Christopher D. Desloge et al. v. Kelly Associates Real Estate, Inc. et al. (2011)

MEMORANDUM OF DECISION

RE MOTION FOR SUMMARY JUDGMENT (114.00)

I. Background

The plaintiffs have sued the defendants Kelly Associates, a real estate brokerage business (Kelly), and an individual broker, William Travers, concerning events leading up to and connected with the sale of plaintiffs' house in Darien, Connecticut in 2005.   The plaintiffs, who lived in Missouri, signed a “Darien Multiple Listing Service Inc. Exclusive Right to Sell Lease Listing Contract” with Kelly.   The plaintiff Christopher Desloge was involved in bankruptcy proceedings in the Missouri federal bankruptcy court, Eastern District of Missouri, Docket No. 05-41772-172.   Desloge's bankruptcy attorney on March 26, 2005 instructed Kelly and Travers to amend the listing contract to note that any sale of the Darien house would be subject to bankruptcy court approval.   A copy of this instruction was e-mailed to Mr. Desloge.   Travers prepared a listing noting that “sales subject to bankruptcy court approval.”   Subsequently, Travers was requested to remove that language from the listing, and Travers complied.   The services of Kelly and Travers were then terminated by the plaintiffs, and the house was listed with another broker at a price of $825,000.00, in July 2005, an amount less than the original listing price.   A month or two later, a bid of $790,000.00 was accepted, and a sale at that price was approved by the bankruptcy court.

In their amended complaint the plaintiffs allege that the defendants published to the multiple listing service that the sale needed bankruptcy court approval without their knowledge or approval, and that defendants owed them a contractual duty to market the property without disclosing the bankruptcy filing.   The amended complaint contains claims of breach of contract, breach of fiduciary duty, and violation of the covenant of good faith and fair dealing.

The defendants have moved for summary judgment contending that they were legally obligated to disclose that any sale would need bankruptcy court approval.   Further, they argue that plaintiffs signed the multiple listing and the listing agreement authorized disclosure of the information, and in fact the plaintiffs' attorney directed such disclosure.   Finally, the defendants contend there is no evidence that the disclosure caused damages.   In response, the plaintiffs argue that they authorized only disclosure of the information in the contract of sale not beforehand, that the disclosure put a “chill” on their efforts to market the house, and that there are disputed issues of fact about the damages.

II. Scope of Review

Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).

“Although a party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

The court concludes that summary judgment is warranted in this case, and that the defendants' motion should be granted.   At the outset, it was Mr. Desloge's bankruptcy attorney, A. Thomas DeWoskin, who instructed Travers and Kelly to modify the listing contract to the effect that “no sale can be consummated without the approval of the United States Bankruptcy Court.”   Travers Affidavit (attached to defendants' motion and memorandum, Dkt. Entry 114.00, as Exhibit 4) Exhibit 3. Moreover, the listing agreement itself authorizes the defendants to “disclose any information” that the Desloges gave them concerning the listed property.   Travers Affidavit, Exhibit 1 (the listing contract) ¶ 7.

The plaintiffs contend that Attorney DeWoskin only authorized the defendants to disclose the role of the bankruptcy court in the sale process on the listing agreement and the final contract, not the listing itself.   Even if this were true, the listing agreement was available to all brokers associated with the Darien Multiple Listing Service, so it is a distinction without a substantive difference.   But it is not true, because the listing contract authorized disclosure of the bankruptcy court's role in any event.   Finally, as defendants correctly point out, licensed real estate brokers in Connecticut are obligated not to conceal any material fact in a transaction.  Regs, Conn. State Agencies § 20-328-5a.   The court finds the requirement of bankruptcy court approval of any sale of the plaintiffs' house to be a material fact required to be disclosed.

Based on the foregoing discussion and conclusions, the court finds no legal basis for a claim of breach of contract, a claim of breach of fiduciary duty, or a violation of the implied covenant of good faith and fair dealing.¹

The motion for summary judgment is granted, and the amended complaint is dismissed.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. It is not necessary for the court to decide the issue of the defendants' claim that their disclosure of the bankruptcy court role in the transaction did not cause any damages.   Nevertheless, this contention is based on the deposition testimony of the ultimate buyer, Patricia Obando that she was unaware of any bankruptcy court involvement when she made her offer of $790,000.   She became aware of the circumstances only after the offer had been accepted.   Exhibit D to Defendants' Memorandum.   The attorney for Obando also testified she had no knowledge of those circumstances either until she saw the proposed sale contract.  Id., Exhibit C.This testimony is uncontradicted.   In opposing the motion for summary judgment, the plaintiff offered only a memorandum of law and provided no evidentiary basis for the claim that there was a material unresolved question of fact about the existence and amount of damages..  FN1. It is not necessary for the court to decide the issue of the defendants' claim that their disclosure of the bankruptcy court role in the transaction did not cause any damages.   Nevertheless, this contention is based on the deposition testimony of the ultimate buyer, Patricia Obando that she was unaware of any bankruptcy court involvement when she made her offer of $790,000.   She became aware of the circumstances only after the offer had been accepted.   Exhibit D to Defendants' Memorandum.   The attorney for Obando also testified she had no knowledge of those circumstances either until she saw the proposed sale contract.  Id., Exhibit C.This testimony is uncontradicted.   In opposing the motion for summary judgment, the plaintiff offered only a memorandum of law and provided no evidentiary basis for the claim that there was a material unresolved question of fact about the existence and amount of damages.

Adams, Taggart D., J.