Seth Boynick v. Stuart Lipman (2012)

MEMORANDUM OF DECISION RE OBJECTION TO FACT FINDER REPORT

On January 28, 2008, the plaintiff, Seth Boynick, commenced this action for the recovery of a real estate commission and attorneys fees allegedly due pursuant to a listing agreement with the defendant, Stuart Lipman.   On February 6, 2012, a hearing was held before fact finder Irving Shuberg, who issued a report on March 16, 2012.   The report includes the following findings of fact.   The plaintiff had an exclusive listing agreement (the agreement) with the defendant, dated October 4, 2006, regarding the defendant's real estate at 602 and 606 New Park Avenue, West Hartford.   The agreement provided for a term from July 20, 2006, through January 20, 2007, and a 5 percent commission of the total sale price.   Paragraph six of the agreement provides in relevant part that the plaintiff earns its commission if, “within 13 months after the expiration of the term of this Agreement, you SELL, LEASE OR EXCHANGE the Property to someone who is introduced to the Property during the term of this Agreement and whose name is included in a written list of prospects that we give you within 15 days after the termination of this Agreement.”   The property was sold to a tenant of the defendant on August 3, 2007 for $590,000.

The fact finder found that the contract clearly required a buyer to not only be introduced to the property during the agreement, but also to be included on a list of prospects given to the seller within fifteen days of the termination of the agreement, which in the present case would be between January 20, 2007 and February 5, 2007.   The fact finder also found that since no list was given to the defendant, the plaintiff failed to prove he was entitled to a commission.   On March 28, 2012, the plaintiff timely filed an objection to the fact finder's report.   On April 20, 2012, the defendant filed a motion in opposition to the plaintiff's objection.

“Attorney fact finders are empowered to hear and decide issues of fact on contract actions pending in the Superior Court ․ On appeal, [o]ur function ․ is not to examine the record to see if the trier of fact could have reached a contrary conclusion ․ Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous ․ This involves a two part function:  where the legal conclusions 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 decision 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.)  Mastroianni v. Fairfield County Paving, LLC, 106 Conn.App. 330, 335, 942 A.2d 418 (2008).

“[B]ecause the attorney [fact finder] does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney [fact finder] have no conclusive effect ․ The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney fact finder], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.”  (Internal quotation marks omitted.)  Id. “A party's actual knowledge is a question of fact for the trier ․ Likewise, what [the defendant] had reasonable cause to believe or should have known presents a factual question best left to the ultimate trier.   Knowledge, like intent, most often must be inferred from the surrounding circumstances.”  (Internal quotation marks omitted.)  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 45 Conn.Sup. 397, 406, 716 A.2d 967 (1998).

“After review of the findings of facts and hearing on any objections thereto, the judicial authority may take the following action:  (1) render judgment in accordance with the finding of facts;  (2) reject the finding of facts and remand the case to the fact finder who originally heard the matter for a rehearing;  (3) reject the finding of facts and remand the matter to another fact finder for rehearing;  (4) reject the finding of facts and revoke the reference;  (5) remand the case to the fact finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts;  or (6) take any other action the judicial authority may deem appropriate.”  Practice Book § 23–58(a).

The plaintiff objects to the fact finder's report on the ground that the fact finder incorrectly found that the contract required the list of prospective purchasers to be given to the defendant during the fifteen-day period after the termination of the contract.   The plaintiff further argues that the continuing written list of interested buyers provided through the term of the period was sufficient to identify the tenant.   The defendant counters that the fact finder correctly found that no list was given to the defendant.   Additionally, irrespective of how the clause is read regarding the fifteen-day window, the evidence does not support the precondition that the plaintiff introduced the tenant to the property during the term of the agreement because the tenant had been renting the property for the past twenty years.¹

DeForest Industries, Inc., v. Gaetano, 38 Conn.Sup. 703, 461 A.2d 453 (App.Sess.1983) is instructive.   In that case, the broker sent a letter to the seller registering a prospective buyer at the beginning of the contract term.   Id., 704–05.   That buyer ultimately purchased the property after the contract between the broker and seller had terminated.  Id., 705.   The contract contained the following provision:  “If at the expiration of this agreement no transaction has been effected, the Agent shall at such time furnish to the Owner in writing, by registered or certified mail, return receipt requested, a list of prospects with whom the Agent theretofore negotiated in offering the property.   If within one hundred twenty (120) days thereafter, the property or any interest therein is sold, leased or exchanged to any such prospect, the Agent shall be paid a commission as set forth ․ above.”  (Emphasis added;  internal quotation marks omitted.)  Id., 704–05.   The broker did not send the seller a written list by registered or certified mail at the expiration of the contract.  Id., 707.

The court stated:  “The purpose of a notice requirement such as that contained in the extension clause of this listing agreement is to make an owner of property aware of the parties with whom the real estate broker has been dealing.   Being aware of this, an owner of property will not unknowingly enter into a transaction wherein an unexpected claim for a commission will be asserted by a real estate broker.”

“Normally, in order to claim the benefit of such an extension clause, a broker is required to adhere strictly to the notice provisions of the clause.   In cases where an owner of property has actual knowledge that the party with whom he is dealing was actively solicited by the broker, however, the courts have generally held that a broker is entitled to a commission even though the broker did not adhere to the formal requirements of the notice provisions in an extension clause.   See note, 51 A.L.R.3d 1149.   This case falls into the latter category.”  Id., 706–07.

Ultimately, the court determined that the seller did have notice of the prospective buyer and, although the broker did not strictly comply with the contract, “to hold that the extension clause did not become operative because the plaintiff failed ․ to notify the defendants by registered or certified mail that [the buyer] was a prospect with whom the plaintiff had ‘theretofore negotiated’ would be placing the form of the notice above its substance.”   Id., 707.   Similarly, in the present case, the plaintiff did not strictly comply with the language of the contract.   The fact finder found that the plaintiff did not submit a formal list of prospects to the defendant during the fifteen-day window following the termination of the contract;  however, the fact finder never determined whether the defendant had actual knowledge that it would owe a commission should the property be sold to the tenant.   The fact finder also never made a determination as to whether the plaintiff ‘introduced’ the tenant to the property during the term of the agreement, an issue the parties dispute.   As these necessary underlying factual determinations were not made in the fact finder's report, the court is unable to determine whether the fact finder's conclusion that the plaintiff is not entitled to a commission is logically and legally correct.

CONCLUSION

Accordingly, the case is hereby ordered remanded to the fact finder who originally heard the matter for a finding on whether the tenant was introduced to the property by the plaintiff during the term of the agreement and for a finding on whether the plaintiff had at any time notified the defendant that he considered the tenant to be a prospective purchaser pursuant to the agreement.

Peck, J.

FOOTNOTES

FN1. Although the length of the tenancy was not a specific finding made by the fact finder, it was mentioned at oral argument and was not in dispute.   The actual length of the tenancy has no bearing on the decision reached herein..  FN1. Although the length of the tenancy was not a specific finding made by the fact finder, it was mentioned at oral argument and was not in dispute.   The actual length of the tenancy has no bearing on the decision reached herein.

Peck, A. Susan, J.