Beruflich Dokumente
Kultur Dokumente
ROBERT HARRIS,
Appellant,
v.
ROSA SCARCELLI and OAK KNOLL ASSOCIATES, L.P.,
Appellees.
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Background
to remain in effect for six months and outlined two scenarios under
which Oak Knoll would be obligated to pay Harris a commission for
his services.1
agreement.
purchase or lease the property were to be accepted during the sixmonth term or within six months of the termination of the listing
agreement (and if the accepted offer in fact resulted in a sale).
The listing agreement also provided that if negotiations continued
after
the
six-month
term,
the
listing
agreement
would
be
Management,
LLC
("Navarino").
On
October
11,
2011,
in
series
of
extensions
to
the
inspection
period.
Instead,
2:12-CV-72-GZS, 2012 WL 1965681 (D. Me. May 31, 2012). Among other
things, the injunction forbade Gleichman from entering into a
contract to sell the property without Scarcelli's prior written
consent.
developments.
in
turn,
was
kept
apprised
of
these
The
demanded the return of his escrow deposit from Oak Knoll. On April
- 4 -
In October 2013,
Oak
Knoll
agreement.
Associates
executed
new
purchase
and
sale
Oak Knoll
Eventually,
Oak Knoll moved for summary judgment, arguing that there was no
material dispute of fact and that Harris was -- as a matter of
law -- not owed a commission.
followed.
II.
"[T]he
legal
Standard of Review
standards
traditionally
applicable
to
the light most favorable to the nonmoving party (in this case
Harris) and all reasonable inferences must be taken in that party's
favor.
- 6 -
And although
See id.
III. Discussion
In seeking to recover his unpaid commission, Harris
First, he cites
A.
Proof of Claim
Harris filed a proof of claim for his unpaid commission
reason
other
than
unmatured. . . ."
because
such
Id. 502(b)(1).
claim
is
contingent
or
See Raleigh v.
Ill. Dep't of Revenue, 530 U.S. 15, 20 (2000) ("The 'basic federal
rule' in bankruptcy is that state law governs the substance of
claims . . . .").
Connecticut,
broker's
right
"to
recover
1202,
1982).
1204
(Conn.
Thus,
while
broker
can
earn
in
October
2011.
Second,
he
asserts
that
the
listing
neither is persuasive.
1.
Acceptance of an Offer
As stated, the listing agreement obligates Oak Knoll to
Harris
- 10 -
See Salce v.
Wolczek, 104 A.3d 694, 698 (Conn. 2014) ("If the contract is
unambiguous, its interpretation and application is a question of
law for the court, permitting the court to resolve a breach of
contract claim on summary judgment if there is no genuine dispute
of material fact."); see also Ramirez v. Health Net of the Ne.,
Inc., 938 A.2d 576, 587 (Conn. 2008) ("A contract is ambiguous if
the intent of the parties is not clear and certain from the
language of the contract itself.").6
Williams v.
listing
agreement
nevertheless
indicates
that
this
is
courts should not "import terms into [an] agreement . . . that are
not reflected in the contract" (emphasis added)).
For example, the listing agreement is titled a "NonExclusive Agency Sale Agreement."
A.2d
637,
639-40
(Conn.
1988)
in
the
context
of
Similarly,
- 12 -
(viz., protecting the agent in the event that the property "is
sold") and concomitantly sets forth Oak Knoll's duty to pay Harris
a commission. A commonsense reading would suggest that Oak Knoll's
obligation to pay Harris is connected to the overall purpose of
the listing agreement.
570, 577 (2008) ("Logic demands that there be a link between the
stated purpose and the command.").
The third-quoted
Similarly,
All
That is,
clear that Oak Knoll must pay Harris a commission if the property
"is sold."
Cf. Norfolk & W. Ry. Co. v. Sims, 191 U.S. 441, 447
were needed for Harris to earn his commission, there would have
been no need to specify (as the listing agreement repeatedly does)
that he could do so upon the successful closing of a sale.
Thus,
84 A.3d 828, 835 (Conn. 2014) ("If the language of the contract is
- 14 -
susceptible
contract
is
to
more
than
ambiguous.").
one
reasonable
Rather,
we
interpretation,
believe
that
the
Harris's
The
Continued Negotiations
Oak
Knoll
and
Harris
also
agreed
that
the
listing
and thereby kept the listing agreement alive, such that he earned
a commission based on the ultimate sale of the property.
We
disagree.
We begin by considering the language of the contract.
The
listing
agreement
states,
in
relevant
part:
"Should
negotiations continue after the six (6) month period the OWNER
agree to automatically extend this agreement and its terms until
such as the negotiations are completed."
unnecessary to reach this point. Cf. Revere Real Estate, 438 A.2d
at 1205 ("A seller cannot defeat a broker's right to its commission
by his unilateral nonperformance of a sales contract unless the
listing contract reserves the right to condition payment upon
consummation
of
the
sales
contract."
(emphasis
added)).
Regardless, we need not address this argument because it is waived:
Harris fails to bring to our attention any authority indicating
that Oak Knoll's supposed breach of the 2011 P&S has any bearing
on our analysis. See United States v. Munyenyezi, 781 F.3d 532,
542 n.11 (1st Cir. 2015).
In fact, he offers no explanation
whatsoever as to why this point should even affect the bottom-line
conclusion. A claim of error without explanation as to the error's
import generally amounts to little more than sound and fury. Which
is to say, it signifies nothing.
- 16 -
Harris
interpretation
of
the
In
listing
agreement,
the
10
That is, seizing on the words "and its terms," Harris points
out that one of the "terms" of the listing agreement is that it is
to remain in effect for six months. And moreover, the acceptanceof-an-offer provision entitles Harris to a commission if an offer
were to be accepted within six months of the listing agreement's
expiration (although, as we have established, the offer would have
to result in a sale).
- 17 -
in August 2013.
negotiations rang down the curtain and joined the choir invisible
in June 2012, taking the listing agreement with them six months
later.
some point in 2013, Harris makes no argument that the alreadyexpired listing agreement could be similarly resuscitated.
The
the
evidence
cited
by
Harris
in
no
way
(1st Cir. 1990); see also id. ("Evidence which is 'merely colorable
or is not significantly probative' will not preclude summary
- 18 -
Equitable Relief
This leaves us with Harris's claim for equitable relief.
11 U.S.C.
bankruptcy courts "a roving writ, much less a free hand" to provide
equitable relief.
Rather, this statute "may be invoked only if, and to the extent
that, the equitable remedy dispensed by the court is necessary to
preserve
an
identifiable
Bankruptcy Code."
Id.
right
conferred
elsewhere
in
the
not owed a commission based on the terms of his contract with Oak
Knoll; if he has an identifiable right, it must accordingly have
its genesis elsewhere.
To that end, Harris points to a Connecticut statute which
entitles a real estate broker to recover a commission "if it would
be inequitable to deny such recovery."
12
325a(d).
as it is doubly waived.
theory below, Harris may not do so for the first time on appeal.
His argument is kneecapped: unpreserved claims don't warrant our
review.
argument
consideration.
is
insufficiently
fleshed-out
to
Second,
merit
our
Harris,
As such,
773, 780 (1st Cir. 2014). Since Harris otherwise fails to identify
a right which would entitle him to equitable relief,13 we reject
this claim as well.
13
IV.
Conclusion