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New England Land Co., Ltd. v. DeMarkey

Supreme Court of Connecticut

February 6, 1990

William DeMARKEY, Jr., et al.

Argued Nov. 8, 1989.

Page 1099

Harvey J. Rothberg, Stamford, for appellant (named defendant).

Stefan R. Underhill, with whom, on the brief, was John Crosskey, Stamford, for appellee (plaintiff).


[213 Conn. 613] GLASS, Associate Justice.

This is an appeal by the named defendant, [1] William DeMarkey, Jr., from the denial of his motion to dissolve or vacate an ex parte prejudgment real estate attachment obtained by the plaintiff, New England Land Company, Ltd. (NELCO), in conjunction with a claim for a real estate commission. We find error and remand the case for further proceedings.

The trial court, Fuller, J., found that the evidence offered by NELCO at the hearing on DeMarkey's motion was "basically uncontested." NELCO is a real estate brokerage company with an office in Greenwich. One of its employees is George N. Bagley, a licensed Connecticut real estate broker. On September 22, 1986, the defendants, William DeMarkey, Jr., and Connecticut Bank and Trust Company (CBT), were owners of real property located at 177 West Putnam Avenue in Greenwich. NELCO, acting through Bagley as its agent, on September 22, 1986, procured a written agreement [2] with DeMarkey and CBT that

Page 1100

gave [213 Conn. 614] NELCO the exclusive right to sell the Greenwich property and the exclusive right to sublease all or part of it. The agreement extended from September 22, 1986, to "March 23, 1987 and thereafter, until terminated by either party giving to the other 30 days prior notice [213 Conn. 615] in writing." In the agreement, the defendants agreed to pay NELCO a commission based on the rental price or gross sales price as provided in a schedule attached to the agreement and designated in the agreement as Appendix A. [3] The agreement provided for a sales commission of 6 percent

Page 1101

of the property's sale price. If the property were sold or leased by a broker not employed by NELCO, however, the defendants agreed to pay a commission to NELCO of one and one-half times the commission stated in Appendix A.

In addition, on March 5, 1987, NELCO and the defendants signed a modification [4] to the September 22, 1986 agreement, extending it to September 30, 1987, [213 Conn. 616] and specifically stating that all other provisions of the agreement remained unaltered and in full effect. On March 23, 1988, a letter, [5] signed by an agent of NELCO and by DeMarkey, referenced the prior agreement and provided for a $30,000 payment to NELCO for providing two tenants for the building on the property. The letter specifically stated that it was intended "to confirm that except as modified hereby our original Exclusive Listing Agreement is still in full force and effect." CBT, however, did not sign this letter. Furthermore, no written notice was given that the termination date of the original agreement, March 23, 1987, had passed, and that the termination date of the modification agreement, September 30, 1987, had also passed.

On April 6, 1988, NELCO entered into a co-brokerage agreement regarding the property with two licensed [213 Conn. 617] Connecticut real estate brokers, Marjorie Rowe and Benjamin Rowe. The defendants also received from the Rowes an offer to buy the property. The next day, April 7, 1988, the Rowes agreed to purchase the property from the defendants for $1,800,000, and during the summer of 1988, the defendants sold the property to the Rowes for that price. The defendants refused, however, to pay NELCO any sales commission. In addition, DeMarkey also failed to pay the $30,000 provided in the agreement between himself and NELCO in the letter dated March 23, 1988.

NELCO then commenced this action against the defendants. NELCO's complaint was in two counts. The first count sought recovery of the sales commission ($162,000) [6] and the second count sought recovery of the $30,000 that NELCO claimed DeMarkey owed it as a result of their letter agreement. NELCO obtained a prejudgment remedy for $192,000 against DeMarkey's interest in property that he owned in Greenwich. DeMarkey moved to discharge the prejudgment real estate attachment, claiming that there were several defenses to NELCO's commission claim, most of them based on alleged noncompliance with the real estate listing statute, § 20-325a [7] of the General Statutes. [213 Conn. 618]

Page 1102

The court, Fuller, J., however, denied the motion. DeMarkey appealed to the Appellate Court and pursuant to Practice Book § 4023, we transferred the case to this court.

On appeal, DeMarkey claims that the court, Fuller, J., erred: (1) in finding probable cause that a listing complies with General Statutes § 20-325a, despite its failure to include a notice of negotiability mandated by General Statutes § 20-325b; [8] (2) in utilizing the provisions of a termination clause in a listing, which violates General Statutes § 20-320(6), [9] to extend the duration [213 Conn. 619] of the listing to encompass the services performed by the broker for which it seeks to collect a commission; (3) in finding probable cause that a listing failing to state the listed price of the property was enforceable; and (4) in concluding that there is probable cause to recover a real estate commission under the ...

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