New England Land Co., Ltd. v. DeMarkey

• Decision Date: 06 February 1990
• Docket Number: No. 13763,13763
• Citation: 213 Conn. 612,569 A.2d 1098
• Parties: NEW ENGLAND LAND COMPANY, LTD. v. William DeMARKEY, Jr., et al.
• Court: Connecticut Supreme Court

Page 1098

569 A.2d 1098

213 Conn. 612

NEW ENGLAND LAND COMPANY, LTD. v. William DeMARKEY, Jr., et al.

No. 13763.

Supreme Court of Connecticut.

Argued Nov. 8, 1989.

Decided Feb. 6, 1990.

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

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

Before PETERS, C.J., and ARTHUR H. HEALEY, GLASS, COVELLO and HULL, JJ.

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 gave 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 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 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, 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 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. 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 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 second count to the complaint because the listing agreement fails to contain the notice of negotiability mandated by General Statutes § 20-325b and, does not include a leasing price.

I

Because DeMarkey has appealed, pursuant to General Statutes § 52- 278l from an adverse ruling on his motion to dissolve or vacate a prejudgment remedy order, we first must determine the scope of our review. ¹⁰ "We have recently examined the trial court's function in considering an application for prejudgment remedy of attachment: 'The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the court determine "whether or not there is probable cause to sustain the validity of the plaintiff's claim"; General Statutes § 52-278d(a); that is to say "probable cause that judgment will be rendered in the matter in favor of the plaintiff." General Statutes § 52-278c(a)(2). "The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). The court's role in such a hearing is to determine probable success by weighing probabilities. Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979).' Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn.App. 388, 393, 480 A.2d 561 (1984)." Solomon v. Aberman, 196 Conn. 359, 362-63, 493 A.2d 193 (1985).

As for our standard of review, we have stated: "This court's role on review of the granting of a prejudgment remedy is very circumscribed." Three S. Development Co. v. Santore, supra, 193 Conn. at 176, 474 A.2d 795. In its determination of probable cause, "the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. Augeri v. C.F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977)." Id. "Since Augeri v. C.F. Wooding Co., supra, we have consistently enunciated our standard of review in these matters. ' "In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses." ' Three S. Development Co. v. Santore, supra; William M. Raveis & Associates, Inc. v. Kimball, [186 Conn. 329, 333, 441 A.2d 200 (1982) ]; Babiarz v. Hartford Special, Inc., supra [2 Conn.App. at], 392-94 ; see also Michael Papa Associates v. Julian, supra [178 Conn. at], 447 . At this time, therefore, we need only decide whether the trial court's conclusions were reasonable under the 'clear error' standard." Solomon v. Aberman, supra, 196 Conn. at 364, 493 A.2d 193. Accordingly, we conclude that our standard of review is to determine if the trial court's denial of DeMarkey's motion constituted clear error.

II

The gravamen of DeMarkey's claims is that "the Listing under which [NELCO] seeks to collect a commission fails to include two essential conditions: the statutory notice of negotiability mandated by ... § 20-325b and, a listing price." We will consider these claims in the reverse order stated.

A

Under General Statutes § 20-325a(b) a real estate broker cannot bring an action for a real estate commission unless his "acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall ... (4) contain the conditions of such contract or authorization...." In Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 244, 440 A.2d 306 (1982), we considered the requirements of a listing contract under § 20-325a(b)(4) in conjunction with our discussion of the requirements of a sales contract, and we stated: "Its [General Statutes § 20-325a(b)(4) ] commandment that the written listing contract contain 'the conditions of such contract or...