# Doliner v. Brown > Massachusetts Appeals Court · March 14, 1986 · 21 Mass. App. Ct. 692 URL: https://www.frixlaw.com/law-library/cases/9717090 ## Case - **Full name:** Julius Doliner vs. Harold Brown - **Court:** Massachusetts Appeals Court - **Decided:** March 14, 1986 - **Citations:** 21 Mass. App. Ct. 692; 489 N.E.2d 1036; 1986 Mass. App. LEXIS 1422 - **Precedential status:** Published - **Opinion:** Concurrence by Brown - **Judges:** Brown, Kaplan, Dreben - **Cited by:** 44 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9717090 ## Opinion text Brown, J. (concurring in part and dissenting in part). It is with utmost reluctance that I concur, even in part. I only wish that the law would aid the needy as assiduously as it does the greedy. Brown did more than sabotage Doliner’s contractual expectancy; he “pick[ed] the deal off for himself.” The judge found that, were it not for Brown’s closing with the owners, they would have signed a purchase and sale agreement with Doliner, assuming the latter had been able to achieve satisfactory financing. In the real estate game, one never commits fully until the “numbers” have been canvassed fully. Here, the numbers were very clearly set out by Green and Bendetson during their visit to Brown. Brown told them that he would consider seriously *699 taking a fifty percent position in the secondary financing of the deal. No sooner had the two messengers departed than the defendant rushed to the phone, putting in motion his plan to “scoop” the entire deal. 1 If that is not wrong — and the majority opinion concludes that it is not wrong under principles of common and statutory law — then perhaps there is something amiss in the common law and in our statutory scheme. It is not enough for me that the common law be viewed as simply a mirror of the manner and mores of the marketplace. Fundamental principles of decency and fairness, resplendent in other areas of common law, ought to be recognized here. 2 I disapprove of a view which condones conduct as reprehensible as that exhibited by the defendant in this case. Ethics and morality do have a place in our economic system, the greatest example of capitalism in the history of the world. In this regard, see the instructive discussion in Meinhard v. Salmon, 249 N.Y. 458, 464 (1928). Nevertheless, having reviewed the authorities cited in the majority opinion, and mindful of the role of an intermediate appellate court not “to alter established rules of law governing principles of substantive liability” (Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 [1973]), I am constrained to join in part 1 of the majority opinion. Turning from the common law to our own statutory law, I respectfully dissent from the majority’s view that the defendant’s conduct was not actionable under G. L. c. 93A, § 11. In formulating applicable standards of conduct under c. 93A, we are advised “to discover and make explicit those unexpressed standards of fair dealing which the conscience of the com *700 munity may progressively develop.” Commonwealth v. De-Cotis, 366 Mass. 234, 242 (1974), quoting Judge Learned Hand in FTC v. Standard Educ. Soc., 86 F.2d 692, 696 (2d Cir. 1936), rev’d in part, 302 U.S. 112 (1937). In this case, I would characterize the totality of the defendant’s conduct as having been infused with a high enough “level of rascality” (Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504 [1979]) not only to have raised the plaintiff’s eyebrow, but also to have permitted him to recover under §11.1 reject the suggestion, implicit in the majority’s view of the circumstances, that if one knows there is a shark in the water, one must take special precautions to avoid being eaten. I am not prepared to say that the law should afford greater protection to real estate sharks than it does, for example, to banks. Compare Dolton v. Capitol Fed. Sav. & Loan Assn., 642 P.2d 21, 23-24 (Colo. App. 1981). See also Warsofsky v. Sherman, 326 Mass. 290, 293-295 (1950). Chapter 93A has established in general, for businesses as well as for consumers, a path of conduct higher than that trod by the crowd in the past. Cf. Meinhard v. Salmon, 249 N.Y. at 464 . It troubles me to see such a substantial deviation from that path. The judge found that Brown, in seeking to position himself, called Keezer, a person Green and Bendetson specifically advised against calling. The judge further found incredible the testimony of Keezer and Brown that Brown had not tried to acquire the property while Doliner was still engaged in negotiations with the owner. See n.3 of the majority opinion. Even assuming Brown had no duty to “announc[e] himself as angling for the equity,” he certainly had an affirmative duty to disclose that he no longer had an interest in participating in the secondary loan. There also might have been shown a violation of the moral imperative that “thou shall not seduce another’s agent” if Keezer’s connection with Doliner had been developed further at trial, because Keezer’s actions on behalf of Brown certainly were intended to be of advantage to himself and Brown at the expense of Doliner. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9717090. Public record. Not legal advice.