Opinion
No. CV01 038 14 52 S
May 11, 2004
MEMORANDUM OF DECISION
In this action the plaintiff, Fischer Commercial Real Estate, Inc., seeks commission fees allegedly due it pursuant to a listing agreement with the defendant, Barbara B. Appel. The case was tried before this court on March 19, 2004. The plaintiff submitted a post-trial brief on April 12, 2004; the defendant submitted hers on April 27, 2004. The plaintiff filed a reply brief on May 5, 2004.
Facts
After hearing the testimony of the only witness, Alan Fischer, and reviewing the exhibits the court finds the following facts. Alan Fischer was the broker-owner of Fischer Commercial Real Estate, Inc. on June 20, 1996, when he entered into a listing contract with the defendant to sell property that she owned at 525 John Street, Bridgeport, CT. On September 17, 1996, Reverend Fearon Blake, Pastor of the Calvary New Testament Church of God, through the efforts of the plaintiff, expressed an intent by letter to purchase the property. On September 20, 1996 Alan Fischer faxed plaintiff's counsel a statement that the church had agreed to a price and articulated the terms of the financing. Mr. Fischer also requested that a contract be drawn as soon as possible. Subsequent to this letter, and for many months thereafter, the seller and potential buyer negotiated and renegotiated various terms and conditions of the purchase. While a closing was scheduled, the sale never transpired because the parties could not agree on the payment of delinquent real estate taxes. (Exhibit 4)
While the plaintiff testified that "as far as I know" a contract was prepared, no contract was entered into evidence during the trial. (Tr. p. 7.)
Discussion
Initially, the defendant asked the court to dismiss this action because Alan Fischer, the broker-owner of Fischer Commercial Real Estate, Inc., signed the listing agreement, without reference to Fischer Commercial Real Estate, Inc. Accordingly, the defendant opined that Alan Fischer was the real party in interest and that Fischer Commercial Real Estate, Inc. lacked standing to proceed with this action. Pursuant to Practice Book § 9-20, however, the court orders that Alan Fischer, a principal of Fischer Commercial Real Estate, In., be added as a plaintiff to effectuate the determination of the real matter in dispute.
In support of its position that Fischer is entitled to a broker's commission, the plaintiff cites to William Raveis Real Estate, Inc. v. Axelstawski et al., 31 Conn. App. 608, 626 A.2d 797 (1993), a case in which the award of a broker commission was upheld when the transaction for the sale of the property was not consummated. The Appellate Court first emphasized: "[T]he outcome of this appeal is governed by the settled principle that a broker's right to recover a commission arises from the terms of the listing contract." (Citing Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 77, 438 A.2d 1202 (1982).) It then noted that in "the present case, the listing contract provided that the plaintiff was entitled to a commission if either (1) a buyer who was ready, willing and able to purchase the property on the terms and conditions of the listing contract was produced, or (2) the property was sold." The Appellate Court was satisfied that the trial court found sufficient facts to support its finding that the broker found a ready, willing and able buyer; thus, upheld the court's decision.
This case can be distinguished by the terms of the listing agreement, as well as by the facts of the transaction. Paragraph 3 of the Listing Agreement states: "I [seller] will pay you [broker] a fee equal to 6% of the agreed upon purchase price if the property listed is sold, transferred, exchanged or condemned and/or you or anyone else introduces a buyer to the listed property who is ready, willing and able to buy the listed property, either for the listed price or for any other price acceptable to me [seller] and/or which buyer, either during or within 365 days after the listing period expires, executes a binding agreement to purchase the listed property that is acceptable to me [seller]." There appears to be no dispute that this property was not "sold, transferred, exchanged or condemned." Thus, the first provision of the listing agreement was not satisfied. Accordingly, there must be a ready, willing and able buyer, and/or an enforceable purchase agreement before the broker is entitled to a commission.
"The determination of whether a buyer is ready, willing and able is a question of fact . . ." William Raveis Real Estate, Inc. v. Stawski, 31 Conn. App. 608, 611, 626 A.2d 797 (1993). "The plaintiff must show by a preponderance of the evidence that the buyer it produced was ready, willing and financially able to purchase the business." R. Zemper Associates v. Scozzava, 28 Conn. App. 557, 560, 611 A.2d 449 (1992). Essentially, the plaintiff must prove the buyer's financial ability to be entitled to judgment. Id.
Between September 20, 1996 and July 14, 1997, the intended day of closing, numerous disagreements and negotiations and renegotiations transpired between the parties. (Exhibit 4.) The Church was unable to secure financing; accordingly, several extensions of time were requested by the Church in an attempt to obtain a mortgage. Moreover, the property was in foreclosure. While the Church was eventually able to secure some form of financing, on May 14, 1997, the foreclosure bank imposed additional conditions on the sale of the property, which increased the amount of cash the Church was required to bring to the closing by $40,000. Subsequently, the Church informed the seller that it could not go forward with the sale unless the seller remained liable for the delinquent real estate taxes. The court heard no testimony concerning the Church's finances. Nor, was evidence provided as to why the Church could not assume payment of the delinquent taxes. A reasonable inference given the above, however, is that the Church was financially unable to do so. Nonetheless, without payment of the taxes by the Church, the sale price was unacceptable to the seller. (Exhibit 4) Based on these facts the court finds that the plaintiff has failed to prove by a preponderance of the evidence that the Church was a ready, willing and able purchaser of this property, at a price acceptable to the seller.
The court also finds that the plaintiff has failed to provide evidence of an agreement for the sale of the property; accordingly, the court cannot determine whether or not such an agreement was "binding," or executed. The fax of September 20, 1996 was a letter between counsel memorializing an intent by the parties to enter into an agreement, it was not an executed, binding agreement as required by the listing agreement. "A broker has fully performed his task when he brings the parties to an enforceable agreement . . . If, without any fraud, concealment, or any improper practice on the part of the broker, the principal accepts the person presented . . . upon the terms . . . proposed . . . and enters into a binding and enforceable contract with him for the purchase of the property the commission is fully earned." Francis T. Zappone Co. v. Mark, 197 Conn. 264, 268, 1497 A.2d 32 (1985). The court cannot make a factual finding as to whether or not the sales contract was enforceable without reviewing the contract. Cf. id. at 267. Because the plaintiff has failed to prove, by a preponderance of the evidence, that the conditions of the listing agreement were satisfied, the court finds the issues in favor of the defendant.
Judgment may enter for the defendant.
WOLVEN, J.