Opinion
No. CV02-0515663S
March 11, 2004
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In this suit, the plaintiff, Location Realty, Inc., seeks to recover a real estate commission from the defendant, General Financial Services, Inc., pursuant to an Exclusive Listing Agreement the parties entered into on November 1, 1998. The plaintiff's complaint consists of one count, which alleges that it is due a commission for a lease, obtained with CVS on August 26, 1999, of the defendant's real property located on the Berlin Turnpike in Berlin, Connecticut. The defendant has alleged that the plaintiff was not a properly licensed real estate broker and is therefore barred under Connecticut law from seeking to collect any commission. The defendant has moved for summary judgment as to the sole count in the plaintiff's complaint.
Permission to file a motion for summary judgment was granted by the Court (Robinson, J.) and the defendant filed a Motion for Summary Judgment on December 1, 2003. On February 5, 2004, the plaintiff filed an Objection to the defendant's Motion for Summary Judgment. This Court heard oral arguments on the motion on February 9, 2004, and ordered the filing of supplemental briefs. The defendant responded to such order on February 9, 2004, while the plaintiff filed its supplemental brief on February 19, 2004.
In ruling on a motion for summary judgment, the court must analyze whether there is a genuine issue as to any material fact. Michaud v. Gurney, 168 Conn. 431, 433 (1975). A material fact is a fact which will change the result of the case. United Oil Co. v. Urb. Redev. Commn., 158 Conn. 364, 379 (1969). "A party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with evidence disclosing the existence of such issue." Scinto v. Stamn, 224 Conn. 524, 530 (1993). In deciding on a motion for summary judgment, the trial court must view the evidence in a light most favorable to the nonmoving party. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106 (1994). Judgment must be rendered if the proof submitted shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Practice Book. § 17-49.
The defendant has alleged a two-part argument for the granting of summary judgment. The first part alleges that the plaintiff Location Realty was not a properly licensed real estate broker at the time it entered into and performed the services of the listing agreement. The second part of the defendant's argument alleges that because the plaintiff was improperly licensed as a real estate broker, it is barred from collecting any commission.
The defendant's first ground relies on General Statutes § 20-312(b) which states in pertinent part: "No partnership, association or corporation shall be granted a real estate broker's license, unless every member or officer of such partnership, association or corporation who actively participates in its real estate brokerage business holds a license as a real estate broker . . ." The records indicate that throughout the time in which the parties entered into the exclusive listing agreement (November 1, 1998), the time in which the plaintiff performed services, and the time in which the lease with CVS was executed (August 26, 1999), the sole officers of plaintiff Location Realty were Michael O'Brien and his brother, John O'Brien. The records have further indicated that neither Michael O'Brien, nor his brother John O'Brien, were licensed real estate brokers during the same time periods. Depo. John O'Brien at 159, 165, 169. In its supplemental memorandum dated February 19, 2004, the plaintiff failed to provide copies of any real estate broker's licenses issued to Michael O'Brien, during the time periods at issue in this case.
The defendant's second ground, that the plaintiff is barred from collecting any commission, relies on General Statutes § 20-325(a) which states:
No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time the person performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1, 1971, to recover any commission, compensation or other payment with respect to any act done or service rendered by the person, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.
"`Person' means any individual, partnership, association, limited liability company or corporation." General Statutes § 20-311(4).
(Emphasis added.) The defendant argues, therefore, that because the plaintiff's license was not duly issued, the plaintiff is precluded as a matter of law from initiating any action to recover a commission.
The plaintiff, on February 5, 2004, filed an objection to the defendant's motion for summary judgment. In its memorandum, the plaintiff has presented a single basis for denying summary judgment. The plaintiff alleges that at all times pertinent to the case, the plaintiff Location Realty was licensed as a real estate broker by the Real Estate Commission/Department of Consumer Protection. Accordingly, the plaintiff argues that whether or not the officers of the corporation were licensed as real estate brokers pursuant to General Statutes § 20-312(b) does not matter, because, in fact, the license to Location Realty had already been issued. The plaintiff alleges in its objection that "for the court to rule the plaintiff's license invalid would usurp the authority over licensing matters that the legislature has expressly entrusted to the commission in § 20-312(b)."
The plaintiff's argument, that the court is without the power to "go behind" or "pierce" the license which Location Realty had already been issued, is somewhat misdirected. Here, the court must decide whether a license, improperly issued by a state agency, is automatically void; not whether the court has the authority to render it void. If there was specific statutory authority precluding such action, the plaintiff's argument might prevail. However, nowhere in the Connecticut law is there a statute that expressly precludes a court from finding that a license which has been improperly issued by a state agency is void. The issue, therefore, is whether this court may find that the license improperly issued to Location Realty is void as a matter of law.
Before determining the court's authority to find an agency issued license void, the court must determine whether the license granted was, in fact, improper. This court finds that § 20-312(b) is clear and unambiguous in that all officers of a real estate brokerage business who actively participate in the business must hold a license as a real estate broker. In Wilder Group, Inc. v. Byers, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV94-0536062 (March 14, 1995, Sheldon, J.) ( 14 Conn. L. Rptr. 156), the court held
No person, regardless of his background, credentials or other qualifications, may act as a real estate broker in the State of Connecticut unless he first obtains a valid Connecticut real estate broker's license from the Connecticut Real Estate Commission. The statutory prescription against engaging in brokerage activity of any kind or description without such a valid Connecticut license is clear and unequivocal. It makes no exception for anyone, and thus applies with equal force to persons with no training or experience in the real estate business and to competent experienced real estate brokers who are licensed in other states. All must obtain their Connecticut real estate broker's licenses from the Connecticut Real Estate Commission before they can do business as brokers in Connecticut.
(Emphasis in original.) In this case, Michael O'Brien was both an officer of Location Realty, and the primary agent who performed acts consistent with the listing agreement entered into by the parties. The defendant has conceded this point in its briefs. However, at all times relevant to the case at hand, Michael O'Brien held only a real estate salesman's license. This court finds, therefore, that not all of Location Realty's officers were licensed real estate brokers as required by § 20-312(b) and that the plaintiff's real estate broker license was issued improperly by the Connecticut Real Estate Commission/Department of Consumer Protection.
May a court, as a matter of law, find void a license that has been improperly issued by a state agency? Although the court's authority to find real estate licenses void as a matter of law is not well developed in this country, the court's authority to find void other types of improperly issued licenses has been well established. For example, in Schultz v. Morrison, 154 N.Y.S. 257 (1915), the New York trial court held that a chauffeur license, which had been issued to a sixteen-year-old even though the law required licensees to be eighteen years old, was void as a matter of law. In the case, the defendant unlawfully permitted his son to operate the family vehicle. The defendant tried to avoid liability, however, by proving that his son was accompanied by a duly licensed chauffeur, a valid exception to the rule. The court found that since the exception required the accompanying chauffeur to be "duly" licensed, and in fact, he was not, the chauffeur's license was "absolutely void, not simply voidable." Id. at 259.
In Commonwealth v. Rivas, 52 Pa.D.C.2d 458 (1970), the Pennsylvania Court of Common Pleas found a motor vehicle operator's license, which had been improperly issued by the state agency, to be void. There, the defendant's original license had been suspended for one year, during which time he applied for and received a new license. The court held that "the presumption is that the secretary would not have issued the license in violation of the law," id. at 467, and that "the card issued . . . was only a false symbol of a right which did not exist." Id.
In Dinger v. Burnham, 228 S.W.2d 696 (Mo. Supreme Court 1950), a fifteen-year-old obtained a motor vehicle license by submitting a false affidavit that he was sixteen. The court held "that there is no authority to issue a driver's license to one under the age of sixteen years, and that the license secured by Charles Dinger was void and of no effect." Id. at 699.
Finally, in Brener Lewis, Inc. v. Fawcett Publications, Inc., 90 N.Y.S.2d 853 (1949), the Supreme Court denied the plaintiff's motion to strike the defendant's defenses and held that a real estate salesman's license issued to the vice president of a real estate corporation was void because issued in violation of the law. The law required all officers of a real estate corporation to be licensed as brokers, and further stated that no officer may be licensed as a real estate salesman. Id. at 854. The court stated that "The plaintiff corporation may not recover by one who was not duly licensed to act as either a real estate broker or as a real estate salesman and who was not named in the license issued to the plaintiff as a person who could properly represent it in brokerage transactions." Id. at 855.
In Town of Newington v. Mazzoccoli, 133 Conn. 146 (1946), the Supreme Court held that the Liquor Control Commission was without authority when it granted a permit in violation of a zoning ordinance. Id. at 156. The court further found such permit to be void. Id.
However, in McDowell, Jr. v. Davis, 442 P.2d 856 (1968), the court held that an improperly obtained license was not void but merely voidable where the statutes expressly provided that a license obtained in violation of the law could be cancelled or revoked. Id. at 862.
This case can be readily distinguished from the McDowell case, as the General Statutes do not specifically provide for the revocation or cancellation of real estate licenses that have been obtained in violation of the law. The Rivas, Burnham, and Mazzoccoli cases establish the court's authority to find void, as a matter of law, licenses issued by agencies without the authority to issue them. In the present case, the plaintiff's license was clearly improper, and thus issued by the Connecticut Real Estate Commission/Department of Consumer Protection, without being granted the authority to do so. The legislature specifically required that all officers who actively participate in a real estate brokerage business be individually licensed as real estate brokers and that without such individual licenses, the business itself cannot be duly licensed. In this case, Michael O'Brien was an officer who actively participated in real estate brokerage business without an individual real estate broker license.
For these reasons, the defendant's motion for summary judgment is granted. So ordered.
Henry S. Cohn, J.