LLC v. Elisa Coppelman et al. (2013)

MEMORANDUM OF DECISION

In this case the complaint was filed on October 15, 2009.   The plaintiff is a business named Suburban Properties, doing business as Weichert Realtors.   It is a limited liability company with offices in Guilford and Mystic and operates a real estate brokerage in Mystic.

The complaint alleges that the defendants Elisa Coppelman and Edward Coppelman on January 3, 2009 entered into a buyer agency listing agreement pursuant to which the plaintiff “agreed to use its best efforts to find a suitable property for the defendants and the defendants agreed to use the plaintiff's brokerage exclusively during the period of said agreement” (par. 3).   Paragraph 4 alleges that the agreement provided that the defendants were to pay a brokerage commission of six percent for properties purchased by the defendants during the term of the agreement.   Paragraph 5 alleges that “during the term of the said agreement the defendants purchased real property located in Niantic, Connecticut through a brokerage other than the plaintiff for a gross selling price of approximately $233,000.00 and have refused to honor the said agreement and pay the commission as agreed.”   Noank is apparently a subdivision of the town of Niantic.   So it was brought on the claim that the defendants owed the plaintiff six percent of the gross amount paid for the property in Niantic.

The agreement was entered into evidence as Exhibit 1. It is entitled “Exclusive Right to Represent the Buyer.”   It states that the authorization to act as the defendant's exclusive representative for the purchase of residential property was to run from January 31, 2009 to June 3, 2009.   The authorization given the plaintiff pursuant to the agreement also stated it was limited to Noank and Watch Hill. The second page of the agreement indicates that a Karen Taylor signed the agreement for the plaintiff on January 3, 2009.   For the buyer the only signatory is Elisa Coppelman, her husband and original co-defendant did not sign the agreement.   On October 12, 2011 the defendants filed an answer and special defense, and the defendant Edward Coppelman filed two counterclaims.

The answers of both defendants left the plaintiff to its proof on the first four paragraphs of the complaint but denied paragraphs 5 and 6 which alleged that the defendants owed the plaintiff the claimed amount.

The special defense asserts that the “defendants are not obligated to the plaintiff in any way due to the plaintiff's failure to perform under the alleged agreement.”

The counterclaim is entitled:  “Counterclaims of Edward Coppelman” and lies in two counts.   Count One states “Count One (Vexatious Litigation, C.G.S. § 52–568).”   It notes action was initiated against Mr. Coppelman in October 2009 for breach of contract, par. 1. Paragraph 2 asserts Mr. Coppelman and the plaintiff “never entered into any contract.”   The following allegations and claims are then made:

3.  The action was commenced and prosecuted by Suburban Properties, LLC without probable cause, and with a malicious intent to vex and trouble him.

4. The counterclaim plaintiff, Edward Coppelman, necessarily expended in defense of that action and continues to expend a much larger sum than the costs of that suit.

5. The plaintiff claims by force of statute, in such cases provided, treble damages.

Section 52–568 in relevant part states:

Sec. 52–568 Damages for groundless or vexatious suit or defense.   Any person who commences and prosecutes any civil action or complaint against another in his (sic) own name ․ (1) without probable cause shall pay such other person double damages, or (2) without probable cause, and with malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.

Count Two of the Counterclaim is titled “Count Two (CUTPA § 42–110 et seq.).”   Paragraphs 1 through 3 of the first count of the Counterclaim are incorporated into the second count.   Paragraph 4 then asserts:

4.  The conduct of Suburban Properties, LLC alleged in this count constitutes an unfair method of competition or an unfair deceptive act or practice in the conduct of trade or commerce in violation of the Connecticut Unfair Trade Practices Act C.G.S. § 42–110 et seq.

Paragraph 5 then claims that “by reason of the foregoing, Mr. Coppelman has suffered an ‘ascertainable loss and is entitled to actual damages plus interest, punitive damages and attorneys fees pursuant to CUTPA.’  “ Paragraph 6 states that “as a result of these misrepresentations, counterclaim plaintiff has incurred and will continue to incur fees for attorneys and other costs.”

As a result of these allegations in these two counts Mr. Coppelman claimed money damages and costs as to both counts and treble damages pursuant to § 52–568 as to count one and attorneys fees pursuant to § 42–110 et seq. as to Count Two of the counterclaim.

In its answer to the counterclaims the plaintiff denied the allegation that Edward Coppelman and Suburban Properties, LLC did not enter into a contract.

This matter was tried to the court on May 30, 2013.   On May 29, 2013 the plaintiff withdrew its breach of contract claim against Edward Coppelman.

BREACH OF CONTRACT

CLAIM AgainstElisa Coppelman

The court will briefly discuss the relevant contractual terms and obligations of the contract.   It is entitled:  “Exclusive Right to Represent Buyer.”   The Buyer is listed as Elisa Coppelman.   Immediately under the title it states “Connecticut law prohibits a real estate broker or salesperson from representing or negotiation on behalf of a buyer unless a buyer signs a written agreement to allow the broker or salesperson to act on the buyer's behalf.”   She grants the company Weichert Realtors as broker an “Exclusive Right of Representation—You agree to be represented by the broker for all transactions for a specific period of time.   You will tell us about all past and current contracts with any real property or any other real estate agents and refer all leads or information about the property to us.”   Karen Taylor is identified as an agent of the broker.

The contract goes on to state that the authorization is limited to residential property in “Noank/Watch Hill.” The term of the authorization states that it “is in effect from 1/31/2009 to 6/3/2009, inclusive.”   The following language then appears:

Broker's Duties

1.  We will attempt to locate the property.

2. We will negotiate on your behalf for terms and conditions agreeable to you.

3. We will assist you in the purchase or exchange of the property.

4. We will act in your interest regarding the location and purchase or exchange of the property.

Buyer's Duties

1.  You will cooperate with us and be reasonably available to examine real property.

2. Upon request, you will give us financial and personal information regarding your purchase abilities and needs.

3. Questions concerning the legal title of property, tax considerations, property inspection, engineering, or the uses or planned uses of neighboring properties should be referred to your attorney, tax advisor, building inspector or appropriate governmental agency.

Immediately thereunder a section entitled “Other Terms and Conditions” appears.   Relevant portions include the following:  “7. This authorization may be modified, waived, or discharged only by a written agreement signed by the parties” and paragraph 9 which states “9. You acknowledge receipt of this authorization.”

On the second page there is a section entitled “Professional Service Fee.” It reads as follows:

Professional Service Fee

1.  You will pay us a professional service fee of $_ or 6% of the purchase price of the Property purchased by you, or the value of the Property obtained by you in an exchange.   You hereby authorize and instruct us to request and the Broker will make every effort to obtain payment of all or any part of this fee by the seller of the property and/or compensation offered by the Seller's listing agency.   However, you are obligated to pay our professional services fee if it is not paid by others.   If the seller or listing agency offers us a professional service fee in excess of the amount stated in this Section, you agree that we may accept that amount as our fee.   Payment of our professional service fee shall be no later than the date on which title to the real property transfers to you.

2. We earn the professional service fee if you enter into a contract for the purchase or exchange of real property during the term of this Authorization and all material conditions have been met or are subsequently met;  or you are introduced to or take occupancy of real property during the term of this Authorization and obtain title to such property within _ months after the expiration of the Agreement, provided, however, that no fee will be due and payable under this section if you sign an exclusive agreement or authorization with another real estate broker after the expiration of this Authorization.

At the bottom of the second and last page of the contract there is a section for signatures.   Karen Taylor signs the contract for Weichert Realty.   Elisa Coppelman only signs as the buyer.   Immediately above the signatures is the e-mail address for Ms. Taylor.   And a fax number which is apparently that of Weichert since it does not correspond to the Coppleman fax number which appears on Defendant's Exhibit C. Below Ms. Coppelman's signature her phone number is listed.

I

The plaintiff makes a breach of contract claim.   As indicated in the complaint during the term of the exclusive right to represent Mrs. Coppelman as a buyer, she and her husband purchased property in Niantic.   The defendant does not dispute that but raises defenses to the contract claim.

(a)

Although not mentioned in the legal argument section of her brief, in the factual background section the defendant maintains that she never received a copy of the “Exclusive Right to Represent Buyer” document (the contract) which Ms. Taylor had her sign when they met.   Section 20–328–6a(1) of the state regulations is cited by the plaintiff which in relevant part states:

(a)(1) Before a licensee attempts to negotiate a sale, exchange, or lease of real estate, other than a commercial real estate transaction, on behalf of the owner or lessor of real estate, the licensee shall enter into a listing agreement with the party or parties for whom the licensee will act.   All listing agreements shall be in writing, properly identifying the property and containing all of the terms and conditions of the sale, exchange or lease, including the commission to be paid, the date on which the listing agreement is entered into and its expiration date.   The listing agreement shall be signed by the owner, seller or lessor only by a written document executed in the manner provided for conveyances in Connecticut General Statutes, Section 47–5, and by the broker or the broker's authorized agent.   The type of listing shall be clearly indicated in the listing agreement.   The licensee shall deliver immediately a copy of any listing agreement to any party or parties executing the same, where such listing agreement has been prepared by such licensee or under the licensee's supervision and where such listing agreement relates to a real estate transaction with which the licensee is associated as a broker or a salesman ․ (emphasis by court.)

Query whether this section is applicable to the contract involved here which refers not to a specific piece of property but provides a general authorization to try to negotiate purchases of properties that may present themselves for sale which the buyer might be interested in.

In any event Mr. Engingro, the owner of the plaintiff LLC, testified that sometimes the people who sign these exclusive representation agreements get a copy upon signing, sometimes a copy is mailed to them.   Despite this representation, in his April 26, 2009 letter to the Coppelmans asking to be reimbursed for his 6% fee per the contract he felt it necessary to add at the bottom of the letter “I have included a copy of your contract for your review.”   And after being sued in an October 28, 2009 e-mail to Ms. Taylor, who had at that point been terminated by Weichert, she said “I assume you have copies of any paperwork I may have signed.   I respectfully ask if you could fax me copies of the papers in question so I can better understand what I may be dealing (sic).”

Ms. Coppelman's position at trial was that she was shocked when she was sued for the fee that the plaintiff claiming (service of the complaint was made on October 22, 2009).   She admitted she signed the contract but testified that she only thought she was acknowledging Ms. Taylor had shown her a Hadley Court property on the day the document (i.e. the contract) was signed.   Ms. Taylor was not called to testify in this case.

In any event the court finds it difficult to accept any position advanced by Ms. Coppelman to the effect that she was unaware of the contents of the document she was signing and thus she was not bound by the terms of the agreement.

The law appears to be quite clear in this area, as it must be if an economic regime based on parties forming contractual relations to perform certain obligations is to survive.   In 17 Am.Jur.2d at page 214 it says:  “The general rule of contract law is that in the absence of mental incompetence, fraud, misrepresentation or deceit, one who executes a contract cannot avoid it on the grounds that he (sic) did not read it or was ignorant of its terms ․ One who accepts a written contract is conclusively presumed to know its contents and to assent to them.   A party signing a written contract has a duty to inform him or herself of its contents before executing it,” cf.  Friezo v. Friezo, 281 Conn. 166, 199 (2007).  Friezo cites Standard Venetian Blind v. American Empire, Ins. Co., 503 Pa. 300, 305 (Pa.Sup.Ct., 1984);  there the court said:  “Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language ․ In the absence of proof of fraud, ‘failure to read (the contract) is an unavailing excuse or defense and cannot justify an avoidance modification or nullification of the contract or any provision thereof;” also see Phoenix Leasing, Inc. v. Kosinski, 47 Conn.App. 650, 654 (1998).

As noted Ms. Coppelman said Ms. Taylor had her sign the contract by representing it was just a conformation that she was being shown Hadley Court.   Any misrepresentation claim to avoid the law the court has been discussing is not explicitly made in the defendant's brief.   The person making the misrepresentation would have to be Ms. Taylor but Ms. Coppelman maintained friendly relations with her while she maintained a business relationship with the woman and even sent her a friendly sounding e-mail requesting her assistance in forwarding documents after she had received the complaint on October 22, 2009.   There is certainly nothing accusatory in that October 28th e-mail which begins “Dear Karen.”

Supportive of the position that no misrepresentations were made in conjunction with the defendant signing the contract and indication that she knew or should have known the bearing of the document she was signing is the contract itself.   At the top of the document in large type appear the words:  “Exclusive Right to Represent Buyer.”   Ms. Coppelman signs a representation that she has entered in no similar agreement with another broker a little over an inch from the bold type.   About two inches below the line on which she signed it says “Property and Area” and below this it says “this authorization (to be exclusive representative of buyer) is limited to residential ․ In the following areas—then in large printed handwriting it says Noank/Watch Hill.” Hadley Court is apparently in Noank but query is it in Watch Hill?

Perhaps more to the point on this topic are the e-mails exchanged between Ms. Coppelman and Karen Taylor.   If the understanding Ms. Taylor communicated to Ms. Coppelman centered only on Hadley Court why did Ms. Taylor send a January 3, 2009 e-mail saying:  “There is one other home on Front Street that I will send you.   I thought of you because it already has an in-law suite.   Let me know what you think.”   In a January 4, 2009 e-mail from Coppelman to Taylor much of it concerns zoning issues with Hadley Court but then it says “The house on High Street is the house we looked at last summer.   Did she take it off the market—it was on for almost a year.   The current owner did not accept our offer and was pretty firm at around 300's.   We felt the size of the house did not equate with the asking price although it is adorable.”   Then quite generically there is the added comment:  “The good news is I feel comfortable working with you as I know and respect your work ethics.   Hopefully you have a good idea what Eddie and I are looking for—Income producing property with an in-law option for our infrequent but mystical visits.”   This e-mail was sent at 9:19 a.m.;   at 11:34 a.m. Karen Taylor sends an e-mail which ends by saying:  “I am going to approach the owner of 6 High Street next week to see what is happening with her.   I'll let you know.” ¹

There are no e-mail exchanges again until February 5, 2009 and it is from Ms. Coppelman to Karen Taylor.   It says “I apologize for not getting back to you sooner because I did not know exactly what to say.   Another real estate opportunity presented and Eddie and I have been pursuing it.   Should things not work out, I certainly will be back in touch.   I truly enjoyed meeting you and will keep the lines open.”   This e-mail figures in addressing another issue but for present purposes it, along with the other e-mail exchanges just discussed, indicate that Ms. Coppelman realized and ensuing e-mails took note of a contractual relationship for Taylor to act beyond merely showing Coppelman Hadley Court.   Why were Front Street and High Street properties even mentioned, why were references made by Ms. Coppelman regarding general searches for possible properties?   To ask the question provides the answer.   There was a contractual relationship, not based on misrepresentation, created by the document she and Karen Taylor signed whose scope and bearing both parties were aware of and therefore acted, for a time, in accordance with its provisions.   Any position saying I just did not read or understand what I was signing will not do.   As said in the Seventh Circuit case of Novitsky v. American Consulting Engineers, 196 F.3d 699, 702 (1999):  “People are free to sign legal documents without reading them, but the documents are binding whether read or not ․ Any other approach would undermine the validity of the written word and encourage people either to close their eyes (hoping that they can reap the benefits without incurring the costs and risks of the venture) or to come up with hard to refute tales of not reading or understanding the documents they sign.”

(b)

Assuming the existence of a contractual relationship the defendant still maintains that she is not liable to the plaintiff for the 6% professional service fee provided for in the contract.   She maintains that the service fee is nothing more than a penalty clause which the plaintiff seeks to enforce despite its failure to perform under the contract.

In addition the defendant claims that the plaintiff Suburban Properties failed to perform under the contract and therefore is not entitled to recover damages of any kind under the contract.

(i)

The question first presented is whether the 6% fee provision in this contract which has been previously quoted constitutes a penalty clause.   The defendant cites two cases to support the position that the fee provision here is a penalty clause and therefore invalid.   In American Car Rental, Inc. v. Comm. of Consumer Protection, 273 Conn. 296, 306 (2005) the court relied on the earlier case of Berger v. Shanahan, 142 Conn. 726, 731 (1955) and quoted Berger in saying “the law is well established in this jurisdiction, as well as elsewhere, that a term in a contract calling for the imposition of a penalty for the breach of a contract is contrary to public policy and invalid ․” Berger and American Car Rental were analyzing the issue from the perspective of whether the clause in question should be construed as a penalty clause or merely provided for liquidated damages.  American Car Rental quoted extensively from the Berger case on this subject referring to 143 Conn. at pages 731–32 where it is said:

A contractual provision for a penalty is one the prime purpose of which is to prevent a breach of the contract by holding over the head of a contracting party the threat of punishment for a breach ․ A provision for liquidated damages, on the other hand, is one the real purpose of which is to fix fair compensation to the injured party for a breach of the contract.   In determining whether any particular provision is for liquidated damages or for a penalty, the courts are not controlled by the fact that the phrase ‘liquidated damages' or the word ‘penalty’ is used.   Rather, that which is determinative of the question is the intention of the parties to the contract.   Accordingly, such a provision is ordinarily to be construed as one for liquidated damages if three conditions are satisfied:  (1) The damage which was to be expected as a result of a breach of the contract was uncertain in amount or difficult to prove;  (2) there was an intent on the part of the parties to liquidate damages in advance;  and (3) the amount stipulated was reasonable in the sense that it was not greatly disproportionate to the amount of the damage which, as the parties looked forward, seemed to be the presumable loss which would be sustained by the contractee in the event of a breach of the contract.

The case of Hanson Development Co. v. East Great Plains, 195 Conn. 60, 65 (1985) puts the matter in a straightforward manner:  “In other words, was the provision intended to deter one party from breaching its contract and then penalize the other party for doing so or was it intended to specify a sum which the parties, in good faith, agreed would represent the damages which would ensue from a breach?”

The court has previously referred to and quoted the Professional Service Fee provision on the second page of the contract.   The first paragraph provides for the 6% fee which is arrived at by applying that percentage to the purchase price of any property purchased by the defendant during the term of the contract.   These commission arrangements are common to this industry apparently, see Urbanski v. Halperin, 30 Conn.Sup. 575, 576 (1973);  Smith v. Coldwell Banker Commercial NERA, LLC, 91 Conn.App. 360, 361 (2005).   It is difficult, at least for the court, to determine the relationship between paragraphs 1 and 2 of this section of the contract.   But it is interesting to note in paragraph 1 that if the buyer (here Ms. Coppelman) does purchase property during the term of the agreement Weichert, the broker, “will make every effort to obtain payment of all or part of this fee (6% fee) by the seller of the property and/or compensation offered by the seller's listing agency.”   It is made clear, however, that if this cannot be done the broker or Weichert is still entitled to its 6% fee.   At trial it was pointed out that the additional provision on the bottom of page 1 of the contract meant that if Weichert was in fact involved as the “procuring cause throughout the transaction” for the particular piece of property purchased “fee's due will be collected from proceeds of purchase/sale.”   In this case that would mean the plaintiff would have recovered 2 1/2 of the purchase price—not applicable here because it was not involved as a procuring cause.

Does all of this signify an invalid penalty clause was being relied on to support the plaintiff's claim based on a factual analysis and reading of the contract language just discussed?

The issue was somewhat confused by some of Mr. Engingro's statements at trial that could be read that his company would be entitled to the six percent fee if it did nothing at all—nothing at all in what sense?   Nothing to advance and complete the purchase only if a particular piece of property during the term of the agreement, was involved, nothing at all in the absolute sense where the broker Karen Taylor took no steps to do anything to meet Weichert's contractual obligations?   In any event a party's layman interpretation of its legal rights and contractual benefits are not binding on the court even if they could be considered harmful to that party's legal position.   It is the court's obligation to interpret contract language as it is counsels' obligation to advance their views on how that language is to be interpreted as said in Conn. Properties v. Seymour Cinema, 84 Conn.App. 569, 577 (2004) ․” any ambiguity in a contract must emanate from the language used in the contract rather than one party's subjective perception of the terms.”

In addressing this issue and the meaning to be given the just mentioned contract sections on fees and the additional provision on page one ordinary principles of contract interpretation apply.   One important principle was set forth in Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 14 (2008) where the court said:  “In construing contracts, we give effect to all the language included therein, as the law of contract interpretation ․ militates against interpreting a contract in a way that renders a provision superfluous”—and a fortiori militates against interprets provision of a contract provision in such a way as to render its application invalid.

As noted in comment (d) of Section 202 of the Restatement of Contracts (2d):  “Meaning is inevitably dependent on context.   A word changes meaning when it becomes part of a sentence, the sentence when it becomes part of a paragraph.”   As noted in Section 203 “Standards of Preference in Interpretation.”   In the interpretation of a promise or agreement or a term thereof, the following standards of preference, are generically applicable:  (a) an interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful or of no effect.”

As stated more concisely in 17A Am.Jur.2d “Contracts” at § 375, pp.   362–64:  “A contract must be construed as a whole and the intention of the parties is to be ascertained from the entire instrument.   The contract's meaning must be gathered from the entire context and not from particular words, phrases, or clauses or from detached or isolated portion of the contract.   All the words in a contract are to be considered in determining its meaning, and the entire contract in all of its parts should be read and treated together.   The entire agreement is to be considered to determine the meaning of the part.”

All of the foregoing leads the court to refer to a portion of the contract on page 1 which at the beginning of the opinion was quoted by the court.   The contract explicitly sets forth contractual obligations assumed by the plaintiff Weichert in the language defining “Broker's Duties.”   This section must be read in conjunction with all the contract language setting forth the fees the plaintiff would be entitled to—common sense application of the rule of contract law just discussed, dictates that the right to any fees asserted by the plaintiff requires that the plaintiff through its agents comply with their contractual obligations and duties.   The first definition of “fee” in the Random House Dictionary is “1. A charge or payment for services.”

The court will therefore analyze the plaintiff's claim, as both parties eventually did, in light of whether any fee was earned in light of the contractual obligations imposed on the plaintiff as well as taking into account defendant's actions or failures to act which have contractual relevance to the issue at hand.

The position of the defendant is that because the plaintiff failed to meet its contractual obligations, she is not obligated to pay the fee provided for in the contract.   As previously noted there is a section of the agreement on page one entitled “Broker's Duties” with a listing of those duties.   Page 2 provides for the fee to be paid.   As noted in another context “(a) contract must be viewed in its entirety, with each provision read in light of the other provisions ․ and every provision must be given effect if it is possible to do so.”  United Illuminating Co. v. Wisvest Connecticut, LLC, 259 Conn. 665, 671 (2002).   The broker's (here plaintiff's) entitlement to a fee must be read in light of the contractual duties the broker (plaintiff) assumed upon entering into the contract—any other reading of the contract would render the broker's duties section meaningless.   This has to have been the intent of the parties or why would a prospective buyer enter into one of these restrictive contractual relationships.   As said in Cantonbury Heights Condominium Assoc. v. Local Land Development, LLC, 273 Conn. 724, 734 (2005):  “In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into account the circumstances of the parties and the transaction.”

In this case the defendant purchased a property on High Street during the term of the agreement—the plaintiff argues that therefore it is entitled to its fee under the contract, the defendant argues that no fee is justified.   Did the defendant's actions constitute a material breach of the contract?   If the plaintiff failed to perform its contract by not complying with the duties it assumed thereunder, it cannot recover its fee under the contract.   On the other hand if the defendant wrongfully prevented the plaintiff broker from completing the contract by her purchase of the property then it is entitled to the fee it bargained for—that is the measure of damages provided for in the contract, cf.  Dadio v. Dadio, 123 Conn. 88, 92 (1937).

In its brief the plaintiff makes the following argument at page 7:  “Where a seller enters into an exclusive listing contract he agrees that he will not sell his property during the life of the contract to any purchaser not procured by the broker ․ If an owner during the life of an exclusive sale contract sells the subject property, the exclusive broker is entitled to his commission.” ²  These unqualified statements go too far.

It is no doubt true that “It is a general rule of contract law that total breach of the contract by one party relieves the injured party of any further duty to perform ․” Rokalor, Inc. v. Conn. Eating Enterprises, 18 Conn.App. 384, 391 (1989).   Here the question becomes—since the defendant did purchase a property during the term of the contract—did the plaintiff materially breach its contractual obligations?   In this regard Bernstein v. Nemeyer, 213 Conn. 665, 672 (1990), can be cited particularly for its reference to Section 241 of the Restatement (Second) of Contracts.   As in Bernstein was the plaintiff broker deprived of a substantial benefit (i.e. the fee) which it had “clearly bargained for” and which it “had every reason to expect.”   Section 241 says in relevant part, “In determining whether a failure to render or to offer performance is material, the following circumstances are significant:  (a) the extent to which the injured party will be deprived of the benefit which he (sic) reasonably expected.”   The emphasis on the word reasonable is provided by the court.  Covino v. Pfeffer, 160 Conn. 212, 215 (1970), says that “During the life of an exclusive sale contract, an agreement between the owner and the ultimate purchaser to sell and buy, whether or not specifically enforceable, gives rise to a cause of action on the part of an exclusive broker who uses reasonable efforts to sell the property.”  (Emphasis by this court.)   At page 214 the court finds that:  “During the ninety-day period (the exclusive sale contract) the plaintiff (the exclusive broker) made reasonable efforts to sell the property.”  Levy Miller, Maretz, LLC v. Vuoso, 70 Conn.App. 124, 130 (2002), explicitly cited the language just quoted from Covino as precedent applicable to its decision.   At page 126 the court listed the efforts the plaintiff broker made to market the property in question including posting a sign on it, listing the property on the multiple listing service, distributing flyers to local property owners, showing the property to prospective lessees, and speaking about the property at meeting concerning commercial real estate.   The exclusive right contract was to remain in effect for six months.   The question that defines the resolution of this case is that given the contractual obligations assumed by the plaintiff-broker can it be said it could reasonably expect a fee under the facts of this case?   The predicate to a finding of reasonableness is a conclusion that it could be reasonably said the plaintiff performed its contractual duties.

The court will try to apply the foregoing principles to the facts and claims of this case.

The Exclusive Right to Represent Buyer agreement was signed by Ms. Coppelman and a Karen Taylor, an agent of the plaintiff on January 3, 2009.   Pursuant to its contractual obligations did the plaintiff make reasonable efforts to comply with its contractual obligations?

On the date of the signing of the agreement Ms. Taylor showed a property at Hadley Court to Ms. Coppelman.   On the same date she sent an e-mail to Ms. Coppelman regarding this property wherein she said “good news on the house”—apparently referring to the Hadley Court property in which she described various attractions offered by the house regarding additions to it and stated you can make an offer on the property “contingent on zoning acceptance,” this would mean Ms. Coppelman would get her money refunded if requested zoning approval was not granted.   The final sentence reads “There is one other home on Front Street that I will send you.   I thought of you because it already has an in-law suite.   Let me know what you think.”   There was no questioning of Ms. Coppelman at trial regarding this property but no records were produced by the plaintiff to indicate something was sent to Ms. Coppelman by Taylor as the latter said she would do.

In an e-mail from Ms. Coppleman to Ms. Taylor at 9:19 a.m. on January 4, 2009 she said her husband was willing to talk to zoning to feel them out.   Ms. Coppelman had further questions about certain additions to the Hadley Court property.   Towards the bottom of the e-mail the following appears:  “The house on High Street IS the house we looked at last summer.   Did she take it off the market—it was on for almost a year?   The current owner did not accept our offer and was pretty firm around 300's.   We felt the size of the house did not equate with the asking price although it is adorable.”   The capitalization of “is” to IS should be noted.   The eventual purchase of the High Street home by deed on March 11, 2009 without involvement of the plaintiff broker is what the plaintiff claim is entitled his company to a 6% fee.

At 11:15 a.m. in the same January 4th date there is an e-mail response by Ms. Taylor to an unidentified person named “Laura” stating “FYI. I have responded with the zoning info.”   At 11:34 a.m. on the same date Karen Taylor e-mailed Mrs. Coppelman giving her information regarding a zoning application for Hadley Court and what steps should be taken regarding the zoning issue and she said to Ms. Coppelman ․ “if you fax me a rough layout of what you would want I will be happy to meet with him (the Noank Zoning Enforcement Officer) on a Tuesday evening.”

Ms. Taylor concludes the e-mail by saying:  “I am going to approach the owner of High Street next week to see what is happening.   I'll let you know.”

At 5:33 p.m. on January 4th Ms. Coppelman thanked Ms. Taylor for getting back to her “so promptly”—apparently referring to Hadley Court zoning issues.   In this regard she went on to say “it would be great to get the plot plan online so my husband can see it more clearly than the photocopy we have.”   She also asked Taylor to e-mail her recent comps and says “Thanks, we'll keep in touch.   Out of curiosity how anxious is the current owner to sell?”   It is not clear if Coppelman is referring to Hadley Court or High Street in this last sentence.

A final e-mail on January 4, 2009 at 7:40 p.m. from Taylor to Coppelman said she would mail the comp plans the next day.   She added that the owner seems anxious although she evidently does not live there full time any longer.  “She comes once a month or so.”

In references made in the various e-mails just discussed the owners of Hadley Court and High Street are identified as being female so one cannot definitively conclude when comments are made, such as how anxious is she to sell, which property is being referred to by the e-mail sender.

At 6:04 p.m. January 5, 2009 e-mail to Karen Taylor from Ms. Coppelman says she hopes the plot plan can be forwarded over soon since her husband would like to study it and asks when they can see it.   Ms. Taylor responds at 7:17 p.m. saying she contacted the agent for the plot plan and went to city hall but it was not on file.   She concluded she would e-mail the plot plan to Coppelman after getting it from the agent or owner on Tuesday, the following day.

All of the foregoing indicates the agreement was signed on Saturday January 3, 2009.   After that on Sunday and Monday January 4th and 5th eight e-mails were sent.

The only other e-mail Mr. Engingro produced from his files is one from Ms. Coppelman to Karen Taylor dated February 5, 2009.   It reads:  “I apologize for not getting back to you sooner because I did not know exactly what to say.   Another real estate opportunity presented and Eddie and I have been pursuing it should things not work out.   I certainly will be back in touch.   I truly enjoyed meeting you.”

At trial Ms. Coppelman could not say what the apology was referring to which is not surprising since she was testifying about events occurring over 4 1/2 years previously.   She was asked why did you apologize.   Ms. Coppelman said there appears to be a time delay, that'd be the only reason she would apologize and added, “I don't have the e-mail trail.   I don't know.”

The point is, however, that Mr. Engingro kept a file on communications between Taylor and Coppelman and no e-mails from Taylor to Coppelman after January 5, 2009 appear—a mere two days after the contract was signed.   For all that can be ascertained Coppelman can be apologizing for not contacting Taylor since January 5th but from the January 5, 2009 date there is nothing to indicate Karen Taylor or any other party representing the plaintiff did anything to contact Ms. Coppelman.   After the Coppelman e-mail there was no such contact although the High Street purchase was confirmed by a March 11, 2009 deed.

Also no attempt to contact Coppelman was made even though the February 5th Coppelman to Taylor e-mail said she and her husband were pursuing “another real estate opportunity.” ³

Mr. Engingro testified that when a listing agreement comes in for buyer representation a file is opened which is called a house file, the agent has her own working file which they build as they work with the client.   At the “end of the transaction” the two files are merged and it becomes a house file.   He brought this file to court when he testified.   The house file would contain materials produced by the agent and all correspondence.   The only correspondence between the agent Taylor and Ms. Coppelman were the e-mails introduced into evidence.   Mr. Engingro said he talked to Karen Taylor daily and had discussions with her “about properties that might be appropriate for the Coppelmans.”   No dates are given to these discussions besides vague, unidentified references to “properties.”   Perhaps more to the point the Taylor e-mails do not suggest she did anything more than get involved with the Hadley Court property except for a reference to a Front Street property concerning which there was no follow up.   Mr. Engingro also testified the High Street property was “introduced to Elisa Coppelman by Karen Taylor.”   He said he knew of this of his own knowledge.   But the Taylor–Coppelman e-mails contradict this assertion and Mrs. Coppelman's direct and explicit testimony establishes that she in fact was the one who mentioned High Street to Taylor—she did this with emphasis (the capital “IS”) but no post-January 4th e-mails indicate there was any follow up by Taylor as to this property.   Mr. Engingro's testimony was also to the effect that the Hadley Court property “was a house that was shown as one of the first houses that was shown to Elisa Coppelman” ⁴ —in fact it was the only house actually shown to Mrs. Coppelman from any records produced in court.   In cross Mr. Engingro said, however, that it was not relevant whether Taylor showed the High Street property to the Coppelmans.

It is relevant, however, on the issue of whether Taylor as agent made reasonable efforts to comply on behalf of the plaintiff with its contractual obligations—a prerequisite in the court's opinion to the plaintiff's entitlement to a 6% fee.   At one point Mr. Engingro said the whole purpose of these agreements, is to have the agent and prospective buyer work together.   No contact is shown by Taylor with Coppelman after January 5, 2009 and no information provided concerning any “approach” she promised to make to the owner of the High Street property.   Mrs. Coppelman testified Taylor never contacted her after January 4, 2009 about the High Street property and as indicated there is nothing produced in evidence to show any contact by Taylor after January 5, 2009.

Under all the foregoing circumstances it cannot be said that the plaintiff made reasonable efforts to fulfill its contractual obligations.   The burden is on the plaintiff to prove a breach and Karen Taylor was never called by the plaintiff to explain what if any efforts she made to satisfy those obligations apart from what appears in the e-mails, which along with Mr. Engingro's testimony do not meet a reasonable effort standard for the reasons discussed.

A buyer involved in violative real estate markets especially where they have indicated an interest in a particular property should not be faulted for pursuing their own efforts where the agent that was contracted to work with them does not make the requisite efforts to live up to their own end of the bargain.

Judgment should enter for the defendant on this claim.

Counterclaims

I

Mr. Coppelman has filed two counterclaims in this case.   One is brought under Section 52–568 of the General Statutes, the second counterclaim is brought pursuant to the Connecticut Unfair Trade Practices Act, Sections 42–110 et seq.   The court will first discuss the vexatious litigation claim under Section 52–568.

Vexatious Litigation

(a)

As noted, the vexatious litigation claim is brought pursuant to Section 52–568 of the General Statutes.   That statute reads as follows:

§ 52–568. Damages for groundless or vexatious suit or defense

Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or assets a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.

As noted in a 2010 article in the Connecticut Bar Journal and as is apparent from a reading of subsection (1) of the statute malice is not required to establish a claim under this subsection.   In the article at 84 Conn. Bar Journal entitled, “Vexatious Litigation in Connecticut,” Attorney Rosenthal notes that:  “In 1986, as part of a public act altering various areas of tort law (Tort Reform I), the statutory cause of action for vexatious litigation was amended to eliminate malice as a prerequisite to maintain the action.   Instead, a party could thereafter recover double damages on a showing of probable cause even in the absence of malice.   In the event malice was also proven, available recovery continued to be treble damages.”

It is clear from Mr. Coppelman's counterclaim that, although not specifically referenced, the claim here lies under subsection 2 of the statute.   Paragraph 3 states “3. The action (for breach of contract) was commenced and prosecuted by Suburban Properties, LLC without probable cause, and with a malicious intent unjustly to vex and to trouble him.”   In paragraph 5 Mr. Coppelman “claims, by force of statute, in such case provided, treble damages”—obviously referring to subsection (2) of § 52–568.

The day before trial the plaintiff withdrew the breach of contract action insofar as it applied to Mr. Coppelman.   It seems clear that there was no probable cause for the initial complaint insofar as Mr. Coppelman was sued for breach of the buyer-broker agreement on which the claim of breach of contract is based.   Only Elisa Coppelman is a signatory to that contract, Mr. Coppelman did not sign it.

But the court has concluded the § 52–568 vexatious litigation claim is not before it for two reasons.

(b)

The claim was abandoned at trial.   The transcript reflects the following statements by the attorney for the counterclaim plaintiff, Mr. Coppelman in an exchange with the court at page 89:

“ATTY. BERGER:  As the plaintiff testified, he has no right to sue someone if they haven't signed a listing agreement, and yet he did.   They did withdraw that suit yesterday, which I think probable fatally harms my unfair—my vexatious claim, but I think the CUTPA claim, that it's an unfair trade practice to sue people when you know you don't have a legal right to do so, and to attempt to settle a case with them—

THE COURT:  Okay.

ATTY. BERGER:—for  money would be a violation of The Connecticut Unfair Trade Practices Act. And actually, I did have one more question.”   The one more question asked of Mr. Coppelman was whether he was asking for attorneys fees and punitive damages under CUTPA and a trebling of damages under that act.

At page 91 the following occurred.

“THE COURT:  But the suit was withdrawn against him yesterday;  is that—(referring to breach of contract claim)

ATTY. BERGER:  Around 3:00 I got the fax.   Yes.

THE COURT:  Okay.

ATTY. BERGER:  But and I think that that does candidly harm my vexatious claim, your Honor.   I think there has to be a judgment.   But I don't think that it—

THE COURT:  The CUTPA.

ATTY. BERGER:—eliminates  the CUTPA claim.

THE COURT:  You're still making a CUTPA claim?

ATTY. BERGER:  Yes, your Honor.”

Both sides agreed with the court's decision to have the briefs filed by July 30, 2013.   On July 25, 2013 the plaintiff submitted its brief, the plaintiff did not address the vexatious litigation counterclaim by Mr. Coppelman based on a reasonable interpretation of what was stated at trial, saying that claim “appears to have been abandoned by his counsel.”   He only addressed the CUTPA counterclaim.

On July 30, 2013 the defendant filed his brief which attempted to resurrect the vexatious litigation counterclaim.   The reason for this change in position is apparently reconsideration of his position withdrawal of an action does not preclude a vexatious litigation counterclaim—a dismissal by the court or adverse finding by the trier of fact is not a prerequisite for filing such a claim.  DeLaurentis v. New Haven, 220 Conn. 225, 251 (1991);  See v. Gosselin, 133 Conn. 158, 160 (1946).   But the claim had been abandoned at trial and apart from the effect of what transpired in court regarding such abandonment there is a procedural reason why such a result would be unfair.

(c)

Reasonably relying on counsel's abandonment of the vexatious litigation claim counsel lost the opportunity to consider presenting evidence, yet the presumption of actual malice in bringing suit in absence of probable cause is rebuttable, see Spear v. Summit Medical Center, 1998 Super LEXIS 1095, 1998 Ct.Sup. 5019, Sheldon, J., Clegg v. Miller, 18 Conn.Sup. 502, 504 (House, J., 1954);  Zitkow v. Zaleski, 102 Conn. 439, 445 (1925), Stone v. Stevens, 12 Conn. 219, 228, see also footnote 103 in 84 Conn. Bar article by Attorney Rosenthal.

Even at common law, where malice had to be shown the courts have held that a defendant can rebut a presumption of malice for initiating litigation without probable cause “by affirmative evidence that he instituted the prosecution in question without malice and for justifiable ends.”   Here the counterclaim plaintiff only seems to rely on the inference of malice from lack of probable cause but presses a claim of malice in seeking treble damages under the subsection (2) of § 52–568 and present no other evidence to support a malicious intent to vex and trouble as set forth in subsection (2).

The counterclaim defendant Suburban cannot fairly be deprived of the opportunity it might have had at trial to rebut the foregoing inference by what any reasonable attorney for Suburban would have assumed was an abandonment of the vexatious litigation claim.

All of this is especially so in that the claim is being advanced against the client not the lawyer who initiated the litigation and crafted the complaint.   If a viable claim of vexatious litigation was being presented and not abandoned, the counterclaim defendant client would at least have had the opportunity to explore that subject with Mr. Engingro.

In any event for the foregoing reasons the vexatious litigation claim is not properly before the court and therefore is dismissed as it is raised in the post-trial brief of the counterclaim plaintiff, Mr. Coppelman.

Connecticut Unfair Trade Practices Act

(a)

The defendant Edward Coppelman, as counterclaim plaintiff, also makes a claim under the Connecticut Unfair Trade Practices Act (CUTPA), Sections 42–110 et seq.   The CUTPA claim is raised in Count Two of the counterclaim which incorporates the first three paragraphs of the Vexatious Litigation count.   The CUTPA claim, therefore, is as follows:

(1) In October of 2009 Suburban Properties, LLC instituted an action against Edward Coppelman for breach of contract.

(2) Edward Coppelman and Suburban Properties, LLC never entered into any contract.

(3) The action was commenced and prosecuted by Suburban Properties without probable cause, and with a malicious intent unjustly to vex and to trouble him.

(4) The conduct of Suburban Properties, LLC alleged in this count constitutes an unfair method of competition or an unfair deceptive act or practice in the conduct of trade or commerce in violation of the Connecticut Unfair Trade Practices Act, CGS § 42–110 et seq.

The next two paragraphs assert Mr. Coppelman has suffered an ascertainable loss and is entitled to actual damages “plus interest, punitive damages, and attorneys fees” pursuant to Connecticut General Statutes § 42–110 et seq.

In his post-trial brief Mr. Coppelman asserts that the basis of his CUTPA claim for damages is that he was sued without probable cause, “and while the matter was pending he received settlement proposals seeking money from him ․ for which he incurred attorneys fees.”  Creative Masonry & Chimney, LLC v. Johnson, 142 Conn.App. 135, 144 (2013), is cited for the proposition that under CUTPA the court has the discretion to award punitive damages.   The case goes on to say that to award punitive damages “evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.”   A punitive damages award is discretionary.

(b)

The court must first discuss the legal basis for the CUTPA claim.   A party bringing such a claim must first establish standing under the act—that he or she is a consumer or competitor or the existence of some commercial relationship or business relationship must be shown.   Once that is established a party must show that in one of those capacities it suffered an ascertainable loss by a defendant's unfair or deceptive practices.   Thus merely because wrongful conduct caused damage or loss, does not establish standing under CUTPA, see Ganim v. Wesson, 258 Conn. 313, 373 (2001), see generally Vol. 12 of Connecticut Practice Series, Chapter 3 “Scope of CUTPA,” Langer, Morgan, and Belt.

In Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154–55 (2005), the court said:

It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule obey the federal trade commission for determining when a practice is unfair.   Those criteria are:

1) Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;

2) whether it is immoral, unethical, oppressive, or unscrupulous;  and

3) whether it causes substantial injury to consumers, competitors or other businesspersons ․

All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.

In this case Mr. Coppelman must base his claim on the predicate of a customer or consumer relationship with the counterclaim defendant, Suburban consumer protection was the original focus of the act until CUTPA was extended to competitors or other businesspeople, see Langer, Morgan and Belt at Section 2.2, page 13.

In this regard Jackson v. R.G. Whipple, 225 Conn. 705, 725 (1993), is still applicable when it says:  “Although priority, in the traditional contractual sense of an exchange of consideration between parties, may no longer be essential for standing under CUTPA, a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly caused harm to him or her.”

Superior Court cases have accepted this ameliorative and common sense approach to consumer protection coverage.   Judge Lager in Diaz v. Shelat, CV95–0467395 S (1998), refused to grant summary judgment to a CUTPA claim of a minor child.   The child claimed injury due to lead paint.   No written lease existed between the mother and the defendant but the defendant did not dispute that he knew the mother and child resided in the apartment.   The court noted the child resided in the apartment for all but 3 months in the first 31 months of her life.   The court made the quote from Jackson v. Whipple, supra.   Judge Matasavage relied on Judge Lager's reasoning in Beck v. New Samaritan Family Housing, 39 Conn. L. Rptr. 520 (2005), where he denied a motion to strike a CUTPA claim brought on behalf of a minor child based on a claim of injuries suffered by the child in a fall allegedly caused by the defendant's failure to secure an unsafe second floor window.   Judge Matasavage quoting Judge Lager said “Proof that the defendants knew that the minor plaintiff was residing in the apartment leased by the (the tenant) and had been a long-term resident in that apartment may suffice to establish a consumer relationship between the plaintiff and the defendants for purposes of CUTPA in this case.”

Based on the foregoing the court concludes Mr. Coppelman has standing to bring a CUTPA claim because of a “consumer” relationship with Suburban.   It is true that the exclusive representation agreement was signed only by Mrs. Coppelman and a breach of contract claim could only be made against her, which the plaintiff had to admit seeing that the day before trial it withdrew its breach of contract claim against Mr. Coppelman.

But the record is replete with indications that the agent of Suburban, Karen Taylor, was made aware of the fact that her activities were serving the interests of both the Coppelmans and she proceeded to act accordingly.   In the 9:19 a.m. January 4, 2009 e-mail from Mrs. Coppelman to Taylor—a day after the agreement was signed—Mrs.   Coppelman said her husband, Mr. Coppelman, would be willing to talk to a zoning official about zoning issues or questions he and his wife had regarding the Hadley Court property.   Since Taylor, the day before, indicated the availability of the zoning officials and the day of such availability.   Mrs. Coppelman said Mr. Coppelman was desirous of talking to the official over the phone.   In the 9:19 a.m. January 4th e-mail Mrs. Coppelman went on to say “the house on High Street IS the house we looked at last summer.   We felt the size of the house did not equate with the asking price although it is adorable.”  (Emphasis of we by the court.)

In an 11:34 a.m. January 4th e-mail to Mrs. Coppelman, Taylor gave her the zoning official's phone number and if he won't talk over the phone she said give me a layout of what you want and she, Taylor, would talk to him.

At 5:33 p.m. on the same date Mrs. Coppelman asked Taylor to get a plot plan for Hadley Court “so my husband can see it more clearly than the photocopy we have.”   At 7:40 p.m. Taylor responds by saying she would e-mail the plot plans on January 5, 2009—Mrs.   Coppelman had renewed her request for the plot plan so her husband could study it at 6:04 p.m. on January 4th.

On January 5, 2009 said she contacted the agent for the plot plan and she would forward it on January 6, 2009.

In the February 5, 2009 e-mail from Mrs. Coppelman to Taylor she said another real estate opportunity presented itself to her and her husband.

In the April 26, 2009 letter by Mr. Engingro requesting a check for his 6% fee under the agreement, he mailed the demand letter to both Mrs. Coppelman and Mr. Coppelman.

Given the foregoing, Suburban's agent, Taylor, took on a consumer relationship with Mr. Coppelman;  the e-mail exchanges and demand letter indicate the business relationship created by the agreement involved, from the Coppelman's perspective, meeting her and her husband's real estate investment needs—and Karen Taylor acted to meet those needs (albeit only for a limited time) despite the fact that only Mrs. Coppelman signed the contract.

Despite the fact that Mr. Coppelman did not sign the exclusive representation agreement and in fact bases his counterclaims on the fact that this is so, the court still concludes that a consumer relationship for CUTPA purposes existed between Suburban and Mr. Coppelman so that he can make a CUTPA claim under § 42a–110 et seq.

(ii)

The court will now turn to the merits of the CUTPA claim.   It has already set forth the three aspects of the cigarette rule.   As has been indicated by the courts all three prongs of this rule need be established to make a finding of violation of CUTPA, Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 644 (2002).

As to the first prong of the cigarette rule, it is certainly true that bringing a suit has without probable cause offends the principles of the common-law rule against vexatious litigation and the statutory prohibitions set forth in subsections (1) and (2) of Section 52–568 of the general statutes.

Under the second prong can it be said that initiation of the breach of contract litigation against Mr. Coppelman was immoral, unethical, oppressive or unscrupulous?   In an instructive opinion Judge Scholl reasoned that under Connecticut law unless the filing of a suit is deemed to be a sham lawsuit, “recourse to the courts to collect what a party viewed as a legitimate debt does not constitute a violation of CUTPA,” Steve Basso Plumbing, Heating and Air Conditioning, LLC v. NGM Insurance Company, CV10–6014167 (Scholl, J., 2013).   Judge Scholl quoted from an earlier opinion by Judge Satter in Stewart Title Guaranty Co. v. Baum, 5 Conn. L. Rptr. 363 (1991), to the effect that ․”a sham lawsuit is one instituted by a plaintiff in bad faith, on grounds so flimsy that no reasonable prudent person could hold a bona fide belief in the existence of facts necessary to prove the case.”   Judge Satter noted the opinion in Suburban Restoration Co, Inc. v. ACMAT Corp., 702 F.2d 98 (CA2, 1998), to the effect that the filing of a single non-sham lawsuit ․ cannot form the basis of a claim under CUTPA,” id., page 102.

The mere fact that the plaintiff held the mistaken view that, because of the contract with Mrs. Coppelman, Karen Taylor's efforts to comply with various requests of Mr. Coppelman as communicated to her by his wife and Taylor's recognition that the Coppelman's real estate objectives reflected a common goal to the Coppelmans, entitled Suburban to a service fee, does not make the breach of contract suit against Mr. Coppelman a violation of the cigarette rule's second prong.   That prong requires immoral, unethical, oppressive or unscrupulous behavior.   The contract language is obvious, only Mrs. Coppelman signed the contract.   There is no suggestion that by bringing suit against Mr. Coppelman Suburban threatened to ask for a greater recovery claim than the one it was advancing in the claim against Mrs. Coppelman or that making the demand against husband and wife was a tactic used to force one or both to succumb to the demand.   Suit was not brought until over five months after the April 26, 2009 demand letter.   From testimony or exhibits there is no evidence that, for example, dunning letters or phone calls were made to harass the parties.   The Coppelmans secured a lawyer who appeared on the return date of November 24, 2009.   The file is empty of anything except motions for extension of time to file pleadings and a motion to transfer by the Coppelman's lawyer.   There is no suggestion that ordinary discovery and production requests were filed as opposed to burdensome fishing expeditions.   Apparently a meeting was held to try to settle the case.   There is certainly no trail of harassing litigation;  the breach of contract claim was withdrawn albeit the day before trial in a trial lasting only a 1/2 day.

The law is clear that mere negligent conduct does not satisfy the second prong of the cigarette rule requiring immoral, unethical, oppressive or unscrupulous behavior, William Ford, Inc. v. Hartford Courant, 232 Conn. 559, 592–93 (1995), cf.  A.G. Foods, Inc. v. Pepperidge Farms, 216 Conn. 200, 215–17 (1990).

As to the third prong of the cigarette rule there is no indication that the particular facts and practices that occurred in this case raise the specter of or mirrors situations causing substantial injuries to consumers.

The court concludes that the counterclaim plaintiff has not proven his CUTPA claim.

(iii)

Assuming that a CUTPA claim has been established here, the court will discuss the issue of damages.

“Actual damages under CUTPA have been defined to include loss and expenses incurred by the CUTPA plaintiff as a result of a violation of the act, Prish Walko v. Bob Thomas Ford, Inc., 33 Conn.App. 575, 587 (1994), see Grand Light & Supply Co., Inc. v. Honeywell, Inc., 771 F.2d 672 (CA2, 1985), where in footnote 3 at page 681 the court said:  ‘Damages under CUTPA are to be measured according to a restitution formula rather than according to contract principles.   Bailey Employment System v. Hahn. The district court's task was to attempt to return to plaintiff what it lost as a result defendants' actions.’ “

In Tanpiengo v. Tasto, 72 Conn.App. 817 (2002), said “ ‘A party seeking to recover damages under CUTPA must meet two threshold requirements.   First he (or she) must establish that the conduct at issue constitutes an unfair or deceptive trade practice ․ Second, he (or she) must present evidence providing the court with a reasonable estimate of the damages suffered’ ․ Recider v. Lassarino, 51 Conn.App. 292, 299 ․ (1998).   In addition, ‘awarding punitive damages and attorneys fees under CUTPA is discretionary ․ and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done ․ [T]o award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights' ․ Gargarro v. Heyman, 203 Conn. 616, 622 ․ (1987).”

The attorney for the counterclaim plaintiff, Mr. Coppelman, testified at trial as did Mr. Coppelman on the damages issue.

The court has read and re-read the transcript and examined defense exhibit D, introduced May 30, 2013 at trial which states the total fee due to that date was $1740.   At trial the attorney for the Coppelmans said that as to the $1,740 bill that was sent to them for 16.2 hours of work to the day of trial—”So I guess of the 16.2 hours listed here, you could possibly segregate out an hour and a half an hour and a half as not being for both.”   Attached to the post-trial brief is an affidavit of attorneys fees in the amount of $6,087.93 cents, this is dated July 30, 2013.

Reading the testimony the court cannot separate out what portion of the fee was spent representing Mr. Coppelman.   The trial preparation times are not inextricably linked.   Mrs. Coppelman is the only person who signed the agreement between the parties;  Mr. Coppelman simply did not sign.   It would be difficult to see what trial preparation time was necessary to prepare the defense to that claim which was withdrawn before trial in any event or what expense on discovery or production was necessitated to have Mr. Coppelman meet that withdrawn claim.   This observation applies to all claims made for allocation of time.   There was a motion to transfer file which would have benefitted both Coppelmans but it was denied.   The preparation of the answer and special defense took one hour at $200 per hour but in this regard counsel said “I think probably” 25% of this can be attributed to Mr. Coppelman.   The time spent between 11/24/09 and 5/29/13 is not explained in terms of differentiating between time spent on one defendant as opposed to the other or on the counterclaim plaintiff, Mr. Coppelman although there is a general claim by counsel that the work done was for both.⁵

As to trial time there is a claim of 6.5 hours with 65% attributable to Mrs. Coppelman and 35% to Mr. Coppelman.   This was not further explained especially in light of the fact in a trial involving 94 pages of testimony only 7 pages can be attributed to Mr. Coppelman and 4 pages to Mr. Coppelman's attorney's attempt to explain fee apportionment.

After May 30, 2013 (the trial date) a review of the transcript took place and time was spent on the brief but no apportionment between time spent for the respective clients was offered.   But the trial and every charge after the trial consumed over 13 hours of the 29.5 hours billed.   The July 30, 2013 bill attached to the brief explicitly claims that it was for work done on the file but itself makes no effort to apportion the fees for each client.

The defendant attached the recent case of Noves v. Antiques a Pompey Hollow, 2013 Conn.App. Lexis for the proposition that “our law, does not, however requires this type of apportionment where the facts underlying the CUTPA claim are integrally linked to other matters in the same action, and the enter claimed attorneys fees may be awarded as damages.”   But this is not the Noves case—in that case one plaintiff was involved and the litigation involved claims which had facts integrally related to the CUTPA claim.   That is not the case here.   Mr. Engingro testified for 59 pages, Mrs. Cooppelman for 23 pages, Mr. Coppelman for 7 pages.   Much of Mr. Engingro's and Mrs. Coppelman's testimony revolved around the factual issue of whether Mrs. Coppelman knew what she was signing, what Suburban's theory of recovery was and whether the contract conditions were met by Suburban and Mrs. Coppelman.   None of the trial preparation or actual trial involved anything Mr. Coppelman could have contributed to these issues—the simple fact is that he did not sign the contract.

The court has indicated it does not believe a CUTPA claim has been established so no damage award is appropriate and even if it is incorrect on this conclusion any damage award would be speculative.   As to punitive damages for reasons stated in finding no violation of the second prong of the cigarette rule has been proven such damages are not justified and also attorneys fees would not be warranted in any event.

Judgment will enter for the counterclaim defendant on this count.

Thomas J. Corradino

Judge Trial Referee

FOOTNOTES

FN1. The next four e-mails on January 4th and 5th, 2009 do not make clear what property they refer to..  FN1. The next four e-mails on January 4th and 5th, 2009 do not make clear what property they refer to.

FN2. These principles and the cases cited in support thereof involve exclusive listing contracts by sellers;  the same principles apply to agreements such as the one before the court which involve a buyer broker contract giving the broker exclusive rights..  FN2. These principles and the cases cited in support thereof involve exclusive listing contracts by sellers;  the same principles apply to agreements such as the one before the court which involve a buyer broker contract giving the broker exclusive rights.

FN3. The phrase “another real estate opportunity” was not asked to be explained but it is an odd turn of phrase for Ms. Coppelman to refer to High Street, in this way, since High Street had already been discussed in e-mails between the parties..  FN3. The phrase “another real estate opportunity” was not asked to be explained but it is an odd turn of phrase for Ms. Coppelman to refer to High Street, in this way, since High Street had already been discussed in e-mails between the parties.

FN4. This statement appears on page 34 of the Transcript at lines 5 and 6. It is identified as a question but the context indicates it was in fact the answer of Mr. Engingro to the previous question at lines 3 and 4..  FN4. This statement appears on page 34 of the Transcript at lines 5 and 6. It is identified as a question but the context indicates it was in fact the answer of Mr. Engingro to the previous question at lines 3 and 4.

FN5. Mr. Coppelman did testify at trial that exhibit D, which is the $1,740 bill introduced at trial was sent to him by his attorney the day before trial, but a cursory reading of that bill indicates much of it represents work done for both of the Coppelmans and it is impossible to separate out work spent for each of them..  FN5. Mr. Coppelman did testify at trial that exhibit D, which is the $1,740 bill introduced at trial was sent to him by his attorney the day before trial, but a cursory reading of that bill indicates much of it represents work done for both of the Coppelmans and it is impossible to separate out work spent for each of them.

Corradino, Thomas J., J.T.R.