Opinion
No. CV 06-4017222
June 14, 2007
MEMORANDUM OF DECISION
This matter came on for trial before the court on March 13, 2007. Thereafter, the plaintiff filed its post-trial brief on April 10, 2007.
The evidence disclosed that the plaintiff is a corporation engaged in the business of real estate brokering on behalf of clients, with an office at 3074 Whitney Avenue, Hamden, Connecticut. On April 2, 2005 the defendant, residing at 329 Belden Road in Hamden and plaintiff entered into a contract pursuant to which the plaintiff, as broker, was given the exclusive right to sell the defendant's real property at the above Hamden address.
Plaintiff's Exhibit A is the "Right to Sell/Lease Contract" containing the rights and liabilities of the parties. It provides that plaintiff shall have "the exclusive right to sell 329 Belden Road between the dates of April 2, 2005 and October 3, 2005, at a listing price of $192,900, and a commission of 6 percent on the sale price to be due and owing.
The plaintiff listed the defendant's home with the Multiple Listing Service, and after multiple showings, on April 29, 2005, obtained an offer to purchase the defendant's home for $205,000 from Charlotte Jameson. Plaintiff's Exhibit B. The contract contained an "inspection contingency" to take place "14 days from last dated signature" dated April 29, 2005.
Jameson's offer of $205,000 exceeded the listing price by $12,100. The defendant accepted this offer. Thereafter, on May 21, 2005 Warren Seigel, plaintiff's agent, called the defendant to advise that an inspection was to be scheduled for the following day. Defendant responded that she "won't allow an inspection" and "was not going to sell."
The court finds the plaintiff's testimony credible that the defendant did not offer an explanation before hanging up as to why she had changed her mind with respect to selling. The defendant testified that she had been served with a legal separation complaint which included the court's "automatic orders," including the order that "neither party shall transfer . . . without the consent of the other party, in writing, or on order of the court, any property, individually or jointly held by the parties." Defendant's Exhibit 1. However, the court heard no evidence that the defendant attempted to seek legal advice as to whether and under what conditions the court would permit the sale to take place, before notifying the plaintiff of her refusal to sell, or at any time thereafter. Instead, the defendant testified that she attempted to get legal advice from the plaintiff despite Plaintiff's Exhibit A which states, at "C.5. Owner understands that Broker is not an expert in matters of law . . . Broker hereby advises Owner to seek expert assistance or advice on such matters."
On May 23, 2005 plaintiff received a request from Ms. Jameson's realtor for return of deposit. Plaintiff contacted the defendant requesting her authorization to return said deposit, which consent was provided to plaintiff by defendant.
The evidence disclosed that the prospective buyer, Jameson, ended up buying another home at 5 Merrimac Street in Hamden on July 29, 2005 for $220,000, for which she obtained a mortgage in the amount of $176,000.
To recover a commission, a broker must ordinarily show (1) that he has produced a customer ready, willing and able to buy on terms acceptable to the seller, or (2) that he has brought the buyer and seller to an enforceable agreement.Smith v. Coldwell Banker Comm., 91 Conn.App. 360, 363 (2005), citing Ditchkus Real Estate Co. v. Storm, 25 Conn.App. 51, 54, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 971 (1991). The evidence before the court clearly establishes that Ms. Jameson was a "ready, willing and able" buyer of the defendant's home in that she signed a valid contract for purchase, and she proved to be financially able to purchase by purchasing another home at increased cost and obtaining the necessary financing based upon an equity contribution of $44,000.
On July 11, 2006 defendant filed her answer containing five special defenses and counterclaim. Defendant had the burden of proof with respect to said special defenses and counterclaim. The counterclaim sounds in negligence against the plaintiff alleging a breach of the duty of care by plaintiff for failing to address defendant's concerns about her "pending divorce and the effect it had on ability to go forward with the proposed inspection and prospective sale of her home." Count Two, a claim for negligent infliction of Emotional Distress; Count Four, a claim for a CUTPA violation under § 42-110a et seq.; Count Five a claim for breach of the "fiduciary duty of care and loyalty" and Count Six, a claim for breach of contract. As for the negligence and intentional emotional distress claims, the court finds no evidence of extreme and outrageous conduct on the part of the plaintiff justifying a recovery on these claims. With respect to the CUTPA claim, the court can find no evidence that would enable the court to ascribe unfair or deceptive acts or practices in the conduct of the plaintiff with respect to the defendant.
Although the defendant attempts to claim that proper care on the part of a real estate agent includes filling the roles of lawyer, psychologist and matrimonial counselor, "a [real estate] broker has fully performed his task when he brings the parties to an enforceable agreement. If without any fraud, concealment, or other improper practice on the part of the broker, the [client] principal accepts the person presented upon the terms proposed, and enters into a binding and enforceable contract with him [her] for the purchase of the property, the commission is fully earned." (Internal citations and quotation marks omitted). Smith v. Coldwell Banker, supra. In this case, the contract was freely executed by both parties, and the court finds, based upon the evidence, that the realtor's commission was fully earned by the plaintiff for bringing to contract a buyer ready, willing and able to purchase the defendant's home.
The court further finds that the defendant has not met her burden of proving by a preponderance of the evidence, the better or weightier evidence, her special defenses and/or counterclaim. But for the unfortunate fact that the defendant did not seek appropriate legal assistance when confronted with the legal separation complaint, this dispute could have been avoided and all parties satisfied. Instead the defendant claims that the plaintiff was obligated to furnish the requisite legal advice. A realtor is not burdened with any such duty.
The court finds the issues for the plaintiff real estate company and finds that although Plaintiff's Exhibit A calls for a 6 percent commission to be paid by the property owner; the plaintiff recover of the defendant a commission of 3.5 percent of the contract price derived from the fact that a cooperative broker was responsible for producing the purchaser, as said home was listed on the multiple listing service. The evidence disclosed that the plaintiff's agreement with the cooperating broker was for a 3.5 percent — 2.5 percent split.
Accordingly, judgment may enter in favor of the plaintiff realtor to recover of the defendant the sum of $7,175 representing 3.5 percent of the contract price of $205,000, together with costs of suit. The court declines to award interest.