Currie v. Marano

537 A.2d 1036, 13 Conn. App. 527, 1988 Conn. App. LEXIS 77
Connecticut Appellate Court·Decided March 1, 1988·No. 5627·Published·Cited by 29 cases

Opinion

O’Connell, J.

This is the plaintiff’s appeal from a defendants’ judgment in an action, tried to the court, for a real estate commission. The plaintiff claims that the trial court erred in concluding (1) that a real estate broker who earns a commission pursuant to an agreement that complies with General Statutes § 20-325a1 [528]*528must in addition demonstrate that the written agreement complies with General Statutes § 20-325b, 2 (2) that the statements of the named defendant did not constitute a judicial admission that the real estate commission at issue was due, (3) that the defendants were not equitably estopped from asserting the protection of General Statutes §§ 20-325a and 20-325b as a defense to the plaintiffs claim, and (4) that the defendants were not liable under the doctrine of unjust enrichment. We find no error.

The plaintiff was a licensed real estate broker in the full-time employ of the Uniroyal Corporation as a real [529]*529estate specialist. The defendants, two of whom were socially acquainted with the plaintiff, owned acreage situated partially in Middlebury and partially in South-bury. The defendants asked the plaintiff to seek a buyer for their property. After obtaining permission from Uniroyal, the plaintiff and the defendants discussed the matter in greater detail, the result of which was an exclusive listing agreement executed by all parties on November 30,1981. This agreement set an asking price of $590,000 and a 10 percent commission for the plaintiff. The agreement, however, did not conform to General Statutes § 20-325b concerning notice as to the negotiability of an agent’s commission. See footnote 2, supra. By its terms, this agreement expired on May 30,1982, and as of that date the plaintiff’s efforts had not produced a buyer, nor were they more successful during a purported oral six-month extension of the listing agreement.3

Sometime after the expiration of the “oral extension” the plaintiff learned of a prospect developed by another broker. Working in conjunction with the other broker, an option was signed on May 13,1983. This option was ultimately exercised and a closing took place on March 28,1985. In this option, the defendants acknowledged the services of the plaintiff and the cobroker as the sole brokers involved in the transaction. At the closing, the defendants, acting on advice of counsel, refused to pay the plaintiff any commission whatsoever, giving rise to this action.

The action was tried to the court on a four count amended complaint. The first count was in fraud; the second count alleged a breach of the listing agreement and the option; the third count was based on an offer [530]*530of compromise; and the fourth count alleged estoppel against the defendants from raising a defense of a flaw in the listing agreement.4 Judgment was rendered for the defendants on all counts. We find no error.

I

General Statutes § 20-325a (b) is dispositive of this appeal. This statute expressly prohibits the bringing of an action for a real estate commission unless the services were rendered pursuant to a written contract (i.e., a listing agreement). Howland v. Schweir, 7 Conn. App. 709, 713, 510 A.2d 215 (1986). The trial court specifically found that the plaintiffs efforts were unavailing during the original six-month term or in the six-month “oral extension.” This finding is fatal to the plaintiff’s case. When the plaintiff continued rendering services after the end of the agreement or the “extension” thereof, those services were performed “without the benefit of a proper listing agreement and were thus performed at his peril.” Id., 715. Therefore, once the agreement expired, the plaintiff could not recover for any services rendered beyond that date.

II

The plaintiff seeks to circumvent the real estate listing statute by arguing (1) that the defendants are equitably estopped from raising the defense of the plaintiff’s noncompliance with General Statutes §§ 20-325a and 20-325b, and (2) that the court should impose liability on the defendants because they have been unjustly enriched by the plaintiff’s services.

[531]*531General Statutes § 20-325a has been strictly construed and enforced. Thornton Real Estate v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 964 (1981); Howland v. Schweir, supra. The scenario arising most commonly in cases of real estate commission claims, when there has not been compliance with the listing statute, as here, presents a fact pattern in which a real estate owner allegedly reaps the benefits of a broker’s services without paying for them. To allow recovery on either of the plaintiffs legal theories in the present case would nullify § 20-325a and emasculate the state’s real estate sales licensing system. See generally General Statutes §§ 20-311 through 20-329bb.

We find no merit in the plaintiff’s claim that the defendant should be equitably estopped from asserting the defense of noncompliance with General Statutes § 20-325a. “ ‘Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ... as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse.’ ” Brock v. Cavanaugh, 1 Conn. App. 138, 141-42, 468 A.2d 1242 (1984), quoting Bozzi v. Bozzi, 177 Conn. 232, 241, 413 A.2d 834 (1979). It is a long standing tenet of the law of equitable estoppel that a party requesting such relief cannot contribute to the hardship claimed, through his own ignorance of the essential facts of the matter in question. “There could be no duty resting upon [the defendant] to communicate facts to the plaintiff of which he was ignorant only by his own negligence. One setting up an estoppel in pais, is himself bound to the exercise of good faith and due diligence to know the truth.” Huntley v. Holt, 58 Conn. 445, 450, 20 A. 469 (1890); 28 Am. Jur. 2d, Estoppel & Waiver § 80, and cases cited therein. This plaintiff, a licensed real estate [532]*532broker since 1958, should have been aware of the strict legal prerequisites to obtaining a broker’s commission in a real estate sale as set forth in the laws governing such transactions. We cannot apply the doctrine of equitable estoppel in a case in which the party requesting the relief claims ignorance of the laws governing his profession, when such ignorance of the law is the primary cause of his need for such relief. Thus, we conclude that equitable estoppel does not apply in the present case.

The plaintiff attempts to support his unjust enrichment argument by drawing an analogy to the statute of frauds. General Statutes § 52-550a. This argument and the cases cited in support thereof, are of no aid to the plaintiff. The statute of frauds analogy has been specifically addressed and discredited by the Supreme Court in clear and unambiguous language: “[Real estate] listing contracts are governed exclusively by section 20-325a; such contracts do not fall within our statute of frauds.” (Emphasis added.) William Pitt, Inc.

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Currie v. Marano, 537 A.2d 1036, 13 Conn. App. 527, 1988 Conn. App. LEXIS 77 (Colo. Ct. App. 1988).

537 A.2d 1036 (Currie v. Marano) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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