NRT NEW ENGLAND, LLC v. CHRISTOPHER G.L. JONES
(AC 37107)
Connecticut Appellate Court
Argued October 19, 2015—officially released February 9, 2016
DiPentima, C. J., and Prescott and Harper, Js.
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The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the
All opinions are subject to modification and technical correction prior to official publication in the
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the
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John A. Parese, with whom were Louis M. Federici and, on the brief, Giovanni R. D‘Amico, for the appellant (defendant).
Thomas E. Crosby, for the appellee (plaintiff).
Opinion
HARPER, J. In this breach of contract action, the defendant, Christopher G.L. Jones, appeals from the judgment of the trial court, rendered after a trial to the court, awarding the plaintiff, NRT New England, LLC, doing business as Coldwell Banker Residential Brokerage, certain commissions for real estate brokerage services. On appeal, the defendant claims that the court improperly (1) determined that the brokerage agreement between the parties was enforceable because (a) it does not substantially comply with the requirements of
The following facts and procedural history are relevant to the resolution of this appeal. The defendant met Andrea Woolston, a licensed realtor working as an independent contractor of the plaintiff, in October, 2010. The defendant expressed to Woolston a desire to purchase a home for himself and his then fiance´e, Katherine Wiltshire. One of the first things Woolston asked the defendant was whether he was represented by another agent. The defendant responded that he was not. After a number of conversations about the defendant‘s needs and wishes, the parties executed an exclusive right to represent buyer agreement (agreement), which established, among other things, that Woolston was the defendant‘s exclusive agent for finding, negotiating, and purchasing property. Over the next several months, Woolston devoted a substantial amount of time searching for properties for the defendant to purchase. Specifically, Woolston researched available properties at six town halls in the communities in which the defendant was interested. She showcased a number of properties personally to the defendant and Wiltshire and introduced many more to them through e-mail. Woolston and the defendant had at least twenty appointments where they viewed multiple properties. Additionally, Woolston visited many properties alone to determine if they were suitable for the defendant. Altogether, Woolston spent hundreds of hours seeking a suitable home for the defendant.
The agreement was in effect from January 11, 2011 until July 11, 2011, and set forth the geographical area that the defendant was interested in and the rate of compensation for the plaintiff‘s services. With respect to geographical area, the parties agreed that Woolston would seek properties in Killingworth, Guilford, Essex, Old Saybrook, Deep River, Lyme, and Old Lyme. With respect to compensation, the defendant agreed to pay the plaintiff a commission equal to 2.5 percent of the purchase price of the property “if the [defendant] or any person or entity acting on the [defendant‘s] behalf purchases, options, exchanges, leases or trades any property, through the efforts of anyone, including the [defendant] . . . .” The agreement imposed the following duties on the defendant: “The [defendant] will not deal directly with any other broker, agent or licensee during the term of this [a]greement. The [defendant] will notify other brokers, agents or licensees at first contact that the [defendant] is being exclusively represented by [the plaintiff]. The [defendant] will disclose to [the plaintiff] any past and/or current contacts for any real property or with any other real estate broker or agent.” The agreement also contains the following clause concerning compensation: “[The plaintiff] will, whenever feasible, seek compensation from the
On May 10, 2011, the defendant informed Woolston via e-mail that he and Wiltshire purchased property at 300 Vineyard Point Road in Guilford for $1,375,000. The defendant learned of this property on May 4, 2011, from Mary Jane Burt, a realtor with H. Pearce Real Estate (H. Pearce), who previously had represented Wiltshire with the sale of her house in Hamden. Woolston subsequently confronted the defendant and eventually learned that he and Wiltshire previously had executed an exclusive right to represent buyer agreement with Burt and H. Pearce. This agreement was in effect from August 1, 2010, until August 1, 2011, and contained a provision designating Burt as the exclusive agent for the defendant and Wiltshire. Thus, at the time the defendant purchased the property in Guilford, he was under contract for exclusive agency with both Woolston and Burt. The defendant never told Woolston or Burt that he had two agreements in effect at the same time. Woolston notified her superiors of what had transpired, the defendant and Wiltshire closed on the property, and the plaintiff subsequently placed a broker‘s lien on the property for $34,375, which represents 2.5 percent of the purchase price.
On or about July 10, 2012, the plaintiff filed a twocount complaint against the defendant. In count one, the plaintiff sought to foreclose its broker‘s lien against the defendant‘s property.2 Count two is a breach of contract claim. After a trial to the court, the court issued a memorandum of decision on July 28, 2014. The court found that the plaintiff had proven the allegations in its breach of contract count and damages. The court‘s judgment on the plaintiff‘s breach of contract claim was supported by two important determinations. First, the court rejected the defendant‘s contention in his posttrial brief that the agreement did not comply with
I
The defendant first claims that the agreement was unenforceable. Specifically, he argues that the court improperly (1) held that the agreement substantially complied with
A
Substantial Compliance
The defendant claims that the agreement does not substantially comply with
We turn next to the relevant text of the statute. Section 20-325a (b) sets forth seven separate items that must appear in brokerage contracts for a broker, such as the plaintiff, to recover for services rendered. The contract must “(1) [b]e in writing, (2) contain the names and addresses of the real estate broker performing the services and the name of the person or persons for whom the acts were done or services rendered, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization, (5) be signed by the real estate broker or the real estate broker‘s authorized agent, (6) if such contract or authorization pertains to any real property, include the following statement: ‘THE REAL ESTATE BROKER MAY BE ENTITLED TO CERTAIN LIEN RIGHTS PURSUANT TO SECTION 20-325a OF THE CONNECTICUT GENERAL STATUTES‘, and (7) be signed by the person or persons for whom the acts were done or services rendered or by an agent authorized to act on behalf of such person or persons . . . .”
The defendant takes issue with the agreement‘s compliance with subsection (b) (6) of
“The right of a real estate broker to recover a commission is dependent upon whether the listing agreement meets the requirements of
Subsection (d) of
With these principles in mind, we conclude that the agreement substantially complied with the requirements of the statute. To begin with, we disagree that
Additionally, the legislature explicitly has mandated notice requirements to appear in all capital letters in other provisions within title 20. For example,
The defendant also claims that the agreement‘s reference to the wrong subsection of
On the basis of the foregoing analysis, we conclude that the agreement substantially complied with
B
Equitable Considerations
The defendant also claims that the court abused its discretion when it determined that it would be inequitable to deny the plaintiff recovery. We disagree.
As a preliminary matter, the parties dispute the appropriate standard of review. The plaintiff argues that we should review this claim under the clearly erroneous standard. The defendant insists that plenary review is required. We agree with the plaintiff and, accordingly, review this claim under the clearly erroneous standard. See Dow & Condon, Inc. v. Muros North Ltd. Partnership, 69 Conn. App. 220, 228, 794 A.2d 554 (2002) (“[E]quitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court. . . . The determination of whether a particular set of circumstances was unjust is essentially a factual finding for the trial court.” [Citation omitted; internal quotation marks omitted.]); see also State v. Krijger, 313 Conn. 434, 446, 97 A.3d 946 (2014) (“[A] . . . trial court‘s findings of fact are not to be overturned on appeal unless they are clearly erroneous. A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” [Internal quotation marks omitted.]).
There is ample evidence in the record to support the court‘s conclusion that denying the plaintiff relief would be inequitable. Woolston testified, and the defendant himself conceded, that she rendered a significant amount of services to the defendant over several months. Specifically, Woolston researched properties at town halls for availability and encumbrances, contacted property owners, arranged personal visits, prepared and presented literature to the defendant on available properties, and attended appointments with the defendant and Wiltshire. Woolston spent hundreds of hours working for the defendant in total. The defendant, on the other hand, accepted Woolston‘s services while under contract with another agent in violation of the agreement. Indeed, the defendant acknowledged that he was untruthful with Woolston at the beginning of their relationship when he told her that he was not represented by another agent. In fact, he was scheduling appointments and viewing properties with both Woolston and Burt at approximately the same time in May, 2011. For example, the defendant e-mailed Woolston on May 2, 2011, thanking her for showing him a property. Approximately one week later, the defendant e-mailed Woolston to inform her that he
The defendant nevertheless argues that it would not be inequitable to deny recovery to the plaintiff because Woolston performed no services in connection with his purchase of 300 Vineyard Point Road. We are not persuaded. The defendant agreed to pay a commission “equal to 2.5 % of the purchase price if the [defendant] or any person or entity acting on the [defendant‘s] behalf purchases . . . any property, through the efforts of anyone, including the [defendant], where an agreement to purchase the property was entered into during the [t]erm of this [a]greement.” However unjust this result may seem to the defendant in hindsight, we cannot say it is inequitable because it is precisely what he agreed to.
II
The defendant next claims that the court improperly determined that it was not feasible for the plaintiff to seek compensation from the seller or the seller‘s agent. We disagree.
The following facts are relevant to our resolution of this claim. The agreement contains the following clause: “[The plaintiff] will, whenever feasible, seek compensation from the [s]eller or the [s]eller‘s agent; but, advises the [b]uyer that such compensation: (1) is not always offered, and (2) may not be equal to the [c]omission called for hereunder.” (Emphasis omitted.) At trial, the plaintiff called Woolston; Brendan Grady, the plaintiff‘s regional vice president; and Joan Davis-Clark, the plaintiff‘s sales manager in its Madison office. Woolston, Grady, and Davis-Clark all testified that the plaintiff did not seek compensation from the seller‘s agent, William Pitt-Sotheby‘s International Realty (Sotheby‘s). They each testified that Woolston did not perform any services for the defendant in connection with his purchase of 300 Vineyard Point Road. They explained that because Woolston did not perform any services leading to the defendant‘s purchase of the property, the plaintiff was not the procuring cause of the purchase, which Grady described as “an unbroken chain of events that leads to a purchase . . . .” In the absence of procuring cause, they explained, it was not feasible to seek compensation from Sotheby‘s. Instead, Davis-Clark testified that she reached out to representatives of H. Pearce, explained to them that the plaintiff had the defendant under an exclusive right to represent buyer agreement, and unsuccessfully attempted to recover Woolston‘s commission from H. Pearce. On the basis of this testimony, the court found that Woolston was not the procuring cause and, consequently, that it was not feasible for the plaintiff to seek compensation from Sotheby‘s.
Because the court relied on evidence of facts outside of the agreement, namely, the parties’ testimony, in finding that it was not feasible for the plaintiff to seek compensation from Sotheby‘s, we review this claim for clear error. See generally Sunset Gold Realty, LLC v. Premier Building & Development, Inc., 133 Conn. App. 445, 452, 36 A.3d 243, cert. denied, 304 Conn. 912, 40 A.3d 319 (2012). The defendant claims that the court‘s finding was clearly erroneous, arguing that it was entirely feasible for the plaintiff to seek compensation from Sotheby‘s, regardless of the likelihood that Sotheby‘s would actually pay. The defendant insists that a simple demand on the seller or the seller‘s agent would have sufficed to satisfy the plaintiff‘s contractual obligation. We disagree. It is well established that “[t]he law does not require an act which would be a mere futility.” (Internal quotation
III
The defendant‘s final two claims are that the court erroneously calculated the amount of the commission to which the plaintiff was entitled and the court improperly granted the plaintiff a commission on the one-half interest in the property owned by the defendant‘s wife. We decline to address these claims because the defendant has briefed them inadequately.
“[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel‘s work, create the ossature for the argument, and put flesh on its bones.” (Citation omitted; internal quotation marks omitted.) State v. Prosper, 160 Conn. App. 61, 74–75, 125 A.3d 219 (2015).
First, the defendant claims that, to the extent that the plaintiff was entitled to compensation at all, the court should not have awarded a commission equal to 2.5 percent of the purchase price, as set forth in the agreement. Instead, the defendant claims, the plaintiff should have been awarded a commission in the amount of 2 percent, which is the amount set forth in Sotheby‘s listing. The defendant‘s analysis of this claim, however, contains conclusory assertions and no authority to support his position that the seller‘s rate is the appropriate figure to employ. We conclude that the defendant has briefed this claim inadequately, and, accordingly, we decline to consider it.
Second, the defendant claims that the court should have, at most, awarded the plaintiff one half of the compensation it sought because he owns only a onehalf interest in the property. This claim is summarized in four sentences with no legal authority cited. Because the defendant does not cite any authority or develop his claim with analysis, we conclude that the claim is inadequately briefed. Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 279, 25 A.3d 632 (2011).
The judgment is affirmed.
In this opinion the other judges concurred.