Wilkens Square v. Pinkard

Decision Date30 November 2009
Docket NumberNo. 707, September Term, 2008.,707, September Term, 2008.
Citation189 Md. App. 256,984 A.2d 329
PartiesWILKENS SQUARE, LLLP, et al. v. W.C. PINKARD & CO., INC. t/a Colliers Pinkard.
CourtCourt of Special Appeals of Maryland

Melissa R. Roth (Jeffrey D. Herschman, DLA Piper on the brief), Baltimore, for appellee.

Panel: DEBORAH S. EYLER, GRAEFF, KEHOE, JJ.

DEBORAH S. EYLER, J.

In the Circuit Court for Baltimore City, W.C. Pinkard & Co., Inc. ("Colliers Pinkard"), the appellee, sued Wilkens Square, LLLP, and Stone Associates, Inc. (together "Wilkens"), the appellants, for breach of contract, to recover an unpaid broker's fee in connection with the sale of an office building by Wilkens to Charles McCann Investments ("CMC"). Wilkens counterclaimed against Colliers Pinkard on several legal theories. The case was tried to a jury, which found in favor of Colliers Pinkard on the breach of contract claim, awarding it $226,321.67 in damages, and found against Wilkens on its counterclaims.

On appeal, Wilkens poses several questions for review, which we have consolidated and rephrased as follows:

I. Did the trial court err by not ruling, as a matter of law, that Colliers Pinkard was in a dual agency with Wilkens and CMC during times relevant to this case?

II. Did the trial court err by not ruling, as a matter of law, that Colliers Pinkard's relationship with CMC was a material fact that Colliers Pinkard had a duty to disclose to Wilkens at the outset of their business relationship?

III. Did the trial court err by not giving requested jury instructions and by giving the jury a special verdict sheet that was incorrect?1

For the following reasons, we shall affirm the judgment entered on the jury's verdict.

FACTS AND PROCEEDINGS

Because two of the issues presented raise, in effect, legal sufficiency questions, we shall summarize the facts adduced at trial in the light most favorable to Colliers Pinkard, as the prevailing party below. To the extent the third issue requires us to view any of the facts through a different lens, we shall do so in our discussion of that issue.

The business entities and their representatives were, at the relevant times, as follows. Colliers Pinkard is a commercial real estate broker in Baltimore City. Ordinarily, it represents sellers of commercial properties. The Colliers Pinkard principals primarily involved in the transactions at issue here were Philip Iglehart and Dennis Malone. CMC is an investment company, based in Ireland, that in 2004 began looking to purchase commercial property in the Baltimore City/Washington, D.C. area. Its local representative and lawyer is Patrick Donnelly. Wilkens and its principal, Daniel Stone, were members of a limited partnership that owned 300 W. Pratt Street, an office building in Baltimore City ("the Pratt Street Property" or "the Property").

In early 2005, Colliers Pinkard and CMC entered into a Brokerage Agreement for Colliers Pinkard to represent CMC's interests in the purchase of commercial property in the Baltimore City/Washington, D.C. area. Under the Brokerage Agreement, CMC paid Colliers Pinkard a monthly fee (at first, $2,500, and later, $5,000) to identify potential investment properties in the $20 million dollar and above price range. According to the involved principals of Colliers Pinkard and CMC, the Brokerage Agreement applied only to potential investment properties for which Colliers Pinkard was not the listing agent.

The Brokerage Agreement provided that, in addition to the monthly retainer, CMC would pay Colliers Pinkard a commission on any sale to CMC that resulted from Colliers Pinkard's efforts. The agreement further provided that, for any given sale, if Colliers Pinkard were able to persuade the property seller to pay the commission in an amount equal to or greater than "the suggested CMC discounted fee," Colliers Pinkard would "not seek remuneration from CMC." In other words, if Colliers Pinkard could obtain its commission (or more) from the seller of commercial property to CMC, CMC would not be obligated to pay a commission to Colliers Pinkard.

By August 2005, the business relationship between Colliers Pinkard and CMC had not proven fruitful and the entities decided to bring it to an end. They agreed that the Brokerage Agreement would remain in effect until the end of 2005, during which time CMC would continue paying Colliers Pinkard the monthly fee; and then the Brokerage Agreement would expire. Indeed, that is what happened and the Brokerage Agreement came to an end as of December 31, 2005.

In the meantime, Wilkens, through Stone, decided to put the Pratt Street Property up for sale. After a few months of marketing the Property on his own, without success, Stone approached Colliers Pinkard about serving as Wilkens's broker in the sale of the Property. Colliers Pinkard agreed and, on November 18, 2005, the entities entered into a Listing Agreement for the sale of the Property.

In early December 2005, representatives of CMC traveled to the United States to inspect potential commercial investment properties. On December 7, 2005, the CMC representatives met with Iglehart and Malone of Colliers Pinkard to view a number of properties in the Baltimore area. The Pratt Street Property was not one of them. At one point during the visit, Colliers Pinkard representatives told the CMC representatives they might want to look at the Pratt Street Property, even though it was priced below their target value for potential investment properties. The CMC representatives then visited the Property, but not in the company of anyone from Colliers Pinkard. Thereafter, the CMC representatives informed the Colliers Pinkard representatives, by e-mail, that they would be interested in receiving additional information about the Property.

The Pratt Street Property was to be sold by means of a "controlled auction," which is a common practice in commercial real estate sales. As Wilkens's broker under the Listing Agreement, Colliers Pinkard made the arrangements for the auction. It prepared an Executive Summary for the Property, from which potential buyers would learn basic relevant information. That summary was publicly distributed on December 15, 2006. If a potential buyer expressed interest in the Property, Colliers Pinkard would send it a confidentiality agreement to execute. It was Colliers Pinkard's practice that, upon receipt of a signed confidentiality agreement from a potential buyer, it would send the potential buyer an Offering Memorandum, which was a detailed disclosure about the Property.

Because the CMC representatives had expressed interest in the Pratt Street Property, Colliers Pinkard added CMC to the list of potential buyers for the Property and sent it a copy of the Executive Summary. In early January 2006, after the Executive Summary had been mailed out to all potential buyers, Colliers Pinkard began contacting the various entities that had responded to the mailing to obtain signed confidentiality agreements before mailing the Offering Memorandum. On January 18, 2006, CMC executed a confidentiality agreement, which Colliers Pinkard received. Soon thereafter, CMC was mailed the Offering Memorandum. CMC was one of 48 entities to receive the Offering Memorandum.

The first round of bids on the Pratt Street Property took place on February 3, 2006. CMC was one of five bidders, and its bid of $12.5 million was the second highest.

On February 6, 2006, Malone of Colliers Pinkard met with Stone of Wilkens to discuss the bids that had come in from each potential buyer. At that meeting, in response to an inquiry, Malone told Stone about the Brokerage Agreement between Colliers Pinkard and CMC. Specifically, Malone explained that Colliers Pinkard had contracted with CMC to help it locate potential investment properties to purchase, and that the contract had expired as of the end of 2005. Stone memorialized that conversation in a note to himself, in which he also wrote that Wilkens should proceed with the second round of bidding "get [the] CMC final proposal," and then inquire more about the business relationship between CMC and Colliers Pinkard. He further noted that if, at that time, he thought the prior contract between CMC and Colliers Pinkard posed a problem, he would have to decide whether to go forward with a sale to CMC or to go forward with a sale to another bidder; and if he thought there was no problem, he would "proceed."

The second round of bidding was held on February 23, 2006. The bids were submitted on invitation by Wilkens, through Colliers Pinkard, as its broker. Invitations were extended only to three entities, one of which was CMC. Stone's decision to include CMC as one of the second round bidders was made after the February 6, 2006 meeting. As it turned out, one of the three invited bidders dropped out before the second bidding round, leaving only two entities (including CMC) to participate in that round. Both participants submitted increased bid amounts. CMC's bid, for $13,175,000, was the high bid, by $725,000.

In late February 2006, after the second round bids were received, Stone instructed Colliers Pinkard that, from that point on, he would handle the negotiations with CMC on his own. On March 1, 2007, Stone met with representatives of CMC and tried to persuade them to increase their bid. They refused and the sales price remained $13,175,000.

Stone informed representatives of CMC that, before a sales contract would be executed, he wanted to see a copy of the Brokerage Agreement between Colliers Pinkard and CMC. He also asked CMC to pay Colliers Pinkard's commission. CMC refused to pay the commission, on the ground that Colliers Pinkard had not acted and was not acting as its broker in the transaction in question (i.e., the sale of the Pratt Street Property); to the contrary, Colliers Pinkard was acting as Wilkens's broker in that...

To continue reading

Request your trial
6 cases
  • Strub v. C & M Builders
    • United States
    • Court of Special Appeals of Maryland
    • May 28, 2010
    ...a trial court's decision to deny a motion for judgment at the conclusion of the evidence de novo.” Wilkens Square, LLLP v. W.C. Pinkard & Co., 189 Md.App. 256, 267, 984 A.2d 329 (2009) Lowery v. Smithsburg Emergency Med. Serv., 173 Md.App. 662, 682-83, 920 A.2d 546 (2007)). We have penned t......
  • Harris v. State
    • United States
    • Court of Special Appeals of Maryland
    • November 30, 2009
  • Baehr v. Creig Northrop Team, P.C.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 13, 2020
    ...under Maryland law, a real estate broker "stands in a fiduciary relationship" to her client. See Wilkens Square LLLP v. W.C. Pinkard & Co. , 189 Md.App. 256, 984 A.2d 329, 336 (2009).8 True enough. But Maryland law also specifies that a real estate broker "is an agent" for her "principal, w......
  • Butz v. Pulte Home Corp.
    • United States
    • U.S. District Court — District of Maryland
    • February 21, 2017
    ...as an affirmative defense of material breach of contract as a result of Plaintiffs' non-disclosure. See Wilkens Square, LLLP v. W.C. Pinkard & Co., 189 Md. App. 256, 277 (2009), aff'd, 419 Md. 173 (2011) (characterizing the "failure to disclose a material fact" as an affirmative defense); S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT