Dubbs v. Stribling & Associates

274 A.D.2d 32, 712 N.Y.S.2d 19, 2000 N.Y. App. Div. LEXIS 8230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 27, 2000
• Status: Published

Opinions

OPINION OF THE COURT

Friedman, J.

A real estate broker who, after complying with disclosure requirements, contracts to purchase her client’s apartment does not owe a continuing fiduciary duty to the client after the contract date. This action, which is rooted in a claim that defendants breached fiduciary duties to their client after execution of the contract, was therefore properly dismissed by Supreme Court.

Plaintiffs, both of whom are lawyers, were the owners of apartment 3-C in a building located at 139 East 94th Street in the Carnegie Hill section of Manhattan. Seeking more space, and knowing that the C-line and D-line units in the building could be combined, they contacted their next door neighbor in apartment 3-D, Nancy Kelly, to find out if she was willing to sell them her unit. Kelly, however, told plaintiffs that she was unwilling to sell.

In mid-1994, plaintiffs listed their apartment for sale with defendant, broker Stribling & Associates (Stribling). When listing the apartment plaintiffs advised Stribling, via its salespeople, defendants Judith Durham and Avery L. ChappellSmith, that their apartment could be combined with apartment 3-D and how such a combination could be effectuated. They also advised Stribling that they would have preferred to remain in their apartment, purchase apartment 3-D, and combine the two, but their neighbor was unwilling to sell.

Chappell-Smith, acting for Stribling, made several attempts to arrange the sale of plaintiffs’ apartment but she was unsuccessful. Then, in October 1994, she brought her husband to see it. The next day Durham called plaintiffs on behalf of Stribling and informed them that the Smiths (that is, Chappell-Smith and her husband) sought to purchase the apartment on their own behalf and that all commissions would therefore be waived.

It is uncontroverted that before any contract was signed Durham told plaintiffs that they should attempt to purchase the Kelly apartment if that was still their desire. It is also uncontroverted that plaintiffs again approached their next door neighbor, Kelly, about purchasing her apartment and that she remained unwilling to sell it to them.

On December 14, 1994, plaintiffs entered into a contract to sell their apartment to the Smiths. The contract provided for a closing date of May 23, 1995 so that plaintiffs would have time to find another apartment. Ultimately, the closing took place on May 30, 1995.

In the interim, Durham and Chappell-Smith showed plaintiffs approximately 18 apartments. In the end, however, on March 21, 1995, plaintiffs entered into a contract to purchase an apartment through a different broker.

Thereafter, on or about May 8, 1995, Kelly decided to sell her apartment and listed it with at least six different brokers, including Stribling. Discovering the listing, the Smiths contacted Kelly and began negotiating to purchase Kelly’s apartment. As previously indicated, the sale between plaintiffs and the Smiths closed on May 30th. Six days later, the Smiths entered into a contract with Kelly to purchase her apartment. Plaintiffs, seeing the Smiths accomplish that which they had long sought to do, commenced this action against defendants Stribling, Durham, Chappell-Smith, and Kelly seeking, among other things, damages for breach of fiduciary duty. Motions by defendants for summary judgment followed. Ultimately, defendants were granted summary judgment and plaintiffs brought this appeal.

In seeking reversal, plaintiffs contend that defendants had an ongoing fiduciary duty to notify them that Kelly had changed her mind and had listed her apartment for sale. Plaintiffs also contend that the information they imparted to defendants regarding the ability to combine their apartment with Kelly’s apartment was secret and confidential information, which the Smiths were not permitted to act upon at any time, even after the Smiths closed on plaintiffs’ apartment. These claims lack merit.

It is axiomatic that a broker owes a duty of good faith and loyalty to his principal (see, Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158, 164; Wendt v Fischer, 243 NY 439, 443; Matter of Grant Realty v Cuomo, 58 AD2d 251, 255). Based upon a broker’s position of trust, she is under a duty, during the course of her employment, to disclose to her principal all material information she possesses or obtains concerning the transaction involved (see, Matter of Grant Realty v Cuomo, supra). Additionally, a broker may not make use of any confidential information obtained while acting as a broker in competition with or to the injury of her principal (Restatement [Second] of Agency § 395).

Bearing these general principles in mind, we begin our analysis by making several critical observations. First, there is no question that before the Smiths contracted to purchase plaintiffs’ apartment, defendants acted properly in all respects. 19 NYCRR 175.4, which governs the conduct of a broker purchasing from a client, provides: “A real estate broker shall not directly or indirectly buy for himself property listed with him, nor shall he acquire any interest therein without first making his true position clearly known to the listing owner.” Here, of course, defendants fully disclosed that the Smiths sought to purchase plaintiffs’ apartment on their own behalf.

Second, notwithstanding plaintiffs’ and the dissent’s vague speculation to the contrary, after extensive discovery, the record is barren of any evidence that defendants contacted Kelly before December 14, 1994, the date plaintiffs contracted to sell their apartment to the Smiths. Nor is there any indication that, prior to that date, Kelly was willing to sell her apartment. In fact, Kelly specifically denied that defendants had contacted her prior to May 8, 1995 about purchasing her apartment.

Third, plaintiffs do not contend that the purchase price they received from the Smiths was unfair or did not represent the going rate in the real estate market at the time the contract was executed.

What the foregoing reveals is that defendants complied with their fiduciary obligations up to December 14, 1994, when plaintiffs contracted with the Smiths. This is especially so since, before contracting with the Smiths, defendants advised plaintiffs to attempt, once more, to purchase the Kelly apartment. Accordingly, if there has been a breach of fiduciary duty, the breach must be predicated upon conduct subsequent to the Smiths’ execution of the contract to purchase plaintiffs’ apartment.

In seeking to establish such a breach, plaintiffs rely upon two theories. First, they assert that a fiduciary relationship between the parties continued even after execution of the contract so that defendants were obligated to disclose any postcontractual information they obtained regarding the Kelly apartment. Alternatively, they maintain that the information they imparted to defendants about the possibility of combining apartments 3-C and 3-D constituted confidential information which defendants improperly utilized after executing the contract to purchase their apartment. Neither theory withstands scrutiny.

As to the first theory advanced by plaintiffs, the emergent issue is whether a principal/broker relationship continued between plaintiffs and defendants after the contract of sale was executed. The answer to this question is pivotal since, in the absence of a continuing principal/broker relationship, defendants had no duty to disclose information they learned after contracting to purchase plaintiffs’ apartment regarding the availability of the Kelly apartment (see, Midcourt Bldrs. Corp. v Eagan, 36 AD2d 90, affd 31 NY2d 728; see also, Olson v Brickies, 203 Va 447, 124 SE2d 895).

The courts of our State do not appear to have definitively addressed the issue of whether a fiduciary relationship survives the execution of a contract between a broker and her principal (see, Yellot v Poritzky, 170 AD2d 676; Falle v Metalios, 132 AD2d 518; Geisler v Department of State, 73 AD2d 392; Midcourt Bldrs. Corp. v Eagan, supra).1 However, other jurisdictions considering the issue have concluded that a broker’s fiduciary duty terminates when a legally binding contract to purchase the client’s property is executed (see, e.g., Sylvester v Beck, 406 Pa 607, 178 A2d 755 [Pa Sup Ct]; Hardy v Davis, 223 Md 229, 164 A2d 281 [Md Ct App]; Jones v Allen, 294 SW2d 259 [Tex Ct Civ App]; Edna Mae Dev. Co. v Chicago Tit. & Trust Co., 79 Ill App 2d 251, 223 NE2d 285 [Ill App Ct]; Clinkenbeard v Central Southwest Oil Corp., 526 F2d 649 [5th Cir]; Irby v Lee, 512 P2d 253 [Okla Ct App]; First Trust Co. v McKenna, 188 Mont 534, 614 P2d 1027 [Mont Sup Ct]).² Consistent with these cases, we conclude that, where a broker contracts to purchase her client’s property, the relationship of principal/broker terminates when the contract is executed, thereby severing the fiduciary relationship.

In reaching this conclusion and following the rule enunciated in other jurisdictions, we are persuaded, in part, by the fact that defendants were hired to find a purchaser for plaintiffs’ apartment. Since defendants accomplished their task and there was nothing left for them to do with respect to selling that apartment, it follows that the principal/broker relationship terminated (Restatement [Second] of Agency § 106; see also, Midcourt Bldrs. Corp. v Eagan, supra). The policy considerations generally at play when fiduciary duties are imposed likewise support our conclusion. The imposition of fiduciary duties, such as the duty of disclosure (which is the principal duty at issue here), seeks to assure that the principal may rely on the undivided fidelity of a broker throughout the transaction for which the broker was- employed (see, Penato v George, 52 AD2d 939, 942, appeals dismissed 42 NY2d 908; see also, Cogan v Kidder, Mathews & Segner, 97 Wash 2d 658, 663, 648 P2d 875, 877-878). Where a broker’s employment terminates, however, and the parties are transformed from principal/broker to contract-vendor/contract-vendee, it cannot be said that the former principal is relying on his former broker to guide him in the transaction. At the moment of contract, any reasonable person (and certainly plaintiffs, who were sophisticated marketing and securities attorneys), would recognize that the parties’ relationship had experienced a fundamental metamorphosis — a metamorphosis so substantial that it no longer retained any of the fiduciary characteristics previously associated with it (see, Midcourt Bldrs. Corp. v Eagan, supra, at 94). This new relationship was defined by the terms agreed upon by the respective parties in the contract of sale.

Recognition of this change in roles is supported by traditional principles applicable to the sale of real property. As was stated by the Court of Appeals in Williams v Haddock (145 NY 144, 150): “The general rule in regard to contracts for the sale of land is that the owner of the real estate from the time of the execution of a valid contract for such sale is to be treated as the owner of the purchase money, and the purchaser of the land is treated as the equitable owner thereof. The vendor is deemed in equity to stand seised in the land for the benefit of the purchaser, and the latter, even before the conveyance to him, can devise the same.” Thus, immediately upon the formation of a contract, the purchaser is vested with equitable title, while the seller holds legal title only as security for the payment of the purchase price (see, Thomson v Smith, 63 NY 301).

By analogy, at the moment the parties contracted for the sale of shares in the coop corporation and the transfer of the leasehold, the Smiths could no longer be considered plaintiffs’ brokers since they were essentially transfigured into the equitable owners of the apartment. Since a broker is one who acts to sell property on behalf of another (see, Real Property Law § 440 [1]), by definition defendants could not contemporaneously occupy the mutually exclusive roles of equitable owner and broker.

The dissent nevertheless finds this analysis flawed, on the ground that an “ordinary person” continues to place reliance upon the broker until the time of closing. Thus, the dissent points out that the broker often becomes involved in postcontractual negotiations on behalf of her principal following the “results of inspections and testing.” Additionally, further undefined negotiations may be required if the purchaser is unable to obtain financing. The dissent’s identification of these postcontractual responsibilities cogently demonstrates the incongruity of extending the fiduciary relationship where the broker is the purchaser of the property.

By way of example, assuming the Smiths had been unable to obtain financing, the dissent would have obligated them to negotiate on behalf of plaintiffs and against themselves, possibly in an effort to forfeit their own down payment. Similarly, the dissent would require the Smiths to negotiate on behalf of plaintiffs and against themselves if an inspection revealed that the premises had severe structural defects. Presumably this would mean that the Smiths would have to forego any contractual rights they might have to cancel the contract or seek a reduction in price based upon the defects. It strains all bounds of credulity to believe that any person, let alone these sophisticated plaintiffs, would expect that the purchasers of the subject property would simply abandon their contractual rights. After all, what could possibly be the purpose of contracting if not to define the parameters of the parties’ respective rights and obligations? It is this question that plaintiffs and the dissent fail to answer.

In determining that defendants’ fiduciary duties terminated in this case upon the execution of the contract of sale, we do not, as the dissent contends, adopt a bright line rule that the execution of a contract will always cut off a broker’s fiduciary obligations. Where the broker is not the purchaser there may be good reason to extend the broker’s fiduciary duties until the time of closing. In this connection, during the period between contract and closing the broker may, among other things, still have a duty to shepherd the transaction to fruition on behalf of her principal (see, e.g., Owen v Shelton, 221 Va 1051, 277 SE2d 189). We need not, however, address this issue. Suffice it to say that when the broker is the purchaser, the brokerage relationship, along with its fiduciary obligations, terminates upon execution of the contract.

This brings us to the question of the use of allegedly confidential information, namely, the possibility of combining plaintiffs’ apartment with the Kelly apartment. As indicated previously, a broker may not use or communicate information confidentially given to her by her principal in competition with or to the injury of her principal (see, Restatement [Second] of Agency § 395). Defendants in this case did not violate this rule.

We initially find that there was nothing secret about the subject information (cf, Ashland Mgt. v Janien, 82 NY2d 395, 407). Not only had other apartments in the building been combined in the past, but the plans for at least one of the combined units had been in Stabling’s files since 1991. Thus, plaintiffs’ purported secret was apparently already known, not only to plaintiffs’ neighbors, but to defendants. We also note that in the context of the current real estate market, it is hardly a secret that neighboring apartments can often be combined into a single, larger unit. That which is commonly known cannot be garbed by a cloak of confidentiality merely because a seller repeats it to a broker when listing her property for sale.

Moreover, plaintiffs’ claim that information about combining apartments was confidential is incredible as a matter of law. After all, this information was precisely the type any rational seller would seek to exploit in order to obtain a higher sales price. In this regard, a broker, in an attempt to make plaintiffs’ apartment more attractive to prospective buyers, would be expected to advise them that if the neighboring apartment were to become available at some point in the future, the apartments could be combined.

In any event, there is no reason in policy or logic to justify precluding the Smiths from using this information. As plaintiffs permanently contracted away any rights to their apartment for fair consideration and their initial reason for wishing to purchase the Kelly apartment no longer existed, defendants did not usurp an opportunity that could have been of value to plaintiffs. Stated otherwise, defendants did not use confidential information in competition with, or to the detriment of, plaintiffs.

Notwithstanding all of the reasons for bringing the fiduciary relationship to an end when plaintiffs and the Smiths contracted, the dissent contends that the Smiths had a fiduciary duty to disclose to plaintiffs that the Kelly apartment had become available. It must necessarily follow that a breach of that duty makes it permissible for plaintiffs, among other remedies, to rescind their contract with the Smiths (see, Wendt v Fischer, 243 NY 439, 443, supra). What the dissent therefore concludes is that the remedy of rescission is appropriate, notwithstanding that the broker has complied with the law in every respect before contracting with her principal. This conclusion effectively relegates an entire category of contracts, specifically, those that have been lawfully entered into between a broker and her principal after full disclosure, to some lesser status — a status that permits a seller to unilaterally void the contract in the absence of fraud, mistake, or duress. Hence, the dissent would hold that a broker cannot bind her principal even if she complies with every ethical canon before executing the contract. We do not believe that such a novel, sweeping, and unwarranted change in well-established principles of contract law has any justification.

If, on the other hand, the dissent does not believe rescission is an appropriate remedy, then the fiduciary duty for which it advocates is a meaningless charade. Under this scenario, the broker has a duty to inform her former principal that the adjoining apartment has become available after the signing of the contract, but the principal has no right to rescind the contract after being so informed. If there is no such right, it follows there should be no antecedent duty.

Recognizing the inevitability of the foregoing conclusions, plaintiffs nevertheless argue that a fiduciary relationship continued beyond the December 14, 1994 contract date because they engaged defendants to show them other apartments. Plaintiffs, however, misconstrue the precise contours of the newly created relationship.

With regard to plaintiffs’ purchase of another apartment, defendants were not plaintiffs’ broker. Rather, defendants were acting on behalf of the sellers of these other apartments, who would pay their commission (see, Reuschlein and Gregory, Agency and Partnership § 17 [A], at 45 [2d ed 1990]). Thus, no fiduciary duty ran to plaintiffs.

In any event, assuming, arguendo, that defendants were plaintiffs’ brokers for the purpose of purchasing another apartment, any fiduciary duties that were owed would extend only to matters within the scope of defendants’ new employment (see, Restatement [Second] of Agency §§ 23, 390, comment d). Here, after the Smiths contracted with plaintiffs, defendants were employed only to assist plaintiffs in finding another apartment. Therefore, any fiduciary duties extended only to that specific employment.³

In the end, plaintiffs contracted away all of the legal rights of ownership they had to their apartment after full disclosure by defendants. The contract being legally binding and not subject to rescission, the Smiths had every right, just as any other contract-vendee, to take advantage of any opportunities that would be beneficial to their ownership, including purchasing the neighboring apartment. To conclude otherwise would mean that defendants were obligated to notify plaintiffs of the availability of the Kelly apartment, and that the Smiths were obligated to gratuitously give up their right to enforce a valid, binding contract. We cannot perceive any legal justification to support such an outcome.

We have considered plaintiffs’ remaining arguments and find them to be without merit.

Accordingly, the judgment of the Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered August 11, 1998, which, upon an order of the same court and Justice, entered July 2, 1998, granted summary judgment in favor of defendants and dismissed the complaint, should be affirmed, without costs. The appeal from said order should be dismissed, without costs, as subsumed within the .appeal from the aforesaid judgment.

1 . The dissent’s reliance upon Falle v Metalios (132 AD2d 518, supra) and Geisler v Department of State (73 AD2d 392, supra) as supporting a continuing fiduciary duty is misplaced. In Falle, the only issue was whether the defendants knew of the existence of a prospective purchaser who was willing to offer more for the subject property before the contract of sale was executed (Falle v Metalios, supra, at 519). The failure to disclose such information would, of course, be a clear violation of the defendants’ fiduciary duties under well-settled law. In Geisler, the Court did not conclude that a broker has a duty to disclose postcontractual information to his former client. Rather, the Court held'that the broker had a duty to close the transaction as quickly as possible Where the broker was the purchaser and knew that his client required a prompt closing. Hence, if Geisler stands for any proposition, it is that defendants herein had a singular duty to timely close the transaction as they agreed upon in the contract.

2 . Contrary to plaintiffs’ contention, Irby and First Trust do not hold that a broker’s fiduciary duties continue up to the date of closing in any and all circumstances. To the contrary, each of these cases makes clear that if there had been a binding contract between the broker and his principal before the date of closing, the fiduciary relationship would be cut off on the date of contracting. The only reason both cases found a continuing fiduciary duty until the date of closing was because there had not been a binding contract before that time.

3 . Any fiduciary duties emanating from this postcontractual relationship terminated, in any event, in or about March 1995, when plaintiffs contracted to purchase another apartment through a different broker. Hence, to the extent that defendants could be viewed as having a fiduciary duty extending to all aspects of their relationship with plaintiffs, that fiduciary duty terminated months before the Smiths negotiated for the Kelly apartment.