2010 Ct. Sup. 8095, 49 CLR 605
No. CV 09-5025133SConnecticut Superior Court Judicial District of New Haven at New Haven
March 30, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#114)
MAUREEN M. KEEGAN, J.
The defendant, Geenty, Inc. d/b/a The Geenty Group, Realtors (Geenty) has moved for summary judgment on the complaint for the reason that General Statutes § 20-325a prohibits a suit seeking damages for a real estate commission that was not memorialized. The plaintiff objects, arguing that the action is not governed by the statute, because it is an action by one broker against another for failure to split a commission. For the reasons herein, the motion is denied in part and granted in part.
The plaintiff’s complaint sounds in five counts: breach of express contract, breach of implied contract, unjust enrichment, civil conversion and statutory theft.[1] The plaintiff alleges that it introduced Commerce Bank N.A. (Commerce) to Geenty. Geenty, a real-estate broker, was the listing agent for real property located on West Main Street in Branford. Commerce ultimately purchased the property and Geenty was paid $176,500 in commissions. Interstate alleges that based upon letters of intent dated April 20, 2007 and May 15, 2007, oral statements made by representatives of the defendant regarding the letters of intent, and the real estate purchase and sale contract executed by Commerce and the seller of the property, Interstate and Geenty had agreed to split the commission from the sale of the real property on an equal basis.
“Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . CT Page 8096 and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]. . .” (Internal quotation marks omitted.)American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 119 (2009); Larobina v. McDonald, 274 Conn. 394, 399-400 (2005).
The defendant argues that General Statutes § 20-325a prohibits the plaintiff’s action because it did not have a valid, signed contract or authorization as required by statute. General Statutes § 20-325a(b) provides in relevant part that “[n]o person, licensed under the provisions of this chapter, shall commence or bring any action with respect to any acts done or services rendered after October 1, 1995 . . . unless the acts or services were rendered pursuant to a contract or authorization from the person for whom the acts were done or services rendered. To satisfy the requirements of this subsection any contract or authorization shall [b]e in writing.”
Not “all contracts related to real estate must conform to § 20-325a.”Holmes v. Preferred Properties, Inc., 190 Conn. 808, 812 (1983). Though the present case requests relief in the amount of half of the commission, in a similar case, the Appellate Court found that “[t]his is not an action for a commission, but rather a suit to enforce the co-brokerage agreement by which the plaintiff and the defendant agreed to divide the fruits of their joint efforts” because the cause of action did not rely upon the listing agreement. Conda v. Christensen, 11 Conn.App. 557, 562 (1987). Similarly, the present case is not an action for a commission, but is an action to enforce the co-broker agreement.
The defendant urges a narrow interpretation of the statute. It argues that the cases cited by the plaintiff; Conda, supra and Holmes, supra; have no bearing on the issues of this case because these opinions predate the existence of subsection (c) of § 20-325a. The court disagrees. In an analogous case, decided after the addition of subsection (c), the court held that the statute did not apply to settlement agreements between brokers. Moran v. Gallo, Docket No. CV990362969, Superior Court, Judicial District of New Haven (Sept. 13, 2000, Skolnick, J.) The court held that the settlement agreement was separate and distinct from the contract for the real estate brokerage commission and thus, was not subject to the provisions of § 20-325a. “The fact that the underlying subject matter relates to the payment of a real estate commission is irrelevant.” Id.
Here, too, the court finds that a lawsuit to enforce an oral agreement to split a brokerage fee is not prohibited under § 20-325a, but rather is CT Page 8097 an action separate and distinct from a contract for a real estate brokerage commission. In order to recover a commission arising out of that transaction, the agreement must strictly comply with the statute.
Accordingly, for the reasons set forth above, the court denies the defendant’s motion for summary judgment on counts one, two and three and grants, without objection, the motion on counts four and five.
CT Page 8098