Reyher v. Finkeldey , 182 Conn. App. 159 ( 2018 )

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MARK R. REYHER v. JOHN A. FINKELDEY
(AC 40296)
Alvord, Sheldon and Mihalakos, Js.
Syllabus
The plaintiff, a licensed real estate broker, brought this action against the
defendant property owner seeking the payment of a commission alleg-
edly due pursuant to a real estate listing agreement between the parties.
The defendant had authorized the plaintiff to offer the defendant’s com-
mercial property for sale and agreed to pay the plaintiff a 5 percent
commission if the plaintiff procured a buyer who was ready, able and
willing to purchase the property for $870,000 or for any other price, or
upon such terms as agreed by the seller. During the term of the listing
agreement, the plaintiff procured a prospective buyer, V Co., and pre-
sented the defendant with a real estate purchase and sales agreement
to purchase the property for the listing price of $870,000 contingent on
V Co.’s ability to obtain financing and an inspection of the property.
The defendant subsequently rejected the offer, and a binding agreement
to purchase the subject property was never reached. Thereafter, the
plaintiff brought this action against the defendant alleging that the defen-
dant owed him $43,500, which represented the commission he claimed
to have earned by procuring V Co. as a buyer pursuant terms of the
listing agreement. At trial, V Co.’s principal testified that V Co. was not
ready, willing, and able to close on the property without fulfillment of
the financing and inspection contingencies. The trial court rendered
judgment in favor of the plaintiff and awarded him damages in the
amount of $43,500, from which the defendant appealed to this court.
Held that the trial court erroneously concluded that the plaintiff had
met his burden of proving that he procured a buyer that was ready,
willing and able to purchase the defendant’s property in accordance
with the terms of the listing agreement; it is well established that until
a contingency contained in a sales agreement has been met, a prospective
buyer cannot be said to be ready, willing, and able to purchase, the
evidence here demonstrated that V Co. was not ready, willing or able
to purchase the defendant’s property unless certain contingencies were
fulfilled, and it was undisputed that those contingencies were contained
in the counteroffer and rejected by the defendant.
Argued April 11—officially released May 22, 2018
Procedural History
Action to recover damages for, inter alia, alleged
breach of real estate listing agreement, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Middlesex and tried to the court, Domnarski,
J.; judgment in favor of the plaintiff, from which the
defendant appealed to this court. Reversed; judgment
directed.
Matthew G. Berger, for the appellant (defendant).
Michael Ruben Peck, for the appellee (plaintiff).
Opinion
PER CURIAM. The defendant, John A. Finkeldey,
appeals from the judgment of the trial court rendered
in favor of the plaintiff, Mark R. Reyher, a licensed real
estate broker doing business as Reyher Real Estate,
requiring payment of his commission. On appeal, the
defendant claims that the court improperly concluded
that the plaintiff procured a buyer who was ready, will-
ing and able to purchase the defendant’s property under
the terms of the listing agreement. We agree and,
accordingly, reverse the judgment of the trial court.
The following facts, which are undisputed, are rele-
vant to our analysis. On September 14, 2015, the defen-
dant entered into a commercial exclusive agency listing
agreement with the plaintiff for the sale of the defen-
dant’s property, located at 33 Plains Road in Essex.
Under the listing agreement, the defendant authorized
the plaintiff to offer the property for sale for the price
of $870,000, and agreed to pay the plaintiff a 5 percent
commission if he ‘‘procure[d] a buyer . . . ready, able
and willing to purchase . . . the [property] for
[$870,000] . . . or for any other price or upon such
terms as may be agreed to by the [seller], as signified
by the buyer’s . . . execution of a written purchase
contract.’’ During the term of the listing agreement,1 the
plaintiff procured a prospective buyer, Valley Railroad
Company (Valley), and on October 14, 2015, presented
the defendant with a real estate purchase and sales
agreement, executed by Valley. Under the purchase and
sales agreement, Valley counter offered to purchase
the defendant’s property for the listing price, $870,000,
contingent on (1) its ability to obtain financing, (2) an
inspection, and (3) having ‘‘120 day[s] to have [the]
property reviewed for any environmental considera-
tions.’’ The defendant subsequently rejected Valley’s
offer, and a binding agreement to purchase the subject
property was never reached.
On December 8, 2015, the plaintiff filed this action
against the defendant, alleging that he was owed
$43,500, a sum representing the commission he claimed
to have earned by procuring a ready, willing and able
buyer for the defendant’s listed property. The case was
tried to the court on February 8, 2017. During cross-
examination by defendant’s counsel, Kevin Dodd, the
president of Valley, testified that Valley was not ready,
willing and able to close on the property without fulfill-
ment of the financing and inspection contingencies.2
On March 24, 2017, the court issued a memorandum of
decision awarding the plaintiff damages in the amount
of $43,500. The trial court found that the ‘‘plaintiff . . .
satisfied his burden of proving entitlement to a commis-
sion under the terms of the listing agreement . . . [hav-
ing] procured a prospective buyer, who offered to pay
the full price stated on the listing agreement. In the
listing agreement, the seller did not require any addi-
tional terms or conditions to be contained in an offer.
[Valley] was ready, willing, and able to close the transac-
tion in accordance with the offer presented to the seller.
The defendant, therefore, breached his contract obliga-
tions to the plaintiff.’’ This appeal followed.
We turn to our standard of review and the legal princi-
ples that guide our resolution of the defendant’s claim
on appeal. The law is well settled that a real estate
broker who procures a buyer ready, willing and able
to purchase the subject property on the owner’s terms
is entitled to a commission pursuant to the provisions
of a valid listing agreement. See, e.g., Vincent Metro,
LLC v. Ginsberg, 139 Conn. App. 632, 638–39, 57 A.3d
781 (2012), cert. denied, 308 Conn. 907, 61 A.3d 1097
(2013). ‘‘The right of a brokerage firm to recover a
commission depends upon the terms of its employment
contract with the seller. To be enforceable, this employ-
ment contract, often called a listing contract, must be
in writing and must contain the information enumerated
in General Statutes § 20-325a (b).3 . . . To recover its
commission, the brokerage firm ordinarily must show
that it has procured a customer who is ready, willing,
and able to buy on terms and conditions prescribed or
agreed to by the seller. . . . In the alternative, the bro-
ker may be entitled to recover if it has brought the
buyer and the seller to an enforceable agreement. . . .
Our Supreme Court has repeatedly held that a broker
who has, in accordance with a listing contract, found
a purchaser ready, willing, and able to purchase, on the
owner’s own terms, is entitled to its commission even
though no contract for the sale of the property has ever
been executed.’’ (Citations omitted; footnote added;
internal quotation marks omitted.) Id.; see also Dyas
v. Akston, 137 Conn. 311, 313, 77 A.2d 79 (1950) (‘‘[t]his
rule does not require that the parties enter into an
enforceable agreement but only that the offer of one
party fairly meets the terms of the other’’ [emphasis
added]).
It is well established that until a contingency con-
tained in a sales agreement has been met, a prospective
buyer cannot be said to be ready, willing and able to
purchase. See Frumento v. Mezzanotte, 192 Conn. 606,
617, 473 A.2d 1193 (1984) (‘‘[a] proposed purchaser [of
land] cannot be said to be able to purchase when he
is dependent upon [a purchase price loan from a third
party] who [is] in no way bound to furnish the funds’’
[internal quotation marks omitted]); Menard v. Coronet
Motel, Inc., 152 Conn. 710, 711–12, 207 A.2d 378 (1965)
(broker not entitled to commission under listing
agreement where prospective buyers’ obligation to pur-
chase was contingent upon their ability to sell their real
estate); Eames v. Mayo, 97 Conn. 725, 727–28, 117 A.
802 (1922) (broker not entitled to commission where
sale subject to verification of condition of defendant’s
business generally satisfactory to prospective buyers);
Kost v. Reilly, 62 Conn. 57, 61–62, 24 A. 519 (1892)
(broker not entitled to commission where sale condi-
tioned upon buyer obtaining license).
On appeal, it is the function of this court to determine
whether the trial court’s finding of fact, that the plaintiff
procured a buyer ready, willing and able to purchase
the defendant’s property, is clearly erroneous. See, e.g.,
Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 78–79,
438 A.2d 1202 (1982); William Raveis Real Estate, Inc.
v. Stawski, 31 Conn. App. 608, 611, 626 A.2d 797 (1993).
‘‘This involves a two part function: where the legal con-
clusions of the court are challenged, we must determine
whether they are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision; where the factual basis of
the court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous.’’ (Internal quotation
marks omitted.) Frumento v. Mezzanotte, supra, 192
Conn. 617–18; see also Goldblatt Associates v. Panza,
24 Conn. App. 250, 252, 587 A.2d 433 (1991). ‘‘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 convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) NRT New England, LLC v. Jones,
162 Conn. App. 840, 853, 134 A.3d 632 (2016).
In the present case, the evidence demonstrated that
the prospective buyer was not ready, willing or able to
purchase the defendant’s property unless certain con-
tingencies were fulfilled. In light of the undisputed fact
that those contingencies were contained in the count-
eroffer and rejected by the defendant, the trial court
erroneously concluded that the plaintiff had met his
burden of proving that he procured a buyer ready, will-
ing and able to purchase the defendant’s property in
accordance with the terms of the listing agreement.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendant.
1
The agreement commenced on September 14, 2015, and expired on
September 14, 2016.
2
We also note that, at trial, the plaintiff offered no evidence of Valley’s
fulfillment of, or ability to fulfill, those three conditions.
3
Section 20-325a (b) establishes the requirements for the maintenance of
an action by a broker for a commission. See Thornton Real Estate, Inc. v.
Lobdell, 184 Conn. 228, 229–30, 439 A.2d 946 (1981). In the present case,
the parties do not dispute the validity of the listing agreement. General
Statutes § 20-325a (b) provides in relevant part: ‘‘No person, licensed under
the provisions of this chapter, shall commence or bring any action with
respect to any acts done or services rendered after October 1, 1995, as set
forth in subsection (a), unless the acts or services were rendered pursuant
to a contract or authorization from the person for whom the acts were done
or services rendered. To satisfy the requirements of this subsection any
contract or authorization shall: (1) Be 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 authoriza-
tion 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 . . . .’’