as an unregistered broker -dealer and salesperson. Donnerstag filed an unsuccessful CR 6)
12(b)(
motion to dismiss.
After a year of discovery, Donnerstag moved for summary judgment. He argued that the
Roberts' claims under the Act fail because Donnerstag was neither a "seller" nor was CB
Richard Ellis, Inc. a "control person"in the DBSI North Stafford transactiona
— requirement for
an action under the Act.
Donnerstag filed a declaration from a securities law expert who opined that Donnerstag
did not act as a seller,but as a finderone
— who provided the name and contact informationo a
securities seller. The expert added that, in the securities industry, a finder need not register as a
broker -dealer or salesperson and that Donnerstag's finder status was not affected by receipt of a
fee contingent on the consummation of the transaction.
Donnerstag stated that he had long known Robert Roberts and in 2007 Robert Roberts
mentioned his interest in a 1031 exchange. As a result, over several months Donnerstag
identified properties that might interest the Roberts for 1031 exchange purposes. Donnerstag
4
S. 1031.
26 C.
U. §
3
No. 43018 5
- II
-
said that he attended a seminar for real estate brokers that included information about DBSI's
tenancy in-
- common program, and because he knew the Roberts' 1031 exchange deadline was
quickly approaching, he felt obliged to inform them of DBSI's program. When Robert Roberts
expressed interest in DBSI, Donnerstag e-mailed DBSI and provided the Roberts' contact
information. DBSI then worked with the Roberts on the 1031 exchange, and Donnerstag knew
nothing further regarding what DBSI properties the Roberts were considering until'after they had