Opinion
January 31, 1989.
Present: Black, P.J., Silva Shubow, JJ.
Broker, Commission. Practice, Civil, Summary judgment.
Report of court's vacating of summary judgment and remand for hearing, Summary judgment motion heard in the Quincy Division by Lewis J. Whitman, J.
Philip E. LaBonte for the plaintiff.
Lawrence J. Ball for the defendants.
This action involves a claim based upon an exclusive brokerage agreement entered into between the plaintiff broker and the defendant sellers. The agreement was dated October 23, 1986 and provided that the property of the defendants at 60 Capen Street in Milton was to be listed by the plaintiff at a sales price of $259,000. A prior brokerage agreement, dated September 22, 1986, expired on October 23, 1986. Simultaneously, another agreement was entered into which expired on December 15, 1986.
During the term of the first agreement, Linda Sullivan, a broker who was retained by Kathleen Callahan and her mother, Margaret O'Brien, to sell their property, showed the defendants' property to Kathleen Callahan. After viewing the property Kathleen advised Linda that because there were stairs she was not interested, as her mother would have difficulty in getting about. Margaret O'Brien, the mother, never saw the property and there is nothing to indicate that she was aware of Kathleen's visit to the defendants' property at 60 Capen Street.
After December 15, 1986 no further brokerage agreements were entered into and in January of 1987 the defendants decided to try to sell the property without a broker. Toward the end they placed an advertisement in the Boston Globe. In response to the ad Margaret O'Brien called the defendants and made an appointment to view the property with her daughter, Kathleen. They visited the home in the evening and returned again the following evening. On the second visit, Kathleen recognized the property as being the same one she had seen earlier with Linda Sullivan. She had never met the defendants on her visit there with Linda Sullivan.
The exclusive agency contract dated September 22, 1986 provided for a purchase price of $264,900. The agreement dated October 23, 1986 provided for a purchase price of $259,900. It would appear therefore that the second agreement was a new contract as opposed to an extension of the prior agreement. Since the first contract expired, without renewal, the three months' survival clause expired on January 23, 1987.
On January 26, 1987 a purchase and sale agreement was signed at a price of $251,000 and a closing took place on February 17, 1987.
The plaintiff filed a motion for summary judgment which was allowed, and this appeal stems from said allowance.
Summary judgment is a "device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved." Community National Bank v. Dawes, 369 Mass. 550, 553 (1976).
Based on the affidavits submitted, there appears to be a real dispute as to how the property came to be sold by the defendants. Linda Sullivan, a broker with another firm, showed the property to Kathleen Callahan alone. Sullivan had been retained by Callahan to sell her house and was requested to be on the lookout for a home that she and her mother could purchase. After viewing the property with Sullivan in September of 1986, Callahan, without consulting her mother, decided not to purchase the property. After the agreement with the plaintiff expired, the defendants decided to try to sell the property without a broker and listed it in the Boston Globe. Margaret O'Brien, without prior consultation with her daughter, called the defendants in response to the ad and made an appointment to view the property. It was not until after Kathleen had viewed the property with her mother that she realized it was the same house which Linda Sullivan had shown to her in September. Therein lies the disputed fact question. If the house was shown through the efforts of Margaret in response to the ad in the Boston Globe, the plaintiff cannot claim that the purchaser was a person to whom they had introduced the property. This is a genuine issue of fact which should be resolved by a trial on the merits, affording to each party their right of cross examination. Also to be determined is whether or not the second agreement was an extension of the first agreement or in fact a novation.
A defendant opposing a plaintiff's motion for summary judgment is only required to contradict the plaintiff's affidavit, not to establish the truth of the defendant's position. Kessler v. Pritchard, 362 Mass. 132 (1972).
The line of cases begun by Tristram's Landing, Inc. v. Wait, 367 Mass. 622 (1975), and followed by Lewis v. Emerson, 391 Mass. 517 (1984), and Capezzuto v. John Hancock Mutual Life Insurance Co., 394 Mass. 399 (1985) has established the rule, based on the reasonable expectations of the seller of property, that "the seller will not be liable for a broker's commission unless three conditions are met; (1) the broker produces a buyer ready, willing, and able to buy on the terms set by or agreed to by the seller; (2) the seller enters into a binding contract to sell; (3) the sale is consumated, (sic) unless the consumation (sic) is wrongfully thwarted by the seller." Currier v. Kosinski, 24 Mass. App. Ct. 106, 107 (1987).
"Commonly the broker must show more than he merely introduced the customer to the seller, or that he first interested the customer in the subject of the sale. The evidence must go far enough to justify a finding that the broker's services were the efficient or effective means of bringing about the actual sale." Kacavas v. Diamond, 303 Mass. 88, 92 (1939). "Ordinarily, in the absence of express words of plain indication to the contrary, a broker is not entitled to a commission if his efforts are only a contributing cause of the sale." Tofias v. Stetson, 19 Mass. App. Ct. 392, 395 (1985).
However, "this rule could be easily circumvented by language to the contrary in purchase and sale agreements or in agreements between sellers and brokers." Tristam's Landing, Inc. v. Wait, 367 Mass. 622, 630 (1975). However, "the parties can agree between themselves that the broker's commission will be earned without compliance with these conditions." Currier v. Kosinski, 24 Mass. App. Ct. 106, 107 (1987).
In the case before the Court, the contract has varied the conditions in that only an introduction to the property is required. Whether or not the purchasers were introduced by the efforts of Linda Sullivan in September of 1986 or by the subsequent ad in the Boston Globe is a question of fact for determination by a trial on the merits.
In Tofias v. Stetson, 19 Mass. App. Ct. 392 (1985), a case directly on point, a brokerage contract had language very similar, i.e. "if any sale takes place within six months after the termination of this agency on information or introduction furnished by you prior to such termination, your commission shall be deemed to have been earned." While the clause requires substantially less than the showing that the broker was the effective cause of the sale, the language, in conjunction with `the nature of the plaintiff's employment,' implies that the plaintiff's right to compensation is dependant on its actions having at least some minimal connection with the sale, or in other words, being in the `chain of causation' leading to the sale. " Tofias v. Stetson, 19 Mass. App. Ct. 392, 397 (1985). The Court cited no specific examples of minimal causation but did cite several different opinions from other districts on the meaning of "some minimal causation" One of the cases cited for the proposition that "some minimal causation" is required is Korstad v. Hoffman, 35 Cal.Rptr. 61, 221, Cal.App.2d supp,. 805 (1963). In that case, the contractual language also only required that the property be introduced in order that a commission be earned. The Court noted, "the act of the salesman or broker by which he `introduced' the property to the prospective purchaser must have had at least some connection with the sale actually consummated. . . . This language imports an obligation on the part of the broker, to entitle him to a commission, to do something more than merely show the property and make unsuccessful efforts wholly unconnected with and to no extent traceable to the subsequent sale."
The mere fact that a broker shows property to a possible purchaser does not in and of itself entitle the broker to a commission when such prospective purchaser becomes the actual purchaser at some subsequent time in circumstances uninfluenced by the broker. Bauman v. Worley, 166 Ohio St. 471, 2 Ohio ops.2d 473, 143 N.E.2d 820 (1957). Other Courts have also construed exclusive clauses with similar language as requiring the actions of the broker to have some causal relation to the sale. See Mellos v. Silverman, 367 So.2d 1369, 1373 (Ala. 1979); Korstad v. Hoffman, 221 Cal.App.2d supp., 805, 808 (1963); Harkey v. Gahagan, 338 So.2d 133, 135 (La.Ct.App. 1976); Lloyd Hammerstad, Inc. v. Saunders, 6 Wn. App. 633, 636 (1972).
In Mellos v. Silverman, 367 So.2d 1369 (1979) the Court appeared to require that the broker's activities be at least minimally connected with the sale and that the broker sparked the purchaser's original interest in the property which, though temporarily dormant, was revived at the prospect of a more favorable price. As to whether that spark was subsequently ignited remains a question of fact that ought not to be determined by affidavits. The following language from Re Estate of Kelly, 99 N.M., 482 (1983) pretty well sums up the general rules applicable to summary judgment; namely (1) a summary judgment proceeding is not to decide an issue of fact, but, rather, to determine whether one exists; (2) summary judgment can be granted only where the record shows that there is no genuine issue of any material facts; (3) the opponent of summary judgment must be given the benefit of all reasonable doubts in determining whether an issue of fact exists; (4) summary judgment can be granted only where the moving party is entitled to judgment as a matter of law, upon clear and undisputed facts; (5) summary judgment proceedings must not be used as a substitute for trial. Summary judgment, being an extreme remedy, must be utilized only with due caution and cannot be granted if a single issue of material fact exists in the case. Even where facts are undisputed, if equally logical but conflicting inferences can be drawn from facts, summary judgment should be denied. If the evidence at the hearing on summary judgment is sufficient to create a reasonable doubt as to the existence of genuine issues of material fact, summary judgment is not proper.
The Court's allowance of summary judgment is vacated and the case is remanded for hearing.