Summary
concluding that the inclusion of the text “The terms of the Listing Agreement provided ...” in a broker's revised complaint, filed in connection with a commission-recovery action, satisfied subsection (b)
Summary of this case from Sotheby's International Realty, Inc. v. Relocation Group, LLCOpinion
No. 566501
April 29, 2004
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE ##111, 113, 115
On July 23, 2003, the plaintiff, Tyler E. Lyman, Inc., filed a three-count complaint against the defendant, Nineteen Thames Street Partnership, and the individual members of the partnership (collectively referred to as the defendants). The plaintiff is a real estate broker and the plaintiff and the defendants entered into a listing agreement where the plaintiff would find a tenant for rental property located at 1-19 Thames Street in Groton, Connecticut. The plaintiff alleged that the defendants breached the listing agreement by signing a new lease and failing to pay the plaintiff the commission as required by the listing agreement. The first count of the complaint alleged a breach of contract, the second count alleged a breach of the implied covenant of good faith and fair dealing and the third count alleged unjust enrichment. On August 26, 2003, and September 4, 2003, the defendants, collectively, filed four separate but identical motions to strike each count of the complaint. In a memorandum of decision filed December 29, 2003, this court granted the motions to strike in their entirety because the plaintiff was not entitled to a commission pursuant to General Statutes § 20-325a. Specifically, this court held that the listing agreement between the plaintiff and the defendants did not comply with the requirements of § 20-325a(b) because the plaintiff did not plead "that it is a licensed broker, that the listing agreement was signed by the partnership as the owner of the premises and included the terms of the listing agreement." Tyler E. Lyman, Inc., v. Nineteen Thames Street Partnership, Superior Court, judicial district of New London at Norwich, Docket No. CV 03 0566501 (December 29, 2003, Hurley, J.T.R.). This court found that because there was not a valid listing agreement, there could be no breach of the implied covenant of good faith and fair dealing. Finally, this court held that the plaintiff could not recover from a claim of unjust enrichment because a party cannot usurp the requirements of § 20-325a(b) by seeking to recover pursuant to a theory of unjust enrichment.
The plaintiff alleges that the new lease is actually a renewal lease because the new tenant is the parent company of the previous tenant and the previous tenant is still in possession; therefore, the plaintiff is entitled to a commission under the listing agreement. The defendants argue that the lease is in fact a new lease signed by a new tenant; therefore, the plaintiff is not entitled to receive a commission.
On January 12, 2004, the plaintiff filed a revised complaint, again alleging breach of contract, breach of the implied covenant of good faith and fair dealing and unjust enrichment. The plaintiff attempted to correct the deficiencies of the original complaint. The defendants filed the motions to strike that are the subject of this memorandum on the same grounds as the original motions to strike. The defendants argue that there was no material change between the revised complaint and the original complaint. The plaintiff argues that it made the necessary changes to its allegations, making them legally sufficient.
The defendants, Helen Langfield, Joanna Langfield Rose, Alfred Agrin and Stanley Bregman as trustee for both Harry Elion Trust and Elion Langfield Trust, have not filed motions to strike. The court's reference to "defendants" with regard to the motions that are the subject of this memorandum does not include these defendants.
Regarding the first count the plaintiff now alleges that Ronald E. Lyman, who signed the listing agreement on behalf of the plaintiff, is a licensed real estate broker. This is sufficient to satisfy the requirement of § 20-325a(b)(1).
Section 20-325a(c) allows a real estate broker to recover if he has substantially complied with the requirements of the statue. Courts have held that the substantial compliance rule applies only to subdivisions (3), (4), (5) and (6). See Tyler F. Lyman, Inc., v. Nineteen Thames Street Partnership, supra. Paragraph four of the plaintiff's revised complaint reads: "The terms of the Listing Agreement provided . . ." This allegation is sufficient to show that the plaintiff has substantially complied with the requirement of § 20-325a(b)(4).
The plaintiff also attempted to correct its complaint to satisfy the requirements of subdivision (7), which requires the listing agreement to be signed by the owner of the premises or an agent authorized to sign on behalf of the owner. The plaintiff must strictly comply with this subdivision. See Rapin v. Nettleton, 50 Conn. App. 640, 647, 718 A.2d 509 (1998). In its revised complaint, the plaintiff alleges that the listing agreement was signed by Raymond L. Langfield, who was acting in his capacity as an authorized agent of the partnership. The plaintiff argues that this allegation satisfies the deficiency in the original complaint. Although the plaintiff alleges that Langfield is an authorized agent of the partnership, it does not allege that the partnership is the owner of the premises. In its memorandum in opposition to the motion to strike, the plaintiff argues that Langfeld signed the listing agreement on the line entitled "Owner's Signature." The plaintiff has not alleged this in the revised complaint. Therefore, this court may not consider this argument when deciding the motions to strike. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The allegations in count one are insufficient to establish a valid contract pursuant to § 20-325a(b). The defendants' motion to strike count one is therefore granted.
Because "the existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing"; (internal quotation marks omitted) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002); the defendants' motions to strike the second count must also be granted.
"[A] broker deprived of compensation for his services in the absence of a [listing agreement] complying with the detailed requirements of § 20-325a . . . is precluded from suing for [compensation] . . . This also applies to creative alternative causes of action designed to recover the fee by end running § 20-325a, such as unjust enrichment . . . claims." Tyler E. Lyman, Inc., v. Nineteen Thames Street Partnership, supra. The plaintiff cannot recover a commission unless there is a valid contract pursuant to § 20-325a and the plaintiff cannot use unjust enrichment as an alternative form of relief. Even if the plaintiff's complaint did comply with § 20-325a, the plaintiff cannot recover under an unjust enrichment theory because "[t]he lack of a remedy under a contract is a precondition to recovery based on unjust enrichment . . . Where a plaintiff incorporates allegations of an express contract in a count alleging unjust enrichment, the claim for unjust enrichment cannot lie." (Citations omitted; internal quotation marks omitted.) Whitby School, Inc. v. Grenaille, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195602 (December 29, 2003, Lewis, J.T.R.) (36 Conn. L. Rptr.). In the present case, the plaintiff must allege a valid contract pursuant to § 20-325a or it cannot recover its commission. However, if the plaintiff does allege a contract, it is precluded from recovering for unjust enrichment. The plaintiff's third count must fail because it does not state a claim for which relief can be granted.
Based on the foregoing, the defendants' motions to strike the first, second and third count are granted.
D. Michael Hurley, JTR