Colli v. Real Estate Commission

• Decision Date: 02 September 1975
• Citation: 169 Conn. 445,364 A.2d 167
• Court: Connecticut Supreme Court
• Parties: Gerard R. COLLI et al. v. REAL ESTATE COMMISSION.

Page 167

364 A.2d 167

169 Conn. 445

Gerard R. COLLI et al. v. REAL ESTATE COMMISSION.

Supreme Court of Connecticut.

Sept. 2, 1975.

James A. Wade, Hartford, with whom was Robert A. Greenspon, hartford, for appellants (plaintiffs).

Richard M. Sheridan, Asst. Atty. Gen., with whom was William N. Kleinman, Asst. Atty. Gen., and with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee (defendant).

Before HOUSE, C.J., LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

BOGDANSKI, Associate Justice.

The plaintiffs, licensed real estate brokers, appealed to the Court of Common Pleas from the defendant's decision that the plaintiffs had violated § 20-328-3 of the Regulations of Connection State Agencies which prohibits any real estate licensee from negotiating the sale or exchange of real property with an owner known to have an outstanding 'exclusive listing contract' with another licensee covering that same property. The commission found that such violation by the plaintiffs was not in the best interests of the public or the real estate industry and issued a warning to the plaintiffs that any similar violations in the future would be grounds for the suspension or revocation of their licenses. The trial court dismissed the appeal. From that judgment the plaintiffs have appealed to this court.

The material facts are not in dispute. On April 17, 1973, Mrs. Josepha Wuyts executed an 'exclusive agency listing' agreement with Leighton Realty for the sale of her home located in Ledyard, Connecticut. During the term of an 'exclusive agency listing' agreement, the contracting real estate agent is the only agent having a right to sell the property. The owner, however, retains the right to sell without incurring a commission. In contrast, an 'exclusive right to sell listing' confers upon the agent the exclusive right to sell with the owner retaining no such right. On June 21, 1973, the plaintiff Gerard R. Colli approached Mrs. Wuyts and asked for a listing of her property with the plaintiff Trend Realty Company of which Colli was president. Mrs. Wuyts told him of her 'exclusive agency listing' agreement with Leighton Realty. Thereupon, Colli began negotiating with her for the outright purchase of the property for Trend Realty. On June 23, 1973, Colli executed a purchase agreement with her for the property. On June 29, 1973, prior to obtaining title from Mrs. Wuyts, Trend Realty entered into an agreement for the sale of the same premises to Gary Chann. Shortly thereafter, Leighton Realty filed a formal complaint with the defendant commission.

From the foregoing facts, the trial court concluded that the commission did not err in finding that the plaintiffs had violated § 20-328-3 of the regulations ¹ and in issuing its warning. On appeal to this court the plaintiffs have assigned error in the trial court's refusal to find that the commission lacked jurisdiction over the plaintiffs and the subject transaction.

In order to appeal from a decision or order of the commission, a party must be aggrieved by that decision or order. General Statutes § 20-322. In this case the plaintiffs alleged aggrievement; the trial court, however, did not make any findings on that issue, and the parties have not raised it in the appeal to this court. 'In the absence of a finding, we turn to the memorandum of decision to ascertain the legal conclusions upon which the court based its judgment. State ex rel. Haverback v. Thomson, 134 Conn. 288, 291, 57 A.2d 259.' Treat v. Town Plan & Zoning Commission, 145 Conn. 136, 140, 139 A.2d 601, 603. An examination of the memorandum of decision shows that the case was actually tried on the theory that the plaintiffs were aggreived persons. The order of the commission recited that the plaintiffs had violated the regulations; that they had engaged in activities that were not in the best interests of the public or of the real estate commission; and that similar activities in the future would be grounds for the suspension of their licenses. That order directly affected the plaintiffs' reputation in the real estate industry and in the community, and resulted in specific personal injury to them. See, generally, Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 482-83, 338 A.2d 497. Since the record in this case is sufficient to establish aggrievement, we may properly overlook the lack of a special finding and dispose of the appeal as it has been presented to us by the parties. Baccante v. Zoning Board of Appeals, 153 Conn. 44, 46, 212 A.2d 411; Fox v. Zoning Board of Appeals, 146 Conn. 665, 667, 154 A.2d 520.

The plaintiffs' claim regarding the commission's lack of jurisdiction over them is based upon their interpretation of §§ 20-311 and 20-320 of chapter 392 of the General Statutes. Section 20-320 provides in pertinent part: 'The commission may . . . investigate the actions of any real estate broker or real estate salesman, or any person who assumes to act in either of such capacities within this state, and shall have the power temporarily to suspend or permanently to revoke any license issued under the provisions of this chapter at any time when . . . it finds . . . that the licensee, in performing or attempting to perform any of the actions enumerated in section 20-311, is guilty of any of the following: . . . (12) a violation of any provision of this chapter or of any regulation issued by the commission.' Section 20-311 defines a real estate broker as 'any person, partnership, association or corporation which, for another and for a fee, commission or other valuable consideration, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of, an estate or interest in real estate . . ..' (Emphasis added.) The plaintiffs assert that those statutes authorize the commission to revoke licenses for violations of the regulations only if such violations occur in 'performing or attempting to perform' activities enumerated in § 20-311, and that since Colli acted not for another and not for a fee but as a principal during the negotiations for the purchase of Mrs. Wuyts' property, the commission lacked jurisdiction over the transaction.

The scope of the commission's jurisdiction is dependent upon the wording used in the statutes. See Johnson v. Mortenson 110 Conn. 221, 225, 147 A. 705. The authority of the commission to suspend or revoke licenses is primarily derived from § 20-320. ² The plaintiffs argue that the statutes must be construed strictly, because they restrict the conduct of an occupation which was lawful at common law. Connecticut Chiropody Society, Inc. v. Murray, 146 Conn. 613, 617, 153 A.2d 412; Hart v. Board of Examiners of Embalmers, 129 Conn. 128, 132, 26 A.2d 780. The defendant contends that the statute should be liberally construed to accomplish its purposes because this court has already held that chapter 392 entitled Real Estate Brokers and Salesmen is remedial in nature. Metropolitan Casualty Co. v. Billings, 150 Conn. 603, 608, 192 A.2d 541. Whatever the characterization of the statutes may be, effect must be given to the legislative intent as expressed by the wording used in the statute. Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 98, 291 A.2d 721; Lutkevicz v. Brennan, 128 Conn. 651, 653, 25 A.2d 66. If the language of the statute is clear and unambiguous, we cannot subject its meaning to modification by construction. Bahre v. Hogbloom, 162 Conn. 549, 553, 295 A.2d 547; Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265.

The language of § 20-320 is unambiguous. The defendant commission may investigate the actions of 'any real estate broker.' Since both plaintiffs were 'licensed brokers,' the commission had authority to investigate the transaction involving Mrs. Wuyts. The statute further provides that the commission may suspend or revoke licenses when it finds that the licensee, 'in performing or attempting to perform any of the actions enumerated in section 20-311,' is guilty of certain listed offenses. That language, however, confers no authority upon the commission to revoke or suspend licenses unless the listed offenses occurred while the broker was engaged in or was attempting to engage in conduct described in § 20-311 of the General Statutes.

Section 20-311 in turn defines a real estate broker by describing the activities in which a broker would reasonably be expected to engage. The common denominator applicable to each of the described activities is that the activity must be engaged in 'for another and for a fee, commission or other valuable consideration.' A person negotiating a purchase for himself or on behalf of his corporation is not included within this definition. When §§ 20-311 and 20-320 are read together, the plain import of the language is that the commission has jurisdiction to revoke a broker's license pursuant to § 20-320 only if he is found guilty of a listed offense which was perpetrated while he was performing...