31 Conn. App. 682 | Conn. App. Ct. | 1993
The plaintiff appeals from the summary judgment rendered for the defendants
This appeal arises from a listing agreement between the plaintiff real estate broker and the defendants regarding real property in Enfield. In November, 1989, the defendants orally agreed to pay the plaintiff a commission if it found a tenant for its property.
On September 16,1991, the plaintiff commenced this action after the defendants failed to pay the full commission specified in the listing agreement.
I
The plaintiff’s first claim implicates the statutory restriction that a broker may not collect a commission
In order for a listing agreement to satisfy the statutory mandate and provide a basis of recovery to the broker, the agreement must be in effect at the time the broker’s services are rendered. See Ditchkus Real Estate Co. v. Storm, 25 Conn. App. 51, 55-56, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 97 (1991); Currie v. Marano, 13 Conn. App. 527, 530, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988). Even if the lease and the listing agreement, read together, satisfied the statute, it was necessary that both be in existence when the services were rendered. That was not the situation here.
On November 30, 1989, the last date on which the plaintiff rendered its brokerage services, the only document in existence was the lease to Pace. The listing agreement was not signed until January 16, 1990, nearly two months later. Section 20-325a (b) is man
II
The plaintiff next argues that even if it cannot recover because the listing agreement was invalid, the defendant should be estopped from refusing to pay its commission because the facts of the case demonstrate its equitable entitlement thereto. The plaintiff’s reliance on Currie v. Marano, supra, is misplaced. In fact, Currie, which is factually similar to the present case, expressly ruled out application of the estoppel doctrine when there was no valid listing agreement. In Currie, the plaintiff was a real estate broker seeking a commission. Following the trial court’s finding that his services had been performed after his listing agreement had expired, he argued that the defendant property owners were equitably estopped from raising the plaintiff’s noncompliance with the listing statute as a defense. Id., 531.
The Currie court refused to apply estoppel for two reasons. First, a broker is expected to know the laws regulating his profession and when ignorance of those laws is the primary cause of his need for relief, the doctrine of estoppel does not apply. The court concluded that Currie should have been aware of the strict legal prerequisites to obtaining a broker’s commission and it was his ignorance of those prerequisites that was the primary reason he was seeking to apply the doctrine
The plaintiff also attempted to invoke equitable estop-pel in support of its contention that the failure of the defendants to abide by the invalid listing agreement constituted a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b. This claim is controlled by McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 590 A.2d 438 (1991), in which our Supreme Court enunciated that “[t]he plaintiff’s invocation of equitable principles in support of its CUTPA claim is an attempt to effect an end run around the requirements of § 20-325a (b). . . . The plaintiff’s attempt to circumvent the requirements of § 20-325a (b) by filing a CUTPA claim must ... be denied.” Id., 530; see also Real Estate Auctions, Inc. v. Senie, supra, 573-74.
The plaintiff’s reliance on Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992) is unavailing. Habetz involved General Statutes § 20-429 (a), a part of the Home Improvement Act, and is not authority for a case
Ill
Practice Book § 384 provides that rendition of a summary judgment is appropriate “if the pleadings, affidavit and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Summary judgment is proper when a plaintiff real estate broker seeks to recover a judgment without a valid listing agreement. See Thornton Real Estate, Inc. v. Lobdell, supra.
The judgment is affirmed.
In this opinion the other judges concurrred.
There are two defendants in this case, Spire Realty and Development Corporation (Spire Corporation) and Spire Realty of Enfield Associates Limited Partnership (Spire Enfield). Spire Enfield is a limited partnership formed and organized by Spire Corporation in January, 1990.
General Statutes § 20-325a (b) provides: “No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1, 1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (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 authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written docu
At the time of the oral agreement, Spire Corporation was the optionee of the property. The agreement was contingent on Spire Corporation’s acquiring title to the property, which it did on January 25,1990. Spire Corporation then transferred the property to Spire Enfield.
The total commission was $225,000. Spire Corporation made $25,000 payments to the plaintiff on April 1, 1990, and October 11, 1990.