them to pursue a 1031 exchange property rather than to pay capital gains taxes on their prior
property sale.
In granting summary judgment to Donnerstag and CB Richard Ellis,the trial court stated:
I think that [ Donnerstag] was working with the Roberts to find an investment for
them to avoid the tax liability. He had offered a couple of different options. They
were not taken. [ Donnerstag] had gone to the seminar, heard about this DBSI,
contacted the Roberts, let them know, contacted DBSI. The two came together.
He got a fee out of it, a pretty substantial fee. I think that everything that was
done, all the decisions that were made by the Roberts, were made based upon the
information provided to them by DBSI. I don't find that Mr. Donnerstag or
CBRE were security sellers. I will grant the motion for summary judgment.
Verbatim Report of Proceedings (Dec. 9, 2011) at 22 23.
- Because all the Roberts' claims under
the Act required that Donnerstag be a securities seller, the trial court's finding that Donnerstag
was not a seller precluded the remaining claims. The Roberts timely appeal the trial court's
entry of final judgment.
ANALYSIS
The Roberts argue that the trial court erred in granting summary judgment to Donnerstag
and CB Richard Ellis, Inc. because the trial court erroneously concluded as a matter of law that
Donnerstag was not a seller and that CB Richard Ellis, Inc. did not therefore control a seller
under the Act. The Roberts argue that because Donnerstag referred them to DBSI and received a
referral fee, Donnerstag should be considered a seller. We disagree and conclude that the trial
court properly granted summary judgment after finding that Donnerstag was not a securities
seller.