Opinion
No. CV 02 0192575 S
October 31, 2003
MEMORANDUM OF DECISION RE #109 — DEFENDANT'S MOTION TO STRIKE
This is an action by the plaintiff, William Pitt Real Estate Limited Partnership (William Pitt), against the defendants for a commission of $48,750 which the plaintiff claims is due and owing for services rendered to the defendants pursuant to a listing agreement. The defendant has moved to strike all four counts of the plaintiff's complaint, counts which allege breach of contract, bad faith, misrepresentation, and violations of the Connecticut Unfair Trade Practices Act (CUTPA).
The listing agreement at issue, annexed to and referenced in the complaint, was in writing, but was not prepared and completed with care.
DISCUSSION
The motion to strike is the proper motion to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). "Its function . . . is to test the legal sufficiency of a pleading." Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). The motion admits all legal facts but not conclusions of law. Verdon v. Transamerica Ins. Co., 187 Conn. 363, 365, 446 A.2d 3 (1982).
In deciding upon a motion to strike a trial court must take the facts to be those alleged in the pleadings and cannot be aided by the assumption of any facts not therein alleged. Liljedahl Bros., Inc. v. Grisby, 215 Conn. 345, 348 (1990). Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., CT Page 11859 supra, 196 Conn. 91, 108-09, 491 A.2d 368 (1985). However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982). If the facts provable under the pleadings would support a defense or a cause of action, the motion to strike must fail. Mingachos, supra, 109.
"[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
I.
In deciding this motion to strike, this court must determine whether the plaintiff is seeking to recover a real estate commission. If so, the plaintiff's action could not succeed without satisfying the requirements of General Statutes § 20-325a. "The right of a real estate broker to recover a commission is dependent upon whether the listing agreement meets the requirements of § 20-325a (b)." Rapin v. Nettleton, 50 Conn. App. 640, 647, 718 A.2d 509 (1998).
Sec. 20-325a. Actions to recover commissions arising out of real estate (b) No 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, as set forth in subsection (a), 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: (1) Be in writing, (2) contain the names and addresses of the real estate broker performing the services and the name of the person or persons for whom the acts were done or services rendered, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization, (5) be signed by the real estate broker or the real estate broker's authorized agent, (6) if such contract or authorization pertains to any real property, include the following statement: "THE REAL ESTATE BROKER MAY BE ENTITLED TO CERTAIN LIEN RIGHTS PURSUANT TO SECTION 20-325a OF THE CONNECTICUT GENERAL STATUTES," and (7) be signed by the person or persons for whom the acts were done or services rendered or by an agent authorized to act on behalf of such person or persons, pursuant to a written document executed in the manner provided for conveyances in section 47-5, except, if the acts to be done or services rendered involve a listing contract for the sale of land containing any building or structure occupied or intended to be occupied by no more than four families, the listing contract shall be signed by the owner of the real estate or by an agent authorized to act on behalf of such owner pursuant to a written document executed in the manner provided for conveyances in section 47-5.
The plaintiff's claim for a broker's commission is pursuant to a Listing Agreement (Agreement). The issue presented by this Motion to Strike is whether the deficiencies in this agreement prevent recovery of a commission.
The Agreement took effect on December 18, 2001. By Public Act 00-160, effective October 1, 2000, the Legislature altered the prior standard of strict compliance for sections (1) through (7) of C.G.S. § 20-325a by providing a "substantial compliance" standard.
(d) Nothing in subsection (a) of this section, subdivisions (2) to (7), inclusive, of subsection (b) of this section or subsection (c) of this section shall prevent any licensee from recovering any commission, compensation or other payment with respect to any acts done or services rendered, if it would be inequitable to deny such recovery and the licensee (1) has substantially complied with subdivisions (2) to (7), inclusive, of subsection (b) of this section or (2) with respect to a commercial real estate transaction, has substantially complied with subdivisions (2) to (6), inclusive, of subsection (b) of this section or subdivision (2) of subsection (c) of this section. [Emphasis added].
If a trier of fact may find that a broker has substantially complied with the requirements of General Statutes § 20-325a, then a motion to strike must fail. Coldwell Banker v. Ward, Superior Court, judicial district of Waterbury, Docket No. 122435, 15 Conn. L. Rptr. 273 (October 17, 1995, McDonald, J.). In the instant case, since a trier could find that substantial compliance existed as to each of the items asserted by the defendant, the Motion to Strike is denied.
HILLER, J.