Reyher v. Finkeldey

Decision Date22 May 2018
Docket NumberAC 40296
Citation189 A.3d 179,182 Conn.App. 159
CourtConnecticut Court of Appeals
Parties Mark R. REYHER v. John A. FINKELDEY

Matthew G. Berger, New London, for the appellant (defendant).

Michael Ruben Peck, for the appellee (plaintiff).

Alvord, Sheldon and Mihalakos, Js.

PER CURIAM.

The defendant, John A. Finkeldey, appeals from the judgment of the trial court rendered in favor of the plaintiff, Mark R. Reyher, a licensed real estate broker doing business as Reyher Real Estate, requiring payment of his commission. On appeal, the defendant claims that the court improperly concluded that the plaintiff procured a buyer who was ready, willing and able to purchase the defendant's property under the terms of the listing agreement. We agree and, accordingly, reverse the judgment of the trial court.

The following facts, which are undisputed, are relevant to our analysis. On September 14, 2015, the defendant entered into a commercial exclusive agency listing agreement with the plaintiff for the sale of the defendant's property, located at 33 Plains Road in Essex. Under the listing agreement, the defendant authorized the plaintiff to offer the property for sale for the price of $870,000, and agreed to pay the plaintiff a 5 percent commission if he "procure[d] a buyer ... ready, able and willing to purchase ... the [property] for [$870,000] ... or for any other price or upon such terms as may be agreed to by the [seller], as signified by the buyer's ... execution of a written purchase contract." During the term of the listing agreement,1 the plaintiff procured a prospective buyer, Valley Railroad Company (Valley), and on October 14, 2015, presented the defendant with a real estate purchase and sales agreement, executed by Valley. Under the purchase and sales agreement, Valley counter offered to purchase the defendant's property for the listing price, $870,000, contingent on (1) its ability to obtain financing, (2) an inspection, and (3) having "120 day[s] to have [the] property reviewed for any environmental considerations." The defendant subsequently rejected Valley's offer, and a binding agreement to purchase the subject property was never reached.

On December 8, 2015, the plaintiff filed this action against the defendant, alleging that he was owed $43,500, a sum representing the commission he claimed to have earned by procuring a ready, willing and able buyer for the defendant's listed property. The case was tried to the court on February 8, 2017. During cross-examination by defendant's counsel, Kevin Dodd, the president of Valley, testified that Valley was not ready, willing and able to close on the property without fulfillment of the financing and inspection contingencies.2 On March 24, 2017, the court issued a memorandum of decision awarding the plaintiff damages in the amount of $43,500. The trial court found that the "plaintiff ... satisfied his burden of proving entitlement to a commission under the terms of the listing agreement ... [having] procured a prospective buyer, who offered to pay the full price stated on the listing agreement. In the listing agreement, the seller did not require any additional terms or conditions to be contained in an offer. [Valley] was ready, willing, and able to close the transaction in accordance with the offer presented to the seller. The defendant, therefore, breached his contract obligations to the plaintiff." This appeal followed.

We turn to our standard of review and the legal principles that guide our resolution of the defendant's claim on appeal. The law is well settled that a real estate broker who procures a buyer ready, willing and able to purchase the subject property on the owner's terms is entitled to a commission pursuant to the provisions of a valid listing agreement. See, e.g., Vincent Metro, LLC v. Ginsberg , 139 Conn. App. 632, 638–39, 57 A.3d 781 (2012), cert. denied, 308 Conn. 907, 61 A.3d 1097 (2013). "The right of a brokerage firm to recover a commission depends upon the terms of its employment contract with the seller. To be enforceable, this employment contract, often called a listing contract, must be in writing and must contain the information enumerated in General Statutes § 20–325a (b).3 ... To recover its commission, the brokerage firm ordinarily must show that it has procured a customer who is ready, willing, and able to buy on terms and conditions prescribed or agreed to by the seller. ... In the alternative, the broker may be entitled to recover if it has brought the buyer and the seller to an enforceable agreement. ... Our Supreme Court has repeatedly held that a broker who has, in accordance with a listing contract, found a purchaser ready, willing, and able to purchase, on the owner's own terms, is entitled to its commission even though no contract for the sale of the property has ever been executed." (Citations omitted; footnote added; internal quotation marks omitted.) Id. ; see also Dyas v. Akston , 137 Conn. 311, 313, 77 A.2d 79 (1950) ("[t]his rule does not require that the parties enter into an enforceable agreement but only that the offer of one party fairly meets the terms of the other " [emphasis added] ).

It is well established that until a contingency contained in a sales agreement has been met, a prospective buyer cannot be said to be ready, willing and able to purchase. See Frumento v. Mezzanotte , 192 Conn. 606, 617, 473 A.2d 1193 (1984) ("[a] proposed purchaser [of land] cannot be said to be able to purchase when he is dependent upon [a purchase price loan from a third party] who [is] in no way bound to furnish the funds" [internal quotation marks omitted] ); Menard v. Coronet Motel , Inc. , 152 Conn. 710, 711–12, 207 A.2d 378 (1965) (broker not entitled to commission under listing agreement where prospective buyers' obligation to purchase was contingent upon their ability to sell their real estate); Eames v. Mayo , 97 Conn. 725, 727–28, 117 A. 802 (1922) (broker not entitled to...

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