, and, if so whether the language of the statute of frauds, G.L.1956 § [9–1–4], encompasses a finder as well as a broker;” and (2) the issue of “[w]hether the statute of frauds applies equally to percentage-based commissions and flat-sum commissions, or solely to percentage-based commissions or fees.”

Thereafter, the case proceeded to full argument on March 1, 2012.

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

It is undisputed (1) that the underlying transaction in the instant case involved the sale of real estate; (2) that plaintiff seeks to recover a commission or a fee for work that it allegedly performed in connection with that sale; and (3) that there is no written agreement between the parties providing for any such compensation.

Although certain other facts remain in dispute, those facts are not material to the issue of law before us. For the purpose of providing background and clarity, we shall recite as necessary the facts as presented in the record.

In September of 2001, defendants were actively seeking to purchase a commercial building to house their accounting offices. During that search process, defendants met with Stephen Soscia, the president of the plaintiff corporation; at that time, Mr. Soscia introduced to defendant Ward Fisher two commercial properties that were available for leasing. However, defendant Ward Fisher ultimately decided not to pursue those properties because it preferred to purchase rather than lease a property.

In September of 2002, Mr. Soscia became aware of a property located at 250 Centerville Road in Warwick, which he believed would be of interest to defendant Ward Fisher. On or about September 11, 2002, Mr. Soscia introduced the 250 Centerville Road property to partners of Ward Fisher; it is undisputed that, prior to Mr. Soscia's introduction, the partners had no knowledge of that property. The defendant Ward Fisher then decided to make an offer to purchase that property; and, at some point during discussions regarding the property, Mr. Soscia made mention of his expectation of a fee for finding the location. The exact details of that conversation are in dispute. Thereafter, Mr. Soscia drafted an offer to be submitted; and, on September 13, 2002, defendant Ward Fisher submitted a formal offer. However, the seller decided to accept the offer of another party, and defendant Ward Fisher's offer was rejected.

The defendant Ward Fisher decided to further pursue the property, and it submitted another offer on September 19, 2002, without the aid of Mr. Soscia; that offer was ultimately accepted by the seller, and defendant WF Realty ¹ purchased the 250 Centerville Road property, which had originally been introduced by Mr. Soscia.²

On February 20, 2007, plaintiff filed a complaint against defendants in the Superior Court for Kent County. The complaint contained the following counts: breach of contract; fraud; and unjust enrichment. Thereafter, defendants filed an answer in which they (1) averred that plaintiff had failed to state a claim upon which relief could be granted and (2) asserted the affirmative defense of the Statute of Frauds. On October 1, 2008, after the parties had exchanged discovery and had taken the depositions of some of the individuals involved in the transaction at issue, defendants moved for summary judgment on all counts. In response, plaintiff filed an objection and a cross-motion for summary judgment.

On November 10, 2008, a hearing on the motions for summary judgment was held before a justice of the Superior Court. At that hearing, plaintiff argued that “a finder's fee is not subject to the Statute of Frauds and, in fact, can be based on any oral contract.” In response, defendants contended that plaintiff was “seeking to recover a fee based upon [defendants'] purchase of real estate” and that, therefore, subsection 6 of the Statute of Frauds (§ 9–1–4) applied. In delivering his bench decision, the hearing justice stated in pertinent part as follows:

“The Statute of Frauds would prohibit even a finder's fee, it is that broad. Thus, for a broker or a finder to receive a commission, the broker or the finder must have a written agreement for that commission. * * * Therefore, any agreement that Mutual [Development] may have, any oral agreement, is unenforceable. * * * It's the Legislature who set a clear policy and has spoken here and Mutual [Development] being in the business should have recognized the importance of getting a written document in advance.”

The hearing justice then denied plaintiff's cross-motion for summary judgment, and he granted summary judgment in favor of defendants.

The defendants subsequently moved for entry of final judgment; in response, plaintiff filed an objection, alleging that the hearing justice had entered summary judgment as to only two of the three counts contained in the complaint. Consequently, on February 27, 2009, the parties returned before the same justice of the Superior Court for a hearing on defendants' motion for summary judgment with respect to the remaining count (fraud). The hearing justice reserved decision on that issue; then, on March 3, 2009, the hearing justice issued an order ruling that summary judgment be entered for defendants on all counts. On that same day, final judgment was entered on all counts in favor of defendants. Thereafter, plaintiff timely appealed.

IIStandard of Review

We have often recognized the principle that “[s]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” See Employers Mutual Casualty Co. v. Arbella Protection Insurance Co., 24 A.3d 544, 553 (R.I.2011) (alteration in original) (internal quotation marks omitted); see also Habershaw v. Michaels Stores, Inc., 42 A.3d 1273, 1275 (R.I.2012); Lynch v. Spirit Rent–A–Car, Inc., 965 A.2d 417, 424 (R.I.2009). The burden rests upon the nonmoving party “to prove the existence of a disputed issue of material fact by competent evidence; it cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.” Hill v. National Grid, 11 A.3d 110, 113 (R.I.2011) (internal quotation marks omitted); see also Horton v. Portsmouth Police Department, 22 A.3d 1115, 1121 (R.I.2011); Young v. Warwick Rollermagic Skating Center, Inc., 973 A.2d 553, 557 (R.I.2009). We remain ever mindful, however, “that summary judgment is an extreme remedy that warrants cautious application.” Young, 973 A.2d at 557 (internal quotation marks omitted); see also Horton, 22 A.3d at 1121;Estate of Giuliano v. Giuliano, 949 A.2d 386, 390 (R.I.2008).

This Court reviews the granting of a motion for summary judgment in a de novo manner, applying “the same standards and rules as did the hearing justice.” Cheaters, Inc. v. United National Insurance Co., 41 A.3d 637, 642 (R.I.2012); see also Empire Acquisition Group, LLC v. Atlantic Mortgage Co., 35 A.3d 878, 882 (R.I.2012); Ouch v. Khea, 963 A.2d 630, 632 (R.I.2009).

Since this case requires us to engage in statutory interpretation, we also note that “questions about the meaning of statutes are reviewed de novo by this Court.” Planned Environments Management Corp. v. Robert, 966 A.2d 117, 121 (R.I.2009); see also Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 258 (R.I.2011); Mullowney v. Masopust, 943 A.2d 1029, 1032 (R.I.2008).

IIIAnalysis

In view of the fact that the Statute of Frauds is central to the determination of the instant appeal, we begin by setting forth the following relevant portions of that venerable statute:

“No action shall be brought:

“ * * *

“(6) Whereby to charge any person upon any agreement or promise to pay any commission for or upon the sale of any interest in real estate;

“(7) * * * unless the promise or agreement upon which the action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him or her thereunto lawfully authorized.” Section 9–1–4.

On appeal, plaintiff contends that, although this Court has strictly applied subsection 6 of the Statute of Frauds with respect to brokers and agents, it has recognized that that subsection does not apply to a finder's fee—plaintiff's rationale being that there is...