Reserve Realty, LLC v. Windemere Reserve, LLC ( 2023 )

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THE RESERVE REALTY, LLC, ET AL. v.
WINDEMERE RESERVE, LLC, ET AL.
(SC 20635)
(SC 20637)
THE RESERVE REALTY, LLC, ET AL.
v. BLT RESERVE, LLC, ET AL.
(SC 20636)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.
Syllabus
The plaintiffs, R Co., a real estate marketing company, and H, the executor
of the estate of J, a broker who, along with S, was a founding member
of R Co., sought to recover damages from the defendants, W Co. and
B Co., for, inter alia, breach of certain real estate listing agreements
that allegedly would have entitled the plaintiffs to certain brokerage
fees and commissions. In 2002, a development group, D Co., engaged
the services of J and S to negotiate the purchase of a large piece of
property in the city of Danbury. D Co. then executed an agreement with
J and S that gave them the exclusive right to sell or lease the property,
or any part thereof, and that required any subsequent purchaser of the
property to give J and S that same exclusive right. D Co. purchased the
property and subsequently sold one parcel to W Co. and another parcel
to B Co. Consistent with the exclusivity provision in D Co.’s agreement
with J and S, the defendants reluctantly agreed to include in each of
their purchase and sale agreements a provision giving J and S the exclu-
sive right to sell or lease any part of their respective parcels, and the
defendants subsequently executed separate exclusive listing agreements
with J and S to that effect. Those agreements expressly provided that
their terms would ‘‘begin’’ when the defendants acquired ownership of
their respective parcels and would expire ten years ‘‘from the date of
the first conveyance of an individual unit or executed lease . . . .’’
Thereafter, B Co. constructed an apartment complex on its parcel, and
W Co. devised plans to construct commercial office space on its parcel.
J died in January, 2013, and B Co. ultimately used its own leasing agent
to market the apartments, with the first lease being entered into in
March, 2013. The plaintiffs then initiated the present actions, alleging,
inter alia, breach and anticipatory breach of the exclusive listing agree-
ments. The trial court heard extensive evidence regarding the con-
tracting parties’ intent, as well as testimony about certain contractual
duties that J delegated to H, who was J’s husband and employed by J
as a licensed salesperson, and J’s son, who is a licensed real estate
broker with his own brokerage business. The trial court found for the
defendants with respect to certain special defenses, concluding that the
exclusive listing agreements were unenforceable because they violated
state antitrust law, they did not satisfy the statutory (§ 20-325a (c))
requirement that commercial real estate listing agreements specify ‘‘the
duration of the [brokerage] authorization,’’ and they were personal ser-
vice contracts that required J’s personal performance. The Appellate
Court affirmed the trial court’s judgments in favor of the defendants on
the ground that state antitrust law barred the plaintiffs’ claims, but this
court reversed the Appellate Court’s judgments and remanded with
direction to consider the plaintiffs’ remaining claims. On remand, the
Appellate Court again affirmed the trial court’s judgments, concluding
that the unambiguous language in the exclusive listing agreements did
not satisfy the requirements of § 20-325a (c) in that the agreements did
not specify the duration of the brokerage authorization, insofar as the
duration identified therein was not capable of being measured because
it could be calculated only by reference to an uncertain future event,
namely, the date of the first conveyance. On the granting of certification,
the plaintiffs appealed to this court. Held:
1. The Appellate Court incorrectly concluded that the exclusive listing agree-
ments did not specify the ‘‘duration of the authorization,’’ as required
by § 20-325a (c) (2), and, therefore, that they did not comply with the
requirements of that statute:
Because neither the statute nor the relevant regulations defined the
word ‘‘duration,’’ this court looked to its commonly approved usage and
concluded that the term ‘‘duration of the authorization,’’ as used in § 20-
325a (c) (2), plainly and unambiguously refers to a measurable length
of time during which the authorization to act on behalf of the buyer or
seller exists or lasts.
The express terms of the exclusive listing agreements in the present
case provided that they began on the date the defendants acquired owner-
ship of their respective parcels and expired ten years from the date of
the first sale or lease of a unit on each respective parcel, and, because
the length of time that the authorization would exist or last was capable
of being measured, the agreements satisfied the requirement of § 20-
325a (c) (2) that they specify the duration of the brokerage authorization.
Moreover, an agreement can establish a fixed duration, even if the dura-
tion cannot be determined at the outset of the making of the agreement,
and, because the triggering event for the expiration of the authorizations
was articulated with sufficient clarity to permit the parties to measure
the length of the agreements, it was of no consequence that, when the
exclusive listing agreements were executed, it was unclear for how long
the parties would be bound insofar as no one knew if or when the first
conveyance of an individual unit or executed lease would occur.
Furthermore, this court’s construction of the statute did not yield absurd
and unworkable results, but, rather, the duration of authorization speci-
fied in the exclusive listing agreements was clear, rational, and capable
of being put into practice successfully, and, even if there were good public
policy reasons for requiring commercial real estate listing agreements
to contain a precise, fixed expiration date, this court declined to import
such a requirement into § 20-325a (c) when it was not included in either
the statute’s plain language or the governing regulations.
2. This court affirmed the Appellate Court’s judgments on the alternative
ground that the exclusive listing agreements were unenforceable per-
sonal service contracts that required the personal performance of J:
Although contractual rights and obligations generally survive the death
of the contracting parties, there is an exception to that rule for personal
service contracts, as such contracts require the personal performance
of the obligor, which is rendered impossible by the obligor’s death.
Whether a contract is one for personal services depends on the intent
of the contracting parties, as evidenced by the language of the contract,
its subject matter, and the circumstances surrounding its execution, and,
unless it is clear from the contract’s express terms, such intent is a
question of fact.
The language in the exclusive listing agreements was silent with respect
to whether J’s personal performance was required, but the inclusion of
language binding the defendants’ successors, assigns, and heirs, but not
those of the named brokers, including J, suggested that the contracting
parties did not intend the agreements to be assignable by the named
brokers or to survive their death or dissolution, and this court saw no
reason to deviate from the view adopted by the trial court, which was
consistent with out-of-state authority recognizing that the owner-broker
relationship is a personal one based on mutual confidence, that an agree-
ment for professional real estate brokerage services typically is a per-
sonal service contract.
Although the defendants selected J as their broker only because their
agreement with D Co. required it of subsequent purchasers, the plaintiffs
did not argue that those circumstances changed the nature of the contrac-
tual relationship to something other than one for personal services, and
there was evidence from which the trial court reasonably could have
inferred that the defendants were willing to enter into the exclusive
listing agreements because they trusted J and had confidence in her
professional abilities.
Moreover, J’s delegation of some of her contractual duties to H and J’s
son did not establish that the exclusive listing agreements were not
personal service contracts, as it is not improper for the individual provid-
ing the professional services to delegate administrative, ministerial, or
subordinate tasks to other individuals under his or her direction, control,
and supervision, so long as those individuals do not undertake the types
of duties that require the discretion, skill, and expertise for which the
obligor was hired, and, in view of the various inferences that might
reasonably be drawn from a contracting parties’ subsequent perfor-
mance, this court could not conclude that J’s delegation of some of her
contractual duties to H and J’s son necessarily meant that, at the time
of contracting, the parties did not intend to execute personal service con-
tracts.
Furthermore, the plaintiffs could not prevail on their claim that, despite
a determination that the exclusive listing agreements were personal
service contracts, the defendants nevertheless waived their right to insist
on J’s personal performance on the ground that, during her lifetime, they
accepted the substitute performance of H and J’s son, as the trial court
reasonably found that there was no substitute performance because J
fulfilled her duty of personal performance under the agreements by
directing, supervising, and controlling the work of H and J’s son, and
by completing the types of obligations that induced the defendants to
enter into the exclusive listing agreements..
Accordingly, the exclusive listing agreements were personal service con-
tracts that terminated when J died in January, 2013, and, because no
portion of either W Co.’s or B Co.’s parcel was leased or sold during J’s
lifetime, the defendants were not liable to the plaintiffs for any past,
present, or future brokerage commissions.
Argued November 16, 2022—officially released April 4, 2023
Procedural History
Action, in the first case, to recover damages for, inter
alia, breach of contract, and for other relief, brought
to the Superior Court in the judicial district of Danbury,
where the case was tried to the court, Truglia, J.; judg-
ment for the named defendant et al., from which the
plaintiffs appealed to the Appellate Court, Alvord, Shel-
don and Schaller, Js., which affirmed the trial court’s
judgment; thereafter, in the second and third cases,
the court, Truglia, J., rendered judgments discharging
broker’s liens on certain real property of the named
defendant in each case in accordance with the parties’
stipulations, from which the plaintiffs filed separate
appeals with the Appellate Court, Alvord, Sheldon and
Schaller, Js., which affirmed the judgments of the trial
court, and the plaintiffs, on the granting of certification,
filed separate appeals in all three cases with this court,
which reversed the Appellate Court’s judgments and
remanded the cases to the Appellate Court, which again
affirmed the judgments of the trial court, and the plain-
tiffs, on the granting of certification, filed separate
appeals with this court, which consolidated the
appeals. Affirmed.
Daniel E. Casagrande, for the appellants (plaintiffs
in each case).
J. Christopher Rooney, with whom was Gideon Asimnor,
for the appellees (named defendant et al. in each case).
Opinion
ECKER, J. These consolidated appeals, which return
to us for a second time, raise identical issues relating
to the enforceability of four commercial real estate
listing agreements.1 In Reserve Realty, LLC v. Winde-
mere Reserve, LLC, 335 Conn. 174, 211, 229 A.3d 708(2020) (Reserve Realty I), we held that the listing agree-
ments did not violate state antitrust law and remanded
the matter to the Appellate Court for consideration of
the remaining grounds on which the defendants, BLT
Reserve, LLC (BLT), and Windemere Reserve, LLC
(Windemere),2 had prevailed at trial. On remand, the
Appellate Court determined that the listing agreements
were unenforceable because they failed to specify the
duration of the brokerage authorization, as required by
General Statutes § 20-325a (b) and/or (c). See Reserve
Realty, LLC v. Windemere Reserve, LLC, 205 Conn.
App. 299, 302–303, 336, 258 A.3d 711 (2021) (Reserve
Realty II). We granted certification to address whether
the Appellate Court decided that issue correctly and,
if not, whether the trial court’s judgments should none-
theless be affirmed on the alternative ground that the
listing agreements were unenforceable personal service
contracts.3 We conclude that the exclusive listing agree-
ments comply with the durational requirement of § 20-
325a (c) but that they are personal service contracts
that required the personal performance of the named
broker, Jeanette Haddad, and we affirm the judgments
of the Appellate Court on that basis.
This is the sixth appellate opinion reviewing the judg-
ments rendered by the trial court following a bench
trial. We therefore assume familiarity with our opinion
in Reserve Realty I and the Appellate Court’s opinion
in Reserve Realty II, and summarize only those facts
essential to our resolution of the remaining issues.
These appeals arise out of actions for breach of contract
and foreclosure of broker’s liens involving the sale and
development of a 546 acre tract of land in Danbury (the
Reserve). The primary brokers involved in the underly-
ing transactions were Jeanette Haddad, a prominent,
local real estate agent, who died in January, 2013, and
Paul P. Scalzo. Jeanette Haddad operated a sole proprie-
torship under the business name ‘‘Jeanette Haddad,
Broker,’’ and Scalzo operated a real estate franchise
under the business name Century 21 Scalzo Realty, Inc.
(Scalzo Realty).4 Jeanette Haddad employed several
licensed salespersons, including her husband, Theodore
Haddad, Sr., and, at times, she also engaged the services
of her son, Theodore Haddad, Jr., a licensed real estate
broker with his own brokerage business.
In 2002, Jeanette Haddad and Scalzo were hired by
a group of real estate developers, later known as Wood-
land Group II, LLC (Woodland), to represent them in
the purchase of the Reserve. Jeanette Haddad, Scalzo,
and Woodland executed an ‘‘Exclusive Right to Sell—
Listing Agreement’’ (Woodland agreement) to memori-
alize the brokerage relationship. The Woodland agree-
ment gave Jeanette Haddad and Scalzo the exclusive
right to sell and/or lease property in the Reserve. The
agreement also contained the following provision: ‘‘[Wood-
land] shall make aware to the new purchaser of any
part, or of individual lots, or of land, that this [a]gree-
ment shall apply to that new purchaser and [Jeanette
Haddad and Scalzo].’’
Woodland thereafter succeeded in purchasing the
Reserve, and Jeanette Haddad and Scalzo received a
commission for facilitating the sale. Woodland pro-
posed a master plan for the entire 546 acre parcel,
which the Danbury Zoning Commission approved in
November, 2002. Woodland subsequently continued to
use the services of Jeanette Haddad and Scalzo to mar-
ket the property to potential buyers. Their efforts to
market the property were stymied, however, by Winde-
mere, which was developing a neighboring parcel of
land and had appealed the zoning approval for the
Reserve. To resolve the zoning dispute, Woodland agreed
to sell one portion of the Reserve (parcel 13) to BLT
for residential development and another portion (parcel
15) to Windemere for commercial development.
Woodland had obligated itself under the Woodland
agreement to require future purchasers of the Reserve
to use the brokerage services of Jeanette Haddad and
Scalzo Realty, and, consistent with this obligation,
Woodland insisted that the purchase and sale agree-
ments for parcels 13 and 15 include an exclusive listing
agreement with Jeanette Haddad and Scalzo Realty.
The defendants reluctantly agreed. Consequently, para-
graph eight of the purchase and sale agreement for
parcel 13 obligated BLT to enter into a listing agreement
with Jeanette Haddad and Scalzo Realty, pursuant to
which Jeanette Haddad and Scalzo Realty would receive
a 3 percent commission on any subsequent sale and/or
lease of parcel 13, either as a whole or as individual
units. Similarly, paragraph eight of the purchase and
sale agreement for parcel 15 obligated Windemere to
enter into a listing agreement with Jeanette Haddad
and Scalzo Realty, pursuant to which Jeanette Haddad
and Scalzo Realty would receive a $1 million commis-
sion for their efforts in the leasing of office space that
Windemere intended to develop on the parcel.
Woodland, BLT, and Windemere also executed an
escrow agreement, which provided that the purchase
and sale agreements for parcels 13 and 15 would be
held in escrow by Woodland’s counsel for ninety days
until several conditions were met. One of the conditions
was the execution of the necessary listing agreements
by Jeanette Haddad and Scalzo Realty. Between July 17,
and September 10, 2003, representatives of Woodland,
BLT, Windemere, and Jeanette Haddad negotiated the
terms of the listing agreements. On September 10, 2003,
they executed a series of agreements, one of which
designated Scalzo Realty, UC Properties, LLC,5 and Jea-
nette Haddad as the exclusive agents to assist in the
purchase of parcels 13 and 15 (buyer’s agreement). On
that same date, they also executed the exclusive listing
agreements at issue in the present appeals: (1) the
exclusive right to sell—listing agreement for parcel 13;
(2) the exclusive right to sell/lease—listing agreement
for parcel 13; (3) the exclusive right to sell/lease—listing
agreement for parcel 15; and (4) the exclusive right to
sell—listing agreement for parcel 15. Pursuant to these
four listing agreements (collectively, exclusive listing
agreements), Jeanette Haddad and Scalzo Realty were
appointed as the sole and exclusive agents to market,
sell, and/or lease parcel 13, parcel 15, or any individual
unit thereof.
The defendants thus agreed to use Jeanette Haddad
and Scalzo Realty as the exclusive brokers for the sale
or lease of parcels 13 and 15 to satisfy the requirements
of paragraph eight of the purchase and sale agreements,
and the reason that the parties included paragraph eight
in the purchase and sale agreements was to allow Wood-
land to comply with its contractual obligation under
the Woodland agreement to require subsequent pur-
chasers of the Reserve to retain Jeanette Haddad and
Scalzo Realty as their brokers.
Beginning in early 2006, representatives of Jeanette
Haddad and Scalzo Realty, including Theodore Haddad,
Sr., and Theodore Haddad, Jr., marketed and contacted
possible buyers and lessees for the Reserve. The defen-
dants decided at some point, however, that the listing
agreements were a ‘‘bad marriage,’’ and, in January,
2007, a representative of the defendants, Paul Kuehner,
met with Theodore Haddad, Jr., to discuss terminating
the broker/client relationship. Ultimately, Jeanette Had-
dad and Scalzo refused the buyout figure offered by
the defendants. Jeanette Haddad and Scalzo Realty
thereafter continued to make good faith efforts to find
prospective buyers or lessees for parcels 13 and 15, but
the real estate market softened in mid-2007, and those
efforts were unsuccessful.
The defendants began to explore other available
options to generate revenue, including the development
of parcel 13 into a luxury apartment rental complex.
In April, 2011, the Danbury Planning and Zoning Depart-
ment issued a site plan approval to BLT for the construc-
tion of a rental apartment complex on parcel 13, later
known as Abbey Woods. The defendants began con-
struction, and BLT subsequently leased the apartment
units in Abbey Woods through its own on-site leasing
agent, with the first lease being entered into in March,
2013. The defendants did not notify Jeanette Haddad,
Theodore Haddad, Sr., Theodore Haddad, Jr., or Scalzo
of the zoning approval or construction of the Abbey
Woods apartments.
Jeanette Haddad died in January, 2013. Theodore
Haddad, Jr., learned about Abbey Woods shortly after
his mother’s death and contacted Carl Kuehner, Jr., to
find out whether the defendants intended to honor the
exclusive listing agreements. Carl Kuehner, Jr., refused
to discuss the issue with Theodore Haddad, Jr., claiming
that the exclusive listing agreements for parcel 13 were
personal service agreements between BLT and Jea-
nette Haddad.
In July, 2013, the plaintiffs, Theodore Haddad, Sr., as
executor of the estate of Jeanette Haddad, and The
Reserve Realty, LLC (Reserve Realty), a limited liability
company organized by Jeanette Haddad and Scalzo to
receive brokerage commissions on their behalf from
the sale or lease of property within the Reserve, filed
the present action, alleging breach of contract and antic-
ipatory breach with regard to the buyer’s agreement
and exclusive listing agreements for both parcels 13 and
15.6 ‘‘[T]he plaintiffs (1) claimed that they are entitled
to their percentage of commission of gross rentals from
the Abbey Woods units already leased, and a percentage
of estimated gross rental receipts yet to be realized by
BLT for this development over the ten year term of the
agreement that began on the date of the first lease; (2)
asked the court to recognize their claim for a $1 million
commission for office space that will be due and pay-
able when Windemere constructs and begins leasing
office space on parcel 15; and (3) sought a declaratory
judgment recognizing their right to serve as the exclu-
sive listing agents henceforward for the sale and/or
lease of any Abbey Woods units and office space on
parcel 15.
‘‘The defendants raised five special defenses: (1) the
[exclusive] listing agreements were entered into pursu-
ant to an illegal tying arrangement; (2) there was a
lack of consideration in that the plaintiffs had failed to
perform brokerage services entitling them to compensa-
tion; (3) the [exclusive] listing agreements were per-
sonal service contracts; (4) the [exclusive] listing
agreements, by their express terms, expired on Septem-
ber 10, 2010; and (5) the [exclusive] listing agreements
were unenforceable because the necessary conditions
precedent had not been satisfied.’’ (Internal quotation
marks omitted.) Reserve Realty, LLC v. Windemere
Reserve, LLC, supra, 205 Conn. App. 309.
The trial court, Truglia, J., conducted a twelve day
bench trial, at the conclusion of which it found in favor
of the defendants on three of their five special defenses.
See id., 310–12. More specifically, the court determined
that the exclusive listing agreements were not enforce-
able because (1) they created an illegal tying arrange-
ment in violation of the Connecticut Antitrust Act,
General Statutes § 35-24 et seq., (2) they did not satisfy
the requirement of § 20-325a that such agreements spec-
ify the duration of the exclusive brokerage authoriza-
tion, and (3) they were personal service contracts that
required the personal performance of Jeanette Haddad.
See id., 313.
The plaintiffs appealed, challenging all three grounds
relied on by the trial court. See Reserve Realty, LLC v.
Windemere Reserve, LLC, 174 Conn. App. 130, 132, 165
A.3d. 162 (2017), rev’d, 335 Conn. 174, 229 A.3d 708(2020); see also Reserve Realty, LLC v. BLT Reserve,
LLC, 174 Conn. App. 150, 151–52, 165 A.3d 159 (2017),
rev’d, 335 Conn. 174, 229 A.3d 708 (2020); Reserve
Realty, LLC v. Windemere Reserve, LLC, 174 Conn.
App. 153, 155, 165 A.3d 160 (2017), rev’d, 335 Conn.
174, 229 A.3d 708 (2020). The Appellate court affirmed
the judgments of the trial court, concluding that the
defendants’ antitrust special defense barred the plain-
tiffs’ claims pursuant to the governing standard set forth
in State v. Hossan-Maxwell, Inc., 181 Conn. 655, 662–63,
436 A.2d 284 (1980). See Reserve Realty, LLC v. Winde-
mere Reserve, LLC, supra, 174 Conn. App. 141–45, 150.
In Reserve Realty I, we overruled Hossan-Maxwell,
Inc., reversed the Appellate Court’s judgments with
regard to the defendants’ antitrust special defense, and
remanded the cases to that court with direction to con-
sider the plaintiffs’ remaining claims. See Reserve Realty
LLC v. Windemere Reserve, LLC, supra, 335 Conn. 178,
211.
On remand, the Appellate Court once again affirmed
the judgments of the trial court, this time on the ground
that the unambiguous language7 in the exclusive listing
agreements did not satisfy what it deemed to be the
statutory requirements of § 20-325a. See Reserve Realty,
LLC v. Windemere Reserve, LLC, supra, 205 Conn. App.
336–337. The Appellate Court noted that, although
exclusive listing agreements in commercial real estate
transactions need not contain a precise expiration date,
they must ‘‘specify the ‘duration’ of the broker’s authori-
zation to act on behalf of the defendants.’’ Id., 324; see
id., 323–24 (citing § 20-325a (b) and (c), and § 20-328-
6a (d) of the Regulations of Connecticut State Agen-
cies). The term ‘‘duration’’ in § 20-325a (c) (2) is not
defined, but the Appellate Court held that it plainly and
unambiguously ‘‘refers to an amount of time that is
capable of being measured.’’ Id., 326; see id., 325–26.
The Appellate Court concluded that the term identified
in the exclusive listing agreements was not capable of
being measured ‘‘because it could be calculated only
by reference to an uncertain future event,’’ and ‘‘the
problem [was] compounded by the fact that the provi-
sion also [did] not provide a ceiling on the ultimate
amount of time the listing agreements could last.’’ Id.,
326. Because the parties could be bound by the exclu-
sive listing agreements indefinitely, the Appellate Court
concluded that they did not comply ‘‘with the plain
meaning of the duration requirement of § 20-325a (b)
and/or (c) (2).’’8 Id., 327.
The Appellate Court affirmed the judgments of the
trial court without reaching the issue of whether the
exclusive listing agreements were personal service con-
tracts. See id., 303 n.2, 337. We granted certification
to determine whether the exclusive listing agreements
comply with the durational requirement in § 20-325a (c)
(2) and require the personal performance of Jeanette
Haddad. See footnote 3 of this opinion.
I
A real estate broker in Connecticut may recover a
commission only if the listing agreement meets the
requirements of § 20-325a (b) or (c).9 See McCutcheon &
Burr, Inc. v. Berman, 218 Conn. 512, 519, 590 A.2d 438(1991). Subsection (c) applies to commercial real estate
transactions,10 and it provides ‘‘a more flexible standard
for a writing . . . than that which applies to non-
commercial transactions.’’ Location Realty, Inc. v. Col-
accino, 287 Conn. 706, 718, 949 A.2d 1189 (2008). It is
undisputed that the transactions at issue in the present
case are commercial real estate transactions under sub-
section (c) of § 20-325a. See footnote 10 of this opinion.
Thus, to prevail on their claims, the plaintiffs must
establish that they had ‘‘a memorandum, letter or other
writing stating for whom the licensee will act or has
acted, signed by the party for whom the licensee will
act or has acted in the commercial real estate transac-
tion, the duration of the authorization and the amount
of any compensation payable to the licensee . . . .’’
(Emphasis added.) General Statutes § 20-325a (c) (2);
cf. General Statutes § 20-325a (b) (3) and (4) (requiring
signed and written contract ‘‘show[ing] the date on
which such contract was entered into or such authoriza-
tion given’’ and ‘‘contain[ing] the conditions of such
contract or authorization’’). Pursuant to the Regulations
of Connecticut State Agencies, a residential real estate
listing agreement must specify ‘‘the date on which the
listing agreement is entered into and its expiration
date’’; (emphasis added) Regs., Conn. State Agencies
§ 20-328-6a (a) (1); whereas a commercial real estate
listing agreement, like the ones at issue in the present
case, must identify only ‘‘the duration of the authoriza-
tion . . . .’’ (Emphasis added.) Id., § 20-328-6a (d).
The term ‘‘duration’’ is not defined in the statutory
scheme or the regulations, so we look to ‘‘the commonly
approved usage of the language . . . .’’ General Stat-
utes § 1-1 (a). ‘‘Duration’’ is defined as ‘‘a portion of
time which is measurable or during which something
exists, lasts, or is in progress . . . .’’ Webster’s Third
New International Dictionary (2002) p. 703; see Black’s
Law Dictionary (11th Ed. 2019) p. 635 (defining ‘‘dura-
tion’’ as ‘‘[t]he length of time something lasts’’). We
agree with the Appellate Court that the term ‘‘duration
of the authorization’’ plainly and unambiguously refers
to a measurable length of time during which the authori-
zation to act on behalf of the buyer or seller exists or
lasts. See Reserve Realty LLC v. Windemere Reserve,
LLC, supra, 205 Conn. App. 324–26. We disagree, how-
ever, that the terms of the exclusive listing agreements
failed to satisfy this statutory requirement.
The exclusive listing agreements at issue11 provide in
relevant part: ‘‘The term of this [a]greement shall begin
at the time [the respective defendant] becomes the
owner, option holder, designator, etc. of the [p]roperty
and be for a period of . . . [120] months from the date
of the first conveyance of an individual unit or executed
lease to an unrelated party of [the respective defen-
dant], and shall be renewable by mutual agreement by
both parties. . . .’’ By its express terms, this provision
states that the agreements begin on the date that the
defendants acquire ownership of parcels 13 and 15,
respectively, and expire ten years from the date of the
first sale or lease of a unit on each respective parcel.12
Because the length of time that the authorization exists
or lasts is capable of being measured, we conclude that
it satisfies the durational requirements in § 20-325a (c)
(2). See Reserve Realty, LLC v. Windemere Reserve,
LLC, supra, 205 Conn. App. 326 (recognizing that ‘‘the
provision at issue . . . is written in such a way that
the amount of time for which the listing agreements
would be in effect is capable of being measured in some
sense because it specifies a ten year period that begins
to run from the time of the first conveyance or lease
of a unit’’).
The Appellate Court concluded that the duration of
these agreements was indeterminate because, ‘‘when
the [exclusive] listing agreements were executed, it was
entirely unclear how far into the future the parties
would be bound by the provision’’ insofar as ‘‘no party
. . . knew if or when ‘the first conveyance of an individ-
ual unit or executed lease’ would occur with respect
to parcel 13 or parcel 15.’’ Id. We disagree. ‘‘An agree-
ment can establish a fixed duration even if its duration
cannot be determined ab initio . . . .’’ (Citation omit-
ted.) Reddington v. Staten Island University Hospital,
511 F.3d 126, 137 (2d Cir. 2007); see A.T.N., Inc. v.
McAirlaid’s Vliesstoffe GmbH & Co. KG, 557 F.3d 483,
487 (7th Cir. 2009) (under Illinois law, contract is of
definite duration if it expires ‘‘upon the occurrence of a
specific [objective] event’’); Rooney v. Tyson, 91 N.Y.2d
685, 692, 697 N.E.2d 571, 674 N.Y.S.2d 616 (1998) (reject-
ing notion that contract’s ‘‘definite duration can be
found only in a determinable calendar date’’); MS Real
Estate Holdings, LLC v. Donald P. Fox Family Trust,
362 Wis. 2d 258, 277–78, 864 N.W.2d 83 (2015) (‘‘[W]e
do not require parties to express duration in temporal
terms in order to avoid indefiniteness. Rather, parties
are free to identify triggering events that give rise to
termination of the contract in one form or another.’’).
The specific end date of the exclusive listing agreements
was not known at the time of their execution because
the triggering event had not yet occurred. But the dura-
tion of the agreements was always known and measur-
able—the agreements commenced on the date the defen-
dants took title to parcels 13 and 15 and terminated ten
years from the date of the first sale or lease of parcel
13, parcel 15, or an individual unit thereof. Cf. Rooney
v. Tyson, supra, 692 (concluding that employment con-
tract was of definite duration because ‘‘the boundaries
of beginning and end of the employment period [were]
sufficiently ascertainable’’); MS Real Estate Holdings,
LLC v. Donald P. Fox Family Trust, supra, 280 (holding
that, ‘‘so long as [a] right of first refusal clearly identifies
a triggering event, whether certain or uncertain to
occur, it is definite as to duration’’). In sum, the exclu-
sive listing agreements specified the ‘‘duration of the
authorization’’ because the triggering event for the expi-
ration of the authorizations was articulated with suffi-
cient clarity to permit the parties to measure the length
of the agreements, as required by § 20-325a (c) (2).
The defendants contend that our construction of the
statute yields an absurd and unworkable result because
parcel 15 remains undeveloped, and it is unclear when,
if ever, that parcel or any portion thereof will be leased
or sold. Because the end date of the authorization per-
taining to parcel 15 remains uncertain to this day,13 the
defendants argue that the term ‘‘duration’’ in § 20-325a
(c) must be construed to require a precise, fixed expira-
tion date. This argument misconstrues the meaning of
‘‘duration’’ in the present context. Far from being absurd
and unworkable, the duration of the authorization speci-
fied in the exclusive listing agreements is clear, rational,
and ‘‘capable of being put into practice successfully.’’
(Internal quotation marks omitted.) Rivers v. New Brit-
ain, 288 Conn. 1, 17, 950 A.2d 1247 (2008). The question
is not whether there are good public policy reasons to
require a precise, fixed expiration date knowable from
the outset of the contract. See Reserve Realty, LLC v.
Windemere Reserve, LLC, supra, 205 Conn. App. 327.
Perhaps there are. But we find no such requirement in
the plain language of § 20-325a (c) (2) or the governing
regulations. It is not the role of this court ‘‘to engraft
additional requirements onto clear statutory language.’’
Dinan v. Marchand, 279 Conn. 558, 577, 903 A.2d 201(2006); see, e.g., Hasychak v. Zoning Board of Appeals,
296 Conn. 434, 441 n.8, 994 A.2d 1270 (2010) (‘‘[I]t is
the legislature, and not this court, that is responsible
for formulating and implementing public policy. . . .
When there is no ambiguity in the legislative command-
ment, this court cannot, in the interest of public policy,
engraft amendments onto the statutory language.’’
(Citations omitted; internal quotation marks omitted.)).
Section 20-325a (c) (2) does not require commercial
listing agreements to include a precise, fixed expiration
date, and we will not import such a requirement into
the statute.
For the foregoing reasons, we conclude that the
exclusive listing agreements specified the ‘‘duration of
the authorization’’ within the meaning of § 20-325a (c)
(2) and, therefore, complied with the requirements of
the statute.
II
The remaining question is whether the exclusive list-
ing agreements are personal service contracts that
require the personal performance of Jeanette Haddad.
The resolution of this issue is necessary because the
first conveyance of an individual unit or executed lease
on parcel 13 that would have generated a commission
under the exclusive listing agreements did not occur
until March, 2013—two months after Jeanette Haddad’s
death. Because no sales or leases were consummated
during her lifetime,14 the plaintiffs’ right to recover bro-
kerage commissions is contingent on the survival of
the exclusive listing agreements after the death of Jea-
nette Haddad.15
Contractual rights and obligations generally survive
the death of the contracting parties. See, e.g., Booth v.
Northrop, 27 Conn. 325, 329 (1858). There is an excep-
tion to this general rule for personal service contracts,
however, because personal service contracts require
the personal performance of the obligor, which is ren-
dered impossible by the obligor’s death. See 2 Z. Wolfe,
Farnsworth on Contracts (4th Ed. 2022) § 9.07, p. 9-
69 (‘‘if a particular person’s existence is necessary for
performance of a duty, and performance is prevented
by that person’s death or disability, the duty is dis-
charged’’); see also 2 Restatement (Second), Contracts
§ 262, pp. 324–25 (1981) (‘‘[i]f the existence of a particu-
lar person is necessary for the performance of a duty,
his death or such incapacity as makes performance
impracticable is an event the [nonoccurrence] of which
was a basic assumption on which the contract was
made’’). Stated simply, ‘‘[when] distinctly personal con-
siderations are at the foundation of the contract . . .
the relation of the parties is dissolved by the death of
the person whose personal qualities constituted the
particular inducement to the contract.’’ 30 Williston on
Contracts (4th Ed. 2022) § 77:71.
The underlying idea is that performance cannot be
delegated to another individual under a personal service
contract because the contract requires ‘‘the exercise of
personal skill or discretion.’’ 3 Restatement (Second),
supra, § 318, comment (c), p. 20; see 3 Z. Wolfe, supra,
§ 11.15, p. 11-99 (performance is nondelegable and
‘‘ ‘personal,’ in the sense that the recipient must rely
on qualities such as the character, reputation, taste,
skill, or discretion of the party that is to render it’’).
‘‘Thus if a specific artist is hired to paint a picture,
the artist cannot delegate his duty of performing. . . .
Personal performance is of the essence. Agreements to
render professional services as a physician or [a] lawyer
fall within this rule.’’ (Citations omitted.) Rossetti v.
New Britain, 163 Conn. 283, 291, 303 A.2d 714 (1972).
Whether a contract is one for personal services
depends on the intent of the contracting parties, as
evidenced by the language of the contract, its subject
matter, and the circumstances surrounding its execu-
tion. See id. (‘‘[w]hether a duty is personal such that it
cannot be delegated . . . is a question of the intention
of the parties to be ascertained from the contract, its
nature, and the attending circumstances’’). Unless clear
from the contract’s express terms, the intent of the
contracting parties is a question of fact. See, e.g., Cruz
v. Visual Perceptions, LLC, 311 Conn. 93, 101, 84 A.3d
828 (2014) (when contract is ambiguous, ‘‘the determi-
nation of the parties’ intent is a question of fact’’ (inter-
nal quotation marks omitted)); see also 30 Williston
on Contracts, supra, § 77.71 (whether contract requires
personal performance is ‘‘intensely fact oriented’’).
After listening to extensive evidence regarding the
contracting parties’ intent, the trial court found that
‘‘the parties intended that the broker recognized in the
listing agreements to provide the brokerage services
and who would be entitled to commissions pursuant
to those agreements was Jeanette Haddad, personally,
and that the agreements and performance obligations
thereunder were nontransferable.’’ We review the trial
court’s factual finding regarding the intent of the con-
tracting parties for clear error.16 ‘‘A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed. . . . Because it is
the trial court’s function to weigh the evidence and
determine credibility, we give great deference to its
findings. . . . In reviewing factual findings, [w]e do not
examine the record to determine whether the [court]
could have reached a conclusion other than the one
reached. . . . Instead, we make every reasonable pre-
sumption . . . in favor of the trial court’s ruling.’’
(Internal quotation marks omitted.) Gianetti v. Nor-
walk Hospital, 304 Conn. 754, 765–66, 43 A.3d 567(2012); see Otto Contracting Co. v. S. Schinella & Son,
Inc., 179 Conn. 704, 708, 427 A.2d 856 (1980) (trial
court’s factual findings must be upheld unless they are
‘‘clearly erroneous in view of the evidence and pleadings
in the whole record’’).
The language of the exclusive listing agreements is
silent with respect to whether they require Jeanette
Haddad’s personal performance. Although the agree-
ments state that the benefits and duties set forth therein
shall be binding on the defendants’ respective ‘‘succes-
sors and assigns’’ or ‘‘heirs and assigns,’’ there is no
corresponding provision regarding the benefits and
duties flowing to the named brokers’ successors,
assigns, or heirs. The fact that the contracting parties
explicitly agreed to bind the defendants’ successors,
assigns, and heirs, but not those of the named brokers,
suggests that the parties did not intend the exclusive
listing agreements to be assignable by the named bro-
kers or to survive their death or dissolution. Cf. Tall-
madge Bros., Inc. v. Iroquois Gas Transmission
System, L.P., 252 Conn. 479, 497, 746 A.2d 1277 (2000)
(recognizing presumption that contractual language
used by sophisticated commercial contracting parties
reflects their intent).
We have not previously addressed whether an agree-
ment for professional real estate brokerage services
typically is a personal service contract. Having consid-
ered the matter, we see no reason to deviate from the
view adopted by the trial court, which is consistent with
out-of-state authority recognizing that ‘‘[t]he owner-bro-
ker relationship is a personal one based on mutual
confidence . . . .’’ (Citation omitted.) Charles B. Web-
ster Real Estate v. Rickard, 21 Cal. App. 3d 612, 618,
98 Cal. Rptr. 559 (1971); see Florance v. Kresge, 93
F.2d 784, 786 (4th Cir. 1938) (real estate broker service
contract ‘‘provided for personal services involving a
relationship of personal confidence’’); Newton Centre
Realty, Inc. v. Jaffe, 97 Mass. App. 726, 729 n.5, 150
N.E.3d 811 (2020) (‘‘the real estate broker-seller rela-
tionship is often very personal’’); Glacier Land Co.,
LLC v. Claudia Klawe & Associates, LLC, 154 P.3d
852, 862 n.11 (Utah App. 2006) (commercial real estate
brokerage contract required personal performance of
broker), cert. denied, 168 P.3d 819 (Utah 2007); 29 Wil-
liston on Contracts (4th Ed. 2022) § 74:30 (there is con-
tractual duty of personal performance by someone
‘‘who in return for a promised commission has under-
taken to assist in the sale of land’’). Given the personal
and confidential nature of the relationship between a
buyer/seller of real estate and a real estate broker, the
parties to a brokerage agreement have the ‘‘right to
select and determine with whom [they] will contract,
and cannot have another person thrust [on them] with-
out [their] consent. In the familiar phrase of Lord
[Thomas] Denman, ‘[y]ou have the right to the benefit
you anticipate from the character, credit and substance
of the party with whom you contract.’ ’’ Arkansas Valley
Smelting Co. v. Belden Mining Co., 127 U.S. 379, 387,
8 S. Ct. 1308, 32 L. Ed. 246 (1888), quoting Humble v.
Hunter, 116 Eng. Rep. 885, 887 (Q.B. 1848); accord
Florance v. Kresge, supra, 787.
In the present case, the defendants contracted for
the professional brokerage services of Jeanette Haddad,
who was ‘‘a successful and highly regarded real estate
broker operating in the Danbury real estate market
. . . .’’ To be sure, Jeanette Haddad was selected
because the Woodland agreement required subsequent
purchasers of the Reserve to use Jeanette Haddad and
Scalzo Realty as their real estate brokers; the defen-
dants would have used a different broker if they had
their druthers. But the plaintiffs do not argue that these
circumstances changed the nature of the contractual
relationship to something other than one for personal
services. Additionally, there was evidence from which
the trial court reasonably could have inferred that the
defendants were willing to enter into the exclusive list-
ing agreements because they trusted Jeanette Haddad
and had confidence in her professional abilities. Carl
Kuehner, Jr., testified that Jeanette Haddad was ‘‘a
highly competent broker’’ whom he held in ‘‘very high
regard.’’ There also was evidence that the Kuehner fam-
ily had a long-standing friendship with the Haddad fam-
ily and previously had retained the professional
brokerage services of Jeanette Haddad.
At trial, the evidence was conflicting as to the defen-
dants’ intent to enter into a personal service contract,
and the plaintiffs sought to demonstrate that the defen-
dants understood from the outset that Jeanette Haddad
would delegate some of her contractual duties to Theo-
dore Haddad, Sr., and Theodore Haddad, Jr. For exam-
ple, Paul Kuehner testified that he knew ‘‘that the Had
dad family has worked as a team in the brokerage business
for twenty-five, thirty years,’’ and that Theodore Had-
dad, Sr., and Theodore Haddad, Jr., had ‘‘work[ed] with
Jeanette Haddad . . . on [past] projects . . . .’’ He
also testified, however, that his family had ‘‘parted ways
in doing deals directly with’’ Theodore Haddad, Jr., and
‘‘did not hire’’ Theodore Haddad, Jr., as the broker in
the present case. Similarly, Carl Kuehner, Jr., testified
that he ‘‘knew that [Theodore] Haddad, Jr., and [Theo-
dore] Haddad, Sr., worked closely with Jeannette Had-
dad in her broker’s business’’ but that, at the time he
signed the exclusive listing agreements, he did not know
that Theodore Haddad, Jr., would be involved as a bro-
ker, and, had he known, ‘‘there would have been a
discussion within the [Kuehner] family’’ because the
Kuehners had not had ‘‘great success with’’ Theodore
Haddad, Jr., in the past and ‘‘would not have gone down
that path as a family.’’
On the basis of this and other evidence, the trial court
found that, although the defendants may have expected
Theodore Haddad, Sr., to be involved in some way in
Jeanette Haddad’s fulfillment of her contractual obliga-
tions, that expectation did not alter the character of
the exclusive listing agreements as personal service
contracts because, ‘‘at all times relevant to the plaintiffs’
claims, Theodore Haddad, Sr., was Jeanette Haddad’s
employee.’’ The trial court further determined that the
parties did not intend Jeanette Haddad’s duty of per-
sonal performance to be completed by Theodore Had-
dad, Jr., finding ‘‘[t]he testimony of Carl Kuehner, Jr.,
[to be] clear, credible and unwavering that at no time
did the defendants intend to engage Theodore Haddad,
Jr., when they executed the [exclusive listing] agree-
ments.’’ We will not second guess this credibility deter-
mination on appeal. See, e.g., Stratford Police Dept. v.
Board of Firearms Permit Examiners, 343 Conn. 62,
86, 272 A.3d 639 (2022) (‘‘[I]t is the exclusive province
of the trier of fact to make determinations of credibility
. . . . Questions of whether to believe or to disbelieve
a competent witness are beyond our review.’’ (Internal
quotation marks omitted.)). On the present record, we
cannot conclude that the trial court’s factual finding that
the exclusive listing agreements require the personal
performance of Jeanette Haddad was clearly erroneous.
The plaintiffs contend that the trial court’s factual
finding that the exclusive listing agreements are per-
sonal service contracts is inconsistent and irreconcil-
able with its factual finding that Jeanette Haddad dele
gated some of her contractual duties to Theodore Haddad,
Sr., and Theodore Haddad, Jr. They argue that, because
the duty of performance in a personal service contract
cannot be delegated, and Jeanette Haddad delegated
some of her contractual duties to her husband and son,
it must follow that the exclusive listing agreements are
not personal service contracts. We reject this logic for
two reasons.
First, as the trial court implicitly recognized, individu-
als who provide professional services routinely retain
employees and support staff to assist them in the com-
pletion of administrative, ministerial, or subordinate tasks.
For example, lawyers employ paralegals, physicians
employ medical assistants, and scientists employ labo-
ratory technicians. So long as these employees act under
the direction, control, and supervision of the individual
rendering the professional services and do not under-
take the types of duties that require the discretion, skill,
and expertise for which the obligor was hired, there is
nothing improper in delegating such administrative,
ministerial, or subordinate tasks to employees or agents.
See, e.g., 1 Restatement (Second), Agency § 17, illustra-
tion (2), p. 86 (1958) (sculptor hired to render personal
services in completing statue may utilize assistant to
block marble copy of statue).
Second, the parties’ intent at the time of contracting
should not be confused with their later performance of
their contractual duties. After-the-fact conduct may be
indicative of the contracting parties’ original intent17 or
may establish a breach of the obligor’s duty of personal
performance. See Ames v. Sayler, 267 Ill. App. 3d 672,
677, 642 N.E.2d 1340 (1994) (farm tenancy was personal
service contract that terminated upon obligor’s death,
even though obligor delegated his duty of performance
during his lifetime), appeal denied, 159 Ill. 2d 563, 647
N.E.2d 1006 (1995); 3 Restatement (Second), Contracts,
supra, § 318, illustration (5), p. 20. Alternatively, subse-
quent performance may simply be indicative of the
types of administrative, ministerial, or similar tasks that
the parties contemplated could be performed by the
obligor’s subordinates. There are various inferences
that might reasonably be drawn from a contracting par-
ty’s subsequent performance, and, on the present fac-
tual record, we cannot say that Jeanette Haddad’s
delegation of some of her contractual duties to Theo-
dore Haddad, Sr., and Theodore Haddad, Jr., necessarily
meant that, at the time of contracting, the parties did
not intend to execute a personal service contract.
This brings us to the plaintiffs’ alternative claim that,
even if the exclusive listing agreements are personal
service contracts, the defendants waived their right to
insist on Jeanette Haddad’s personal performance because,
during Jeanette Haddad’s lifetime, they accepted the
substitute performance of Theodore Haddad, Sr., and
Theodore Haddad, Jr., without complaint. We recognize
that an obligee’s knowledge of and consent to an obli-
gor’s improper delegation of an essential duty of per-
sonal performance, without complaint, may result in
the waiver of the right to insist on personal perfor-
mance. See, e.g., RBC Nice Bearings, Inc. v. SKF USA,
Inc., 318 Conn. 737, 756, 123 A.3d 417 (2015) (contrac-
tual rights may be waived by acceptance of ‘‘noncompli-
ant performance’’); Bradford Novelty Co. v.
Technomatic, Inc., 142 Conn. 166, 171, 112 A.2d 214(1955) (‘‘[t]he plaintiff, by its conduct, waived its right to
strict compliance with the provisions of the contract’’);
Banks Building Co., LLC v. Malanga Family Real
Estate Holding, LLC, 102 Conn. App. 231, 240–41, 926
A.2d 1 (2007) (upholding trial court’s factual finding
that property owner implicitly waived performance of
contractual provision through its conduct). See gener-
ally 4 A. Corbin, Contracts (1951) § 865, p. 451 (‘‘[when]
a performance is personal and not possible of delega-
tion, the condition of personal performance is waived
if the obligor assents to the substituted performance;
and failure to object, with knowledge that the work is
being performed by a substitute, may operate as
assent.’’). But the trial court’s factual findings in the
present case reflect that the trial court considered and
rejected the plaintiffs’ claim of waiver. The trial court
did not find that Jeanette Haddad failed to fulfill her
essential duty of personal performance by delegating
the types of duties that required the exercise of her
personal discretion, skill, and expertise. Instead, the
trial court essentially found that Jeannette Haddad ful-
filled her duty of personal performance under the exclu-
sive listing agreements by directing, supervising, and
controlling her employees and completing the types of
obligations that induced the defendants to enter into the
agreements.18 In other words, there was no substitute
performance, and, therefore, the defendants did not
waive their right to insist on Jeanette Haddad’s personal
performance. Having thoroughly reviewed the evidence
adduced at trial, we cannot say that the trial court’s
factual finding is clearly erroneous.19 See, e.g., RBC Nice
Bearings, Inc. v. SKF USA, Inc., supra, 747 (‘‘Waiver
is a question of fact. . . . [When] the factual basis of
the [trial] court’s decision is challenged we must deter-
mine whether the facts set out in the memorandum of
decision are supported by the evidence or whether, in
light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous.’’ (Internal quo-
tation marks omitted.)).20
For the foregoing reasons, we conclude that the
exclusive listing agreements were personal service con-
tracts that terminated when Jeanette Haddad died in
January, 2013. Because no portion of parcel 13 or parcel
15 was leased or sold during her lifetime, the defendants
are not liable to the plaintiffs for any past, present, or
future brokerage commissions.
The judgments of the Appellate Court are affirmed.
In this opinion the other justices concurred.
1
The appeal in docket number SC 20635 arises from a breach of contract
action, whereas the appeals in docket numbers SC 20636 and 20637 arise
from actions to foreclose on broker’s liens. See footnote 6 of this opinion.
The certified issues in the three appeals are identical, and we consolidated
the appeals pursuant to Practice Book § 61-7 (b) (1).
2
We refer to BLT and Windemere collectively as the defendants and
individually by name when appropriate.
3
We certified the following two issues: (1) ‘‘Did the Appellate Court
correctly determine that the commercial real estate brokerage agreements
were unenforceable because the terms of those agreements did not satisfy
the requirement in . . . § 20-325a (c) that any such agreements state ‘the
duration of the authorization’ contained therein?’’ And (2) ‘‘[d]id the trial
court correctly determine that the listing agreements were contracts for the
personal services of Jeanette Haddad and, therefore, that the defendants
were not liable to any of the plaintiffs for brokerage commissions, even if the
agreements had been enforceable by Jeanette Haddad during her lifetime?’’
Reserve Realty, LLC v. Windemere Reserve, LLC, 339 Conn. 901, 902, 260
A.3d 1224 (2021); accord Reserve Realty, LLC v. BLT Reserve, LLC, 339
Conn. 902, 902–903, 260 A.3d 1226 (2021); Reserve Realty, LLC v. Windemere
Reserve, LLC, 339 Conn. 903, 260 A.3d 1223 (2021).
4
Because there was no evidence that ‘‘Jeanette Haddad, Broker,’’ was
anything other than a sole proprietorship, there is no distinction between
Jeanette Haddad in her personal capacity, as an individual, and Jeanette
Haddad in her professional capacity, as a licensed broker. See, e.g., Gould
v. Stamford, 331 Conn. 289, 308, 203 A.3d 525 (2019) (sole proprietorship
is ‘‘[a] business in which one person . . . operates in his or her personal
capacity or [o]wnership of such a business’’ (emphasis omitted; internal
quotation marks omitted)). Neither Scalzo nor Scalzo Realty is party to the
present appeals.
5
UC Properties, LLC, is the former name of the plaintiff The Reserve
Realty, LLC (Reserve Realty). Although the entity is identified as a third
broker (in addition to Scalzo Realty and Jeanette Haddad) in two of the four
exclusive listing agreements, the trial court found that ‘‘all of the parties—
including the plaintiffs—intended that the [exclusive] listing agreements
were between the defendants and [Jeanette] Haddad and Scalzo, and not
Reserve Realty,’’ and that ‘‘Reserve Realty was intended, to the extent that
the parties thought of it at all, to be nothing more than a corporate entity
through which commissions due and payable from all the Reserve parcel
transactions, not just the BLT and Windemere transactions, would be pro-
cessed for the benefit of [Jeanette] Haddad and Scalzo.’’ The trial court’s
factual finding is supported by the evidence adduced at trial demonstrating
that UC Properties, LLC, was not incorporated or a licensed broker at the
time the exclusive listing agreements were executed. Additionally, Scalzo
testified that the purpose of Reserve Realty was to receive commissions
from the sale or lease of property within the Reserve and to split those
commissions evenly between Jeanette Haddad and Scalzo Realty. Because
there is evidence in the record to support the trial court’s factual finding
on this point, we reject the plaintiffs’ suggestion that it is clearly erroneous.
6
The plaintiffs filed two separate complaints for breach of contract, one
with respect to parcel 13 and the other with respect to parcel 15. The
plaintiffs likewise commenced two separate actions to foreclose on broker’s
liens recorded on parcel 13 and parcel 15, respectively. The parties later
stipulated that the disposition of the breach of contract action was disposi-
tive of the foreclosure actions.
7
The trial court determined that the exclusive listing agreements were
ambiguous and incomplete because ‘‘[t]he evidence adduced at trial was
evenly balanced between two findings: (1) that all of the agreements were
intended to expire on September 10, 2010 [under the buyer’s agreement]
. . . and (2) that the term of the agreements began with the date of the
first sale or lease of a unit and [were to] continue for a period of ten years
thereafter.’’ (Citation omitted.) The Appellate Court disagreed, concluding
that, although the buyer’s agreement expired on September 10, 2010, and
the exclusive listing agreements were to expire ten years from the first sale
or lease of parcel 13, parcel 15, or a portion thereof; see part I of this
opinion; the different expiration dates did not render the agreements ambigu-
ous because ‘‘the buyer’s agreement and the [exclusive] listing agreements
governed different aspects of the relationship between the parties. Specifi-
cally, the buyer’s agreement granted the named brokers the exclusive right
to represent [the defendants] in purchasing parcels 13 and 15 from Woodland,
and such authorization expired on September 10, 2010. The [exclusive]
listing agreements, by contrast, granted the named brokers the exclusive
right to sell/lease parcels 13 and 15, or portions thereof, on behalf of [the
defendants] for a period of ten years from the date of the first conveyance
of an individual unit or executed lease to an unrelated party, after [the
defendants] had acquired ownership of the parcels.’’ Reserve Realty, LLC v.
Windemere Reserve, LLC, supra, 205 Conn. App. 320. Because the durational
language in the exclusive listing agreements was definitive and unambiguous,
the Appellate Court did ‘‘not consider any extrinsic evidence regarding the
parties’ intent.’’ Id., 322.
8
The Appellate Court rejected the plaintiffs’ alternative claim that they
were entitled to recover brokerage commissions under subsection (d) of
§ 20-325a, reasoning that (1) the exclusive listing agreements did not substan-
tially comply with the requirements of subsection (b) or (c) of § 20-325a
because ‘‘the duration of an [exclusive right to sell listing agreement] goes
to the root or essence of the agreement’’; Reserve Realty, LLC v. Windemere
Reserve, LLC, supra, 205 Conn. App. 332; and (2) it would not be inequitable
to deny the plaintiffs recovery because no sale or lease occurred ‘‘until
nearly ten years after the [exclusive] listing [agreements were] executed, and
approximately two months after [the death of Jeanette Haddad].’’ Id., 334.
9
The Appellate Court concluded that the exclusive listing agreements did
not comply with subsection (b) (4) of § 20-325a, which requires a contract
for broker services to ‘‘contain the conditions of such contract or authoriza-
tion . . . .’’ General Statutes § 20-325a (b) (4); see Reserve Realty, LLC v.
Windemere Reserve, LLC, supra, 205 Conn. App. 323–24. The scope of
subsection (b) (4) is not at issue in these certified appeals, and, therefore,
to prevail on their claims, the plaintiffs must satisfy the statutory require-
ments of subsection (c). See General Statutes § 20-325a (c) (1) and (2)
(precluding action to recover brokerage commission in commercial real
estate transaction unless there is ‘‘a contract or authorization meeting the
requirements of subsection (b) of [§ 20-325a]’’ or ‘‘a memorandum, letter or
other writing’’ meeting requirements of subsection (c)).
10
A ‘‘commercial real estate transaction’’ is defined as ‘‘any transaction
involving the sale, exchange, lease or sublease of real property other than
real property containing any building or structure occupied or intended to
be occupied by no more than four families or a single building lot to be
used for family or household purposes.’’ General Statutes (Rev. to 2021)
§ 20-311 (9).
11
We treat all four of the agreements the same, as did the Appellate Court.
Although the point is not raised by the parties, we note that the language
in the four agreements is not identical. The exclusive right to sell/lease listing
agreement for parcel 13 does not contain an explicit durational provision,
and the exclusive right to sell/lease listing agreement for parcel 15 provides:
‘‘This [l]isting [a]greement shall terminate on sale or lease to a bona fide
purchaser/tenant and the payment of the compensation as set forth herein.’’
The payment of $1 million in compensation was payable ‘‘on either the sale
of the [p]roperty, or at the issuance of the first [c]ertificate of [o]ccupancy
. . . for an office building constructed on said [p]roperty’’ as follows:
‘‘$100,000 upon the sale of the [p]roperty or upon the issuance of the first
[certificate of occupancy] for an office building constructed on the [p]rop-
erty, and $100,000 on the anniversary date of the sale of the [p]roperty or
upon the issuance of said [certificate of occupancy] for each of the next
nine . . . years.’’
Because the parties do not address the language of these two agreements
in their appellate briefs, we confine our analysis to the language of the
exclusive right to sell listing agreement for parcel 13 and the exclusive right
to sell listing agreement for parcel 15, consistent with the presentation of
the issue on appeal.
12
The defendants contend that the durational language in these agree-
ments is ambiguous because it contains two different start dates: (1) the
date on which the defendants became the owner, option holder, or designator
of parcels 13 and 15; and (2) the date of the first conveyance of an individual
unit or executed lease. We reject this claim because the start date is clear:
the exclusive listing agreements expressly state that they ‘‘shall begin at
the time [the respective defendant] becomes the owner, option holder, desig-
nator, etc. of the [p]roperty . . . .’’ (Emphasis added.) Thus, the agreements
became effective on the date the defendants took title to parcels 13 and 15:
December 20, 2005. The date of the first conveyance is not the start date
but, rather, a triggering event that commences the ten year countdown to
the expiration of the agreements.
Alternatively, the defendants argue that the Appellate Court incorrectly
determined that the language of these agreements is not ambiguous because,
as the trial court correctly found, when the agreements are read in conjunc-
tion with the buyer’s agreement, it is not clear whether (1) all of the agree-
ments expired on September 10, 2010, or (2) all of the agreements were to
expire ten years after the first conveyance or executed lease. We do not
address this issue because it is outside the scope of the questions certified
for our review. See, e.g., Mangiafico v. Farmington, 331 Conn. 404, 417
n.5, 204 A.3d 1138 (2019).
13
With respect to parcel 13, the exclusive listing agreements expired in
February, 2023, ten years after the first apartment at Abbey Woods was
leased.
14
There is no claim that Jeanette Haddad produced a ready, willing, and
able buyer or lessee during her lifetime. See, e.g., Storm Associates, Inc. v.
Baumgold, 186 Conn. 237, 242, 440 A.2d 306 (1982) (‘‘[t]his court has repeat-
edly held that a broker who has, in accordance with a listing contract, found
a purchaser ready, willing, and able to purchase, on the owner’s own terms,
is entitled to its commission even though no contract for the sale of the
property has ever been executed’’).
15
As we explained in footnote 5 of this opinion, the trial found that the
contracting parties did not intend Reserve Realty to serve as a named broker
under the exclusive listing agreements. The trial court further found that
‘‘[t]he plaintiffs presented insufficient evidence to establish by a preponder-
ance of the evidence that the parties intended that Reserve Realty would
survive Jeanette Haddad’s death and serve as the listing broker.’’ In light
of these factual findings, Reserve Realty’s right to recover any brokerage
commissions under the exclusive listing agreements is completely dependent
on and derivative of the right of Jeanette Haddad.
16
The plaintiffs claim that the standard of review is plenary ‘‘in view of
the uncontradicted evidence’’ that Jeanette Haddad ‘‘used her husband and
son as her authorized agents in performing her obligations under the listing
agreements.’’ This claim is without merit. It is well established that the trial
court, as the finder of fact, ‘‘has discretion to reject even uncontested
evidence, on the theory that the fact finder is uniquely well situated to make
determinations of witness credibility.’’ Willow Funding Co., L.P. v. Grencom
Associates, 246 Conn. 615, 623, 717 A.2d 1211 (1998). To the extent the
plaintiffs claim that the trial court’s factual finding was clearly erroneous
on the ground that there was uncontroverted and overwhelming evidence
that Jeanette Haddad had delegated some of her contractual duties to Theo-
dore Haddad, Sr., and Theodore Haddad, Jr., we address the plaintiffs’ claim
in the body of this opinion.
17
See Connecticut Co. v. Division 425, Amalgamated Assn. of Street,
Electric Railway & Motor Coach Employees of America, 147 Conn. 608,
617, 164 A.2d 413 (1960) (‘‘[t]he practical construction indicated by the
conduct of the parties over a period of time is evidence of intent’’).
18
The trial court found that Jeanette Haddad fulfilled her duty of personal
performance, even though (1) ‘‘Jeanette Haddad was suffering from health
ailments as early as 2003, which prevented her from actively promoting and
marketing the parcels on behalf of the defendants,’’ (2) ‘‘Theodore Haddad,
Sr., and Theodore Haddad, Jr., performed services on Jeanette Haddad’s
behalf from 2003 to the time of her death, and in discharge of her obligations
under the listing agreements,’’ and (3) ‘‘at no time did the defendants object
to their participation.’’ The trial court’s factual finding in this regard is
supported by the testimony of Theodore Haddad, Jr., that Jeanette Haddad
‘‘authorized things, she approved things, she shared in meetings, she contrib-
uted concepts [and] ideas,’’ and that the defendants ‘‘never’’ once complained
‘‘about any aspect of [Jeanette Haddad’s] role in performing these contracts
. . . .’’ Given Jeanette Haddad’s fulfillment of her contractual duties, the
trial court ‘‘agree[d] completely with the plaintiffs that Theodore Haddad,
Sr., [as the executor of the estate of Jeanette Haddad] would have the right
to bring an action on Jeanette Haddad’s behalf if she had, during her lifetime
and the term of a valid listing agreement, procured ready, willing, and able
buyers or lessees. The right to recover for commissions earned pursuant
to the listing agreements did not end with her death; what ended was her
ability to perform under the agreements.’’
19
In light of our conclusion, we do not address whether Theodore Haddad,
Sr., and Theodore Haddad, Jr., were ‘‘subagents’’ of Jeanette Haddad under
General Statutes § 20-325f. See General Statutes § 20-325f (‘‘[n]o real estate
broker shall make any unilateral offer of subagency or agree to compensate,
appoint, employ, cooperate with or otherwise affiliate with a subagent for
the sale or purchase of real property without the informed written consent
of the person whom the real estate broker represents’’).
20
Finally, and alternatively, the plaintiffs claim that (1) Jeanette Haddad’s
right to recover brokerage commissions vested prior to her death, and (2)
Theodore Haddad, Sr., and Theodore Haddad, Jr., had the authority to
continue to act on her behalf after her death to fulfill her obligations under
the exclusive listing agreements. We summarily reject these claims because,
as we explain in this opinion, the exclusive listing agreements terminated
when Jeanette Haddad died, and no brokerage commissions were generated
during her lifetime.