Bruno v. Whipple ( 2015 )

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LISA BRUNO v. REED WHIPPLE ET AL.
(AC 35707)
Sheldon, Keller and Harper, Js.
Argued September 16—officially released December 29, 2015
(Appeal from Superior Court, judicial district of
Danbury, Maronich, J. [summary judgment]; Doherty,
J. [judgment; motion for permission to file amended
answer, special defense; motion to set aside verdict;
articulation].)
Lisa Bruno, self-represented, the appellant
(plaintiff).
Laura Pascale Zaino, with whom, on the brief, was
Stephen P. Fogerty, for the appellees (defendants).
Opinion
SHELDON, J. This case arises from dealings between
the parties concerning the construction by the defen-
dant Heritage Homes Construction Company, LLC (Her-
itage Homes), of a new home in Ridgefield for the
plaintiff, Lisa Bruno, and her former husband, Stephen
Bruno (Bruno). The plaintiff appeals from the judgment
of the trial court in favor of the defendants, Heritage
Homes and its president, Reed Whipple, claiming that
the trial court erred: (1) in denying her posttrial motion
to set aside the jury’s verdict (a) for Heritage Homes
on her claim of breach of contract, and (b) for Whipple
on her claim of violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq.; and (2) in granting the pretrial motion of
Heritage Homes for summary judgment on her claims
of breach of the implied covenant of good faith and
fair dealing and violation of CUTPA. We reverse the
judgment in favor of Heritage Homes on the plaintiff’s
claim of breach of contract and remand the case for
a hearing in damages on that claim pursuant to the
unchallenged portion of the jury’s verdict and accompa-
nying answers to interrogatories concerning that claim.
We affirm the judgment in all other respects.
In a previous appeal in this matter, Bruno v. Whipple,
138 Conn. App. 496, 498–503, 54 A.3d 184 (2012), this
court set forth the following relevant factual and proce-
dural history. ‘‘On January 27, 2010, the plaintiff filed
a six count amended second revised complaint against
the defendants. In the complaint, the plaintiff alleged
that the defendants, as parties to a contract with herself
and Bruno to build the new home, had breached the
contract and the implied covenant of good faith and
fair dealing arising thereunder by conspiring with Bruno
to launder his money through the project, and thus to
deprive her of fair, just and reasonable alimony and
division of assets in connection with the impending
dissolution of her marriage. On that score, the plaintiff
alleged, more particularly, that by December, 2005,
when Bruno initiated marital dissolution proceedings
against her, construction of the new home was nearly
complete for what by then was the total sum of approxi-
mately $1,800,000. Thereafter, however, from Decem-
ber, 2005, to January, 2006, and from May, 2006, to
July, 2006, Bruno paid the defendants additional sums
totaling approximately $2,600,000, all purportedly for
expenditures on the project that she did not authorize.
On that basis, the plaintiff alleged that the defendants
had colluded with Bruno to launder his money through
the project, either by not performing all of the construc-
tion work they claimed to have performed on the project
or by submitting multiple billings for the work they did
perform. The plaintiff claimed . . . that by engaging in
such collusive conduct with Bruno, [the defendants]
not only breached the contract, as alleged in count[s]
one [and two] of the complaint,1 and the implied cove-
nant of good faith and fair dealing arising under the
contract, as alleged in count[s] three [and four], but
[they] also committed unfair or deceptive acts or prac-
tices in the conduct of a trade or commerce that caused
her to suffer ascertainable economic losses in violation
of CUTPA, as alleged in count[s] five [and six].
‘‘On March 25, 2011, the plaintiff and, on March 28,
2011, the defendants filed motions for summary judg-
ment. In support of their motion, the defendants argued,
inter alia, that Whipple was entitled to judgment as a
matter of law on each of the plaintiff’s claims against
him because all such claims were based materially upon
alleged breaches of duties arising under a contract to
which he was not a party. On that score, they argued
that Whipple was not identified in the contract as a
party and that, although he signed the contract in his
representative capacity as a member of Heritage
Homes, he did not sign it in his individual capacity. In
support of that argument, the defendants submitted
Whipple’s personal affidavit in which he averred that
he had never individually entered into any contract
with the plaintiff or Bruno, nor had he ever individually
performed any work or provided any labor, services or
material for either of them on his own behalf. In addi-
tion, with respect to the plaintiff’s core allegation of
wrongdoing against him in each of her claims—that he
had engaged in money laundering on behalf of Bruno
by returning money to him for work billed on the home
construction project—Whipple averred that all work
billed by Heritage Homes on the project was performed
and fully paid for by Bruno pursuant to the contract,
and that neither he nor Heritage Homes ever had
returned any money to Bruno or laundered money for
him through the project, as the plaintiff had alleged. The
defendants supported their summary judgment motion
with a memorandum of law and several exhibits, includ-
ing Whipple’s affidavit and an unauthenticated copy of
the subject contract.
‘‘In opposition to the defendants’ motion, the plaintiff
filed, inter alia, a memorandum of law and several
exhibits, including a copy of the contract that was textu-
ally identical to that submitted by the defendants and
two personal affidavits. . . . As grounds for opposing
the defendants’ motion, the plaintiff argued, inter alia,
that (1) the defendants had failed to support their
motion by properly authenticated documents and mate-
rials; (2) Whipple was indeed a party to the contract in
his individual capacity; (3) even if Whipple signed the
contract only in his representative capacity, he nonethe-
less should be held liable for Heritage Homes’ tortious
conduct, either as a direct participant in such conduct
or as a person who so completely and pervasively con-
trolled the company as to warrant piercing the corpo-
rate veil; and (4) the defendants’ documented
interference with her ability to keep informed of and
participate in the construction project’s planning and
oversight after Bruno commenced marital dissolution
proceedings against her, by dealing solely and exclu-
sively with Bruno as to costly project modifications
without her knowledge or consent, supports the infer-
ence that the defendants conspired with Bruno to laun-
der his marital assets through Heritage Homes’
accounts, for Bruno’s benefit and to her own great finan-
cial loss.
‘‘After hearing oral argument on the parties’ motions
for summary judgment, the court issued a memorandum
of decision in which it granted the defendants’ motion
as to all three of the plaintiff’s claims against Whipple.
As to the plaintiff’s threshold claim of breach of con-
tract, under count one of her complaint, the court relied
upon the language of the contract, as submitted to it
by both parties, to conclude that Whipple could not
be found liable because ‘there is no genuine issue of
[material] fact that Whipple was not a party to the
contract as pleaded by the plaintiff.’ As to the plaintiff’s
claims of breach of the implied covenant of good faith
and fair dealing and . . . violation of CUTPA, under
counts three and five of her complaint, the court deter-
mined that both of those claims were also ‘directly
dependent upon the existence of the contractual rela-
tionship’ between the plaintiff and Whipple, and thus
that Whipple could not be held liable on either such
claim due to his status as a nonparty to the contract.
The court’s determination to this effect on the plaintiff’s
claim of breach of the implied covenant of good faith
and fair dealing was based upon both settled case law,
holding that such a claim can only be asserted against
a contracting party, and its conclusion that the allega-
tions of the third count failed to state any independent
basis for establishing his liability in tort. By contrast,
the court’s determination that the plaintiff’s CUTPA
claim against Whipple was directly dependent upon
the existence of a contractual relationship was based
simply upon its observation that all of the allegations
of her breach of contract claim against him were real-
leged in support of the CUTPA claim.
‘‘Following the issuance of the court’s decision, the
defendants asked that the decision be clarified as to
whether it also was intended to apply to the plaintiff’s
claims against Heritage Homes, which had joined with
[Whipple] in moving for summary judgment. In
response to that request, the court promptly issued
a corrected memorandum of decision in which it (1)
restated nearly verbatim, in the first section of the cor-
rected decision bearing only Whipple’s name and a spe-
cific reference to the three numbered counts against
him (one, three and five), its prior decision granting
the defendants’ motion as to each such count; and then
(2) proceeded, in the second section bearing only the
name of Heritage Homes and a specific reference to
the three numbered counts against it (two, four and
six), to deny the defendants’ motion with respect to
count two, alleging breach of contract, but to grant the
motion as to counts four and six, alleging breach of the
implied covenant of good faith and fair dealing and
. . . violation of CUTPA. With respect to counts four
and six, in particular, the court concluded its analysis
as follows: ‘While the plaintiff has alleged conduct that
would support a finding of aggravating circumstances
sufficient for a CUTPA claim or a claim for breach
of covenants of good faith and fair dealing, that the
defendants have engaged in a scheme to launder money
through . . . Bruno through the construction contract,
those allegations are conclusory and supported by no
facts. The defendants have challenged those assertions
in their motion for summary judgment together with
supporting affidavits and documents. If the plaintiff has
no evidence and her supporting documents are inade-
quate, the court is justified in granting summary judg-
ment provided the defendants have met their burden
of proof. . . . The plaintiff must demonstrate that a
genuine issue of material fact exists through ‘counter
affidavits and concrete evidence.’ . . . The court finds
that the plaintiff has failed to meet that burden. . . .
Following the court’s later denials of the plaintiff’s sepa-
rate motions for reargument with respect to the court’s
summary judgment as to Whipple and Heritage Homes,
the plaintiff filed this appeal.’’ (Footnotes altered.) Id.This court dismissed the plaintiff’s appeal from the
summary judgment rendered for Heritage Homes for
lack of a final judgment due to the continuing pendency
in the trial court of the plaintiff’s claim of breach of
contract against it. Id., 498 n.1. Thereafter, this court
affirmed the summary judgment rendered for Whipple
on the plaintiff’s claims of breach of contract and breach
of the implied covenant of good faith and fair dealing
against him, but found error in the trial court’s rendering
of summary judgment for Whipple on the plaintiff’s
CUTPA claim against him. Id., 503. Accordingly, on
remand, the remaining two counts of the plaintiff’s com-
plaint—her breach of contract claim against Heritage
Homes and her CUTPA claim against Whipple—were
tried to a jury.
The presentation of evidence to the jury commenced
on February 27, 2013. Five days later, after both sides
had rested, the defendants filed written requests to
charge dated March 4, 2013, that included a proposed
instruction on the special defense of waiver to the plain-
tiff’s claim of breach of contract. The theory of waiver
set forth in the proposed instruction was that both the
plaintiff and Bruno had made oral requests for changes
to the construction contract without signed work orders
and that neither had requested billings every two weeks,
as required by the parties’ contract. The plaintiff
objected to the defendants’ proposed charge on waiver,
arguing that waiver had not been pleaded as a special
defense, and thus that she had had no notice of that
claim. In response, the defendants argued that they had
mentioned waiver in their opening statement to the jury
and had introduced evidence of waiver throughout the
trial.2 The defendants further argued that because the
plaintiff had not objected to their evidence of waiver,
she had waived her right to object to an instruction on
waiver as a special defense.
The court determined that sufficient evidence of
waiver had been presented at trial to apprise the plain-
tiff of that claim. It therefore granted the defendants
permission to amend their answer by pleading waiver
as a special defense3 and agreed to instruct the jury on
that special defense. Consistent with those rulings, the
court instructed the jury on waiver with directions to
have the jury separately answer jury interrogatories
asking whether it ‘‘f[ou]nd in favor of Lisa Bruno’’ on
her claim of breach of contract against Heritage Homes’’
and, if so, whether ‘‘the plaintiff, Lisa Bruno, waived
the breach of contract by the defendant Heritage
Homes . . . .’’
On March 8, 2013, the jury returned a verdict in favor
of Whipple on the plaintiff’s CUTPA claim against him.
It also returned a verdict in favor of Heritage Homes
on the plaintiff’s breach of contract claim against it,
expressly basing the latter verdict on its answers to
jury interrogatories that (1) Heritage Homes had
breached its contract with the plaintiff, but (2) the plain-
tiff had waived that breach.
On March 18, 2013, the plaintiff filed a motion to set
aside the verdict, claiming that the trial court erred by
instructing the jury on Heritage Homes’ special defense
of waiver because the defendants had neither pleaded
waiver as a special defense nor alleged facts supportive
of that special defense in any of its other pleadings. She
argued that the trial court’s ruling permitting Heritage
Homes to assert that special defense, without any notice
to her before the close of evidence, violated her right
not to be deprived of her property without due process
of law. She also argued that the jury’s verdict in favor
of Whipple on her CUTPA claim against him should be
set aside because it was contrary to law and to the
evidence presented at trial, particularly Whipple’s
admission in his testimony that, at Bruno’s request,
he had refused to give the plaintiff any information
concerning the construction project after Bruno’s initia-
tion of divorce proceedings against her. The trial court
summarily denied the plaintiff’s motion. On July 7, 2014,
after this appeal was filed, the trial court filed an articu-
lation as to its rationale for denying the motion to set
aside the verdict on the CUTPA claim, stating simply
that ‘‘[t]here was no reason not to accept the verdict of
the jury.’’ Additional facts will be set forth as necessary.
I
The plaintiff first claims that the court erred in deny-
ing her motion to set aside the jury verdict (1) for
Heritage Homes on her claim of breach of contract,
and (2) for Whipple on her claim of violation of CUTPA.
‘‘The standard of review governing our review of a trial
court’s denial of a motion to set aside the verdict is
well settled. The trial court possesses inherent power
to set aside a jury verdict which, in the court’s opinion,
is against the law or the evidence. . . . [The trial court]
should not set aside a verdict where it is apparent that
there was some evidence upon which the jury might
reasonably reach [its] conclusion, and should not refuse
to set it aside where the manifest injustice of the verdict
is so plain and palpable as clearly to denote that some
mistake was made by the jury in the application of legal
principles . . . . Ultimately, [t]he decision to set aside
a verdict entails the exercise of a broad legal discretion
. . . that, in the absence of clear abuse, we shall not
disturb.’’ (Internal quotation marks omitted.) Beeman
v. Stratford, 157 Conn. App. 528, 542, 116 A.3d 855(2015). With this standard in mind, we address the plain-
tiff’s first two claims of error.
A
The plaintiff first claims that the trial court erred in
denying her motion to set aside the jury’s verdict for
Heritage Homes on her breach of contract claim. Specif-
ically, she challenges the court’s ruling permitting Heri-
tage Homes to claim that she had waived her
contractual rights, allowing Heritage Homes to plead
the special defense of waiver after the close of evidence
at trial, then instructing the jury on that special defense.
In response, Heritage Homes argues, as it did before
the trial court, that the plaintiff waived her right not
to have the court adjudicate that special defense by
allowing that claim to be fully litigated at trial without
any objection by her. The plaintiff disputes this argu-
ment, insisting that she objected to the belated claim
of waiver as soon as Heritage Homes made it clear that
it wished to assert it. We agree with the plaintiff.
The following additional procedural history is rele-
vant to this claim. Upon the filing of Heritage Homes’
request to charge seeking a jury instruction on waiver,
the court heard extensive argument by the parties. The
plaintiff argued that she had not been given notice of
the claim of waiver until she received the request to
charge. Heritage Homes argued that because it had men-
tioned waiver in its opening statement to the jury and
had introduced evidence of waiver throughout the trial
without any objection by the plaintiff, the defense of
waiver had been fully litigated and, thus, pursuant to
Stratford v. A. Secondino & Son, Inc., 133 Conn. App.
737, 38 A.3d 179, cert. denied, 304 Conn. 918, 41 A.3d
305 (2012), was properly before the court.4
The trial court overruled the plaintiff’s objection to
the request to charge on waiver as follows: ‘‘[M]y recol-
lection of the evidence and testimony is that there
were—there was evidence concerning the special
defense of waiver, and it was in through witnesses that
were asked those questions.’’ Heritage Homes offered
to ‘‘take on the burden [of proving] waiver as a special
defense.’’5 The trial court agreed to allow the issue of
waiver in as a special defense so that Heritage Homes
would bear the burden of proving it and the plaintiff
would have no burden of disproving it. The court later
expounded upon its ruling as follows: ‘‘I’m going to find
in this case, similarly as in Stratford v. A. Secondino &
Son, Inc., [supra, 133 Conn. App. 737], the defendant
indicated to the court at the start of trial that the [plain-
tiff] negated through a course of conduct the language
in the contract, which required that the contractor shall
bill the owner every two weeks a sum equal to the total
of all labor, work, and materials plus 15 percent of that
total for that previous two week period, and that the
defendants. . . . That all modification and additions to
the contract shall be in writing and signed by the plain-
tiff with the amounts agreed to price—with the amount
of the agreed price. So, that the court’s going to find
in this case there was sufficient evidence or testimony
at the time of the trial to apprise . . . the plaintiff . . .
of that affirmative or special defense.
‘‘So, the court’s going to allow it, and the court’s
going to charge the jury . . . that the special defense
has been alleged by the defendant and it has to be
proven by the defendant by a fair preponderance of the
evidence, and the plaintiff has no burden to disprove
it.’’ The court thus permitted Heritage Homes to amend
its answer by pleading waiver as a special defense to
the plaintiff’s breach of contract claim6 and instructed
the jury on that special defense.7 The plaintiff claims
that the trial court erred in so ruling.
‘‘Pleadings have their place in our system of jurispru-
dence. While they are not held to the strict and artificial
standard that once prevailed, we still cling to the belief,
even in these iconoclastic days, that no orderly adminis-
tration of justice is possible without them.’’ (Internal
quotation marks omitted.) McKenna v. Delente, 123
Conn. App. 146, 156–57, 2 A.3d 38 (2010). Whether to
grant an untimely amendment to the pleadings is within
the discretion of the trial court. McLaughlin Ford, Inc.
v. Ford Motor Co., 192 Conn. 558, 564, 473 A.2d 1185(1984).
As for special defenses, our Supreme Court has stated
that ‘‘[t]he fundamental purpose of a special defense,
like other pleadings, is to apprise the court and oppos-
ing counsel of the issues to be tried, so that basic issues
are not concealed until the trial is underway.’’ (Internal
quotation marks omitted.) Almada v. Wausau Business
Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Prac-
tice Book § 10-50 provides in relevant part: ‘‘No facts
may be proved under either a general or special denial
except such as show that the plaintiff’s statements of
fact are untrue. Facts which are consistent with such
statements but show, notwithstanding, that the plaintiff
has no cause of action, must be specially alleged. . . .’’
Thus, ‘‘[i]f a party seeks to introduce evidence under a
denial which is consistent with a prima facie case, but
nevertheless would tend to destroy the cause of action,
the new matter must be affirmatively pleaded as a spe-
cial defense.’’ (Internal quotation marks omitted.)
Mitchell v. Guardian Systems, Inc., 72 Conn. App. 158,
166–67, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810
A.2d 269 (2002). ‘‘A defendant’s failure to plead a special
defense precludes the admission of evidence on the
subject. . . . It would be fundamentally unfair to allow
any defendant to await the time of trial to introduce
an unpleaded defense. Such conduct would result in
trial by ambuscade to the detriment of the opposing
party.’’ (Internal quotation marks omitted.) Jo-Ann
Stores, Inc. v. Property Operating Co., LLC, 91 Conn.
App. 179, 198–99, 880 A.2d 945 (2005).
‘‘Waiver is an intentional relinquishment or abandon-
ment of a known right or privilege. . . . [W]aiver, as a
special defense, must be specifically pleaded.’’ (Citation
omitted; internal quotation marks omitted.) Id.‘‘[W]here, however, facts are sufficiently set up in a
pleading to warrant the inference of waiver, it will be
considered though it is not expressly alleged . . . .’’
(Internal quotation marks omitted.) Stratford v. A. Sec-
ondino & Son, Inc., supra, 133 Conn. App. 745.
In Stratford v. A. Secondino & Son, Inc., supra, 133
Conn. App. 737, the case cited by the trial court in its
challenged ruling, the plaintiff argued that the trial court
erred in rendering judgment for the defendant on its
counterclaim seeking damages for nonpayment of sums
allegedly due to it under a contract after excusing the
defendant’s noncompliance, on the ground of waiver
by the plaintiff, with a condition precedent to payment
under the contract. The plaintiff argued, more particu-
larly, that the court’s finding that it had ‘‘waived the
condition precedent to payment provision was
improper because the defendant did not specially plead
waiver, and that, in any event, the court’s finding was
not supported by the evidence adduced at trial, and,
thus, was clearly erroneous.’’ Id., 744. There, as here,
waiver had not been specially pleaded by the party
asserting it at trial. The court in Stratford determined,
however, that the issue of waiver was properly consid-
ered by the trial court as a basis for its decision on the
merits because it was not only inferrable from allega-
tions in the defendant’s operative pleadings, but it was
fully litigated at trial without objection by the plaintiff.
‘‘In this instance,’’ the court in Stratford explained, ‘‘the
defendant’s second amended answer and counterclaim
contained factual allegations consistent with a claim of
waiver—namely, that the defendant continued to work
on the project despite completing its contractual obliga-
tions and not receiving payment. Furthermore, the
defendant indicated to the court at the start of trial that
the parties negated, through ‘the course of conduct,’
the language in the contract requiring . . . certificate
of payment [from the architect who was acting on behalf
of the defendant]. . . . The plaintiff failed to object
at that time, and later, made no objection when the
defendant presented evidence that the plaintiff had
sought to forgo [the defendant’s architect’s] services in
the role set forth for him under the contract. Nor did the
plaintiff object to the defendant’s treatment of waiver
throughout trial or in its posttrial brief.’’ (Footnote omit-
ted.) Id., 745–46.
The present case is readily distinguishable from
Stratford in two important ways. First, here, unlike in
Stratford, the pleadings do not ‘‘warrant the inference
of waiver.’’ Not only was waiver not pleaded as a special
defense, but no inference of waiver arose or could have
arisen from the factual allegations in any of the opera-
tive pleadings because, very simply, Heritage Homes
made no factual allegations in any of its pleadings.
Instead, it simply denied the plaintiff’s allegations of
breach of contract. It is axiomatic that a special defense
is not provable under a simple denial, because, by defini-
tion, a special defense is a claim that defeats the plain-
tiff’s cause of action without disproving it. Therefore,
because the special defense of waiver was not provable
under Heritage Homes’ denial of the plaintiff’s claim of
breach of contract, the pleading gave the plaintiff no
notice that it might attempt to assert that special
defense at trial.
Notwithstanding this pleading deficiency, Heritage
Homes argues that the plaintiff waived her right not to
litigate its unpleaded claim of waiver by failing to object
to such a claim either when defense counsel first men-
tioned waiver in his opening statement or when evi-
dence of waiver was offered during the trial. This takes
us to the second distinction between the circumstances
at issue in Stratford and those involved in this case.
As previously noted, the plaintiff in Stratford had notice
from the defendant’s pleadings of the factual allegations
upon which a claim of waiver could be based. It also
heard the defendant, through counsel, explain that
claim of waiver and give notice of its intent to rely upon
it in a lengthy colloquy with the court at the start of trial.
Notwithstanding such clear notice of the defendant’s
claim, the plaintiff made no objection to the court’s
consideration of it at any time, from the moment coun-
sel first mentioned it in open court, through the defen-
dant’s presentation of evidence directly supporting that
claim, to its ultimate submission of posttrial briefs and
final argument addressing that issue. It was not until
after the trial court issued its final decision relying upon
the defendant’s claim of waiver that the plaintiff in
Stratford objected to the court’s consideration of that
claim. That is certainly not what happened in this case.
Here, it is true that the defense counsel used the term
waiver in the course of his opening statement. On that
score, however, the opening statement lacked any clear
connection to the plaintiff’s claim of breach of contract,
for it referenced the parties’ dealings before, not after,
Bruno filed for divorce. The plaintiff’s claim of breach
of contract, by contrast, was based exclusively upon
Heritage Homes’ conduct toward the plaintiff, through
the actions of Whipple after Bruno initiated divorce
proceedings against her. Although prior to that time,
the plaintiff and Bruno had handled all of their dealings
with the defendants jointly, with both attending con-
struction meetings, discussing proposed changes in
plans and approving additional expenditures on the
project together, the plaintiff claims that after Bruno’s
commencement of divorce proceedings against her, the
defendants cut her completely out of the loop about
the ongoing home construction project and refused to
deal with her except through Bruno. It was in this later
time frame, she claims, when the defendants were refus-
ing to deal with her directly, that expenditures on the
project skyrocketed without her knowledge or assent,
thereby depleting the marital estate to her great finan-
cial loss.
Against this background, just as nothing in Heritage
Homes’ pleadings raised any inference of waiver by the
plaintiff of the contractual rights she claimed to have
been violated by its conduct toward her after Bruno
filed for divorce, nothing in counsel’s opening statement
raised such an inference, either. At no point did counsel
suggest that the plaintiff had assented in that postfiling
period to have change orders approved orally, without
her knowledge or approval. At no point, moreover, did
counsel suggest that the plaintiff had assented in that
period to not being advised of all ongoing expenditures
on the project, as required by the contractual provision
calling for billing for such expenditures on a biweekly
basis. Here, then, unlike in Stratford, nothing in either
Heritage Homes’ pleadings or its first mention of waiver
in counsel’s opening statement gave the plaintiff any
forewarning that a special defense of waiver might be
asserted as to the conduct she claimed to have violated
her contractual rights after Bruno filed for divorce.
For similar reasons, evidence presented by the defen-
dants as to the plaintiff’s and Bruno’s dealings with
Whipple before Bruno filed for divorce did not put her
on notice that her breach of contract claim, which was
based exclusively upon the defendants’ postfiling con-
duct toward her, might later be met, on the basis of her
prefiling behavior, with an unpleaded special defense of
waiver. Heritage Homes, to reiterate, had flatly denied
the plaintiff’s claim of breach of contract based upon
its refusal to deal with her directly after Bruno filed for
divorce. She thus had no reason to consider any of its
evidence concerning their earlier dealings as the basis
for mounting a waiver defense, or thus to object to the
admission of any such evidence. Unlike the plaintiff in
Stratford, which had clearly been apprised of the fac-
tual basis for and the defendant’s plan to rely on its
unpleaded claim of waiver, before evidence supporting
that claim was presented at trial, the plaintiff here had
no basis for objecting to testimony as to her predivorce
dealings with Heritage Homes, which at most appeared
to be historical background for her later-arising breach
of contract claim.
Finally, at the close of all the evidence, when Heritage
Homes first submitted its requests to charge and for-
mally sought the court’s permission to assert the special
defense of waiver, the plaintiff behaved very differently
than her counterpart did in Stratford by objecting imme-
diately and with great energy to Heritage Homes’
belated claim. Whereas the plaintiff in Stratford not
only briefed the ultimate issue of waiver in its final
posttrial brief but argued it on the merits in its final
argument, all without objection of any kind, the plaintiff
in this case objected strenuously and repeatedly to Heri-
tage Homes’ thirteenth-hour special defense, claiming
that waiver should have been specially pleaded and that
its interposition after the close of all the evidence at
trial violated her right not to be deprived of her property
without due process of law. Therefore, unlike in Strat-
ford, it cannot be found here that Heritage Homes’
unpleaded defense of waiver was fully litigated without
objection by the plaintiff.
In light of the plaintiff’s strong opposition to the
belated amendment of Heritage Homes’ special
defenses to add the special defense of waiver, its only
remaining argument is that it gave such clear notice to
the plaintiff of its intent to rely upon that defense in its
opening statement and its subsequent offers of relevant
evidence at trial that the plaintiff’s failure to object
seasonably to such a defense itself constituted a waiver
of its right to do so. That, of course, is not the standard
announced in Stratford, where the exception to the rule
requiring the special pleading of extrinsic matters that
defeat an opponent’s claim without contradicting it is
reserved for situations in which the unpleaded claim
is fully litigated without objection at trial. Manifestly,
that is not what occurred in this case. Even, moreover,
if it were possible to base a finding of waiver of the
right to object to an unpleaded special defense based
upon the complaining party’s tardiness in raising an
objection to that special defense after it was substan-
tially raised by evidence presented at trial, that is not
what happened here, either. For the reasons previously
stated, it did not become obvious that Heritage Homes
was seeking to rely upon that special defense until
the very moment when it requested that the jury be
charged thereon.
On the basis of the foregoing, we conclude that the
trial court abused its discretion by permitting Heritage
Homes to raise the special defense of waiver for the
first time after the close of evidence at trial, as it had
not been specially pleaded, the pleadings did not allege
any facts supporting an inference of waiver, and the
claim that the plaintiff knowingly relinquished her con-
tractual rights was not fully litigated at trial without
objection by the plaintiff.8 Accordingly, we further con-
clude that the court should have set aside the jury’s
verdict as to waiver.9
We must now address the scope of the remand of this
case to the trial court. Specifically, we must determine
whether the case should be remanded for a hearing in
damages on the plaintiff’s breach of contract claim or
whether the jury’s verdict on her breach of contract
claim also must be set aside and remanded for a retrial
on that issue. In finding in favor of the plaintiff on
her breach of contract claim, the jury essentially has
determined liability in her favor against Heritage Homes
and the remaining determination is damages resulting
from that breach. The plaintiff requests that the case
be remanded for a hearing in damages on the jury’s
verdict in her favor on her breach of contract claim. The
defendants have expressed no position on the plaintiff’s
request for relief and simply asked that the judgment
be affirmed.
Our Supreme Court has held that, ‘‘As a rule the issues
[at trial] are interwoven, and may not be separated
without injustice to one of the parties,’’ and ‘‘[a]n order
restricting the issues [of a new trial] is the exception,
not the rule.’’ (Internal quotation marks omitted.) Fazio
v. Brown, 209 Conn. 450, 455–56, 551 A.2d 1227 (1988).
Nevertheless, a retrial may be limited to a specific issue
or issues, ‘‘[w]here the error as to one issue or issues
is separable from the general issues . . . [and] such
. . . limitation does not work injustice to the other
issues or the case as a whole.’’ (Internal quotation marks
omitted.) Id., 455.
Here, because the improper verdict on the special
defense of waiver is wholly separable from the verdict
in favor of the plaintiff on her breach of contract claim,
we conclude that limiting the remand to a hearing in
damages on the breach of contract verdict does not
work injustice in this case.10
B
The plaintiff also claims that the court should have
set aside the jury’s verdict in favor of Whipple on her
CUTPA claim. We disagree.
‘‘[General Statutes §] 42-110b (a) provides that [n]o
person shall engage in unfair methods of competition
and unfair or deceptive acts or practices in the conduct
of any trade or commerce. . . . [I]n determining
whether a practice violates CUTPA we have adopted
the criteria set out in the cigarette rule by the [F]ederal
[T]rade [C]ommission for determining when a practice
is unfair: (1) [w]hether the practice, without necessarily
having been previously considered unlawful, offends
public policy as it has been established by statutes, the
common law, or otherwise—in other words, it is within
at least the penumbra of some common law, statutory,
or other established concept of unfairness; (2) whether
it is immoral, unethical, oppressive, or unscrupulous;
(3) whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . . . All three
criteria do not need to be satisfied to support a finding
of unfairness. . . . In order to enforce this prohibition,
CUTPA provides a private cause of action to [a]ny per-
son who suffers any ascertainable loss of money . . .
as a result of the use or employment of a [prohibited]
method, act or practice . . . .’’ (Internal quotation
marks omitted.) Landmark Investment Group, LLC v.
CALCO Construction & Development Co., 318 Conn.
847, 880–81, A.3d (2015). ‘‘[W]hether a practice
is unfair and thus violates CUTPA is an issue of fact,
to which we must afford our traditional deference.’’
(Internal quotation marks omitted.) Id., 881.
The plaintiff argued to the jury that Whipple violated
CUTPA by ‘‘intentionally concealing and withholding
information from [her] in collusion with Stephen
Bruno.’’ As to her CUTPA claim against Whipple, the
court instructed the jury as follows: ‘‘The plaintiff has
. . . alleged in her complaint that . . . Whipple
engaged in unfair and deceptive acts and practices in
trade and commerce in violation of . . . General Stat-
utes . . . [§] 42-110a . . . . That’s called CUTPA. Spe-
cifically, she alleges that . . . Whipple conspired with
Heritage Homes Construction Company, LLC, to not
perform all of the construction work they claimed to
have performed and conspired with Stephen Bruno, the
plaintiff’s former husband, to launder . . . Mr. Bruno’s
cash under the guise of work paid for and thereby
depriving the plaintiff of fair, just and reasonable ali-
mony and division of assets in connection with the
plaintiff’s divorce proceedings . . . . [I]n the scope of
the CUTPA charge against . . . Whipple there is the
additional allegation against him that he failed to pro-
vide the bills every two weeks as per a contract, that
he failed to inform the plaintiff of change orders and
work that was done, which was not contracted for by
the plaintiff, and that he failed to inform the plaintiff
of additional cost of work which was done but was not
authorized by the plaintiff.’’
Although we cannot speculate as to which element
of her CUTPA claim the jury found that the plaintiff
had failed to prove—that Whipple’s conduct violated
CUTPA or that she sustained an ascertainable loss—
she argues on appeal that she proved both elements.
If the jury reasonably could have found that the plaintiff
failed to prove either of those two essential elements
of CUTPA, her claim on appeal must fail.
The plaintiff contends that she proved both a viola-
tion of CUTPA and ascertainable damages arising from
that violation by virtue of the jury’s verdict that Heritage
Homes had violated her contractual rights. A simple
breach of contract, however, does not necessarily con-
stitute a violation of CUTPA. Lydall, Inc. v. Rusch-
meyer, 282 Conn. 209, 247–48, 919 A.2d 421 (2007).
The plaintiff claims that ‘‘the record evidence clearly
discloses that the plaintiff plead[ed] and proved a collu-
sive arrangement between Whipple and Bruno which
was premised on fraudulent concealment and nondis-
closure of project financial information against the
plaintiff in order to prevent the plaintiff from making
a full investigation and taking action to prevent any
further unilateral spending/dissipation of marital
funds.’’ She argues that ‘‘[d]uring the civil trial, Whipple
came clean and testified under oath to both the exis-
tence of his collusive agreement with Bruno as well
as his fraudulent conduct to conceal material project
information from [her] pursuant to Bruno’s instructions
and plan because ‘he was the guy paying us.’ ’’ The
plaintiff further argues that, ‘‘Whipple confessed to
aggravating and unscrupulous conduct that was unlaw-
ful, unethical, wilful, reckless, deceptive and unfair by
its very nature and definition.’’ The plaintiff further
argues that she proved that she suffered an ascertain-
able loss as a result of Whipple’s allegedly unfair
trade practice.11
Although Whipple admitted at trial that he filtered
the project information through Bruno, the jury, as the
finder of fact, was free to accept or reject the plaintiff’s
argument that he did so in collusion with Bruno with
the intent to deprive the plaintiff of her fair share of
the marital assets. The jury also was within its province
to determine whether Whipple’s decision to deal only
with Bruno was unscrupulous, wilful, reckless and
deceptive. Through her arguments on appeal, the plain-
tiff asks this court to sit as a seventh juror and to pass
our judgment on the nature of the relationship between
Whipple and Bruno. It is well settled, however, that that
function is not ours to perform. See Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 381,
119 A.3d 462 (2015). We thus cannot conclude that the
court abused its discretion in denying the plaintiff’s
motion to set aside the verdict as to her CUTPA claim.12
II
The plaintiff also claims that the court erred in grant-
ing summary judgment in favor of Heritage Homes on
her claims of breach of the implied covenant of good
faith and fair dealing and violation of CUTPA.13 The
plaintiff correctly argues that the trial court’s granting
of summary judgment for Heritage Homes on her claim
of breach of the implied covenant of good faith and fair
dealing against Whipple was premised on the lack of a
contractual relationship between her and Whipple, and
that such an argument cannot, in itself, form a proper
basis for the trial court’s granting of summary judgment
on her parallel claim against Heritage Homes because
she did have a contractual relationship with Heritage
Homes, upon which such a claim properly could have
been premised. The trial court, however, also based its
summary judgment on breach of the implied covenant
of good faith and fair dealing, and violation of CUTPA,
against Heritage Homes on its determination that the
plaintiff’s allegations ‘‘that the defendants have engaged
in a scheme to launder money for Stephen Bruno
through the construction contract,’’ were ‘‘conclusory
and supported by no facts.’’ On that score, the plaintiff
argues that because the defendants never established
a prima facie case for summary judgment, the burden
never shifted to her to present concrete evidence to
demonstrate the existence of a genuine issue of material
fact.14 We disagree.
‘‘The standard by which we review a trial court’s
decision to grant a motion for summary judgment is
well established. Summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . Although the party seeking summary judg-
ment has the burden of showing the nonexistence of
any material fact [however] a party opposing summary
judgment must substantiate its adverse claim by show-
ing that there is a genuine issue of material fact together
with the evidence disclosing the existence of such an
issue. . . . It is not enough . . . for the opposing
party merely to assert the existence of such a disputed
issue. . . . Mere assertions of fact, whether contained
in a complaint or in a brief, are insufficient to establish
the existence of a material fact and, therefore, cannot
refute evidence properly presented to the court [in sup-
port of a motion for summary judgment]. . . .
‘‘As a general rule, then, [w]hen a motion for summary
judgment is filed and supported by affidavits and other
documents, an adverse party, by affidavit or as other-
wise provided by . . . [the rules of practice], must set
forth specific facts showing that there is a genuine issue
for trial, and if he does not so respond, summary judg-
ment shall be entered against him. . . . Requiring the
nonmovant to produce such evidence does not shift the
burden of proof. Rather, it ensures that the nonmovant
has not raised a specious issue for the sole purpose of
forcing the case to trial.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) Squeo v.
Norwalk Hospital Assn., 316 Conn. 558, 593–94, 113
A.3d 932 (2015).
More specifically, ‘‘[t]he party opposing a motion for
summary judgment must present evidence that demon-
strates the existence of some disputed factual issue
. . . . The movant has the burden of showing the
nonexistence of such issues but the evidence thus pre-
sented, if otherwise sufficient, is not rebutted by the
bald statement that an issue of fact does exist. . . . To
oppose a motion for summary judgment successfully,
the nonmovant must recite specific facts . . . which
contradict those stated in the movant’s affidavits and
documents. . . . The opposing party to a motion for
summary judgment must substantiate its adverse claim
by showing that there is a genuine issue of material
fact together with the evidence disclosing the existence
of such an issue. . . . The existence of the genuine
issue of material fact must be demonstrated by counter-
affidavits and concrete evidence. . . . Our review of
the trial court’s decision to grant a motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Brusby v. Metropolitan District, 160 Conn. App.
638, 646, A.3d (2015).
In its memorandum of law in support of summary
judgment, the defendants argued, ‘‘As stated in the affi-
davit of Mr. Reed Whipple, the manager of Heritage
Homes, there was no conspiracy with Mr. Bruno and
no cash was ‘laundered’ as alleged. The plaintiff has no
evidence to support such a damnable claim, which is
categorically denied by the defendants. In sum, Heritage
Homes entered into a contract to build a mansion at
111 Spring Valley Road, Ridgefield, Connecticut. The
contract had no fixed price; rather, it was based on
work, labor and materials experienced plus a set per-
centage of fifteen percent (15%) for management of the
project. Heritage Homes completed construction of the
home and obtained a Certificate of Occupancy for the
home on or about July 28, 2006. Heritage Homes submit-
ted invoices from all the subcontractors who performed
work on the project, which totaled approximately
$4,850,000. Heritage Homes charged the agreed upon
fifteen percent (15%) management fee of $750,000 for
a total of approximately $5,600,000. Mr. Bruno paid for
the completed work and was satisfied with the perfor-
mance of Heritage Homes. At no time did Reed Whipple
or Heritage Homes return any payments to Mr. Bruno.’’
In support of summary judgment, the defendants sub-
mitted, inter alia, an affidavit in which Whipple averred,
inter alia, as follows: ‘‘Mr. Bruno paid Heritage Homes
all money owed pursuant to the [c]onstruction [c]on-
tract. Neither I nor Heritage Homes ever returned any
money to Mr. Bruno, or ‘laundered’ money as alleged
by the plaintiff . . . in her complaint.’’
Upon the submission of Whipple’s sworn affidavit
that neither he nor Heritage Homes had colluded with
Bruno to launder his cash through the construction
project, with its express averment that no money paid
for the construction of the home was ever returned to
Bruno, the plaintiff needed to submit concrete evidence
to demonstrate a genuine issue of material fact as to
those claims in order to defeat Heritage Homes’ motion
for summary judgment. She failed to do so. She provided
no evidence whatsoever that Heritage Homes ever
returned any of the money paid by Bruno to him, much
less that it did so in a scheme to launder that money
through the project to keep it from her. Simply put,
the fact that Heritage Homes may have breached the
construction contract by choosing to deal only with
Bruno because he was the party who was paying for the
work performed does not, in itself, show that Heritage
Homes acted in bad faith or that it colluded with Bruno
to launder his cash through the construction project.
We thus agree with the trial court’s determination that
the plaintiff’s claim for breach of the implied covenant
of good faith and fair dealing and violation of CUTPA
consisted only of conclusory allegations and thus that
Heritage Homes was entitled to judgment on those
claims as a matter of law.
The judgment is reversed only as to the jury’s verdict
on the special defense of waiver and the case is
remanded for a hearing in damages on the jury’s verdict
in favor of the plaintiff on her breach of contract claim.
The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The odd numbered counts allege claims against Whipple. Each even
numbered count parrots the allegations of the odd numbered count that
immediately precedes it, but asserts a claim against Heritage Homes.
2
In its opening remarks to the jury, counsel for Heritage Homes mentioned
‘‘waiver’’ one time. During its opening remarks, the defendants explained
to the jury, inter alia: ‘‘Never did Mr. or Mrs. Bruno say, hey, where’s our
bill? Hey, where’s our bill every two weeks? And when you’re involved in
a contract, as the judge will instruct you on the law later, is an element
of waiver.
‘‘You can’t say after the fact, oh, you’ve breached the contract when month
after month after month this was the conduct which was acquiesced in and
which was approved by the people who you were dealing with. Bills went
out. Bills were paid.
‘‘No one even talked about the one year. Oh, we’re going to finish this
contract in one year. On October 28 of 2005 when—which was a month—
more than a month before the divorce, no one—Ms. Bruno didn’t say, hey,
how come you’re not done because she knew that they didn’t even have
the plans finished.
‘‘You’re going to see plans dated well after the date of divorce, and you’re
going to hear testimony from Mr. [Jeffrey] Celestino, the project manager
of Heritage Homes, and you’re going to hear testimony from Mr. [Jay] Mose,
[the architect], that we were designing as they were building, and Mr. Bruno
approved everything.
‘‘You’re also going to hear testimony that Ms. Bruno and Mr. Bruno, before
the divorce was filed, approved everything, and in many respects the house
that was built was approved and was in motion prior to the divorce
being filed.
‘‘The evidence will then show that Ms. Bruno never said to Mr. Whipple,
Mr. Celestino, who was on the property almost every day, stop what you’re
doing. I don’t approve it. She never did.’’
3
The defendants filed that amended pleading on March 15, 2013.
4
During argument on the issue of waiver, however, Heritage Homes failed
to direct the court to any specific evidence that the plaintiff knowingly
relinquished her rights under the contract. It argued to the trial court: ‘‘My
opening statement when I—when I referenced the fact that she waived
those provisions of the contract. I stated in my opening statement and then
during the cross of the plaintiff and during the direct of other witnesses I
specifically asked them, did you bill every two weeks; no. Did the plaintiff
ever complain; no. Did the plaintiff ever come and ask for a billing for every
two weeks; no. So, it was—it was mentioned in the opening statement.
There was no objection to it at that point, and there was—all the evidence
went in without objection . . . .’’ The defendant continued: ‘‘I don’t think
I can even ask the question did she waive her right. That’s a legal conclusion.
I—I asked the questions to the plaintiff. I stated waiver in my opening
argument. I asked the question of the plaintiff. I asked the question of almost
every witness on the defense side without objection, and without objection
after I stated in my opening argument, I might add, Your Honor.’’
5
We find this ‘‘offer’’ puzzling since it is a bedrock principle of law that
a defendant bears the burden of proving its own special defense.
6
The defendants amended their answer on March 15, 2013, one week
following the jury’s verdict, to add the following special defense as to the
breach of contract claim:
‘‘If the plaintiff has proven a breach of contract, any alleged breach was
waived by the plaintiff by the following acts or omissions of the plaintiff:
‘‘A. The plaintiff did not demand biweekly billing after an established
pattern of non-biweekly billing.
‘‘B. The plaintiff did not object and/or acquiesced in verbal change orders
concerning the scope of work under the contract.
‘‘C. The plaintiff made oral directions to change the scope of work under
the contract.’’
7
The court instructed the jury as follows: ‘‘Now, as regards to breach of
contract as to Heritage Homes Construction Company, LLC, in this case
the plaintiff, Lisa Bruno, has alleged that the defendant, Heritage Homes
Construction Company, LLC, breached its October 28, 2004 contract with
her to construct a custom built home on her premises located at 111 Spring
Valley Road in the town of Ridgefield for a total price of $2,565,550.
‘‘Specifically, the plaintiff alleges (1) that the defendant Heritage Homes
failed to provide her with bills on a biweekly basis, and (2) that said defendant
failed to provide her with written change orders regarding modifications
and additions to the contract and the agreed price for her signature.
‘‘The defendant Heritage Homes has admitted that the contract required
them to provide biweekly reports to the plaintiff but denied that it failed
to provide such records or bills and denied that change orders were not
provided to the defendant.’’
***
‘‘The defendant in this case, in addition to denying the claims that were
made by the plaintiff, has affirmatively asserted [a] certain special defense
to the plaintiff’s claims. The special defense, which the defendant alleges,
is that the plaintiff waived her right to complain that the defendant breached
the contract because she did not complain when she did not receive bills
every two weeks or to complain about not being given change orders for
her signature.
‘‘The plaintiff does not have the burden to disprove the allegations in that
special defense. Rather, each party has the burden of proving each party’s
own claim and no burden to disprove the claims of that party’s adversary.’’
***
‘‘As far as the breach of the contract, if you conclude that there was a
breach of contract and that such breach was material, you must also consider
whether the plaintiff waived any such breach. Waiver is the intentional
relinquishment or abandonment of a known right. Contract right[s] such as
claims for breach of contract may be waived. Such a waiver may be estab-
lished through the words or conduct of the other party. That’s a question
of fact for you to decide, whether or not that there was a waiver, in fact.’’
8
In light of this conclusion, we need not address the plaintiff’s additional
claim that the trial court’s ruling violated her constitutional rights.
9
The plaintiff also claims that a certain provision of the construction
contract at issue in this case barred the defense of waiver. Because this
claim was raised by the plaintiff for the first time in her reply brief to this
court, we decline to address it. See 2 National Place, LLC v. Reiner, 152
Conn. App. 544, 548 n.4, 99 A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d
1112 (2014).
10
Because the jury’s determination that Heritage Homes had breached
the contract was returned as a general verdict, there is a presumption that
the jury found in favor of the plaintiff on both of her claims of breach.
Lukas v. McCoy, 157 Conn. App. 384, 388, 116 A.3d 827 (2015). We recognize
that Heritage Homes could not yet have appealed from the jury’s determina-
tion that it had breached the contract because it was not aggrieved. If the
jury awards damages to the plaintiff on the basis of the breach of Heritage
Homes, it will then be aggrieved and can properly appeal from the jury’s
determination of liability at that time.
11
In support of her argument that she proved an ascertainable loss, the
plaintiff cites to her trial testimony, as follows: ‘‘The house sold for 3.7
million in 2011. There was a 4 million dollar loss of equity. The contract
had a price of 2.6 million dollars. The final amount paid to Heritage Homes
was 5.6 million dollars. There’s not a single change order that I ever signed
authorizing an expenditure above the 2.65 million dollars. The house sold
at a substantial loss. The amount of money spent at the time of the divorce
was only 1.4 million. Given the chance, I would have completed the house
for another million dollars had I been [given] the opportunity to do so. I
never would have agreed or allowed for 4.2 million to be spent on a house
I wasn’t going to live in and that was going to be ordered to be sold.’’
12
Because we conclude that the jury reasonably could have rejected the
plaintiff’s claim that Whipple engaged in conduct that violated CUTPA, we
need not additionally address her claim that she suffered an ascertain-
able loss.
13
Although the plaintiff earlier appealed the trial court’s summary judg-
ment in favor of Heritage Homes, that appeal was dismissed for lack of a
final judgment due to the surviving breach of contract count that was then
remaining against Heritage Homes. There no longer being a final judgment
problem, the plaintiff’s claim in this regard is properly before us.
14
We note that the plaintiff’s earlier appeal from, and our reversal of, the
trial court’s granting of summary judgment as to her CUTPA claim against
Whipple was based upon the sufficiency of the pleadings to state a CUTPA
claim, not an examination of the sufficiency of the plaintiff’s evidence to
raise a genuine issue of material fact in support of such a claim in the face
of the Whipple’s averments to the contrary. See Bruno v. Whipple, supra,
138 Conn. App. 514.