Loiselle v. Browning & Browning Real Estate, LLC
147 Conn. App. 246
Conn. App. Ct.2013Background
- After foreclosure GMAC listed a Thompson, CT property with Browning & Browning under a written listing agreement (2002 form) requiring written offers be mailed or faxed; GMAC used an electronic Equator system in practice.
- Malin (Browning agent) received two competing April 21, 2010 offers: plaintiff’s contingent $94,900 offer and Cabrera’s $90,000 cash, no-inspection offer presented by Preece (also a Browning agent).
- Malin submitted both offers to GMAC via Equator, noted concerns about the plaintiff’s inspection contingency, and GMAC accepted Cabrera’s offer; Equator thereafter locked out further submissions.
- Plaintiff sued Malin, Preece and Browning for tortious interference with contractual relations, negligent misrepresentation, vicarious liability, and CUTPA violations; trial court ruled for defendants and plaintiff appealed.
- On appeal plaintiff argued (1) parol evidence should have barred Malin’s testimony about Equator, (2) Malin intended to and did tortiously interfere, and (3) defendants violated public policy under CUTPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of testimony about Equator (parol evidence) | Parol evidence should exclude Malin’s testimony because it contradicts the listing agreement requiring mail/fax. | Plaintiff is a stranger to the listing contract and cannot invoke the parol evidence rule; extrinsic evidence about practice is admissible. | A nonparty may not invoke the parol evidence rule; Malin’s Equator testimony was admissible. |
| Hearsay challenge to Malin’s testimony about Equator requirements | Malin’s statement that she was "required" to use Equator is hearsay (reported command of GMAC). | Question concerned how the system worked and Malin’s practice, not an out‑of‑court statement of GMAC. | Court correctly found the testimony described system operation, not hearsay. |
| Tortious interference with contractual relations | Malin intentionally and wrongfully interfered with plaintiff’s contract by favoring Cabrera and not notifying plaintiff to improve offer. | Malin conveyed reservations about inspection contingency, treated offers according to practice, and did not act improperly. | Trial court’s factual findings (no intent to improperly interfere; no tortious conduct; no proven damages) were not clearly erroneous. |
| CUTPA/public policy element | Conduct violated public policy and thus supports CUTPA claim. | No identifiable public policy/statute/common-law rule was violated; industry practice and equal treatment shown. | Trial court addressed public policy and reasonably found no CUTPA violation. |
Key Cases Cited
- Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756 (parol evidence is substantive contract law)
- Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599 (plenary review for questions of law re: parol evidence)
- Gazo v. Stamford, 255 Conn. 245 (third-party rights depend on contracting parties’ intent)
- Sims v. Honda Motor Co., 225 Conn. 401 (limited exception re: extrinsic evidence and strangers to contract)
- Tallmadge Bros. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479 (merger clause effect on parol evidence)
- Appleton v. Board of Education, 254 Conn. 205 (elements of tortious interference with contractual relations)