Spies v. Deloach Brokerage, Inc.

169 F.Supp.3d 1365

James Spies and Darlene Spies, Plaintiffs,

v.Deloach Brokerage, Inc., d/b/a, Deloach Sotherby's International Realty, Defendant.

CV 214-053

United States District Court, S.D. Georgia, Brunswick Division.

Signed March 3, 2016

E. Michael Ruberti, E. Michael Ruberti, Esq., LLC, St. Simons Island, GA, for Plaintiffs.

Kirby G. Mason, Kate C. Lawson, Hunter Maclean, PC, Savannah, GA, for Defendant.

ORDER

HONORABLE J. RANDAL HALL, UNITED STATES DISTRICT JUDGE

Seeking to retire to the Golden Isles of Georgia, Darlene Spies (“Spies”) purchased a retirement home on St. Simons Island after an admittedly cursory viewing of the home.¹ Returning to Florida to run their business, Plaintiffs rarely read or reviewed documents that their realtor sent them. Plaintiffs never returned to Georgia to conduct any inspections, assuming that their realtor would note any and all deficiencies in the home. Upon the discovery of erosion on their property, Plaintiffs now aver that their realtor, a St. Simons Island native, failed to adequately discharge his duties, arguing that he knew about the erosion on the property and that they relied on him to take care of everything for them. Plaintiffs filed suit against their realtor's brokerage company, claiming fraud, breach of contract, and violation of a state statute, while demanding punitive damages not less than $250,000.

In response, Defendant Deloach Brokerage, Inc. (“Deloach”) argues that its realtor, Lawrence Delaney (“Delaney”), is an independent contractor, thus Deloach is precluded from liability for his acts. Additionally, Deloach avers that since the parties were never in a “confidential relationship,” Plaintiffs' fraud, breach-of-contract, and breach-of-statute claims fail as a matter of law. In light of the undisputed facts of this case, the Court GRANTS Deloach's Motion for Summary Judgment (doc. 18) for the reasons set forth below.

I. FACTUAL BACKGROUND

Plaintiffs James and Darlene Spies are a married couple whose primary place of residence is in West Palm Beach, Florida. (Doc. 1 at 5; Doc. 18, Ex. 2 (“Spies Dep.”) at 9.) Darlene Spies has been a president of her and her husband's company, Centerport, Inc., for at least the last ten years. (Spies Dep. at 9.) Aside from her position at Centerport, Inc., one of Spies' hobbies involves renovating houses. (Id. at 12, 67.) In total, Spies has renovated “probably four or five” houses, including one waterfront property on Hypoluxo Island in Lantana, Florida, and one property in Lake Worth, Florida. (Id. at 12, 22.)

I. The Spies' Prior Experience Living on the Water

Spies purchased two other homes that were “natural” to the water, but she “never had a problem living on the water.” (Id. at 26.) The property located on Hypoluxo Island did not require the installation of a bulkhead because the “house was laid back very far away from the water.” (Id. at 22.) Additionally, the house was situated on an area of elevated land, a fair distance away from the water, and there was riprap² surrounding the pool, forming a bulkhead. (Id. at 22.) Given its location on the water, the property was located in a flood zone, and Spies acknowledges that she was at least aware that flooding could happen at the home, even though the house was elevated. (Id. at 109.) The Spies' home in Lake Worth, Florida, was situated directly on the “intercoastal.” (Id. at 24.) While renovating the house, Spies tore down and repaired the existing bulkhead to “secure the wall,” built a new dock, and “brought in dirt to build the house higher,” so that the property “sloped downward into the sea wall.” (Id. at 24.)

II. Spies begins looking for a Retirement Home

In early January 2012, Spies decided that it was time to purchase a retirement home. (Id. at 38.) After a discussion with a friend, Spies remembered a prior vacation on St. Simons Island, Georgia. (Id. at 38.) Shortly thereafter, Spies and a friend traveled to St. Simons Island to find a retirement home for the Spies.

On or about January 16, 2012, Spies responded to an advertisement for condominiums and called the listing agent, Delaney, a licensed Georgia realtor, to schedule an appointment to see the unit. (Id. at 42.) Delaney is a broker, which is defined as “any individual or entity issued a broker's real estate license by the Georgia Real Estate Commission pursuant to Chapter 40 of Title 43. The term 'broker' includes the broker's affiliated licensees except where the context would otherwise indicate.” O.C.G.A. § 10–6A–3(2). Delaney operates as Deloach's affiliated licensee, meaning that Deloach holds Delaney's real estate license. (Doc. No. 18, Ex. 4 (“Deloach Aff.”) ¶ 3.) Frank Deloach is “the broker for Deloach Brokerage, Inc.” (Deloach Aff. ¶ 2.) Delaney is a member of the Georgia Association of Realtors (“GAR”), and he has access to form contracts for the sale of real estate through that organization. (Doc. 18, Ex. 3 (“Delaney Dep.”) at 97-98.) Deloach does not control Delaney's salary, how many hours he works, how he performs his work duties, or how he generates business. (Deloach Aff. ¶ 4.) Deloach provides “an office, phones, office supplies, and contract forms,” the use of which is at Delaney's discretion. (Id.¶ 6.)

After speaking on the phone, Delaney met Spies and her friend in the bar at their hotel. (Spies Dep. at 42-43.) Spies and Delaney talked about her budget of $350,000 and her intention to purchase the home as a second home. (Id. at 43.) Spies did not give Delaney a laundry list of requirements for her second home; rather, she told him that she would know the perfect house when she saw it. (Id. at 43.) The next morning, the trio walked through the condominium unit that Spies initially thought that she wanted to purchase. (Id. at 47.) After determining that the unit was a poor fit due to noise issues, Delaney spent the rest of the day showing the ladies other available homes. (Id. at 47-48; Doc. No. 29, Ex. 3 at 11-12.)

After failing to find a house that was acceptable to Spies, at the end of the day Spies retired to her hotel. (Id. at 48.) Spies asked Delaney to send her updates with new listings that she could review before her next trip to St. Simons Island. (Id.) The next morning, before Spies began the drive back to Florida, she noticed a missed call and voicemail on her cell phone. (Id. at 49.) Delaney left a message about the perfect house that he wanted her to see before she returned to Florida. (Id.)

III. The Property

On or about January 17, 2012, Spies, her friend, and Delaney visited 105 Dudley Lane, St. Simons Island, GA 31522 (“the Property”). (Id.) The Property, built in 2000, is a 2,518 square foot home that sits on .46 acres. (Doc. 18, Ex. 10 at 10.) The Property is bounded by a salt marsh to the west and Dunbar Creek to the east. (Doc. 18, Ex. 11 (“Jackson Survey”) at 2.) An unfinished spa or pool, in addition to a brick patio, can be found in the backyard, while oak and cedar trees encircle the Property's outer bounds. (Id.; Doc. 18, Ex. 5 at 14.) The brick wall in the backyard does not obstruct one from walking directly from the house to the water: the water is accessible by walking through shrubbery and trees. (Jackson Survey at 2; Spies Dep., 53-54.) The property along the water's edge is large enough to support a dock, a feature that Spies wanted to find for her husband, who is an avid boater. (Doc. 18, Ex. 5 at 19; Delaney Dep. at 32.) If Spies purchased the home, Delaney told her that they would be neighbors, as he and his family live on Dunbar Lane. (Delaney Dep. at 27.)

IV. The Tour of the Property

Spies “fell in love with” the Property when she first visited—she was “blown away with the view.” (Spies Dep. at 52; Delaney Dep. at 53.) During the thirty-to-sixty minute tour, the trio wandered outside, but they did not stay out for too long because of rain. (Spies Dep. at 52.) Instead of venturing to the property line, the trio stood on the balcony overlooking the water. (Delaney Dep. at 53; Doc. 18, Ex. 5 at 14, 19.) From the land's appearance, Spies believed that the boundaries of the Property were clearly marked. (Spies Dep. at 29.) Spies observed the vegetation, the palmettos, and the trees along the edge of the property, noting one dead, leaning tree in particular. (Id. at 53, 96; Delaney Dep. at 32.)

Spies admitted that she did not “investigate” the property she “didn't inspect it,” but rather she “just glanced” at it during her tour with Delaney. (Spies Dep. at 54.) Spies noted some areas in the garage where she saw water on the ground, but she “did not think anything of it” because the area of concern “was right where a car sat.” (Id. at 55-56.) As the tour of the home came to a close, Spies and Delaney began to talk about the Property in the driveway. (Id. at 74; Delaney Dep. at 56.) Spies was very excited about the house; she told Delaney that she would “consider making an offer” but she needed to speak to her husband first. (Spies Dep. at 58.)

V. Spies and Delaney's Conversation About Delaney's Duties

Prior to leaving, Spies sought reassurance from Delaney, stressing to him she would be unable to return to St. Simons Island for any inspections prior to closing on the home. (Id. at 74-75; Delaney Dep. at 56-57.) Spies specifically mentioned that she needed Delaney's help with the survey, the home inspection, the walk-through, and the sales agreement. (Spies Dep. at 75; Doc. 29 Ex. 1 (“Spies 2d Dep.”) at 286-287.) Delaney assured her that he would “be more than happy to take care of all of that for her,” telling her “don't worry[;] I got your back.” (Spies Dep. at 74.) Although the parties discussed Spies' expectations of Delaney, they never memorialized their discussion in writing. (Id. at 98.)

a. The Survey

During the conversation in the driveway, Delaney conveyed to Spies that a survey is not required in the State of Georgia. (Id. at 75; Delaney Dep. at 61.) Spies was “surprised” to learn that fact, but she assumed that her bank would require it to secure...