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24919 - Darby v. the Furman Co.

Shearouse Adv. Sh. No. 11
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



Gwendolyn N. Darby, Petitioner,

v.

The Furman Company,

Inc., Respondent.



ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Greenville County

Marc H. Westbrook, Circuit Court Judge



Opinion No. 24919

Heard November 18, 1998 - Filed March 15, 1999



REVERSED



Sally G. Calhoun, of Beaufort, for petitioner.





Larry D. Estridge, of Wyche, Burgess, Freeman and

Parham, of Greenville, for respondent.





TOAL, A.J.: This matter is before the Court on a writ of certiorari

to review the Court of Appeals' decision in Darby v. The Furman Co., No. 97-

UP-241 (S.C. Ct. App. filed April 4, 1997). The case involves a breach of

fiduciary duty claim against a real estate broker. The Court of Appeals

p.13


DARBY V. THE FURMAN CO.





remanded for further factual findings. We reverse.





FACTUAL/PROCEDURAL BACKGROUND



Petitioner Gwendolyn N. Darby ("Darby") owned a large tract of land in

Greenville County. In 1987, Darby contacted respondent Furman Company,

Inc. ("Furman") and spoke with its agent, Bill Fogleman ("Fogleman"). Darby

expressed interest in selling 53 acres of her Greenville County property and

signed an "Exclusive Right to Sell" contract on May 5, 1987. In that contract,

Darby agreed to pay a $500 per acre real estate commission. .





Fogleman produced Yarborough Real Estate Development Company

("Yarborough") as a potential purchaser. Yarborough planned to develop the

property into a new housing subdivision. Darby signed a Contract of Purchase

and Sale with Yarborough on May 15, 1987. Under the terms of that contract,

a purchase money note add mortgage provided most of the purchase price. The

contract required Darby to subordinate her security interest to the buyer's

anticipated development financing. Their agreement placed no cap on the

amount to which Darby's interest could be subordinated.





After Darby signed the purchase contract in May, agent Fogleman and his

wifejoined purchaser Yarborough and another real estate developer in forming

Squires Creek Partnership ("Squires Creek"). Yarborough then transferred its

interest in the real estate sales contract to Squires Creek. Squires Creek closed

the sale of the -property with Darby in December of that year. The trial

produced conflicting testimony as to the extent Fogleman revealed to Darby his

partnership interest with Squires Creek. Fogleman claims that he fully

disclosed his interests to Darby. Darby maintains that she was unaware of the

nature and extent of Fogleman's involvement with the purchaser. Fogleman

did testify that he never put into writing any disclosure to Darby.







Squires Creek obtained more than $1.2 million in development financing

for the project. The development project failed and the construction lender

foreclosed on the property. Not only did Darby lose her land, but the foreclosure

action eliminated her purchase money note and mortgage. Darby obtained a

judgment against Squires Creek for the value then owing on its promissory note

plus interest ($315,056.45). The Foglemans, who paid $30,000, are the only

ones to have made a payment on this award. Darby has also sued and reached

a confidential settlement with the attorney who advised her on the contract.

p.14


DARBY V. THE FURMAN CO.





In the present case, Darby sued Furman on a theory of vicarious liability

for Fogleman's breach of fiduciary duty and fraud. She sought the total amount

to satisfy her earlier judgment along with the return of $26,500 in commission

fees she paid to Furman, The trial court judge heard the case without a jury

and found that Darby's breach of fiduciary duty claim was the equivalent of a

claim for constructive fraud. The judge found that Darby failed to prove the

reliance element of her cause of action and then dismissed her claim with

prejudice. Darby alleged on appeal that the trial court: (1) abused its discretion

in denying her motion to transfer the case to the jury roster; (2) erred in

granting Furman a directed verdict on the fraud claim; (3) erred in finding for

Furman on her breach of fiduciary duty claim; and (4) ruled improperly on her

damages.







The Court of Appeals affirmed the trial court on all the issues except the

return of the real estate commission and remanded that issue to the trial court

for further findings. Darby then petitioned this Court for a writ of certiorari

that was granted on the following issue:



Are real estate brokers allowed to retain a sales commission when

they become the purchaser of the property?





LAW/ANALYSIS



Darby argues that Furman must disgorge the real estate sales

commission because Fogleman failed to satisfy his fiduciary obligations when

he became the purchaser of the property. We agree. Real estate agents occupy

a fiduciary relationship with their clients and are, under a legal obligation as

well as a high moral duty to give loyal service to the principal. Hamby v. St.

Paul Mercury Indemn. Co., 217 F.2d 78, 80 (4th Cir. 1954). The duty of an agent

to make full disclosure to his principal of all material facts relevant to the

agency is fundamental to the fiduciary relationship of principal and agent. Bost

v. Bankers Fire & Marine Ins. Co., 242 S.C. 274, 283, 130 S.E.2d 907, 911-12

(1963); see also Designer Showrooms, Inc. v. Kelley, 304 S.C. 478,405 S.E.2d 417

(Ct. App. 1991)("A broker owes a duty to its principal to keep it fully and

properly informed of all material facts.").1


1 Commentators have even referred to the broker's duty of disclosure as

"Perhaps the most important fiduciary duty the broker owes to the principal.

. ." Paula C. Murray, The Real Estate Broker and the Buyer: Negligence and the

Duty to Investigate, 32 Vill. L. Rev. 939, 944 (1987).

p.15


DARBY V. THE FURMAN CO.





In South Carolina, a person cannot be both the seller's agent and the

purchaser of the property without an inherent conflict. Pollitzer v. Long, 295

S.C. 28, 30, 367 S.E.2d 18, 20 (1988); see also Designer Showrooms, Inc. v.

Kelley, 304 S.C. 478,405 S.E.2d 417 (Ct. App. 1991)("There is a repugnancy of

one serving as both broker for a principal and purchaser for that same

principal."). By becoming a member of the entity with an outstanding offer to

purchase the property of his principal, Fogleman abandoned his position as an

agent to sell and became a purchaser of the property. In order to complete the

transaction and keep any commission for the sale, Fogleman's fiduciary duty

required him to inform Darby of these material facts and obtain her express

permission to continue. See 12 Am. Jur. 2d Brokers § 120 (1997) ("Generally,

a broker can neither purchase from, nor sell to, his or her principal, unless the

later expressly consents or acquiesces to the transactions with full knowledge

of all the facts and circumstances.").2 Even though Darby could not maintain

a case for breach of fiduciary duty against Furman with regard to the overall

sale of the property, that does not mean Fogleman satisfied all his fiduciary

duties and earned the commission.





When selling to himself, a real estate broker fails to satisfy his fiduciary

duty to disclose all material facts to the principal if the broker fails to secure an

agreement from the seller acknowledging both his change in position along with

the seller's right to refuse the commission's payment. See 12 Am. Jur. 2d

Brokers § 120 (1997); cf Designer Showrooms, Inc. v. Kelley, 304 S.C. 478) 405

S.E.2d 417 (Ct. App. 1991) (holding that a broker was not entitled to the sales

commission where he secretly sold the property to himself because he breached

a fiduciary duty and had ceased to act as the seller's agent). This disclosure

requirement is intended to satisfy the strict fiduciary requirements placed on

an agent when the agent becomes the purchaser of the principal's property. See

Am Jur. 2d Brokers § 118 (1997).





When selling to himself, a broker must meet the extremely high

standards of his fiduciary obligation as well as carry the burden of proof to show


2 For real estate brokers, this duty is codified at S.C. Code of Regulations

R. 105-20 that requires: "No broker or salesman shall either directly or

indirectly buy for himself or for a corporation or any other business in which he

holds an interest or for a close relative, property listed with him or property for

which he has been approached by the seller or prospective buyer to act as

broker, without first making his true position clearly known to all parties

involved." (emphasis added).

p.16


DARBY V. THE FURMAN CO.





full disclosure of his position to the principal. In a situation where the agent is

on both sides of a transaction, the broker can only meet these responsibilities

by obtaining an agreement of at least the same formality as the initial

agreement creating the agency relationship. Cf S.C. Code Ann. § 40-57-137(M)

(Supp. 1998)("A [real estate broker] may act as a disclosed dual agent only with

the prior informed and written consent of all parties.").3





In the present case Darby and Furman had a written agency agreement.

Thus, in order to claim the commission, Fogleman and Furman would have to

produce a written agreement signed by Darby acknowledging Fogleman as a

member of Squires Creek and recognizing Darby's right to chose not to pay the

commission. Oral explanations by Fogleman fully disclosing his position in

Squires Creek would be insufficient to secure the commission. Fogleman

admits he did not make any disclosure or obtain a waiver in writing. Darby is

therefore entitled to recover the commission.







CONCLUSION



Based on the foregoing, the decision of the Court of Appeals is



REVERSED.



FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ-, concur.


3 While not in effect at the time this dispute arose, this section governs

real estate brokers acting as a "dual agent" in transactions. Here, Fogleman

had an even greater conflict than mere dual agency, he became part of the

purchaser of the property.

p.17