Real Estate Auctions, Inc. v. Senie

611 A.2d 452, 28 Conn. App. 563, 1992 Conn. App. LEXIS 315
CourtConnecticut Appellate Court
DecidedAugust 11, 1992
Docket9567; 10517
StatusPublished
Cited by21 cases

This text of 611 A.2d 452 (Real Estate Auctions, Inc. v. Senie) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Real Estate Auctions, Inc. v. Senie, 611 A.2d 452, 28 Conn. App. 563, 1992 Conn. App. LEXIS 315 (Colo. Ct. App. 1992).

Opinion

Lavery, J.

The plaintiffs, Real Estate Auctions, Inc. and Mortimer and Mortimer, seeking to recover a real estate commission from the defendants, appeal from the trial court’s decision rendering summary judgment in favor of the defendants, Susan A. Senie and Leonard Rosenthal. On appeal, the plaintiffs claim that the trial court improperly granted the defendants’ motion for summary judgment because (1) the defendants should have been precluded from raising defenses based on [565]*565the listing agreement under the doctrine of equitable estoppel, (2) the listing agreement was not defective because all of the documents, considered together, satisfied the requirements of General Statutes § 20-325a, (3) the plaintiffs asserted a quantum meruit claim, (4) judicial admissions should have precluded summary-judgment, and (5) the trial court incorrectly ruled that the plaintiffs could not prevail on their Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; claim due to their noncompliance with General Statutes § 20-325a. Additionally, the plaintiffs appeal from the trial court’s denial of their motion to open the judgment and amend their complaint. In appeal no. 9567, the defendants challenge the trial court’s prejudgment attachment order. These cases were presented together at oral argument and will be considered together in this opinion. Because we affirm the judgment of the trial court in granting the defendants’ motion for summary judgment in appeal no. 10517, we need not reach the merits of the defendants’ appeal because the prejudgment attachment must be dissolved upon the entry of final judgment for the defendants.

The following facts were presented to the trial court by way of the pleadings and documents accompanying the motion for summary judgment. On October 13, 1989, the plaintiff Real Estate Auctions, Inc., a real estate auctioneer and licensed real estate broker, entered into an “exclusive real estate auction agreement” with the defendants. The parties agreed that the Real Estate Auctions, Inc., in conjunction with a “cooperating realtor”1 would find a buyer for property located at 57 Maple Avenue, Greenwich. The defendants were record owners of the property, and were licensed real estate brokers doing business as Maple [566]*566Avenue Associates. The defendants promised to pay Real Estate Auctions, Inc., a commission of 7 percent if the property were sold with the help of a cooperating realtor. On November 19,1989, the property was sold at auction for $625,000, resulting in an alleged commission due of $43,750. The defendants refused to pay the commission, claiming they had been cheated out of a reasonable price for the property by the actions of the plaintiffs during the auction. The defendants testified that during frenzied bidding the plaintiffs pressured them to auction the property “without reservation,” meaning that the defendants would be required to accept the highest bid, regardless of its amount. The defendants agreed to do so. Closing took place on April 23,1990, at which time the defendants refused to pay the commission to the plaintiffs.

On July 5,1990, the plaintiffs filed an application for a prejudgment remedy in Superior Court. After a two day hearing, the trial court ordered that the plaintiffs could attach $48,000 of real estate owned by the defendants. The defendants subsequently appealed the attachment order to this court in appeal no. 9567.

The parties closed the pleadings, and the defendants filed a motion for summary judgment. The motion for summary judgment was granted on May 24,1991. The plaintiffs thereafter filed a motion to open the judgment in order to amend their complaint to include counts of fraud and misrepresentation. That motion was denied by the trial court, and the plaintiffs filed appeal no. 10517.

Summary judgment must be rendered if “the pleadings, affidavits 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.” Practice Book § 384; Cummings & Lockwood v. Gray, 26 Conn. App. 293, 296-97, 600 A.2d [567]*5671040 (1991). “[T]he party opposing the motion [for summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . The mere presence of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. . . . Rather, the [nonmoving party] must recite specific facts . . . which contradict those stated in the [moving party’s] affidavits and documents. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .’’(Internal quotation marks omitted.) Farmington v. Dowling, 26 Conn. App. 545, 549, 602 A.2d 1047, cert. granted on other grounds, 221 Conn. 921, 608 A.2d 687 (1992).

Despite the plaintiffs’ multiple claims as to why the trial court improperly granted the defendants’ motion for summary judgment, this case turns on the issue of whether the listing agreement complied with General Statutes § 20-325a (b), which sets out the requirements for maintaining a cause of action to recover a real estate commission.2 We conclude that our Supreme Court’s recent holding in McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 590 A.2d 438 (1991), which rested upon similar facts, is controlling in the present case.

[568]*568In their motion for summary judgment in this case, the defendants asserted a special defense that the listing agreement was invalid because it failed to state the “names and addresses of all the parties,” and because it was not signed by one of the owners, Leonard Rosenthal.

“It is well established that the requirements of § 20-325a (b) are mandatory rather than permissive and that the statute is to be strictly construed. New England Land Co. v. DeMarkey, [213 Conn. 612, 569 A.2d 1098 (1990)] (listing agreement must include sale price of property); Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 54, 453 A.2d 771 (1983) (listing agreement lacking addresses of both parties unenforceable); Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 946 (1981) (brokerage contract signed by owner’s agent unenforceable under statute as then worded); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979) (failure to include broker’s address fatal to listing agreement); Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 305-307, 552 A.2d 827 (1989) (omission of rate of broker’s commission fatal); Howland v. Schweir, 7 Conn. App. 709, 713-15, 510 A.2d 215

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Bluebook (online)
611 A.2d 452, 28 Conn. App. 563, 1992 Conn. App. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/real-estate-auctions-inc-v-senie-connappct-1992.