Lerner v. Ceslik, 6194

• Decision Date: 24 January 1989
• Docket Number: No. 6194,6194
• Citation: 17 Conn.App. 369,553 A.2d 1142
• Court: Connecticut Court of Appeals
• Parties: Dorothy F. LERNER v. Stephen M. CESLIK et al.

Page 1142

553 A.2d 1142

17 Conn.App. 369

Dorothy F. LERNER v. Stephen M. CESLIK et al.

No. 6194.

Appellate Court of Connecticut.

Argued Nov. 17, 1988.

Decided Jan. 24, 1989.

Richard A. Johnson, with whom, on the brief, was Robert R. Petrucelli, Bridgeport, for appellant (named defendant).

Laurence P. Nadel, New Haven, for appellee (plaintiff).

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

NORCOTT, Judge.

The named defendant ¹ appeals from the judgment of the trial court in favor of the plaintiff in an action for the recovery of a real estate sales commission. The trial was held before a state trial referee who ruled that the plaintiff was entitled to recover $4155 and costs. On appeal, the defendant claims that the trial court erred (1) in interpreting the terms of the contract between the parties, (2) in finding facts that were not supported by the evidence and in reaching conclusions not supported by the facts, and (3) in drawing an unfavorable inference against the defendant from the failure of a witness to testify. We find no error.

From the evidence presented at trial, the state trial referee found the following facts. The plaintiff, a real estate agent licensed in Connecticut, was employed by American Realty, a real estate brokerage business, as a real estate agent. The defendant was the owner of American Realty. On July 18, 1984, the parties entered into a written contract that entitled the plaintiff to 25 percent of the gross commission as the "listing agent" for procuring the listing of a property, and the same percentage as the "selling agent" for procuring the sale of the property. The process of procuring listings of properties is known as "farming" in the real estate trade.

In late 1984 and early 1985, the plaintiff "farmed" the beach area of Milford. As a result of her effort, David Driscoll, owner of a house located at 681 East Broadway, Milford, became aware of American Realty, Driscoll having found the plaintiff's note and business card in his mailbox. Thereafter, Driscoll listed his property with American Realty for a commission of 6 percent of the selling price.

The Driscoll home was ultimately purchased by the defendant and his partner, and a commission of $8310 was credited to American Realty. Lauren Weiner, an employee at American Realty with whom Driscoll denied negotiating, was paid $2005 of that commission as "listing agent." The plaintiff claimed that she was both the listing and the selling agent but had received no part of the commission.

I

The defendant contends first that the trial court erred in interpreting the terms of the contract between the parties. A trial court's construction of a written agreement is an issue of fact. DiLieto v. Better Homes Insulation Co., 16 Conn.App. 100, 104, 546 A.2d 957 (1988); Roban Realty, Inc. v. Faile, 13 Conn.App. 584, 588, 538 A.2d 242 (1988). "On appeal, we determine only whether in light of the evidence in the whole record, the court's decision was clearly erroneous. We will not retry the facts. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980)." Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 627, 548 A.2d 758 (1988).

The contract provided that a "listing agent" is "an agent who brings a signed listing into the office"; a "selling agent" is defined as an "agent who shows the property to a buyer, obtains a signed sales agreement and deposit that is accepted by the seller, and closes." The contract also contained a paragraph regarding commissions that provided as follows: "Should an agent not be available for any prospect who wants to discuss with them the purchase or sale of any property, the prospect will be assigned to another agent, at the broker's discretion, or if another agent happens to be available they may automatically work with the prospect and if a sale or listing materializes, that agent will receive their commission in accordance to the above commission split. The agent who was not available for the prospect is not entitled to any commission."

The trial court concluded that, based on the terms of the written contract, the plaintiff was entitled to commissions as both a listing and a sales agent.

It is clear from the record that the trial court did not err in concluding that the plaintiff was the listing agent for the sale of the Driscoll property. The court's findings that the plaintiff's conduct initiated the process that led to the closing on the Driscoll house, that Driscoll dealt almost exclusively with the plaintiff, and that because of the plaintiff's efforts Driscoll agreed to list his property with the defendant's agency, are all abundantly supported by the evidence.

Furthermore, the court found that the paragraph in the contract regarding commissions did not deny the plaintiff her commission as the listing agent. The trial court totally discredited the defendant's contention that Weiner, not the plaintiff, was "available" to obtain the listing agreement from Driscoll, thereby entitling Weiner to the listing commission pursuant to the terms of the contract. The defendant based this contention on the fact that Weiner typed the listing and left it in the agency's mailbox for Driscoll to pick up. Both the evidence of the plaintiff's conduct and the lack of credibility apparent in Driscoll's trial testimony clearly support the trial court's conclusion that the plaintiff was the key actor in bringing the listing to the agency. Additionally, the defendant testified that the listing agent normally presents an offer to the seller and that the plaintiff presented Driscoll with the defendant's offer. We find the court's conclusions that, pursuant to the terms of the contract, the plaintiff was responsible for bringing the listing to the defendant's business and that, accordingly, she was entitled to the $2077.50 commission as the listing agent, were not clearly erroneous.

The defendant also contends that the plaintiff was not entitled to a commission as the selling agent. We disagree. The express terms of the contract provide that the selling agent must show the property to a buyer and obtain a signed sales agreement and a deposit, both of which are...