Harris v. Scarcelli (In Re Oak Knoll Associates, L.P.) ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2189
IN RE: OAK KNOLL ASSOCIATES, L.P.,
Debtor
ROBERT HARRIS,
Appellant,
v.
ROSA SCARCELLI and OAK KNOLL ASSOCIATES, L.P.,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
James F. Molleur, with whom Molleur Law Office was on brief,
for appellant.
Daniel L. Cummings, with whom Norman, Hanson & DeTroy, LLC
was on brief, for appellee Rosa Scarcelli.
August 19, 2016
HOWARD, Chief Judge. Appellant Robert Harris seeks to
recover a real estate broker's commission that he claims is owed
to him by Appellees Rosa Scarcelli and Oak Knoll Associates, L.P.
(collectively, "Oak Knoll"). Concluding on these facts that Oak
Knoll is not contractually obligated to pay Harris a commission
and that Harris has failed to identify a basis upon which he would
be entitled to equitable relief, we affirm the grant of summary
judgment in favor of Oak Knoll.
I. Background
Oak Knoll Associates, L.P., is a limited partnership
whose general partners at all relevant times consisted of Pamela
Gleichman and Rosa Scarcelli. This case began when the partnership
sought to sell some apartment buildings that it owned in Norwalk,
Connecticut. To that end, Oak Knoll enlisted the services of
Robert Harris, a real estate broker.
The parties accordingly entered into an agreement dated
May 16, 2011 ("the listing agreement"). The listing agreement was
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 First, Harris could earn a commission if the
property were to be sold during the six-month term of the listing
1 We reproduce the actual text of the listing agreement below,
where we also discuss the parties' dueling interpretations
thereof. For present purposes, we provide only a general summary
of the listing agreement.
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agreement. Second, Harris could earn a commission if an offer to
purchase or lease the property were to be accepted during the six-
month 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
automatically renewed until the conclusion of those negotiations.
A rider to the listing agreement, in turn, provided that Harris's
commission for selling the property would be 4.8 percent.
Harris subsequently located a potential buyer, Navarino
Capital Management, LLC ("Navarino"). On October 11, 2011,
Navarino and Oak Knoll executed a purchase and sale agreement
("2011 P&S"), whereby Navarino agreed to purchase the property
from Oak Knoll for $6,300,000. The deal gave Navarino 45 days to
inspect the property and allowed Navarino to terminate the deal
for a number of reasons not relevant for present purposes.
In November 2011, Navarino requested and received the
first in a series of extensions to the inspection period.
Navarino had discovered that the property was subject to a number
of restrictive covenants that Oak Knoll had agreed to at the behest
of the Connecticut Housing Finance Authority when Oak Knoll first
purchased the property in 1988. On February 24, 2012, Navarino
wrote to Oak Knoll, offering to purchase the property at a reduced
price in light of those covenants.
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Oak Knoll did not accept this revised offer. Instead,
intra-partnership disputes spilled into federal court: on February
28, 2012, Scarcelli sued Gleichman in United States District Court
for the District of Maine. Scarcelli obtained a default judgment
against Gleichman and the district court in turn issued a permanent
injunction in Scarcelli's favor. See Scarcelli v. Gleichman, No.
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. See id. at *4.
Harris, in turn, was kept apprised of these
developments. On June 25, 2012, Scarcelli's attorney emailed
Harris to inform him that Scarcelli would seek contempt sanctions
against Gleichman or any third party who -- knowing of the district
court's injunction -- acted in violation of that injunction. The
record is silent as to what transpired over the following months,
save for the fact that on November 13, 2012, Harris sent an invoice
to Gleichman demanding payment for his services, and some months
after that recorded a lien against the property for a broker's
commission.
The story picks up again on March 18, 2013, when the
partnership filed for Chapter 11 bankruptcy in United States
Bankruptcy Court for the District of Maine. Within days, Navarino
demanded the return of his escrow deposit from Oak Knoll. On April
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1, 2013, the partnership filed an application to retain Harris as
a real estate broker, and on June 18, 2013, Harris filed a proof
of claim for his brokerage services.2
Although the retention application had not yet been
approved, on August 21, 2013, the partnership's counsel sent Harris
an email telling Harris to "get us a contract for the $6,275,000."
That same day, Harris informed Navarino that Oak Knoll was amenable
to selling the property for that amount.
Then, on August 28, 2013, Scarcelli filed an objection
to the application to retain Harris. The bankruptcy court held a
hearing on the application on September 4, 2013. At the conclusion
thereof, the court granted the application, provided that Oak Knoll
file a revised proposed order reflecting certain changes. However,
such a proposed order was never filed and the bankruptcy court
thus never approved the retention application. In October 2013,
the partnership's counsel withdrew the still-pending retention
application with the court's approval. That same month, Navarino
and Oak Knoll Associates executed a new purchase and sale
agreement. This second agreement eventually resulted in the
successful sale of Oak Knoll's apartment buildings.
But although Navarino got the property and Oak Knoll got
its money, Harris received nothing for his efforts. Oak Knoll
2Oak Knoll and Scarcelli each eventually filed objections to
the proof of claim.
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never paid him. Unsurprisingly, Harris pursued claims against
both the partnership and Scarcelli in federal bankruptcy court,
seeking the commission that he believed he was owed. 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. Following oral argument, the
bankruptcy court granted the motion and denied Harris's claims.
The bankruptcy court's decision, in turn, was appealed
to United States District Court for the District of Maine, which
affirmed the grant of summary of judgment. This appeal timely
followed.
II. Standard of Review
"[T]he legal standards traditionally applicable to
motions for summary judgment apply [] without change in bankruptcy
proceedings." Daniels v. Agin, 736 F.3d 70, 78 (1st Cir. 2013).
Thus, summary judgment is proper "if no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law." Soto-Rios v. Banco Popular de P.R., 662 F.3d 112,
115 (1st Cir. 2011). The evidence, of course, must be viewed in
the light most favorable to the nonmoving party (in this case
Harris) and all reasonable inferences must be taken in that party's
favor. See In re Varrasso, 37 F.3d 760, 763 (1st Cir. 1994).
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We review, in turn, a bankruptcy court's grant of summary
judgment de novo. See Soto-Rios, 662 F.3d at 115.3 And although
the bankruptcy court's decision was first reviewed by the district
court, we review the bankruptcy court's decision as if on a clean
slate. See id.
III. Discussion
In seeking to recover his unpaid commission, Harris
invokes two provisions of the Bankruptcy Code.4 First, he cites
11 U.S.C. § 501, arguing that he is owed a commission under the
terms of his contract with Oak Knoll. Second, Harris argues that
he is entitled to it as a form of equitable relief under 11 U.S.C.
§ 105(a). We consider each theory of recovery in turn, explaining
why each one fails as a matter of law in light of the undisputed
facts of this case.
3 There may be some tension within our cases as to whether we
defer to a bankruptcy court's findings of fact when reviewing its
grant of summary judgment. Compare In re Moultonborough Hotel
Group, LLC, 726 F.3d 1, 4 (1st Cir. 2013) (reviewing questions of
law de novo and findings of fact for clear error) with Stoehr v.
Mohammed, 244 F.3d 206, 207-08 (1st Cir. 2001) (per curiam)
(applying de novo review to questions of law and to findings of
fact). It is, however, presently unnecessary to reconcile these
cases, as Harris's claims fail under either standard of review.
4 Harris also sought payment pursuant to 11 U.S.C. § 503.
However, he abandoned this theory of recovery on appeal and we
therefore do not consider it.
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A. Proof of Claim
Harris filed a proof of claim for his unpaid commission
pursuant to 11 U.S.C. § 501. The Bankruptcy Code, in turn,
provides that when, as here, a party objects to such a claim, the
bankruptcy court is to hold a hearing, and must thereafter allow
the claim unless (in addition to other exceptions not presently
relevant) the claim "is unenforceable against the debtor and
property of the debtor, under any agreement or applicable law for
a reason other than because such claim is contingent or
unmatured. . . ." Id. § 502(b)(1). The ultimate validity of such
a claim is determined with reference to state law. 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 . . . ."). Here, the parties agree that we must look to
Connecticut law to determine whether Harris is entitled to his
commission.
In Connecticut, a broker's right "to recover a
commission depends upon the terms of [his] employment contract
with the seller." Revere Real Estate, Inc. v. Cerato, 438 A.2d
1202, 1204 (Conn. 1982). Thus, while a broker can earn a
commission merely by procuring a ready, willing, and able buyer,
see Menard v. Coronet Motel, Inc., 207 A.2d 378, 379 (Conn. 1965),
the parties can "make the broker's right to a commission dependent
on specific conditions, such as the consummation of the transaction
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and full performance of the sales contract." Revere Real Estate,
438 A.2d at 1205.
With this in mind, we turn to the listing agreement,
which provides, in relevant part, as follows5:
In order protect AGENT should the property known as Oak
Knoll Apartments . . . (the "PROPERTY") is sold within
six (6) months from the date hereof, to sell the property
for $7,000,000.00 or any such price as the OWNER may
subsequently agree upon, agree to pay AGENT the
commission set forth below. All parties to this
agreement also agree that all communications and
agreements, whether written oral, will be transmitted
through AGENT.
OWNER agrees that if the property is sold during the
term of this Agreement to a Purchaser, procured by Agent
during the term of this Agreement as outlined above,
OWNER will pay AGENT a commission per Schedule A
attached. 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.
The commission shall be due and payable by certified
check in full upon the closing of title (or lease
execution). If, during the term hereof, or within six
(6) months from the termination of this Agreement,
should there be an acceptance of an offer to
purchase/lease from the PURCHASER, OWNER agrees to pay
the AGENT a commission as per this AGREEMENT.
This Agreement shall become effective immediately and
shall remain in effect six (6) months from the date
hereof.
Harris zeroes in on two provisions of the listing agreement.
First, he points out that it obligates Oak Knoll to pay him "should
5 With the exception of the property's address, we have
otherwise reproduced the relevant portion of the listing agreement
verbatim, with its warts and all.
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there be acceptance of an offer," and asserts that he was owed a
commission when an offer to purchase the apartments was accepted
back in October 2011. Second, he asserts that the listing
agreement's automatic extension provision (i.e., in the event of
continued negotiations) kept the listing agreement alive such that
he earned a commission based on the eventual sale of the property
to Navarino. We examine his arguments seriatim, explaining why
neither is persuasive.
1. Acceptance of an Offer
As stated, the listing agreement obligates Oak Knoll to
pay Harris a commission "should there be acceptance of an offer"
during the term of the listing agreement or within six months of
its termination. The parties don't appear to dispute that there
was acceptance of an offer to purchase the property in October
2011, within the effective term of the listing agreement. Harris
accordingly argues that he was owed a commission as of that date,
because (in his telling) the listing agreement requires Oak Knoll
to pay him upon the mere acceptance of an offer, regardless of
whether this results in a sale. Oak Knoll counters that the
listing agreement requires that a sale actually occur in order for
Harris to earn his commission. Thus, succinctly put, our task is
to interpret the contract (using Connecticut law) to determine
whether Oak Knoll's obligation to pay Harris is predicated on the
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sale of the property. See In re Advanced Cellular Sys's., Inc.,
483 F.3d 7, 13-14 (1st Cir. 2007).
Although the listing agreement is hardly an exemplar of
draftsmanship, we nonetheless think it unambiguous. 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 That is, the language of the
contract leaves no doubt that the parties intended that a sale
take place in order for Harris to earn his commission.
We acknowledge, of course, that in Connecticut, a court
has "no right to add a new term to a contract." Williams v.
Lilley, 34 A. 765, 768 (Conn. 1895). We have not done so here.
While the acceptance-of-an-offer provision does not explicitly
6 Indeed, other courts -- when interpreting contracts under
Connecticut law -- have found that typographical errors and the
like do not necessarily render those contracts ambiguous. See,
e.g., United Aluminum Corp. v. Boc Grp., Inc., No. 08-CV-977 (JCH),
2009 WL 2589486, at *6-7, *7 n.5 (D. Conn. Aug. 21, 2009) (finding
contract unambiguous despite the presence of "typographical
error[s]" or mistakes produced by "inattentive drafting"). And so
too here. The many such errors in the listing agreement may
produce frustration on the part of the reader, but they do not
produce ambiguity so as to stave off summary judgment.
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state that an accepted offer must result in a sale, the text of
the listing agreement nevertheless indicates that this is
precisely what must happen if Harris is to earn his commission.
For starters, the acceptance-of-an-offer provision is qualified by
important language: that Oak Knoll "agrees to pay the AGENT a
commission as per this AGREEMENT." The last four words dictate
that we read this provision consistent with the contract as a
whole. And indeed, the sale requirement is unambiguously reflected
in the contract. Cf. Ramirez, 938 A.2d at 587 (explaining that
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 "Non-
Exclusive Agency Sale Agreement." Cf. Bialowans v. Minor, 550
A.2d 637, 639-40 (Conn. 1988) (holding, in the context of
interpreting contract language, that a section heading delimited
the scope of language appearing under said heading). Similarly,
the first sentence of the quoted portion of the listing agreement
provides:
In order protect AGENT should the property known as Oak
Knoll Apartments . . . (the "PROPERTY") is sold within
six (6) months from the date hereof, to sell the property
for $7,000,000.00 or any such price as the OWNER may
subsequently agree upon, agree to pay AGENT the
commission set forth below.
The drafting errors do not obscure the critical point: this
sentence announces the general purpose of the listing agreement
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(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. Cf. Dist. of Columbia v. Heller, 554 U.S.
570, 577 (2008) ("Logic demands that there be a link between the
stated purpose and the command."). And by thus linking the
protection of Harris's interests, the sale of the property, and
Oak Knoll's obligation to pay Harris a commission, the listing
agreement indicates that a sale must take place in order for Harris
to earn his commission.
Other features of the listing agreement support this
conclusion. The second-quoted paragraph of the listing agreement
conditions payment of Harris's commission on the property being
"sold" during the term of the listing agreement. The third-quoted
paragraph of the listing agreement provides that the commission
"shall be due and payable . . . upon closing of title." Similarly,
Schedule A states (under the heading of "Sale Commissions") that
"[t]he commission for selling the property shall be [] 4.8%."7 All
told, these repeated references to the sale of the property confirm
7 As the listing agreement expressly referenced Schedule A,
and the parties were undoubtedly aware of that document's terms,
we may properly consider it as having been incorporated into the
listing agreement. See, e.g., Allstate Life Ins. Co. v. BFA Ltd.
P'ship, 948 A.2d 318, 324 (Conn. 2008).
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that the parties intended to make Harris's commission contingent
on the sale of the property.
Finally (and critically), reading the listing agreement
as not requiring a sale (as Harris would have us do) would render
the first and second-quoted paragraphs of the listing agreement
superfluous, thereby contravening well-settled Connecticut law.
See Ramirez, 938 A.2d at 586 ("The law of contract interpretation
militates against interpreting a contract in a way that renders a
provision superfluous." (internal citations omitted)). That is,
Harris maintains that the listing agreement obligates Oak Knoll to
pay him if an offer is accepted, regardless of whether a sale
ultimately occurs. The listing agreement, however, is crystal-
clear that Oak Knoll must pay Harris a commission if the property
"is sold." It is axiomatic that a sale is preceded by acceptance
of an offer; as Harris concedes, the former necessarily entails
the latter. Cf. Norfolk & W. Ry. Co. v. Sims, 191 U.S. 441, 447
(1903). Consequently, if acceptance of an offer were all that
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,
we do not believe that the listing agreement is susceptible to two
reasonable interpretations and that Oak Knoll merely offers a
better reading than Harris. Cf. Cruz v. Visual Perceptions, LLC,
84 A.3d 828, 835 (Conn. 2014) ("If the language of the contract is
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susceptible to more than one reasonable interpretation, the
contract is ambiguous."). Rather, we believe that Harris's
interpretation of the listing agreement is untenable, failing to
"give operative effect to every provision in order to reach a
reasonable overall result." R.T. Vanderbilt Co., Inc. v. Cont'l
Cas. Co., 870 A.2d 1048, 1059 (Conn. 2005).8
The lily having been sufficiently gilded, the important
point is this: the listing agreement unambiguously requires that
a sale take place in order for Harris to earn his commission.9 The
8 Harris tries to flip this point on its head, arguing that
the foregoing interpretation of the listing agreement renders the
acceptance-of-an-offer provision superfluous. His argument is
without merit. The acceptance-of-an-offer provision as we have
construed it expands Harris's contractual rights in two respects:
First, it requires Oak Knoll to pay a commission if an offer
were to be accepted within the term of the listing agreement and
resulted in a sale, but the sale only closed after the listing
agreement's expiration, and no negotiations took place so as to
keep the listing agreement alive until the closing. In such a
case, Harris would not be entitled to a commission but for the
acceptance-of-an-offer provision.
Second, this provision enables Harris to claim a commission
if an offer were to be accepted (again, resulting in a sale) within
six months of the listing agreement's expiration and in the absence
of continued negotiations. And once more, in such a scenario,
Harris's only route to a commission would be through the
acceptance-of-an-offer provision.
Thus, our interpretation of the listing agreement does not
render the acceptance-of-an-offer provision superfluous.
9 Accordingly, it does not matter whether Navarino was a
ready, willing, and able buyer, as Oak Knoll was not obligated to
pay Harris unless a sale actually happened. Harris similarly
argues that the bankruptcy court erred in finding that Oak Knoll
was not responsible for the failure of the 2011 P&S. However, our
conclusion that the listing agreement requires a sale may make it
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bankruptcy court thus correctly determined that Harris was not
entitled to his commission based on the acceptance of an offer in
2011.
2. Continued Negotiations
Oak Knoll and Harris also agreed that the listing
agreement would be automatically renewed in the event of continued
negotiations. Harris maintains that such negotiations took place
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." Harris takes this to
mean that the listing agreement would not expire so long as
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.
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negotiations took place at least once every six months.10 Harris
claims, in turn, that he would be entitled to a commission if an
offer were to be accepted within twelve months of the last instance
of negotiations.11
Even assuming for the sake of argument that this is a
reasonable interpretation of the contract, see Cruz, 84 A.3d at
835, Oak Knoll is nonetheless entitled to summary judgment as there
is no evidence that an offer was accepted within twelve months of
the last instance of negotiations. Despite taking all reasonable
inferences in Harris's favor, the record contains no evidence of
any negotiations occurring between June 2012 and March 2013. In
fact, it is wholly silent on that point. Thus, under Harris's
proffered interpretation of the listing agreement, the
negotiations concluded at some point in June 2012 (i.e., as no
negotiations took place within six months of that date), and the
listing agreement expired in December 2012. There is, in turn, no
evidence that an offer was accepted within twelve months of June
2012. Thus, even under Harris's proposed interpretation of the
10
In other words, negotiations would be deemed to "continue"
unless there were a six-month gap in those negotiations.
11
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 acceptance-
of-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).
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contract, he cannot show that continued negotiations kept the
listing agreement alive such that he earned a commission.
In attempting to show otherwise, Harris points to an
exchange of emails in late March 2013. He also highlights an April
2, 2013 affidavit from Gleichman, in which she states that Harris
"recently" emailed her to say that "we have a deal for $6.0
period." And Harris further points out that he contacted Navarino
in August 2013. But again (and by Harris's own logic), the
negotiations rang down the curtain and joined the choir invisible
in June 2012, taking the listing agreement with them six months
later. And while the negotiations were eventually rekindled at
some point in 2013, Harris makes no argument that the already-
expired listing agreement could be similarly resuscitated. The
evidence cited by Harris is of no help to him.
Similarly, the evidence cited by Harris in no way
suggests that the parties were continuously negotiating within the
relevant timeframe: it does nothing to address the substantial gap
in the record. Accordingly, Harris hasn't pointed to "hard
evidence of a material factual dispute," and thus fails to stave
off summary judgment. Griggs-Ryan v. Smith, 904 F.2d 112, 115
(1st Cir. 1990); see also id. ("Evidence which is 'merely colorable
or is not significantly probative' will not preclude summary
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judgment." (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986)).12
B. Equitable Relief
This leaves us with Harris's claim for equitable relief.
Congress has given bankruptcy courts the authority to "issue any
order, process, or judgment that is necessary or appropriate to
carry out the provisions" of the Bankruptcy Code. 11 U.S.C. §
105(a). We have cautioned, however, that this does not give
bankruptcy courts "a roving writ, much less a free hand" to provide
equitable relief. In re Jamo, 283 F.3d 392, 403 (1st Cir. 2002).
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 right conferred elsewhere in the
Bankruptcy Code." Id. As the foregoing demonstrates, Harris was
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." Conn. Gen. Stat. § 20-
12Harris also relies on the bankruptcy court's statement that
"viewing the facts most favorably for Harris, [the negotiations]
stopped by March 2013." But as stated, there is no record evidence
of negotiations taking place between June 2012 and March 2013.
And neither Harris nor the bankruptcy court points to anything
that would suggest otherwise.
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325a(d). However, we need not address the merits of this argument
as it is doubly waived. First, having failed to present this
theory below, Harris may not do so for the first time on appeal.
His argument is kneecapped: unpreserved claims don't warrant our
review. See In re Woodman, 379 F.3d 1, 2 (1st Cir. 2004) (refusing
to review a party's argument in light of its "failure to advance
[it] before the bankruptcy court in the first instance"). Second,
the argument is insufficiently fleshed-out to merit our
consideration. That is, the statute cited by Harris allows for
equitable relief only when a broker has "substantially complied"
with the statute's formalities. See Conn. Gen. Stat. § 20-325a(d);
see also Location Realty, Inc. v. Colaccino, 949 A.2d 1189, 1203
(Conn. 2008) (substantial compliance with § 20-325a is the "sole
avenue to recovery that the [Connecticut] legislature chose to
provide in circumstances wherein the strict construction of § 20-
325a would lead to unfair results or unjust enrichment"). Harris,
however, makes no effort to argue that he so complied. As such,
this argument is waived. See Alicea v. Machete Music, 744 F.3d
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
In his reply brief, Harris fleetingly mentions his broker's
lien and 11 U.S.C. § 506 in conjunction with his equitable relief
claim. But we need not consider the merits of this undeveloped
argument for another reason altogether. "Contentions not advanced
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IV. Conclusion
Some may find this result unfair, particularly insofar
as the partnership filed an application to retain Harris's services
and asked Harris to communicate with Navarino (knowing that the
retention application had not yet been approved), only to withdraw
the pending application after Harris did so. And some may be
especially troubled by Oak Knoll's conduct given the bankruptcy
court's conclusion that the partnership was in a position to make
"a 100% payment to all creditors, with money left over to pay out
to [the partnership's] insiders." We are not, however, asked to
decide whether Oak Knoll is deserving of opprobrium, but whether
Oak Knoll was entitled to summary judgment. And for the reasons
stated, we hold that it was.
AFFIRMED.
in an appellant's opening brief are deemed waived." DeCaro v.
Hasbro, Inc., 580 F.3d 55, 64 (1st Cir. 2009). And so it is here.
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