## Facts

- Meredith Haldiman agreed to purchase a townhome to be built by Gosnell Development Corporation, using Gosnell’s preprinted purchase form completed by Gosnell employee Gael Boden, a licensed real estate salesman.
- Haldiman was not represented by her own broker or counsel.
- The agreement provided that if the purchaser failed to complete the purchase, Gosnell could terminate and retain “any monies received” (including earnest money and amounts due for options) as liquidated damages, among other remedies; it also contained integration and acknowledgment clauses stating the purchaser read and understood the terms.
- Boden later prepared an option/change order agreement listing upgrades and option prices; Haldiman paid deposits totaling about \$3,300.
- The scheduled closing (January 1983) did not occur because Haldiman could not obtain financing; Gosnell granted a 4.5-month extension.
- After warning that the deal would be terminated if it did not close within ten days, Gosnell terminated the agreement and retained the deposits.
- Haldiman sued, alleging (i) wrongful retention of her deposits and (ii) Boden “represented” her and breached a duty to provide full disclosure and fair dealing by not inserting financing-contingency language and not explaining forfeiture consequences.
- The trial court granted summary judgment for Gosnell and Boden on the alleged agent-duty claim and awarded Gosnell attorneys’ fees under A.R.S. § 12-341.01.

## Issues

1. Whether a seller’s employee real estate salesman owed the buyer a fiduciary-type duty of “full and frank disclosure” based on his role in preparing and presenting the seller’s form contract to an unrepresented buyer.
2. Whether the contract’s deposit/option forfeiture language entitled the seller to retain all deposits as liquidated damages after the buyer failed to close.
3. Whether the trial court’s attorneys’ fees award under A.R.S. § 12-341.01 could stand after appellate modification of the merits.

## Decision

- Affirmed summary judgment for Gosnell and Boden on the claim that Boden owed the buyer a fiduciary-type duty of full disclosure and advice.
- Reversed in part and remanded on the deposit-forfeiture dispute, holding the seller’s right to retain “any monies received” did not automatically extend to all option-related sums under the circumstances and contract language.
- Remanded for reconsideration or adjustment of attorneys’ fees under A.R.S. § 12-341.01 in light of the mixed appellate outcome.

## Legal Principles

- A real estate broker/salesman is ordinarily the agent of the party who employs and pays him; a buyer’s unilateral belief, and the agent’s ministerial assistance in completing the seller’s standard form, does not create an agency relationship with the buyer.
- Absent a buyer-agency relationship, a seller’s agent is not required to provide the buyer with fiduciary-level advice, draft buyer-protective contingencies, or explain all consequences of nonperformance, though the agent remains subject to ordinary duties against misrepresentation.
- Liquidated-damages/forfeiture provisions are strictly construed; ambiguities in a drafter’s form are construed against the drafter, and retention of deposits—especially option-related payments—may depend on contract language and whether such amounts reasonably relate to damages or costs actually incurred.
- Attorneys’ fees under A.R.S. § 12-341.01 are discretionary and may require reconsideration when an appellate ruling changes the prevailing-party posture.

## Conclusion

The court held that a seller’s in-house real estate salesman did not become the buyer’s fiduciary merely by handling the seller’s paperwork for an unrepresented purchaser, but it required a narrower construction of the seller-drafted forfeiture language and remanded to determine what deposits could be retained and to reassess the contract-based fee award.


Haldiman v. Gosnell Dev. Corp., 155 Ariz. 585, 748 P.2d 1209 (Ct. App. 1987)