Present: All the Justices
GEORGE K. POLYZOS, ET AL.
OPINION BY
v. Record No. 011778 JUSTICE LAWRENCE L. KOONTZ, JR.
June 7, 2002
FRANK COTRUPI
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
In this appeal, we consider whether expert testimony was
necessary to prove claims of negligence and breach of contract
against a real estate agent when a contract for the sale of real
estate required conveyance of a parcel larger than that which
the owners retained the real estate agent to sell.
BACKGROUND
George K. Polyzos and Jennifer P. Polyzos (the Polyzoses)
engaged Frank Cotrupi, a licensed real estate agent, to list,
market, and sell a portion of a parcel of residential real
estate they owned on the waterfront of the Warwick River in
Newport News commonly known as 1109 Patrick Lane.
The Polyzoses’ residence was located on the lot adjacent to
the parcel they wished to sell. The Polyzoses had purchased the
parcel at 1109 Patrick Lane in order to adjust the boundary line
between the two lots, thereby increasing the water frontage and
the area of the rear yard of their residence. After adjusting
the boundary line, they intended to sell the house and the
remaining portion of 1109 Patrick Lane (the reduced lot). They
retained a surveyor to prepare a plat showing the revised
boundary line between the two lots.
The Polyzoses erected a fence and installed landscaping
along the new boundary line. However, they did not record the
plat showing the revision because their attorney had advised
them that doing so would result in the acceleration of their
mortgage debt.
The Polyzoses subsequently engaged Cotrupi to sell the
reduced lot. They advised him that the boundary line had been
adjusted and that they wanted to sell only the reduced lot, not
the entire lot as they had originally acquired it. Cotrupi
prepared a real estate listing agreement, signed by the
Polyzoses and Cotrupi, which referred to the property for sale
as “1109 Patrick Lane.”
The Polyzoses gave Cotrupi a revised plat of the property,
which George Polyzos had copied from the surveyor’s plat,
reflecting only the reduced lot. Cotrupi was aware that the
surveyor’s plat showing the changed boundary line had not been
recorded and, consequently, that the lot the Polyzoses intended
to sell was smaller than that reflected as “1109 Patrick Lane”
in the City’s land records.
Cotrupi proceeded to market the property, communicating
with potential buyers and their agents. He received and
reviewed offers to purchase the property, including one from
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Robert H. Pride and Patricia A. Pride (the Prides). The
contract offer from the Prides, including a description of the
property to be conveyed, was prepared by the Prides’ real estate
agent based on information Cotrupi had provided to the Realtors’
Multiple Listing Service. The contract offer described the
property to be conveyed as “/ / / Riverview Estates also known
as 1109 Patrick Lane.” The backslashes that begin the property
description indicate spaces for reference to the lot, block, and
section in the subdivision to complete the legal description.
When Cotrupi received the contract offer, he did not attach
or incorporate into the contract a copy of the revised plat
showing the adjusted boundary line. He testified that he had
not thought it was necessary to do so because the revised plat
prepared by George Polyzos had been previously available to the
Prides and their real estate agent when viewing the property and
because the fence and landscaping clearly indicated the location
of the lot lines to the Prides when they viewed the property.
Cotrupi further testified that he had discussed the boundary
line adjustment with the Prides’ real estate agent and that they
had agreed that they would not include the lot number in the
legal description of the property because Cotrupi did not know
what lot number would be assigned by the City when the revised
plat was recorded.
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Prior to closing, a title agent communicating with the
Prides inquired about the boundary line adjustment. The Prides
asserted that they had not been advised of the boundary line
adjustment prior to submitting their contract offer, and that
they were entitled to acquire the entire original lot as bounded
prior to the adjustment. As “an alternative,” the Prides
indicated to the Polyzoses their willingness to consider a
reduction in the contract sale price.
After the Polyzoses refused to consider a reduction in the
sale price and tendered a deed for the reduced lot, the Prides
filed a bill of complaint against the Polyzoses for specific
performance. They contended that the reference in the contract
to the street address as the legal description of the property
could only mean the property shown as that address in the city’s
land records and, thus, that the contract required conveyance of
the entire original lot.
The Polyzoses denied that the contract required the
conveyance of the entire original lot. They also filed a third-
party action against Cotrupi, asserting that if specific
performance were required, Cotrupi would be liable to them for
professional negligence and breach of contract because the
listing agreement authorized the sale of only the reduced lot.
At trial, the chancellor heard testimony from the
Polyzoses, the Prides, and both real estate agents in accord
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with the previously recited facts. * At the conclusion of the
Polyzoses’ evidence, the chancellor granted Cotrupi’s motion to
strike the Polyzoses’ evidence and dismiss their third-party
claims of negligence and breach of contract against him. In
doing so, the chancellor ruled that the Polyzoses had failed to
adduce any evidence through expert testimony with regard to the
requisite standard of care owed by a licensed realtor to his
clients. At the close of all the evidence, the trial court
found that the contract required the Polyzoses to convey the
entire original lot to the Prides.
The Polyzoses now appeal the dismissal of their third-party
action against Cotrupi, contending that the chancellor erred in
requiring expert testimony in the proof of both their negligence
and breach of contract claims. They have not assigned error to
the judgment in favor of the Prides and, accordingly, the Prides
are not parties to this appeal.
DISCUSSION
Because of the unusual procedural posture of this case on
appeal, we first address the standard of review applicable to
the Polyzoses’ assignments of error. The Polyzoses were not the
*
The testimony of the Prides’ agent, including his
statement that Cotrupi had not informed him of the boundary line
change prior to execution of the sales contract, was taken after
the dismissal of the Polyzoses’ third-party claim against
Cotrupi.
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prevailing parties below. However, at the time the chancellor
considered Cotrupi’s motion to strike the evidence on the third-
party claims against him, procedurally the Polyzoses were in the
same position as plaintiffs who had presented their case-in-
chief against the defendant. Under such circumstances, “a
[chancellor] should review the evidence adduced at trial . . .
accept[ing] as true all the evidence favorable to the plaintiff
as well as any reasonable inference [the trier of fact] might
draw therefrom which would sustain the plaintiff’s cause of
action.” Austin v. Shoney's, Inc., 254 Va. 134, 138, 486 S.E.2d
285, 287 (1997); accord Claycomb v. Didawick, 256 Va. 332, 335,
505 S.E.2d 202, 204 (1998).
This standard also applies to this Court’s review of the
chancellor’s decision to strike the Polyzoses’ evidence.
Therefore, we consider the evidence in this case, and all
reasonable inferences to be drawn from it, in the light most
favorable to the Polyzoses. Lambert v. Downtown Garage, Inc.,
262 Va. 707, 712, 553 S.E.2d 714, 716 (2001).
When so viewed, the evidence clearly establishes that
Cotrupi understood that he was being retained as a realtor to
list and market only that portion of “1109 Patrick Lane” that
remained after the boundary line had been adjusted by the
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Polyzoses to enlarge their adjoining lot. Similarly, it is a
reasonable inference from the evidence that the Polyzoses and
Cotrupi understood that the use of the street address in the
listing agreement was meant to refer to the reduced lot because
it would have retained that street address even if it were
assigned a new lot number by the City.
The evidence viewed in the light most favorable to the
Polyzoses further establishes that the Prides were not aware of
the changed boundary line when they executed their purchase
offer. The reasonable inference from that evidence is that
Cotrupi failed to make them or their agent aware of that fact.
In addition, it can be readily and reasonably inferred from the
evidence that Cotrupi was aware, or should have been aware, that
the sales contract did not contain a complete and accurate legal
description of the property to be conveyed. Cotrupi, however,
did not attach or incorporate into the contract the appropriate
revised plat to resolve any ambiguity that might exist in the
contract so as to protect the interests of the Polyzoses.
Rather, he relied upon the fence and landscaping viewed by the
Prides to satisfy himself that the contract pertained only to
the reduced lot.
We now consider whether this view of the evidence would
permit the Polyzoses to establish, without presenting expert
testimony, that Cotrupi breached his professional duty to them
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and/or breached the listing contract. As the Polyzoses note,
Code § 54.1-2131 requires licensed realtors to “[p]erform in
accordance with the terms of the brokerage relationship” and
“[e]xercise ordinary care.” Moreover, in adopting statutory
guidelines for the conduct of realtors, the General Assembly has
provided that “[t]he common law of agency relative to brokerage
relationships in real estate transactions to the extent
inconsistent with this article shall be expressly abrogated.”
Code § 54.1-2144.
We are of opinion that the existence of this statutory duty
and standard of care does not dictate that a trier of fact must
always require expert assistance to understand the appropriate
practices of licensed realtors. We also recognize that there
may be instances in which the acts of a realtor, as with other
professionals, involve transactions or matters beyond the
capacity of persons of ordinary intelligence to comprehend and,
thus, to form an intelligent opinion about them without the
assistance of expert testimony. Board of Supervisors v. Lake
Services, Inc., 247 Va. 293, 297, 440 S.E.2d 600, 602 (1994).
We need not formulate a bright line rule applicable to all
cases involving the alleged negligence of realtors. We have
held that expert testimony is unnecessary when the alleged
negligent acts or omissions of certain professionals clearly lie
within the range of the common knowledge and experience of the
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trier of fact. See, e.g., Dickerson v. Fatehi, 253 Va. 324,
327, 484 S.E.2d 880, 882 (1997); Commercial Distributors, Inc.
v. Blankenship, 240 Va. 382, 390, 397 S.E.2d 840, 845 (1990);
Richmond Newspapers v. Lipscomb, 234 Va. 277, 296, 362 S.E.2d
32, 42 (1987). We are of opinion that this case-by-case
approach to the requirement for expert testimony is appropriate
in cases involving the alleged negligence of realtors.
In the present case, it is manifest that any person of
ordinary intelligence would grasp that a realtor should take
care not to offer for sale property which he has not been
contractually authorized to sell, nor should a realtor present
to his client a contract which clearly fails to sufficiently
reflect the accurate legal description of the property to be
conveyed. The failure of a realtor in either regard is
negligence. Similarly, it is not beyond the realm of common
knowledge and understanding that when a contract gives authority
to an agent to sell a specific portion of property, and the
agent then offers for sale and procures a buyer for more than
that portion of the property within his authority to sell, he
has breached his contract with his principals.
Accordingly, we hold that at the time the chancellor
granted Cotrupi’s motion to strike the Polyzoses’ evidence,
under the appropriate standard of review the Polyzoses had
adduced evidence sufficient to make out a prima facie case of
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professional negligence and breach of contract. Thus, the
chancellor erred in sustaining the motion to strike and entering
judgment on the third-party claims for Cotrupi.
CONCLUSION
For these reasons, we will reverse the judgment of the
chancellor in favor of Cotrupi and remand the case to the trial
court for a new trial on the issues of professional negligence
and breach of contract.
Reversed and remanded.
JUSTICE KINSER, with whom JUSTICE LACY and JUSTICE LEMONS join,
dissenting.
In the third-party complaint filed by George K. Polyzos and
Jennifer P. Polyzos (the Polyzoses) against their real estate
broker, Frank Cotrupi, the Polyzoses alleged that they relied
upon Cotrupi’s expertise “in preparing all written marketing
materials, preparing the computerized posting on the Multiple
Listing Service, reviewing and preparing the contract and
counter-offer, and concluding their agreement” to sell their
property known as 1109 Patrick Lane in Newport News, as
reconfigured by the boundary line adjustment. The Polyzoses
further alleged that, as a result of an ambiguity in the
purchase agreement, the buyers, Robert H. Pride, III, and
Patricia A. Pride (the Prides), asserted that they had agreed to
purchase the entire original lot situated at 1109 Patrick Lane
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rather than the reduced lot resulting from the boundary line
adjustment. Consequently, the Polyzoses claimed that if the
Prides were entitled to relief from the Polyzoses, then Cotrupi
was liable to the Polyzoses for his “breach of the standard of
care established for his profession, and/or breach of his
contract with the Polyzos[es].”
Because the claims for negligence and breach of
contract both turn on the sufficiency of the property
description used by Cotrupi in the relevant contracts, the
Polyzoses’ burden of proof was the same under both theories of
recovery. See Seaward Int’l, Inc. v. Price Waterhouse, 239 Va.
585, 592 n.3, 391 S.E.2d 283, 287 n.3 (1990). That burden was
to produce “sufficient evidence of negligence, or breach of the
terms of the . . . contract, to frame an issue of fact to be
submitted to the jury.” Id. at 591-92, 391 S.E.2d at 287. The
Polyzoses failed to carry this burden because they did not
present any expert testimony regarding the standard of care
applicable to a licensed real estate broker in the situation
presented by the facts of this case.
Those facts, in the light most favorable to the
Polyzoses, show that, in the listing agreement entered into with
the Polyzoses, Cotrupi described the property to be sold as
“1109 Patrick Lane.” Likewise, that same description, with the
lot, block, and section in the subdivision left blank, was used
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in the purchase agreement with the Prides. Cotrupi never
attached or incorporated into the listing agreement or the
purchase agreement a copy of the plat showing the adjusted
boundary line. Instead, he relied on his alleged oral
communications with the Prides and their real estate agent, and
also on the Prides’ visual inspection of the property, to convey
the fact that the Polyzoses were not selling the entire original
lot located at 1109 Patrick Lane.
Given these facts, the issue with regard to the need
for expert testimony is not whether Cotrupi was negligent or
breached his listing contract with the Polyzoses by selling more
of the lot located at 1109 Patrick Lane than the Polyzoses
intended to sell. That is how the majority characterizes the
issue. Instead, the properly framed question is whether
Cotrupi’s use of the term “1109 Patrick Lane” as the sole
description of the property to be sold, and his reliance on his
oral communications and the Prides’ visual inspection, violated
his professional duty to “[p]erform in accordance with the terms
of the brokerage relationship” and to “[e]xercise ordinary
care,” Code §§ 54.1-2131(A)(1) and –2131(A)(4), or breached the
terms of the listing agreement. I conclude that this question
cannot be answered without expert testimony.
The sufficiency of the property description in the
written agreements was not a matter within the common knowledge
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of lay persons. This is not a situation where a real estate
broker merely used an incorrect lot number or street address in
the relevant contracts. The property to be sold was still
correctly known as 1109 Patrick Lane and as lot number seven in
Riverview Estates because the Polyzoses had not recorded the
plat showing the boundary line adjustment in the city’s land
records. To decide, in the situation presented here, whether
Cotrupi violated the standard of care for his profession or
breached the listing agreement with the Polyzoses, the trier of
fact had to determine whether Cotrupi should have used a
different legal description of the property, and if so, what
description; whether he should have attached a copy of the plat
to the relevant agreements; or whether Cotrupi was justified in
merely relying on his oral communications and the property’s
visual appearance to identify what portion of the lot located at
1109 Patrick Lane was being sold. All those matters require
information beyond the common knowledge and experience of lay
persons.
Thus, in my view, expert testimony was required “to
establish the appropriate professional standard, to establish a
deviation from that standard, and to establish that such a
deviation was the proximate cause of the claimed damages.”
Seaward, 239 Va. at 592, 391 S.E.2d at 287 (citing Raines v.
Lutz, 231 Va. 110, 113, 341 S.E.2d 194, 196 (1986)). For these
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reasons, I respectfully dissent and would affirm the judgment of
the circuit court. In reaching this conclusion, I am not
suggesting that expert testimony is required in every instance
where the actions and professional responsibilities of a
licensed real estate broker are at issue. However, the peculiar
facts of this case necessitate such testimony.
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