Rapin v. Nettleton, 16989

Decision Date06 October 1998
Docket NumberNo. 16989,16989
Citation718 A.2d 509,50 Conn.App. 640
CourtConnecticut Court of Appeals
PartiesOswald G. RAPIN v. Cynthia NETTLETON.

Marni Smith Katz, with whom, on the brief, was Bernard Green, Bridgeport, for appellant-appellee (defendant).

William C. Franklin, Litchfield, for appellee-appellant (plaintiff).

Before LAVERY, LANDAU and DALY, JJ.

DALY, Judge.

This is an appeal from the trial court's judgment for the plaintiff to recover a real estate commission. The defendant claims that the trial court improperly (1) disregarded the findings, conclusions and recommendations of the attorney trial referee, (2) ignored the provision of General Statutes § 20-325a (b)(7) requiring the owner's signature, (3) found a ratification by the defendant of her husband's conduct, (4) determined that the terms of the listing agreement extension were complied with and (5) failed to accept the report of the attorney trial referee to which the plaintiff had failed to file an objection. The plaintiff cross appeals claiming that the trial court failed to award him prejudgment interest pursuant to General Statutes § 37-3a.

The attorney trial referee made fifty-nine findings of fact, which are not in dispute and may be summarized as follows. On February 25, 1992, the defendant entered into a written "Exclusive Right to Sell Listing" with the plaintiff, a real estate broker, with respect to the sale of the defendant's house at 208 Tuttle Road in Woodbury, at a price of $1,740,000, for a term of six months. Pursuant to that agreement, the defendant agreed to pay the plaintiff a commission of 6 percent if, during the term of the listing agreement, the property was sold or anyone found a buyer willing and able to buy the property at a price acceptable to the defendant or anyone obtained a binding enforceable agreement between the defendant and a buyer.

The defendant acquired the property jointly with her husband. Sometime after the purchase, the defendant's husband conveyed his interest in the property to the defendant for no consideration. The defendant relied on her husband, an experienced real estate developer, in the negotiation, listing and sale of the property. The defendant's husband negotiated the terms of the listing agreement directly with the plaintiff. The defendant's husband freely used the equity in the property for his business purposes, including three separate mortgages to American Bank. During the term of the listing agreement, the plaintiff listed the property in the multiple listing service, advertised it and showed it to several prospective purchasers. There were, however, no offers to purchase the property accepted by the defendant during the original listing period.

Shortly before the expiration of the listing period, the defendant's husband told the plaintiff that the defendant would extend the listing agreement. The defendant's husband told the plaintiff to send the extension agreement to them for signature and also that they might reduce the asking price. The defendant's husband received the change authorization, filled in the listing price to reflect a reduction from $1,740,000 to $1,470,000, signed his wife's name to the listing agreement and mailed it back to the plaintiff. When he signed the defendant's name on the change authorization, the defendant's husband had her oral authorization to act on her behalf. The defendant agreed to extend the listing with the plaintiff and believed that her husband had effectively extended the listing by signing her name on the change authorization. The plaintiff, however, believed that the defendant had signed the change authorization. The change authorization extended the listing agreement until midnight, February 24, 1993. During the effective period of the change authorization, neither the defendant nor her husband attempted to repudiate the authority of the plaintiff to act as a broker on the defendant's behalf.

In December, 1992, American Bank was foreclosing on one or more of the mortgages on the defendant's property. That same month, the defendant's husband called Arminda Murtha, who had previously expressed an interest in the property, to say that his wife would sell the property for $850,000. A contract was prepared in late December, 1992, that called for a closing on January 29, 1993, with occupancy to be given to Murtha on March 1, 1993. That contract was never signed by Murtha or the defendant. In early January, 1993, a second contract was prepared, which was identical to the first contract in all respects except that it called for a closing on March 1, 1993. Murtha signed the second contract on January 9, 1993, and sent a deposit check for $10,000. When the plaintiff heard about the possible sale to Murtha, he talked with the defendant's husband and reminded him that the plaintiff would be owed a commission if the property was sold to Murtha. The defendant's husband told the plaintiff that a sale at $850,000 would not be sufficient to pay the plaintiff a commission. Both parties agreed that they would need to talk about this issue further. On January 12, 1993, the plaintiff sent a letter to the defendant confirming that her husband had informed the plaintiff that the defendant was about to finalize a contract with Murtha. The letter also stated that he would "like to be assured that [his] commission will be taken into consideration, as per our listing agreement. Obviously, I would be willing to negotiate the amount of the commission." The plaintiff did not speak to the defendant or her husband after mailing the letter.

The defendant would have signed the contract with Murtha in the middle of January, 1993, except for the receipt of the plaintiff's demand for a commission, which the defendant and her husband did not want to pay. They did not attempt to negotiate with the plaintiff to reduce his commission. In February, 1993, the defendant's attorney returned the $10,000 deposit check to Murtha's attorney. The plaintiff believed that the sale to Murtha had not taken place and that the property was still on the market. He continued his efforts to sell the property.

On March 1, 1993, the defendant sold the property to Murtha for $850,000, although the price shown on the conveyance tax forms was $1,050,000. Until the day of the closing, Murtha was unaware that the $10,000 deposit had been returned to her attorney. At the closing on March 1, Murtha signed a new contract that was identical to the original contract that she had signed on January 9, 1993, except that the "Balance at Closing" was increased from $840,000 to $850,000 to reflect the $10,000 deposit that had been returned to her attorney.

On February 23, 1993, the plaintiff received a facsimile from another real estate agent indicating that he had a client who had agreed in principle to purchase the property for $1,025,000. Immediately upon receipt, the plaintiff sent by facsimile the "offer" to the defendant's husband. The plaintiff attempted to telephone the defendant's husband about the facsimile, but did not receive a reply. The defendant never became aware of the "offer." To pay all of the closing expenses and to obtain releases of three mortgages to American Bank, the defendant and her husband provided additional funds at the closing in the amount of $11,088.15. On or about April 15, 1993, the plaintiff made demand on the defendant for payment of his commission of 6 percent of the purchase price of $850,000.

The attorney trial referee found that the change authorization extending the term of the listing agreement was not signed by the defendant pursuant to General Statutes § 20-325a (b)(7). 1 Although the referee found that it would be inequitable to deny the plaintiff recovery, and that the defendant acted in bad faith in raising as a defense the statutory signature requirement of § 20-325a (b)(7), the attorney trial referee determined that the listing had not been signed by the owner for the purposes of § 20-325a and recommended judgment for the defendant unless the court recognized a bad faith exception to the statute. 2 In view of our findings, we need not address the bad faith exception to the statute provided by General Statutes § 20-325a (c).

The trial court rejected the attorney trial referee's finding and concluded that the provisions of § 20-325a (b)(7) were satisfied because the defendant's husband was acting as the defendant's agent when he signed the change authorization, and the defendant subsequently ratified his actions. Judgment for $52,000, plus reasonable attorney's fees in the amount of $12,500, was entered. This appeal ensued, and the plaintiff filed a cross appeal claiming prejudgment interest from March 1, 1993.

"[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." Internal quotation marks omitted.) Family Financial Services, Inc. v. Spencer, 41 Conn.App. 754, 759, 677 A.2d 479 (1996). "A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court ... the Appellate Court ... or the Superior Court ... reviewing the findings of either administrative agencies or attorney trial referees." (Citations omitted.) Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 315 (1990).

"The right of a real estate broker to recover a commission is dependent upon whether the listing agreement meets the requirements of §...

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10 cases
  • Maloney v. PCRE, LLC
    • United States
    • Connecticut Court of Appeals
    • March 26, 2002
    ...App. 798. An award of such interest is an equitable determination lying within the trier's sound discretion. Rapin v. Nettleton, 50 Conn. App. 640, 651, 718 A.2d 509 (1998). The determination "is one to be made in view of the demands of justice rather than through the application of an arbi......
  • Location Realty, Inc. v. Colachino, No. CV 02-0818384S (CT 4/7/2006)
    • United States
    • Connecticut Supreme Court
    • April 7, 2006
    ...Equitable Estoppel In invoking the position that Colachino should be estopped to deny liability, plaintiff cites the case of Rapin v. Nettleton, 50 Conn.App. 640. In Rapin, the defendant's husband, with her oral authorization, signed her name to an extension of a listing agreement. In a sui......
  • Rodney v. Jackson, No. CV-01-0809193 S (Conn. Super. 3/30/2004)
    • United States
    • Connecticut Superior Court
    • March 30, 2004
    ...demands of justice rather than through the application of an arbitrary rule." (Internal quotation marks omitted.) Rapin v. Nettleton, 50 Conn.App. 640, 651, 718 A.2d 509 (1998). "The fact that this dispute is 'hotly contested' does not impact on the trial court's determination that the defe......
  • Coccoli v. Leli, No. CV00-0160861 S (Conn. Super. 2/11/2004)
    • United States
    • Connecticut Superior Court
    • February 11, 2004
    ...upon whether the listing agreement meets the requirements of §20-325a(b)." (Internal quotation marks omitted.) Rapin v. Nettleton, 50 Conn.App. 640, 647, 718 A.2d 509 (1998). Conn. Gen. Statutes Section 20-325a(b) requires that the listing agreement: "(1) be in writing, (2) contain the name......
  • Request a trial to view additional results
1 books & journal articles
  • 1998 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 73, 1998
    • Invalid date
    ...denied, 247 Conn. 923, 719 A.2d 1168 (1998). 81 48 Conn. App. 205, 708 A.2d 620 (1998). 82 50 Conn. App. 236, 717 A.2d 789 (1998). 83 50 Conn. App. 640, 718 A.2d 509 (1998). 84 50 Conn. App. 805, - A.2d _ (1998). 85 47 Conn. App. 242, 248, 702 A.2d 604, cert. denied, 244 Conn. 904, 714 A.2d......

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