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NRT New England, LLC v. Jones

Appellate Court of Connecticut

February 9, 2016

NRT NEW ENGLAND, LLC
v.
CHRISTOPHER G.L. JONES

         Argued October 19, 2015.

          Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of New Haven, and tried to the court, Hon. William L. Hadden, Jr., judge trial referee; judgment in part for the plaintiff; thereafter, following a hearing the court awarded the plaintiff attorney's fees and costs, and the defendant appealed to this court.

          SYLLABUS

         The plaintiff real estate broker brought this action seeking to recover a real estate commission in connection with the defendant's purchase of a house. W, a licensed realtor working as an independent contractor for the plaintiff, had entered into an exclusive right to represent buyer agreement with the defendant, who was seeking to purchase a house for himself and his then fiancé, K. The agreement established that W was the defendant's exclusive agent in finding, negotiating and purchasing property, and it covered several towns, including Guilford. Although W had devoted a substantial amount of time searching for properties for the defendant to purchase, he purchased a property in Guilford that had been shown to him by an agent with a different real estate company. When W confronted the defendant, she learned that he and K previously had executed an exclusive right to represent buyer agreement with the other agent, which was in effect during the same time period as the one between W and the defendant. The plaintiff subsequently placed a broker's lien on the property purchased by the defendant for $34,375, which represented 2.5 percent of the purchase price, and this action followed. The trial court rendered judgment for the plaintiff on its breach of contract count and awarded damages of $34,375, plus attorney's fees and costs, from which the defendant appealed to this court. He claimed, inter alia, that the agreement he entered into with W was unenforceable. Specifically, he claimed that the trial court improperly found that the agreement substantially complied with the requirements of the statute (§ 20-325a [b]), which sets forth seven separate items that must appear in brokerage contracts for a broker such as the plaintiff to recover for services rendered, including the requirement that the contract contain a statement that the real estate broker may be entitled to certain lien rights. According to the defendant, the agreement was deficient because the text of the lien notice in the agreement was not capitalized as it appears in § 20-325a (b) (6), and because the agreement erroneously referenced subsection (d) of § 20-325a, instead of subsection (e), which sets forth a broker's lien rights. Held :

         1. The trial court properly determined that the brokerage agreement between the defendant and W substantially complied with the requirements of § 20-325a (b): although the sample lien notice contained in § 20-325a (b) (6) appears in all capital letters, the trial court properly determined that if the legislature had intended to require brokers to capitalize the lien notice in brokerage contracts, it easily could have employed language to express that intent, as it had done so in other sections of the same statutory scheme, which strongly supported the conclusion that it intended to omit such a requirement from § 20-325a (b) (6); moreover, an acceptance of the defendant's position that an erroneous reference to a subsection of the statute does not constitute substantial compliance would foreclose brokers from pursuing recovery on the basis of what is essentially a scrivener's error, which would be a harsh result and thwart the intended purpose of the statute.

         2. The trial court's determination that it would be inequitable to deny the plaintiff recovery was supported by ample evidence in the record; W testified, and the defendant conceded, that, over several months, W had rendered a significant amount of services to the defendant, who accepted W's services while under contract with another agent in violation of the agreement and scheduled appointments and viewed properties with both agents at the same time, and although W did not perform services in connection with the defendant's purchase of the subject property, the defendant had agreed to pay a commission equal to 2.5 percent of the purchase price if he or any person acting on his behalf purchased any property through the efforts of anyone.

         3. The trial court's finding that it was not feasible for the plaintiff to seek compensation from the seller or the seller's agent was not clearly erroneous; representatives of the plaintiff testified that because W did not perform any services leading to the defendant's purchase of the property, the plaintiff was not the procuring cause of the purchase and, thus, had no basis to make a claim for payment from the seller's agent, which supported a determination that it would have been futile to ask, the trial court credited that testimony, and the defendant did not offer any evidence to contradict or undermine those witnesses.

         4. This court declined to review the defendant's claims that the trial court erroneously calculated the amount of the commission to which the plaintiff was entitled and improperly granted the plaintiff a commission on the one-half interest in the property owned by K, the defendant having failed to brief the claims adequately.

         John A. Parese, with whom were Louis M. Federici and, on the brief, Giovanni R. D'Amico, for the appellant (defendant).

         Thomas E. Crosby, for the appellee (plaintiff).

         DiPentima, C. J., and Prescott and Harper, Js. HARPER, J. In this opinion the other judges concurred.

          OPINION

          [162 Conn.App. 842] HARPER, J.

          In this breach of contract action, the defendant, Christopher G.L. Jones, appeals from the judgment of the trial court, rendered after a trial to the court, awarding the plaintiff, NRT New England, LLC, doing business as Coldwell Banker Residential Brokerage, certain commissions for real estate brokerage services. On appeal, the defendant claims that the court improperly (1) determined that the brokerage agreement between the parties was enforceable because (a) it does not substantially comply with the requirements of General Statutes § 20-325a (b),[1] which [162 Conn.App. 843] sets forth the conditions under which brokers may bring legal actions for brokerage services rendered, and (b) the facts and circumstances of the present case do not make it inequitable to deny the plaintiff recovery; (2) found that it was not feasible for the plaintiff to seek compensation from the seller or the seller's agent, as the plaintiff was required to do pursuant to the parties' agreement; (3) calculated the amount of the plaintiff's commission at 2.5 percent of the purchase price instead of 2 percent; and (4) granted the plaintiff a commission on the one-half interest in the property owned by the defendant's wife. We affirm the judgment of the court.

         The following facts and procedural history are relevant to the resolution of this appeal. The defendant met Andrea Woolston, a licensed realtor working as an independent contractor of the plaintiff, in October, 2010. The defendant expressed to Woolston a desire to purchase a home for himself and his then fiancé e, Katherine Wiltshire. One of the first things Woolston asked the defendant was whether he was represented by another agent. The defendant responded that he was not. After a number of conversations about the defendant's needs and wishes, the parties executed an exclusive right to represent buyer agreement (agreement), which established, among other things, that Woolston was the defendant's exclusive agent for finding, negotiating, and purchasing property. Over the next several months, Woolston devoted a substantial amount of time searching for properties for the defendant to purchase. Specifically, Woolston researched available properties at six town halls in the communities in which the defendant was interested. She showcased a number of properties personally to the defendant and Wiltshire and introduced many more to them through e-mail. Woolston and the defendant had at least twenty appointments where they viewed multiple properties. Additionally, Woolston visited many properties alone [162 Conn.App. 844] to determine if they were suitable for the defendant. Altogether, Woolston spent hundreds of hours seeking a suitable home for the defendant.

         The agreement was in effect from January 11, 2011 until July 11, 2011, and set forth the geographical area that the defendant was interested in and the rate of compensation for the plaintiff's services. With respect to geographical area, the parties agreed that Woolston would seek properties in Killingworth, Guilford, Essex, Old Saybrook, Deep River, Lyme, and Old Lyme. With respect to compensation, the defendant agreed to pay the plaintiff a commission equal to 2.5 percent of the purchase price of the property " if the [defendant] or any person or entity acting on the [defendant's] behalf purchases, options, exchanges, leases or trades any property, through the efforts of anyone, including the [defendant] . . . ." The agreement imposed the following duties on the defendant: " The [defendant] will not deal directly with any other broker, agent or licensee during the term of this [a]greement. The [defendant] will notify other brokers, agents or licensees at first contact that the [defendant] is being exclusively represented by [the plaintiff]. The [defendant] will disclose to [the plaintiff] any past and/or current contacts for any real property or with any other real estate broker or agent." The agreement also contains the following clause concerning compensation: " [The plaintiff] will, whenever feasible, seek compensation from the [s]eller or the [s]eller's agent; but, advises the [defendant] that such compensation: (1) is not always offered, and (2) may not be equal to the [c]omission called for hereunder." (Emphasis omitted.)

         On May 10, 2011, the defendant informed Woolston via e-mail that he and Wiltshire purchased property at 300 Vineyard Point Road in Guilford for $1,375,000. The defendant learned of this property on May 4, 2011, from Mary Jane Burt, a realtor with H. Pearce Real Estate (H. Pearce), [162 Conn.App. 845] who previously had represented Wiltshire with the sale of her house in Hamden. Woolston subsequently confronted the defendant and eventually learned that he and Wiltshire previously had executed an exclusive right to represent buyer agreement with Burt and H. Pearce. This agreement was in effect from August 1, 2010, until August 1, 2011, and contained a provision designating Burt as the exclusive agent for the defendant and Wiltshire. Thus, at the time the defendant purchased the property in Guilford, he was under contract for exclusive agency with both Woolston and Burt. The defendant never told Woolston or Burt that he had two agreements in effect at the ...


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