Opinion
The plaintiff, Jude Loiselle, appeals from the judgment of the trial court rendered in favor of the defendants, Browning & Browning Real Estate, LLC (Browning), Mary Beth Malin, and Raymond Pre-ece.
The listing agreement between Browning and GMAC was based on a form contract that had been drafted eight years earlier in 2002. The terms of the listing agreement, however, had not been updated to reflect the technological developments in the field. The listing agreement did not account for the fact that, in 2005, GMAC began to require that their real estate agents use the Equator system, a computer interface where the listing agents and GMAC electronically exchange information regarding the property. Using the Equator system to communicate offers was inconsistent with the express terms of the listing agreement requiring that offers be mailed or faxed. Despite the language of the listing agreement, GMAC preferred to conduct business electronically using the Equator system.
Malin, an employee at Browning, was the listing agent for the property. GMAC regularly had reduced the purchase price of the property to no avail. Three prospective buyers previously had backed out of purchasing the property, one due to an unsatisfactory inspection. On the morning of April 21, 2010, however, Malin received two offers for the property, one from the plaintiff and one from The Cabrera Group, LLC (Cabrera).
In April, 2010, the plaintiff saw the property and was interested in buying it. On the morning of April 21,2010, JoAnn Hall, the plaintiffs real estate agent, submitted an offer on his behalf to Malin. The plaintiffs offer was for $94,900 with a $1000 deposit, contingent on satisfactory well and sewage inspections. The plaintiffs father had provided Hall with a check for the down payment, a letter stating he was giving his son cash to purchase the property, and a copy of an investment account statement reflecting a $12 million balance. Hall conveyed the offer to Malin.
On that same morning, April 21, 2010, Cabrera also made an offer to purchase the property. Cabrera was in the business of buying homes at favorable prices, renovating them, and then reselling them for a profit. Cabrera had been represented by Preece, also an agent at Browning, for nine years and together they had closed approximately fifteen real estate transactions. Preece would notify Cabrera of new listings, recommend specific properties, and place bids on behalf of Cabrera with little prior discussion. Preece had been monitoring the property in question for Cabrera. On April 7, 2010, Cabrera and GMAC began negotiating the pinchase of the property through Preece and Malin. On the morning of April 21, 2010, Preece gave Malin a written purchase and sale agreement for the property, offering to pay $90,000 with a $3000 deposit and no contingencies.
Malin submitted both Cabrera’s offer and the plaintiffs offer to GMAC using the Equator system on the morning of April 21, 2010. Neither potential buyer knew of
On the evening of April 21, 2010, Malin checked the status of the outstanding offers on the property and found GMAC had accepted the Cabrera offer. Malin notified Hall by e-mail that the plaintiffs offer had been rejected and that GMAC had accepted an offer from another bidder. On April 22, 2010, Hall saw the e-mail and replied: “[The plaintiff] agreed to the [counteroffer]. How can the seller accept another offer and not give my buyer notice to make highest and best?”
The plaintiff commenced the present action on June 2, 2010, and proceeded to trial against the defendants. The plaintiff alleged Malin committed tortious interference with contractual relations ánd negligent misrepresentation, and sought to hold Browning vicariously hable as Malin’s employer. The plaintiff also alleged that the defendants had “conspired to thwart” the plaintiffs real estate transaction in violation of CUTPA. In its memorandum of decision, the trial court found in favor of the defendants on all claims. This appeal followed. Additional facts will be set forth as needed.
I
The plaintiff claims the court erroneously admitted a portion of Malin’s testimony regarding the Equator computer system. Specifically, the plaintiff argues this testimony violates the parol evidence rule and should have been excluded because it conflicts with the provisions of the fisting agreement. The plaintiff also argues that
A
Before we reach the merits of the arguments raised in the plaintiffs brief, we consider the more fundamental legal question: whether a third party, not a beneficiary of the contract or a party to the contract, can question the terms of the contract by invoking the parol evidence rule. While the plaintiff argues in his brief that the parol evidence rule should exclude evidence of a change in the contract, he ignored the fundamental question as to whether a nonparty could invoke this rule. The defendants raised this issue in their brief, but the plaintiff failed to address it and did not file a reply brief.
“As we have so often noted, the parol evidence rale is not a rule of evidence, but a substantive rule of contract law.” (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania,
Generally, the parol evidence rule prevents parties from using extrinsic evidence to vary or contradict the unambiguous terms of an integrated contract. Id., 609-610. When deciding whether the parol evidence rule operates to prevent the trier of fact from considering certain evidence to interpret the contract, “[t]he fundamental question is . . . the intent of the parties.” Harris v. Clinton,
Parol evidence generally cannot be admitted to interpret or contradict the terms of an unambiguous contract that contains a merger clause. Tallmadge Bros. v. Iroquois Gas Transmission System, L.P.,
A third party, therefore, cannot enforce the obligations imposed by a merger clause, including the parol evidence rule, on a contracting party without first demonstrating that the contracting parties intended for those obligations to run to the third party. See Gazo v. Stamford, supra,
Other related case law provides further support for the proposition that third parties cannot invoke the parol evidence rule. Our Supreme Court acknowledged the inherent inequity in allowing third parties to benefit from the parol evidence rule, and carved out a limited exception to allow the introduction of extrinsic evidence to interpret the terms of a general release from liability. Sims v. Honda Motor Co.,
The plaintiff, as a stranger to the listing agreement, cannot invoice the parol evidence rule to prevent Malin from testifying regarding the Equator system. We acknowledge that the use of the Equator system was not included in the written listing agreement. We are guided by the intent of the contracting parties, however, and there was no evidence whatsoever that Browning and GMAC intended that any third party stranger could invoke the parol evidence rule. In fact, there was evidence to the contrary that the parties to the contract had agreed to use the Equator system. Despite the fact that Malin’s testimony may not have been in accord with the terms of the listing agreement, the trial court did not err in concluding the parol evidence rule was not pertinent, as the plaintiff had no right to invoke it.
B
The plaintiff also argues that the court erred in allowing Malin to testify that she was required to use the Equator system to communicate with GMAC. He argues this testimony constituted hearsay because “[Malin] was clearly testifying based on what someone allegedly told her to do.” We find no error.
The following additional facts are relevant to this claim. The plaintiff called Malin as a witness and questioned her about the Equator system, among other things. During Malin’s cross-examination, the defendants asked: “[0]nce GMAC required you to use the Equator system you were required to notify the seller of all offers through the Equator system, not by telephone, correct?” The court sustained the plaintiffs objection on hearsay grounds, reasoning the defendants were “asking what GMAC requires [Malin] to do.” The defendants modified the question to the court’s satisfaction, asking, “Once GMAC required you to use the Equator system that system required you to notify the seller of all offers through the Equator system, not by telephone, correct?” The plaintiffs subsequent objections were overruled
Our Supreme Court has recently reaffirmed the standard of review for claims regarding hearsay. “To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.” State v. Miguel C.,
“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to prove the truth of the matter asserted.” Conn. Code Evid. § 8-1 (3). Subject to certain exceptions, hearsay is
In the present case, the plaintiff has failed to explain how Malm’s responses constitute or imply an out-of-court statement was made by GMAC. The defendants did not ask Malin what GMAC said, and did not solicit testimony that could have implied what GMAC said during an identifiable conversation. The defendants asked Malin how the Equator system affected her communications with GMAC—whether she used the Equator system exclusively or used other means as well. The plaintiff has not shown that the defendants asked about the substance of Malin’s communications with GMAC, or that they solicited a response implying as much. The plaintiff cannot demonstrate what out-of-court statement Malin testified to, and therefore the court did not err in concluding this portion of Malin’s testimony was not hearsay. We conclude Malin’s testimony was properly admitted.
II
The plaintiff challenges the trial court’s factual findings with respect to the claim of tortious interference with contractual relations. Specifically, the plaintiff argues that the court erred with respect to the tortious interference with contractual relations claim in finding: (1) Malin did not intend to interfere with the plaintiff’s contractual relations; (2) the alleged interference was not tortious; and (3) the plaintiff did not suffer an actual loss. We conclude that these findings were not clearly erroneous.
The court’s determinations regarding Malin’s intent, whether Malin tortiously interfered with the plaintiffs contract, and the issue of damages are all findings of fact. Mather v. Griffin Hospital,
“A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants’ knowledge of that relationship, (3) the defendants’ intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff was caused by the tortious conduct.” (Internal quotation marks omitted.) Appleton v. Board of Education,
We conclude there is support in the record for the trial court’s factual finding that there was no tortious interference with the plaintiffs contractual relations. The record shows that Malin satisfied her obligation as the seller’s agent when she conveyed her reservations regarding the plaintiffs offer as a result of the inspection contingency. This is sufficient support for the court’s finding that Malin’s actions were not improper or wrongful. See id., 520-21. Even though Malin did not follow the telephone and fax procedures detailed in the listing agreement, this also was entirely proper, as the testimony demonstrated that all agents used the Equator system to communicate offers. The court did not err in concluding the plaintiff did not satisfy his burden of showing Malin improperly interfered with the bidding process, which was fatal to his claim of tortious interference with contractual relations.
Ill
With respect to the CUTPA claim, the plaintiff argues the “court never addressed the essential element of the CUTPA claim—whether there was a violation of public policy.”
The plaintiff asserts it was plain error for the court not to address the public policy element of his CUTPA claim. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Santopietro v. New Haven,
With respect to the claim here, the court recounted that “whether a practice is unfair depends upon the finding of a violation of an identifiable public policy,” and concluded “[t]he plaintiff failed to prove any law or public policy violations . . . .” The court reasoned that Malin gave “fair and accurate” evaluations of the competing offers, required similar information from both buyers, did not violate any disclosure requirements regarding the fact that both agents worked at Browning, and that the plaintiff failed to show Malin deviated from the “customary and normal” practices in the industry. The court recognized the public policy requirement of CUTPA, and addressed it accordingly.
The plaintiff also argues the facts here demonstrate a violation of public policy pursuant to CUTPA. Whether a practice is unfair and thus violates CUTPA is an issue of fact and is subject to the clearly erroneous standard of review. Tarka v. Filipovic,
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
U.S. Bank, N.A, Theresa E. Browning, the Cabrera Group, LLC, and David Cabrera also were defendants before the trial court but are not parties to this appeal. We refer in this opinion to Browning, Malin, and Preece collectively as the defendants
GMAC was the servicing agent for U.S. Bank, N.A., the bank that had foreclosed the property. GMAC was named as seller in the listing agreement.
For some unknown reason, when Hall provided Malin with the plaintiffs initial offer, the father’s investment account statement was never received. In response to Malin’s request, Hall resubmitted the statement.
We note that, contrary to Hall’s statement, the plaintiff did not accept GMAC’s counteroffer. Although the terms of the plaintiff’s response were the same as GMAC’s counteroffer—a purchase price of $94,900 with a $3000 deposit—the plaintiff’s counteroffer made $2000 of the deposit contingent on GMAC’s acceptance. The plaintiff therefore had not accepted the counteroffer because his acceptance was conditional. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co.,
Although the plaintiff did not brief this issue, he had an opportunity to present arguments in a reply brief but did not, and therefore the issue is properly before this court. Cf. Haynes v. Middletown,
The plaintiff does not claim to be a third party beneficiary of the listing agreement.
We note that, in this case, there was no evidence that the listing agreement was ambiguous. Absent this finding, not even the parties to the contract could have claimed the parol evidence rule prevented evidence of a deviation from the terms, let alone a nonparty and total stranger to the listing agreement. See Schilberg Integrated Materials Corp. v. Continental Casualty Co.,
After the initial objection, which was sustained, the plaintiff objected two additional times to the question as rephrased.
We agree with the defendants that the plaintiff mischaracteiizes the nature of Malm’s testimony. The plaintiffs brief reads: “Malin testified that ‘someone’ told her that she had to use the Equator system . . . .” (Emphasis omitted.) The plaintiff does not refer us to anywhere in the record where Malin stated she was told to use the Equator system.
Alternatively, we note that there was no error because it was not clearly erroneous for the court to find Malin did not intend to improperly interfere with the contractual relationship or that the plaintiff failed to prove he suffered any damages, which were also essential elements of this claim.
Because we conclude there was no error with respect to the tortious interference claim, we do not need to address the plaintiffs proposition, based on Sportsmen’s Boating Corp. v. Hensley,