Thomas v. Doherty, No. Cv97-0080958 (May 6, 1998)
Opinion of the Court
As a threshold issue, the plaintiff objects that a party may not move for summary judgment as to a defense but only as to a claim, counterclaim or crossclaim. In fact, Practice Book §
Standard of Review
It is well settled that a party seeking summary judgment has the burden of showing what the undisputed material facts are and that the facts entitle the movant to judgment as a matter of law. Practice Book §
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to nonmoving party. Doty v. Miller,
Claim of Bar to Course of Action
The plaintiff claims in his amended complaint that in November 1990, the president of defendant Roncalli Healthcare Managers, Ernest Cahoon, contacted him on behalf of that entity and on behalf of defendant Golden Heights Health Center, Inc. and Grand Street Pavilion Inc. to find a buyer for four long-term care facilities and an apartment complex. The plaintiff alleges that Cahoon, on behalf of the defendants, agreed to pay Thomas $50,000. for each facility for which Thomas located a buyer. He further alleges that he located an investor named Burrell and traveled with Burrell to Connecticut so that Burrell could view the facilities. Thomas alleges that Burrell set up a partnership that bought three of the facilities. Drafts of documents memorializing the alleged agreement between the plaintiff and the defendants with regard to a fee for his efforts were prepared, but the plaintiff does not allege that any of the defendants ever signed any of the proposed agreements.
The plaintiff claims that he performed the services that were the subject of the oral agreement but that the defendants have failed to pay his fee. CT Page 5502
The plaintiff has claimed breach of contract in Count One; unjust enrichment in Count Two; misappropriation by defendant Doherty in Count Three; "reckless" breach of contract in Count Four; a violation of the Connecticut Unfair Trade Practice Act in Count Five; fraud by defendant Doherty in Count Six; and negligent misrepresentation in Count Seven. All claims are alleged to arise from the failure of the defendants to pay him a fee for locating the eventual buyer.
In their second special defense, the defendants allege that "[t]he plaintiff's claims are barred by the operation of §
Conn. Gen. Stat. §
The plaintiff has admitted in a deposition that he did not hold a real estate license in the State of Connecticut or any other state. He has filed no affidavit or other submission to put this fact in dispute. What the parties dispute is whether the services for which the plaintiff seeks to recover a payment are services or acts for which a real estate broker's license is required as a condition for maintaining a claim for payment.
The defendants take the position that the undisputed facts for purpose of their motion are those set forth in the allegations of the amended complaint, the plaintiff's admitted lack of a real estate license, and the fact that the facilities being sold included the real estate on which said facilities are situated. (Defendants' Memorandum in Support of Motion for Summary Judgment; filed 3/16/98, at page 6). The defendants have not shown the existence of undisputed facts to the effect that the plaintiff listed the premises for sale, participated in CT Page 5503 negotiation or had any role other than calling the availability of the nursing homes to the attention of the investor who eventually bought them.
Conn. Gen. Stat. §
The same statute defines "engaging in the real estate business" as "acting for another and for a fee, commission or other valuable consideration in the listing for sale, selling, exchanging, buying or renting, or offering or attempting to negotiate a sale, exchange, purchase or rental of, an estate or interest in real estate or a resale of a mobile manufactured home . . . or collecting upon a loan secured or to be secured by a mortgage or other incumbrance upon or transfer of real estate."
The movant's submissions do not establish that the plaintiff engaged in any of the acts specified as acts for which enforcement of a fee agreement is limited to holders of real estate licenses.
It is an axiom of statutory construction that statutes cannot be construed to contain provisions, exceptions or limitations not clearly stated in the words of the statute, Chairman v. Freedomof Information Commission,
The statutes defining the services that cannot be performed for a fee without a license do not include the calling of a purchase opportunity to the attention of a prospective investor, where the finder is not actually offering to sell, listing the property, preparing an offer, or participating in negotiations. Since the movants have not demonstrated undisputed facts to the effect that the plaintiff's participation included any of the tasks enumerated in the applicable statutes, they are not entitled to summary judgment.
Conclusion
The defendants motion for summary judgment on their special defense involving the real estate licensing requirements is denied. Trial remains scheduled for June 16, 1998.
BEVERLY, J. HODGSON JUDGE OF THE SUPERIOR COURT
Case-law data current through December 31, 2025. Source: CourtListener bulk data.