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Pellet v. Keller Williams Realty Corp.

Court of Appeals of Connecticut

October 10, 2017

DANIEL PELLET ET AL.
v.
KELLER WILLIAMS REALTY CORPORATION ET AL.

          Argued May 23, 2017

          Austin Berescik-Johns, with whom was David V. DeRosa, for the appellant (plaintiff).

          Michael C. Conroy, for the appellees (named defendant et al.).

          Prescott, Beach and Mihalakos, Js.

         Syllabus

         The plaintiff, as guardian for his brother, S, appealed to this court from the judgment of the trial court directing a verdict for the defendants, S's former real estate agents, the agents' employer and a broker, in connection with the sale of S's home to the defendant purchasers, K and her husband. The plaintiff claimed, inter alia, that the trial court improperly directed the verdict in favor of the defendants because it erroneously equated all of the allegations in his substitute complaint to claims of professional negligence and determined that, as such, they failed for lack of expert testimony as to the applicable standard of care. Held:

         1. The trial court improperly directed a verdict for the defendants on the ground that all eight counts of the substitute complaint were based on breaches of professional standards of care regarding the selection and recommendation of the listing price for the plaintiff's home:

a. Although all eight counts of the substitute complaint incorporated the allegations that the defendant real estate agents had set the list price for the property at $318, 000, when they knew, or should have known, that the fair market value of the property was substantially greater, it did not necessarily follow that all of the counts summarily could be characterized as one general claim of professional negligence; the first count sounded in breach of contract, the claims in the second and third counts, which alleged the breach of a fiduciary duty of an agent and the breach of the implied covenant of good faith and fair dealing, stemmed from the contractual relationship between the parties, the entirety of the fourth count did not necessarily equate to a claim of professional negligence, as certain of its allegations did not require the use of specialized skills or professional judgment on the part of the defendants, the fifth and seventh counts, which alleged intentional misrepresentation and conspiracy to defraud, involved intentional rather than negligent action by the defendants, and did not involve the question of whether the defendants exercised the same degree of care as would a reasonably prudent real estate professional, the eighth count alleged acts against the defendants that could be construed as unfair or deceptive in nature, and the plaintiff's claim as to count six, which alleged negligent supervision, was deemed abandoned as inadequately briefed.
b. The trial court improperly concluded that the plaintiff's failure to tender an expert witness resulted in a lack of evidence on the professional standard of care: although the plaintiff did not present expert testimony from a real estate agent or broker regarding the standard of care with respect to the allegations in the substitute complaint that were based on breaches of professional standards of care, such testimony was provided by the defendants through the testimony of two licensed real estate agents, and, therefore, the jury was provided with expert testimony as to the applicable standard of care required of real estate professionals; moreover, although those real estate agents did not expressly opine that the defendants had breached the standard of care and the expert testimony did not specifically come from the plaintiff, the jury had before it testimony from which it could have inferred that the standard of care was breached by the defendants.

         2. The trial court improperly granted the defendants' motions for a special finding, pursuant to statute (§ 52-226a), that the plaintiff's action was brought without merit and in bad faith: because, with respect to the five defendants who participated in this appeal, the court's granting of their motion for a special finding pursuant to § 52-226a was tied directly to the merits of its granting of the motion for a directed verdict, which this court found to be improper, the trial court's special finding pursuant to § 52-226a could not stand with respect to those defendants; moreover, with respect to the motion for a special finding filed by K, who did not participate in this appeal, the court's ruling granting that motion lacked a high degree of specificity in its findings, as the court did not analyze the counts of the substitute complaint as they applied to K, and did not indicate at which point in time it should have become clear to the plaintiff that the action against K was without merit.

         Procedural History

         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 Britain, where the action was withdrawn as against the defendant Ward Kilduff Mortgage Corporation; thereafter, the matter was tried to the jury before Swienton, J.; subsequently, the court granted the motion for a directed verdict filed by the named defendant et al. and rendered judgment for the named defendant et al., from which the plaintiff appealed to this court; thereafter, the court granted the motions filed by the named defendant et al. for a special finding that the action was without merit and was not brought in good faith, and the plaintiff filed an amended appeal. Reversed in part; new trial.

          OPINION

          PRESCOTT, J.

         The named plaintiff, Daniel Pellet, acting in his capacity as guardian for his brother, Stephen Pellet, [1] appeals from the judgment of the trial court directing a verdict in favor of the defendants Keller Williams Realty Corporation (Keller Williams), Michael Ladden, David Olson, Pina Jenkins, Jason Kilduff, and Kimberly Kilduff[2] as to all eight counts of the plaintiff's substitute complaint, and from the trial court's granting of the defendants' motions for a special finding pursuant to General Statutes § 52-226a.[3] The plaintiff argues that the court improperly (1) directed the verdict in favor of the defendants because it erroneously (a) equated all of the plaintiff's allegations to claims of professional negligence and (b) determined that, as such, they must fail for lack of expert testimony as to the applicable standard of care; and (2) found that the plaintiff brought the action without merit and in bad faith pursuant to § 52-226a. We reverse the judgment and special finding of the court, and remand the case for a new trial.

         The following procedural history is relevant to this appeal, which arises out of the 2008 sale of 59 Paper Chase Trail in Avon (property) from Stephen Pellet to Kimberly Kilduff. The underlying action was commenced on September 9, 2011, against the defendants, who are Stephen Pellet's former real estate agents with respect to the sale of the property (Olson and Jenkins), the agents' employer/realty agency (Keller Williams), Keller Williams' broker of record (Ladden), and the spouse of Kimberly Kilduff, Jason Kilduff. In his eight count substitute complaint dated February 20, 2015, the plaintiff alleges the following claims: breach of contract, breach of fiduciary duty of an agent, breach of the implied covenant of good faith and fair dealing, negligent misrepresentation, intentional misrepresentation, negligent supervision, conspiracy to defraud, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

         A jury trial commenced on July 8, 2015. On July 10, 2015, the defendants filed a written motion for a directed verdict, accompanied by a memorandum of law, and that same day, the plaintiff filed a memorandum of law in opposition.[4] On July 15, 2015, after the close of evidence in the trial but before the parties' closing arguments, the court, Swienton, J., granted the defendants' motion for a directed verdict, ruling, in relevant part: ‘‘[T]he court has carefully considered the counts against the defendants, and viewed in the light most favorable to the plaintiff, the court grants the motion [for a] directed verdict as to all defendants on all counts. . . . I am going to state my reasons on the record at this time. . . .

         ‘‘[Stephen Pellet] was the owner of property located at 59 Paper Chase Trail in Avon. The property was built in 1971 and other than minor renovations had never been updated or renovated. Furthermore, the house was full of clutter. The defendants David Olson and Pina Jenkins, real estate salespersons affiliated with Keller Williams agency, were contacted by [Stephen Pellet] and [his brother] Daniel Pellet. The evidence showed that [Stephen Pellet] was anxious to sell the property and, further, that he wished to net $90, 000 from the sale of the property. The listing price was established accordingly, after discussions with the realtors and [Stephen Pellet], and after the realtors performed a comparative market analysis, which was reviewed with and furnished to [Stephen Pellet]. A listing agreement was executed.

         ‘‘Kimberly Kilduff learned from a neighbor that the property was being sold, and the real estate agents, Olson and Jenkins, were contacts. Olson and Jenkins, after obtaining permission from [Stephen Pellet] to show the house, showed the property to the defendants Kimberly Kilduff and Jason Kilduff. An offer was placed by Kimberly Kilduff, which was accepted, and the house was sold for $100 more than the listing price. [Stephen Pellet] netted almost $89, 000. The buyers of the prop-erty, [5] the defendants Jason Kilduff and Kimberly Kilduff, performed extensive renovations to the property, exceeding some $100, 000 in expenses. They subsequently sold the property for $462, 000 and netted, in profits, approximately $16, 000.[6]

         ‘‘The operative complaint is in eight counts . . . . The underlying basis for each of these counts is based upon breaches of professional standards of care on the part of the real estate agent, broker, and salespersons regarding selection and recommendation of the listing price.

         ‘‘In an action based upon professional negligence, expert testimony will be [required] if the determination of that standard of care requires knowledge that is beyond the experience of a normal fact finder . . . . [T]he plaintiff in this case has failed to produce any expert testimony and therefore fails on [his] burden of proof of negligence. . . . Although the plaintiff presented an expert in the field of appraisals, this does not satisfy the requirement of an expert to testify as to the standard of care of a realtor in the determination and recommendation of a listing price.'' (Footnotes added.) Judgment in favor of the defendants was rendered on that same day. On July 22, 2015, the defendants filed a motion for a special finding pursuant to § 52-226a, which the court granted on February 25, 2016.[7] This appeal followed.

         As a preliminary matter, in reviewing the court's reasoning for granting the defendants' motion for a directed verdict, we highlight our concern with whether it applied the correct standard of review to the evidence presented at trial. ‘‘Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . This court has emphasized two additional points with respect to motions to set aside a verdict that are equally applicable to motions for a directed verdict: First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury.'' (Citation omitted; internal quotation marks omitted.) Curran v. Kroll, 303 Conn. 845, 856, 37 A.3d 700 (2012). This standard also requires the trial court to consider the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Beck-enstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 693, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009).

         In the present case, it is not entirely clear from the record whether the court made findings of fact in ruling on the defendants' motion. As previously indicated, such findings would be improper in the context of a motion for a directed verdict, given that ‘‘litigants have a constitutional right to have factual issues resolved by the jury''; (internal quotation marks omitted) id.; and that the court must view the evidence in the light most favorable to the plaintiff.[8] Id. Although the court expressly stated that it ‘‘viewed [the evidence] in the light most favorable to the plaintiff, '' certain aspects of its decision suggest it did not.

         For instance, the court stated at one point that it ‘‘cannot find that the defendants' actions were proven to be the proximate cause of the plaintiffs' harm.'' (Emphasis added.) Moreover, in its recitation of the evidence supporting its ruling, certain statements were clearly viewed in the light most favorable to the defendants, rather than to the plaintiff. For example, the court stated that ‘‘[t]he evidence showed that [Stephen Pellet] . . . wished to net $90, 000 from the sale of the property, '' even though the plaintiff testified at trial that he and Stephen Pellet never told Olson and Jenkins that they wanted to make a specific profit from the sale of the property, instead desiring to ‘‘maximize'' the profit to its fullest potential. The court also stated that Olson and Jenkins ‘‘obtain[ed] permission from [Stephen Pellet] to show the house . . . to . . . Kimberly Kilduff and Jason Kilduff, '' even though the plaintiff testified at trial to the contrary.

         Accordingly, we conclude that the court, in fact, did not view all of the evidence in the light most favorable to the plaintiff, pursuant to the applicable standard of review. Because the issue of ‘‘[w]hether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary'';[9] Curran v. Kroll, supra, 303 Conn. 855; we need not afford deference to the court's recitation of evidence and exercise plenary review over the record in the present appeal. In conducting our review of the court's decision to direct a verdict in favor of the defendants, we, too, are required to view the evidence in the light most favorable to the plaintiff. See id., 856. Additional evidence and procedural history will be set forth as necessary to address the plaintiff's individual claims.

         I

         DIRECTED VERDICT

         The plaintiff first claims on appeal that the court's directed verdict in favor of the defendants is fatally flawed in two respects: (1) the eight counts alleged by the plaintiff in his substitute complaint do not each equate to a claim of professional negligence; and (2) even if that were the case, the plaintiff's claims should not fail for lack of expert testimony presented at trial. In response, the defendants argue that each of the eight theories of recovery advanced in the plaintiff's complaint ‘‘centers upon the foundational allegation that the defendant realtors negligently or intentionally recommended a list price for the . . . property that was substantially below fair market value, '' and, thus, those eight theories of recovery presented, at their core, claims for professional negligence. As a result, the defendants argue, the plaintiff was required to present expert testimony to establish the applicable standard of care and any breach thereof, which he failed to do. We reject the defendants' arguments and agree with the plaintiff in both respects.

         A

         Professional Negligence

         The plaintiff first argues that the court improperly concluded that ‘‘[t]he underlying basis for each of [the plaintiff's eight] counts is based upon breaches of professional standards of care on the part of the real estate agent, broker and salespersons regarding selection and recommendation of the listing price.'' Although all eight counts of the substitute complaint incorporate the allegation that Olson and Jenkins set the list price for the property at $318, 000 when they knew, or should have known, that the fair market value of the property was, in fact, substantially greater, we agree with the plaintiff that it does not necessarily follow that all of the counts summarily can be characterized as one general claim of professional negligence.

         ‘‘The interpretation of pleadings presents a question of law over which our review is plenary.'' (Internal quotation marks omitted.) Oxford House at Yale v.Gilligan, 125 Conn.App. 464, 469, 10 A.3d 52 (2010). Furthermore, ‘‘in determining the nature of a pleading filed by a party, we are not bound by the label affixed to that pleading by the party.'' (Internal quotation marks omitted.) Selimoglu v.Phimvongsa, 119 Conn.App. 645, 651-52, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010). ‘‘In order for a claim to sound in professional negligence, it must be alleged that (1) the defendant is sued in his or her capacity as a professional, (2) the alleged negligence is of a specialized professional nature that arises out of the professional relationship, and (3) the alleged negligence is substantially related to the ...


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