15 Conn. L. Rptr. 273 | Conn. Super. Ct. | 1995
The plaintiff alleges the following. The plaintiff is a licensed real estate broker in Connecticut and in Naugatuck. On March 9, 1990, the plaintiff entered an "Exclusive Right to Sell" listing agreement with the defendants. The duration of this agreement was extended three times by execution of three separate "change authorizations." The last of these "change authorizations" extended the term of the listing agreement to August 10, 1991. The listing agreement provided that the plaintiff would receive ten percent of the property's sales price if the plaintiff, the defendants, or anyone else found a buyer, who was ready, willing, and able to purchase the subject property. Prior to the expiration of the listing agreement, the defendants discovered a purchaser who was ready, willing, and able to purchase the property. Thereafter, the property was sold for $600,000 to one of the parties who became interested in the property prior to the expiration of the listing agreement.
In the first count of the complaint, the plaintiff claims that the defendants owe it commission pursuant to the terms of the listing agreement. In the second count, directed against Ward only, the plaintiff alleges that Ward may have misrepresented the circumstances to the plaintiff in that "the signature of Robert J. Lombardi may have been signed by Robert J. Ward without the knowledge or consent of the plaintiff." The plaintiff alleges that Ward's misrepresentation is material because Ward is now maintaining that the listing agreement is invalid because it was not signed by both owners of the property. In the third count, addressed to both Ward and Lombardi, the plaintiff alleges that the defendants misrepresented to the plaintiff that they found a buyer for the property after the expiration of the listing agreement, and alleges that the plaintiff was damaged as a result.
The defendants have filed a motion to strike all counts and the prayer for relief seeking punitive damages.
The motion to strike is the proper motion to contest the legal sufficiency of the allegations of any complaint to state CT Page 11652 a claim upon which relief can be granted. Novametrix MedicalSystems v. BOC Group, Inc.,
"In considering the ruling upon the motion to strike, [the court is] limited to the facts alleged in the complaint, King v.Board of Education,
In support of their motion to strike, the defendants allege four grounds. They argue that all counts should be stricken because the plaintiff's listing agreement is deficient and does not meet the requirements of General Statutes §
The defendants also assert that the third count should be stricken because the plaintiff has made inconsistent allegations in the first and third counts. They note that in the third count, the plaintiff alleged that it relied upon the defendants claim they found a buyer after the agreement had expired, and alleged in the first count it became aware of a potential buyer before the agreement expired. Additionally, the defendants CT Page 11653 claim that the plaintiff has failed to allege any connection between the misrepresentation and the inability to collect a commission.
The defendants also argue that the second and third counts should be stricken because the three year statute of limitations bars a fraudulent misrepresentation claims.
The defendants also seek to strike the punitive damages portion of the prayer for relief on the ground that the complaint fails to contain allegations sufficient to support such a claim.
1. Requirements of
The plaintiff contends that a 1994 amendment to General Statutes §
Public Acts 1994, No. 94-240, changed the standard of review that courts should apply when determining if a listing agreement meets the requirements of General Statutes §
"The rules of statutory construction that govern the applicability of new legislation to preexisting transactions are well established. Our point of departure is General Statutes §
"Our Supreme Court has consistently expressed reluctance to construe statutes retroactively where the statutes [e]ffect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise. . . . The obligations referred to in the statute are those of substantive law; . . . and legislation which limits or increases statutory liability has generally been held to be substantive in nature. We have uniformly interpreted
"On the other hand, procedural statutes and rules of practice ordinarily apply retroactively to all actions whether pending or not at the time the statute [or rule] became effective, in the absence of any expressed intent to the contrary. . . . Where an amendment in effect construes and clarifies a prior statute, it must be accepted as the legislative declaration of the meaning of the original act." Andersonv. Schieffer, supra,
"An act that has been passed to clarify an existing statute, that is, one that was passed shortly after controversies arose as to the judicial interpretation of the original act, is also to be applied retroactively." Rudewicz v. Gagne,
The legislative history offers some evidence as to why the legislature passed General Statutes § 94-240. Larry Hannifin, Director of the Department of Consumer Protection, Real Estate Division, testified at the joint committee hearings concerning P.A § 94-240, and commented that "the proposed changes expand section
When analyzing legislative history, Connecticut courts generally look to "legislative history in the form of debates that occur on the floor of the House of Representatives or the Senate," however, it is not inappropriate to consider "committee testimony that is particularly probative of legislative purpose." Mahoney v. Lensink,
McCutcheon Burr, Inc. v. Berman, supra, was decided on May 7, 1991. In McCutcheon, the Supreme Court found that General Statutes §
Since a trier may find the plaintiff's have substantially complied with the requirements of General Statutes §
2. The Third Count
The court holds the third count should not be stricken on the ground that the first and third counts contain inconsistent allegations. In the first count, the plaintiff alleges that it became aware that the defendants had located "potential" buyers prior to the expiration of the listing agreement. In the third count, the plaintiff alleges that it relied on the defendants' misrepresentations that the eventual buyers were found after the expiration of the listing agreement.
Practice Book § 111 does provide, in part, that "Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court. . ." Practice Book § 111 does not provide for the striking of a count because of inconsistent allegations.
If facts provable under the allegations would support a defense or a cause of action, the motion to strike must be denied." RK Constructors, Inc. v. Fusco Corp. ,
3. Statute of Limitations — Counts Two and Three
The defense of the statute of limitations may not ordinarily be decided by a motion to strike. In Forbes v. Ballaro,
Courts may grant a motion to strike on statute of limitations grounds in two circumstances. Forbes v. Ballaro, supra,
Neither of these two situations exist in this case, and the motion to strike on the statute of limitations defense is denied.
4. Punitive Damages
"To furnish a basis for recovery of [punitive] damages, the pleadings must allege . . . wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought. . . . A wilful and malicious injury is one inflicted intentionally without just cause or excuse." (Citations omitted.) Markey v. Santangelo,
"Allegations of misrepresentation sufficiently allow the plaintiff to seek punitive damages." Fishman v. L M Development,Inc., 7 Conn. L. Rptr.. 779,