IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CYNTHIA TAYLOR, Appellant, v. Case No. 5D22-1410 LT Case No. 2018-CA-292 NICHOLSON-WILLIAMS, INC. D/B/A COLDWELL BANKER COMMERCIAL BENCHMARK, KELLY BUSH, WILLARD BARLOW NICHOLSON, III, SOUTHEAST GEORGIA ACQUISITIONS, LLC, ET AL., Appellees. ________________________________/ Opinion filed July 21, 2023
Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.
Timothy S. Taylor, and Vanessa A. Van Cleaf, of Taylor Corwin & Van Cleaf, PLLC, Coral Gables, and Stephen J. Binhak, of The Law Office of Stephen James Binhak PLLC, Miami, for Appellant.
Therese A. Savona, of Cole, Scott & Kissane, P.A., Orlando, and Michael A. Rosenberg, of Cole, Scott & Kissane, P.A., Plantation, and Robert E. O'Quinn, Jr. of Cole, Scott & Kissane, Jacksonville, for Appellees, Nicholson-Williams, Inc. d/b/a Coldwell Banker Commercial Benchmark, Kelly Bush, and Willard Barlow, III.
No Appearance for Other Appellees. CYNTHIA TAYLOR, Appellant, v. Case No. 5D22-1557 LT Case No. 2018-CA-292 EDWARD SEGARS, SOUTHEAST GEORGIA ACQUISITIONS, LLC, ST. JOHNS LAW GROUP, P.A., DOUGLAS BURNETT, GULFSTREAM DESIGN GROUP, LLC, MATTHEW LAHTI, STEPHEN BEEN, KELLY BUSH, ET AL., Appellees. _____________________________________/
Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.
Timothy S. Taylor, of Taylor Corwin & Van Cleaf, PLLC, Coral Gables, and Vanessa A. Van Cleaf, of Taylor Espino Vega, PLLC, Stephen J. Binhak, of The Law Office of Stephen James Binhak PLLC, Miami, for Appellant.
Mary K. Simpson, William R. Sickler, and Elizabeth M. van den Berg, of Guilday Law, P.A., Tallahassee, for Appellee, Edward M. Segars.
No Appearance for Other Appellees.
PRATT, J.
Appellant Cynthia Taylor, the seller of 102 acres of land in St. Johns
County, sued Edward Segars and various other parties (collectively, “the
2 brokers”) who functioned as brokers for the $4 million transaction, asserting
claims against them for civil conspiracy, fraud, negligent misrepresentation,
breach of statutory duty, and negligent supervision. The Seventh Judicial
Circuit granted the brokers’ motions for summary judgment, and Taylor has
appealed those rulings. 1 Her appeals require us to decide three questions:
whether the purchase-and-sale contract bars Taylor’s claims against the
brokers; if the contract does not bar Taylor’s claims, whether she has raised
a factual dispute material to whether the brokers violated the duty of honest
and fair dealing they owed to her under section 475.278, Florida Statutes
(2022); and whether the summary judgments should be affirmed on the
alternate ground that Taylor cannot prove damages.
Viewing the evidence in the light most favorable to Taylor, as we must,
we hold that the contract does not bar Taylor’s claims against the brokers;
she has produced summary judgment evidence that the brokers breached
their statutory duty to deal honestly and fairly with her; and the summary
judgments cannot be affirmed on the alternative ground that the brokers
press. We therefore reverse and remand.
1 We consolidate both appeals for the purpose of issuing this opinion.
3 I.
From 1993 until December 2018, Cynthia Taylor owned 102 acres of
real property located at 7085 U.S. Highway 1 South in St. Augustine, Florida.
The sale of her property unfolded over a two-year period. During that time,
Taylor alleges, a developer devalued her land and scuttled an initial $5
million purchase agreement. Taylor further alleges that after she made plain
her intention never to sell to the developer or any of his affiliates, the brokers
conspired with the developer and the developer’s friend to acquire the land
through a straw buyer at a $1 million discount from the original purchase
price. Taylor’s summary judgment evidence, taken in the light most favorable
to her, tells the following story.
A.
It all began in November 2016, when Southeast Georgia Acquisitions,
LLC (“SGA”), contracted to purchase the northern parcel of Taylor’s land for
$2.7 million. Soon thereafter, SGA contracted to purchase the remaining
southern parcel for $2.3 million, bringing the total purchase price to $5
million. Edward Segars and Glenn Palmer—both of whom were affiliated with
Nicholson-Williams, Inc. d/b/a Coldwell Banker Commercial Benchmark
(“Coldwell”)—acted as SGA’s brokers in the deal. Their client was no
stranger to the market. SGA is one of several real estate acquisition-and-
4 development companies controlled by developer Stephen Been. Other
Been-controlled entities include Rock Spring Farms, LLC (“RSF”) and
Waterford Green, LLC (“Waterford Green”).
As part of the $5 million SGA deal, Taylor allowed SGA to pursue a
planned unit development (“PUD”) rezoning that included a public park
dedication for part of the property in exchange for a density bonus. A public
park, of course, would occupy space that otherwise could accommodate
more development, and therefore might devalue the land. But SGA agreed
to ensure that the public park dedication was “optional under the PUD so
that, in the event [SGA] fails to close or otherwise defaults,” Taylor was “not
required to have any portion of the Property be subject to public park
dedication.” The addendum fleshed out that aspect of the agreement by
prohibiting SGA from encumbering the property with a public park dedication
unless it could be removed through a “Small Adjustment,” which involves
less expense and red tape than other means of removal.
Notwithstanding these commitments to make the public park
dedication optional and easily removable through a small adjustment, SGA
directed the submission of PUD text that would make the public park
dedication removable only by a “Major Modification,” which resembles a full
re-zoning and requires significantly more time and expense than a small
5 adjustment. On October 17, 2017, the PUD was issued. It included an 8.8-
acre public park dedication. In accordance with SGA’s submission, the PUD
provided that, if “the public park is not dedicated, a Major Modification shall
be required.”
Having encumbered the property with a difficult-to-remove public park
dedication, SGA demanded a $1 million reduction in the sale price at the
November 16, 2017, closing. Taylor was not enthused. She advised Segars
that if SGA did not close by 5:00 p.m. for the full contract price, she would
never sell her land to SGA, Been, or any Been affiliate. Segars informed his
fellow brokers that the deal was “dead” with “no chance of saving[ ]” it unless
Taylor agreed to SGA’s $1 million discount demand. The next day, the
brokers, through Segars, presented a $4 million offer to Taylor, which she
quickly rejected.
B.
On March 9, 2018, Taylor filed her original complaint against SGA and
several other parties after they refused her demand to fund the major-
modification process to remove the public park dedication. She sent a copy
of the complaint to Segars, who forwarded it to the other brokers and told
them that he had been in touch with Taylor.
6 While the litigation proceeded, Taylor continued to market her property.
She received several offers, and she even got the property under contract
for $4.75 million. But the deal fell apart. Like other developers, the
prospective purchaser ultimately lost interest due to complications owing to
the major modification process.
After the $4.75 million deal fell through, Taylor contacted Segars—who
repeatedly had phoned her for status updates on the litigation—to inform him
that the property was no longer under contract. Although motivated to sell,
she told Segars that, “Stephen Been cannot be anywhere near this deal,”
and she would “never sell to Stephen Been, or any of his affiliates, or, in all
honesty, anybody in [the] lawsuit.” Segars confirmed that Coldwell
understood these wishes, which Taylor expressed to him over a dozen times.
Even so, he repetitively tried to convince her to sell to Been. But she
remained steadfast in her opposition.
A mere eight days after the $4.75 million contract terminated, Segars,
on the brokers’ behalf, presented a $4 million purchase offer. That amount
mirrored the amount that SGA had offered after scuttling the initial $5 million
deal. In transmitting the offer to Taylor by e-mail, Segars wrote that the
offeror—“Big Island Investments, LLC”—“is a Dallas, Tx group who
contacted me looking for entitled residential developments in Florida.” During
7 his discussions with Taylor, Segars assured her that Coldwell was dealing
with “David Roan” of Texas-based “Big Island Investments, LLC” (“Big
Island”), and that neither Mr. Been nor any of his associates, agents, or
organizations were in any way related to the proposed purchase.
When Taylor indicated her plans to counteroffer, Segars tried to
dissuade her, urging her to think about her grandchildren and predicting that
no one else would buy the land because of the public park dedication. Taylor
nevertheless submitted a $4.6 million counteroffer, but “Big Island” stood firm
on the $4 million purchase price. Segars continued to urge Taylor to accept
the offer, and she ultimately did so. Taylor opposed the addition of an
assignment clause in the contract, but the brokers, through Segars,
persuaded her that one was necessary as a standard practice when dealing
with developers like “Big Island.” A free assignability clause was therefore
added to the contract.
C.
At this point, careful readers may suspect where this is all headed.
And, according to Taylor’s summary judgment evidence, they would be right.
“Big Island” was a straw buyer, with Been and his affiliates behind the
curtain—and the brokers actively helping him pull the strings and keep
Taylor’s suspicions at bay. Neither Segars nor the brokers had a signed
8 writing reflecting any communications with “Big Island” or “Roan” regarding
the offer, much less a contract or other document permitting the brokers to
represent them. Segars had prepared the offer himself, and he later testified
at his deposition that, at the time he presented the offer to Taylor, he knew
that Vassa Cate—Been’s close friend since childhood—had signed it as
“David Roan.”
According to Taylor’s summary judgment evidence, throughout the
contract period, Segars and the other brokers continued working with Been
and his affiliates to deceive Taylor. Immediately after Taylor accepted the $4
million offer, Segars sent an e-mail directly to Been, Cate, and Been’s
attorney, saying, “Congratulations!” After forwarding the message to
Palmer—then Coldwell’s executive vice president—Segars spoke with
Taylor about changing the escrow agent for the transaction. Segars and the
other brokers initially had suggested the law firm of Been’s attorney, but
Taylor flatly refused due to the association with Been. Eventually, Coldwell
itself was substituted as the escrow agent, a change that Segars forwarded
to Been’s attorney for signature. Segars later confirmed during his deposition
that all the “Big Island” contract revisions were initialed by Cate posing as
Roan.
9 The day after Segars spoke with Taylor about changing the escrow
agent, he wrote in an e-mail to Taylor—copying his supervisor, Bush—that
“Big Island Investments, LLC of Dallas, TX” had deposited $50,000.00 into
Coldwell’s escrow account for the purchase. Issued on the date that Segars
had sent Been the congratulatory e-mail, the check reflected “Big Island
Investment, LLC” as the issuer. But it drew from the bank account funded by
Been’s Waterford Green entity.
Several days later, Segars e-mailed Been, Cate, and Been’s attorney
several messages that outlined the “critical dates” for the sale. Soon
thereafter, Segars e-mailed Taylor an “initialed change” (in fact initialed by
Cate, posing as Roan) that corrected the purchasing entity from “Big Island
Investments, LLC” to “Big Island Investments, Inc.” In that e-mail, Segars
listed two Dallas-based addresses for Big Island. Two weeks later, a
$100,000.00 check, reflecting “Big Island Investments, Inc.,” was deposited
into Coldwell’s escrow account. Like the earlier check, it drew from the
Waterford Green bank account.
On November 30, 2018, Been and his associates filed Florida articles
of organization for RSF, an entity that Been wholly owns. But RSF’s Sunbiz
filing did not identify Been as a member, and it listed one of the Dallas
addresses for “Big Island” that Segars had e-mailed to Taylor.
10 As the closing approached, Taylor asked Segars and the other brokers
for the buyer’s e-mail address and phone number so her attorney could
contact him. Segars consulted with Coldwell supervisors Bush and
Nicholson, then sent Taylor a deflecting e-mail response telling her to
address her questions to the closing agent. He likewise deflected numerous
text messages from Taylor that sought the buyer’s contact information. At no
time did Segars or any of the other brokers provide the information to Taylor.
On December 14, 2018—the date of closing—Cate signed the name
“David Roan” on a document that purportedly assigned the $4 million “Big
Island” contract to RSF. He would later admit that he forged both witness
signatures on the document. Taylor first received a version of the assignment
document around the time of closing, and she quickly confirmed RSF’s
ownership status through Sunbiz. Based on the Sunbiz filing, she believed
that “David Roan” was the owner because the filing listed his Texas address.
Ultimately, the transaction was finalized. Taylor executed a warranty deed to
RSF, and Coldwell accepted an $80,000.00 commission on the $4 million
sale.
It did not take long for Taylor to uncover the deception. When RSF filed
its annual report on January 31, 2019, it changed its principal address to
Jacksonville and listed a mailing address in St. Simons Island, Georgia—the
11 same locality in which Been and SGA reside. RSF also changed its manager
to Been’s attorney. In March 2019, Taylor discovered these facts, which her
counsel then made the subject of formal discovery requests in her pending
suit.
D.
Eventually, Taylor amended her complaint to add the brokers, RSF,
Been, and Cate as defendants. As relevant in this appeal, in the operative
complaint, Taylor stated the following causes of action against the following
parties: civil fraud against Segars and Coldwell; negligent misrepresentation
against Segars and Coldwell; breach of statutory duty under section
475.278, Florida Statutes, against Segars, Coldwell, Bush, and Nicholson;
and negligent supervision against Coldwell, Bush, and Nicholson. Against
Segars and the other brokers, she sought return of their $80,000
commission, plus a claimed $560,000 difference between the property’s
actual market value at the time of sale and the sale price.
Segars and the other brokers moved for summary judgment. In two
substantively identical orders, the trial court granted their motions.
The court first held that the contract’s non-reliance clause barred all of
Taylor’s claims against the brokers, citing Billington v. Ginn-LA Pine Island,
Ltd., 192 So. 3d 77 (Fla. 5th DCA 2016). In paragraph 21, the contract recites
12 that “BUYER, SELLER and Broker agree that the terms of this Agreement
constitute the entire agreement between them and that they have not
received or relied on any representations by Brokers or any material
regarding the Property . . . that are not expressed in this Agreement.” While
the court acknowledged that Segars and the other brokers did not sign the
contract, it held that this non-reliance clause—like the non-reliance clause at
issue in Billington—made the brokers third-party beneficiaries.
The court next held that Taylor’s statutory duty claim against the
brokers failed for an additional, independent reason: “[b]y its own terms, the
disclosure requirements of section 475.278, Florida Statutes, apply only to
residential sales,” and “[i]t is undisputed that the purchase and sale of
[Taylor’s] property was a commercial transaction . . . .” In the trial court’s
view, Taylor’s claim “asserts that Segars breached a duty of honesty to her
because he did not disclose that Been was involved with the ultimate buyer,”
and because “there was no duty to disclose this information under 475.278,
the failure to disclose cannot form the basis of the breach of the duty of
honesty.”
The court thus granted summary judgments to Segars and the other
brokers. Taylor then timely appealed from both of those orders.
13 II.
We review the trial court’s orders granting summary judgment de novo.
Welch v. CHLN, Inc., 357 So. 3d 1277, 1278 (Fla. 5th DCA 2023). To
demonstrate entitlement to summary judgment, the movant must show that
“there is no dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). When we review an
order granting summary judgment, we “view[ ] the evidence in a light most
favorable to the non-moving party, and a genuine dispute occurs when the
evidence would allow a reasonable jury to return a verdict for that party.”
Welch, 357 So. 3d at 1278.
III.
Taylor and the brokers first dispute whether the contract bars Taylor’s
claims. Taylor argues that, under Oceanic Villas, Inc. v. Godson, 4 So. 2d
689 (Fla. 1941), a party can bring claims sounding in fraud,
misrepresentation, and breach of statutory duty to deal honestly and fairly
unless the contract contains express language negating the right to bring
them, and her contract contains no such express language. The brokers
counter that, under our decision in Billington, a recitation that a party has not
received or relied upon any extra-contractual representations will suffice to
bar claims like Taylor’s. We need not resolve this debate, because we hold
14 that the brokers cannot invoke the contract’s non-reliance clause, whatever
its scope might be.
Rather than argue that they are parties to the contract, the brokers
argue that they are third-party beneficiaries of it. 2 It’s axiomatic that “[a] party
may qualify as a third-party beneficiary only if the contracting parties, or the
contract itself, exhibits an intent to primarily and directly benefit the third
party,” and “[t]he best evidence of the parties’ intention is the contract’s plain
language.” Goins v. Praetorian Ins. Co., 302 So. 3d 478, 479 (Fla. 5th DCA
2020) (per curiam). Here, the contract’s plain language precludes any
intention for the non-reliance clause to primarily and directly benefit the
brokers for a simple reason: the contract, which the brokers prepared, stated
that they must sign it to be bound by the paragraph containing the non-
reliance clause, and the brokers didn’t sign it.
Indeed, the contract language shows an unconsummated intention to
make the brokers parties to—rather than third-party beneficiaries of—certain
provisions. Paragraph 12, for instance, recites that “BUYER, SELLER and
2 The brokers do not contend that they are parties to the contract, and thus they have waived any such argument. Accord See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc); J.W. v. Dep’t of Children & Fams., 337 So. 3d 528, 529 (Fla. 5th DCA 2022) (Eisnaugle, J., concurring in result only).
15 Broker . . . waive any and all rights to a trial by jury in any litigation, action,
or proceeding involving BUYER, SELLER or Broker, whether arising directly
or indirectly from this Agreement or this transaction or relating thereto.” By
reciting the brokers’ agreement to waive their right to a jury trial, this provision
treats them as an anticipated party to paragraph 12. Moreover, paragraph
21—which contains the non-reliance clause—recites that “BUYER, SELLER
and Broker agree that the terms of this Agreement constitute the entire
agreement between them.” This passage shows that the contract anticipates
an agreement between the buyer, seller, and brokers, rather than one merely
between the buyer and seller.
To be sure, the heading “END OF PURCHASE AND SALE
AGREEMENT” follows the signature block for the buyer and seller,
suggesting that they are the only parties to the entire contract. But reading
each contract provision in context, as we must, see Baldwin v. Harris, 309
So. 3d 293, 295 (Fla. 5th DCA 2020), we believe paragraphs 12 and 21 show
an unconsummated intention to make the brokers parties to those
paragraphs, rather than an intention to make them third-party beneficiaries.
The contract not only made clear the party status that the brokers could
enjoy under the non-reliance clause, but also what they must do to attain that
status. After the signature block for the buyer and seller, and directly
16 following the heading, “END OF PURCHASE AND SALE AGREEMENT,” the
contract recites, “Broker joins in this Agreement to evidence Broker’s
consent to be bound by the provisions of paragraph 12 and 21 above.” By
failing to sign the blanks that followed, the brokers withheld their consent to
be bound by paragraph 21, which contains the non-reliance clause. Given
the brokers’ intended party status, they cannot now invoke the non-reliance
provision as third-party beneficiaries.
In rendering summary judgment, the trial court acknowledged that the
brokers had not signed the contract, but it reasoned that “[t]he contract at
issue in Billington was similarly unsigned by the broker and contained a non-
reliance clause which benefited the broker.” Our opinion in Billington does
not mention this purported similarity, and the trial court therefore cannot rely
on it. The Florida Supreme Court determines our precedential holdings only
by looking at the facts that appear in our opinions, and we will do likewise.
See Perlow v. Berg–Perlow, 875 So. 2d 383, 387 (Fla. 2004) (noting that
facts that “do not appear on the face of” an appellate opinion “cannot be used
in determining whether there is a conflict” with other appellate opinions);
Hardee v. State, 534 So. 2d 706, 708 (Fla. 1988) (“[F]or purposes of
determining conflict jurisdiction, this Court is limited to the facts which appear
on the face of the opinion.”).
17 More to the point, the trial court misapprehended what Billington held.
Billington is not a third-party beneficiary case. It does not analyze whether
the broker there was able to benefit from the non-reliance provision; it does
not address whether the broker was a party to—or a third-party beneficiary
of—the agreement. See generally Billington, 192 So. 3d 77. Therefore,
Billington offers no guidance, much less any controlling decisional law, on
the question whether the brokers here may claim third-party beneficiary
status. And in any event, in echoing the trial court’s reliance on Billington,
the brokers here do not claim that the Billington contract specified the broker
must sign to join in its non-reliance provision, that it provided a signature
block for the broker, or that it otherwise anticipated the broker would be a
party to the non-reliance provision. The existence of a broker opt-in clause
(for lack of a better term) and signature block in Taylor’s contract thus readily
distinguishes this case from Billington, even as the brokers and the trial court
have re-framed it. Indeed, it distinguishes this case from all third-party
beneficiary cases that we have located in our research, which makes sense.
In the usual course, signature blocks are for parties, and third-party
beneficiary status is reserved for those who claim a benefit under the
contract but had no opportunity to sign it.
18 The brokers do not direct our attention to any case holding that one
may claim the third-party beneficiary mantle where the contract
unambiguously states that he must sign it to join in the very provision from
which he later seeks to benefit, and we have not found any in our own
research. The apparent absence of authority for such a counterintuitive
proposition does not surprise us, and we decline to endorse it here. The
lynchpin of third-party beneficiary theory is intent, the contract’s language is
the best evidence of intent, and here, the contract unambiguously provides
that the brokers must sign it to benefit from its non-reliance clause. We hold
that, under the contract language at issue here, the brokers cannot invoke
the non-reliance clause, and the contract therefore does not bar Taylor’s
claims against them.
IV.
The brokers next argue that, at the very least, they are entitled to
summary judgment on Taylor’s claim for breach of statutory duty. They
observe that section 475.278’s disclosure requirements apply only to
residential sales, and here they acted as transaction brokers for a
commercial transaction. The brokers argue that they therefore had no duty
to disclose to Taylor that Been was the true buyer. Taylor responds that
licensees handling nonresidential transactions are exempted merely from
19 section 475.278’s written disclosure requirements. She further argues that
she did not sue the brokers for failing to send her written disclosures, but
rather for breaching their duty to deal honestly and fairly with her. Finally,
Taylor contends that the brokers’ conduct entailed active dishonesty and
concealment, rather than simple failures to disclose.
To referee this debate, we focus our attention on the statutory text and
structure. See Forrester v. Sch. Bd. of Sumter Cnty., 316 So. 3d 774, 776
(Fla. 5th DCA 2021) (Sasso, J.). 3 Section 475.278 authorizes real estate
3 Taylor also invites us to consider various legislative history materials that comment on the creation of section 475.278. We decline to do so for several reasons. First, the Florida Constitution provides that a “law” consists only of a bill that has undergone the bicameralism and presentment procedures outlined in article III, sections 7 and 8. Legislative history has undergone neither procedure, and we believe that our energies are better spent analyzing the law itself than what at best we might call an unauthoritative commentary on the law. Second, legislative history offers little to assist our interpretive task as judges. We appreciate that members of the legislature often make statements about pending legislation, and legislative staff often prepare research, analyses, and impact statements for the members and committees they serve. But our task is to interpret the law according to the ordinary meaning it conveys to the public at the time of enactment, see Leftwich v. Fla. Dep’t of Corrs., 148 So. 3d 79, 88 (Fla. 2014), rather than the special meaning it conveys to a particular committee or legislator, much less a particular legislative staffer. Legislative history does not assist in that endeavor; to the extent it has something unique to contribute, it bears more on the latter inquiries than on the first one. Third, tools that catalogue and quantify linguistic usage—like enactment-era dictionaries and corpus linguistics—offer more probative evidence of what statutory language meant to the public at the time of enactment. See Napolitano v. St. Joseph Catholic Church, 308 So. 3d 274, 279 (Fla. 5th DCA 2020) (Sasso, J.); S.C. v. State, 224 So. 3d 249, 250 n.3 (Fla. 3d DCA 2017)
20 licensees to enter two types of brokerage relationships with buyers and
sellers—the transaction broker relationship and the single agent
relationship—and it prohibits them from operating as dual agents.
§ 475.278(1), Fla. Stat. (2022). The statute then separately enumerates, in
subsections (2), (3), and (4), the duties that real estate licensees owe when
they enter a transaction broker relationship, a single agent relationship, and
no brokerage relationship, respectively. § 475.278(2)–(4).
Under all three circumstances, real estate licensees must “[d]eal[ ]
honestly and fairly,” § 475.278(2)(a), (3)(a)1., (4)(a)1., and must “[d]isclos[e]
all known facts that materially affect the value of residential real property and
are not readily observable,” § 475.278(2)(d), (3)(a)9., (4)(a)2. Moreover, two
circumstances require delivery of written disclosures: when a licensee has a
single agent relationship with the buyer or seller, and when a licensee has
no brokerage relationship with the buyer or seller. See § 475.278(3)(b),
(Luck, J.). Finally, we eschew legislative history to avoid the “backwards approach to statutory construction” that the Florida Supreme Court has rejected, Halifax Hosp. Med. Ctr. v. State, 278 So. 3d 545, 548 n.3 (Fla. 2019), and to faithfully apply the “supremacy-of-the-text principle” that it has articulated, Forrester, 316 So. 3d at 776.
21 (4)(b). 4 Under headings titled “Disclosure requirements,” the statute
specifies, in detail, what those written disclosures must contain and when
licensees must make them. See id. It then specifies the form that these
written disclosures must take. § 475.278(3)(c), (4)(c).
Section 475.278(5) goes on to recite that “[t]he real estate licensee
disclosure requirements of this section apply to all residential sales” and “do
not apply to . . . nonresidential transactions[.]” § 475.278(5)(a), (5)(b)2.
Section 475.274, in turn, reiterates that “[t]he disclosure requirements of
§ 475.278 apply only to residential sales[.]” § 475.274, Fla. Stat. (2022).
The brokers urge us to categorize section 475.278’s duty of honest and
fair dealing as a “disclosure requirement,” at least insofar as its breach might
entail a failure to disclose information. We find the brokers’ argument
unpersuasive.
At the outset, the brokers’ approach flouts the statute’s own
categorization of the various duties it imposes. As we recite above, section
475.278 imposes several duties that it expressly calls “[d]isclosure
requirements” and duties of “disclosing” certain information. The duty of
4 There is no longer a comparable written disclosures requirement for transaction brokers; a provision that contained one sunset in 2008. See § 475.278(2); 2003-164 § 36, Laws of Fla.
22 honest and fair dealing is not one of them. The plain text of the statute thus
makes clear that the duty of honest and fair dealing is not a disclosure
requirement.
Moreover, a consideration of the full list of broker duties set forth in
section 475.278 confirms our interpretation of the statute. For example, the
statute imposes on all licensees not only a duty of honest and fair dealing,
but also a duty of “[a]ccounting for all funds.” § 475.278(2)(b), (3)(a)6.,
(4)(a)3. And it imposes on both transaction brokers and single agents a duty
of “[p]resenting all offers and counteroffers in a timely manner[.]”
§ 475.278(2)(e), (3)(a)8. Under the brokers’ approach, each of these duties
will evaporate during nonresidential transactions, as their breach often will
entail alleged failures to disclose information. To borrow a phrase, the
brokers ask us to find a duty-killing elephant in a non-disclosure mousehole.
See Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001).
For both of the above reasons, the statutory text and structure preclude
us from categorizing the duty of honest and fair dealing as a “disclosure
requirement,” and we therefore reject the brokers’ attack on Taylor’s breach-
of-statutory-duty claim. But even putting that point aside, the brokers’
argument falls short on its own terms because it incorrectly presumes that
Taylor’s claim is based solely on a simple failure to disclose. Indeed, even if
23 Taylor could not rest her claim on the brokers’ failure to disclose Been’s
connection with the deal (a premise we reject under the plain language of
the statute), she has pled and produced evidence of far more than mere
nondisclosure.
In the operative complaint, Taylor supported her breach of statutory
duty claim with an allegation that the brokers “intentionally or negligently
misrepresented the Property’s true buyer (Mr. Been) to Mrs. Taylor to induce
her to sell the property to an entity that Mr. Been owned and controlled.” And
she produced ample evidence of misrepresentation and concealment at
summary judgment. From their verbal and e-mail communications to the
contract they drafted, the brokers made numerous false representations to
Taylor that “Big Island” was a “Texas” company headed by “David Roan,”
that “Big Island” was unaffiliated with Been, and that “Big Island” was the
buyer of the property. The brokers accompanied these falsehoods with
various efforts to conceal them. These actions extend well beyond simple
nondisclosure. And by any measure of the ordinary meaning of the phrase
“honestly and fairly,” a jury could well conclude that the brokers’ deceptive
communications and conduct failed to live up to that standard. See Webster’s
Encyclopedic Unabridged Dictionary of the English Language 692 (1996 ed.)
(defining “fair” as “free from bias, dishonesty, or injustice” and “legitimately
24 sought, pursued, done, given, etc.”); id. at 917 (defining “honest” as
“honorable in principles, intentions, and actions; upright and fair”); id. at 917
(defining “honesty” as “truthfulness, sincerity, or frankness” and “freedom
from deceit or fraud”). 5
In sum, we reject the brokers’ attack on Taylor’s section 475.278 claim
for two reasons. First, under the statutory language and structure, the duty
to deal honestly and fairly is not a “disclosure requirement” from which
nonresidential transactions are exempt. And second, even taking the
brokers’ argument on its own terms and assuming arguendo that Taylor
could not premise her claim on failures to disclose, Taylor has produced
summary judgment evidence from which a reasonable jury could conclude
that the brokers engaged in active dishonesty and concealment—conduct
that extends beyond mere nondisclosure. We therefore hold that the brokers
are not entitled to summary judgment on Taylor’s breach of statutory duty
claim.
V.
The brokers press one more ground for affirmance: Taylor’s purported
inability to show damages flowing from her claims against them. As the
5 We cite an older edition because section 475.278 was enacted in 1997. See S.C., 224 So. 3d at 250 n.3; ch. 1997-42 § 3, Laws of Fla.
25 brokers observe, under the “tipsy coachman” doctrine, we may affirm the trial
court’s judgments, even if they rest on the wrong reasons, so long as the
record provides any basis that supports them. See Deriso v. State, 221 So.
3d 1231, 1234 n.1 (Fla. 5th DCA 2017). Here, our undeveloped record does
not clearly preclude Taylor from recovering, at the very least, the brokers’
allegedly ill-gotten commission. See Crosby v. Ashley, 291 So. 2d 12, 13
(Fla. 3d DCA 1974). Therefore, we must reject the brokers’ tipsy coachman
argument and leave the issue of damages to the trial court in the first
instance.
VI.
For the foregoing reasons, we REVERSE the trial court’s summary
judgments and REMAND these cases for further proceedings consistent with
our opinion.
EDWARDS, C.J., and EISNAUGLE, J., concur.