Finard & Co. v. Sitt Asset Management
79 Mass. App. Ct. 226
Mass. App. Ct.2011Background
- Finard and Dartmouth are Massachusetts commercial real estate brokers; Sitt Asset and Aroostook Centre, LLC own/manage the Aroostook Centre Mall in Maine.
- November 2001 exclusive agreement: Owner pays Finard a leasing commission for Finard’s best efforts to lease the mall, with a 30-day notice termination right.
- May 2003 Finard’s associate Connelly and Dartmouth’s Grady engaged Lowe’s; Lowe’s lease discussions occurred with Sitt Asset while Finard remained acknowledged as exclusive broker.
- February 2004 Sitt Asset terminated the exclusive agreement; Finard advised it would continue working with six prospects, including Lowe’s.
- April 2004 Sitt Asset counterproposal recognized Dartmouth and Finard as the only brokers; October 2005 Lowe’s lease reaffirmed Finard and Dartmouth as the brokers; Finard invoiced November 2005 and was refused payment.
- Jury found: (1) no bad-faith termination by Sitt Asset/Aroostook; (2) no oral contract breach; (3) Finard and/or Dartmouth entitled to quantum meruit in the amount of $475,000; post-trial motions denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether quantum meruit was properly viable given a written contract | Finard. | Sitt Asset and Aroostook. | Yes; quantum meruit supported by termination of contract and lack of oral contract. |
| Whether the jury could award quantum meruit to Dartmouth | Dartmouth. | Sitt Asset and Aroostook. | Yes; communications supported reasonable expectation of payment. |
| Whether Finard was barred by the contract but recovery allowed under quantum meruit | Finard. | Finard contract precludes quantum meruit. | Recovery permitted; contract terminated, no contract governing dispute. |
| Whether Sitt Asset should have been dismissed from the case | Payment could be sought from both defendants due to majority dealings with Jack Sitt. | Only Aroostook, as party to lease, liable. | Not error to seek payment from both defendants. |
Key Cases Cited
- Liss v. Studeny, 450 Mass. 473 (Mass. 2008) (quantum meruit arises even when contract exists; can guide recovery under quasi-contract)
- Tristram’s Landing, Inc. v. Wait, 367 Mass. 622 (Mass. 1975) (outline of when broker earns commission and when contract fails to close)
- Hillis v. Lake, 421 Mass. 537 (Mass. 1995) (distinguishes Hillis from current facts; contract termination theme)
- Boswell v. Zephyr Lines, Inc., 414 Mass. 241 (Mass. 1993) (recovery in quantum meruit when contract exists but terminated)
- Zabin v. Picciotto, 73 Mass. App. Ct. 141 (Mass. App. Ct. 2008) (quantum meruit arising out of a contingent fee agreement)