Brazo v. Real Estate Commission

• Decision Date: 15 May 1979
• Citation: 177 Conn. 515,418 A.2d 883
• Court: Connecticut Supreme Court
• Parties: Bruce BRAZO v. REAL ESTATE COMMISSION.

Page 883

418 A.2d 883

177 Conn. 515

Bruce BRAZO v. REAL ESTATE COMMISSION.

Supreme Court of Connecticut.

Argued Jan. 5, 1979.

Decision Released May 15, 1979.

Charles M. Needle, Bridgeport, for appellant (plaintiff).

Timothy O. Fanning, Asst. Atty. Gen., with whom, on brief, was Carl R. Ajello, Atty. Gen., for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LONGO, Associate Justice.

This is an appeal from a judgment of the Court of Common Pleas sustaining the decision of the defendant Connecticut real estate commission (hereinafter the commission) in suspending the plaintiff's license for violations of § 20-328-3 of the commission's regulations and § 20-320(11) of the General Statutes. The regulation provides: "No licensee shall negotiate or attempt to negotiate the sale, exchange or lease of any real property directly with an owner or lessor knowing that such owner or lessor has an outstanding exclusive listing contract with another licensee covering the same property." Section 20-320(11) of the General Statutes provides the commission with the power to suspend temporarily or revoke permanently any license because of the dishonest, fraudulent or improper conduct of a real estate licensee.

The material facts necessary to the disposition of this appeal are substantially undisputed. The plaintiff, Bruce Brazo, is a real estate broker in the town of Wilton, Connecticut. In April, 1975, Leigh Pyne contacted Brazo and informed him that he, Pyne, had executed a "sole agency" listing agreement for the sale of his property with the Peter W. R. Johnson Agency, the complainant before the commission. Under the agreement, Pyne was permitted to sell the property himself without incurring any commission obligation. Brazo initially responded that, under the above circumstances, he would not represent Pyne, and refused to act as Pyne's broker. Subsequently, however, Brazo contacted certain builders with whom he negotiated an agreement with Pyne to purchase 6.37 acres of the 10.98 acre parcel of land for a housing development. The commission for the sale and purchase was paid to Brazo by the purchasers pursuant to the agreement.

Upon learning of the transaction, Johnson filed a formal complaint against the plaintiff with the commission. Johnson testified at the hearing that Pyne had an exclusive agency listing with him, in which Pyne had reserved to himself the right to sell. The plaintiff testified that he sought the advice of his attorney as to whether he could represent the buyers of the property, and that he was advised that he had acted properly and had every right to do so. As a result of its findings, the commission concluded that the plaintiff negotiated the sale of the property directly with the owner knowing that the owner had an exclusive listing contract with the Johnson Agency covering the property, and that the plaintiff's participation in the sale constituted improper conduct. Following the contested hearing, the plaintiff's broker's license was suspended for thirty days for violation of § 20-328-3 of the regulations and for thirty days for violation of § 20-320(11) of the General Statutes. Upon appeal, the trial court reviewed the record and concluded that the evidence presented before the commission reasonably supported the commission's decision and dismissed the plaintiff's appeal.

In his first assignment of error, the plaintiff claims that the notice of the hearing before the commission failed to meet the requirements of § 4-177(b)(2) of the General Statutes, rendering the action of the commission null and void. That section requires that notice of a hearing in a contested case include a statement of the legal authority and jurisdiction under which the hearing is to be held. While it is well established that compliance with statutory provisions as to notice is a prerequisite to any valid action by an administrative tribunal; Mauriello v. Board of Education, 176 Conn. 466, 471, 408 A.2d 247 (1979); Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955); Couch v. Zoning Commission, 141 Conn. 349, 356, 106 A.2d 173 (1954); and that failure to give proper notice constitutes a jurisdictional defect; Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 251, 83 A.2d 201 (1951); the commission's notice clearly informed the plaintiff that he was being summoned for alleged violations of § 20-320(11) of the General Statutes and § 20-328-3 of the commission regulations, and the notice detailed the facts supporting those allegations. More importantly, and dispositive of the plaintiff's claim, the commission made reference to § 20-321 of the General Statutes, which specifically provides the commission with jurisdiction to conduct a hearing prior to the suspension or revocation of a real estate broker's license. We find that the specific reference to the statutory and regulatory provisions adverted to above sufficiently complied with the notice provisions of General Statutes § 4-177(b)(2). The principal issue before the commission was simply whether the plaintiff negotiated the sale of land with Pyne, knowing that Pyne had an outstanding exclusive agency listing with another broker covering the same property. Both the record and the transcript reveal manifestly that Brazo knew what charges had been brought against him and knew precisely upon what factors he could predicate a defense. In such circumstances, it is inappropriate for this court to indulge in a microscopic search for technical infirmities in the commission's action: to do so would hamper the legitimate activities of the commission in investigating complaints such as that presently involved. See Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218 (1956); Couch v. Zoning Commission, supra, 141 Conn. 358, 106 A.2d 173. Moreover, as Brazo was notified of specific allegations concerning his misconduct, and was in no way prejudiced by the notice given, the notice cannot be said to be deficient. Board of Education v. Commission on Human Rights & Opportunities, 177 Conn. 75, 77, 411 A.2d 40 (40 Conn.L.J., No. 37, pp. 12, 13) (1979); Murphy v. Berlin Board of Education, 167 Conn. 368, 375, 355 A.2d 265 (1974); Conley v. Board of Education, 143 Conn. 488, 494, 123 A.2d 747 (1956).

The plaintiff next contends that the statutory prerequisites for a violation of General Statutes § 20-320(11) were not met. The commission may, pursuant to that statute, investigate the actions of any real estate broker in connection with specific allegations of the types of misconduct enumerated in the statute. The plaintiff argues that because no verified complaint was filed by the Johnson Agency, and as the commission did not act "on its own motion" in investigating the plaintiff's actions, the commission's action was a nullity. The plaintiff further asserts that the intention behind the statute is that before a hearing is held on the revocation or suspension of a broker's license, the commission must develop a prima facie case of wrongdoing against the broker. The short answer to these arguments is that it does not appear on the record that the plaintiff distinctly raised this claim either before the commission, or in his appeal to the Court of Common Pleas. Obviously, without raising the issue below, it could not have been decided adversely to the plaintiff. In such circumstances, we are not required to address this claim of error. Practice Book, 1978, § 3063; O'Connor v. Dory Corporation, 174 Conn. 65, 71, 381 A.2d 559 (1977); Robinson v. Faulkner, 163 Conn. 365, 378, 306 A.2d 857 (1972); Martin v. Kavanewsky, 157 Conn. 514, 520, 255 A.2d 619 (1969).

Notwithstanding the above, even if the plaintiff's claim regarding the statute is viewed as jurisdictional in nature, which claim may be raised in this court for the first time; White v. Planning & Zoning Commission, 149 Conn. 746, 747, 183 A.2d 749 (1962); the argument fails on its merits. Although the complaint filed against the plaintiff was not verified, it clearly made out a prima facie case of misconduct on his part. The statute, moreover, authorizes the commission "upon its own motion" to investigate the alleged misconduct of a licensee. In these circumstances, we reject the plaintiff's claim that this phrase in the statute requires the commission, prior to a statutory, evidentiary hearing, to develop affirmatively a prima facie case of improper conduct against a licensee. Nothing in the legislative history concerning § 20-320 suggests that the commission's investigation process may not, in the absence of a verified complaint, be initiated by the convening of a statutory hearing, upon the motion of the commission, to investigate allegations of misconduct. See Hearings before Joint Standing Committee on the Judiciary, 1955 Sess., pt. 1, p. 130 (prior to enactment of Public Acts 1955, No. 123). To hold, as the plaintiff urges, that a prima facie case must be formulated by the commission against a broker, prior to a hearing on allegations of misconduct, would unduly restrict the ability of the commission to achieve its purpose in ensuring that the public deal with honest, truthful and competent real estate brokers. See 5 H.R.Proc., 1953 Sess., pt. 6, p. 2381 (remarks of Representative Norman King Parsells).

The plaintiff argues next that he could not have been found to have violated § 20-328-3 of the commission regulations, claiming that the exclusive agency listing agreement between Pyne and the Johnson Agency did not comply with the requirements of commission regulation § 20-328-1. ¹ We find no merit to this claim. Neither the commission nor the trial court found that the agreement was invalid. The agreement complied with the requirements of regulation § 20-328-1, in that it (1) was in writing; (2) identified the location and ownership of the property; (3) contained the terms of the sale, including the commission to be...