Coldwell Banker v. Cushman and Wakefield

• Decision Date: 06 October 2009
• Docket Number: No. 18222.,18222.
• Citation: 293 Conn. 582,980 A.2d 819
• Parties: COLDWELL BANKER MANNING REALTY, INC. v. CUSHMAN AND WAKEFIELD OF CONNECTICUT, INC., et al.
• Court: Connecticut Supreme Court

980 A.2d 819

293 Conn. 582

COLDWELL BANKER MANNING REALTY, INC. v. CUSHMAN AND WAKEFIELD OF CONNECTICUT, INC., et al.

No. 18222.

Supreme Court of Connecticut.

Argued January 16, 2009.

Decided October 6, 2009.

Gwendolyn S. Bishop, with whom were P. Timothy Smith and, on the brief, Paul W. Smith, Windsor Locks, for the appellant (plaintiff).

Steven M. Greenspan, with whom, on the brief, was Erik H. Beard, Hartford, for the appellees (defendants).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

This is one of two separate appeals¹ arising out of a real estate transaction involving the plaintiff, Coldwell Banker Manning Realty, Inc. (Cold-well Banker), the named defendant, Cushman and Wakefield of Connecticut, Inc. (Cushman), and Computer Sciences Corporation (CSC).² In the present appeal, Coldwell Banker claims that the trial court improperly concluded that the decision of the Greater Hartford Association of Realtors, Inc.³ (association), to dismiss as untimely Coldwell Banker's request for arbitration of claims against Cushman constituted an arbitration award for purposes of General Statutes § 52-417⁴ and, therefore, that the court's confirmation of the alleged award and its subsequent dismissal of Coldwell Banker's claims for lack of subject matter jurisdiction also were improper. Coldwell Banker further contends that the trial court improperly concluded that its request for arbitration (1) was unrestricted, (2) applied to the two individual defendants, namely, Joel M. Grieco and Robert E. Kelly, who served as Cushman's agents during the real estate transaction, and (3) encompassed several claims that, according to Coldwell Banker, were not contained in its request. Cushman responds that the trial court properly determined that the association's dismissal of the arbitration request as untimely constituted an arbitration award subject to confirmation by the trial court and, therefore, that the court lacked subject matter jurisdiction to consider Coldwell Banker's claims. It also contends that Coldwell Banker's arbitration request was unrestricted and, consequently, applied to Grieco and Kelly, and to both the contract and noncontract claims. Cushman finally contends that the trial court's judgment may be affirmed on the alternate ground that, even if this court concludes that the award applies only to the contract claims against Cushman, the trial court had no jurisdiction over the noncontract claims and the claims against Grieco and Kelly because those claims are exclusively arbitrable and there has been no arbitration. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On March 15, 2000, Coldwell Banker entered into a contract with CSC to serve as its exclusive realtor and to assist in the purchase, lease or exchange of certain real property in East Hartford known as Riverview Square. After CSC viewed the property, it directed Coldwell Banker to proceed with negotiations to lease space at the location. On the basis of its contract with CSC and CSC's interest in the property, Coldwell Banker entered into discussions with the property owner, who expressed a willingness to lease a substantial amount of space to CSC and to pay Coldwell Banker a commission in accordance with its contract with CSC.

Thereafter, CSC contacted Coldwell Banker and requested a meeting to discuss the contract. The meeting was held on April 13, 2000, and also was attended by Cushman's agents, Grieco and Kelly. At the meeting, Grieco and Kelly represented to Coldwell Banker that Cushman had a simultaneous contract with CSC as its sole and exclusive real estate broker and, therefore, that Cushman would be entitled to the commission on any transaction involving Riverview Square that Cold-well Banker might be in the process of negotiating. As a result of the meeting, CSC requested and obtained a new contract pursuant to which the three parties agreed that CSC would be allowed to select either Coldwell Banker or Cushman to represent it in the Riverview Square transaction, with the company selected receiving 80 percent of the commission and the other company receiving 20 percent. CSC selected Cushman, and Cushman allegedly received a commission of approximately $500,000 following completion of the transaction, none of which it shared with Coldwell Banker.

On April 26, 2002, Coldwell Banker filed a complaint against Cushman, Grieco and Kelly. Coldwell Banker asserted six claims against each defendant, including fraud, violation of a statutory duty, breach of the duty to deal in good faith, interference with contract, breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The claims were based on allegations that Cushman, CSC, Grieco and Kelly knowingly had made false representations and statements to Coldwell Banker that CSC had a valid broker contract with Cushman during the time that CSC also had a contract with Coldwell Banker. Coldwell Banker further alleged that it had relied on these representations to its detriment in agreeing to release CSC from its contract and in allowing Cushman to receive the 80 percent commission to which Coldwell Banker was entitled.

On August 14, 2002, the defendants filed a motion to dismiss the complaint for lack of subject matter jurisdiction or, alternatively, to stay the proceedings pursuant to General Statutes § 52-409⁵ pending arbitration of Coldwell Banker's claims. The defendants argued that all of the parties to the action were members of the association in good standing and that language in the arbitration agreement that the association had adopted compelled arbitration of Coldwell Banker's claims.⁶

On October 15, 2002, the court, Sheldon, J., granted in part the motion to dismiss and granted the motion to stay Coldwell Banker's "entire action" pending arbitration of certain of its claims. The court determined that all parties were members of the association⁷ and thus were required to arbitrate disputes arising out of their relationship as realtors. The court concluded, however, that only two of the six claims against Cushman were arbitrable under the association's bylaws and code of ethics, those being the breach of contract and fraud claims. The court also concluded that the claims against Grieco and Kelly were not arbitrable because, even though the two individual defendants were realtors, they were not parties to the contract between Coldwell Banker, Cushman and CSC. The court thus determined that it retained subject matter jurisdiction over all of the noncontract claims against Cushman and all of the claims against Grieco and Kelly.

Coldwell Banker did not seek to arbitrate its claims against Cushman immediately but chose instead to commence an action against CSC⁸ on May 1, 2003, in which it asserted four of the six claims that it had asserted against Cushman, Grieco and Kelly.⁹ On June 9, 2005, the court, Booth, J., granted CSC's motion to stay Coldwell Banker's action against CSC pending arbitration of all claims against CSC.¹⁰ On November 1, 2005, Coldwell Banker filed a request for arbitration¹¹ of its claims against CSC which the association forwarded to its grievance committee.¹² Coldwell Banker crossed out standard language in the request form certifying that the form had been filed "within 180 days" of the closing of the disputed transaction.¹³ In a letter dated November 16, 2005, the grievance committee dismissed Coldwell Banker's request for arbitration on the ground that the request had not been timely filed and refunded the $500 arbitration fee that it previously had paid. The grievance committee reasoned that a request for arbitration must be filed within "180 days after the closing of the transaction, if any, or within 180 days after the fact constituting the arbitration matter could have been known in the exercise of reasonable diligence, whichever is later." The grievance committee also noted, however, that Coldwell Banker could appeal from the dismissal of the request for arbitration to the association's board of directors and provided a form for this purpose. Thereafter, Coldwell Banker appealed from the dismissal, but the appeal was denied without further comment.

On December 8, 2005, more than three years after the trial court, Sheldon, J., stayed Coldwell Banker's action against Cushman, Grieco and Kelly, Coldwell Banker filed a request for arbitration of the claims¹⁴ in that action. Coldwell Banker attached to the request copies of the trial court's ruling and the original complaint naming Cushman, Grieco and Kelly as defendants. In a letter that accompanied the request, Coldwell Banker stated that "[t]he request to arbitrate is on limited matters as set forth in the court's ruling." The letter also noted "that the [trial] court ordered arbitration after the 180 day time limit had passed. This request for arbitration, therefore, has been filed after the 180 day time limit has passed. We have amended the request for arbitration to reflect this fact." Coldwell Banker amended the form requesting the arbitration by crossing out language certifying that it had been filed "within 180 days" of the closing of the transaction or of the date on which the facts constituting the arbitrable matter could have been known in the exercise of reasonable diligence.¹⁵ On January 18, 2006, the grievance committee dismissed the arbitration request on the ground that it had been filed more than 180 days after the occurrence of the event that had created the dispute or after the facts constituting the arbitrable matter could have been known in the exercise of reasonable diligence. The grievance committee also refunded the $500 arbitration fee and indicated, as it had done in dismissing the request for arbitration of the claims against CSC, that Coldwell Banker could appeal from the dismissal. Coldwell Banker,...