Coccoli v. Leli, No. CV00-0160861 S (Conn. Super. 2/11/2004)

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Unpublished Opinion

Vincent Coccoli v. Mario D. Leli et al.

No. CV00-0160861 S

Superior Court of Connecticut

Judicial District of Waterbury at Waterbury

February 11, 2004

MEMORANDUM OF DECISION

ALVORD, JUDGE.

The plaintiff, (hereinafter, "Coccoli") instituted this action for the recovery of a real estate commission and reasonable legal fees allegedly due pursuant to a listing agreement. The defendant (hereinafter "Leli"), then instituted a third-party complaint against the third-party defendant (hereinafter "Vaz"). Coccoli claims that he is entitled to a $40,500 commission under the express terms of the original listing contract, because his real estate brokerage firm introduced the third-party defendant Vaz to the property during the term of the listing contract and Vaz purchased the property from the defendant Leli within 60 days of the expiration of the listing agreement.

This case is remarkable for the lack of credibility of two of the defense witnesses who also happen to be defendants in this action, and the third-party action. Of particular concern was the testimony of witness Vaz, the third-party defendant and purchaser of the property. After carefully sifting the testimony and examining the exhibits, the court is able to find certain facts by the civil standard of a fair preponderance of the evidence. These facts, set forth herein, are sufficient to compel a conclusion that judgment should be entered for the plaintiff Coccoli in this action.

FACTS

The plaintiff, Coccoli, filed a one-count complaint against the defendant, Leli. On June 3, 1999, the defendants, Mario and Mildred Leli, listed their residential real estate property at 47 Coe Road in Wolcott for sale with the plaintiff's real estate agency, Coldwell Banker Realty 2000. The defendants had been attempting to sell their residential real estate property for many years, both on their own and through other real estate agencies, without success. The contract provided that Leli agreed to pay the plaintiff a commission of 6% if during the term of this contract "Owner sells the Listed Property within 60 days after the expiration of this Listing Agreement to any person, Broker or any Agent cooperating with the Broker . . . had shown or introduced the Listed Property prior to the expiration of the Listing Agreement." (Plaintiff's Exhibit 1, para. 2d.) The contract further provided that "If Broker or Owner have to go to court or arbitration to enforce their rights under this contract, the prevailing party shall be entitled to be paid as part of the award their costs and expenses, including attorneys fees." (Id.) The original term of the contract was from June 3, 1999 to December 3, 1999. The contract was extended for a second six months, from December 3, 1999 to June 3, 2000.

While the contract was in effect, the plaintiff's agent made diligent and appropriate efforts to market the property. Specifically, with respect to the current action, while the contract was in effect a duly authorized real estate sales person employed by Coccoli brought the property to the attention of defendant Vaz. Interested in the property, Vaz requested and received copies of the marketing materials on the property from the plaintiff's office file, Vaz attended an open house at the property conducted by the plaintiff, and Vaz had the plaintiff transmit a verbal offer for the purchase of the property to the defendant Leli, which offer was verbally rejected.

On the day immediately following the expiration of the contract, Vaz contacted defendant Leli and that very day negotiated the terms of a purchase of the property from Leli. Vaz visited the property, a second time, with Leli, two days immediately following the expiration of the contract. Leli and Vaz reduced their purchase and sale agreement to writing on June 5, 2000, which, again, was two days after the listing agreement expired. The date of sale was within 60 days of the expiration of the Listing Agreement. Vaz purchased the property from Leli for $ 675,000. Defendant Leli refused to pay Coccoli a commission on the sale to Vaz.

DISCUSSION

"The right of a real estate broker to recover a commission is dependent 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 names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authoriza-tion given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner . . . and by the real estate broker or his authorized agent." Tolk v. Williams, 75 Conn.App. 546, 552 (2003), 817 A.2d 142.

Assuming a valid, written listing contract in conformity with the requirements of General Statutes 20-325a,...