Reserve Realty, LLC v. Windemere Reserve, LLC

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THE RESERVE REALTY, LLC, ET AL. v.
WINDEMERE RESERVE, LLC, ET AL.
(AC 38167)
THE RESERVE REALTY, LLC, ET AL. v.
BLT RESERVE, LLC, ET AL.
(AC 38440)
THE RESERVE REALTY, LLC, ET AL. v.
WINDEMERE RESERVE, LLC, ET AL.
(AC 38442)
Alvord, Prescott and Suarez, Js.
Syllabus
The plaintiffs, R Co., a real estate marketing company, and H, the executor
of the estate of J, a real estate broker who was a founding member of
R Co., sought to recover damages from the defendants W Co. and B
Co., for, inter alia, breach of certain real estate listing agreements that
allegedly would have entitled the plaintiffs to certain brokerage fees
and commissions. In 2002, a group of real estate developers, D Co.,
engaged the services of J and another real estate brokerage firm, S Co.,
to negotiate the purchase of a large parcel of undeveloped land. D Co.
thereafter entered into an agreement which, inter alia, gave J and S Co.
the exclusive right to sell and/or lease any property that was to be
developed on that land, and also required D Co. to inform any subsequent
purchasers of any part or individual lots on the land that the exclusivity
provision applied to them. After D Co. purchased the land, it sold two
separate parcels of the land to W Co. and B Co., who, pursuant to
their respective purchase agreements, executed a buyer’s agreement
and listing agreements with J and S Co., who had formed R Co. for the
purpose of marketing the properties. Thereafter, B Co. constructed a
rental apartment complex on its parcel, and W Co. planned to develop
a commercial office building on its parcel. Neither B Co. nor W Co.
used R Co. as the listing agent for its respective project, and the plaintiffs
brought an action alleging a breach of the buyer’s agreement and the
listing agreements. The plaintiffs also brought two actions seeking to
foreclose real estate broker’s liens on the parcels of property that are
the subject of the breach of contract action. The trial court rendered
judgments discharging the liens in the foreclosure actions and judgment
in favor of W Co. and B Co. in the breach of contract action, concluding,
inter alia, that the purchase and sale agreements containing the exclusiv-
ity provision on which the plaintiffs based their claim for commissions
under the listing agreements constituted illegal tying arrangements and
violated the Connecticut Antitrust Act (§ 35-24 et seq.), and the listing
agreements did not satisfy statutory requirements (§ 20-325a) as to the
duration of the authorization. The court further concluded that the
agreements did not substantially comply with the statutory requirements
and that it was not inequitable to deny commissions to the plaintiffs
despite the lack of compliance. The plaintiffs appealed to this court,
which affirmed the trial court’s judgments, concluding that the defen-
dants’ antitrust special defense, under which the exclusivity provisions in
the purchase and sale agreements constituted illegal tying arrangements,
barred the plaintiffs’ claims, pursuant to the governing standard set
forth in State v. Hossan-Maxwell, Inc. (181 Conn. 655). The plaintiffs,
on the granting of certification, appealed to our Supreme Court, which
overruled its decision in Hossan-Maxwell, Inc., and concluded that the
trial court had incorrectly determined that the defendants prevailed
on their antitrust special defense and reversed this court’s decision,
remanding the cases to this court with direction to consider the plaintiffs’
remaining claims. Held:
1. The trial court properly determined that the listing agreements were
unenforceable because they failed to comply with the requirement of
§ 20-325a that they specify the duration of the broker’s authorization to
act on behalf of W Co. and B Co.
a. The trial court erred in finding that the buyer’s agreement and the
listing agreements were ambiguous as to their intended duration;
although the buyer’s agreement had a stated duration of years, between
September 10, 2003, and September 10, 2010, and the listing agreements
had a stated duration of ten years from the date of the first sale or
lease, the intent of the parties was to create different durations for
different transactions, thus, effect can be given to both provisions, which
used definitive language, and this court did not consider extrinsic evi-
dence regarding the parties’ intent.
b. The trial court correctly determined that the listing agreements did
not strictly comply with the duration requirements of § 20-325a (b) and/
or (c) and such failure was contrary to public policy and custom in the
commercial real estate industry, as the agreements failed to set forth a
measurable, definite duration; although the agreements specified a ten
year period, it was unclear, at the time the agreements were executed,
how far into the future the parties would be bound by the provision,
and the provision did not provide a ceiling on the ultimate amount of
time the agreements could last, as the amount of time for which the
parties could be bound by the agreements was indeterminate because
it could only be calculated by reference to an uncertain future event,
the conveyance of an individual unit or executed lease.
2. The trial court’s finding that it would not be inequitable to deny the
plaintiffs’ recovery was not clearly erroneous: the listing agreements
did not substantially comply with § 20-325a (b) and/or (c), as they were
indefinite as to the key element of the duration of the agreement, which
was imperative to the parties’ understanding of their respective rights
under the contracts; moreover, it was not inequitable to deny recovery
of commissions under the circumstances in which there was no sale or
lease with regard to either parcel of property until almost ten years
after the listing contracts were executed, the evidence having supported
conclusions that the plaintiffs failed to use best efforts to market the
properties and that the defendants did not wrongfully prevent the plain-
tiffs from performing their obligations under the listing agreements,
and, once the plaintiffs became aware of the rental apartment complex
constructed by B Co., they made no effort to lease the apartments.
Argued December 2, 2020—officially released June 22, 2021
Procedural History
Action, in the first case, to recover damages for, inter
alia, breach of contract, and for other relief, brought
to the Superior Court in the judicial district of Danbury,
where the case was tried to the court, Truglia, J.; judg-
ment for the named defendant et al., from which the
plaintiffs appealed to this court, Alvord, Sheldon and
Schaller, Js., which affirmed the trial court’s judgment;
thereafter, in the second and third cases, the court,
Truglia, J., rendered judgments discharging broker’s
liens on certain real property of the named defendant
in each case in accordance with the parties’ stipulations,
from which the plaintiffs filed separate appeals to this
court, Alvord, Sheldon and Schaller, Js., which affirmed
the judgments of the trial court, and the plaintiffs, on the
granting of certification, filed separate appeals from all
three cases with the Supreme Court, which reversed this
court’s judgments and remanded the cases to this court
for further proceedings. Affirmed.
Daniel E. Casagrande, with whom, on the brief, was
Lisa M. Rivas, for the appellants (plaintiffs in each case).
J. Christopher Rooney, with whom were Drew J.
Cunningham, and, on the brief, Brian A. Daley, for the
appellees in Docket No. AC 38167 (defendants).
J. Christopher Rooney, with whom were Drew J.
Cunningham, and, on the brief, Brian A. Daley, for the
appellees in Docket Nos. AC 38440 and AC 38442 (named
defendant et al.).
David F. Bennett submitted a brief for the appellee
in Docket Nos. AC 38440 and AC 38442 (defendant
Century 21 Scalzo Realty, Inc.).
Opinion
PRESCOTT, J. These appeals, which return to us on
remand from our Supreme Court, presently require us
to determine whether certain real estate listing agree-
ments are unenforceable because they fail to comply
with the requirement contained in General Statutes § 20-
325a that such agreements specify the duration of the
authorization. Specifically, the plaintiffs, The Reserve
Realty, LLC (Reserve Realty), and Theodore Haddad,
Sr., as executor of the estate of Jeanette Haddad, seek
to recover real estate brokerage fees (commissions) in
connection with the sale and/or lease of (1) units in an
apartment complex constructed and leased by the
defendant BLT Reserve, LLC (BLT), and (2) commercial
office space not yet constructed by the defendant Win-
demere Reserve, LLC (Windemere).1 For the reasons
we set forth, we conclude that the trial court properly
determined that the listing agreements are unenforce-
able because they fail to comply with § 20-325a and,
accordingly, affirm the judgments of the trial court.2
The following facts and procedural history, as set
forth in this court’s opinion in Reserve Realty, LLC v.
Windemere Reserve, LLC, 174 Conn. App. 130, 165 A.3d
162 (2017) (Reserve Realty I), rev’d, 335 Conn. 174, 229
A.3d 708 (2020), or which are otherwise undisputed
in the record, are relevant to our resolution of these
appeals. ‘‘The plaintiff, Theodore Haddad, Sr., is the
duly appointed executor of the estate of his wife, Jea-
nette Haddad. Prior to her death in January, 2013, Jea-
nette Haddad was a successful and highly regarded
real estate broker in the Danbury real estate market,
performing brokerage services under the business
name, ‘Jeanette Haddad, Broker.’3 She employed several
licensed salespersons, including Theodore Haddad, Sr.,
and she engaged the services of her son, Theodore
Haddad, Jr., who was a licensed real estate broker with
his own broker’s license and business. The plaintiff,
Reserve Realty, a limited liability company organized
and existing pursuant to the laws of Connecticut, was
founded by Jeanette Haddad and Paul Scalzo on Sep-
tember 15, 2003.4 The defendants, BLT and Windemere,
are limited liability companies, the principals and own-
ers of which include Carl Kuehner, Jr., and Paul Kueh-
ner.5
‘‘In early 2002, a group of real estate developers, later
known as Woodland Group II, LLC (Woodland), con-
tacted Jeanette Haddad and Century 21 Scalzo Realty,
Inc. (Scalzo Realty), a real estate franchise owned by
Scalzo,6 to engage their brokerage services in connec-
tion with the negotiations for the purchase of a 546
acre parcel known as the Reserve. As part of the broker/
client relationship, the ‘Exclusive right to Sell–Listing
Agreement’ (Woodland agreement) was executed by
and between Jeanette Haddad and Scalzo, and two of
the Woodland real estate developers. Pursuant to the
Woodland agreement, Jeanette Haddad and Scalzo
Realty had the exclusive right to sell and/or lease prop-
erty in the Reserve, and the real estate developers were
required to ‘make aware to the new purchaser of any
part, or of individual lots, or of land, that this Agreement
shall apply to that new purchaser and [Jeanette Haddad
and Scalzo Realty].’
‘‘On or about June 28, 2002, Woodland purchased
the Reserve. Woodland, which wished to develop the
Reserve, continued to use the services of Jeanette Had-
dad and Scalzo thereafter to market the property. Wood-
land also proposed a master plan for the entire 546
acres, which the Danbury Zoning Commission approved
on or about November 26, 2002. Shortly thereafter, Win-
demere filed an administrative appeal of the plan’s
approval in the Superior Court, which effectively stayed
the approval of the master plan and prevented Wood-
land from moving forward with the development and
sale of the Reserve. Thereafter, representatives of Wood-
land, Windemere, and BLT met to negotiate the sale of
two tracts of land, later known as parcel 13 and parcel
15. Part of the negotiation resulted in Windemere’s with-
drawal of the administrative appeal.
‘‘On July 17, 2003, Woodland entered into the pur-
chase and sale agreement with BLT for the purchase
of parcel 13 and the purchase and sale agreement with
Windemere for the purchase of parcel 15 (purchase and
sale agreements). Paragraph eight of the purchase and
sale agreement for parcel 13 obligated BLT to enter into
a listing agreement with Jeanette Haddad and Scalzo
Realty, pursuant to which Jeanette Haddad and Scalzo
Realty would receive a 3 percent commission on any
subsequent sale and/or lease of parcel 13, either as a
whole or as individual lots. Similarly, paragraph eight of
the purchase and sale agreement for parcel 15 obligated
Windemere to enter into a listing agreement with Jea-
nette Haddad and Scalzo Realty, pursuant to which
Jeanette Haddad and Scalzo Realty would receive a $1
million commission for their efforts in the leasing of
office space that Windemere intended to develop on the
parcel.
‘‘Woodland, BLT, and Windemere also executed an
escrow agreement, pursuant to which the purchase and
sale agreements would be held in escrow by Woodland’s
counsel for ninety days until several conditions were
met. One of the conditions was the execution of listing
agreements . . . to be executed by Jeanette Haddad
and Scalzo Realty. This condition was included to sat-
isfy the requirement in the Woodland agreement . . .
that Woodland ‘make aware to the new purchaser of any
part, or of individual lots, or of land, that this Agreement
shall apply to that new purchaser and [Jeanette Haddad
and Scalzo Realty.]’
‘‘Between July 17 and September 10, 2003, representa-
tives of Woodland, BLT, Windemere, and Jeanette Had-
dad7 negotiated the terms of the listing agreements. On
September 10, 2003, a meeting was held, at which sev-
eral documents were executed,8 including the exclusive
right to represent buyer/tenant (buyer’s agreement);9
the consent agreements;10 the exclusive right to sell–
listing agreement for parcel 13;11 the exclusive right to
sell/lease–listing agreement for parcel 13;12 the exclu-
sive right to sell/lease–listing agreement for parcel 15;13
and the exclusive right to sell–listing agreement for
parcel 1514 (listing agreements).15
‘‘Despite having executed the listing agreements, the
defendants at no time desired to retain Jeanette Haddad
as the broker for the sale and/or lease of units to be built
on parcel 13 and parcel 15. Rather, the defendants entered
into the listing agreements only to satisfy the require-
ments of paragraph eight of the purchase and sale agree-
ments, and the only reason that the parties included
paragraph eight in the purchase and sale agreements
was to allow Woodland to comply with its contractual
obligation under the Woodland agreement to require
subsequent purchasers of the Reserve to retain Jeanette
Haddad and Scalzo Realty as their brokers.
‘‘Beginning in early 2006, representatives of Jeanette
Haddad and Scalzo Realty, including Theodore Haddad,
Sr., and Theodore Haddad, Jr., diligently marketed and
contacted possible buyers and lessees for the Reserve.
At some point, however, the defendants decided that
the listing agreements were a ‘ ‘‘bad marriage,’ ’’ and, in
January, 2007, Paul Kuehner and Theodore Haddad, Jr.,
met to discuss terminating the broker/client relation-
ship. A buyout figure was offered to Jeanette Haddad
and Scalzo, which they both refused. . . . [Although
Jeanette Haddad and Scalzo Realty continued to make
good faith efforts to find prospective buyers or lessees
for parcel 13 and parcel 15 until mid-2007, the real estate
market softened, and those efforts ultimately were
unsuccessful.] The defendants began to explore other
available options, including the development of parcel
13 into a luxury apartment rental complex.
‘‘On or about April 18, 2011, the Danbury Planning
and Zoning Department issued a site plan approval to
BLT for the construction of a rental apartment complex
on parcel 13, which would later be known as Abbey
Woods. Shortly thereafter, the defendants began con-
struction. BLT subsequently leased the apartment units
in Abbey Woods through its own on-site leasing agent,
with the first lease being entered into in March, 2013.’’
(Footnotes in original; footnote added; footnotes omit-
ted.) Reserve Realty I, supra, 174 Conn. App. 132–37.
The defendants did not notify the Haddads16 or Scalzo
of the site plan approval for, or the construction of, the
Abbey Woods apartments. Theodore Haddad, Jr., upon
learning about Abbey Woods in 2013, shortly after his
mother had died, contacted Carl Kuehner, Jr., and asked
him if the defendants intended to honor the listing
agreements. Carl Kuehner, Jr., refused to discuss the
issue with Theodore Haddad, Jr., claiming that the list-
ing agreements for parcel 13 were personal service
agreements between BLT and Jeanette Haddad.
In July, 2013, the plaintiffs brought this action alleging
breach of contract and anticipatory breach with regard
to the buyer’s agreement and listing agreements17 for
both parcel 13 and parcel 15.18 Specifically, the plaintiffs
(1) claimed that they are entitled to their percentage
of commission of gross rentals from the Abbey Woods
units already leased, and a percentage of estimated gross
rental receipts yet to be realized by BLT for this devel-
opment over the ten year term of the agreement that
began on the date of the first lease; (2) asked the court
to recognize their claim for a $1,000,000 commission
for office space that will be due and payable when Win-
demere constructs and begins leasing office space on
parcel 15; and (3) sought a declaratory judgment recog-
nizing their right to serve as the exclusive listing agents
henceforward for the sale and/or lease of any Abbey
Woods units and office space on parcel 15.
‘‘The defendants raised five special defenses: (1) the
listing agreements were entered into pursuant to an
illegal tying arrangement; (2) there was a lack of consid-
eration in that the plaintiffs had failed to perform bro-
kerage services entitling them to compensation; (3) the
listing agreements were personal service contracts; (4)
the listing agreements, by their express terms, expired
on September 10, 2010; and (5) the listing agreements
were unenforceable because the necessary conditions
precedent had not been satisfied.’’ Reserve Realty I,
supra, 174 Conn. App. 138. After hearing twelve days
of evidence, the trial court rendered judgment in favor
of the defendants, concluding that the purchase and
sale agreements created an illegal tying arrangement
that violates the Connecticut Antitrust Act, General
Statutes § 35-24 et seq., and that the plaintiffs had not
carried their burden of proof by a preponderance of
the evidence that the defendants breached the listing
agreements or are liable for an anticipatory breach
because such listing agreements (1) did not satisfy the
requirements of § 20-325a, and (2) were personal ser-
vice contracts with Jeanette Haddad.
With regard to the issue of compliance with § 20-
325a, the court first found that the parties intended for
the buyer’s agreement and the listing agreements to be
read and interpreted together as one contract ‘‘notwith-
standing the integration clauses of the preprinted form
agreements and the discrepancies between which of
the plaintiffs are parties to the respective agreements,’’
because the documents were signed by the defendants
at the same time and date.19 The court then went on to
conclude that the agreements were ambiguous and
incomplete as to the duration of the authorization,
which is a term that must be included in any agreement
for commissions in a commercial real estate transaction
pursuant to § 20-325a. Specifically, the court stated that
‘‘[t]he evidence adduced at trial was evenly balanced
between two findings: (1) that all of the agreements were
intended to expire on September 10, 2010 . . . and (2)
that the term of the agreements began with the date of
the first sale or lease of a unit and continue[s] for a
period of ten years thereafter. . . . In other words, the
agreements either expire by their express terms on
September 10, 2010, or the agreements have no fixed
expiration date and are, therefore, invalid for failure to
comply with § 20-325a.’’20
In addition, the court rejected the plaintiffs’ fur-
ther arguments that they were entitled to commissions
because (1) the agreements substantially comply with
the statutory requirements, (2) the plaintiffs substan-
tially performed their obligations under the agreements
or were prevented from doing so, thereby excusing fur-
ther performance, and (3) the court should intervene
in equity to find that a commission is due and payable
despite a lack of compliance. The court reasoned that,
‘‘[f]irst, Jeanette Haddad did not, prior to her death, inter-
est a ready, willing, and able buyer or lessee in any of the
[p]arcel 13 units, nor did Theodore Haddad, Sr., Theo-
dore Haddad, Jr., or [Garland] Warren,21 acting on her
behalf or on behalf of Reserve Realty. Second, the lack
of a definite expiration date is too significant a lapse in
the statutory requirements to overlook.’’
Furthermore, with respect to the plaintiffs’ argument
that they were prevented from performing their obliga-
tions under the agreements, the court stated: ‘‘The court
does not find that [after the fall of 2007], the defendants
‘land banked’ the parcels, as suggested by the plaintiffs,
that is, taking the property off the market and thereby
excusing the plaintiffs from further performance. The
court finds, rather, that had Jeanette Haddad or Scalzo
found a valuable and qualified prospect during this time,
the defendants would have been happy to entertain it.
The court further finds that the defendants simply
waited for a prospective buyer to meet their demands,
and in the meantime employed all available options.’’
The plaintiffs appealed, claiming that the trial court
improperly concluded that (1) the purchase and sale
agreements constituted part of an illegal tying arrange-
ment in violation of the Connecticut Antitrust Act, (2)
the listing agreements did not comply with § 20-325a
because they were ambiguous and incomplete as to the
duration of the authorization, and (3) the listing agree-
ments were unenforceable by the plaintiffs because they
were personal service contracts of Jeanette Haddad.
As previously noted, this court affirmed the judgment
of the trial court on the ground that the defendants’ anti-
trust special defense barred the plaintiffs’ claims, pursu-
ant to the governing standard set forth in State v. Hos-
san-Maxwell, Inc., 181 Conn. 655, 436 A.2d 284 (1980).
See Reserve Realty I, supra, 174 Conn. App. 141. Our
Supreme Court, in Reserve Realty, LLC v. Windemere
Reserve, LLC, 335 Conn. 174, 204, 211, 229 A.3d 708(2020) (Reserve Realty II), overruled Hossan-Maxwell,
Inc., reversed this court’s decision with regard to the
defendants’ antitrust special defense, and remanded the
case to this court with direction to consider the plain-
tiffs’ remaining claims. Additional facts will be set forth
as needed.
The plaintiffs’ claim that the trial court improperly
concluded that the listing agreements do not satisfy the
requirements of § 20-325a is twofold. Specifically, the
plaintiffs contend that the listing agreements strictly
comply with the duration requirement set forth in § 20-
325a (b) and/or (c) (2). The plaintiffs also maintain that,
even if the listing agreements do not strictly comply
with § 20-325a (b) and/or (c) (2), they are neverthe-
less entitled to commissions pursuant to § 20-325a (d)
because the listing agreements substantially comply
with subsections (b) and/or (c) (2), and it would be
inequitable to deny them recovery. For the reasons that
follow, we disagree with the plaintiffs and, accordingly,
affirm the judgment of the trial court.
I
‘‘The right of a real estate broker to recover a commis-
sion is dependent upon whether the listing agreement
meets the requirements of § 20-325a (b). . . . It is well
established that the requirements of § 20-325a (b) are
mandatory rather than permissive and that the statute
is to be strictly construed. . . . A broker who does not
follow the mandate of [§ 20-325a (b)] does so at his [own]
peril.’’ (Emphasis added; internal quotation marks omit-
ted.) NRT New England, LLC v. Jones, 162 Conn. App.
840, 848, 134 A.3d 632 (2016).
Section 20-325a (b) provides in relevant part: ‘‘No
person, licensed under the provisions of this chapter,
shall commence or bring any action with respect to any
acts done or services rendered after October 1, 1995
. . . unless the acts or services were rendered pursuant
to a contract or authorization from the person for whom
the acts were done or services rendered. To satisfy
the requirements of this subsection any contract or
authorization shall . . . contain the conditions of such
contract or authorization . . . .’’ (Emphasis added.)
In addition, with specific regard to commercial real
estate transactions,22 § 20-325a (c), which is not a model
of grammatical clarity, essentially provides that a
licensed real estate broker cannot bring any action to
recover commissions for acts or services rendered unless
the acts or services were rendered pursuant to either
a contract or authorization meeting the requirements
of subsection (b), or a writing stating (1) for whom the
licensee will act or has acted, signed by the party for
whom the licensee will act or has acted, (2) the duration
of the authorization, and (3) the amount of any com-
pensation payable to the licensee. Similarly, the perti-
nent regulation; Regs., Conn. State Agencies § 20-328-6a
(d); provides in relevant part that a ‘‘licensee attempting
to negotiate or negotiating a sale, exchange, or lease
of a commercial real estate transaction shall obtain a
listing, buyer or tenant representation agreement, mem-
orandum, letter or other writing stating . . . the dura-
tion of the authorization . . . .’’ (Emphasis added.)
See also General Statutes § 20-328 (statutory authority
for regulation). Therefore, for the listing agreements at
issue to comply with § 20-325a (b) and/or (c) (2), and,
thus, entitle the plaintiffs to recover commissions, they
must specify the duration of the authorization.
‘‘To the extent that we are required to review conclu-
sions of law or the interpretation of the relevant statute
by the trial court, we engage in plenary review. . . .
We review the court’s factual findings, however, under
a clearly erroneous standard. . . . [W]hether a particu-
lar listing agreement complies with § 20-325a (b) is a
question of law.’’ (Citation omitted; internal quotation
marks omitted.) NRT New England, LLC v. Jones, supra,
162 Conn. App. 846.
A
We begin by construing the agreements at issue to
determine the parties’ intent as to the duration of the
authorization. When the trial court construed the agree-
ments, it determined that they were ambiguous as to
duration and that the evidence adduced at trial was
evenly balanced between a finding that (1) all of the
agreements were intended to expire on September 10,
2010, and (2) the term of the agreements began with
the date of the first sale or lease of a unit and continues
for a period of ten years thereafter. The plaintiffs dis-
pute these findings, arguing that it was improper for
the court to conclude that the agreements were ambigu-
ous as to duration because the different provisions in
the buyer’s agreement and the listing agreements are
not in conflict, and the court’s determination in this
regard was based on a purported inconsistency that no
party had ever found or voiced. We agree with the plain-
tiffs that the agreements are not ambiguous as to the
intended duration.
‘‘The law governing the construction of contracts is
well settled. When a party asserts a claim that chal-
lenges the trial court’s construction of a contract, we
must first ascertain whether the relevant language in
the agreement is ambiguous.’’ (Internal quotation marks
omitted.) Ramirez v. Health Net of the Northeast, Inc.,
285 Conn. 1, 13, 938 A.2d 576 (2008). ‘‘The court’s deter-
mination as to whether a contract is ambiguous is a
question of law; our standard of review, therefore, is
de novo.’’ (Internal quotation marks omitted.) Santos
v. Massad-Zion Motor Sales Co., 160 Conn. App. 12, 18,
123 A.3d 883, cert. denied, 319 Conn. 959, 125 A.3d 1013(2015). ‘‘The intent of the parties as expressed in a con-
tract is determined from the language used interpreted
in the light of the situation of the parties and the circum-
stances connected with the transaction.’’ (Internal quo-
tation marks omitted.) Connecticut Light & Power Co.
v. Lighthouse Landings, Inc., 279 Conn. 90, 109, 900
A.2d 1242 (2006).
‘‘[A] contract is ambiguous if the intent of the parties
is not clear and certain from the language of the contract
itself. . . . The contract must be viewed in its entirety,
with each provision read in light of the other provisions
. . . and every provision must be given effect if it is
possible to do so. . . . If the language of the contract is
susceptible to more than one reasonable interpretation,
the contract is ambiguous. . . . The fact that the par-
ties interpret the terms of a contract differently, how-
ever, does not render those terms ambiguous. . . .
[W]e accord the language employed in the contract a
rational construction based on its common, natural, and
ordinary meaning and usage as applied to the subject
matter of the contract. . . . Moreover, in construing
contracts, we give effect to all the language included
therein, as the law of contract interpretation . . . mili-
tates against interpreting a contract in a way that ren-
ders a provision superfluous.’’ (Citation omitted; inter-
nal quotation marks omitted.) A.C. Consulting, LLC v.
Alexion Pharmaceuticals, Inc., 194 Conn. App. 316,
326–27, 220 A.3d 890 (2019). ‘‘Each word must be con-
sidered along with not only all the other words that
surround it, but also the history and education of the
parties, the nature of the contract, the purposes of the
parties, and all other relevant circumstances.’’ (Foot-
note omitted.) 5 M. Kniffin, Corbin on Contracts (Rev.
Ed. 1998) § 24.21, p. 210. With these principles in mind,
we turn to the language of the agreements at issue.
The buyer’s agreement provides, inter alia, that ‘‘You
(BUYER(S)/TENANT(S): BLT Reserve, LLC and Winde-
mere Reserve, LLC appoint us . . . Jeanette Haddad,
Broker, [Scalzo Realty], and UC Properties, LLC as your
exclusive agent to assist you to locate and purchase/
option/exchange/lease real property acceptable to you.
. . . The type of property you would like to purchase/
option/exchange/lease is: GENERAL PROPERTY
DESCRIPTION: Parcels #13 and #15—Portions of The
Reserve.’’ There are four documents that comprise the
listing agreements. Two of the documents provide, inter
alia, that BLT and Windemere ‘‘hereby [grant] to Broker
the Exclusive Right to Sell and/or Lease the Property
[more particularly described as parcel 13 and parcel
15]. [BLT and Windemere] shall not on [their] own or
in conjunction with others sell and/or lease the Property
without written approval from Broker, nor shall [they]
grant any such rights to anyone else during the term
of this Agreement.’’ The other two documents compris-
ing the listing agreements provide, inter alia, that ‘‘Buyer
hereby grants to Broker the Exclusive Right to Sell and/
or Lease the Property [defined as parcel 13 and parcel
15 in the respective documents] and any portion thereof
pursuant to the terms and conditions set forth herein
and in the attached Agreement.’’
The listing agreements at issue are exclusive right to
sell listing agreements.23 ‘‘[T]hree types of real estate
listing agreements have traditionally been used in this
state . . . . Those categories are: the open listing,
under which the property owner agrees to pay the listing
broker a commission if that broker effects the sale of
the property but retains the right to sell the property
himself as well as the right to procure the services of any
other broker in the sale of the property; the exclusive
agency listing, which is for a time certain and authorizes
only one broker to sell the property but permits the
property owner to sell the property himself without
incurring a commission . . . and the exclusive right
to sell listing, under which the sale of the property
during the contract period, no matter by whom negoti-
ated, obligates the property owner to pay a commission
to the listing broker.’’ (Citations omitted; emphasis
added.) Real Estate Listing Service, Inc. v. Connecticut
Real Estate Commission, 179 Conn. 128, 132, 425 A.2d
581 (1979).24
With regard to the provisions in the agreements that
relate to duration, the buyer’s agreement states: ‘‘Term:
This agreement is in effect from 9/10/03, through and
including 9/10/10.’’ By contrast, two of the documents
comprising the listing agreements state: ‘‘Term: The
term of this Agreement shall begin at the time Developer
becomes the owner . . . and be for a period of One
Hundred and Twenty, (120), months from the date of
the first conveyance of an individual unit or executed
lease to an unrelated party of Developer and shall be
renewable by mutual agreement by both parties.’’
The plaintiffs argue that, contrary to the trial court’s
findings, the intent of the parties, which is definitively
expressed in the agreements, was ‘‘to create different
durations for different transactions.’’ That is, the buyer’s
agreement, by its terms, obligated the defendants to
use the named brokers as their representatives in pur-
chasing parcels 13 and 15 from Woodland, while the
listing agreements obligated the defendants to use the
named brokers as their exclusive agents in the subse-
quent marketing and sale and/or leasing of the parcels.
In response, the defendants argue that when reading
and interpreting the five agreements together as one
contract, the court correctly concluded that they were
conflicting as to the time frame governing the parties’
relationship, and thus ambiguous. We agree with the
plaintiffs.
When viewed in isolation, the two durational provi-
sions seem to be contradictory. When viewed, however,
in the context of the entirety of the documents in which
they are contained, it is clear that there is a way to
give effect to both provisions, as we must. See A.C.
Consulting, LLC v. Alexion Pharmaceuticals, Inc.,
supra, 194 Conn. App. 327. That is to say that the buyer’s
agreement and the listing agreements governed differ-
ent aspects of the relationship between the parties.
Specifically, the buyer’s agreement granted the named
brokers the exclusive right to represent BLT and Winde-
mere in purchasing parcels 13 and 15 from Woodland,
and such authorization expired on September 10, 2010.
The listing agreements, by contrast, granted the named
brokers the exclusive right to sell/lease parcels 13 and
15, or portions thereof, on behalf of BLT and Windemere
for a period of ten years from the date of the first con-
veyance of an individual unit or executed lease to an
unrelated party, after BLT and Windemere had acquired
ownership of the parcels.
As of the September 10, 2003 meeting, at which the
buyer’s agreement and listing agreements were exe-
cuted, the defendants already had executed purchase
and sale agreements for parcels 13 and 15 that were
being held in escrow by Woodland’s counsel for ninety
days until certain conditions were met. One such condi-
tion was that the defendants enter into listing agreements
with the brokers named in the purchase and sale agree-
ments. It strains credulity that the defendants would
have granted the brokers seven years to assist with
a sale that was essentially finalized on September 10,
2003. On the other hand, these are commercial contracts
made by sophisticated parties with the advice of coun-
sel. Accordingly, we presume that ‘‘the parties meant
what they said and said what they meant, in language
sufficiently definitive to obviate any need for deference
to the trial court’s factual findings as to the parties’
intent.’’ Tallmadge Bros., Inc. v. Iroquois Gas Trans-
mission System, L.P., 252 Conn. 479, 497, 746 A.2d 1277(2000). As our Supreme Court explained in Tallmadge
Bros., Inc., when the contracts at issue are commercial
in nature and were made by sophisticated commercial
parties with the advice of counsel, there is ‘‘a presump-
tion of definitiveness,’’25 meaning that in interpreting
such contracts we presume that the parties used defini-
tive language to describe their agreement. Id., 496–97;
see also Schwartz v. Family Dental Group, P.C., 106
Conn. App. 765, 773, 943 A.2d 1122 (‘‘[C]ourts do not
unmake bargains unwisely made. Absent other infirmit-
ies, bargains moved on calculated considerations, and
whether provident or improvident, are entitled never-
theless to sanctions of the law.’’ (Internal quotation
marks omitted.)), cert. denied, 288 Conn. 911, 954 A.2d
184 (2008). Indeed, because the language in the listing
agreements is definitive, we do not consider any extrin-
sic evidence regarding the parties’ intent.26
B
Having concluded that the agreements are unambigu-
ous as to the parties’ intent that the September 10, 2010
expiration date set forth in the buyer’s agreement only
pertains to the brokers’ authority to represent the defen-
dants in purchasing parcels 13 and 15 from Woodland,
we now turn to the issue of whether the provision gov-
erning the duration of the brokers’ authority to act as
the defendants’ exclusive listing agent to market and
sell and/or lease parcels 13 and 15, or portions thereof,
strictly complies with the requirement of § 20-325a (b)
and/or (c). This determination presents a question of
law. See NRT New England, LLC v. Jones, supra, 162
Conn. App. 846.
For ease of reference, we restate the language of the
provision at issue, and the relevant statutory and regula-
tory provisions. The agreement provision at issue states,
‘‘Term: The term of this Agreement shall begin at the
time Developer becomes the owner . . . and be for a
period of One Hundred and Twenty, (120), months from
the date of the first conveyance of an individual unit
or executed lease to an unrelated party of Developer,
and shall be renewable by mutual agreement by both
parties.’’ Section 20-325a (b) provides in relevant part:
‘‘No person, licensed under the provisions of this chap-
ter, shall commence or bring any action with respect
to any acts done or services rendered . . . unless the
acts or services were rendered pursuant to a contract
or authorization from the person for whom the acts
were done or services rendered. To satisfy the require-
ments of this subsection any contract or authorization
shall . . . contain the conditions of such contract or
authorization . . . .’’ (Emphasis added.) In addition,
§ 20-325a (c), which specifically governs commercial
real estate transactions, provides that a licensed real
estate broker cannot bring any action to recover com-
missions for acts or services rendered unless the acts
or services were rendered pursuant to either a contract
or authorization meeting the requirements of subsec-
tion (b), or a writing stating (1) for whom the licensee
will act or has acted, signed by the party for whom the
licensee will act or has acted (2) the duration of the
authorization, and (3) the amount of any compensation
payable to the licensee. Similarly, the pertinent regula-
tion provides in relevant part that a ‘‘licensee attempting
to negotiate or negotiating a sale, exchange or lease
of a commercial real estate transaction shall obtain a
listing, buyer or tenant representation agreement, mem-
orandum, letter, or other writing stating . . . the dura-
tion of the authorization . . . .’’ (Emphasis added.)
Regs., Conn. State Agencies § 20-328-6a (d).
The trial court, when addressing this issue, reasoned,
inter alia, that the language in § 20-235a (b) providing
that a listing agreement must include ‘‘the conditions
of such contract or authorization’’ means that a listing
agreement must contain ‘‘all of the terms and conditions
of the sale, exchange or lease, including . . . the date
on which the agreement is entered into and its expira-
tion date.’’ (Emphasis added; internal quotation marks
omitted.) For the latter proposition, the court improp-
erly relied upon § 20-328-6a (a) (1) of the Regulations
of Connecticut State Agencies, which, by its terms, does
not apply if a broker is attempting to negotiate a com-
mercial real estate transaction.27 Although the Abbey
Woods complex on parcel 13 is comprised of residential
apartments, it is properly characterized as a ‘‘commer-
cial real estate transaction’’ as that term is defined in Gen-
eral Statutes § 20-311 (9) because there are 470 units in
the complex and, thus, it is not a ‘‘building or structure
occupied or intended to be occupied by no more than
four families or a single building lot to be used for fam-
ily or household purposes.’’ See footnote 21 of this opin-
ion.
Subsection (d) of § 20-328-6a of the Regulations of
Connecticut State Agencies applies to commercial real
estate transactions, and it provides that listing agree-
ments must state ‘‘the duration of the authorization.’’
Therefore, to the extent that the trial court concluded
that the listing agreements in the present case were
invalid for failure to comply with § 20-235a because
they did not contain an expiration date, we disagree.
The proper inquiry is not whether the listing agreements
contain an expiration date, but rather whether they
specify the ‘‘duration’’ of the broker’s authorization to
act on behalf of the defendants. See Location Realty,
Inc. v. Colaccino, 287 Conn. 706, 718, 949 A.2d 1189(2008) (‘‘there is a more flexible standard for a writing
in commercial real estate transactions than that which
applies to noncommercial transactions’’). To answer
this question, we must interpret the meaning of the
term ‘‘duration’’ as it is used in § 20-235a. ‘‘This presents
a question of statutory interpretation over which our
review is plenary.’’ Casey v. Lamont, Conn. ,
, A.3d (2021).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In seeking to determine that
meaning, General Statutes § 1-2z28 directs us first to
consider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Footnote
added; internal quotation marks omitted.) Donahue v.
Veridiem, Inc., 291 Conn. 537, 547, 970 A.2d 630 (2009).
‘‘In interpreting statutes, words and phrases are to be
construed according to their commonly approved usage
. . . . Generally, in the absence of statutory definitions,
we look to the contemporaneous dictionary definitions
of words to ascertain their commonly approved usage.’’
(Citations omitted; internal quotation marks omitted.)
Ledyard v. WMS Gaming, Inc., Conn. , ,
A.3d (2021).
The term ‘‘duration’’ is not defined in § 20-325a, chap-
ter 392 of the General Statutes, nor in title 20 of the
Regulations of Connecticut State Agencies. Accord-
ingly, we look to its common dictionary definition. See
Casey v. Lamont, supra, Conn. . Webster’s Dic-
tionary defines ‘‘duration’’ as ‘‘1: the quality or state of
lasting for a period of time . . . 2: a portion of time
which is measurable or during which something exists,
lasts, or is in progress . . . .’’ Webster’s Third New
International Dictionary (1961) p. 703. Similarly, Black’s
Law Dictionary defines duration as ‘‘the length of time
something lasts.’’ Black’s Law Dictionary (9th Ed. 2009)
p. 578. Each of these definitions indicates that ‘‘dura-
tion’’ refers to an amount of time that is capable of being
measured.
We recognize that the provision at issue here is writ-
ten in such a way that the amount of time for which the
listing agreements would be in effect is capable of being
measured in some sense because it specifies a ten year
period that begins to run from the time of the first con-
veyance or lease of a unit. The problem, however, is that
when the listing agreements were executed, it was
entirely unclear how far into the future the parties
would be bound by the provision. That is because no
party, at the time the agreements were consummated,
knew if or when ‘‘the first conveyance of an individual
unit or executed lease’’ would occur with respect to
parcel 13 or parcel 15. In other words, the amount of
time for which the parties were bound by the agree-
ments was indeterminate because it could be calculated
only by reference to an uncertain future event. More-
over, the problem is compounded by the fact that the
provision also does not provide a ceiling on the ultimate
amount of time the listing agreements could last.
Accordingly, as written, the parties could be bound by
the provision indefinitely.
What has transpired with respect to parcel 15 is illus-
trative of the indefinite nature of the duration provision
at issue. Namely, according to the representations of
the parties, as of the date of oral argument to this court
(i.e., December 2, 2020), the term of the contract as to
parcel 15 had not begun, nor had development of the
office space started. It has been more than seventeen
years since the listing agreements were executed, yet
the parties still cannot say with any degree of certainty
when the term will begin or end. Under these circum-
stances, we cannot conclude that the listing agreements
strictly complied with the plain meaning of the duration
requirement of § 20-325a (b) and/or (c) (2).
In light of our conclusion that the term ‘‘duration,’’
as used in § 20-325a, is not ambiguous, it is unnecessary
to look to extratextual sources. We note, however, that
practically speaking our conclusion that listing agree-
ments with an indefinite duration do not comply with
§ 20-325a is consistent with public policy and custom
within the commercial real estate industry. See 2A N.
Singer & J. Singer, Sutherland Statutory Construction
(7th Ed. 2007) § 45:2, p. 15 (‘‘It is only through custom,
usage, and convention that language acquires estab-
lished meanings.’’) Specifically, with regard to exclusive
right to sell–listing agreements in particular, a definite
and measurable duration term is integral because dur-
ing that time, so long as the broker uses best efforts to
procure a buyer, the broker is entitled to a commission
if the property sells, regardless of whether he or she is
the one to actually procure the buyer. See Real Estate
Listing Service, Inc. v. Connecticut Real Estate Com-
mission, supra, 179 Conn. 133–34. In other words, for
the duration of the contract, the broker is entitled to
a commission even if the owner sells the property him-
self or herself.
Because these types of agreements implicate a prop-
erty owner’s right to alienate freely his or her own
property and are highly favorable to the brokers named
in the agreement, in that they allow the brokers poten-
tially to reap the fruit of another person’s labor, it is
critical that the precise duration of such agreements
is specifically delineated. See id., 133 (‘‘[u]nder [the
exclusive right to sell listing], the property owner relin-
quishes to some extent the right, although not the
power, to alienate his real property’’ (footnote omit-
ted)); see also Harris v. McPherson, 97 Conn. 164, 167–
68, 115 A. 723 (1922) (‘‘The owner, in a contract giving
a broker the exclusive sale of property, makes the bro-
ker the only medium through which a purchaser can
be procured during the life of the contract. The owner
agrees, in such a contract, not only to exclude another
agent, but also himself from procuring a purchaser.
Ordinarily in this class of contracts, the exclusive sale
is given to the broker for a definite time.’’ (Emphasis
added.)); 23 R. Lord, Williston on Contracts (4th Ed.
2002) § 62:20, p. 393 (‘‘[a]n exclusive right to sell may
be created only by clear and unambiguous language
since the owner of property should not lightly be held to
have surrendered the right to sell [the owner’s] property
unless that right is expressly negated by the contract’’).
Moreover, exclusive right to sell listing agreements
of an indefinite duration do not tend to promote the
legitimate interests of the parties involved or of the gen-
eral public. As one California court of appeal observed
in discussing that state’s legislatively expressed public
policy against open-ended exclusive real estate listing
contracts: ‘‘[T]he evil which the legislature had in mind
was the practice of some brokers to obtain contracts
which placed themselves in a position to claim commis-
sions for an indefinite time without performing any ser-
vices, nor, perhaps ever intending to. . . . Besides
being invariably disadvantageous to the property owner,
open-ended exclusive listing contracts undoubtedly
were seen as tending to promote disputes and lawsuits
among parties affected and as generally being contrary
to the legitimate interests of not only buyers and sellers
of real estate but brokers as well. For instance, as long
as a listing of this kind had not been cancelled by mutual
agreement, the property owner could not employ another
broker except at the risk of having to pay double com-
missions.’’ (Citation omitted; internal quotation marks
omitted.) Nystrom v. First National Bank of Fresno,
81 Cal. App. 3d 759, 765–66, 146 Cal. Rptr. 711 (1978).
Furthermore, as to custom, the testimony of Scalzo,
a licensed, experienced commercial real estate broker
in Connecticut, who owns his own real estate franchise,
indicates that it is considered best practices for a com-
mercial real estate broker to set forth a measurable,
definite duration for exclusive right to sell–listing agree-
ments. Specifically, he testified that with regard to the
‘‘Exclusive Right to Sell–Listing Agreement’’ document
that was used for the Woodland agreement and then
photocopied and altered to serve as two of the docu-
ments comprising the listing agreements29: ‘‘I wouldn’t
know if it is [a legal and proper agreement] or not. I
only use the [Connecticut Association Realtor (CAR)]
forms because they teach us it has to have certain font.
It’s got to have a beginning date, end date.’’ At another
point during his testimony, Scalzo explained that it is
his company’s policy to use CAR forms ‘‘because we
go to real estate class, and they tell us that we have to
have the right font, we have to have a beginning date,
end date and all those items that a realtor would have.
And so our policy is that we use forms that we know
will stand up.’’ Moreover, upon review of the CAR form
for an exclusive right to sell–listing agreement, it is
clear that the form prompts the parties to specify a
beginning date and ending date for the listing period.30
For these reasons, we conclude that the listing agree-
ments here, which fail to set forth a measurable, definite
duration, did not strictly comply with § 20-325a (b) and/
or (c), and such failure is contrary to public policy and
custom in the commercial real estate industry. This con-
clusion, however, does not end our analysis. We must
still consider whether the plaintiffs are nevertheless enti-
tled to recover commissions pursuant to subsection (d)
of § 20-325a, which creates an exception to the require-
ments of subsections (b) and (c).
II
Section 20-325a (d) provides in relevant part: ‘‘Noth-
ing in . . . subdivisions (2) to (7), inclusive, of subsec-
tion (b) of this section or subsection (c) of this section
shall prevent any licensee from recovering any commis-
sion . . . if it would be inequitable to deny such recov-
ery and the licensee . . . with respect to a commercial
real estate transaction, has substantially complied with
subdivisions (2) to (6), inclusive, of subsection (b) of
this section or subdivision (2) of subsection (c) of this
section.’’ (Emphasis added.) ‘‘Therefore, subsection (d)
provides that, when . . . there is no strict compliance
with the requirements of subsections (a), (b) and (c),
an action for a real estate commission under § 20-325a
nonetheless may proceed if two preconditions are met:
(1) there has been substantial compliance with the
requirements relevant to the transaction; and (2) the
facts and circumstances of a case would make it inequi-
table to deny recovery.’’ (Emphasis added.) Location
Realty, Inc. v. Colaccino, supra, 287 Conn. 719. ‘‘The use
of the conjunctive ‘and’ in § 20-325a (d) indicates that,
even if denial of recovery would be inequitable, a licensed
broker may not recover a commission in a commercial
real estate transaction if there is not substantial compli-
ance with the specific requirements under subsections
(b) or (c).’’ Id., 719 n.11.
First, we address whether the listing agreements here
substantially complied with the requirements of § 20-
325 (b) and/or (c). As previously mentioned, ‘‘[w]hether
a particular listing agreement complies with § 20-325a
. . . is a question of law.’’ (Internal quotation marks
omitted.) NRT New England, LLC v. Jones, supra, 162
Conn. App. 846. ‘‘The doctrine of substantial compli-
ance is closely intertwined with the doctrine of substan-
tial performance. . . . Pursuant to the doctrine of sub-
stantial performance, a technical breach of the terms
of a contract is excused, not because compliance with
the terms is objectively impossible, but because actual
performance is so similar to the required performance
that any breach that may have been committed is imma-
terial.’’ (Citation omitted; internal quotation marks
omitted.) Pack 2000, Inc. v. Cushman, 311 Conn. 662,
675, 89 A.3d 869 (2014). ‘‘[S]ubstantial performance is
the antithesis of material breach; if it is determined that
a breach is material, or goes to the root or essence of
the contract, it follows that substantial performance
has not been rendered . . . .’’ (Internal quotation
marks omitted.) 21st Century North America Ins. Co.
v. Perez, 177 Conn. App. 802, 815, 173 A.3d 64 (2017),
cert. denied, 327 Conn. 995, 175 A.3d 1246 (2018).
In the present case, we conclude that the listing agree-
ments did not substantially comply with § 20-325a (b)
and/or (c) because they were indefinite as to a key
element of the agreement, namely the duration. See id.
(‘‘the doctrine of substantial performance applies only
where performance of a nonessential condition is lack-
ing’’ (emphasis in original; internal quotation marks
omitted)). As previously discussed, the duration of an
exclusive right to sell–listing agreement goes to the
root or essence of the agreement because, during that
specified period, so long as the broker uses best efforts
to procure a buyer, the broker is entitled to a commis-
sion if the property sells, regardless of whether he or
she actually procured the buyer. See Real Estate Listing
Service, Inc. v. Connecticut Real Estate Commission,
supra, 179 Conn. 133–34.
Failing to specify the duration of a listing agreement
when that term is imperative to the parties’ understand-
ing of their respective rights under the contract is a
shortcoming of much greater magnitude than the type
that this court previously has concluded constituted
substantial compliance with § 20-325a (d). See NRT
New England, LLC v. Jones, supra, 162 Conn. App.
851–52 (holding that parties’ agreement substantially
complied with § 20-325a (b) notwithstanding reference
to wrong subsection of statute, which court character-
ized as ‘‘essentially a scrivener’s error’’); see also Sunset
Gold Realty, LLC v. Premier Building & Development,
Inc., 133 Conn. App. 445, 454–56, 36 A.3d 243 (holding
that there was substantial compliance with § 20-325a
notwithstanding that assignee of original party to listing
agreement, which specified that it was ‘‘binding upon
. . . assigns,’’ was not signatory to agreement because
assignee sent e-mail explicitly acknowledging its duty to
compensate broker (emphasis omitted)), cert. denied,
304 Conn. 912, 40 A.3d 319 (2012). Therefore, we con-
clude that the listing agreements did not substantially
comply with § 20-325a.
Even if we were to conclude that the listing agree-
ments did substantially comply with § 20-325a (b) and/
or (c), subsection (d) also requires, as a precondition
to the application of the exception, that the facts and
circumstances are such that it would be inequitable to
deny recovery. See NRT New England, LLC v. Jones,
supra, 162 Conn. App. 849. In the present case, the trial
court found that equity did not require that the plaintiffs
be granted commissions under the circumstances pre-
sented. We review the trial court’s equitable determina-
tion under the clearly erroneous standard. See id., 852
(‘‘[t]he determination of whether a particular set of cir-
cumstances was unjust is essentially a factual finding
for the trial court’’ (internal quotation marks omitted)).
In doing so, we are mindful that ‘‘[t]he credibility of
the witnesses and the weight to be accorded to their
testimony is for the trier of fact. . . . [An appellate]
court does not try issues of fact or pass upon the credi-
bility of witnesses. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port 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 mis-
take has been committed. . . . Because it is the trial
court’s function to weigh the evidence and determine
credibility, we give great deference to its findings.’’
(Citation omitted; internal quotation marks omitted.)
Gaughan v. Higgins, 186 Conn. App. 618, 626, 200 A.3d
1161 (2018), cert. denied, 330 Conn. 968, 200 A.3d 188(2019), and cert. denied, 330 Conn. 968, 200 A.3d 699(2019).
The plaintiffs argue that the court improperly found
that equitable considerations do not entitle them to
recovery. Specifically, the plaintiffs contend that they
worked hard to market the parcels over several years
before Jeanette Haddad’s death and that the defendants
wrongfully prevented them from marketing the Abbey
Woods units. We disagree with the plaintiffs that the
court improperly concluded that equity does not entitle
them to recovery.
There is evidence in the record to support the court’s
determination that it would not be inequitable to deny
the plaintiffs relief; therefore, the finding was not clearly
erroneous. Specifically, there was no sale or lease with
regard to either parcel until March, 2013. Because exclu-
sive right to sell/lease–listing agreements are inherently
results driven, in that a commission is only due if a sale
or lease is accomplished, it is not inequitable to deny
recovery in an instance where a result was not achieved
until nearly ten years after the listing contract was exe-
cuted, and approximately two months after one of the
named brokers had died.
In addition, as the court noted in its findings, after
the fall of 2007, the real estate market conditions ‘‘[soft-
ened] to the point where the parties no longer felt that
monthly, or even quarterly, in person meetings were
necessary. In the words of Paul Kuehner, ‘things went
quiet,’ and there were very few, if any, communications
between the parties [after 2007].’’ Moreover, with regard
to the efforts made by the brokers to procure buyers
or tenants for the subject parcels, the court found that
(1) ‘‘[f]rom early 2006 through the fall of 2007, [Garland
Warren, Theodore Haddad, Sr., and Theodore Haddad,
Jr., on behalf of Jeanette Haddad and Scalzo] diligently
contacted possible buyers and lessees of the site in
discharge of the broker’s duties pursuant to the listing
agreements’’ and (2) ‘‘[f]rom early to mid-2007, Jeanette
Haddad and Scalzo continued to make best efforts to
find prospective buyers or lessees . . . .’’
These findings support the contention that the plain-
tiffs’ diligent effort with regard to marketing parcels 13
and 15 only lasted for approximately two years. After
the fall of 2007, the brokers were not expending much
time or energy on this project,31 they did not prepare
any prospect lists,32 and they did not spend any money
advertising for parcel 15 or the Abbey Woods apartment
complex on parcel 13. See 23 Williston on Contracts (4th
Ed. 2021) § 62:20 (‘‘[b]est efforts with which a broker
is required to perform in order to collect a commission
under an exclusive selling agreement include evidence
of expenditure of time, effort, or money’’). Although we
acknowledge that the economic downturn undoubtedly
contributed to the plaintiffs’ reduced marketing activity,
the evidence also supports the notion that, even under
such circumstances, after 2007, the plaintiffs’ effort left
much to be desired.33
Furthermore, with regard to the plaintiffs’ contention
that the defendants wrongfully prevented them from
performing their obligations under the listing agree-
ments, the court made explicit findings to the contrary.
Specifically, it found that (1) the defendants did not
take the property off the market, (2) if Jeanette Haddad
or Scalzo found a valuable and qualified prospect, the
defendants would have been happy to entertain it, and
(3) the defendants waited for a prospective buyer to
meet their demands, and in the meantime explored all
available options. These findings are supported by the
evidence and, thus, are not clearly erroneous.
We further acknowledge that, as the plaintiffs point
out, the evidence is uncontroverted that the defendants
did not notify the Haddads or Scalzo of the site plan
approval for, or construction of, the Abbey Woods
apartments. It is likewise uncontroverted, however, that
after Theodore Haddad, Jr., learned of Abbey Woods
in 2013, at which point it was already constructed, nei-
ther he, nor his father, made any effort to seek out
potential tenants. They did not bring any potential ten-
ants to the property, spend any time or money market-
ing the property, or even reach out to the defendants
to discuss acting as a broker for the apartment units.
As such, even if it was improper for the defendants not
to notify the Haddads or Scalzo of Abbey Woods, in
light of all of the facts, we are not convinced that it
is inequitable to deny the plaintiffs commissions with
respect to these apartments because, once they became
aware of the apartments, they made no effort to lease
them. Moreover, the fact that Theodore Haddad, Jr.,
was ‘‘shocked’’ to learn of Abbey Woods in 2013, is
indicative of the lack of attention that was being given
to this property, a property that the brokers would have
needed to use best efforts to lease or sell to be entitled to
commissions in the first place. See Real Estate Listing
Service, Inc. v. Connecticut Real Estate Commission,
supra, 179 Conn. 133–34 (under exclusive right to sell
listing, ‘‘the broker incurs an obligation to use his best
efforts during the contract period to procure a buyer’’).
Because the listing contract did not strictly or sub-
stantially comply with § 20-325a (b) and/or (c), and the
trial court’s finding that it would not be inequitable to
deny the plaintiffs’ recovery is not clearly erroneous,
we affirm the judgment of the trial court in the breach
of contract action. Moreover, in light of our conclusion
that the plaintiffs cannot prevail in the breach of con-
tract action, the plaintiffs’ claims in the foreclosure
actions also must fail. See footnote 1 of this opinion.
Therefore, we affirm the trial court’s judgment in each
of those actions as well.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Docket No. AC 38167 arises from the underlying breach of contract
action. Docket Nos. AC 38440 and AC 38442 pertain to two actions that the
plaintiffs commenced seeking to foreclose liens that they had recorded on
the parcels of property that are the subject of the breach of contract action
(foreclosure actions). See footnote 18 of this opinion. The plaintiffs’ claims
on appeal in the foreclosure actions are identical to the claims the plaintiffs
make in the breach of contract action. As such, we conclude, consistent
with the per curiam opinions previously issued by this court in those appeals,
that the disposition of the claims in the foreclosure actions is controlled
by the disposition of the claims in the breach of contract action. See Reserve
Realty, LLC v. BLT Reserve, LLC, 174 Conn. App. 150, 165 A.3d 159 (2017),
rev’d on other grounds, 335 Conn. 174, 229 A.3d 708 (2020); Reserve Realty,
LLC v. Windemere Reserve, LLC, 174 Conn. App. 153, 165 A.3d 160 (2017),
rev’d on other grounds, 335 Conn. 174, 229 A.3d 708 (2020). Accordingly,
because we conclude that the plaintiffs are not entitled to commissions in
the breach of contract action, the plaintiffs’ claims in the foreclosure actions
also fail. See footnote 18 of this opinion.
2
The plaintiffs initially raised three claims on appeal. Specifically, they
claimed that the trial court improperly determined that (1) the purchase
and sale agreements on which they based their claims for commissions
constituted part of an illegal tying arrangement, (2) the listing agreements
entered into pursuant to such purchase and sale agreements are unenforce-
able because they did not comply with § 20-325a, and (3) such listing agree-
ments were unenforceable by the plaintiffs because they were personal
service contracts of Jeanette Haddad. This court initially affirmed the judg-
ment of the trial court on the ground that the purchase and sale agreements
constituted part of an illegal tying arrangement under applicable antitrust
law and did not address the plaintiffs’ remaining two claims. See Reserve
Realty, LLC v. Windemere Reserve, LLC, 174 Conn. App. 130, 141, 165 A.3d
162 (2017), rev’d, 335 Conn. 174, 229 A.3d 708 (2020). Our Supreme Court
reversed the decision of this court, however, and remanded the case to us
with direction to consider the plaintiffs’ remaining claims. Reserve Realty,
LLC v. Windemere Reserve, LLC, 335 Conn. 174, 204, 211, 229 A.3d 708(2020). Because we now affirm the trial court’s decision with respect to the
plaintiff’s second claim, we do not address the sole remaining claim.
3
‘‘To the extent that ‘Jeanette Haddad, Broker’ is distinct from Jeanette
Haddad, those distinctions are not material to our resolution of the claims
on appeal.’’ Reserve Realty I, supra, 174 Conn. App. 132 n.1.
4
‘‘When formed, Reserve Realty was named UC Properties, LLC (UC
Properties). On July 22, 2004, Scalzo filed articles of amendment, changing
the name of the company from UC Properties to Reserve Realty.’’ Reserve
Realty I, supra, 174 Conn. App. 133 n.2. The trial court found that the limited
liability company was formed ‘‘to market and sell portions of the Reserve
property as it became subdivided and sold to various new owners.’’
5
‘‘The Kuehner and Haddad families have been personal friends and busi-
ness associates since the late 1970s.’’ Reserve Realty I, supra, 174 Conn.
App. 133 n.3.
6
‘‘The plaintiffs moved to add Scalzo Realty as a necessary party to the
action. The trial court granted the motion . . . . Thereafter, Scalzo Realty
was defaulted for failure to plead. Subsequently, the plaintiffs withdrew this
action as to Scalzo Realty.’’ Reserve Realty I, supra, 174 Conn. App. 133 n.4.
7
‘‘Theodore Haddad, Jr., acted on behalf of Jeanette Haddad.’’ Reserve
Realty I, supra, 174 Conn. App. 135 n.7.
8
‘‘The trial court determined that it was not clear precisely how the
final, fully executed hard copies of the agreements came to be executed by
Jeanette Haddad. . . . The trial court found, however, that Carl Kuehner,
Jr., executed the agreements on behalf of both BLT and Windemere with
the intent that the defendants be legally bound.’’ Reserve Realty I, supra,
174 Conn. App. 135 n.8.
9
‘‘In the buyer’s agreement, the defendants appointed Scalzo Realty, UC
Properties [LLC], and Jeanette Haddad as their exclusive agents to assist
in the purchase of parcel 13 and parcel 15.’’ Reserve Realty I, supra, 174
Conn. App. 135 n.9. UC Properties, LLC, which later became Reserve Realty,
was not formed until five days after this agreement was executed (i.e.,
September 15, 2003).
10
‘‘The consent agreements did not address the defendants’ obligation to
use the plaintiffs’ brokerage services.’’ Reserve Realty I, supra, 174 Conn.
App. 135 n.10.
11
‘‘In the exclusive right to sell–listing agreement for parcel 13, BLT
granted Jeanette Haddad and Scalzo Realty the exclusive right to sell and/
or lease parcel 13.’’ Reserve Realty I, supra, 174 Conn. App. 136 n.11.
12
‘‘In the exclusive right to sell/lease–listing agreement for parcel 13,
BLT granted UC Properties [LLC], Scalzo Realty, and Jeanette Haddad the
exclusive right to sell and/or lease parcel 13 or any portion of parcel 13.’’
Reserve Realty I, supra, 174 Conn. App. 136 n.12.
13
‘‘In the exclusive right to sell/lease–listing agreement for parcel 15,
Windemere granted UC Properties [LLC], Scalzo Realty, and Jeanette Haddad
the exclusive right to sell and/or lease parcel 15 or any portion of parcel
15.’’ Reserve Realty I, supra, 174 Conn. App. 136 n.13.
14
‘‘In the exclusive right to sell–listing agreement for parcel 15, Windemere
granted Jeanette Haddad and Scalzo Realty the exclusive right to sell and/
or lease parcel 15.’’ Reserve Realty I, supra, 174 Conn. App. 136 n.14.
15
The trial court, in its memorandum of decision, refers to all of the
agreements executed on September 10, 2003, as ‘‘the listing agreements.’’
16
We refer to Jeanette Haddad, Theodore Haddad, Sr., and Theodore
Haddad Jr., collectively as the Haddads and individually where appropriate.
17
The plaintiffs filed two separate complaints, one with respect to parcel
13 and the other with respect to parcel 15. In both complaints, the plaintiffs
alleged that the parties intended that the buyer’s agreement and the listing
agreements executed on September 10, 2003, ‘‘should be read together as
a whole and to confirm the brokers’ rights to commissions from’’ the defen-
dants. The plaintiffs further alleged that those agreements ‘‘taken either
separately or together complied with the provisions of [§] 20-325a of the
Connecticut General Statutes . . . .’’
18
‘‘Subsequently, on May 6, 2014, the plaintiffs commenced two actions
seeking to foreclose liens that they had recorded as to parcel 13 and parcel
15 (foreclosure actions). On September 28, 2015, the parties filed a stipulation
in each of the foreclosure actions, stipulating that the memorandum of
decision in the [breach of contract] action required the conclusion that the
plaintiffs could not establish probable cause to sustain the validity of the
liens, as required by General Statutes § 20-325e. The parties, therefore, stipu-
lated that judgment be rendered against the plaintiffs in the foreclosure
actions, but that all appellate rights be reserved. The plaintiffs . . . appealed
from the judgments ordering the discharge of the liens.’’ Reserve Realty I,
supra, 174 Conn. App. 137 n.15. This court, in separate per curiam opinions,
affirmed the judgments in the foreclosure actions, stating that the disposition
of the claims therein was governed by the disposition of the claims in the
breach of contract action. See Reserve Realty, LLC v. BLT Reserve, LLC,
174 Conn. App. 150, 165 A.3d 159 (2017), rev’d on other grounds, 335 Conn.
174, 229 A.3d 708 (2020); Reserve Realty, LLC v. Windemere Reserve, LLC,
174 Conn. App. 153, 165 A.3d 160 (2017), rev’d on other grounds, 335 Conn.
174, 229 A.3d 708 (2020).
19
The plaintiffs do not challenge on appeal the trial court’s determination
that all of the agreements executed on September 10, 2003, were intended
to be read and interpreted together. As previously mentioned, the plaintiffs
alleged in their complaint and argued to the trial court that the buyer’s
agreement and listing agreements should be read together as a whole, as
that was the parties’ intent. See footnote 17 of this opinion. In support
thereof, the plaintiffs point to the fact that the agreements expressly refer-
ence one another. Specifically, the buyer’s agreement states: ‘‘Buyer agrees
to enter into a listing agreement dated 9/10/03 with Broker—Jeanette Haddad
Broker, [Scalzo Realty], UC Properties, LLC.’’ See McCutcheon & Burr,
Inc. v. Berman, 218 Conn. 512, 523–24, 590 A.2d 438 (1991) (‘‘[S]eparate
documents will be deemed to constitute a valid contract under § 20-325a
(b) if they collectively satisfy the statutory requirements and relate to the
same agreement. . . . The burden of establishing a valid listing agreement
in this manner is great, however, and must consist of more than a reference
to the [listing] contract in the sales agreement. . . . Parole evidence will
be considered if it convincingly shows that the signed and unsigned writings
are connected to one another and have been assented to by the parties.’’
(Citations omitted; emphasis in original; internal quotation marks omitted.)).
Because the parties do not challenge the trial court’s determination that
the agreements should be read together, we do not review the propriety of
that conclusion.
20
The court reasoned: ‘‘In support of the defendants’ argument that the
agreements expire by their terms on September 10, 2010, the court accepts
the plaintiffs’ argument that the parties intended that the term of the agree-
ments had to be at least several years in duration because of the size of
the project, the potential for delays, and the possibility of upswings and
downturns in real estate markets overall. A term of seven years is consistent
with this argument. Secondly, September 10, 2010, has the virtue of being
a definite date (plaintiff’s [exhibit] 6). The court does not accept the plaintiffs’
argument that the deadline of plaintiffs’ [exhibit] 6 [buyer’s agreement]
refers only to the time within which the defendants were required to execute
plaintiffs’ exhibits 7, 8, 9 & 10 [the listing agreements]. The court rejects
this reading because paragraph 4 of [the buyer’s agreement] expressly
requires the other agreements [listing agreements] to be signed on September
10, 2003, and because a period of seven years within which simply to sign
the other agreements seems excessive and unlikely to have been the par-
ties’ intent.
‘‘On the other hand, if one reads only [the listing agreements], and excludes
[the buyer’s agreement], the listing agreements could conceivably last for
an indefinite period of time. This reading of the agreement is equally unavail-
ing to the plaintiffs, because listing agreements that continue for an indefinite
period of time are inherently unreasonable and unenforceable. In other
words, the agreements either expire by their express terms on September
10, 2010, or the agreements have no fixed expiration date and are, therefore,
invalid for failure to comply with § 20-325a. Ambiguities in written agree-
ments are construed against the drafting party. . . . In the present case,
the court construes these ambiguities against the plaintiffs, who had primary
responsibility for drafting the agreements and, arguably, superior knowledge
of the law relating to listing agreements. Jeanette Haddad and Scalzo could
have inserted a definite expiration date in the agreements; they did not,
however, and the listing agreements are unenforceable for their failure to
comply with the requirements of § 20-325a.’’ (Citations omitted; footnote
omitted.)
21
Garland Warren, as an employee of Scalzo, worked with Theodore Had-
dad, Sr., and Theodore Haddad, Jr., to compile a list of possible buyers and/
or lessees for the parcels, to create marketing materials to promote interest
in the parcels, and, between early 2006 and the fall of 2007, to contact
possible buyers and lessees.
22
Pursuant to General Statutes § 20-311 (9), ‘‘ ‘[c]ommercial real estate
transaction’ ’’ is defined as ‘‘any transaction involving the sale, exchange,
lease or sublease of real property other than real property containing any
building or structure occupied or intended to be occupied by no more than
four families or a single building lot to be used for family or household
purposes.’’ The transactions at issue here are properly characterized as
commercial real estate transactions because there is no evidence to suggest
that parcel 13 and/or parcel 15 were ever intended to be occupied by fewer
than four families, or to contain a single building lot to be used for family
or household purposes. Specifically, the master plan, which was approved by
the Danbury Zoning Commission in November, 2002, before the defendants
began negotiating with Woodland to purchase parcel 13 and parcel 15,
provided that 470 residential rental units were to be built on parcel 13 and
up to 650,000 square feet of office space was to be built on parcel 15. In
fact, parcel 13 now contains a luxury apartment complex with 470 units,
and parcel 15, which was still not developed as of the date of oral argument
to this court, is still intended to be commercial office space. See Reserve
Realty I, supra, 174 Conn. App. 149.
23
For simplicity, we will refer to this type of contract as an ‘‘exclusive
right to sell listing agreement.’’ We recognize, however, that the agreements
at issue are ‘‘exclusive right to sell/lease listing agreement[s].’’ (Emphasis
added.) The fact that the listing agreements gave the brokers the exclusive
right to procure tenants, as well as buyers, does not impact the analysis in
any way.
24
Neither party contends that these agreements are not exclusive right
to sell–listing agreements. In addition, we note that the listing agreements
(1) are clearly labeled ‘‘Exclusive Right to Sell–Listing Agreement’’ and
‘‘Exclusive Right to Sell/Lease–Listing Agreement,’’ (2) the court refers to
them as ‘‘exclusive’’ on numerous occasions in its findings of fact, (3) there
is no determination by the court that, despite the label, the agreements truly
are one of the other two types of listing agreements, and (4) the substance of
the agreements is characteristic of exclusive right to sell–listing agreements.
Specifically, they state: ‘‘Developer hereby grants to Broker the Exclusive
Right to Sell and/or Lease the Property. Developer shall not on its’ own or
in conjunction with others sell and/or lease the Property without written
approval from Broker, nor shall it grant any such rights to anyone else
during the term of this Agreement.’’ By contrast, it is characteristic of an
open listing to permit the property owner to obtain the services of other
real estate brokers to effect the sale of the property. See Real Estate Listing
Service, Inc. v. Connecticut Real Estate Commission, supra, 179 Conn. 134.
There is also no provision in the agreements at issue specifically stating
that to be entitled to commissions the brokers had to procure a ready,
willing and able buyer. See id., 132, 133 (under exclusive right to sell listing,
‘‘the sale of the property during the contract period, no matter by whom
negotiated, obligates the property owner to pay a commission to the listing
broker,’’ whereas under open listing, ‘‘the property owner promises to pay
the listing broker his commission when he produces a ready, willing and
able buyer’’).
To the extent that the trial court seemingly analyzed the agreements here
as if they were open listing agreements, essentially stating that broker’s
commissions would be due and payable to Jeanette Haddad and Scalzo
pursuant to the listing agreements only ‘‘if Jeanette and/or Scalzo procured
ready, willing, and able buyers or lessees for parcel 13 or parcel 15,’’ and
then citing to a case that involved an open listing agreement; New England
Retail Properties, Inc. v. Maturo, 102 Conn. App. 476, 925 A.2d 1151, cert.
denied, 284 Conn. 912, 931 A.2d 932 (2007); such analysis was improper.
(Emphasis added.) Despite the trial court’s purported error in this regard,
our ultimate conclusion that the court’s judgment should be affirmed does
not change.
25
There is no evidence in the record that rebuts the presumption of
definitiveness of the language of the agreements at issue. None of the individ-
uals who testified at trial indicated that they perceived any conflict between
the buyer’s agreement and the listing agreements when executed. Moreover,
to the extent that the trial court reasoned that it was sensible to conclude
that the parties intended that all of the agreements between them expire
on September 10, 2010, because the agreements ‘‘had to be at least several
years in duration because of the size of the project, the potential for delays,
and the possibility of upswings and downturns in real estate markets overall,’’
that same reasoning likewise supports the conclusion that the parties
intended for the duration to be for a period of ten years from the date of
the first conveyance of an individual unit or executed lease to a party
unrelated to the defendants.
26
We note that, even if we were to conclude that the duration provisions
in the buyer’s agreement and the listing agreements are conflicting and thus
create ambiguity with regard to the parties’ intent, our ultimate conclusion
that the plaintiffs cannot prevail on their claim for commissions would be
the same. See 11 R. Lord, Williston on Contracts (4th Ed. 1999) § 30:4, p.
46 (‘‘[a]mbiguity may exist when two contractual provisions are in conflict
with each other’’). Specifically, assuming arguendo that we determined that
the parties intended for all of the agreements to expire on September 10,
2010, the legal import of such conclusion would be that the parties’ agree-
ments complied with the duration requirement of § 20-325a, and were thus
legally enforceable. Nevertheless, because the agreements are exclusive
right to sell listing agreements and no sale or lease occurred with regard
to parcel 13 or parcel 15 before the expiration date, the plaintiffs would
not be entitled to a commission. See Colliers, Dow & Condon, Inc. v.
Schwartz, 77 Conn. App. 462, 473–74, 823 A.2d 438 (2003) (‘‘By its terms,
the listing agreement was to provide the plaintiff with the exclusive right
to offer the property for sale or lease. Under such an agreement, the sale
or lease of the property during the contract period, no matter by whom
negotiated, obligates the property owner to pay a commission to the listing
broker.’’ (Emphasis added.)).
27
Specifically, § 20-328-6a (a) (1) of the Regulations of Connecticut State
Agencies provides that it is applicable to situations ‘‘other than a commercial
real estate transaction.’’ (Emphasis added.)
28
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
29
Theodore Haddad, Jr., testified that he brought the photocopies to the
September 10, 2003 meeting and that Paul Kuehner made handwritten
changes to the documents, including, inter alia, crossing out the first para-
graph that stated: ‘‘AGEEMENT, made this 4th day of February, 2002 between
Jeanette Haddad, Broker and [Scalzo Realty] . . . and Anthony O. Lucera
and Glenn Tatangelo, their heirs and assigns . . . .’’
30
We also note that prior to the enactment of § 20-325a, our Supreme
Court stated, when interpreting an exclusive right to sell–listing agreement
that contained no provision as to its duration, ‘‘[w]here the agency is for
the accomplishment of a particular transaction or specific purpose, the law
implies its continuance for at least a reasonable time. . . . A reasonable
time in this connection is in effect a definite time, to be fixed as a matter
of fact by a court in case of controversy.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Harris v. McPherson, supra, 97
Conn. 168. This suggests that, in this state, the notion that an exclusive right
to sell agreement must be for a definite length of time has existed for nearly
a century.
31
At trial, Theodore Haddad, Jr., testified that, as of mid-2007, ‘‘[t]he
prospect list that we developed came to a standstill. We couldn’t add any
new prospects to the list, we couldn’t cultivate the existing prospects, noth-
ing—there was no activity, there was no expansion, no development, no
relocation of any office users into the area because the economy was very
soft.’’ In addition, when asked, ‘‘And how long did the economy stay soft
as far as you recall,’’ he responded, ‘‘Some would say it still is.’’ Furthermore,
Theodore Haddad, Jr., testified that with regard to parcel 15, between 2007
and the date of his testimony (i.e., April 9, 2015), his mother, his father, and
he all did ‘‘nothing’’ to seek office tenants for the property.
32
On cross-examination, Theodore Haddad, Jr., stated that he created
prospect lists for two months, and the last list he created was on April
20, 2007.
33
Carl Kuehner testified, inter alia, that when the market changed in 2007,
‘‘the pool of buyers changed,’’ and that, ‘‘[i]n a downward trending market
. . . the apartment product actually becomes more valuable because that’s
where the consumer should theoretically go.’’ In addition, he expressed his
dissatisfaction with the brokers’ performance after 2007, stating, ‘‘I had few,
if any, meetings with any potential buyer that they brought forth to meet
with me to discuss buying or building on that asset.’’ Likewise, he stated,
‘‘[D]uring the best apartment market that we’ve seen in a decade, [the
Haddads] weren’t able to show up with a single buyer to—single’s harsh—
a single credible buyer to acquire that asset during the best apartment
market we’ve seen in an awful long time.’’ Furthermore, there is evidence
that Paul Keuhner communicated to an individual working with the brokers
named in the agreements that the brokers ‘‘can’t expect to do nothing with
the listing and get paid a commission.’’