Summary
The Nebraska Supreme Court affirmed summary judgment against Choice Homes, LLC in claims arising from failed real estate purchase agreements and an online review. The court held that the Nebraska Real Estate License Act barred Choice’s nondefamation claims because it sought compensation for prohibited real estate brokerage activities without a license. The court also held that the review contained true factual statements and protected opinions that did not support a defamation claim.
Topics
Practice areas
Questions Presented
- Whether the Nebraska Real Estate License Act barred Choice Homes' nondefamation claims because Choice, while unlicensed, performed acts constituting real-estate brokerage for compensation or consideration.
- Whether the Act's owner exception applied to Choice's prohibited acts involving property in which it briefly held equitable title.
- Whether the court needed to reach Choice's alternative arguments that it could prove the elements of its contract, implied-covenant, and tortious-interference claims.
- Whether Donner's online review stated or implied a provably false statement of fact actionable as defamation.
Holdings
- The Act barred Choice Homes' claims seeking compensation because Choice, while unlicensed, performed prohibited real-estate brokerage acts for the owners and buyers with the expectation of receiving compensation or consideration.
- The Nebraska Real Estate License Act does not require compensation to be paid through a commission fee in a purchase agreement; an expected resale profit may constitute compensation or consideration under the Act.
- The owner exception in Neb. Rev. Stat. § 81-885.04(1) did not protect Choice because it applied only to prohibited acts performed while Choice owned the property, not to acts performed before or after its brief period of equitable ownership.
- The court did not need to address whether Choice could prove the elements of its breach-of-contract, implied-covenant, or tortious-interference claims because the Act independently barred those claims.
- The review did not state or imply a provably false statement of fact and therefore was not actionable defamation.
Key quotations
“The Act does not mandate that a person be compensated in a specific manner such as through a commission fee in a purchase agreement.” (311 Neb. at 853)
“To distinguish fact from opinion in a defamation claim, courts apply a totality of the circumstances test.” (311 Neb. at 858)
“We find Donner did not state or imply any false statements of fact in the review.” (311 Neb. at 861)
Factual background
Choice Homes, whose employees were not licensed real-estate brokers or salespersons, entered into agreements to buy a property from the owners for $750,000 and resell it to Heidi Donner and Jeffrey Jackson for $1.3 million, expecting a $620,000 profit. Choice showed the property to the buyers, procured them as prospective purchasers, negotiated aspects of the transaction, and represented that prior erosion problems had been resolved, but the buyers refused to close and later bought the property directly from the owners. Afterward, Donner posted a negative Google review concerning Jason Gillman and Choice Homes, and Choice sued her for transaction-related claims and defamation.
Procedural history
Choice Homes sued Donner for fraud, tortious interference with a business expectation, breach of contract, breach of the implied covenant of good faith, unjust enrichment, and defamation arising from failed real-estate purchase agreements and an online review. The district court granted Donner's motion for partial summary judgment, concluding that the Nebraska Real Estate License Act barred the nondefamation claims and that the review was not defamatory; Donner later voluntarily dismissed her counterclaims. Choice Homes timely appealed.