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William Raveis Real Estate, Inc. v. Zajaczkowski

Court of Appeals of Connecticut

April 25, 2017


          Argued November 17, 2016

         Appeal from Superior Court, judicial district of Fairfield, Kamp, J.

          Enrico Vaccaro, with whom, on the brief, was Emily A. Gianquinto, for the appellants (defendants).

          Tracey Lane Russo, for the appellee (plaintiff).

          Lavine, Sheldon and Flynn, Js.


          LAVINE, J.

         The defendants, Peter Zajaczkowski and Iwona Zajaczkowski, appeal from the judgment of the trial court, rendered after a trial to the court, in favor the plaintiff, William Raveis Real Estate, Inc. On appeal, the defendants claim that the court (1) erred in concluding that they had breached the exclusive agreement they had with the plaintiff, (2) abused its discretion by awarding the plaintiff attorney's fees and costs in the absence of an evidentiary hearing, and (3) violated General Statutes § 42-150aa with respect to the award of attorney's fees. We affirm the judgment of the trial court.

         In its memorandum of decision issued on February 26, 2015, the trial court made the following findings of fact. The plaintiff, a Connecticut corporation with its principal office located in Shelton, is a real estate brokerage firm that represents buyers and sellers. The plaintiff commenced the present litigation to obtain payment of a real estate commission it alleged it was owed in connection with the defendants' purchase of a home at 6 Blackhouse Road (Blackhouse property) in Trumbull.[1] The plaintiff alleged that it was due a commission pursuant to an agreement between the parties known as an ‘‘Exclusive Right to Represent Buyer Authorization'' (agreement). The defendants denied that an enforceable agreement existed between them and the plaintiff and that they owed the plaintiff a commission. The defendants alleged three special defenses as to the plaintiff's cause of action[2] and a two count counterclaim.[3]

         The defendants are husband and wife, who have two school aged children. Iwona Zajaczkowski, a native of Poland, had resided in Connecticut for approximately seventeen years by the time of trial. She had been employed by Connor Corporation, a marketing company. Peter Zajaczkowski was employed as an executive director of process engineering at Morgan Stanley Fund Services. He previously was employed by General Electric Corporation and Deloitte & Touche. He had earned a bachelor of science degree in business management and a master's degree in business administration and finance from the University of Connecticut.

         Early in 2010, the defendants were living in an apartment and wanted to purchase a three or four bedroom house with a yard. Although they wanted to find a home in Trumbull to take advantage of its public schools, they were willing to look at homes in other Fairfield county towns. They had no time constraints, but ideally wished to purchase a home before the month of September so that their son could enter school at the beginning of the school year.

         The court found that a friend of the defendants had referred them to Freda Takacs, a licensed real estate agent who had been affiliated with the plaintiff for approximately fifteen years. Peter Zajaczkowski made the initial contact with Takacs and described to her the type of home the defendants wished to purchase and its preferred location. Thereafter, Takacs identified houses to show the defendants. In addition, she gave the defendants access to the plaintiff's listing book, a nonproprietary service that the plaintiff's agents offer to customers so that customers can perform their own Internet searches of homes available for purchase. Peter Zajaczkowski actively searched for homes that met the defendants' specifications by using the listing book and regularly contacting Takacs about properties that the defendants wished to view.

         Prior to showing the defendants a particular house on March 29, 2010, Takacs presented them with the agreement. The agreement is a preprinted, three page form with the plaintiff's name appearing prominently at the top of each page. Before Takacs presented the agreement to the defendants, she entered certain information onto it, including the term of the agreement and the compensation to be paid to the plaintiff. The agreement was for a term of one year, from March 29, 2010 to March 29, 2011. The agreement provided, in part, that Takacs, as the buyer's agent, was to use diligent efforts to locate property that met the defendants' specifications and that she was to negotiate the terms and conditions of the purchase of any property the defendants wished to buy. The agreement also provided that if the defendants purchased a home during the term of the agreement, the plaintiff was to earn a commission equal to 3 percent of the sale or exchange price of the purchased property. In addition, the plaintiff was to earn an administrative fee of $195. The defendants signed and initialed each page of the agreement on March 29, 2010. They did not request that any of the terms of the agreement be changed. Takacs, as the plaintiff's authorized agent, signed the agreement on behalf of the plaintiff.

         After the agreement was signed, Takacs showed the defendants a number of homes in Monroe, Trumbull, and Fairfield, including 77 Russ Road (Russ Road property) in Trumbull. The defendants submitted an offer to purchase the Russ Road property, but the transaction was not consummated because a bank appraisal failed to support the purchase price and mortgage financing contingencies. Although there was some evidence that the defendants' offer was higher than the fair market value of the property, Peter Zajaczkowski testified that he was not pressured by Takacs to submit an offer. The defendants, however, criticized Takacs' efforts to work with the bank's appraiser to ensure that the appraisal satisfied the mortgage lending requirements. Despite this criticism, the court found that Takacs acted with appropriate diligence during the negotiations regarding the defendants' attempt to purchase the Russ Road property.

         The court found that following their failed attempt to purchase the Russ Road property, the defendants' relationship with Takacs deteriorated. Peter Zajaczkowski felt that he could no longer work with her and by October 15, 2010, he wished to terminate the agreement. Takacs did not agree to rescind the agreement and reminded Peter Zajaczkowski of the defendants' obligations under the agreement. On November 5, 2010, Takacs sent an e-mail message to Peter Zajaczkowski stating: ‘‘[t]o be told that you no longer want to work with me after I worked so hard stung and made me feel unappreciated and I told you so. This is not cancellation of a contract and it is still in force. My frustration at being rejected does not in any way negate your responsibility to work with my company if you choose to buy without me or my company, we will be pursuing you for commission.'' The court found that Linda Myers, the plaintiff's sales manager, was the only individual within the company with authority to terminate an agreement. Myers never agreed to terminate the parties' agreement.

         The court also found that despite Peter Zajaczkowski's claim that he terminated the agreement, he continued to use the listing book provided by the plaintiff to research available properties subsequent to October, 2010. On December 21, 2010, he contacted Takacs to ask her opinion about apiece of property in Trumbull. Although Peter Zajaczkowski testified that he contacted Takacs to ask her input ‘‘as a friend, '' Takacs testified that she reminded him of their mutual obligations under the agreement. Takacs wrote in an e-mail to Peter Zajaczkowski on December 21, 2010: ‘‘[p]lease also do know that you need to go through William Raveis for any house you want to purchase. This is the same as when you have your house on the market. The agency gets paid if you sell during a listing contract and gets paid if you buy during it as well.''

         On January 5, 2011, the defendants submitted a written offer to purchase the Blackhouse property through Chris Carey, a real estate agent not affiliated with the plaintiff. The defendants had a fully executed purchase and sale contract with the sellers of the Blackhouse property by January 21, 2011, and obtained title to the Blackhouse property on April 12, 2011. The defendants have not paid the plaintiff a commission with respect to their purchase of the Blackhouse property.

         In resolving the plaintiff's breach of contract claim alleged in count one, the court found that the agreement is entitled, ‘‘Exclusive Right to Represent Buyer Authorization.'' The term of the agreement was from March 29, 2010 to March 29, 2011. The agreement identifies the buyers as the defendants and provides in relevant part: ‘‘You, Buyer(s) [the defendants] appoint Us [the plaintiff] as Your exclusive real estate Broker to represent You and assist You in locating and purchasing or exchang[ing] real property acceptable to You and generally described as residential real estate located within the State of Connecticut . . . . During the term of this Authorization You will work exclusively through Us in locating and purchasing or exchanging the Property.'' The agreement also states with respect to the defendant: ‘‘(A) You will tell Us about all past and current contacts with any real property or any other real estate agents and refer all leads or information about the Property to Us. (B) You will cooperate with Us and be reasonably available to examine real property.''

         The court found that the agreement also imposed certain duties on the plaintiff, to wit: ‘‘(A) We will use diligent efforts to find property within Your specifications. (B) We will negotiate on Your behalf for terms and conditions agreeable to You. (C) We will assist and act in Your interest regarding the location and purchase or exchange, as the case may be, of the Property.''

         As to the compensation due the plaintiff, the court found that section VI of the agreement states in part: ‘‘You agree to pay Us a fee of . . . 3 % of the sales or exchange price of the real property You purchase. This fee will be waived if We collect from the Seller or Listing Agency.'' Also, the agreement provides: ‘‘In addition to the above compensation and upon passing of title, You agree to pay [the plaintiff] an Administrative Fee of $195.00. This fee does not apply to purchases financed by government loans (VA, CHFA, FHA).''

         On the basis of the evidence presented at trial, the court found that on November 21, 2010, while the agreement between the plaintiff and the defendants was in full force and effect, the defendants entered into an exclusive right to represent buyer agreement with Carey, a real estate broker with Carey & Guarrera. On January 5, 2011, the defendants submitted a written offer to purchase the Blackhouse property through Carey, who was not affiliated with the plaintiff. A fully executed contract to purchase the Blackhouse property was in effect by January 21, 2011, and the closing took place on April 12, 2011. The court credited Carey's testimony ...

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