266 A.3d 1243
Vt.2021Background
- Seller executed three successive one-year exclusive right-to-market listing agreements with Masiello broker (Chris Long), each containing a one-year "tail" entitling broker to commission if it was the procuring cause within 12 months after expiration.
- Broker advertised and showed the property (first listed 2013); initial showings/offers during listing terms produced no accepted offer.
- Buyers Matteo and Nelson first contacted broker in Aug–Sept 2015 and again intermittently; broker showed the property but could not secure an offer while buyers needed to sell their MA house.
- In June 2016 broker asked seller for a new listing; seller declined to sign a new listing but emailed he would "honor you getting paid as a buyer broker, not a selling broker" and otherwise would not engage broker.
- Buyers contacted seller directly Aug–Nov 2016; negotiations culminated in a sale to the buyers on Jan 20, 2017—after the tail expired (Sept 30, 2016).
- Masiello sued for commission (breach of contract), quantum meruit, and negligent misrepresentation; trial court rejected all claims and the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether broker was entitled to commission under the tail (procuring-cause) | Masiello procured the buyers and was prevented from closing by seller dealing directly; commission owed despite sale after tail | Sale occurred after tail; broker did not procure a purchaser ready, willing, able within tail nor dominate the transaction | No commission: sale after tail and broker was not procuring cause under Vermont law |
| Whether seller breached obligation to "direct all inquiries" to broker during tail | "Period of this Agreement" includes the one-year tail; seller should have redirected buyer inquiry to broker | "Period" means the contract term only; no obligation to redirect inquiries after term | No breach: "period" = term; seller had no duty to redirect inquiries after the term expired |
| Whether June 2016 email created an agency relationship | Seller’s email authorized broker to continue marketing/negotiating, creating agency and entitlement to commission | Email expressly disavowed a new listing/agency; no express authorization; court credited seller | No agency: email did not create agency; court credited seller’s disavowal of agency |
| Quantum meruit / unjust enrichment claim | Even absent a contract for post-term services, equity requires compensation for broker’s work and reliance when seller excluded broker | Valid written contract governs the relationship and precludes quasi-contract recovery; no benefit accepted or inequity shown | No recovery: contract covers the subject matter; elements of quantum meruit not satisfied |
| Negligent misrepresentation based on June 2016 statement | Seller represented he would not engage buyers and later did so; broker justifiably relied and suffered loss | Statement was a promise, not a false factual statement; breach of promise does not equal negligent misrepresentation | No negligent misrepresentation: breaking a promise is not a misrepresentation of fact under Restatement standard |
Key Cases Cited
- Osler v. Landis, 415 A.2d 1316 (Vt. 1980) (broker must procure purchaser ready, willing, able at seller's price/terms)
- Gilmer v. Fauteux, 723 A.2d 1150 (Vt. 1998) (broker’s efforts must dominate the transaction; incidental influence insufficient)
- M.E. Walbridge Agency, Inc. v. Rutland Hosp. Inc., 186 A.2d 179 (Vt. 1962) (broker’s efforts must be more than incidental)
- Ellis-Gould Corp. v. Kelly, 356 A.2d 497 (Vt. 1976) (broker who substantially arranged negotiations may still be procuring cause despite seller’s direct sale)
- Trs. of Net Realty Holding Tr. v. AVCO Fin. Servs. of Barre, Inc., 520 A.2d 981 (Vt. 1986) (contracts should be interpreted to produce a fair, reasonable result)
- McDonald v. Roderick, 603 A.2d 369 (Vt. 1992) (preference for written listing agreements in real-estate commission disputes)
- Limoge v. People’s Tr. Co., 719 A.2d 888 (Vt. 1998) (adopting Restatement test for negligent misrepresentation)
- Center v. Mad River Corp., 561 A.2d 90 (Vt. 1989) (elements of quasi-contract: benefit conferred, acceptance, inequitable retention)
- Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 516 N.E.2d 190 (N.Y. 1987) (existence of an express written contract ordinarily bars quasi-contract recovery)