Bonin v. Chestnut Hill Towers Realty Corp.

*72Abrams, J.

(dissenting, with whom Liacos, J., and Nolan, J., join). This court has long adhered to the rule that, in suits by real estate brokers against property owners to recover commissions due for services performed, it is “for the jury to determine what the agreement of the parties was and whether the plaintiff complied with it.” McEvoy v. Ginsberg, 345 Mass. 733, 736 (1963). Boyle v. Goldenberg, 267 Mass. 24, 27 (1929). I perceive no reason why this rule should be inapplicable where the broker’s services are rendered in connection with a syndication of property.1 The jury’s verdict for the plaintiffs in the instant case must be assumed to incorporate a factual determination that the plaintiffs’ efforts constituted the efficient cause of Katz’s syndication of the Chestnut Hill Towers *73project, as well as a finding that the plaintiffs’ agreement with the defendants entitled the plaintiffs to a commission for the services performed. Thus, the verdict must be upheld if “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff [s].” Boyle v. Wenk, 378 Mass. 592, 593 (1979), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). Accord Chase v. Roy, 363 Mass. 402, 404 (1973). The jurors, conscientiously exercising their responsibilities as fact finders, could reasonably conclude on the basis of record evidence that the plaintiffs earned a commission through efforts culminating in a syndication yielding the $3,000,000 profit desired by the defendants.

The court concedes that “[t]he jury could have found . . . that Carabetta was indifferent whether he received the $3,000,000 profit from a sale or a syndication of the project.” Ante at 65-66. Carabetta summed up his outlook on the transaction when he stated at trial that “[t]he American dollar is all [the defendants were] interested in.” The court asserts that “it does not follow” from Carabetta’s disinterest in the form of the transaction that he authorized the plaintiffs to seek out syndicators. Ante at 66. the question whether it “followed” from this evidence that Carabetta agreed to pay a commission to the plaintiffs if they procured a syndicator is within the realm of reasonable inferences a jury should be permitted to make. I am unable to discern why the jury should be precluded from considering Carabetta’s indifference to the form of the transaction as persuasive evidence in support of the plaintiffs’ claim that, though Carabetta originally hired them to find a buyer (as opposed to a syndicator), he subsequently waived the syndicator restriction.

It is undisputed that, at a January 27,1977, meeting arranged by the plaintiffs, Fiondella, Carabetta’s agent, was introduced to Katz, the eventual syndicator of the defendants’ property. According to Bonin, when Katz, in the course of the meeting, proposed a syndication, Fiondella protested that he (Fiondella) was not there to discuss a syndication. Bonin stated that Fiondella nonetheless remained at the meeting, provided Katz with *74financial information, exchanged business cards, and left open the possibility of a deal. Carabetta acknowledged that a broker who put him in contact with a syndicator capable of producing the target profit after it became apparent that Carabetta’s regular syndicators were not succeeding in putting together a syndication deal would be performing “a valuable service.” The court offers no explanation why the jury could not rationally infer that, when it became evident that the plaintiffs ’ clients included a syndicator interested in consummating a transaction on Carabetta’s terms, the defendants elected to deal with the plaintiffs as a source of syndicators as well as prospective purchasers.

Bonin stated that Katz called her on the evening of January 27 to express his enthusiasm for the Chestnut Hill Towers project. Bonin encouraged Katz to pursue a deal with Carabetta, telling Katz that “[y]ou ought to put all your eggs in this basket because this is the best project you are going to get.” The court admits that “the jury could have found that as early as the evening of January 27 . . . Bonin did not discourage [Katz] from considering the property in,terms of syndication.” Ante at 67. According to Bonin, she discussed the Chestnut Hill Towers project with Katz in the course of eight to ten subsequent conversations that took place through May 23, 1977. The jury could infer that Bonin not only alerted Katz to the existence of the Chestnut Hill property, “but that she furnished him with information about the project and attempted to keep him interested in it.” Bonin v. Chestnut Hill Towers Realty Co., 14 Mass. App. Ct. 63, 71 (1982). Further, as the court observes, “the jury could have found that Carabetta knew in January, 1977, that his own syndicators were not having success in moving the project, and . . . that the first contact between Katz and the defendants . . . occur[red] ... as early as April 1977.” Ante at 70.

On this evidence, it was permissible for the jury to conclude that the plaintiffs nourished Katz’s interest in the syndication, and that, as a direct result, Katz and the defendants began negotiations that culminated in a successful syndication. The court nonetheless nullifies the jury verdict for the plaintiffs, *75asserting that, on the evidence, the jury was precluded from finding that the plaintiffs’ recruitment of Katz as a syndicator was authorized by the defendants. The court agrees that evidence of such authorization “could have come, in this case, either by Carabetta’s express directions to Bonin at their meeting on April 16 at the construction site, or by the conduct of the defendants in entertaining nonbuyer prospects produced by Star,” ante at 67, but it minimizes or ignores all such evidence.

Bonin stated that, after receiving a letter from Fiondella in April, 1977, stating that the Chestnut Hill property was being taken off the market, she went to see Carabetta. According to Bonin, Carabetta told her that Fiondella was negotiating a syndication but authorized Bonin to continue seeking out prospects interested in the property.2 Explaining her understanding of the agreement reached in April, Bonin stated, “I was authorized to sell [the property], and that is what I was looking to do, even to sell it to people who would syndicate it.” Carabetta denied authorizing Bonin to seek out syndicators. The jury was under no obligation to believe Carabetta. Carabetta’s lawyer, who at one point was forced to point out to the judge that his client was testifying falsely under oath, described Carabetta to the jury as being “no prize” as a witness. In light of Bonin’s account of the extent of her authority in April, there was a factual issue for the jury.

Further evidence of a waiver of the syndication restriction was provided by Susan Allen, one of several Star brokers, who introduced Star clients to Carabetta. Allen testified that *76one such client, Roger Stem, “was interested in doing a syndication and having Mr. Carabetta remain as a general partner with Mr. Stem”; that in early April, 1977, Stem and Carabetta discussed Stem’s syndication proposal; and that Carabetta said that “he had to think about it.” The record thus clearly supports a finding that in April, 1977, Carabetta was prepared to consider syndication offers from Star clients. The court asserts that “[e]yen if the [Stem] offer had been an offer to syndicate in the commonly understood sense, it is doubtful if a finding of waiver could be based upon Carabetta’s statement that he would think about it, followed by his rejection of the offer.” Ante at 68. The court apparently concedes, however, that evidence of the defendants’ unconsummated negotiations in My, 1977, with Kosow and Simon, two prospective syndicators produced by Star, was sufficient to permit the jury to conclude that in that month the defendants broadened Star’s authority to include syndicators.3 Given Bonin’s statement about her authority in April, as well as the defendants’ April negotiations with Stem, I find perplexing the court’s conclusion that the jury was not free to draw a similar inference as to the extent of the plaintiffs’ authority in April.4

*77On May 23, 1977, at a time when the jury could have found that Katz was negotiating a syndication with the defendants, Katz gave Bonin the “bad news” that he had decided not to participate in any transaction involving the Chestnut Hill property. The jury should have been permitted to draw its own conclusions as to whether Katz and the defendants dealt secretly in order “to obtain, without payment, the benefit of the efforts for which [the plaintiffs] were employed.”5 Ante at 70.

The record indicates that the defendants hired the plaintiffs, that the defendants were indifferent to the means by which they obtained a $3,000,000 profit, that the plaintiffs expended considerable time and effort on the defendants’ behalf, that the plaintiffs brought Katz and the defendants together, that the defendants negotiated with other syndicators produced by the plaintiffs, and that the defendants obtained everything they wanted from a syndication reasonably attributable to the plaintiffs ’ efforts.6 In taking the jury verdict away from the plaintiffs, the court departs from the axiom that “[t]he law will not allow the owner of property ... to reap the fruits of [the] broker’s labor and then deny him his just reward.” O’Glee v. Trigg, 271 F. Supp. 121, 122 (E.D. Ark. 1967).

The evidence presented a question of fact as to whether the plaintiffs were authorized to seek out syndicators. Jurors saw the witnesses, and their judgment of the credibility of the witnesses, of the comparable strength of the conflicting evi*78dence, and of the factual validity of the contentions put forth by each side should be immune from attack.7 It is the jurors who decide questions of fact, and who apply the law to the facts, not judges. “[W]e have no authority to take upon ourselves the duties of a tribunal of fact, and to determine what verdicts should have been rendered by the jury.” Electric Welding Co. v. Prince, 200 Mass. 386, 392 (1909).

In discounting evidence on the basis of which the jury could properly have found facts supportive of the plaintiffs’ claim, the court negates the traditional division of functions between judge and jury. This “separation of the functions of court and jury . . . cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.” Commonwealth v. Canon, 373 Mass. 494, 515-516 (1977), quoting Sparf & Hansen v. United States, 156 U.S. 51, 106 (1895). The court is the ultimate guardian of the proper allocation of these duties; if the court does not act with restraint in reviewing the sufficiency of the evidence, it abuses its trust, with harmful consequences to the administration of justice and to community acceptance of the rule of law. That acceptance is rooted in the central role of the jury in our legal system. The court’s decision “trenches on our long-established, consistently applied, and zealously guarded line of demarcation between the respective roles, functions, and responsibilities of the judge and of the jury.” Commonwealth v. Dickerson, 372 Mass. 783, 802 (1977) (Quirico, J., concurring). The court’s decision deprives these plaintiffs of their right to have the facts decided by the jury and usurps the jury’s rightful role, thereby “diminishing the extent of citizen participation in the administration of justice and the many benefits which flow from such participation.” Commonwealth v. Canon, supra at 516 (Abrams, J., dissenting).

Because the facts support a conclusion that “[mjore than one decision was possible to honest and reasonable [persons], and, therefore, the jury was the tribunal to determine which one,” Hicks v. H.B. Church Truck Serv. Co., 259 Mass. 272, 277 (1927), I respectfully dissent.

The court correctly refuses to adopt the Appeals Court’s conclusion that a real estate broker is, as a matter of law, precluded from earning a commission in a syndication transaction. Because the court concludes that there was no evidence indicating that the defendants authorized the plaintiffs to seek out syndicators, it does not decide “what would constitute the ‘efficient cause’ entitling the broker to his commission in the case of an agreement between the owner and the broker that syndication of the property is the object.” Ante at note 8. Because, on my view of the evidence, the jury could have found that the plaintiffs produced Katz as a syndicator at a time when they were authorized to do so, I discuss the question whether a broker may be the efficient cause of a syndication. In my opinion, a broker who brings together an owner and a syndicator capable of producing $3,000,000 profit for the owner performs a service indistinguishable in practical effect from the service provided by a broker who matches the owner with a buyer willing to purchase the property at a price that will net the owner a $3,000,000 profit. An owner may, without legal or logical impediment, contract to pay a commission to a broker whose efforts produce a syndicator capable of effectuating a syndication on the owner’s terms; a broker who fulfils such a contract may be deemed the efficient cause of the syndication.

Because a broker’s services leading to a syndication of property resemble those performed by a broker hired to effectuate a sale or a lease, I see no reason to vary the standard of efficient causation applied in precedents involving sales and leases. See Holton v. Shepard, 291 Mass. 513, 516 (1935) (broker may be found to be efficient cause of transaction, provided broker produces customer prior to termination of broker’s employment, and that connection between broker’s efforts and transaction is causally unbroken); Stuarts. Valsom, 249 Mass. 149, 151 (1924). Cf. Siegel v. Lowe, 327 Mass. 154, 155 (1951) (to be efficient cause of transaction, broker “did not have to be present [when transaction consummated], or cognizant of it at the time, and its terms need not be the same as those given to the broker”).

The following statements were elicited from Carabetta with respect to the plaintiffs’ continued authority to seek out clients interested in a transaction involving the Chestnut Hill property:

Plaintiffs’ counsel: “You continued [in April, 1977] to have Mr. Fiondella see people that were brought by Star Realty brokers to the job; correct?”
The witness: “Yes, sir.”
Plaintiffs’ counsel: “Because you realized that they were still working for you, didn’t you?”
The witness: “Yes.”
Plaintiffs’ counsel: “And you wanted to pay them their fee earned — that brokerage fee; didn’t you?”
The witness: “Absolutely.”

The Appeals Court’s determination that Kosow’s and Simon’s proposals were limited to syndication on their own accounts, rather than on Carabetta’s account, 14 Mass. App. Ct. 63 , 70 (1982), is erroneous. Paragraph 9 of the plaintiffs’ exhibit 13, a proposal which, according to Bonin’s testimony, was dictated to her over the telephone by Kosow and subsequently transmitted to Carabetta, reads as follows: “Buyer will give investors of syndication approximately 50% of the equity. The remaining approximately 50% equity will be split 50/50 between the seller and the buyer.” The Kosow proposal thus indicates that Carabetta would remain a partner in the syndicated property, retaining a 25% interest in the equity.

In dismissing evidence from which the jury could infer a waiver in April of the original restriction on Star’s procurement of syndicators, the court places great emphasis on Bonin’s April 29 letter to Carabetta characterizing a cash buyer as “what we’ve been seeking.” Ante at 62. The court reads that letter as an acknowledgment by Bonin “that the restriction on syndication was still in effect.” Ante at 68. Although the jury could have adopted the gloss placed on the April 29 letter by the court, it was not required to do so; there is no inconsistency between Bonin’s statement that she had been seeking a cash buyer and her claim that, in April, she was also authorized to seek syndicators. Interpretation of the April 29 letter was a matter for the jury’s consideration in light of the other evidence presented.

As the Appeals Court noted, “Katz and Carabetta’s dealings with [Bonin] do not stand as a model of decency, wisdom and candor.” 14 Mass. App. Ct., supra at 75.

In fact, Carabetta may receive more from the syndication than he would from a straight sale. Carabetta testified as follows:

Plaintiffs’ counsel: “Now, Mr. Carabetta, is it fair to say that you will receive — by you I mean the owners of the equity — what’s transferred; you will receive at least three million dollars from this transaction?”
The witness: “Yes, sir.”
Plaintiffs’ counsel: “Can you tell us how much more than three million dollars would be a fair portion?”
The witness: “I think that’s three million, two hundred and fifty [thousand].”
Under the syndication agreement, Carabetta also retained a fifty per cent residual interest in the property.

I note that an experienced and able trial judge denied the defendant’s motion for judgment notwithstanding the verdict.