Vincent Metro, LLC v. Ginsberg

• Decision Date: 18 December 2012
• Docket Number: No. 33654.,33654.
• Citation: 139 Conn.App. 632,57 A.3d 781
• Court: Connecticut Court of Appeals
• Parties: VINCENT METRO, LLC v. Kenneth S. GINSBERG et al.

139 Conn.App. 632

57 A.3d 781

VINCENT METRO, LLC

v.Kenneth S. GINSBERG et al.

No. 33654.

Appellate Court of Connecticut.

Submitted on Briefs Sept. 17, 2012.

Decided Dec. 18, 2012.

Peter E. Ricciardi, Hamden, and Albert J. Oneto IV filed a brief for the appellant (plaintiff).

Kenneth A. Votre, New Haven, filed a brief for the appellees (defendants).

LAVINE, ROBINSON and SHELDON, Js.

SHELDON, J.

The plaintiff, Vincent Metro, LLC, a licensed real estate broker, commenced this action against four defendants—Kenneth S. Ginsberg and his company, YAH Realty, LLC (YAH), and two of their customers, John Fitzpatrick (John) and Rose Fitzpatrick (Rose)—to recover commissions it claims to have earned under an exclusive listing agreement between itself and YAH for certain of YAH's commercial condominium units in Hamden. The action is now before this court on the plaintiff's appeal from the judgment of the trial court denying the plaintiff's application for a prejudgment remedy against YAH in the amount of $22,568.55, a sum representing the total of all commissions the plaintiff seeks to recover herein. The plaintiff claims that the trial court committed clear error in denying its application for a prejudgment remedy because the evidence presented to it established probable cause that it will recover judgment against YAH in an amount equal to or greater than the requested sum. The plaintiff claims that the evidence established its right to recover the commissions here at issue by proving that it procured ready, willing and able buyers for three of YAH's listed condominium units during the term of the listing agreement. We agree with the plaintiff's claim with respect to one of the listed units, as to which YAH and John, a buyer procured by the plaintiff, entered into a written sales agreement during the term of the listing agreement. We disagree with the plaintiff, however, with respect to the other two listed units, which YAH eventually sold to John and Rose over two years after the listing agreement had expired. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The following facts, which are undisputed, are relevant to our resolution of the plaintiff's claims on appeal. YAH owned an undeveloped commercial property in Hamden, known as Corporate Ridge, which had been approved for the development of commercial condominium space in the form of a large metal building that was to be subdivided into individual garage units that were to be sold separately to interested parties. YAH entered into an exclusive listing agreement with the plaintiff for the sale of such units for the period from July 18, 2005 to January 7, 2006. Under that agreement, YAH agreed to pay the plaintiff a commission in the amount of 5 percent of the purchase price for each unit that was either sold during the period of the agreement or for which, in that same time frame, the plaintiff found “a buyer ... who [wa]s ready, willing and able to buy ... the property upon the authorized terms and conditions of the sale ... or upon any other terms and conditions acceptable to [YAH].”

During the term of the listing agreement, the plaintiff procured a buyer, John, for one of the listed units. On December 13, 2005, John and YAH entered into a written contract for the purchase and sale of that unit, known as unit 16, pursuant to which John paid the plaintiff an initial deposit of $20,000. ¹ The contract set a closing date of June 30, 2006, but further provided that if construction of the unit was not completed by that date, YAH would have an additional sixty days to complete its construction. Construction of unit 16 was not completed by the closing date; nor was it completed within sixty days thereafter. John thus cancelled his contract for the purchase of unit 16 and sent the plaintiff a letter demanding the return of his $20,000 deposit, which he asked to be turned over to YAH. Nearly two years later, on April 14, 2008, John and his mother, Rose, jointly purchased two other units at Corporate Ridge, known as units 12 and 13, directly from YAH. YAH has never paid the plaintiff a commission in connection with either John's cancelled contract for the purchase of unit 16 or John and Rose's later purchase of units 12 and 13.

On October 21, 2009, the plaintiff filed this action against the defendants, claiming, inter alia, that they had conspired together to deprive it of commissions to which it was entitled in connection with the two previously described transactions. On November 8, 2010, the plaintiff filed an application for a prejudgment remedy in the amount of $22,568.55, a sum representing the total of all commissions it claimed to have earned by procuring ready, willing and able buyers for YAH's listed units: $6450 for the first transaction, involving unit 16; and $16,118.55 for the second transaction, involving units 12 and 13. On July 12, 2011, the court denied the plaintiff's application for a prejudgment remedy. With respect to the first transaction, the court determined that the plaintiff “produced a buyer who was not ready or willing to purchase [YAH's] property unless a certain contingency was fulfilled,” to wit: that the condominium unit be built by the closing date or within sixty days thereafter. The court reasoned that because that contingency had not been fulfilled, John was within his rights to cancel the contract, and thus the plaintiff was not entitled to a commission in connection therewith. As to the second transaction, the court noted that “a listing agreement's termination date cannot thereafter be construed as an open ended listing” and denied the plaintiff's application on the ground that there was “insufficient evidence that [that] sale was negotiated in 2005 or 2006.” Although the court noted that “[a] full hearing with all relevant parties testifying might change the application of the law,” it denied the plaintiff's application on the basis of the evidence then before it. This appeal followed.²

“A prejudgment remedy means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment.... General Statutes § 52–278a (d). A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff.... General Statutes § 52–278d (a)(1).... Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence.... The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.... Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.... Under this standard, the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits....

“As for [the] standard of review [on appeal], [our Supreme Court has instructed that an appellate] court's role on review of the granting [or denial] of a prejudgment remedy is very circumscribed.... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error.... In the absence of clear error, [a reviewing] court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.... [On appeal], therefore, we need only decide whether the trial court's conclusions were reasonable under the clear error standard.” (Citations omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 136–38, 943 A.2d 406 (2008).

The plaintiff here contends that the trial court improperly denied its application for a prejudgment remedy because the evidence before it clearly established that the plaintiff had earned the subject commissions by procuring ready, willing and able buyers for YAH's listed units in accordance with the listing agreement.³ “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).... 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.” (Citations omitted.) Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 77–78, 438 A.2d 1202 (1982). 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. Dyas v. Akston, 137 Conn. 311, 313, 77 A.2d 79 (1950); Finch v. Donella, 136 Conn. 621, 626, 73 A.2d 336 (1...