Opinion
CV116012338
02-25-2016
Daniel Pellet as Guardian for Stephen Pellet v. Keller Williams Realty et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR FINDING PURSUANT TO GENERAL STATUTES § 52-226A
Cynthia K. Swienton, J.
I
PROCEDURAL HISTORY
On July 15, 2015, this court, Swienton, J., granted, without objection, the defendant's, Kimberly Kilduff, motion for directed verdict. The court also granted the remaining defendants', Keller Williams Realty, Michael Ladden, Pina Jenkins, David Olson, and Jason Kilduff, motion for directed verdict. On July 17, 2015, the defendant, Kimberly Kilduff, requested that the court make a special finding pursuant to General Statutes § 52-226a, and on July 22, 2015, the remaining defendants made a similar request, all defendants asserting that the plaintiff, Daniel Pellet as guardian for Stephen Pellet, brought this action without merit and the action was not asserted in good faith. The plaintiff filed an objection to the finding on July 29, 2015. A reply was filed by the defendants, Keller Williams Realty, Michael Ladden, Pina Jenkins, David Olson, and Jason Kilduff. Argument on the motion did not take place until January 15, 2016.
The court addresses the first issue of whether the court may hear this motion due to the fact that the plaintiff filed an appeal of the granting of the motions for directed verdict on August 3, 2015. This issue was raised by the plaintiff at oral argument, and was not addressed in his brief. He contends that Practice Book § 61-11 operates as an automatic stay to the motion, and an appeal acts as a stay on the judgment.
The plaintiff stated at oral argument that even though he did not object to Kimberly Kilduff's motion for directed verdict at trial, he intended to appeal the decision.
The court is cognizant of the fact that his brief was filed three days prior to his appeal, but perhaps he should have filed a supplemental brief if he intended to base his objection to the motion on this issue in order to apprise opposing counsel as well as the court.
Practice Book § 61-11(a) provides in relevant part that " proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause." The judgment in this matter was a directed verdict in favor of all defendants. The motions before the court presently are not " proceedings to enforce or carry out the judgment; " rather they are seeking a finding by the court pursuant to General Statutes § 52-226a.
The defendants cite the case of All Seasons Services, Inc. v. Guildner, 89 Conn.App. 781, 878 A.2d 370, (2005), as instructive on this issue. In All Seasons, judgment was entered confirming an arbitration award in the plaintiff's favor, which judgment was appealed by the defendant. While the appeal was pending, the plaintiff began post-judgment discovery efforts, including the filing of a judgment lien and petition for examination of judgment debtor. The defendant moved to enforce the automatic stay provision of § 61-11(a), or, in the alternative, enter a discretionary stay under Practice Book § 61-11(b). The trial court denied the request and the Appellate Court affirmed, finding that neither the filing of the judgment lien nor the post-judgment discovery constituted proceedings to enforce or carry out the judgment.
Likewise, the findings requested by all the defendants in no way are proceedings " to enforce or carry out the judgment." The motions were timely filed, and the court finds no basis for staying consideration and determination of the matter pending appeal.
FACTS
Stephen Pellet was the title owner of property located at 59 Paper Chase Trail, Avon. A house was built on the property in 1971, and other than minor renovations, had never been updated or renovated, and was full of clutter. The defendants, David Olson and Pina Jenkins, real estate salespersons affiliated with Keller Williams Agency, were contacted by Stephen and Daniel Pellet in August 2008, concerning placing the property on the market for sale.
The evidence showed that the plaintiff was anxious to sell the property and further that he wished to net $90,000 from the sale of the property. After discussions with the realtors and Stephen and Daniel, and after the realtors performed a Comparative Market Analysis which was reviewed with and furnished to Stephen, the parties agreed to a listing price. The listing price was set at $317,900, and on September 4, 2008 a listing agreement was executed by Stephen Pellet.
On September 23, 2010, Daniel Pellet was appointed as guardian for Stephen Pellet by the Farmington Probate Court. There was no evidence submitted at trial to indicate that Stephen did not have the capacity to execute the listing agreement or the subsequent purchase and sales agreement. This action was therefore brought by Daniel Pellet, as guardian for Stephen Pellet.
The defendant, Kimberly Kilduff, learned from a neighbor that the property was being sold, and the real estate agents, Olson and Jenkins were contacted. Olson and Jenkins, after obtaining permission from Stephen to show the house, showed the property to the defendants, Kimberly and Jason Kilduff. An offer was placed by Kimberly Kilduff, which the plaintiff accepted, and the house was sold for $318,000. From the sale, the plaintiff netted almost $89,000.
The Kilduffs were planning to perform renovations on the house and then list it for sale. They performed extensive renovations to the property, expending some $100,000 and subsequently sold the property approximately six months later for $462,000. They netted a profit of approximately $16,000.
The plaintiff then instituted this action against the defendants, Keller Williams Agency, David Olson and Pina Jenkins--the agents in the sale and purchase of the property, Jason Kilduff, the husband of the eventual purchaser of the property, Kimberly Kilduff--the purchaser of the property, and Michael Ladden--the licensed real estate broker and managing officer of the Keller Williams Agency.
The operative complaint was in eight counts: breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, negligent and intentional misrepresentation, negligent supervision, conspiracy to defraud and violation of Connecticut Unfair Trade Practices Act. The underlying basis for each of these counts is breaches of professional standards of care on the part of the real estate agent, broker, and salespersons, regarding selection and recommendation of the listing price. There is also a claim that all the individual defendants, who all allegedly worked in the Keller Williams office, conspired together to deceive the plaintiff.
The complaint does not specifically designate which counts are against which defendants.
Even so, this count has in its core a claim that the real estate agents and broker breached their duty in determining the sales price and negotiating the sale of the property.
DISCUSSION
General Statutes § 52-226a provides: " In any civil action tried to a jury, after the return of a verdict and before judgment has been rendered thereon, in any civil action tried to the court, not more than fourteen days after judgment has been rendered, the prevailing party may file a written motion requesting the court to make a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith. Any such finding by the court shall be admissible in any subsequent action brought pursuant to section 52-268."
Section 52-568 provides for damages for groundless or vexatious suit action.
" A special finding under General Statutes § 52-226a can be made only when two elements have been shown: (1) 'the action was without merit' and (2) 'the action . . . was not brought or asserted in good faith.' Both must be found in order for 'the court to make a special finding.' Trial courts have upheld the denial of a motion for special finding in which the plaintiff's action was determined to be commenced without merit but the court had insufficient evidence to make a finding that it was not brought or asserted in good faith . . ." (Citations omitted.) Shea v. Chase Manhattan Bank N.A., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0149647, (June 15, 2000).
In construing § 52-226a, our Appellate Court has stated, " [w]e have declined to uphold awards under the bad faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . ." (Citation omitted; internal quotation marks omitted.) Beverly v. State, 44 Conn.App. 641, 648-49, 691 A.2d 1093 (1997). " Whether a claim is colorable, for purposes of the bad faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established . . . To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party's use of oppressive tactics or its wilful violations of court orders; the appropriate focus for the court is the conduct of the party in instigating or maintaining the litigation . . ." (Citations omitted; internal quotation marks omitted.) Fattibene v. Kealey, 18 Conn.App. 344, 361, 558 A.2d 677 (1989).
Special Finding as to Defendant, Kimberly Kilduff
The court must analyze whether a finding of lack of merit and lack of good faith is warranted with regard to the claims addressed specifically against Kimberly Kilduff. These are the third count--negligent misrepresentation, fourth count--intentional misrepresentation, and the seventh count--conspiracy to defraud.
It is unclear whether the eighth count, violation of the Connecticut Unfair Trade Practices Act, is addressed against this defendant.
The plaintiff alleged in the operative complaint that Ms. Kilduff was a licensed real estate agent, affiliated with the defendant Keller Williams Agency. During the trial, the plaintiff offered no evidence to prove this claim, nor did they offer any evidence of any misrepresentation made by her, either negligently or intentionally. Moreover, the plaintiff offered no evidence either by way of expert testimony or otherwise, to indicate that she had any duty to disclose anything to him or that she indeed had violated any duty to the plaintiff. At the conclusion of the evidence, Ms. Kilduff made a motion for directed verdict as to the counts against her, arguing that there was zero evidence presented to substantiate the claims made against her. The plaintiff agreed, and did not object to the motion for directed verdict.
Whether or not the plaintiff had probable cause to bring the action against Ms. Kilduff at the commencement of the suit is questionable. However, once she provided him with a full package of documents sometime in October 2012, through discovery, and participated in numerous pretrial over the four years the case was pending, there
would have been sufficient evidence to indicate that his claims were totally without merit and unwarranted. Furthermore, under the test set forth in Fattibene v. Kealey, supra, 18 Conn.App. 361, there is also no question that the action against Ms. Kilduff was brought in bad faith.
The deposition transcripts of Stephen Pellet, Daniel Pellet and Sheila Church were provided to the court--without objection--at the oral argument on this motion. Both Stephen and Daniel testified in their depositions that they had no knowledge as of the dates of their depositions--and never had any knowledge prior to that date of any evidence to support the claims against Kimberly Kilduff.
Special Finding as to Defendants, Keller Williams Realty, Michael Ladden, Pina Jenkins, David Olson and Jason Kilduff
As earlier stated, this lawsuit is based upon claims by the plaintiff that the defendants breached the professional standards of care. In an action based upon professional negligence, expert testimony will be requested if the determination of that standard of care requiring knowledge that is beyond the experience of a normal fact finder. Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 137, 907 A.2d 1220 (2006). " Expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." Id.
The Appellate Court has addressed with a plaintiff's claims against a real estate agent and the lack of expert testimony. In Parker v. Shaker Real Estate, Inc., 47 Conn.App. 489, 495, 705 A.2d 210 (1998) the plaintiff's claims of intentional and negligent misrepresentation against a real estate agency failed where the plaintiffs failed to present any expert testimony to establish the standard of care required of the defendant real estate agency or their agents with respect to disclosure in the circumstances of this ease.
" In an action for the negligence of a professional . . . such as a real estate broker, the standard is quite different. Malpractice is really professional negligence. As lay people, we do not know the standards of real estate brokers or their methods. Thus, it is not easily determined what are the demands of proper treatment. It is for this reason that expert testimony is required to define the standard of care or the duty owing from the real estate broker to his or her client, and whether that duty has been breached, so that one may reasonably and logically conclude what the standard of care is, and whether or not it has been violated." Greif v. William Raveis Real Estate, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 13 5014180, (December 12, 2014).
After the conclusion of evidence, the defendants moved for a directed verdict, as the plaintiff failed to produce any expert testimony regarding the standard of care. Although the court is cognizant of the Supreme Court's characterization of motions for directed verdict as disfavored, the court granted the motion for directed verdict. Curran v. Kroll, 303 Conn. 845, 856, 37 A.3d 700 (2012). However, " because this case involves the marketing and valuation of real estate--specifically the recommendation and assessment of the listing price--this knowledge is not one that can be simply discerned from a court of conduct or from some document that sets forth the care that is required under these circumstances. Expert testimony is required to establish the applicable standard of care, and no testimony or other evidence was offered to establish said standard. The task of valuing a property for the purposes of recommending a listing price as well as the listing and marketing of a property is not common knowledge, and goes beyond the knowledge of the ordinary juror." (Memorandum of decision on motion for directed verdict, Swienton, J.)
The lack of evidence to support the claims and an examination of the law was sufficient to alert the plaintiff that a claim of professional malpractice was not a colorable claim and totally without merit and unwarranted. In addition, the plaintiff failed to establish any damages he claimed for the alleged breach of contract or fraud. In pursuing these claims against the defendants, the plaintiff proceeded in bad faith and " with a desire to punish and burden [them] . . . [and] to harass [them] in retaliation" for perceived--but unsubstantiated and unwarranted--conspiracy to defraud the plaintiff. O'Shea v. Dean, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 90 0305624, (October 20, 1995) (where the defendant, Gerald F. Dean, requested a special finding be made in his favor against the plaintiff, in a vexatious suit brought against Dean and other defendants. The court found that the plaintiff's suit was totally without merit and unwarranted, and that the plaintiff had proceeded in bad faith in bringing the suit in order to retaliate against him for " perceived ingratitude." Although the court had denied the motion for directed verdict, the jury found in favor of the defendant on all counts. The court granted the motion for special finding, and ordered that the finding that " [t]he action of plaintiffs . . . were without merit and were not made in good faith" be incorporated into the judgment.)
The question of a liability expert was not unknown to the plaintiff. The defendants had raised it in a motion for summary judgment filed May 23, 2014. The plaintiff, in his objection, argues that he obtained a CMA from a licensed real estate salesperson, Sheila Church, which substantiated his claims and laid the foundation for his suit. However, there are several problems with this argument. First, Ms. Church never testified at trial, and her opinion was not offered at trial. In her deposition taken by the defendants in September 2012, it was revealed that she had never acted as either a listing agent or buyer's agent, she had no knowledge of the subject property, her CMA was not, in fact a CMA, but merely a listing of other four bedroom colonials in Avon, and she did not know the value of the subject property in the fall of 2008. This was known to the plaintiff in 2012, three years prior to the trial--but yet he continued to proceed with this suit.
The defendants had filed a request for permission to file a motion for summary judgment, together with said motion, which request was denied by the court. (Abrams, J.)
The plaintiff retained an appraiser to opine as to the value of the property. However, an appraiser is of no value is opining as to the adequacy of a realtor's proposed listing price.
Another factor in determining the issue of bad faith that the court has considered is the multiple false allegations made by both Stephen Pellet and Daniel Pellet--allegations that had been previously proven as false, but the plaintiff continued to reiterate them. Throughout five or six revisions of the complaint, the false allegations were carried forward and then reiterated during testimony.
For example, the initial complaint filed with the commencement of the suit contained allegations regarding Jason Kilduff and Kimberly Kilduff and their status as real estate agents affiliated with Keller Williams. In Stephen Pellet's deposition dated February 12, 2012, he specifically testified that he knew that Kimberly Kilduff's real estate license was inactive at the time of the purchase of the property and had been for some time. Jason Kilduff was a mortgage broker. However, these knowing false allegation were again reiterated in the operative complaint dated February 20, 2015.
Stephen Pellet testified that he did not know what the sales price was until the closing, however when confronted with his deposition testimony at trial he admitted that he did know what the sales price was before the actual closing. He admitted that the defendant Jenkins brought the offer of $318,000 to him on September 10, 2008, and he discussed it with his brother, Daniel prior to signing the purchase and sales agreement. Daniel, contradicting his prior testimony, stated that the first he learned of the asking price was after the agreement had been executed, and then admitted on cross examination he in fact did know the asking price as of September 10, when Stephen signed the agreement.
Nevertheless, the plaintiff continued to plead what he himself acknowledged during his deposition to be false allegations. These are a few examples which indicate to the court that he was acting in bad faith in pursing this lawsuit.
CONCLUSION
The plaintiff could not make his claims in good faith, and his pursuit against the defendants as a whole was without merit and in bad faith.
The court orders that the following finding be incorporated in the judgment:
The action of the plaintiff, Daniel Pellet, as guardian for Stephen Pellet, was without merit and not made in good faith as to all the defendants.