Sparks v. Fidelity National Title Insurance Company

294 F.3d 259 (1st Cir. 2002)

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Nature of the Case

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Facts

The property at issue was zoned and permitted as a 148-lot residential subdivision. D acquired ownership of 99 of the lots. Another 45 lots were owned by Nicholas Cambio and his associates, and four lots were owned by the Sheriff's Meadow Foundation, a conservation group. Giuliano had the right to approve the minimum price at which Ds sold any of the lots in the subdivision, subject to the proviso that he could not unreasonably withhold his approval. P entered into three successive listing agreements regarding the property. P agreed to 'use reasonable efforts to procure BUYERS for said PROPERTY, ready, willing, and able to purchase same in accordance with the price, terms, and conditions to be agreed upon.' The agreement also recited that D 'represents and warrants that it is the owner of said property.' The third agreement allowed D to modify the prices provided it notified P at least ten days before the prices are changed. The agreement stated that if D were to secure 'a single buyer to purchase more than ten percent of the entire property during the term of this agreement,' P would not receive a commission from such sale. P attempted both to sell individual lots and to sell the entire property to a single buyer. P generated and presented to Ds offers from buyers both for particular individual lots and for the whole property. None of the offers presented for the purchase of individual lots were accepted. The closest P came to a sale of an individual lot fell through when D made a counteroffer that D would have the right to repurchase the property within a year for a stipulated price and the buyer would agree to accept the subsequent imposition of any covenants, conditions, and restrictions that might in the future be placed uniformly on all lots within the subdivision. The buyer never settled on final terms and never signed a purchase and sale agreement. P produced several offers to purchase the entire property. They ranged from $6 million to $13 million and included a variety of additional terms. The offers were generally contingent on governmental approvals and on the buyer's ability to obtain the necessary financing. In no case was a binding purchase and sale agreement executed. Osprey offered to purchase the entire property for developing it into a golf course. Osprey promised to buy the property for $15 million to be paid if certain contingencies were met. Osprey ultimately notified D that it could not obtain the necessary financing and withdrew the unsigned purchase and sale agreement. D sold the subdivision for $15.93 million to Martha's Vineyard Golf Partners, a buyer not introduced by Sparks. The sale was concluded in July 2000. P sued D for, and the court granted D summary judgment. It ruled that D had not earned the right to a commission under the listing agreements and Ds had not breached any of those agreements by failing to compensate him. It concluded that P could not prove that any alleged misrepresentations or other wrongful conduct by D had caused him any damage, and it ordered judgment for Ds on all counts. D appealed.