NRT New England, LLC v. Longo ( 2021 )

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NRT NEW ENGLAND, LLC v. SALVATORE
R. LONGO ET AL.
(AC 43285)
Bright, C. J., and Cradle and Suarez, Js.
Syllabus
The plaintiff, a commercial property broker, sought to recover damages
from the defendants for, inter alia, breach of contract in connection
with the defendants’ failure to pay a real estate commission. The defen-
dants listed certain property with the plaintiff through its affiliated
licensed sales associates, F and P, and executed an exclusive right to
sell agreement for a term of one year. Although the defendants entered
into a purchase and sale agreement with a buyer, E Co., during the term
of the listing agreement, that deal was cancelled. As such, the property
was not sold when the listing agreement expired, and the defendants
then entered into an exclusive listing agreement with L, one of the
defendants who held a real estate broker’s license. Eventually, the defen-
dants and E Co. closed on the sale of the property, and the plaintiff
brought an action alleging breach of contract and violations of the
Connecticut Unfair Trade Practices Act (§ 42-110a et seq.), seeking to
recover its commission pursuant to the listing agreement. Following a
trial to the court, the trial court found for the plaintiff, and the defendants
appealed to this court. Held:
1. The trial court properly refused to dismiss the plaintiff’s action for lack of
standing, the court having jurisdiction to consider the plaintiff’s claims:
contrary to the defendants’ contention, the plaintiff’s failure to strictly
comply with the licensing requirements of the statute (§ 20-325a) govern-
ing actions to recover real estate commissions did not implicate the
court’s subject matter jurisdiction, as certain amendments to § 20-325a,
enacted after the Supreme Court’s decision in McCutcheon & Burr, Inc.
v. Berman (218 Conn. 512), permit recovery of a commission upon proof
of substantial compliance with the requirements of the statute and that
denial of a comission would be inequitable.
2. The trial court improperly concluded that the defendants had breached
the listing agreement, the court having made a clearly erroneous finding
on which it based its conclusion: the trial court found that L caused
the plaintiff to lose the opportunity to negotiate with E Co. during the
final full month of the listing agreement, but, contrary to the court’s
finding, the uncontradicted evidence showed that P, on behalf of the
plaintiff, was an active participant and took the lead in negotiations
through the end of the term of the listing agreement, and this court was
left with the definite and firm conviction that the court’s finding that
the plaintiff was taken out of the negotiations during the last month of
the listing agreement was a mistake; moreover, the court’s memorandum
of decision made clear that the court’s clearly erroneous factual finding
was the basis for its conclusion that the defendants breached the listing
agreement and caused the plaintiff to suffer damages, such that the
court’s clearly erroneous finding was not harmless.
3. The trial court improperly concluded that the defendants violated CUTPA,
as the court’s conclusion that the actions of the defendants were per-
formed in the conduct of trade or commerce for purposes of that statu-
tory scheme was legally incorrect: the court found that L, using his real
estate broker’s license, inserted himself as the broker of record on the
day after the listing agreement expired and, thus, engaged in trade or
commerce, but all the acts alleged in the complaint and that the court
determined to be CUTPA violations occurred before that date, and,
consequently, at the time that L and the other defendants engaged in
conduct that the court described as unscrupulous, immoral, unfair and
deceptive, none of them did so while engaged in trade or commerce
for purposes of CUTPA; moreover, the plaintiff’s reliance on Larsen
Chelsey Realty Co. v. Larsen (232 Conn. 480) was misplaced, because,
unlike the situation in that case in which both the defendant and the
plaintiff were acting as real estate brokers, in this case, at least during
the term of the listing agreement, the defendants were acting as owners
of the property and did not need a broker’s license to discuss the sale
of their property with any prospective buyers, and, although the terms
of the listing agreement may have obligated them to refer any such
inquiries to the plaintiff, their failure to do so would not have consituted
their participation in trade or commerce for purposes of CUTPA.
Argued January 11—officially released September 21, 2021
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Fairfield, where the
defendants Anthony Longo and The Higgins Group, Inc.,
were defaulted for failure to appear; thereafter, the
matter was tried to the court, Hon. Alfred J. Jennings,
judge trial referee; judgment for the plaintiff, from
which the named defendant et al. appealed to this court.
Reversed; judgment directed.
James H. Lee, for the appellants (named defendant
et al.).
Thomas E. Crosby, for the appellee (plaintiff).
Opinion
BRIGHT, C. J. The defendants1 Salvatore R. Longo,
Anthony Longo, Salvatore Longo & Sons, LLC, and the
estate of Salvatore Longo, Jr., appeal from the judgment
of the trial court, rendered following a trial to the court,
in favor of the plaintiff, NRT New England, LLC, doing
business as Coldwell Banker Residential Brokerage,
relating to the sale of commercial property owned by
the defendants. On appeal, the defendants claim that
the court erred in (1) concluding that the plaintiff had
standing to bring an action for a real estate commission,
(2) finding that the defendants breached the operative
exclusive right to sell listing agreement, and (3) con-
cluding that the defendants had violated the Connecti-
cut Unfair Trade Practices Act (CUTPA), General Stat-
utes § 42-110a et seq. Although we disagree with the
defendants’ standing claim, we agree with their second
and third claims. Accordingly, we reverse the judgment
of the trial court.
The following procedural history, factual allegations
from the operative amended complaint, and certain
facts discernible from the record are relevant to this
appeal. The defendants were the owners of several par-
cels of real property located in Stamford that the parties
refer to collectively as ‘‘220 West Avenue,’’ which, in
addition to 220 West Avenue, includes 0 West Avenue,
0-A Piave Street, 0-B Piave Street, 18 Piave Street, and
143 Leon Place (property). On October 31, 2013, the
defendants listed the property for sale with the plaintiff
at an asking price of $3,799,000. In connection with the
listing, the defendants executed an exclusive right to
sell agreement (listing agreement) for the property in
which the defendants hired the plaintiff and its affiliated
licensed sales associates, Kelly Feda and Joseph Porri-
celli, to procure a buyer for the property.2 The listing
agreement was for a term of one year and expired on
October 31, 2014.
Pursuant to the listing agreement, the defendants
agreed that during the term of the listing agreement,
the plaintiff would have the sole and exclusive right to
list, market, sell and/or rent the property for the price,
terms, and conditions set forth therein. The defendants
agreed to pay the plaintiff 5 percent of the gross sale
price of the property as a commission if, during the
term of the listing agreement, (1) the plaintiff procured
a buyer who was ready, willing and able to buy the
property or any part thereof, even if the defendants
refused to accept such an offer for any reason, or (2)
the property or any part thereof, was sold, conveyed
or became subject to an agreement to purchase or
option to purchase, through the efforts of anyone,
including the defendants, to anyone, including a co-
owner of the property. In addition, the plaintiff would
receive its 5 percent commission if the property or any
part thereof, was sold, conveyed or became subject to
an agreement to purchase or option to purchase within
180 days after the term of the listing agreement to any-
one who was introduced to the property prior to the
expiration of the term of the listing agreement, but only
if the defendants did not owe a commission to another
broker arising out of a subsequent listing agreement.
On or about August 3, 2014, during the term of the
listing agreement, the defendants entered into a pur-
chase and sale agreement with Empire Residential, LLC
(Empire), in which Empire agreed to purchase the prop-
erty from the defendants for $2,850,000. The Higgins
Group, Inc. (The Higgins Group), a Connecticut corpo-
ration, and its affiliated real estate salesperson, Mihaela
Kolich, represented Empire as its buyer’s agency and
agent, respectively, in the purchase transaction. The
purchase and sale agreement identified Feda and Porri-
celli as the defendants’ brokers, and stated that they
and Kolich were the brokers who negotiated the sale of
the property. Empire eventually cancelled the August,
2014 purchase and sale agreement when a discrepancy
arose as to the acreage the defendants would convey.
As a result, the property had not been sold when the
listing agreement expired on October 31, 2014.
On November 1, 2014, the defendants entered into
an exclusive listing agreement with ‘‘Salvatore R. Longo,
Broker’’ to sell the property. The agreement ran from
November 1, 2014, to November 1, 2015, and set a listing
price of $3,200,000. On or about January 23, 2015, the
defendants entered into a second purchase and sale
agreement to sell the property to Empire, this time at
a price of $2,760,000.
In June, 2015, pursuant to General Statutes § 20-325a,
the plaintiff recorded a notice of and claim for a broker’s
lien for its commission against the defendants and the
property in the Stamford land records. On March 24,
2016, the plaintiff, the defendants, The Higgins Group,
and the defendants’ attorney, Mark F. Katz, entered into
an escrow agreement in which the plaintiff agreed to
release its broker’s lien in order to permit Empire to
purchase the property from the defendants. Under the
escrow agreement, Attorney Katz would hold $138,000,
the plaintiff’s claimed commission from the sale, in
escrow. The agreement further provided that, after the
closing, any one of the parties could file a lawsuit to
obtain a determination with respect to the proper dispo-
sition of the funds in escrow and to resolve all of the
plaintiff’s claims to the commission. On the same day,
the defendants closed on the sale of the property to
Empire, and Empire paid the defendants $2,760,000 for
the property. In December, 2016, the plaintiff brought
this action seeking to recover its commission pursuant
to the listing agreement.
In May, 2017, the plaintiff filed a two count amended
complaint alleging breach of contract and violations of
CUTPA. In its breach of contract claim, the plaintiff
alleged that it had performed all of its obligations under
the listing agreement and that it is due a commission
from the defendants in the amount for $138,000. In its
CUTPA claim, the plaintiff alleged that the defendants
were engaged in the conduct of trade or commerce,
which included the sale and development of the prop-
erty, and that they had engaged in unfair and deceptive
acts or practices by engaging in unethical, immoral,
illegal, and unscrupulous conduct. In its request for
relief, the plaintiff sought, inter alia, compensatory dam-
ages, punitive damages, and attorney’s fees. The defen-
dants filed an answer, special defenses, and a counter-
claim in which they alleged claims of misrepresentation,
forgery, fraud, and violations of CUTPA.3
A trial to the court was held over the course of two
days on September 11 and 12, 2018. On December 12,
2018, the parties filed posttrial briefs. In addition to
arguing that the plaintiff had failed to prove any breach
of the listing agreement, the defendants claimed in their
brief, pursuant to § 20-325a (a), that the plaintiff was
not entitled to a commission because it failed to prove
that, at the time it rendered the services on which its
claim was based, it was properly licensed, pursuant to
General Statutes § 20-312,4 to provide such services.
The defendants argued that, based on this failure, the
plaintiff lacked standing to bring this action, and, conse-
quently, the court lacked subject matter jurisdiction
over the case and should dismiss it.
In April, 2019, the court issued its memorandum of
decision ruling in favor of the plaintiff. In its decision,
the court found that there was undisputed evidence
that the plaintiff was licensed, in accordance with §§ 20-
312 and 20-325a. The court then examined the plaintiff’s
breach of contract claim and concluded that the plaintiff
had failed to prove its claim for a commission pursuant
to the pleaded provisions of the listing agreement.5 The
court found, however, that Salvatore R. Longo (Longo)
had instructed Empire to cease all communication with
the plaintiff and to negotiate solely with him. The court
held that Longo’s directive to Empire constituted a
breach of the listing agreement because it caused the
plaintiff to lose any opportunity to participate in the
effort to negotiate the sale to Empire during the final
month of the exclusive listing agreement with the plain-
tiff. Last, the court held that Longo’s instruction to
Empire constituted a violation of CUTPA, finding that
Longo’s directive to Empire was preceded by misrepre-
sentations or ‘‘nonrepresentations’’ as to the true own-
ership status of the property, the interfamily litigation
background, and a mortgage on the property that led to
a foreclosure case and judgment during the negotiations
with Empire. The court held that these actions consti-
tuted violations of CUTPA and awarded compensatory
and punitive damages to the plaintiff.
In May, 2019, Longo filed a motion to reargue and
reconsider, arguing, inter alia, that the plaintiff lacked
standing to commence the action. Longo claimed that
the court erroneously found that the plaintiff, through
its designated broker/realtor Brendan Grady, was
licensed, in accordance with §§ 20-312 and 20-325. He
argued that Grady was neither a plaintiff nor a party
to the action and that, because there was no evidence
presented during the trial showing that the plaintiff
was a licensed real estate broker, the plaintiff lacked
standing to commence the action.
In its memorandum of decision on the motion to
reargue and reconsider, the court concluded that its
finding that the plaintiff had established that it was
licensed as a real estate broker had been erroneous. The
court, however, then held that it would be inequitable
to deny the plaintiff recovery of the commission that
it claims in the present action. The court relied on our
Supreme Court’s opinion in Location Realty, Inc. v.
General Financial Services, Inc., 273 Conn. 766, 781,
873 A.2d 163 (2005), in which the court held that a
corporate broker licensee’s failure to be duly licensed
is not a disqualifying factor, but rather is only one of
the facts and circumstances to be considered in
determining if it would be inequitable to deny recovery
of the claimed commission. The trial court found that
the plaintiff substantially complied with the licensing
requirements of § 20-312 and concluded that it would
be inequitable to deny the recovery of a commission
due to the plaintiff’s failure to prove that it had been
licensed when the plaintiff and its personnel otherwise
had complied with the remaining applicable and more
stringent licensing requirements. Moreover, the court
concluded that it would be inequitable to deny the plain-
tiff recovery because Longo’s actions during the last
month of the exclusive listing period interfered with
the plaintiff’s ability to participate in negotiations with
Empire and constituted egregious and inequitable con-
duct. This appeal followed.
On appeal, the defendants claim that the trial court
improperly (1) refused to dismiss the plaintiff’s action
for lack of standing, (2) concluded that the defendants
had breached the listing agreement, and (3) concluded
that the defendants violated CUTPA. Additional facts
will be set forth as necessary.
I
The defendants first claim that the court improperly
refused to dismiss the plaintiff’s action for lack of stand-
ing. Specifically, the defendants argue that the court
misinterpreted § 20-325a (d),6 which the defendants
contend only grants standing to licensees. In response,
the plaintiff does not dispute that it failed to present
evidence at trial that it is duly licensed for purposes of
§ 20-325a (a). Instead, it argues that the failure to com-
ply with § 20-325a does not implicate the trial court’s
subject matter jurisdiction and that it would be inequita-
ble to deny the plaintiff recovery because it substan-
tially complied with § 20-325a. We agree with the plain-
tiff that compliance with § 20-325a does not implicate
the court’s subject matter jurisdiction.7
We first set forth the applicable standard of review
and legal principles governing our analysis. ‘‘Standing
is the legal right to set judicial machinery in motion.
One cannot rightfully invoke the jurisdiction of the
court unless he [or she] has, in an individual or represen-
tative capacity, some real interest in the cause of action,
or a legal or equitable right, title or interest in the subject
matter of the controversy. . . . Where a party is found
to lack standing, the court is consequently without sub-
ject matter jurisdiction to determine the cause. . . .
Our review of this question of law is plenary.’’ (Internal
quotation marks omitted.) Castle v. DiMugno, 199
Conn. App. 734, 747, 237 A.3d 731 (2020).
Our Supreme Court concluded in McCutcheon &
Burr, Inc. v. Berman, 218 Conn. 512, 590 A.2d 438(1991), that the trial court was not deprived of subject
matter jurisdiction to consider a claim for a real estate
commission based on a listing agreement that did not
comply with § 20-325a (b). Specifically, the court noted:
‘‘The defendants argued, and the trial court agreed, that
it lacked subject matter jurisdiction over the plaintiff’s
claim because the listing agreement did not comply
with § 20-325a (b). None of the cases in which we have
addressed a failure to comply with § 20-325a (b), how-
ever, has involved a motion to dismiss because of a
lack of subject matter jurisdiction. . . . Furthermore,
we are unaware of any cases in which the failure of a
listing agreement to satisfy the requirements of § 20-
325a (b) was found to create a jurisdictional bar to an
action based on that agreement.8 An action to enforce
a listing agreement is essentially a breach of contract
claim, and the trial court clearly [has] subject matter
jurisdiction over such a claim.’’ (Citations omitted; foot-
note in original; internal quotation marks omitted.) Id.,
526–27. The court reached this conclusion despite also
concluding that ‘‘the requirements of § 20-325a (b) are
mandatory rather than permissive and that the statute
is to be strictly construed.’’9 Id., 520.
The court’s analysis in McCutcheon & Burr, Inc.,
is equally applicable to the defendants’ claim that the
plaintiff has failed to comply with § 20-325a (a). The
defendants’ argument is that the plaintiff failed to prove
a necessary element of its claim, namely that it was
licensed to provide the services on which its commis-
sion claim is based. Failure to prove a necessary ele-
ment of a claim does not deprive the court of subject
matter jurisdiction; it simply means that the plaintiff
cannot succeed due to a failure of proof. See, e.g., Gurli-
acci v. Mayer, 218 Conn. 531, 544–45, 590 A.2d 914(1991) (declining to adopt ‘‘bizarre interpretation’’ of
General Statutes § 7-465 that would require court to
conclude it lacked subject matter jurisdiction over case
tried before it solely because plaintiff failed to establish
essential element of her cause of action). As was the
case in McCutcheon & Burr, Inc., the court had jurisdic-
tion to resolve the plaintiff’s two causes of action, both
of which are premised on the defendants’ alleged breach
of the listing agreement. See Anderson v. Schieffer, 35
Conn. App. 31, 37 n.8, 645 A.2d 549 (1994) (‘‘an alleged
failure to comply with § 20-325a (a), which . . . begins
by providing that ‘[n]o person . . . shall commence or
bring any action,’ does not create a jurisdictional bar’’).
In fact, this conclusion is even clearer given the
amendments to § 20-325a, made after our Supreme
Court’s decision in McCutcheon & Burr, Inc., which
permit recovery upon substantial compliance with the
requirements of the statute. See footnote 9 of this opin-
ion. Because of those amendments, a plaintiff cannot
be denied recovery under § 20-325a solely because of
its failure to comply strictly with the licensing require-
ments of the statute. See Location Realty, Inc. v. Gen-
eral Financial Services, Inc., supra, 273 Conn. 781 (‘‘[A]
corporate broker licensee, whose president was not
licensed as a broker, may not be denied its right to
recover a commission otherwise earned solely because
of that licensing failure. Its right to recover must be
gauged, instead, under all of the facts and circum-
stances of the case and whether it would be inequitable,
in light of those facts and circumstances, to deny it the
right to recover.’’). To the contrary, a plaintiff that does
not strictly comply with the licensing requirements of
the statute has the opportunity to prove that it substan-
tially complied with the statute and that denying it a
commission would be inequitable. Id. The court clearly
has subject matter jurisdiction to determine whether
the plaintiff has proven these elements despite the plain-
tiff’s failure to comply strictly with the licensing require-
ments. Thus, the defendants’ claim that the court erred
in concluding that the plaintiff had substantially com-
plied with the licensing requirements of the statute does
not implicate the court’s subject matter jurisdiction.
The court had jurisdiction to consider the plaintiff’s
breach of contract and CUTPA claims.
II
The defendants’ second claim is that the trial court
improperly concluded that the defendants had breached
the listing agreement. Specifically, the defendants
assert that the court erroneously found that Longo
engaged in conduct that interfered with the plaintiff’s
efforts to complete the sale of the property and errone-
ously substituted its own theory of recovery in place
of the plaintiff’s theory of recovery. We agree with the
defendants that the court made a clearly erroneous
finding on which it based its conclusion that the defen-
dants had breached the listing agreement.
Factual matters are determined by the finder of fact
and are not subject to reversal on appeal unless such
findings are clearly erroneous. See Groton v. Yankee
Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771(1993); Crowell v. Danforth, 222 Conn. 150, 156, 609
A.2d 654 (1992). ‘‘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. . . . Under the clearly erroneous standard
of review, a finding of fact must stand if, on the basis
of the evidence before the court and the reasonable
inferences to be drawn from that evidence, a trier of
fact reasonably could have found as it did.’’ (Internal
quotation marks omitted.) CitiMortgage, Inc. v. Gaudi-
ano, 142 Conn. App. 440, 444–45, 68 A.3d 101, cert.
denied, 310 Conn. 902, 75 A.3d 29 (2013); see also Prac-
tice Book § 60-5. ‘‘Where, however, some of the facts
found are clearly erroneous and others are supported
by the evidence, we must examine the clearly erroneous
findings to see whether they were harmless, not only
in isolation, but also taken as a whole.’’ DiNapoli v.
Doudera, 28 Conn. App. 108, 112, 609 A.2d 1061 (1992).
When the judgment of the trial court is based entirely
on a clearly erroneous finding, and without that finding
judgment would have entered for the other party, it is
appropriate to reverse the judgment and remand the
case with direction to render judgment for that party.
See Bayer v. Showmotion, Inc., 292 Conn. 381, 415–16,
973 A.2d 1229 (2009) (reversing judgment and remand-
ing case with direction to render judgment for defen-
dant after concluding that trial court’s factual findings
were clearly erroneous and harmful in that they affected
result).
The following facts are relevant to our analysis. In
its April 17, 2019 memorandum of decision, the trial
court examined the listing agreement and determined
that it contained three provisions that would obligate
the defendants to pay a commission to the plaintiff.
The first provision applied if the plaintiff procured a
ready, willing, and able buyer during the term of the
listing agreement in accordance with the price, terms,
and conditions of the listing, or in accordance with a
price, terms, and conditions that were acceptable to
the defendants. The second provision applied if, during
the term of the listing agreement, the property was
sold or became subject to an agreement to purchase
or option, through the efforts of anyone, including the
defendants, to anyone, including a co-owner of the prop-
erty. The third provision applied if the property was
sold, conveyed, or became subject to an agreement to
purchase or option to purchase, within 180 days after
the term of the listing agreement, to anyone who was
introduced to the property by anyone, including the
defendants, prior to the expiration of the term of the
listing agreement. The court found that the only provi-
sions pleaded in the amended complaint were the first
and second provisions. The court concluded that the
plaintiff failed to prove that it was entitled to its commis-
sion under either provision.
Next, the court examined the plaintiff’s claim that it
was entitled to judgment on its breach of contract claim
in accordance with this court’s holding in William
Raveis Real Estate, Inc. v. Zajaczkowski, 172 Conn.
App. 405, 160 A.3d 363, cert. denied, 326 Conn. 906, 163
A.3d 1205 (2017). In William Raveis Real Estate, Inc.,
the defendants were a couple who had sought to pur-
chase a house. Id., 408. The defendants were referred to
a licensed real estate agent affiliated with the plaintiff,
a real estate brokerage firm that represented buyers and
sellers. Id., 407–408. Prior to showing the defendants a
particular house, the real estate agent presented the
defendants with an agreement for a term of one year,
which provided, in part, that the real estate agent would
negotiate the terms and conditions of the purchase of
any property that the defendants wished to buy and that
the plaintiff would earn a commission if the defendants
purchased a home during the term of the agreement.
Id., 408–409. After the agreement was signed, the defen-
dants submitted an offer to purchase a property in
Trumbull that was shown to them by the real estate
agent. Id., 409. The transaction to purchase the property
was not consummated because a bank appraisal failed
to support the purchase price and the defendants were
unable to obtain a mortgage. Id. Several months later,
still during the term of the agreement, the defendants
entered into a fully executed purchase and sale contract
for a different property in Trumbull that was shown to
them by a real estate agent who was not affiliated with
the plaintiff. Id., 411. The plaintiff then commenced
litigation to obtain payment of the commission it alleged
it was owed in connection with the defendants’ pur-
chase of the property. Id., 407.
The trial court in William Raveis Real Estate, Inc.,
held that the defendants’ actions constituted a breach
of their agreement with the plaintiff. Id., 413. Specifi-
cally, it found that the defendants breached the agree-
ment with the plaintiff by entering into an enforceable
contract to purchase the property while the agreement
with the plaintiff was still in effect. Id., 419. The court
also found that the defendants breached the agreement
by failing to inform the nonaffiliated real estate agent
of the existence of their agreement with the plaintiff,
failing to use the plaintiff as their exclusive real estate
broker to represent and assist them in locating and
purchasing the property, failing to work exclusively
through the plaintiff to locate and purchase the prop-
erty, and failing to refer information about the property
to the plaintiff. Id. On the basis of these findings, the
court rendered judgment for the plaintiff. See id., 419–
20.
On appeal, the defendants claimed that the court
erred in concluding that they breached their agreement
with the plaintiff by entering into a fully executed con-
tract to purchase the property during the term of the
agreement when the contract to purchase the property
was illusory, unenforceable, and not a contract as a
matter of law. Id., 415. This court concluded that there
were factual and legal bases on which the trial court
properly had found that the defendants breached the
agreement and, thus, did not decide whether the con-
tract to purchase the property was illusory, unenforce-
able, and not a contract as a matter of law. Id., 419
n.7. This court concluded further that the defendants
breached numerous express provisions of the agree-
ment during its term, but emphasized that the defen-
dants had breached two significant provisions when
they (1) entered into an agreement with the nonaffili-
ated real estate agent and (2) executed a contract to
purchase the property. Id., 419–20. Thus, this court con-
cluded that the defendants caused the plaintiff to suffer
damages in that their breach of the agreement led
directly and proximately to the plaintiff’s loss of a com-
mission. Id.
In the present case, the trial court found that Longo,
at the end of September, 2014, instructed Anthony Kol-
ich, the purchaser’s principal conducting negotiations
on behalf of Empire, to cease communication with Por-
ricelli and negotiate solely with Longo. The court found
that Longo’s act occurred while Porricelli was heavily
involved in negotiations with Empire and, as a result,
took the plaintiff out of negotiations during October,
2014, the final month of the listing agreement. The court
concluded that ‘‘[t]he act of instructing [Empire] to
cease all contact with [the plaintiff] and deal only with
[Longo] while there was still a month remaining in the
term of [the listing agreement] . . . was a breach of
the [listing agreement] which gave [the plaintiff] the
right, until October 31, 2014, to ‘control the right to
market the [p]roperty’ and obligated the . . . defen-
dants ‘[t]o refer all inquiries and offers for the purchase
and/or rental of said [p]roperty to [the plaintiff]’ and
‘[t]o cooperate with [the plaintiff] in every reasonable
way’ thereby causing [the plaintiff] . . . to lose any
opportunity to participate in the effort to reach a settle-
ment of the minor acreage dispute over the size of the
property and to earn its commission. Under the rule
of William Raveis Real Estate, Inc., [the plaintiff] is
awarded breach of contract damages in the full amount
of the commission it would have earned if those negotia-
tions had been successful during the remaining term
of [the listing agreement] . . . .’’
The defendants claim that the court’s finding that
Longo caused the plaintiff to lose the opportunity to
negotiate with Empire during the final full month of
the listing agreement was clearly erroneous. They argue
that the evidence shows that, contrary to the court’s
findings, Porricelli was an active participant in negotia-
tions through the end of the term of the listing agree-
ment. We agree.
The only evidence in the record that arguably sup-
ports the court’s finding that Longo instructed Kolich
not to deal with Porricelli was Kolich’s response to two
questions during his testimony at trial. First, Kolich was
asked: ‘‘After the deal fell through, after more or less
September of 2014, who reinstituted the purchase and
sale negotiations?’’ Kolich answered: ‘‘I believe at that
point, we were instructed not to speak to [Porricelli].
So I believe we reached out to [Longo].’’ Second, Kolich
was asked: ‘‘Who instructed you not to deal with [Porri-
celli]?’’ His answer was: ‘‘[Longo].’’ Although this testi-
mony, viewed in artificial isolation, appears to support
the challenged finding, a review of the rest of the evi-
dence presented at trial makes clear that the court’s
reliance on these two answers was misplaced and
clearly erroneous.
First, Kolich’s full testimony on this issue makes clear
that he did not testify that Longo instructed him in
September not to speak with Porricelli. The following
colloquy between Kolich and the defendants’ counsel
is relevant:
‘‘[The Defendants’ Counsel]: After the deal fell
through, after more or less September of 2014, who
reinstituted the purchase and sale negotiations?
‘‘[Kolich]: I believe at that point, we were instructed
not to speak to [Porricelli]. So I believe we reached out
directly to [Longo].
‘‘[The Defendants’ Counsel]: So you dealt directly
with [Longo] after the initial contract was terminated?
‘‘[Kolich]: Yes.
‘‘[The Defendants’ Counsel]: Who instructed you not
to deal with [Porricelli]?
‘‘[Kolich]: [Longo].
‘‘[The Defendants’ Counsel]: Do you remember when
that was?
‘‘[Kolich]: No. It was sometime after the first contract
was—was null and void.
‘‘[The Defendants’ Counsel]: Was null and void?
‘‘[Kolich]: Yeah. I mean it was—
‘‘[The Defendants’ Counsel]: Okay.
‘‘[Kolich]:—one went away and then there was no
deal. And then we called [Longo] and [Longo said] let’s
work this out. And we called [Porricelli] and [Porricelli]
said I—[Longo] told me that you know, I can’t talk to
you guys anymore. And we started to deal with
[Longo].’’
Kolich’s full testimony on this point undermines, in
two significant ways, the court’s factual finding that
Longo instructed Kolich in September not to speak with
Porricelli. First, Kolich testified that he did not remem-
ber when he was instructed not to speak with Porricelli.
Kolich testified that he was instructed not to speak with
Porricelli after the first contract between Empire and
the defendants was ‘‘null and void.’’ He never testified
that the conversation took place in September. Second,
he did not testify that the instruction not to speak to
Porricelli came directly from Longo. Instead, Kolich
testified that Porricelli told him that Longo had
instructed Porricelli that he was not permitted to talk
to Empire anymore. Consistent with this testimony,
Kolich also testified that he reached out to Longo after
being instructed not to speak with Porricelli. The only
reasonable inference to draw from Kolich’s testimony
is that Kolich would not have needed to reach out to
Longo if Longo was the one who told him not to speak
with Porricelli.
In addition, Porricelli did not testify that the defen-
dants prevented him from participating in negotiations
before the end of the term of the listing agreement. In
fact, when asked whether he was ‘‘able to get [Empire]
and the [defendants] back to a meeting of the minds
on or before October 31, 2014,’’ he testified: ‘‘We got
them back to the table twice. Once in September and
once in October.’’ Porricelli’s uncontradicted testimony
shows that the plaintiff was involved in negotiations
with Empire after September.
Finally, the uncontradicted documentary evidence
clearly shows that the plaintiff, in particular Porricelli,
was active in negotiating with Empire through the end
of October, 2014, and, in fact, took the lead in such
negotiations. For example, on October 6, 2014, Longo
e-mailed Porricelli all of his e-mail correspondence with
the attorney representing the defendants in their negoti-
ations with Empire. On October 22, 2014, Porricelli
e-mailed Kolich a final proposal from the defendants
in which he referred to the defendants as ‘‘my clients.’’
Shortly thereafter, Kolich responded directly to Porri-
celli with a counteroffer. In response, Porricelli replied
in an e-mail: ‘‘Anthony, after further thought and discus-
sion, if you [cannot] sign a contract in 48 [hours] and
close the deal in 60 days, we have nothing further to
discuss. We are done negotiating this deal!
‘‘On behalf of my clients and their attorneys, we wish
not be contacted with any other negotiations/offers
regarding [the property].’’ Porricelli then sent Kolich
another e-mail in which he stated: ‘‘I gave you a layup
with my final offer! . . . I will not have my clients
[toe] the line and carry the cost of the property for 8
months while you get all your permits [etc.]. It doesn’t
work that way. I offered you March, now it is 60 days.’’
The next day, October 23, 2014, Porricelli e-mailed
Longo lamenting that ‘‘we have all been through the
ringer with Anthony Kolich’’ and proposing a new mar-
keting strategy for the property. Despite his e-mail to
Longo, later that same day, Porricelli e-mailed Kolich
a new offer, which he asked Kolich to ‘‘sign off on’’
before Porricelli spoke to his ‘‘clients.’’ Only after Kolich
responded positively to Porricelli’s offer did Porricelli
e-mail the proposed deal to Longo and asked him to
call him ‘‘ASAP.’’ After Longo expressed his lack of faith
in Empire’s offer, Porricelli e-mailed Longo encouraging
him to accept the offer. The two men then exchanged
additional e-mails regarding the merits of Empire’s
offer. In the evening of October 23, 2014, Porricelli sent
an e-mail to the defendants and their lawyers in which
he stated: ‘‘After much time speaking with Kolich and
further conversations with [Longo], I have negotiated
the new terms listed below.’’ (Emphasis added.) On
October 24, 2014, Porricelli and Longo continued to
exchange e-mails regarding the merits of the proposed
deal. On October 27, 2014, Porricelli e-mailed the defen-
dants and their attorneys: ‘‘Per [Longo’s] last e-mail on
[October 24], have we decided not to accept the offer
or do we want to come up with a counter to try and
get the deal done?’’10
On the basis of our review of the full evidentiary
record, we are left with the definite and firm conviction
that the court’s finding that the plaintiff was taken out
of the negotiations during the last month of the listing
agreement was a mistake. The plaintiff, principally
through the efforts of Porricelli, was heavily involved
in negotiations between the defendants and Empire
through the end of October, 2014, when the listing agree-
ment ended. Porricelli testified that he got the parties
back to the bargaining table in October and the undis-
puted documentary evidence shows that he was the
lead negotiator for the defendants until at least October
24, 2014.
The court’s memorandum of decision makes clear
that the court’s clearly erroneous factual finding was
the basis for its conclusion that the defendants
breached the listing agreement and caused the plaintiff
to suffer damages. The court held that Longo’s ‘‘act
of instructing [Empire] to cease all contact with [the
plaintiff] and deal only with [Longo] while there was
still a month remaining in the term of the [listing
agreement]’’ constituted a breach of several provisions
of the listing agreement and ‘‘thereby’’ caused the plain-
tiff to lose the opportunity to earn its commission.
(Emphasis added.) The court did not find any other
breaches of the listing agreement by the defendants.11
Thus, we conclude that the court’s clearly erroneous
finding was not harmless. Because the court’s conclu-
sion that the defendants breached the listing agreement
is based solely on a clearly erroneous factual finding,
the court’s judgment as to that count must be reversed
and judgment rendered for the defendants. See Bayer
v. Showmotion, Inc., supra, 292 Conn. 415–16.
III
Next, the defendants claim that the trial court improp-
erly concluded that they had violated CUTPA. In partic-
ular, the defendants argue that the court improperly
concluded that they, through Longo, were engaged in
the trade or commerce of real estate acquisition,
thereby, satisfying the statutory requirement under
CUTPA12 that the unfair acts must have occurred in the
conduct of any trade or commerce. The defendants
argue that they were not engaged in the trade or com-
merce of real estate acquisition at the time of the occur-
rence of the purported CUTPA violations. In response,
the plaintiff contends that the defendants were engaged
in a ‘‘competing trade or commerce because they were
trying to sell the property themselves while under the
obligation to deal exclusively with [the plaintiff].’’ We
agree with the defendants.
‘‘To state a claim under CUTPA, the plaintiff must
allege that the actions of the [defendants] were per-
formed in the conduct of trade or commerce. . . .
Moreover, a CUTPA violation may not be alleged for
activities that are incidental to an entity’s primary trade
or commerce.’’ (Citations omitted; internal quotation
marks omitted.) Sovereign Bank v. Licata, 116 Conn.
App. 483, 493–94, 977 A.2d 228 (2009), appeal dismissed,
303 Conn. 721, 36 A.3d 662 (2012).13 Whether a defendant
is subject to CUTPA is a question of law that is subject
to plenary review. See Landmark Investment Group,
LLC v. Chung Family Realty Partnership, LLC, 125
Conn. App. 678, 700, 10 A.3d 61 (2010), cert. denied,
300 Conn. 914, 13 A.3d 1100 (2011).
In its April 17, 2019 memorandum of decision, the
court only briefly addressed the trade or commerce
requirement, stating: ‘‘Neither party has raised any issue
as to whether or not this single sale of a family owned
parcel of land was a transaction ‘in the conduct of
any trade or business.’ Since [Longo] held a real estate
broker’s license and inserted himself as of November
1, 2014, as the broker of record for the sellers, the court
will treat this as a ‘trade or business’ dispute at least
as to him.’’ The court then went on to discuss whether
the unfair acts alleged in the operative amended com-
plaint constituted CUTPA violations.
The defendants argue that the court was correct in
concluding that a single sale of a family owned parcel
of land is not sufficient to meet the trade or commerce
requirement of CUTPA. They then argue that the court’s
reliance on the fact that Longo was a licensed real
estate broker and inserted himself into the transaction
was in error for several reasons. First, they argue that
the plaintiff made no such claim in its complaint. Sec-
ond, they argue that the alleged CUTPA violations in
the complaint and found by the court all occurred prior
to November 1, 2014, before the defendants entered into
a listing agreement with Longo and after their listing
agreement with the plaintiff had expired. Therefore,
according to the defendants, Longo was in the same
position as the other defendants at the time of the
alleged CUTPA violations; he was one member of the
family involved in a single sale of the parcel that the
defendants jointly owned.
In response, the plaintiff argues that the court prop-
erly held that the defendants were involved in trade or
commerce because they were, as a group, competing
with the plaintiff to sell the property during the term
of the listing agreement. In support of this argument, the
plaintiff points to evidence that the defendants failed
to disclose inquiries from potential buyers to the plain-
tiff and agreed that they would share any commission
to which Longo became entitled pursuant to the Novem-
ber 1, 2014 listing agreement. Relying on our Supreme
Court’s opinion in Larsen Chelsey Realty Co. v. Larsen,
232 Conn. 480, 656 A.2d 1009 (1995), the plaintiff argues
that the defendants were engaged in trade or commerce
for purposes of CUTPA because Longo was marketing
the property on behalf of the defendants during the
term of the listing agreement in direct competition with
the plaintiff. We agree with the defendants that the
court’s finding that the defendants were engaged in
trade or commerce at the time of the CUTPA violations
was legally incorrect.
Initially, we agree with the trial court that the defen-
dants’ sale of a single family owned parcel does not
constitute trade or commerce for the purposes of
CUTPA. This court has previously held that where the
sellers of commercial property are not in the business
of selling real property, ‘‘CUTPA is inapplicable to the
transaction’’ at issue. Biro v. Matz, 132 Conn. App. 272,
290, 33 A.3d 742 (2011). There is no evidence in this
case that the defendants were in the business of selling
real estate, other than the evidence that Longo was a
licensed real estate broker. Thus, we agree with the
trial court that any alleged CUTPA violations must be
connected to Longo’s activities as a real estate broker.
The trial court found that Longo ‘‘inserted himself as
of November 1, 2014,’’ using his real estate broker’s
license and, thus, engaged in trade or commerce.14 The
problem with the court’s analysis is that all of the acts
it determined to be CUTPA violations occurred before
November 1, 2014. The court found that Longo’s breach
of the listing agreement by directing Empire to cease
all communications with the plaintiff during the term
of the listing agreement and ‘‘misrepresentations [or]
nonrepresentations as to the true ownership status of
the property, the interfamily litigation background, and
the [mortgage] on the property’’ that preceded that
breach constituted the CUTPA violations. As noted pre-
viously in this opinion, the court found that the directive
that Empire cease communications with the plaintiff
occurred sometime in September, 2014. Although we
have concluded that this finding was clearly erroneous,
any such instruction could only constitute a breach of
the listing agreement if it occurred during the term of
the listing agreement, which expired on October 31,
2014, the day before the court concluded that Longo
‘‘inserted himself’’ using his broker’s license. Further-
more, because the court found that the other CUTPA
violations were misrepresentations and nonrepresenta-
tions that preceded the breach, they necessarily also
occurred before November 1, 2014. Consequently, at
the time that Longo and the other defendants engaged
in conduct that the court described as unscrupulous,
immoral, unfair and deceptive, none of them did so
while engaged in trade or commerce for purposes of
CUTPA.15
We also conclude that the plaintiff’s reliance on
Larsen Chelsey Realty Co. is misplaced. That case
involved an action between a real estate company that
sought damages against its former president and a com-
peting real estate company, wherein several claims
were alleged, including violations of CUTPA. See id.,
483. At trial, the court set aside the jury verdict for
the plaintiff on its CUTPA count, holding that (1) the
pleadings and evidence repeatedly described an
employer-employee relationship between the plaintiff
and its former president that could not be the basis for
a CUTPA claim, and (2) the plaintiff could not prevail on
its CUTPA count because the plaintiff had an employer-
employee relationship with its former president as
opposed to a consumer relationship. Id., 490–91.
On appeal, our Supreme Court reversed the judgment
of the trial court, holding, inter alia, that (1) the alleged
acts involved conduct that occurred outside the con-
fines of an employer-employee relationship and (2)
CUTPA does not impose a requirement of a consumer
relationship. Id., 494–95. The court held that the jury
reasonably could have found that the defendant was
engaged in trade or commerce because the defendant’s
activities ‘‘implicated the services of both [the defen-
dant] and the plaintiff as real estate brokers in the New
Haven area and thus implicated trade or commerce
under CUTPA.’’ Id., 494.
In its appellate brief, the plaintiff argues: ‘‘Applying
the Larsen Chelsey Realty Co. analysis to the facts
found by [the] trial court, [Longo] may have been the
only licensed broker among the defendant owners, but
he was engaged in marketing the property on behalf of
his cousins while all of the defendants were bound by
the listing agreement with [the plaintiff]. This conduct,
together with the defendants’ disclosures and nondis-
closures, resulted in the defendants waiting out until
[the plaintiff’s] listing agreement expired so the defen-
dants could receive the commission for themselves.
Once [the plaintiff’s] listing [agreement] expired, Longo
made a very similar deal directly with [Empire] and cut
[the plaintiff] out of its commission.’’
There are several problems with the plaintiff’s analy-
sis. First, other than the court’s clearly erroneous find-
ing that the defendants in September, 2014, instructed
Empire to cease communications with the plaintiff and
thereby prevented the plaintiff from participating in
negotiations during the last month of the listing agree-
ment, the court made no finding that the defendants
breached the listing agreement or committed any
CUTPA violation by marketing the property to prospec-
tive buyers. In fact, the court did not mention a single
prospective buyer other than Empire and made no find-
ing that the defendants were unfairly competing with
the plaintiff for such prospective buyers. Second, unlike
in Larsen Chelsey Realty Co., in which both the defen-
dant and the plaintiff were acting as real estate brokers,
in this case, at least during the term of the listing agree-
ment, the defendants were acting as owners of the prop-
erty. They did not need a broker’s license to discuss
the sale of their property with any prospective buyers.
Although the terms of the listing agreement may have
obligated them to refer any such inquiries to the plain-
tiff, their failure to do so would not constitute their
participation in trade or commerce for the purposes of
CUTPA. Third, contrary to the plaintiff’s suggestion, the
court made no finding that the defendants were engaged
in conduct to ‘‘wait out’’ the expiration of the listing
agreement so that they could receive the commission
themselves. Thus, Larsen Chelsey Realty Co. is inappo-
site.
In sum, we conclude that the court erred in conclud-
ing that the actions of the defendants were performed
in the conduct of trade or commerce for purposes of
CUTPA. Accordingly, the trial court improperly ren-
dered judgment for the plaintiff on its CUTPA claim.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendants
on both the breach of contract and CUTPA claims.
In this opinion the other judges concurred.
1
Salvatore R. Longo, Anthony Longo, the estate of Salvatore Longo, Jr.,
Salvatore Longo & Sons, LLC, The Higgins Group, Inc., doing business as
Higgins Group Real Estate (The Higgins Group), and Mark F. Katz were
named as defendants in the complaint. Anthony Longo and The Higgins
Group were nonappearing defendants before the trial court. At oral argument
before this court, the appellants’ counsel stated that he is representing all
of the defendants except The Higgins Group. In their principal brief, however,
the appellants’ counsel stated that The Higgins Group and Mark F. Katz are
not involved in this appeal. For clarity, we refer to Salvatore R. Longo,
Anthony Longo, the estate of Salvatore Longo, Jr., and Salvatore Longo &
Sons, LLC, collectively, as the defendants.
Additionally, we note that the trial case caption appears to contain a
scrivener’s error as Salvatore R. Longo is identified as ‘‘Salvatore B. Longo.’’
2
On the same day, the defendants listed, separately, 143 Leon Place in
Stamford for sale with the plaintiff for $949,000; the defendants executed
a second listing agreement with the plaintiff for 143 Leon Place. The plaintiff’s
amended complaint makes neither a claim of a separate sale for 143 Leon
Place nor a claim of any commission related solely to 143 Leon Place.
3
The court concluded that the defendants failed to prove their special
defenses and rendered judgment for the plaintiff on the defendants’ counter-
claim, noting that the defendants expressly abandoned in their posttrial
brief all counts of their counterclaim. The court’s disposition of the special
defenses and counterclaim are not at issue in this appeal.
4
General Statutes § 20-312 provides in relevant part: ‘‘(a) No person shall
act as a real estate broker or real estate salesperson without a license issued
by the commission or the Commissioner of Consumer Protection, unless
exempt under this chapter. . . .’’
5
The court found that no claim was made for any commission related
solely to 143 Leon Place, and, therefore, it held that the second listing
agreement was not at issue in the case.
6
General Statutes § 20-325a (d) provides: ‘‘Nothing in subsection (a) of
this section, subdivisions (2) to (7), inclusive, of subsection (b) of this
section or subsection (c) of this section shall prevent any licensee from
recovering any commission, compensation or other payment with respect
to any acts done or services rendered, if it would be inequitable to deny
such recovery and the licensee (1) has substantially complied with subdivi-
sions (2) to (7), inclusive, of subsection (b) of this section or (2) with respect
to a commercial real estate transaction, has substantially complied with
subdivisions (2) to (6), inclusive, of subsection (b) of this section or subdivi-
sion (2) of subsection (c) of this section.’’
7
In light of our resolution of the defendants’ second and third claims,
we need not address the defendants’ argument that the court improperly
concluded that the plaintiff had substantially complied with the statute and
that it would be inequitable to deny it a commission given the facts of
this case.
8
‘‘In asserting that a failure to comply with . . . § 20-325a (b) creates a
jurisdictional problem, the defendants rely primarily on the portion of the
statute that provides: ‘No person . . . shall commence or bring any action
. . . .’ We note that similar language is found in the statute of frauds; General
Statutes § 52-550; and in the statute of limitations for tort actions set forth
in General Statutes § 52-577. Neither of those statutes creates a jurisdictional
bar. See Seipold v. Gibbud, 110 Conn. 392, 395, 148 A. 328 (1930) (statute
of frauds); Orticelli v. Powers, 197 Conn. 9, 15–16, 495 A.2d 1023 (1985)
(§ 52-577).’’ McCutcheon & Burr, Inc. v. Berman, supra, 218 Conn. 527 n.16.
9
Subsection (d) of § 20-325a, which permits recovery of a commission
upon substantial compliance with subsections (b) and (c), was not added
to the statute until 1994, after the Supreme Court issued its decision in
McCutcheon & Burr, Inc.
10
On October 28, 2014, Porricelli sent an e-mail to Attorney James Rubino
asking about a meeting between Empire and the defendants the previous
day at which a deal may have been reached. Rubino responded that he was
not at the meeting and Porricelli asked him to keep him posted because he
was unable to contact Longo. There was no evidence that an agreement
was reached between Empire and the defendants at that meeting. Finally,
on October 30, 2014, Porricelli sent a proposed extension of the listing
agreement to the defendants for signature. The extension was never signed.
11
The plaintiff argues that the defendants breached the listing agreement
in several other ways. It argues that the evidence showed that Longo was
speaking to prospective buyers of the property without informing Porricelli
and Feda and failed to turn over offer letters from prospective buyers to
the plaintiff. The plaintiff also argues that the court found that the defendants
misrepresented to the plaintiff who actually owned the property. The prob-
lem with the plaintiff’s arguments is that the court never found that the
defendants breached the listing agreement through their contacts with pro-
spective buyers or that their misrepresentations constituted breaches of the
agreement. Furthermore, the court did not find that such conduct caused
the plaintiff any damages. We therefore decline to address these issues
because they are irrelevant to the grounds on which the court expressly
relied in rendering its judgment.
12
General Statutes § 42-110b (a) provides: ‘‘No person shall engage in
unfair methods of competition and unfair or deceptive acts or practices in
the conduct of any trade or commerce.’’
13
‘‘ ‘Trade’ and ‘commerce’ means the advertising, the sale or rent or lease,
the offering for sale or rent or lease, or the distribution of any services and
any property, tangible or intangible, real, personal or mixed, and any other
article, commodity, or thing of value in this state.’’ General Statutes § 42-
110a (4). Furthermore, such activities constitute trade or commerce only if
the party is engaged in the business of conducting such activities. See, e.g.,
Landmark Investment Group, LLC v. Chung Family Realty Partnership,
LLC, 125 Conn. App. 678, 700, 10 A.3d 61 (2010) (‘‘CUTPA violation may
not be alleged for activities that are incidental to an entity’s primary trade
or commerce’’ (internal quotation marks omitted)), cert. denied, 300 Conn.
914, 13 A.3d 1100 (2011).
14
The court made this finding ‘‘at least as to [Longo].’’ The court made
no finding that any of the other defendants engaged in any trade or commerce
for purposes of CUTPA. Despite making no such finding, the court found
for the plaintiff and against all of the defendants on the plaintiff’s CUTPA
claim. Because we are reversing the court’s decision for other reasons, we
need not consider whether there was a basis to conclude that the defendants
other than Longo were engaged in trade or commerce for purposes of
CUTPA.
15
We assume, arguendo, that Longo’s primary trade or commerce as of
November 1, 2014, was the marketing and brokering of real estate. Nonethe-
less, we note that the trial court, in its memorandum of decision, stated
that Longo ‘‘was and is a licensed real estate broker, but has never worked
as such as his primary occupation . . . .’’ During trial, Longo testified that
his principal employment from 1972 to 2008, was operating an asphalt paving
and excavating business. Longo further testified that he created a limited
liability company (company) in 2007, due to the growth of the business and
the liability of the business’ real estate assets. Longo testified that the
company stopped operating after 2007, and that, afterward, he made a
business decision to sell the company’s assets. He also testified that a court
proceeding required him to sell one of his real estate assets.
Longo, however, did testify that he engaged in the business of real estate
transactions during 2013, in which he conducted eight to nine real estate
deals using his broker’s license. Nonetheless, the record does not contain
ample evidence from which the trial court reasonably could have concluded
that the defendants’ primary trade or business was the sale and development
of real estate. Longo testified that the sale of the property arose from a
business decision and a court order. Furthermore, Longo testified that he
never utilized his license as a broker as his primary employment. Also, the
record does not establish an agency relationship between Longo and the
other defendants, in a capacity in which he was engaging in real estate
transactions on their behalf.