Mullin v. Hyatt Residential Group, Inc. et al
AMENDED ORDER denying 27 Defendants' Motion for Summary Judgment. By Judge William J. Martinez on 3/10/2015. [Order is amended to correct citation] (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2348-WJM-NYW
HYATT RESIDENTIAL GROUP, INC., a Delaware corporation f/k/a HYATT VACATION
OWNERSHIP, INC., and
HYATT RESIDENTIAL MARKETING CORPORATION, a Florida corporation,
AMENDED ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiff Ian Mullin brings this action against Defendants Hyatt Residential Group,
Inc. and Hyatt Residential Marketing Corporation for wrongful discharge in violation of
public policy. (ECF No. 22.) This matter is before the Court on Defendants’ Motion for
Summary Judgment. (ECF No. 27.) For the reasons set forth below, the Motion is
The following relevant facts are undisputed, unless otherwise noted. The Hyatt
Grand Aspen (“HGA”) is a luxury condominium resort owned by Grand Aspen Holdings,
LLC, a four-member limited liability corporation (“the Ownership Group”). (ECF No. 27
at 3-4.) In 2004, Defendants contracted with the Ownership Group to act as its
marketing and sales agent for fractional interval ownership interests, commonly referred
to as timeshares, at HGA. (Id. at 4.) In June 2010, Plaintiff, a licensed Colorado real
estate broker, was hired by Defendants to act as the director of sales and marketing for
timeshares at HGA. (Id. at 3-4.) When Plaintiff received a timeshare purchase offer,
he would communicate that offer to his direct supervisor, Steven Craig. (Id. at 4-5.) Mr.
Craig would then forward the offer to Larry Shulman, Defendants’ vice president of
sales and marketing, who would review the offer. (Id.) It was Plaintiff’s understanding
that Defendants, through Mr. Craig or Mr. Shulman, would then provide the purchase
offers to the Ownership Group for consideration. (Id. at 5.)
Plaintiff asserts that, as a licensed real estate broker, he had a statutory duty to
ensure that all purchase offers were disclosed to the Ownership Group as the owner
and seller of HGA timeshares. (ECF No. 30 at 13.) However, in July 2011, Plaintiff
became concerned that the purchase offers he conveyed to Defendants were not being
provided to the Ownership Group. (ECF No. 27 at 5.) Based on these concerns, on
July 6, 2011 Plaintiff sent an email to Curtis Kaufman, who Plaintiff believed was part of
the Ownership Group, which included HGA pricing information, and discounts and
incentives provided to buyers for specific timeshare units. (Id. at 6.) The following
week, Plaintiff authorized an employee of Defendants, Holly Upper, to forward similar emails to Mr. Kaufman regarding the pricing and incentives offered on HGA units. (ECF
No. 30 at 13-14.) On July 20, 2011, Plaintiff attended a meeting with Mr. Kaufman and
another Ownership Group representative, David Parker, during which Plaintiff
addressed the concerns that certain offers were not being communicated to the
Ownership Group, and disclosed offers he suspected had been withheld. (Id. at 14.) At
the meeting, Plaintiff discovered that many of the purchase offers that he had received
and conveyed to Mr. Craig were not subsequently conveyed to the Ownership Group.
(Id.) Defendants admit that some of the purchase offers were not forwarded to the
Ownership Group. (ECF No. 27 at 5.)
Defendants terminated Plaintiff’s employment on August 18, 2011. (Id. at 8.)
Defendants assert that they reached the decision to terminate Plaintiff due to concerns
about Plaintiff’s loyalty to Defendants, his alleged poor job performance, and Plaintiff’s
having authorized Ms. Upper to e-mail the HGA pricing information to Mr. Kaufman,
which was viewed as an unauthorized disclosure of proprietary information. (Id.)
However, Plaintiff alleges that he was terminated for communicating the withheld
purchase offers to the Ownership Group, as he was required to do as a licensed real
estate broker. (ECF No. 22.)
On August 9, 2013, Plaintiff filed this action in the District of Colorado, Pitkin
County, and on August 30, 2013, Defendants removed the action to this Court. (ECF
No. 1.) Plaintiff’s Amended Complaint alleges wrongful termination in violation of public
policy against Defendants, along with a claim for exemplary damages. (ECF No. 22.)
On May 29, 2014, Defendants filed the instant Motion for Summary Judgment seeking
dismissal of Plaintiff’s Amended Complaint. (ECF No. 27.) Plaintiff filed a Response
(ECF No. 30), and Defendants filed a Reply (ECF No. 35).
II. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). W hether there is a genuine dispute
regarding a material fact depends upon whether the evidence presents a sufficient
disagreement as to require submission to a jury or, conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense, and a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
The Court must examine the facts in the light most favorable to the nonmoving party,
and resolve factual ambiguities against the moving party. Houston v. Nat’l Gen. Ins.
Co., 817 F.2d 83, 85 (10th Cir. 1987). The summary judgment standard thus favors a
right to trial. See id.
Defendants assert that Plaintiff cannot satisfy the necessary elements of
wrongful termination in violation of public policy. (ECF No. 27.) Specifically,
Defendants allege that (1) the real estate brokerage statutes on which Plaintiff relies
are not a legitimate expression of public policy; (2) Plaintiff cannot prove that he owed a
statutory duty to the Ownership Group or its alleged representatives with whom Plaintiff
communicated; and (3) Defendants terminated Plaintiff for valid reasons, and not
because Plaintiff engaged in any protected behavior, or refused to engage in any illegal,
fraudulent or unethical conduct. (See generally ECF Nos. 27 & 35.) The Court
discusses each issue below.
Wrongful Termination in Violation of Public Policy
Absent an express contract providing otherwise, Colorado law presumes that an
employment relationship is terminable at will by either party. Martin Marietta Corp. v.
Lorenz, 823 P.2d 100, 105 (Colo. 1992). However, termination of employment in
violation of public policy is a common law exception to the at-will presumption. Id. at 109.
An employee terminated for refusing to follow his employer’s directive to engage in
unethical or unlawful conduct could maintain a claim for wrongful discharge. Kearl v.
Portage Envtl., Inc., 205 P.3d 496, 498 (Colo. App. 2008). Additionally , an employee
terminated for engaging in conduct that is protected or encouraged as a matter of public
policy may also have a viable cause of action. Id. It is this latter theory on which Plaintiff
bases his claim for wrongful discharge in violation of public policy.1 (ECF No. 30 at 21.)
A plaintiff asserting wrongful discharge for exercising a job-related right must show
“ that he or she was employed by the defendant;  that the defendant discharged him
or her; and  that the defendant discharged him or her in retaliation for exercising a
job-related right or performing a specific statutory duty, or that the termination would
Defendants argue that Plaintiff cannot raise this theory of liability for the first time in
his Response to Defendant’s Motion. (ECF No. 35 at 11.) Defendants state that they “framed
their motion and submitted evidence based on [Plaintiff’s] specific allegations that he was
discharged for refusing to follow directives that violated public policy.” (Id. at 12.) However, in
Plaintiff’s Amended Complaint, the relevant cause of action against Defendants is simply titled
“Wrongful Termination in Violation of Public Policy.” (ECF No. 22 at 9.) Although the claim
does state that Plaintiff was terminated because he “refused to participate in [Defendants’]
illegal, unethical, and fraudulent conduct” in withholding prospective purchasers’ offers, Plaintiff
also alleges, in the alternative, that he was terminated “because he complied with his legal and
ethical duties as a real estate broker.” (Id. at 10.) Therefore, Plaintiff’s Amended Complaint
can be read to encompass both theories of liability that could arise in a wrongful discharge in
violation of public policy case, and Plaintiff may appropriately rely on the latter theory in
responding to Defendants’ Motion.
undermine a clearly expressed public policy.”2 Kearl, 205 P.3d at 499. Additionally, the
plaintiff must allege that the “public policy invoked truly impacts the public in order to
justify interference into an employer’s business decisions.” Id. (citing Crawford Rehab.
Serv., Inc. v. Weissman, 938 P.2d 540, 552 (Colo. 1997)) (quotation marks omitted).
Actions protected under the public policy exception are not confined to any one
category of behavior. Rather, wrongful discharge in violation of public policy “has been
variously described as an action that involves a matter that affects society at large
rather than a purely personal or proprietary interest of the plaintiff or employer, leads to
an outrageous result clearly inconsistent with a stated public policy, or strike[s] at the
heart of a citizen’s social rights, duties, and responsibilities.” Weissman, 938 P.2d at
552 (internal quotation marks and citations omitted). In short, an employer is not
permitted to fire an employee in contravention of an important public policy, and, as a
corollary, an employee should not be forced to choose between violating the law or
losing his job. Lorenz, 823 P.2d at 109.
Whether Plaintiff’s Claim Implicates Public Policy
Defendants assert that the real estate broker statutes on w hich Plaintiff relies
merely reflect a broker’s duties that arise from his private relationship with a seller of
real estate. (ECF No. 27 at 14.) Therefore, according to Defendants, any statutory
obligations imposed on real estate brokers only impact the seller involved in the
relevant transaction, not the general public. (Id.) The Court disagrees.
Defendants admit that they employed, and subsequently discharged, Plaintiff. (ECF
No. 27 at ¶¶ 1, 30-32.) Therefore, the Court need not make any findings with respect to the
first two elements.
Colorado’s real estate broker statutes emphasize the importance of consumer
protection and transparency in the purchase and sale of real estate. In 1993, the
Colorado General Assembly enacted “An Act Concerning Brokerage Relationships in
Real Estate Transactions”. Colo. Rev. Stat. §§ 12-61-801, et seq. (the “Act”). The
General Assembly’s legislative declaration concerning brokerage relationships provides
a clear statement of the Act’s statutory goals:
The general assembly finds, determines, and declares that the public will
best be served through a better understanding of the public's legal and
working relationships with real estate brokers and by being able to engage
any such real estate broker on terms and under conditions that the public
and the real estate broker find acceptable. This includes engaging a
broker as a single agent or transaction-broker. Individual members of the
public should not be exposed to liability for acts or omissions of real estate
brokers that have not been approved, directed, or ratified by such
individuals. Further, the public should be advised of the general duties,
obligations, and responsibilities of the real estate broker they engage.
Colo. Rev. Stat. § 12-61-801. Thus, the Act’s express purpose is to protect members of
the public in their dealings with real estate professionals.
Real estate brokers are heavily regulated, and many of the major provisions in
the Act focus on consumer protection. For example, all Colorado brokers are required
to be licensed. Colo. Rev. Stat. § 12-61-102. The licensure requirement serves to
safeguard the public against those unfit to serve as real estate professionals. Colorado
law states that “[n]o person shall be granted a license until such person establishes
compliance with the provisions of this [section] concerning education, experience, and
testing; truthfulness and honesty and otherwise good moral character; and . . .
competency to transact the business of a real estate broker in such manner as to
safeguard the interest of the public.” Id.
Moreover, the General Assembly has declared that the “the licensing of persons
to sell condominiums and time shares is a matter of statewide concern.” Colo. Rev.
Stat. § 38-33-113. Broker licenses are so important that not only is it unlawful to act in
the capacity of a broker without first obtaining a license, but “[i]t is well settled that an
agreement to compensate an unlicensed real estate broker is illegal and
unenforceable.” Shotkoski v. Denver Inv. Grp. Inc., 134 P.3d 513, 515 (Colo. App.
2006). The licensing criteria, and penalties for failing to obtain a license, therefore all
serve to shield the public in real estate dealings.
Those who meet the Colorado Real Estate Commission’s ethical standards and
obtain a license are required to comply with the Act’s comprehensive brokerage
guidelines. In an effort to regulate the “full spectrum of activities related to the sale of
real estate,” Brakhage v. Georgetown Assoc., Inc., 523 P.2d 145, 147 (Colo. App.
1974), a “real estate broker” is broadly defined as any person who, directly or indirectly,
leases, sells, offers to sell, lists, or negotiates the sale of real estate for a fee. Colo.
Rev. Stat. § 12-61-101(2)(a). A broker’s violation of any provision contained in the Act
could result in an investigation by the Colorado Real Estate Commission and
administrative action against the broker, including revocation of his or her broker’s
license. Colo Rev. Stat. § 12-61-811; see also § 12-61-113(1). All brokers must also
obtain errors and omissions insurance in the event they breach the Act. Colo. Rev.
Stat. § 12-61-103.6. The legislative history of § 12-61-103.6 “made it clear that one
purpose of the [statute] was to provide the public a remedy against the wrongful acts of
real estate professionals, in addition to the existing regulatory sanctions available to the
Colorado Real Estate Commission.” Kenneth L. Levinson, E&O Insurance: Mandatory
for Colorado Real Estate Professionals, COLORADO LAWYER, September 1998. The
Commission’s ability to suspend a broker’s license, coupled with the errors and
omissions insurance requirement, provides twofold consumer coverage. The offending
broker is potentially removed from the market, thus preventing further harm to the
public, and the aggrieved consumer is made whole via the broker’s insurance carrier.
Based on the Colorado General Assembly’s legislative declaration and the
provisions of the Act cited above, the Court finds that the Act “affects society at large
rather than a purely personal or proprietary interest of the plaintiff.” Weissman, 938
P.2d at 552. Moreover, the specific portion of the Act on which Plaintiff relies also
“strikes at the heart” of his responsibilities to the public as a real estate broker. Id. It is
clear that Plaintiff is a “broker” as defined in the Act, and was therefore obligated to
comply with the Act’s provisions governing brokerage relationships. While the parties
dispute whether Plaintiff was engaged as a transaction or single-agent broker, both
types of relationships require the broker to present “all offers and counteroffers in a
timely manner regardless of whether the property is subject to a contract for sale or
lease or letter of intent.” Compare Colo. Rev. Stat. § 12-61-804, with Colo. Rev. Stat.
§ 12-61-807. This provision inures to the benefit of any seller of real estate, and
reflects the broader goals of the General Assembly in achieving full disclosure in real
estate dealings. Therefore, the Court concludes that a broker who is allegedly fired for
complying with the Act’s disclosure rules can bring a claim against his employer for
wrongful termination in violation of public policy.
While the parties have not cited, and the Court cannot find, any cases
interpreting the Act in the wrongful discharge context, other Colorado cases provide a
helpful analogy that supports the Court’s conclusion. In Rocky Mountain Hosp. and
Med. Serv. v. Mariani, 916 P.2d 519, 521 (Colo. 1996), the plaintif f was a certified
public accountant who brought a claim against her employer for wrongful discharge in
violation of public policy. The plaintiff alleged that her employer engaged in
questionable accounting practices that resulted in expenses not being properly reported
to the Internal Revenue Service, or that otherwise misrepresented the business’s
financial status in violation of standard accounting procedures. Id. The plaintiff further
alleged that she was fired solely because she objected to her employer’s use of these
improper accounting practices. Id. at 522. To support her claim, the plaintiff argued
that the Colorado State Board of Accountancy Rules of Professional Conduct
sufficiently implicated public policy for purposes of a wrongful termination claim. Id. at
523. The Colorado Supreme Court agreed.
In so holding, the court provided several reasons as to why the Board of
Accountancy rules exhibited a clear expression of public policy, which are strikingly
similar to the Court’s findings regarding the Act:
The Board [of Accountancy] has responsibility for making appropriate
rules of professional conduct, in order to establish and maintain a high
standard of integrity in the profession of public accounting. These rules of
professional conduct govern every person practicing as a certified public
accountant. Failure to abide by these rules may result in professional
The rules of professional conduct for accountants have an important
public purpose. They ensure the accurate reporting of financial
information to the public. They allow the public and the business
community to rely with confidence on financial reporting. . . .
The legislature has endorsed these goals in . . . the legislative declaration
for establishing the Board of Accountancy . . . [which] states in pertinent
It is declared to be in the interest of the citizens of the state of
Colorado and a proper exercise of the police power of the state of
Colorado to provide for the licensing and registration of certified
public accountants, . . . to provide for the maintenance of high
standards of professional conduct by those so licensed and
registered as certified public accountants.
Id. at 526. The Board of Accountancy Rules seek to achieve the same goals as the
Act. Like the Accountancy Rules, the Act holds brokers to high ethical standards, which
are maintained through the Real Estate Commission’s thorough vetting of potential
brokers and regulatory enforcement. The Act also ensures standardization across the
profession to preserve the public’s expectations regarding brokers and their duties.
Finally, consumer protection is the centerpiece of the Act’s legislative declaration.
Public policy therefore permeates the Act and the brokerage profession, as it does in
the accounting profession.
Furthermore, other states have found that their respective brokerage statutes
significantly impact public policy. For example, in Barratt v. Cushman and Wakefield of
New Jersey, Inc., 675 A.2d 1094, 1096-97 (N.J. 1996), the plaintif f was a real estate
broker who was discharged for reporting a competing broker’s act of bribery to the state
Real Estate Commission against his employer’s wishes. In the plaintiff’s suit for
wrongful discharge, the court held that the real estate broker statutes at issue
constituted clear mandates of public policy. Id. at 1100.3 The court noted that brokers
See also RDP Dev. Corp. v. Schwartz, 657 A.2d 301, 304 (D.C. 1995) (noting that the
District of Columbia Real Estate Licensure Act “was enacted to revise the real estate licensure
law to establish educational and other qualifications for real estate brokers . . . [and] to provide
increased protection to the public against incompetence, fraud, and deception in real estate
transactions”) (citations and internal quotation marks omitted); Mo. Real Estate Comm’n v.
Berger, 764 S.W.2d 706, 709 (Mo. App. 1989) (holding that a real estate broker must maintain
“his reputation for honesty, integrity and fair dealing [and] his competence to transact the
are heavily regulated, and “[t]o protect the public, the [Real Estate] Com mission
licenses brokers, investigates complaints of misconduct, and conducts disciplinary
proceedings.” Id. Moreover, the competing broker’s act of bribery negatively impacted
the public perception of all brokers. Id. If not reported to the Commission, such
“unethical or illegal conduct could lead others astray and subvert public confidence in
real estate brokers.” Id. Similarly, if Plaintiff in this case ignored his statutory duty to
promptly report all offers to a given seller, such conduct could, in the aggregate, reflect
adversely on the brokerage profession as a whole.
For all these reasons, the Court holds that the provisions of the Act relied on by
Plaintiff in this case involve matters which affect society at large, and are sufficient to
form the basis of a claim for wrongful discharge in violation of public policy.
Whether Plaintiff was Subject to, and Performed, a Statutory Duty
Defendants raise three arguments that Plaintiff did not owe the Ownership Group
any statutory duty, contending that Plaintiff has failed to present evidence showing (1)
that he owed the Ownership Group any statutory duty to convey offers; (2) that Parker
or Kaufman were representatives of the Ownership Group; or (3) that his
communications with Parker and Kaufman were in furtherance of any statutory duty.
(ECF No. 35 at 12.) The Court discusses each argument below.
business of a broker or salesperson in such manner as to safeguard the interest of the public”);
and Ranquist v. Stackler, 370 N.E.2d 1198, 1203 (Ill. App. 1977) (holding that the “predominant
purpose of the State in licensing [real estate brokers] is the prevention of injury to the public by
assuring that the occupation will be practiced with honesty and integrity, excluding from the
profession those who are incompetent or unworthy”).
Whether Plaintiff Owed a Duty to the Ownership Group
Defendants assert that Plaintiff did not act as an agent or broker for the
Ownership Group or HGA because he was never engaged by either to perform any
brokerage services. (Id. at 13.) Instead, Plaintiff was employed solely by Defendants.
(Id. at 10.) Therefore, Defendants argue that Plaintiff owed no statutory duties to the
Ownership Group or HGA. (Id. at 13.) Plaintiff admits that he had no written
agreement with HGA to act as its broker. (ECF No. 30 at 3.) However, Plaintiff asserts
that he acted as a transaction-broker and com plied with the duties imposed on such
brokers under the Act. (Id.)
A real estate broker may act as a single agent or transaction-broker. Colo. Rev.
Stat. § 12-61-803(1). A single agent broker is engaged by, and acts as the agent for,
only one party in a real estate transaction, whereas a transaction-broker assists one or
more parties “without being an agent or advocate for the interests of any party to such
transaction.” Colo. Rev. Stat. § 12-61-802(4), (6). Brokers are considered to be
transaction-brokers unless an agreement exists to the contrary that establishes a single
agency relationship. Colo. Rev. Stat. § 12-61-803(2); see also Ludlow v. Gibbons, 310
P.3d 130, 141 (Colo. App. 2011), rev’d on other grounds (“By statute, a broker defaults
to the role of transaction broker”). Although a transaction-broker is not in an agency or
fiduciary relationship with any party, he must still comply with various obligations under
the Act. One such obligation is to “[p]resent[ ] all offers and counteroffers in a timely
manner regardless of whether the property is subject to a contract for sale or lease or
letter of intent.” Colo. Rev. Stat. § 12-61-807(2)(b)(I).
The statute is silent on exactly to whom the broker is to present purchase offers,
and the Court has not located any cases that address this issue. Statutory
interpretation is a question of law. People v. Terry, 791 P.2d 374, 376 (Colo. 1990).
The Court’s primary task is to give effect to the spirit and intent of the General
Assembly in enacting the statute. Moody v. Corsentino, 843 P.2d 1355, 1370 (Colo.
1993); see also Schubert v. People, 698 P.2d 788, 793 (Colo. 1985) (“Legislative intent
is the polestar of statutory construction”). To do so, the Court must look to the statutory
language itself. Moody, 843 P.2d at 1370. “W hen that language is clear and
unambiguous there is no need to resort to interpretative rules of statutory construction,
and the court must apply the words according to their commonly accepted and
understood meaning.” Id. When the language is not clear, the statute should be
construed “as a whole to give a consistent, harmonious, and sensible effect to all of [its]
parts.” Adams Cnty. Sch. Dist. No. 50 v. Dickey, 791 P.2d 688, 691 (Colo. 1990).
Here, in a departure from traditional common law principles of agency, the
General Assembly created the role of “non-agent” or “intermediary” broker when it
passed Colorado Revised Statute § 12-61-807. Barfield v. Hall Realty, Inc., 232 P.3d
286, 291 (Colo. App. 2010). Nevertheless, transaction-brokers “have a relationship with
both the buyer and the seller” without being an agent for either. Patricia A. Wilson,
Nonagent Brokerage: Real Estate Agents Missing in Action , 52 OKLA. L. REV. 85, 90
(1999). The extent of this relationship is reflected in the multitude of duties imposed on
transaction-brokers for the benefit of buyer and seller alike. See generally Colo. Rev.
Stat. § 12-61-807. One particular provision requires the transaction-broker to disclose
“to any prospective seller or landlord all adverse material facts actually known by the
broker.” Colo. Rev. Stat. § 12-61-807(2)(b)(VII) (emphasis added). Similarly, the
benefit of the duty to disclose purchase offers also logically flows to the seller itself,
rather than to any intermediaries such as Defendants in this case, despite the statute’s
failure to specifically mention the term “seller.” This interpretation gives consistency to
§ 12-61-807 in the context of the Act as a whole. Moreover, it is evident that one
primary aim of § 12-61-807 is to ensure that the broker keeps the buy er and seller fully
informed regarding the transaction. Preserving transparency in real estate dealings
goes to the heart of the Act, and accordingly echoes the spirit and intent of the General
Assembly in passing the legislation.
Additionally, all transaction-brokers are required to comply with
§ 12-61-807(2)(b)(I). Thus, even if Plaintiff was never hired by Defendants, the
Ownership Group, or HGA, and worked solely for prospective buyers of HGA
timeshares, his duty to communicate offers to the seller would remain unchanged. The
Court finds that, absent an agreement to the contrary, Colorado Revised Statute
§ 12-61-807(2)(b)(I) requires that transaction-brokers communicate all offers and
counteroffers directly to the seller of real property.
Whether Parker and Kaufman were the Sellers of HGA
Defendants argue that, even assuming Plaintiff was statutorily obligated to
convey purchase offers to the Ownership Group, Plaintiff nonetheless failed to comply
with his statutory duty. (ECF No. 35 at 14-15.) Prior to his termination, Plaintiff
attended a meeting with Kaufman and Parker, who Plaintiff believed were members or
agents of the Ownership Group, during which Plaintiff disclosed certain purchase offers
he believed had been withheld. (ECF No. 30 at 13-14.) Plaintiff also authorized emails to Kaufman that contained information regarding the HGA timeshares. (Id.)
Defendants assert that Parker and Kaufman were not the sellers of HGA timeshares,
nor were they agents of the seller or acting on its behalf. (ECF No. 35 at 14-15.)
Defendants thus argue that Plaintiff was not acting in furtherance of his statutory duties
because he never communicated with the actual seller of HGA. (Id. at 15.)
Defendants’ argument is not supported by the record. In their Motion,
Defendants state that Kaufman held a non-voting membership in Grand Aspen
Affiliates, LLC, one of the four corporate members that comprised the Ownership
Group, Grand Aspen Holdings, LLC, which in turn owned HGA. (ECF No. 27 at 6.)
Parker was also a member of Grand Aspen Affiliates, and served as its representative
in meetings with the Ownership Group. (Id.) Kaufman’s and Parker’s membership in
Grand Aspen Affiliates indicates that they were part of the Ownership Group, and, as a
result, that each held an interest in HGA. Their respective interests further support the
conclusion that each maintained some form of agency relationship with HGA.
Agency “is the fiduciary relation which results from the manifestation of consent
by one person to another that the other shall act on his behalf and subject to his control,
and consent by the other so to act.” Stortroen v. Beneficial Fin. Co. of Colorado, 736
P.2d 391, 395 (Colo. 1987) (citing Restatement (Second) of Agency § 1(1) (1957)). An
agency relationship need not be contractual, and “m ay exist even though the parties do
not call it an agency and do not subjectively intend that legal consequences flow from
their relation.” Id. In some situations, an agent’s authority can be delegated to a
subagent. Id. A subagent is an agent of both the delegating agent and the principal.
Id. at 396. “Notice to an agent given in the course of a transaction which is within the
scope of the agency is notice to the principal. So too, notice to a subag ent who is
under a duty to communicate the notice to the agent is effective to the same extent as if
notice had been given to the agent.” Id.
Viewing the evidence in the light most favorable to Plaintiff, Parker and Kaufman
could each be classified as either agents of HGA and the Ownership Group, or as
subagents of Grand Aspen Affiliates, which itself was an agent of HGA and the
Ownership Group. In either case, Plaintiff's communication of the withheld purchase
offers to Parker and Kaufman can be imputed to the Ownership Group as the ultimate
seller of HGA timeshares.
The existence of an agency relationship is usually a question of fact. Id. at 395.
Based on the limited record in this case, the Court concludes that a m aterial issue of
fact exists as to whether Kaufman and Parker could be considered the "seller" of HGA
based on their respective ownership and/or investment interests in the Ownership
Group, and by extension, in HGA. The Court therefore finds that a reasonable jury
could find that Plaintiff satisfied his statutory duty as a transaction-broker when he
disclosed the purchase offers to Kaufman and Parker.
Whether Plaintiff Performed a Statutory Duty
Defendants lastly argue that Plaintiff only conveyed the offers to the Ownership
Group to investigate whether Defendants had done so themselves. (ECF No. 35 at 15.)
Defendants appear to argue that Plaintiff’s motive for conveying the offers was
improper, and not in furtherance of his statutory duty. However, the statute simply
provides that a transaction-broker is obligated to “[p]resent[ ] all offers and counteroffers
in a timely manner regardless of whether the property is subject to a contract for sale or
lease or letter of intent.” Colo. Rev. Stat. § 12-61-807(2)(b)(I). The statute states
nothing about a broker’s motive or subjective intent for disclosing the offers. Rather, a
broker complies with the statute when he discloses the offers, regardless of any
additional reasons for doing so. The Court concludes that summary judgment is not
appropriate on this basis as well.
Whether Plaintiff was Discharged for Performing a Statutory Duty
Defendants state that Plaintiff was discharged for legitimate reasons, not for
complying with the Act. (ECF No. 27 at 15-16.) However, Plaintiff has submitted
evidence contradicting this assertion. For example, throughout July 2011, Plaintiff had
e-mails sent to Kaufman containing HGA timeshare information, and eventually met
with Kaufman and Parker on July 21, 2011 to discuss offers that had been withheld.
(ECF No. 30 at 13-14.) Shortly thereafter, on August 18, 2011, Defendants terminated
Plaintiff. (ECF No. 27 at 8.)
Moreover, Plaintiff asserts that he had a stellar sales record prior to his
termination. (ECF No. 30 at 38.) HGA had aggregate sales of $8,860,250.00 during
the roughly 13 months that Plaintiff supervised the HGA sales team from July 2010
through August 2011. (Id. at 8.) The sales figures were lower for at least 18 months
both before and after Plaintiff’s employment with Defendants. (Id.) Based on the
temporal proximity between Plaintiff’s disclosure of the purchase offers and his
termination, coupled with evidence of Plaintiff’s strong performance as the HGA sales
manager, a reasonable jury could infer that Plaintiff was terminated based on his
compliance with the Act. Cf. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179
(10th Cir. 1999). It is therefore clear that a dispute of material fact exists as to whether
Plaintiff was discharged for a lawful reason, as Defendants contend; this dispute can
only be resolved by a jury, and not on the papers submitted to this Court.
For the reasons set forth above, the Court ORDERS that Defendants’ Motion for
Summary Judgment (ECF No. 27) is DENIED.
Dated this 10th day of March, 2015.
BY THE COURT:
William J. Martínez
United States District Judge
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