Demming v. Underwood - 943 N.E.2d 878 (Ind. Ct. App. 2011)

Rule:

Summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C).

Facts:

Plaintiff Sheree Demming is a real estate investor acquiring properties for remodeling, renovation, leasing, and sale. The plaintiff who has never held a realtor's license, engaged defendant Cheryl Underwood, professional services as a realtor to buy and sell properties on multiple occasions. During this time, the plaintiff routinely discussed her real estate investment strategy with the defendant, including her plans to acquire multiple properties within a target zone near the university campus. On one occasion, the plaintiff wanted to purchase properties that were not for sale, but she instructed the defendant to stay on it should the owner change her mind about selling it. True enough, the owner did change her mind, but the defendant did not tell this instance to the plaintiff.  Instead, defendants Underwood and Kinney tendered their written offer to purchase the properties. They told the plaintiff about the purchase when they met her the next day. Plaintiff then filed a suit against the defendants asserting claims for breach of fiduciary duty and constructive fraud. Plaintiff also requested the imposition of a constructive trust compelling the defendants to convey the title of the Properties to her. Defendants moved for summary judgment which the trial court granted.

Issue:

Did the trial court err in granting the defendant’s summary judgment? 

Answer:

Yes. Summary judgment reversed. Case remanded for further proceedings.

Conclusion:

The court held that in action for breach of fiduciary duty and constructive fraud, triable issues existed as to whether a realtor was an investor's agent when the realtor bought for herself properties in which the investor was interested. A finding of the agency was not precluded under Ind. Code § 25-34.1-10-9.5 by the fact that the properties were not listed for sale at the time the realtor contacted the property manager or by the fact that the realtor, who was to receive a commission of seven percent of the purchase price at closing, was prevented from being compensated by her action.