Ditchkus Real Estate Co. v. Storm

Decision Date25 July 1991
Docket NumberNo. 9566,9566
Citation25 Conn.App. 51,592 A.2d 959
CourtConnecticut Court of Appeals
PartiesDITCHKUS REAL ESTATE COMPANY v. Dirck A. STORM.

William F. Gallagher, New Haven, with whom, on the brief, were George Jaser, Milford, and Cynthia C. Bott, New Haven, for appellant (plaintiff).

Thomas B. Lynch, Milford, for appellee (defendant).

Before DUPONT, C.J., and DALY and NOTCOTT, JJ.

DALY, Judge.

The plaintiff appeals from a summary judgment rendered in the defendant's favor on September 12, 1990. The plaintiff initiated suit complaining that the defendant had failed to pay a commission due the plaintiff upon the sale of the defendant's property located at 520 North Street in the city of Milford. The plaintiff claims on appeal that the trial court improperly found that the plaintiff was not due its commission and incorrectly concluded there was no genuine issue of material fact. We disagree and affirm the judgment of the trial court.

The following facts were found by the trial court in its memorandum of decision. The plaintiff and the defendant originally entered into a written listing agreement for six months, beginning on May 29, 1986, and ending on November 29, 1986. The contract provided that the plaintiff would receive a 10 percent commission of the agreed sales price "if during the term of this contract (a) the listed property is sold or (b) we, you, or anyone else finds a buyer ready, willing and able to buy the listed property, either for the listed price or any other price acceptable to me." On August 1, 1986, the defendant signed a sales contract to sell the property to Running Brook Properties (RBP), contingent upon the zoning approval to construct a two hundred unit condominium project. Thereafter, on August 13, 1987, the defendant and RBP renegotiated the transaction and signed a new sales contract contingent upon zoning approval for a seventy-four unit complex. Subsequently, the defendant signed an agreement with the plaintiff on September 24, 1987, that granted the plaintiff a 5 percent commission for the sale of the property, specifically referring to the contract dated August 13, 1987, between the defendant and RBP. This contract made no reference to the expired listing agreement between the plaintiff and the defendant and thus did not extend or renew it.

The defendant and RBP were unable to obtain the zoning approval and, therefore, their contract of August 13, 1987, failed due to the unfulfilled contingency. On June 1, 1989, RBP entered into a successful sales contract with the defendant, without contingencies, and the property was sold to RBP.

This court reviews the propriety of a summary judgment by examining whether "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." Practice Book § 384; Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn.App. 180, 182, 579 A.2d 578 (1990). The evidence is viewed in the light most favorable to the opponent of the summary judgment. Id., at 185, 579 A.2d 578.

The plaintiff claims that it provided the defendant with a buyer ready, willing and able to purchase the listed property during the six month period when the listing contract was in effect, and thus is entitled to the sales commission. The plaintiff argues that the trial court decided issues of material fact to determine that the resulting 1989 sales contract, between the defendant and RBP, was not the successful result of continuous negotiations that began during the listing period when the plaintiff brought the parties together. We do not agree.

"To recover a commission, a broker must ordinarily show (1) that he has produced a customer ready, willing and able to buy on terms acceptable to the seller, or (2) that he has brought the buyer and seller to an enforceable agreement.... He must also show that he has complied with General Statutes § 20-325a." 1 (Citations omitted.) Howland v. Schweir, 7 Conn.App. 709, 713, 510 A.2d 215 (1986); see McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 519, 590 A.2d 438 (1991). During the six month period when the plaintiff had a valid listing agreement with the defendant, the plaintiff produced a buyer who entered into negotiations with the defendant to purchase his property. As a result of these negotiations, the defendant and RBP signed a sales contract that was contingent upon obtaining zoning approval. If the zoning approval was not obtained by RBP, then the contract would be null and void. The plaintiff produced a buyer who was not ready or willing to purchase the defendant's property unless a certain contingency was fulfilled. See Menard v. Coronet Motel, Inc., 152 Conn. 710, 710-12, 207 A.2d 378 (1965); Setaro v. Botelho, 4 Conn.Cir. 721, 723, 239 A.2d 560 (1967). Thus, the contract between the defendant and RBP was void before the expiration of the listing agreement.

The second contract between the defendant and RBP in August, 1987, also failed for similar reasons as the first contract. Although this second contract was formed after the expiration of the plaintiff's listing agreement with the defendant, the defendant and the...

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9 cases
  • O and G Industries, Inc. v. Town of New Milford, 11048
    • United States
    • Connecticut Court of Appeals
    • February 11, 1993
    ...The evidence is viewed in the light most favorable to the opponent of the summary judgment. Id. [at], 185 ." Ditchkus Real Estate Co. v. Storm, 25 Conn.App. 51, 53, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 971 (1991). We find that, as a matter of law, the plaintiff was not entitl......
  • Vincent Metro, LLC v. Ginsberg
    • United States
    • Connecticut Court of Appeals
    • December 18, 2012
    ...a prejudgment remedy on the basis of its procurement of a buyer for the first transaction, the court relied on Ditchkus Real Estate Co. v. Storm, 25 Conn.App. 51, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 971 (1991). In Ditchkus, the parties had entered into a listing agreement fo......
  • Cook v. Bieluch
    • United States
    • Connecticut Court of Appeals
    • August 17, 1993
    ... ... , the parties had little in the way of assets to be divided other than real property located at 41 Holly Lane, Darien ...         Prior to ... Mortgages on the property totaled $309,000, and a real estate appraiser valued the property between $410,000 and $450,000. The ... ...
  • Smith v. COLDWELL BANKER COMMERCIAL
    • United States
    • Connecticut Court of Appeals
    • September 13, 2005
    ...(2) that he has brought the buyer and seller to an enforceable agreement." (Internal quotation marks omitted.) Ditchkus Real Estate Co. v. Storm, 25 Conn.App. 51, 54, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 971 The court found that the defendants were not parties to the postclos......
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