Taylor v. Nicholson-Williams, Inc.

368 So.3d 1007

Cynthia TAYLOR, Appellant, v. NICHOLSON-WILLIAMS, INC. d/b/a Coldwell Banker Commercial Benchmark, Kelly Bush, Willard Barlow Nicholson, III, Southeast Georgia Acquisitions, LLC, et al., Appellees.

Cynthia Taylor, Appellant, v. Edward Segars, Southeast Georgia Acquisitions, LLC, St. Johns Law Group, P.A., Douglas Burnett, Gulfstream Design Group, LLC, Matthew Lahti, Stephen Been, Kelly Bush, et al., Appellees.

Case No. 5D22-1410

Case No. 5D22-1557

District Court of Appeal of Florida, Fifth District.

Opinion Filed July 21, 2023

Rehearing Denied August 11, 2023

Timothy S. Taylor, and Vanessa A. Van Cleaf, of Taylor Corwin & Van Cleaf, PLLC, Coral Gables, and Stephen J. Binhak, of The Law Office of Stephen James Binhak PLLC, Miami, for Appellant.

Therese A. Savona, of Cole, Scott & Kissane, P.A., Orlando, and Michael A. Rosenberg, of Cole, Scott & Kissane, P.A., Plantation, and Robert E. O'Quinn, Jr. of Cole, Scott & Kissane, Jacksonville, for Appellees, Nicholson-Williams, Inc. d/b/a Coldwell Banker Commercial Benchmark, Kelly Bush, and Willard Barlow, III.

No Appearance for Other Appellees.

Timothy S. Taylor, of Taylor Corwin & Van Cleaf, PLLC, Coral Gables, and Vanessa A. Van Cleaf, of Taylor Espino Vega, PLLC, Stephen J. Binhak, of The Law Office of Stephen James Binhak PLLC, Miami, for Appellant.

Mary K. Simpson, William R. Sickler, and Elizabeth M. van den Berg, of Guilday Law, P.A., Tallahassee, for Appellee, Edward M. Segars.

No Appearance for Other Appellees.

PRATT, J.

Appellant Cynthia Taylor, the seller of 102 acres of land in St. Johns County, sued Edward Segars and various other parties (collectively, "the brokers") who functioned as brokers for the $4 million transaction, asserting claims against them for civil conspiracy, fraud, negligent misrepresentation, breach of statutory duty, and negligent supervision. The Seventh Judicial Circuit granted the brokers’ motions for summary judgment, and Taylor has appealed those rulings. ¹ Her appeals require us to decide three questions: whether the purchase-and-sale contract bars Taylor's claims against the brokers; if the contract does not bar Taylor's claims, whether she has raised a factual dispute material to whether the brokers violated the duty of honest and fair dealing they owed to her under section 475.278, Florida Statutes (2022) ; and whether the summary judgments should be affirmed on the alternate ground that Taylor cannot prove damages.

Viewing the evidence in the light most favorable to Taylor, as we must, we hold that the contract does not bar Taylor's claims against the brokers; she has produced summary judgment evidence that the brokers breached their statutory duty to deal honestly and fairly with her; and the summary judgments cannot be affirmed on the alternative ground that the brokers press. We therefore reverse and remand.

I.

From 1993 until December 2018, Cynthia Taylor owned 102 acres of real property located at 7085 U.S. Highway 1 South in St. Augustine, Florida. The sale of her property unfolded over a two-year period. During that time, Taylor alleges, a developer devalued her land and scuttled an initial $5 million purchase agreement. Taylor further alleges that after she made plain her intention never to sell to the developer or any of his affiliates, the brokers conspired with the developer and the developer's friend to acquire the land through a straw buyer at a $1 million discount from the original purchase price. Taylor's summary judgment evidence, taken in the light most favorable to her, tells the following story.

A.

It all began in November 2016, when Southeast Georgia Acquisitions, LLC ("SGA"), contracted to purchase the northern parcel of Taylor's land for $2.7 million. Soon thereafter, SGA contracted to purchase the remaining southern parcel for $2.3 million, bringing the total purchase price to $5 million. Edward Segars and Glenn Palmer—both of whom were affiliated with Nicholson-Williams, Inc. d/b/a Coldwell Banker Commercial Benchmark ("Coldwell")—acted as SGA's brokers in the deal. Their client was no stranger to the market. SGA is one of several real estate acquisition-and-development companies controlled by developer Stephen Been. Other Been-controlled entities include Rock Spring Farms, LLC ("RSF") and Waterford Green, LLC ("Waterford Green").

As part of the $5 million SGA deal, Taylor allowed SGA to pursue a planned unit development ("PUD") rezoning that included a public park dedication for part of the property in exchange for a density bonus. A public park, of course, would occupy space that otherwise could accommodate more development, and therefore might devalue the land. But SGA agreed to ensure that the public park dedication was "optional under the PUD so that, in the event [SGA] fails to close or otherwise defaults," Taylor was "not required to have any portion of the Property be subject to public park dedication." The addendum fleshed out that aspect of the agreement by prohibiting SGA from encumbering the property with a public park dedication unless it could be removed through a "Small Adjustment," which involves less expense and red tape than other means of removal.

Notwithstanding these commitments to make the public park dedication optional and easily removable through a small adjustment, SGA directed the submission of PUD text that would make the public park dedication removable only by a "Major Modification," which resembles a full re-zoning and requires significantly more time and expense than a small adjustment. On October 17, 2017, the PUD was issued. It included an 8.8-acre public park dedication. In accordance with SGA's submission, the PUD provided that, if "the public park is not dedicated, a Major Modification shall be required."

Having encumbered the property with a difficult-to-remove public park dedication, SGA demanded a $1 million reduction in the sale price at the November 16, 2017, closing. Taylor was not enthused. She advised Segars that if SGA did not close by 5:00 p.m. for the full contract price, she would never sell her land to SGA, Been, or any Been affiliate. Segars informed his fellow brokers that the deal was "dead" with "no chance of saving[ ]" it unless Taylor agreed to SGA's $1 million discount demand. The next day, the brokers, through Segars, presented a $4 million offer to Taylor, which she quickly rejected.

B.

On March 9, 2018, Taylor filed her original complaint against SGA and several other parties after they refused her demand to fund the major-modification process to remove the public park dedication. She sent a copy of the complaint to Segars, who forwarded it to the other brokers and told them that he had been in touch with Taylor.

While the litigation proceeded, Taylor continued to market her property. She received several offers, and she even got the property under contract for $4.75 million. But the deal fell apart. Like other developers, the prospective purchaser ultimately lost interest due to complications owing to the major modification process.

After the $4.75 million deal fell through, Taylor contacted Segars—who repeatedly had phoned her for status updates on the litigation—to inform him that the property was no longer under contract. Although motivated to sell, she told Segars that, "Stephen Been cannot be anywhere near this deal," and she would "never sell to Stephen Been, or any of his affiliates, or, in all honesty, anybody in [the] lawsuit." Segars confirmed that Coldwell understood these wishes, which Taylor expressed to him over a dozen times. Even so, he repetitively tried to convince her to sell to Been. But she remained steadfast in her opposition.

A mere eight days after the $4.75 million contract terminated, Segars, on the brokers’ behalf, presented a $4 million purchase offer. That amount mirrored the amount that SGA had offered after scuttling the initial $5 million deal. In transmitting the offer to Taylor by e-mail, Segars wrote that the offeror—"Big Island Investments, LLC"—"is a Dallas, Tx group who contacted me looking for entitled residential developments in Florida." During his discussions with Taylor, Segars assured her that Coldwell was dealing with "David Roan" of Texas-based "Big Island Investments, LLC" ("Big Island"), and that neither Mr. Been nor any of his associates, agents, or organizations were in any way related to the proposed purchase.

When Taylor indicated her plans to counteroffer, Segars tried to dissuade her, urging her to think about her grandchildren and predicting that no one else would buy the land because of the public park dedication. Taylor nevertheless submitted a $4.6 million counteroffer, but "Big Island" stood firm on the $4 million purchase price. Segars continued to urge Taylor to accept the offer, and she ultimately did so. Taylor opposed the addition of an assignment clause in the contract, but the brokers, through Segars, persuaded her that one was necessary as a standard practice when dealing with developers like "Big Island." A free assignability clause was therefore added to the contract.

C.

At this point, careful readers may suspect where this is all headed. And, according to Taylor's summary judgment evidence, they would be right.

"Big Island" was a straw buyer, with Been and his affiliates behind the curtain—and the brokers actively helping him pull the strings and keep Taylor's suspicions at bay. Neither Segars nor the brokers had a signed writing reflecting any communications with "Big Island" or "Roan" regarding the offer, much less a contract or other document permitting the brokers to represent them. Segars had prepared the offer himself, and he later testified at his deposition that, at the time he presented the offer to Taylor, he knew that Vassa Cate—Been's close friend since childhood—had signed it as "David Roan."

According to Taylor's summary judgment evidence, throughout the contract period, Segars and the other brokers continued working...