M.R. Wachob Co. v. MBM Partnership

656 A.2d 1036, 232 Conn. 645, 1995 Conn. LEXIS 102
CourtSupreme Court of Connecticut
DecidedApril 11, 1995
Docket14952
StatusPublished
Cited by13 cases

This text of 656 A.2d 1036 (M.R. Wachob Co. v. MBM Partnership) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.R. Wachob Co. v. MBM Partnership, 656 A.2d 1036, 232 Conn. 645, 1995 Conn. LEXIS 102 (Colo. 1995).

Opinion

Berdon, J.

The dispositive issue in this case is whether a third party who assumes a lessee’s obligations to a lessor under a commercial lease is an “owner” [647]*647under the provisions of General Statutes (Rev. to 1989) § 20-325a (b).1 The plaintiff,2 M.R. Wachob Company, Inc., a licensed real estate agency located in Stamford, brought this action to collect a commission in accord[648]*648anee with a real estate listing agreement entered into by the defendant, MBM Partnership. The defendant alleged in a special defense that the listing agreement failed to comply with the requirements of § 20-325a (b) because it was not signed by the record owner of the property and, therefore, that the plaintiff was not entitled to recover any commission that was owed. The plaintiff and the defendant each filed a motion for summary judgment, and the trial court rendered judgment for the defendant. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The facts of this case, although somewhat complex, are not disputed. At all times relevant to these proceedings, Minoff Properties was the record owner of a commercial office building located in Norwalk (Norwalk office building). In May, 1984, Minoff Properties entered into a fifteen year lease with Glyco, Inc. (Glyco). Under the terms of the lease, Glyco had the right to occupy the premises, or to assign the lease or sublet all or any part of the premises to a third party. In the case of an assignment or sublease, however, the lease required Glyco to receive the consent of Minoff Properties, which could not unreasonably -withhold its consent.

Lonza, Inc. (Lonza), subsequently purchased Glyco, making Glyco its wholly owned subsidiary. Lonza wanted to move Glyco from the Norwalk office building to a new location in New Jersey owned by the defendant. In order to induce Lonza to do so, the defendant executed an agreement on April 29, 1987, in which it agreed to assume the obligations of Lonza’s wholly-owned subsidiary, Glyco, under the terms of the lease between Glyco and Minoff Properties. In this agreement, which was entitled a “guaranty,” the defendant further promised to “unconditionally guar[649]*649antee to Lonza and the successors and assigns of Lonza the full and punctual performance and observance, by [the defendant], of all of the terms, covenants and conditions in the Glyco Lease . . . .”3 This agreement was signed by representatives of the defendant.4 Simultane[650]*650ously with the defendant’s execution of this agreement, Lonza entered into a lease with the defendant. Under the terms of this lease, Glyco became a tenant of the defendant’s office building in New Jersey.

The defendant subsequently sought to find a sublessee for Glyco’s lease in the Norwalk office building. On June 28,1989, the defendant executed an exclusive listing agreement (listing agreement) with the plaintiff. This listing agreement, which the defendant prepared and printed on its own stationery, gave the plaintiff the exclusive right to sublease the office space formerly occupied by Glyco in the Norwalk office building. The defendant stated therein that it “has accepted the obligations of the lease between Minoff Properties, Landlord, and Glyco, Inc., tenant, dated, May 25, 1984.” Malvern C. Burroughs, a partner of the defendant, signed this agreement on behalf of the defendant. The agreement also was signed by the plaintiff.5

On October 20,1989, the plaintiff notified the defendant by letter that it had located a subtenant for the Nor-walk office building. In this letter, the plaintiff sought to “confirm our understanding” that it would receive as a commission 7.5 percent of the total rent for the [651]*651duration of the lease. Of that amount, the defendant would pay the plaintiff one half upon the subtenant’s execution of the lease; one quarter in December, 1991; and one quarter in June, 1992. Because the original listing agreement had not specified a payment schedule [652]*652for the commission, this letter (first amendment) served to amend that original listing agreement.6 A representative of the defendant signed this letter upon receipt.

One month later, on November 29, 1989, the subtenant located by the plaintiff entered into the sublease. The sublease was clearly denominated as such and indicated that Glyco was the lessor. The terms of the document provided, however, that the subtenant was to pay all rent to the defendant. The sublease also provided that the defendant would pay the subtenant $346,400 “for any and all alterations required by the Sublessee,” and three partners of the defendant partnership signed the lease.7 Upon the execution of the sublease, the defendant paid to the plaintiff the sum of $95,591.25 —one half of the amount of the commission owed, as required in the listing agreement and the first amendment thereto.

One year later, on November 8, 1990, the plaintiff, its sales agent and the defendant entered into an agreement modifying their obligations under the original listing agreement and the amendment dated October 20, [653]*6531989. Under this agreement (second amendment),8 the defendant acknowledged that the plaintiff was entitled to a total commission of $191,182.50 and that the defendant had paid only $95,591.25. The defendant further acknowledged that one half of the remaining balance—$47,795.50—would be due to the plaintiff in December, 1991, and that the other half would be due in June, 1992. A representative of the defendant signed the second amendment.

[654]*654The defendant failed to pay the plaintiff as scheduled in the second amendment, and the plaintiff brought this action against the defendant alleging breach of contract.9 In its answer, the defendant alleged as a special defense that neither the original listing agreement nor either of the amendments thereto satisfied the requirements of § 20-325a (b), and thus claimed that the agreement was not enforceable.10 The defendant also filed a two count counterclaim in which it alleged that the plaintiff had either fraudulently or negligently misrepresented the financial stability of the subtenant it had procured for the Norwalk office building. Both parties moved for summary judgment.

The trial court rendered summary judgment in favor of the defendant. In its memorandum of decision, the [655]*655court noted that § 20-325a (b) sets forth certain mandatory requirements for a listing agreement, and concluded that the plaintiff had failed to satisfy that part of the statute requiring a listing agreement to “be signed by the owner or an agent authorized to act on behalf of the owner . . . .” The trial court relied on the decision of this court in McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 590 A.2d 438 (1991), for the proposition that “owner,” as used in the statute, meant the record owner of the property “as displayed on the land records.” Id., 522.

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Cite This Page — Counsel Stack

Bluebook (online)
656 A.2d 1036, 232 Conn. 645, 1995 Conn. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mr-wachob-co-v-mbm-partnership-conn-1995.