Daily Development for Thursday, June 5, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EXPERT TESTIMONY: Where statutory standard is that broker shall
exercise "ordinary care" and to perform their contract obligations under
listing agreements, court need not hear expert testimony to determine
whether broker was negligent in procuring client seller's signature on a
contract that was ambiguous as to the amount of land to be sold.

Polyzos v. Cotrupi,   563 S.E. 2d 775 (Va. 2002)

Sellers acquired waterfront property adjacent to their own in order to add
a portion of that property to their own home and then to resell the
downsized property.  When they incorporated the additional property into
their own lot, they demarcated the new boundary with fencing and
landscaping, but did not record an amended plat because their lawyer
advised them this might trigger a due on sale clause in the mortgage on
the adjacent parcel.

Sellers then listed the downsized adjacent parcel with Broker, fully
disclosing their intention and explaining that there was no new recorded
plat. The listing agreement described the property by street address.
Broker procured an offer contract from Buyers, prepared by their broker.
The agreement described the property by street address and contained a
space to designate the lot number of the property in the subdivision.
Broker left this space blank, because he was not sure how the County
recorder would designate the revised lot once the revised plat was
recorded.  He testified that he believed that Buyers knew that the lot's
size had been reduced and that they were buying it reduced, and of
course he knew that the proportions of the lot were indicated by the
landscaping and fencing installed by Sellers.  Sellers and Buyers signed
the contract.

Prior to closing, a title agent discussed with Buyers the revision in the
size of the lot, and they claimed that they learned about it at this moment
for the first time.  They brought suit for specific performance of the
contract in the original lot size, claiming that the description of the
property by street address necessarily indicated that the recorded plat lot
was being sold.
Sellers brought a third party complaint against Broker for negligence and
breach of the listing agreement for his failure to prepare the contract in a
way that made crystal clear what property was being sold.  The trial court
dismissed the complaint against broker on the grounds that no Sellers
brought forth no expert testimony as to the standard of care to be applied
to Broker.

On appeal: Held: Reversed: In a split decision, with three dissenters, the
Virginia Supreme Court ruled that expert witness evidence is not
necessary in every case of professional malpractice and would not be
required here, where "the alleged negligent acts or omissions of certain
professionals clearly lie within the range of the common knowledge and
experience of the trier of fact."

The court acknowledged that 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.  But it opined that this need not be the
case every time a realtor's conduct is called into question.  For reasons
that the court does not make clear, it holds that the existence of the
statutory standard of "ordinary care" is relevant to its conclusion that
expert assistance is not always relevant in evaluating the conduct of
professional real estate agents. [The court used the term "licensed
realtors."  But the editor would never tread upon the copyright of the
National Association of Realtors as the court might.].

Here, the court concluded the trial court erred in dismissing the case for
want of expert testimony.  Although it noted that there was not
necessarily a "bright line" separating cases in which such testimony was
vital from those in which it was not, the court claimed it "knew 'em what
it saw 'em."

     "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."
Three dissenters pointed out that since the agent believed that the Buyers
fully understood the meaning of the agreement, and since there was no
way to know what the exact legal description might be, the question of
negligence here is one that is not manifest and certainly would require an
expert to explain.

Comment: Don't the dissenters have something here?  Frankly, the editor
is not certain what a Virginia court might do with the fact that a street
address no longer coincides with the original plat that it designates.  The
editor would advise the court to seek expert advice as to the standard in
the local area.  Is this a common issue?  Do parties generally sell on the
basis of street addresses, knowing that there often are changes in the
original legal descriptions?  Do professional real estate agents (remember
the buyers had an agent) typically advise their clients that a contract
containing a street address will convey only the property apparently
associated with that address? If so, is that accurate?  If not, should a
professional real estate agent know that it's not?  The questions go on
and on in the editor's mind.

The Sellers got lucky here.  Otherwise, their next lawsuit likely would
have been against the lawyer who failed to produce an expert.

Readers are encouraged to respond to or criticize this posting.

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