Opinion
CV136034641S
11-25-2015
William Raveis Real Estate, Incorporated v. Richard Ellenbogen et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael Hartmere, Judge Trial Referee.
The plaintiff, William Raveis Real Estate, Incorporated, filed a four-count complaint against the defendants, Richard Ellenbogen and Debra Weissman on April 15, 2013. On September 10, 2013, the plaintiffs filed a four-count amended complaint against the defendants. The defendants filed an answer to the amended complaint on May 20, 2014. The matter was tried to the court on June 18, 2015. At trial, the plaintiff withdrew the second and third counts of the complaint. The trial proceeded on the first count, which alleges a breach of contract and the fourth count which alleges unjust enrichment. Subsequent to trial, the parties filed post-trial briefs and the defendants filed a reply brief. Based on the evidence and testimony at trial, the court makes the following findings.
FINDINGS OF FACT
On January 29, 2012, the plaintiff, William Raveis Real Estate, Inc. (" Raveis"), and the defendants, Richard Ellenbogen (" Ellenbogen"), and Debra Weissman (" Weissman") entered into an Exclusive Right To Sell Listing Contract (" contract") for a period of six months. The agreement identified the owners as Richard Ellenbogen and Debra Weissman, the listed property as 16 Fairfield Avenue, Westport, and the listed price for sale as $1,849,000. The parties agreed that " [t]his contract will go into effect on February 8, 2012, and will remain effective through and including August 8, 2012. Upon full execution of an agreement for the sale of the LISTED PROPERTY, all rights and obligations under this Listing Agreement will automatically extend through the date of the actual closing of the LISTED PROPERTY and may not be revoked or canceled once the Agreement for Sale has been executed by You." Raveis prepared the listing contract and the broker with whom the defendants dealt was John Gray (Gray). Gray had known the defendants since 2003 and had help them purchase a prior residence, sell that residence, and then purchase 16 Fairfield Ave. The defendants contacted Gray about selling 16 Fairfield Ave., and it was originally listed in 2011, and then again listed in 2012.
Paragraph 9 of the Raveis Listing Contract dated January 29, 2012, provides as follows:
I/We will pay You a commission fee of 4.5% of the agreed-upon sale price and a Administrative Fee of $195 if during the term of this Contract:
a) The LISTED PROPERTY is sold.
b) I/We, You or anyone else finds a buyer ready, willing and able to buy the LISTED PROPERTY under terms spelled out in this Contract, or for any other terms acceptable to Me/Us.
c) I/We will pay You the same commission fee if, within 180 days after this Agreement expires, I/We sell the LISTED PROPERTY to anyone who saw the LISTED PROPERTY through You, or any licensee, including a buyer's broker, during the term of this agreement or any extension thereof, provided no new listing agreement becomes effective during that same period.
The term of the listing contract was from February 8, 2012 through and including August 8, 2012.
The defendants had an unpleasant experience during the term of the listing contract. Gray introduced the defendants to one Eileen Fish in May 2012, and the parties entered into a contract for the purchase and sale of the property. The defendants removed all their furniture from the property in reliance on a scheduled July closing date. However, Ms. Fish's deposit check was returned by the bank for insufficient funds, and the closing never occurred.
Gray showed Laurie Wright the property and on July 13, 2012, Ms. Wright submitted a written offer to purchase the property for $1,600,000, subject to a building inspection and a $1,280,000 mortgage approval. The defendants did not accept the offer. Thereafter, on August 6, 2012, Gray communicated a proposal to the defendants from Ms. Wright to purchase the property for $1,700,000, no mortgage or resale contingency, and a 30-day closing date, but subject to a building inspection. The August 6th proposal was acceptable to the defendants with certain conditions. Ms. Wright had to be able to close without the need for financing or the sale of her existing home. The defendants wanted a closing date of September 7, 2012 and certified funds for the deposit before they would sign a contract. Ms. Wright had requested to rent the property prior to the scheduled closing, which generally the defendants did not want. The parties were represented by attorneys.
On August 7, 2012 Gray emailed Ellenbogen that the inspection was scheduled for the next day, August 8, which was the same day that the Raveis listing contract was set to expire. Gray requested an extension of the listing agreement " . . . through to closing of this deal. Can you just confirm back on that." The defendants responded: " Let's get through the inspection tomorrow. If they are committed in going forward of course we will extend through closing."
The parties and their attorneys negotiated back and forth, but Ms. Wright had not signed an offer other than the July 13 offer (which was rejected), paid a deposit, or made any form of commitment. On August 8, 2012, Gray proposed an extension of the listing agreement through August 10, 2012, to which the defendants agreed.
For rental fees, the defendants proposed $4,000 per week/$500 per day. Wright was suggesting much less. On August 10, 2012, Gray proposed having the two brokers make up the differences in suggested rental terms out of their commissions. The buyers were still negotiating on August 12, 2012. On August 13, 2012 at 6:45 a.m., Ellenbogen emailed Gray a number of conditions of the sale and stated that he needed the buyers' signed contract by noon on Monday, August 13, 2012. Later on August 13, 2012, the defendants were informed that the buyers' attorney would not be able to review the contract until Thursday, August 16 and that Ms. Wright did not yet have a signed contract for the sale of her home and that she would not enter into a contract to purchase the property until she had a signed contract for the sale of her home. At 5:24 p.m. the defendants emailed Gray that they intended to " sign a new listing agreement tomorrow and move on."
On August 14, 2012, the defendants signed an Exclusive Right To Sell Listing Agreement with Riverside Realty Group, Ltd., and informed Gray that they had done so.
On August 21, 2012, Wright's attorney sent an email to the defendants' attorney, which explained why Ms. Wright had been unwilling to sign a no-contingency contract with the defendants and requesting a limited Hubbard's clause. After speaking with the defendants, their attorney emailed Wright's attorney: " No go on revised offer. Was always a non-contingent deal. If house still available when your client ready to buy, seller would be pleased to sell at that time."
Subsequently, Ms. Wright obtained a signed contract for the sale of her existing home, and ultimately closed on that sale. On September 7, 2012, during the term of the Exclusive Right To Sell Listing Agreement with Riverside Realty Group, Ltd., the defendants signed a residential real estate contract for the sale of the property to Ms. Wright. They were no contingencies and no rental agreement. The terms were substantially different from those contained in Wright's July 13, 2012 written offer. On October 5, 2012, the defendants sold the property to Ms. Wright for $1.7 million and paid real estate commissions to the two brokers involved.
Additional facts will be supplied as necessary.
LEGAL DISCUSSION
Count one of the complaint alleges a breach of contract by the defendants, Richard Ellenbogen and Debra Weissman. General Statutes section 20-325a expressly prohibits the bringing of an action to recover a real estate commission unless services were rendered pursuant to a written contract which complies with the statute. Howland v. Schweir, 7 Conn.App. 709, 713, 510 A.2d 215 (1981). In order to establish the essential elements for a breach of contract, the plaintiffs must prove by a preponderance of the evidence: (1) the formation of an agreement; (2) performance by one party; (3) a breach of the agreement by the other party; and (4), damages resulting from the breach. Keller v. Beckenstein, 117 Conn.App. 550, 561, 979 A.2d 1055 (2009).
The operative language from paragraph 9 of the Raveis listing contract dated January 29, 2012 provides as follows:
I/We will pay You a commission fee of 4.5% of the agreed-upon sale price and a Administrative Fee of $195 if during the term of this Contract:
a) The LISTED PROPERTY is sold.
b) I/We, You or anyone else finds a buyer ready, willing and able to buy the LISTED PROPERTY under terms spelled out in this Contract, or for any other terms acceptable to Me/Us.
c) I/We will pay You the same commission fee if, within 180 days after this agreement expires, I/We sell the LISTED PROPERTY to anyone who saw the LISTED PROPERTY through You, or any licensee, including a buyer's broker, during the term of this agreement or any extension thereof, provided no new listing agreement becomes effective during that same period.
Thus, the Raveis listing contract entitled the plaintiff to a commission if any one of three conditions was satisfied: the property was sold during the term of the Raveis listing contract; a buyer was ready, willing and able to purchase the property during the term of the Raveis listing contract under terms spelled out therein, or otherwise acceptable to the defendants; or within 180 days after the Raveis listing contract expired, the property was sold to anyone who saw the property during the term of the Raveis listing contract, provided no new listing agreement became effective during that same period. The plaintiff did not sustain its burden of proof by a preponderance of the evidence as to any of the foregoing conditions.
The plaintiff claims that the property was sold during the term of the Raveis listing contract. The credible evidence does not support that argument. The listing agreement was due to expire on August 8, 2012. Ms. Wright's written offer of July 13, 2012, to purchase the property for $1,600,000, subject to a building inspection and a $1,280,000 mortgage approval was not accepted by the defendants. Thereafter, on August 6, 2012, Ms. Wright made a proposal to purchase the property for $1,700,000. This August 6 proposal was acceptable to the defendants with certain conditions. Ms. Wright had to be able to close without the need for financing or the sale of her existing home. The defendants wanted a closing date of September 7, 2012 (not September 18 as requested) and required certified funds for the deposit before they would sign a contract.
The plaintiff argues that the term of the contract was extended through the closing date of Wright's proposal to purchase the property on August 6, 2012. The evidence is clear that this proposal was never accepted by the defendants. Indeed, the defendants' response to Gray's email of August 7 requesting an extension of the listing agreement until the closing made it quite clear that there was no agreement: " Let's get through the inspection tomorrow. If they are committed in going forward of course we will extend through closing ." (Emphasis supplied.) Ms. Wright was not committed to going forward on terms acceptable to the defendants. Gray then requested an extension to August 10, 2012, to which the defendants agreed, and after further negotiations were unacceptable to the defendants, on August 13 the defendants emailed Gray informing Gray that they intended to " sign a new listing agreement tomorrow and move on." On August 14, 2012, the defendants did sign a new listing agreement with Riverside Realty Group, Ltd., and informed Gray that they had done so. The listing agreement between the plaintiff and the defendants expired without a sale.
The plaintiff also argues that it earned a commission under paragraph 9(b) of the Raveis listing contract because it found a buyer (Ms. Wright) who was ready, willing and able to purchase the property on terms acceptable to the defendants during the term of the listing contract. There was no evidence introduced at trial that Ms. Wright was ready and able to purchase the property during the term of the listing agreement. The evidence established that she was not ready and able to purchase the property until September 6, 2012, when she signed a non-contingent contract to sell her existing home and received a nonrefundable deposit. That allowed Ms. Wright to sign a non-contingent contract with the defendants at a price of $1,700,000 and pay a non-refundable deposit to the defendants. The plaintiff has failed to prove that it was entitled to recover a commission under paragraph 9(b) of the Raveis listing contract because Ms. Wright was not a ready, willing and able purchaser prior to the expiration of that contract on August 14, 2012.
The final basis argued by the plaintiff for recovery under a breach of contract theory is under paragraph 9(c). That subsection provides for a commission to the plaintiff if the defendants sold the property within 180 days after the listing agreement expired to a person who was introduced to the property during the term of the listing agreement. Ms. Wright saw the listed property during the term of the Raveis listing agreement. However, the final clause of that subsection states " provided no new listing agreement becomes effective during that same period." The evidence is undisputed that the defendants signed a new listing agreement with Riverside Realty Group, Ltd., on August 14, 2012, which was well within the 180-day period. The defendants informed the plaintiff of this new listing agreement soon after signing. Thus, the plaintiff failed to prove a breach of contract under this subsection of the contract.
The fourth count of the plaintiff's complaint alleges that the defendants were unjustly enriched to the detriment of the plaintiff. The defendants filed a motion to strike this unjust enrichment count based on a General Statutes, Section 20-325a. That motion to strike was denied by the court (Radcliffe, J.), which held that the plaintiff might pursue the alternate theories of recovery alleged. In the fourth count the plaintiff seeks to recover the value of the real estate services it provided claiming that the defendant was unjustly enriched to the detriment of the plaintiff. The plaintiff relies on the same facts which formed the basis for the breach of contract claim. The plaintiff claims that the defendants benefitted by paying a lesser commission to the brokers pursuant to the Riverside listing agreement.
The plaintiff has failed to prove its claim of unjust enrichment. Unjust enrichment means that it is contrary to equity and good conscience for the defendant to retain a benefit that has come to the defendant at the expense of the plaintiff. Meaney v. Connecticut Hospital Ass'n, 250 Conn. 500, 511, 735 A.2d 813 (1999). The contract between the plaintiff and the defendants had expired and the defendants had entered into a new contract. The benefit which inured to the defendants was the result of the fortuitous change in circumstances of Ms. Wright after the plaintiff's listing agreement had expired. The benefit was not the result of the plaintiff's actions. Thus, the plaintiff has failed to meet its burden of proof with respect to its unjust enrichment claim.
CONCLUSION
Based on all of the foregoing, judgment will enter for the defendants on counts one and four of the plaintiff's complaint.