214 Conn.App. 648
Conn. App. Ct.2022Background
- In 2005 Konover (plaintiff) and Waterbury Omega (defendant) entered an oral, exclusive management agreement (no fixed term) under which Konover would market, license and collect rooftop wireless site revenue in exchange for 30% commissions.
- Konover procured two original rooftop leases (Nextel/Sprint and New Cingular/AT&T) and collected commissions from 2005–2016; thereafter payments became intermittent.
- Waterbury Omega later entered three additional wireless agreements (Omnipoint/T‑Mobile, Pocket, Verizon) and did not pay Konover commissions on those agreements.
- Konover sued and moved for a prejudgment remedy to attach assets for alleged unpaid commissions; Waterbury Omega asserted special defenses: violation of Conn. Gen. Stat. §20‑325a (written broker agreements), the statute of frauds, and the rule against perpetuities.
- At the prejudgment remedy hearing the court credited expert testimony that each installation occupied <360 sq ft and found probable cause that the oral agreement was valid, breached, and that §20‑329(9) (the 360 sq ft exception) applied; the court granted attachment for damages (order later corrected to $157,075.96).
Issues
| Issue | Konover's Argument | Waterbury Omega's Argument | Held |
|---|---|---|---|
| Whether §20‑325a’s written‑agreement bar precludes recovery | §20‑325a does not bar recovery because the sites are licenses (not interests in land) and alternatively fall within §20‑329(9)’s 360 sq ft exception | §20‑325a bars recovery because no written broker agreement exists and the exception does not apply | Court upheld finding that §20‑329(9) exception applied (court credited expert on measurement/industry practice); §20‑325a defense did not defeat probable cause |
| Admissibility/use of expert testimony to define undefined, technical statutory terms | Expert testimony about industry measurement/custom aids statutory construction under Conn. Gen. Stat. §1‑1(a) | Industry practice cannot override plain statutory terms; statute is a consumer‑protection measure not needing expert input | Court properly admitted and relied on expert (industry meaning appropriate for undefined technical terms) |
| Whether the rule against perpetuities bars enforcement | Agreement creates no property interest; rights are contractual (money/commission) and therefore not subject to perpetuities rule | Plaintiff’s claimed ongoing commission rights (including future leases) are perpetual interests the rule forbids | Court held perpetuities inapplicable because agreement created no property interest; defense did not defeat probable cause |
| Whether statute of frauds (§52‑550(a)(4) & (5)) bars enforcement | Agreement is for services (commission arrangement), not an interest in real property; agreement is indefinite in duration (not within one‑year bar) | Claims relate to real property interests (portion of premises) and some underlying leases exceed one year; oral agreement cannot be enforced | Court found the contract a services agreement (not an interest in land) and of indefinite duration; statute of frauds defenses fail to defeat probable cause |
Key Cases Cited
- TES Franchising, LLC v. Feldman, 286 Conn. 132 (Conn. 2008) (standard of review and probable‑cause standard for prejudgment remedies)
- C. R. Klewin, Inc. v. Flagship Properties, Inc., 220 Conn. 569 (Conn. 1991) (oral contract of indefinite duration is outside statute of frauds one‑year bar)
- Shoreline Shellfish, LLC v. Branford, 336 Conn. 403 (Conn. 2020) (undefined technical terms in statutes are construed as they would be by informed persons in the trade)
- Pagano v. Ippoliti, 245 Conn. 640 (Conn. 1998) (distinguishing damage claims for financial loss from contracts that convey real property interests)
- H. J. Lewis Oyster Co. v. West, 93 Conn. 518 (Conn. 1919) (rule against perpetuities concerns property interests only)
- Sullivan v. Metro‑North Commuter R.R. Co., 292 Conn. 150 (Conn. 2009) (test for admissibility and usefulness of expert testimony)