Pellet v. Keller Williams Realty Corp.

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DANIEL PELLET ET AL. v. KELLER WILLIAMS
REALTY CORPORATION ET AL.
(AC 38236)
Prescott, Beach and Mihalakos, Js.
Syllabus
The plaintiff, as guardian for his brother, S, appealed to this court from the
judgment of the trial court directing a verdict for the defendants, S’s
former real estate agents, the agents’ employer and a broker, in connec-
tion with the sale of S’s home to the defendant purchasers, K and her
husband. The plaintiff claimed, inter alia, that the trial court improperly
directed the verdict in favor of the defendants because it erroneously
equated all of the allegations in his substitute complaint to claims of
professional negligence and determined that, as such, they failed for
lack of expert testimony as to the applicable standard of care. Held:
1. The trial court improperly directed a verdict for the defendants on the
ground that all eight counts of the substitute complaint were based on
breaches of professional standards of care regarding the selection and
recommendation of the listing price for the plaintiff’s home:
a. Although all eight counts of the substitute complaint incorporated
the allegations that the defendant real estate agents had set the list price
for the property at $318,000, when they knew, or should have known,
that the fair market value of the property was substantially greater, it
did not necessarily follow that all of the counts summarily could be
characterized as one general claim of professional negligence; the first
count sounded in breach of contract, the claims in the second and third
counts, which alleged the breach of a fiduciary duty of an agent and
the breach of the implied covenant of good faith and fair dealing,
stemmed from the contractual relationship between the parties, the
entirety of the fourth count did not necessarily equate to a claim of
professional negligence, as certain of its allegations did not require the
use of specialized skills or professional judgment on the part of the
defendants, the fifth and seventh counts, which alleged intentional mis-
representation and conspiracy to defraud, involved intentional rather
than negligent action by the defendants, and did not involve the question
of whether the defendants exercised the same degree of care as would
a reasonably prudent real estate professional, the eighth count alleged
acts against the defendants that could be construed as unfair or deceptive
in nature, and the plaintiff’s claim as to count six, which alleged negligent
supervision, was deemed abandoned as inadequately briefed.
b. The trial court improperly concluded that the plaintiff’s failure to
tender an expert witness resulted in a lack of evidence on the profes-
sional standard of care: although the plaintiff did not present expert
testimony from a real estate agent or broker regarding the standard of
care with respect to the allegations in the substitute complaint that were
based on breaches of professional standards of care, such testimony
was provided by the defendants through the testimony of two licensed
real estate agents, and, therefore, the jury was provided with expert
testimony as to the applicable standard of care required of real estate
professionals; moreover, although those real estate agents did not
expressly opine that the defendants had breached the standard of care
and the expert testimony did not specifically come from the plaintiff,
the jury had before it testimony from which it could have inferred that
the standard of care was breached by the defendants.
2. The trial court improperly granted the defendants’ motions for a special
finding, pursuant to statute (§ 52-226a), that the plaintiff’s action was
brought without merit and in bad faith: because, with respect to the
five defendants who participated in this appeal, the court’s granting of
their motion for a special finding pursuant to § 52-226a was tied directly
to the merits of its granting of the motion for a directed verdict, which
this court found to be improper, the trial court’s special finding pursuant
to § 52-226a could not stand with respect to those defendants; moreover,
with respect to the motion for a special finding filed by K, who did not
participate in this appeal, the court’s ruling granting that motion lacked
a high degree of specificity in its findings, as the court did not analyze
the counts of the substitute complaint as they applied to K, and did not
indicate at which point in time it should have become clear to the
plaintiff that the action against K was without merit.
Argued May 23—officially released October 10, 2017
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 New Britain, where the
action was withdrawn as against the defendant Ward
Kilduff Mortgage Corporation; thereafter, the matter
was tried to the jury before Swienton, J.; subsequently,
the court granted the motion for a directed verdict filed
by the named defendant et al. and rendered judgment
for the named defendant et al., from which the plaintiff
appealed to this court; thereafter, the court granted the
motions filed by the named defendant et al. for a special
finding that the action was without merit and was not
brought in good faith, and the plaintiff filed an amended
appeal. Reversed in part; new trial.
Austin Berescik-Johns, with whom was David V.
DeRosa, for the appellant (plaintiff).
Michael C. Conroy, for the appellees (named defen-
dant et al.).
Opinion
PRESCOTT, J. The named plaintiff, Daniel Pellet, act-
ing in his capacity as guardian for his brother, Stephen
Pellet,1 appeals from the judgment of the trial court
directing a verdict in favor of the defendants Keller
Williams Realty Corporation (Keller Williams), Michael
Ladden, David Olson, Pina Jenkins, Jason Kilduff, and
Kimberly Kilduff2 as to all eight counts of the plaintiff’s
substitute complaint, and from the trial court’s granting
of the defendants’ motions for a special finding pursuant
to General Statutes § 52-226a.3 The plaintiff argues that
the court improperly (1) directed the verdict in favor
of the defendants because it erroneously (a) equated
all of the plaintiff’s allegations to claims of professional
negligence and (b) determined that, as such, they must
fail for lack of expert testimony as to the applicable
standard of care; and (2) found that the plaintiff brought
the action without merit and in bad faith pursuant to
§ 52-226a. We reverse the judgment and special finding
of the court, and remand the case for a new trial.
The following procedural history is relevant to this
appeal, which arises out of the 2008 sale of 59 Paper
Chase Trail in Avon (property) from Stephen Pellet to
Kimberly Kilduff. The underlying action was com-
menced on September 9, 2011, against the defendants,
who are Stephen Pellet’s former real estate agents with
respect to the sale of the property (Olson and Jenkins),
the agents’ employer/realty agency (Keller Williams),
Keller Williams’ broker of record (Ladden), and the
spouse of Kimberly Kilduff, Jason Kilduff. In his eight
count substitute complaint dated February 20, 2015, the
plaintiff alleges the following claims: breach of contract,
breach of fiduciary duty of an agent, breach of the
implied covenant of good faith and fair dealing, negli-
gent misrepresentation, intentional misrepresentation,
negligent supervision, conspiracy to defraud, and viola-
tion of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq.
A jury trial commenced on July 8, 2015. On July 10,
2015, the defendants filed a written motion for a
directed verdict, accompanied by a memorandum of
law, and that same day, the plaintiff filed a memoran-
dum of law in opposition.4 On July 15, 2015, after the
close of evidence in the trial but before the parties’
closing arguments, the court, Swienton, J., granted the
defendants’ motion for a directed verdict, ruling, in
relevant part: ‘‘[T]he court has carefully considered the
counts against the defendants, and viewed in the light
most favorable to the plaintiff, the court grants the
motion [for a] directed verdict as to all defendants on
all counts. . . . I am going to state my reasons on the
record at this time. . . .
‘‘[Stephen Pellet] was the owner of property located
at 59 Paper Chase Trail in Avon. The property was built
in 1971 and other than minor renovations had never
been updated or renovated. Furthermore, the house
was full of clutter. The defendants David Olson and
Pina Jenkins, real estate salespersons affiliated with
Keller Williams agency, were contacted by [Stephen
Pellet] and [his brother] Daniel Pellet. The evidence
showed that [Stephen Pellet] was anxious to sell the
property and, further, that he wished to net $90,000
from the sale of the property. The listing price was
established accordingly, after discussions with the real-
tors and [Stephen Pellet], and after the realtors per-
formed a comparative market analysis, which was
reviewed with and furnished to [Stephen Pellet]. A list-
ing agreement was executed.
‘‘Kimberly Kilduff learned from a neighbor that the
property was being sold, and the real estate agents,
Olson and Jenkins, were contacts. Olson and Jenkins,
after obtaining permission from [Stephen Pellet] to
show the house, showed the property to the defendants
Kimberly Kilduff and Jason Kilduff. An offer was placed
by Kimberly Kilduff, which was accepted, and the house
was sold for $100 more than the listing price. [Stephen
Pellet] netted almost $89,000. The buyers of the prop-
erty,5 the defendants Jason Kilduff and Kimberly Kilduff,
performed extensive renovations to the property,
exceeding some $100,000 in expenses. They subse-
quently sold the property for $462,000 and netted, in
profits, approximately $16,000.6
‘‘The operative complaint is in eight counts . . . .
The underlying basis for each of these counts is based
upon breaches of professional standards of care on the
part of the real estate agent, broker, and salespersons
regarding selection and recommendation of the list-
ing price.
‘‘In an action based upon professional negligence,
expert testimony will be [required] if the determination
of that standard of care requires knowledge that is
beyond the experience of a normal fact finder . . . .
[T]he plaintiff in this case has failed to produce any
expert testimony and therefore fails on [his] burden of
proof of negligence. . . . Although the plaintiff pre-
sented an expert in the field of appraisals, this does
not satisfy the requirement of an expert to testify as to
the standard of care of a realtor in the determination and
recommendation of a listing price.’’ (Footnotes added.)
Judgment in favor of the defendants was rendered on
that same day. On July 22, 2015, the defendants filed a
motion for a special finding pursuant to § 52-226a,
which the court granted on February 25, 2016.7 This
appeal followed.
As a preliminary matter, in reviewing the court’s rea-
soning for granting the defendants’ motion for a
directed verdict, we highlight our concern with whether
it applied the correct standard of review to the evidence
presented at trial. ‘‘Directed verdicts are not favored.
. . . A trial court should direct a verdict only when a
jury could not reasonably and legally have reached any
other conclusion. . . . A directed verdict is justified if
. . . the evidence is so weak that it would be proper
for the court to set aside a verdict rendered for the
other party. . . . This court has emphasized two addi-
tional points with respect to motions to set aside a
verdict that are equally applicable to motions for a
directed verdict: First, the plaintiff in a civil matter is
not required to prove his case beyond a reasonable
doubt; a mere preponderance of the evidence is suffi-
cient. Second, the well established standards compel-
ling great deference to the historical function of the
jury find their roots in the constitutional right to a trial
by jury.’’ (Citation omitted; internal quotation marks
omitted.) Curran v. Kroll, 303 Conn. 845, 856, 37 A.3d
700 (2012). This standard also requires the trial court
to consider the evidence, including reasonable infer-
ences, in the light most favorable to the plaintiff. Beck-
enstein Enterprises-Prestige Park, LLC v. Keller, 115
Conn. App. 680, 693, 974 A.2d 764, cert. denied, 293
Conn. 916, 979 A.2d 488 (2009).
In the present case, it is not entirely clear from the
record whether the court made findings of fact in ruling
on the defendants’ motion. As previously indicated,
such findings would be improper in the context of a
motion for a directed verdict, given that ‘‘litigants have
a constitutional right to have factual issues resolved by
the jury’’; (internal quotation marks omitted) id.; and
that the court must view the evidence in the light most
favorable to the plaintiff.8 Id. Although the court
expressly stated that it ‘‘viewed [the evidence] in the
light most favorable to the plaintiff,’’ certain aspects of
its decision suggest it did not.
For instance, the court stated at one point that it
‘‘cannot find that the defendants’ actions were proven
to be the proximate cause of the plaintiffs’ harm.’’
(Emphasis added.) Moreover, in its recitation of the
evidence supporting its ruling, certain statements were
clearly viewed in the light most favorable to the defen-
dants, rather than to the plaintiff. For example, the
court stated that ‘‘[t]he evidence showed that [Stephen
Pellet] . . . wished to net $90,000 from the sale of the
property,’’ even though the plaintiff testified at trial that
he and Stephen Pellet never told Olson and Jenkins
that they wanted to make a specific profit from the
sale of the property, instead desiring to ‘‘maximize’’ the
profit to its fullest potential. The court also stated that
Olson and Jenkins ‘‘obtain[ed] permission from [Ste-
phen Pellet] to show the house . . . to . . . Kimberly
Kilduff and Jason Kilduff,’’ even though the plaintiff
testified at trial to the contrary.
Accordingly, we conclude that the court, in fact, did
not view all of the evidence in the light most favorable
to the plaintiff, pursuant to the applicable standard of
review. Because the issue of ‘‘[w]hether the evidence
presented by the plaintiff was sufficient to withstand
a motion for a directed verdict is a question of law,
over which our review is plenary’’;9 Curran v. Kroll,
supra, 303 Conn. 855; we need not afford deference to
the court’s recitation of evidence and exercise plenary
review over the record in the present appeal. In con-
ducting our review of the court’s decision to direct a
verdict in favor of the defendants, we, too, are required
to view the evidence in the light most favorable to the
plaintiff. See id., 856. Additional evidence and proce-
dural history will be set forth as necessary to address
the plaintiff’s individual claims.
I
DIRECTED VERDICT
The plaintiff first claims on appeal that the court’s
directed verdict in favor of the defendants is fatally
flawed in two respects: (1) the eight counts alleged by
the plaintiff in his substitute complaint do not each
equate to a claim of professional negligence; and (2)
even if that were the case, the plaintiff’s claims should
not fail for lack of expert testimony presented at trial.
In response, the defendants argue that each of the eight
theories of recovery advanced in the plaintiff’s com-
plaint ‘‘centers upon the foundational allegation that
the defendant realtors negligently or intentionally rec-
ommended a list price for the . . . property that was
substantially below fair market value,’’ and, thus, those
eight theories of recovery presented, at their core,
claims for professional negligence. As a result, the
defendants argue, the plaintiff was required to present
expert testimony to establish the applicable standard
of care and any breach thereof, which he failed to do.
We reject the defendants’ arguments and agree with
the plaintiff in both respects.
A
Professional Negligence
The plaintiff first argues that the court improperly
concluded that ‘‘[t]he underlying basis for each of [the
plaintiff’s eight] counts is based upon breaches of pro-
fessional standards of care on the part of the real estate
agent, broker and salespersons regarding selection and
recommendation of the listing price.’’ Although all eight
counts of the substitute complaint incorporate the alle-
gation that Olson and Jenkins set the list price for the
property at $318,000 when they knew, or should have
known, that the fair market value of the property was,
in fact, substantially greater, we agree with the plaintiff
that it does not necessarily follow that all of the counts
summarily can be characterized as one general claim
of professional negligence.
‘‘The interpretation of pleadings presents a question
of law over which our review is plenary.’’ (Internal
quotation marks omitted.) Oxford House at Yale v. Gil-
ligan, 125 Conn. App. 464, 469, 10 A.3d 52 (2010). Fur-
thermore, ‘‘in determining the nature of a pleading filed
by a party, we are not bound by the label affixed to
that pleading by the party.’’ (Internal quotation marks
omitted.) Selimoglu v. Phimvongsa, 119 Conn. App.
645, 651–52, 989 A.2d 121, cert. denied, 296 Conn. 902,
991 A.2d 1103 (2010). ‘‘In order for a claim to sound in
professional negligence, it must be alleged that (1) the
defendant is sued in his or her capacity as a profes-
sional, (2) the alleged negligence is of a specialized
professional nature that arises out of the professional
relationship, and (3) the alleged negligence is substan-
tially related to the professional conduct and involved
the exercise of professional judgment.’’ (Emphasis
omitted.) Cammarota v. Guerrera, 148 Conn. App. 743,
748, 87 A.3d 1134, cert. denied, 311 Conn. 944, 90 A.3d
975 (2014).
1
Counts One, Two and Three
We first address whether counts one, two, and three
of the substitute complaint, which sound, respectively,
in breach of contract, breach of fiduciary duty of an
agent, and breach of the implied covenant of good faith
and fair dealing, are solely based on breaches of profes-
sional negligence. With regard to the first count, the
plaintiff argues that because the breach of contract
claim is directly tied to the terms of the written ‘‘exclu-
sive right to sell listing contract’’ (listing contract) into
which the parties entered, it, in fact, sounds in contract
law rather than tort law.
‘‘Whether [a] plaintiff’s cause of action is one for
malpractice [or contract] depends upon the definition
of [those terms] and the allegations of the complaint.
. . . Malpractice is commonly defined as the failure of
one rendering professional services to exercise that
degree of skill and learning commonly applied under
all the circumstances in the community by the average
prudent reputable member of the profession with the
result of injury, loss, or damage to the recipient of those
services . . . . The elements of a breach of contract
claim are the formation of an agreement, performance
by one party, breach of the agreement by the other
party, and damages. . . . In other words, [a]n action
in contract is for the breach of a duty arising out of a
contract . . . [whereas] an action in tort is for a breach
of duty imposed by law. . . .
‘‘In determining whether a claim sounds in breach of
contract or in tort, we are mindful of the well estab-
lished principle that an independent claim of tortious
conduct may arise in the context of a contractual rela-
tionship. . . . Accordingly, [for example] the fact that
[a] contract . . . [may require a] defendant to provide
[a] plaintiff with legal representation and that the plain-
tiff was dissatisfied with the defendant’s performance
does not necessarily mean that her claim of improper
representation sounds in breach of contract. . . .
‘‘[W]e previously have concluded that a claim alleging
that the defendant attorney violated the specific instruc-
tions of his client sounded in breach of contract. . . .
Other Connecticut courts similarly have determined
that an attorney’s failure to comply with the specific
provisions of a contract sounded in breach of contract.
. . . Correspondingly, Connecticut courts have con-
cluded that claims alleging that the defendant attorney
had performed the required tasks but in a deficient
manner sounded in tort rather than in contract. . . .
The decisions in [such] cases are consistent with the
well established principle that an action in tort is for
a breach of duty imposed by law.’’ (Citations omitted;
internal quotation marks omitted.) Meyers v. Living-
ston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn.
282, 291–95, 87 A.3d 534 (2014).
In the present case, count one of the plaintiff’s substi-
tute complaint alleges that Olson, Jenkins, Keller Wil-
liams, and Ladden breached the listing contract in the
following ways: they ‘‘were not honest in their represen-
tation of the value of the property’’; they ‘‘were not
honest . . . in their role as dual or designated agents
[for both the plaintiff and Kimberly Kilduff]’’; they
‘‘showed the property before it was cleaned out’’; they
‘‘showed the property without written permission’’; they
‘‘did not make reasonable efforts to sell the property’’;
and they ‘‘did not exercise the degree of care, skill and
expertise common to the profession.’’
In comparing the allegations in count one to the lan-
guage of the listing contract, which was admitted into
evidence at trial, the listing contract expressly provides
that in the event the seller’s agent becomes a dual agent
for the property, thereby representing both the seller
and the buyer, the agent ‘‘will promptly disclose all
relevant information to [the seller] and give [the seller]
any disclosure notices and consent agreements required
by law, for my/our review and signature’’ (dual agency
provision). It also expressly provides under ‘‘other
terms’’ that the property is ‘‘on temp status till [the]
seller gives written [e-mail] permission to put on active’’
(written permission provision).
Accordingly, in analyzing whether count one sounds
in breach of contract, as the plaintiff asserts, or profes-
sional negligence, as the court concluded, it is clear
that at least some of the particular allegations therein
reference Olson’s, Jenkins’, Ladden’s, and Keller Wil-
liams’ failure to comply with the specific provisions of
the listing contract, namely, the dual agency provision
and the written permission provision. Under our case
law, such allegations sound in breach of contract, not
professional negligence. See Meyers v. Livingston,
Adler, Pulda, Meiklejohn & Kelly, P.C., supra, 311 Conn.
292. In contrast, other allegations in count one that
reference these defendants’ valuation of the property,
their ‘‘reasonable efforts,’’ and their ‘‘degree of care,
skill and expertise,’’ i.e., those that allege that the
required tasks were performed but in a deficient man-
ner, appear to sound in professional negligence rather
than breach of contract.10 See Meyers v. Livingston,
Adler, Pulda, Meiklejohn & Kelly, P.C., supra, 294. Nev-
ertheless, because the court summarily deemed the
entirety of count one to be solely a claim of professional
negligence, this was improper as a matter of law.11
Similarly, count two, which alleges breach of a fidu-
ciary duty of an agent, and count three, which alleges
breach of the implied covenant of good faith and fair
dealing, are both claims that stem from the contractual
relationship between the parties. With regard to count
two, our Supreme Court has expressly held that ‘‘[p]ro-
fessional negligence alone . . . does not give rise auto-
matically to a claim for breach of fiduciary duty. . . .
[Thus] not every instance of professional negligence
results in a breach of [a] fiduciary duty. . . . Profes-
sional negligence implicates a duty of care, while breach
of fiduciary duty implicates a duty of loyalty and hon-
esty.’’ (Internal quotation marks omitted.) Sherwood v.
Danbury Hospital, 278 Conn. 163, 196, 896 A.2d 777
(2006). Although professional negligence and breach of
a fiduciary duty may arise from the same operative
facts, they are not, legally speaking, one and the same
claim. Thus, the court’s determination that count two
could be reduced merely to a claim of professional
negligence was improper as a matter of law. Moreover,
in reviewing the allegations contained in count two,
the plaintiff clearly takes issue with Olson’s, Jenkins’,
Ladden’s, and Keller Williams’ duty of loyalty and hon-
esty by asserting, among other things, that these defen-
dants had not disclosed conflicts of interest arising from
their dual representation of both the plaintiff and Kimb-
erly Kilduff or disclosed their preexisting outside rela-
tionships with Kimberly Kilduff and Jason Kilduff that
predated the sale of the property.
With regard to count three, our Supreme Court has
held that a claim brought pursuant to a contract, alleg-
ing a breach of the implied covenant of good faith and
fair dealing, sounds in contract because ‘‘[e]very con-
tract imposes upon each party a duty of good faith and
fair dealing in its performance and its enforcement.
. . . To constitute a breach of [that duty], the acts by
which a defendant allegedly impedes the plaintiff’s right
to receive benefits that he or she reasonably expected
to receive under the contract must have been taken in
bad faith.’’ (Citation omitted; internal quotation marks
omitted.) Collins v. Anthem Health Plans, Inc., 275
Conn. 309, 333–34, 880 A.2d 106 (2005). Thus, this claim
falls under the umbrella of contract law and not tort
law, under which professional negligence exists. More-
over, the plaintiff alleges in count three that Olson,
Jenkins, Ladden, and Keller Williams acted in bad faith
in performing under the contract by, inter alia, not dis-
closing their divided loyalties between the plaintiff and
Kimberly Kilduff in this transaction, and not disclosing
other offers on the property. For these reasons, we
conclude that the court improperly determined that
count three equates to a claim of professional neg-
ligence.
2
Count Four
We next address count four of the substitute com-
plaint, which alleges negligent misrepresentation. ‘‘Tra-
ditionally, an action for negligent misrepresentation
requires the plaintiff to establish (1) that the defendant
made a misrepresentation of fact (2) that the defendant
knew or should have known was false, and (3) that
the plaintiff reasonably relied on the misrepresentation,
and (4) suffered pecuniary harm as a result.’’ (Internal
quotation marks omitted.) Coppola Construction Co. v.
Hoffman Enterprises Ltd. Partnership, 309 Conn. 342,
351–52, 71 A.3d 480 (2013). ‘‘The classification of a
negligence claim as either [professional] malpractice
or ordinary negligence requires a court to review closely
the circumstances under which the alleged negligence
occurred.’’ (Internal quotation marks omitted.) Boone
v. William W. Backus Hospital, 272 Conn. 551, 562, 864
A.2d 1 (2005).
Here, count four of the substitute complaint alleges in
relevant part that ‘‘the defendants, jointly and severally,
negligently misrepresented, by commission and/or
omission, the value of the subject property, the interest
of other purchasers in the subject property, and the
relationships among and between the defendants.’’
Although the specific allegation that the defendants
misrepresented the value of the property arguably
sounds in professional negligence because the ‘‘alleged
negligence is of a specialized professional nature’’ aris-
ing out of the client-real estate agent relationship and
‘‘involved the exercise of professional judgment’’;
(emphasis omitted) Cammarota v. Guerrera, supra, 148
Conn. App. 748; the remaining allegations contained in
the count do not. If the defendants did, in fact, misrepre-
sent, by omission, the fact that there were other pur-
chasers interested in the property and that the
defendants had long-standing, outside relationships
with each other that predated the sale transaction of
the property,12 such allegations do not require the use
of specialized skills or professional judgment on the
part of the defendants. Accordingly, we disagree with
the court that the entirety of count four necessarily
equates to a claim of professional negligence.
3
Counts Five and Seven
We next address counts five and seven together,
which allege, respectively, intentional misrepresenta-
tion and conspiracy to defraud. With regard to the for-
mer, ‘‘[a] claim of intentional misrepresentation
requires the same elements as negligent misrepresenta-
tion except that the plaintiff also must prove that the
defendant made the misrepresentation to induce the
other party to act upon it . . . .’’ (Footnote omitted;
internal quotation marks omitted.) Brown v. Otake, 164
Conn. App. 686, 706, 138 A.3d 951 (2016). With regard
to the latter, the ‘‘essential elements of an action in
common law fraud . . . are that: (1) a false representa-
tion was made as a statement of fact; (2) it was untrue
and known to be untrue by the party making it; (3) it
was made to induce the other party to act upon it; and
(4) the other party did so act upon that false representa-
tion to his injury’’; (internal quotation marks omitted)
Sturm v. Harb Development, LLC, 298 Conn. 124, 142,
2 A.3d 859 (2010); and ‘‘[t]he [elements] of a civil action
for conspiracy are: (1) a combination between two or
more persons, (2) to do a criminal or an unlawful act
or a lawful act by criminal or unlawful means, (3) an
act done by one or more of the conspirators pursuant
to the scheme and in furtherance of the object, (4)
which act results in damage to the plaintiff.’’ (Internal
quotation marks omitted.) Macomber v. Travelers Prop-
erty & Casualty Corp., 277 Conn. 617, 635–36, 894 A.2d
240 (2006).
In the present case, count five alleges in relevant part
that ‘‘the defendants, jointly and severally, intentionally
misrepresented, by commission and/or omission, the
value of the subject property, [the] interest of other
purchasers in the subject property, and the relation-
ships among and between the defendants.’’ Count seven
then alleges in relevant part that ‘‘[t]he allegations [in
paragraphs 1 through 40 of the substitute complaint]
demonstrate that the defendants . . . conspired
together to deceive [Stephen Pellet] as to the value of
the subject property, to keep the subject property from
being shown to prospective purchasers other than . . .
Kimberly Kilduff, to conceal from [Stephen Pellet] the
relationships between . . . Kimberly Kilduff and the
other defendants, and to conceal from [Stephen Pellet]
the fact that the defendants were representing both the
seller and purchaser of the subject property.’’13
Significantly, both counts five and seven allege that
the defendants acted intentionally, not negligently, in
committing these torts. Moreover, neither claim
involves the question of whether the defendants exer-
cised the same degree of care as would a reasonably
prudent real estate professional, which is an integral
element of a professional malpractice claim. See Meyers
v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.,
supra, 311 Conn. 291 (issue whether defendant law firm
breached contract or failed to render professional ser-
vices to ‘‘that degree of skill and learning commonly
applied under all the circumstances in the community
by the average prudent reputable member of the profes-
sion’’ [internal quotation marks omitted]). For the court
to have concluded otherwise, therefore, was improper
as a matter of law.14
4
Count Six
With regard to count six, which alleges negligent
supervision against Keller Williams and Ladden, the
plaintiff has failed to provide any analysis on this indi-
vidual count in his brief. Because ‘‘[i]t is well settled
that [w]e are not required to review claims that are
inadequately briefed’’ and that ‘‘[a]nalysis, rather than
mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly’’; (internal quotation marks omitted) Lucarelli v.
Freedom of Information Commission, 136 Conn. App.
405, 407 n.1, 46 A.3d 937, cert. denied, 307 Conn. 907,
53 A.3d 222 (2012); we deem the plaintiff’s claim, as it
relates to count six, inadequately briefed and, thus,
abandoned.
5
Count Eight
Finally, we address count eight of the plaintiff’s sub-
stitute complaint, which alleges violations of CUTPA.
The essential elements to pleading a cause of action
under CUTPA are: (1) the defendant committed an
unfair or deceptive act or practice; (2) the act com-
plained of was performed in the conduct of trade or
commerce; and (3) the prohibited act was the proximate
cause of harm to the plaintiff. See Stevenson Lumber
Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn.
205, 213–14, 932 A.2d 401 (2007).
In the present case, count eight alleges in relevant
part that ‘‘[t]he practices engaged in by the defendants,
jointly and severally, as alleged [previously], were
deceptive, unethical and unscrupulous . . . offend
public policy . . . [and] were conducted in the conduct
of the trade or commerce of real estate brokerage, pur-
chase and sales.’’ Significantly, this count incorporates
the first forty paragraphs of the substitute complaint.15
Ultimately, a cause of action brought pursuant to
CUTPA requires the plaintiff to go beyond simply alleg-
ing that the defendants negligently breached the appli-
cable standard of care that applies to professionals in
the field of real estate; it requires the plaintiff to prove
that the acts in questions were ‘‘unfair or deceptive.’’
For the same reasons discussed in parts I A 1 and 3 of
this opinion, we conclude that count eight, likewise,
alleges acts against the defendants that can be con-
strued as ‘‘unfair or deceptive’’ in nature. Accordingly,
we conclude that the court improperly interpreted
count eight to be a claim for professional negligence.16
B
Expert Testimony
The plaintiff next argues that even if the plaintiff’s
claims were based upon breaches of professional stan-
dards of care, the claims should not have failed for lack
of expert testimony because (1) expert testimony is
not a categorical requirement to prove the applicable
standard of care for a claim of professional negligence,
and (2) if expert testimony was required here, it was
presented at trial by the defendants. As previously dis-
cussed in parts I A 1 and 2 of this opinion, we conclude
that some of the plaintiff’s allegations were based upon
breaches of professional standards of care. To the
extent that expert testimony was required to prove such
allegations,17 however, we agree with the plaintiff that
expert testimony was, in fact, presented here.
‘‘[W]e note that the [trial] court’s determination of
whether expert testimony was needed to support the
plaintiff’s claim of negligence against the defendant was
a legal determination, and, thus, our review is plenary.’’
(Internal quotation marks omitted.) Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 373,
119 A.3d 462 (2015). ‘‘It is well established that, [i]f the
determination of the standard of care requires knowl-
edge that is beyond the experience of an ordinary fact
finder, expert testimony will be required. . . . Never-
theless, [a]lthough expert testimony may be admissible
in many instances, it is required only when the question
involved goes beyond the field of the ordinary knowl-
edge and experience of the trier of fact. . . . The trier
of fact need not close its eyes to matters of common
knowledge solely because the evidence includes no
expert testimony on those matters.’’ (Citation omitted;
internal quotation marks omitted.) Allison v. Manetta,
284 Conn. 389, 405–406, 933 A.2d 1197 (2007).
Moreover, our Supreme Court ‘‘previously [has]
determined that a plaintiff may prove the standard of
care through the testimony of a defendant. . . . [A]s
an expert witness, the defendant is not required specifi-
cally to have expressed as an opinion that [she]
breached the standard of care in order for the [plaintiff]
to prevail. . . . Rather, the [plaintiff] need only have
produced sufficient expert testimony to permit the [trier
of fact] reasonably to infer, on the basis of its findings
of fact, that [the defendant] breached the standard of
care.’’ (Citations omitted; internal quotation marks
omitted.) LePage v. Home, 262 Conn. 116, 132, 809 A.2d
505 (2002).
The trial court addressed the issue of expert testi-
mony in the context of the defendants’ motion for a
directed verdict as follows: ‘‘As lay people, we do not
know the standards of real estate brokers or their meth-
ods. Thus, it is not easily determined what are the
demands of proper treatment. It is for this reason that
expert testimony is required to define the standard of
care or the duty owing from the real estate broker to
his or her client and whether that duty has been
breached so that one may reasonably and logically con-
clude what the standard of care is and whether or not
it has been violated . . . . [T]he plaintiff in this case
has failed to produce any expert testimony and there-
fore fails on [his] burden of proof of negligence.
Because the underlying complaint in this case is . . .
the marketing and undervaluation of the subject prop-
erty, specifically the recommendation and assessment
of the listing price. This knowledge is not one that can
be simply discerned from a course of conduct or from
some document that sets forth the care that is required
under these circumstances. Expert testimony is
required . . . and no testimony was offered to estab-
lish said standard. . . .
‘‘Although the plaintiff presented an expert in the
field of appraisals, this does not satisfy the requirement
of an expert to testify as to the standard of care of a
realtor in the determination and recommendation of a
listing price. The appraiser was not a real estate agent.
His appraisal was a retrospective appraisal of the value
of the property and did not perform a comparative
market analysis.’’ (Internal quotation marks omitted.)
In the present case, although the plaintiff did not
present expert testimony from a real estate agent and/
or broker18 regarding the standard of care for these
professionals’ selection and recommendation of a list
price, such testimony was provided by the defendants
through Olson and Barbara Fairfield. First, Olson, a
licensed real estate agent in Connecticut for more than
twenty-three years, testified as to how a professional
in the field arrives at a recommended list price. For
example, Olson explained how data is obtained through
the multiple listing service database and how a compar-
ative market analysis (CMA) is generated for a cli-
ent’s property.
Next, Fairfield, a real estate agent licensed in Con-
necticut and/or Florida for thirty-five years who also
was previously licensed as a broker for nearly thirty
years, was tendered by the defendants as an expert
witness on their behalf, and the court designated her
as such. Fairfield testified that she understood that she
was, as counsel stated, ‘‘disclosed as an expert witness
in this matter to opine as to whether or not the defen-
dants met the applicable standard of care of reasonable
real estate professionals with respect to this particular
transaction’’ and that she had reviewed all of the docu-
ments and deposition testimony in the present case.
Fairfield testified as to how real estate agents generate
a CMA for a particular property in order to choose an
appropriate list price, stating that the agents ‘‘look at
the property itself, the condition of the property inside
and outside, any cosmetic things that need to be
changed or updated and then we look at properties that
have sold around the same square footage. We try to
do the same number of bedrooms, bathrooms, same
structure, colonial to colonial, for instance. We couldn’t
compare a colonial to a ranch.
‘‘And so we look at solds and what we try to do with
the solds is, we try to stay within a very close area to
the subject property and we look at solds. We don’t
want to go back further than a year before the property
date and we definitely don’t—we don’t have any way
to forecast what something would sell after the date.
Good comparables will be like kind property, best to
about six months in arrears, so we look at those solds
because that’s what buyers were willing to pay for that
property based on its condition. Then we also . . .
look at the market. So, we look and see what the compe-
tition is at the same time. So, we look at the properties
that are out there for sale right now and how they stack
up to the subject property, and so we look at those two
areas specifically.’’
Fairfield also testified as to other variables that com-
petent real estate professionals should take into
account when determining the list price, such as the
age and condition of the property and its features, as
well as the time of year at which the property is put on
the market. She ultimately opined that, having reviewed
Olson’s CMA for the property, the $317,900 list price
recommended to the plaintiff in September, 2008, was
within the range of price ‘‘where the property should
have its greatest market appeal.’’
On the basis of the foregoing testimony of Olson and
Fairfield, we conclude, contrary to the court’s determi-
nation, that the jury was provided with expert testimony
as to the applicable standard of care required of real
estate professionals. Significantly, Olson and Fairfield
were ‘‘not required specifically to have expressed as an
opinion that [the defendants] breached the standard of
care in order for the [plaintiff] to prevail,’’ as all that
was required was sufficient testimony for the jury ‘‘rea-
sonably to infer, on the basis of its findings of fact,
that [the defendants] breached the standard of care.’’
(Internal quotation marks omitted.) LePage v. Home,
supra, 262 Conn. 132.
Thus, it of no importance that Olson and Fairfield
did not expressly opine that the defendants breached
that standard here or that this expert testimony did not
specifically come from the plaintiff. See id. Rather, what
is significant is that evidence regarding this particular
element of professional negligence was, in fact, pre-
sented at trial. From the other facts presented in this
case, the jury reasonably could infer that the standard
of care was breached by the defendants. Because the
court improperly concluded that the plaintiff’s failure
to tender an expert witness resulted in a lack of evi-
dence on the professional standard of care, it improp-
erly directed a verdict in favor the defendants.
Accordingly, we reverse the court’s judgment.
II
SPECIAL FINDING
The plaintiff also claims on appeal that the court
improperly found that the underlying action was
brought without merit and in bad faith within the mean-
ing of § 52-226a because the two requirements for
upholding a bad faith award were not met here.19 We
agree.
Some additional procedural history is necessary to
address this claim. Following the court’s granting of
the defendants’ motion for a directed verdict on their
behalf, the plaintiff filed with this court an appeal from
that judgment. Subsequently, there were two motions
for a special finding pursuant to § 52-226a that were
filed with the trial court—one on behalf of Kimberly
Kilduff, and one on behalf of the remaining five defen-
dants. Following the court’s granting of both motions
for a special finding via a single memorandum of deci-
sion filed February 25, 2016, the plaintiff properly filed
an amended appeal with this court, assigning as error
that February 25, 2016 decision of the trial court.
Although that amended appeal did not explicitly refer-
ence the underlying judgment for a directed verdict as
it applied specifically to Kimberly Kilduff, the plaintiff’s
preliminary statement of issues for the amended appeal,
dated March 31, 2016, clearly shows that he appealed
from the court’s granting of the special finding as it
applied to her.20 Although Kimberly Kilduff, through
counsel, was served with notice of the amended appeal,
she did not ultimately participate in the appeal before
this court.
‘‘To ensure . . . that fear of an award of attorneys’
fees against them will not deter persons with colorable
claims from pursuing those claims, we have declined
to uphold awards under the bad-faith exception absent
both [1] clear evidence that the challenged actions are
entirely without color and [are taken] for reasons of
harassment or delay or for other improper purposes
. . . . [and] [2] a high degree of specificity in the factual
findings of [the] lower courts.’’ (Citations omitted; inter-
nal quotation marks omitted.) Rinfret v. Porter, 173
Conn. App. 498, 508–509, 164 A.3d 812 (2017).
As to the five remaining defendants who did partici-
pate in this appeal, the court’s granting of the motion
for a special finding pursuant to § 52-226a is tied directly
to the merits of its granting of the motion for a directed
verdict. Because we conclude that the court improperly
granted that motion, as discussed fully in part I of this
opinion, the court’s special finding pursuant to § 52-
226a as to these five defendants must be reversed.
With respect to Kimberly Kilduff, we agree with the
plaintiff’s argument in his brief that the court did not
issue its ruling with ‘‘a high degree of specificity in
the findings,’’ as is required by our case law. (Internal
quotation marks omitted.) Id., 509. In particular, the
court did not analyze the various counts of the substi-
tute complaint as they apply to Kimberly Kilduff,21 and
the court did not specifically indicate, in accordance
with its memorandum of decision,22 at which point in
time it should have become clear to the plaintiff that
the action against Kimberly Kilduff was, indeed, without
merit. Without such necessary findings, we must also
reverse the court’s special finding pursuant to § 52-226a
as it applies to Kimberly Kilduff.
The judgment is reversed as to all defendants except
Kimberly Kilduff, the special findings are reversed as
to all defendants, and the case is remanded for a new
trial as to all defendants except Kimberly Kilduff.
In this opinion the other judges concurred.
1
We refer in this opinion to Daniel Pellet as the plaintiff and to Stephen
Pellet by name.
2
At trial, the plaintiff did not oppose the court’s granting of a directed
verdict in favor of Kimberly Kilduff. Therefore, although it is not entirely
clear whether the plaintiff now appeals from the court’s judgment with
respect to that individual defendant, to the extent that he does, none of his
claims against Kimberly Kilduff were properly preserved for appellate
review, and, thus, we decline to review them. See State v. Diaz, 94 Conn.
App. 582, 586–87, 893 A.2d 495, cert. denied, 280 Conn. 901, 907 A.2d 91
(2006). Accordingly, any reference to the defendants, collectively, in this
opinion does not include Kimberly Kilduff. We also note that prior to trial,
the plaintiff withdrew the action as against the defendant Ward Kilduff
Mortgage Corporation.
3
General Statutes § 52-226a provides in relevant part: ‘‘In any civil action
tried to a jury, after the return of a verdict and before judgment has been
rendered thereon, or in any civil action tried to the court, not more than
fourteen days after judgment has been rendered, the prevailing party may
file a written motion requesting the court to make a special finding to be
incorporated in the judgment or made a part of the record, as the case may
be, that the action or a defense to the action was without merit and not
brought or asserted in good faith. . . .’’
4
The plaintiff’s memorandum of law in opposition was directed to the
defendants’ oral motion for a directed verdict, which had been presented
to the court on July 10, 2015. In addition to his written memorandum of
law, the plaintiff also presented oral argument in opposition to the motion.
5
We note that contrary to the court’s assertion, the evidence shows that
the sole record buyer in the 2008 sale of the property was Kimberly Kilduff.
6
Subsequent to the sale of the property, the plaintiff was appointed guard-
ian for Stephen Pellet.
7
Likewise, Kimberly Kilduff filed a motion for a special finding pursuant
to § 52-226a on July 17, 2015, which the court also granted on February
25, 2016.
8
We note that, in their brief, the defendants categorize the court’s recita-
tion of the evidence in support of its ruling as ‘‘findings of fact,’’ which are
reviewed ‘‘only for clear error.’’ Because it would have been improper for
the court to make findings of fact in ruling on a motion for a directed verdict;
see Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn.
App. 693; the notion that we must review the court’s recitation of the
evidence ‘‘only for clear error’’ is without merit.
9
We note that a line of cases out of this court has stated that we review
a trial court’s granting of a motion for a directed verdict for an abuse of
discretion. See Summerhill, LLC v. Meriden, 162 Conn. App. 469, 474, 131
A.3d 1225 (2016). In tracing the origins of this assertion, it is clear that this
standard improperly became conflated at one point with the standard of
review for challenges to the grant or denial of motions to set aside a verdict.
See Malloy v. Colchester, 85 Conn. App. 627, 632, 858 A.2d 813, cert. denied,
272 Conn. 907, 863 A.2d 698 (2004), citing Arnone v. Enfield, 79 Conn. App.
501, 505–506, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).
In any event, because we are bound by the precedent of our Supreme Court
as the ultimate arbiter of state law; see Stuart v. Stuart, 297 Conn. 26, 45–46,
996 A.2d 259 (2010); we apply the standard of review that it has held proper
for a challenge to a trial court’s granting of a motion for a directed verdict.
That standard is plenary. See, e.g., Curran v. Kroll, supra, 303 Conn. 855.
10
By so concluding, we do not mean to suggest that this was an appropriate
way for the plaintiff to plead. To the extent that count one raised both
contractual claims and claims of professional negligence, the defendants
could have filed a request to revise in an effort to separate the improperly
combined causes of action. See Practice Book § 10-35 (‘‘[w]henever any
party desires to obtain . . . [3] separation of causes of action which may
be united in one complaint when they are improperly combined in one count
. . . the party desiring any such amendment in an adverse party’s pleading
may file a timely request to revise that pleading’’).
11
We note that in its ruling on the motion for a directed verdict, the court
made the following conclusory determination: ‘‘Which leads me to the final
reason for the court’s decision to direct the verdict: the plaintiff did not
establish [that] any damages actually were incurred. Certainly, no damages
were established to substantiate the cause of action for breach of contract
or fraud.’’ ‘‘The determination of damages involves a question of fact’’ for
the jury; (internal quotation marks omitted) Gianetti v. Norwalk Hospital,
304 Conn. 754, 780, 43 A.3d 567 (2012); and, thus, in order for the court to
properly grant the motion for a directed verdict on this ground, the evidence
on this element must be so weak that it would be proper for the court to
set aside a verdict in favor of the other party. See Curran v. Kroll, supra,
303 Conn. 856. We cannot conclude that this standard was met here. Viewing
the evidence in the light most favorable to the plaintiff, the jury could have
reasonably concluded that the plaintiff’s evidence that he suffered damages,
which included a second offer on the property, two days after Kimberly
Kilduff’s offer, that was for $42,000 more than the first, and testimony from
certified real estate appraiser Daniel LaPorte that the market value of the
property in October, 2008, was $92,000 higher than the sale price, was
sufficient to meet his burden of proof.
12
On this point, the plaintiff contended elsewhere in the complaint, and
incorporated into count four, the following allegations: ‘‘[Stephen Pellet]
was unaware, and was not informed, that Olson and Jenkins had already
discussed selling the subject property, prior to the September 10, 2008
showing, with . . . buyer Kimberly Kilduff’’; ‘‘[Stephen Pellet] was also
unaware, and was not informed, that Kimberly Kilduff was married to Jason
Kilduff, who was an associate of Olson and Jenkins and an agent in the
same Keller Williams Agency office’’; and ‘‘[t]he fact that . . . Kimberly
Kilduff was also a licensed real estate agent, affiliated with the same Keller
Williams Agency office as defendants Jenkins, Olson and Jason Kilduff, was
never disclosed to the plaintiff.’’
13
With regard to the specific allegation that the defendants failed to inform
the plaintiff of Olson’s and Jenkins’ dual representation of both him and
Kimberly Kilduff in the sale of the property, which was incorporated into
all eight counts of the substitute complaint, the court stated the following
in its ruling on the motion for a directed verdict: ‘‘General Statutes § 20-
325d sets forth the requirement that . . . whenever any real estate broker
or real estate salesperson intends to act as an agent for the prospective
purchaser he shall disclose such intended representation to the seller at
the beginning of the first personal meeting with the seller. General Statutes
§ 20-325g states that there is a conclusive presumption that a person has
been given informed consent to a dual agency relationship with the real
estate broker if that party executes a written consent.
‘‘First, the statute, § 20-325d, does not state that the transaction fails for the
lack of any dual agency agreement. Second, there was never any allegation
of a violation of this statute, and even if the court stretched this even further
and accepted the plaintiff’s argument that this is negligence per se, the
violation of a statute has to be proven to be a substantial factor in causing
the plaintiff’s damages before the plaintiff can recover. There is not a scintilla
of evidence to indicate that the failure to have such a document signed was
a substantial factor in the plaintiff’s damages.’’
‘‘Ordinarily, it is a question of fact whether the negligence of a defendant
was the proximate cause of a plaintiff’s injuries. . . . The test is whether
the defendant’s conduct was a substantial factor in causing the plaintiff’s
injuries.’’ (Citation omitted.) Ferndale Dairy, Inc. v. Geiger, 167 Conn. 533,
538, 356 A.2d 91 (1975). In the present case, there was evidence presented,
through the parties’ joint stipulation and through the plaintiff’s testimony,
that the dual agency was never disclosed to Stephen Pellet. Accordingly,
the jury reasonably could have inferred from this evidence that, had the
dual agency been disclosed, the plaintiff would have chosen another agent/
broker who did not have divided loyalties, and that that new agent/broker,
in turn, would have obtained a higher sales price for the property. Thus,
viewed in the light most favorable to the plaintiff, there was enough evidence
at trial that the question of causation should have gone to the jury, and the
issue was, therefore, improper for the court to resolve in the context of a
motion for a directed verdict.
14
We note that the court also directed the verdict in favor of the defendants
on count seven specifically on the ground that ‘‘the plaintiff has not met
[his] burden of proof to sustain such a claim or to support the claim that he
suffered substantial harm.’’ ‘‘The party claiming fraud . . . has the burden
of proof. . . . Whether that burden has been met is a question of fact . . . .’’
(Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn. App. 673,
680, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). Viewing
the evidence in the light most favorable to the plaintiff, we conclude that
the jury could have reasonably determined that the elements of conspiracy
to defraud were proven here. More specifically, evidence was presented at
trial that the defendants all were professionally affiliated with Keller Williams
at some point in time and had personal relationships with each other; that
Olson and Jenkins showed the property to Kimberly Kilduff and Jason Kilduff
while the property was still listed as ‘‘temp’’ status, thus prohibiting other
real estate agents from seeing the property or presenting offers on it on
behalf of their clients; that Olson and Jenkins never discussed their role as
dual agents with the plaintiff; and that Jason Kilduff served as the listing
agent and Keller Williams as the broker in the resale of the property in 2009.
On the basis of this evidence, the jury reasonably could have inferred that
because the defendants were concerned with helping their other client, the
purchaser, obtain the property at the lowest price possible, as well as with
lining their own pockets via a second, future sale once the property had
been flipped by the Kilduffs, this affected their representation of the plaintiff
in the 2008 sale of the property and caused the alleged damages at issue here.
15
In the first forty paragraphs of the substitute complaint, the plaintiff
alleges that the defendants acted improperly in some of the following ways
that do not directly encompass the list price of the property: Jenkins and
Olson showed the house to Kimberly Kilduff without written permission
that the property could be moved from ‘‘temp status’’ to ‘‘active,’’ and in
derogation of Stephen Pellet’s express instructions not to show the house
until it was cleaned; none of the defendants informed Stephen Pellet of
Olson’s and Jenkins’ dual representation of both Stephen Pellet and Kimberly
Kilduff prior to the sale of the property, nor was a written dual agency
disclosure notice and consent agreement executed; the defendants failed
to disclose that there were other offers on the property; and the deceptive
practices of some or all of the defendants working in concert with one
another ‘‘deprived and excluded all other prospective buyers from even
bidding on the subject property before the September 10, 2008 purchase
contract was signed.’’
16
The court also directed the verdict in favor of the defendants on count
eight specifically on the ground that ‘‘the plaintiff premises his allegation of
a violation of CUTPA on the purported breaches of unspecified professional
standards of care and the allegedly artificially low listing price recommenda-
tion and subsequent sale of the home. CUTPA requires that the defendant
must have engaged in unfair or deceptive acts in the conduct of any trade
or commerce. In the absence of such unfair or deceptive acts, in this case,
breach of professional standards of care with the intent to defraud, the
claim cannot be found in favor of the plaintiff.’’
In our review of count eight, the plaintiff’s CUTPA claim clearly incorpo-
rates a myriad of allegations of unfair or deceptive acts, as set forth in
paragraphs 1 through 40 of the substitute complaint, that do not all necessar-
ily implicate a professional standard of care. See footnote 15 of this opinion.
Accordingly, we reject this conclusion of the court.
17
The plaintiff has failed to provide any analysis for his broad assertion
that expert testimony was not required in the present case because ‘‘the
questions presented in each of [his] eight counts did not require expertise
‘beyond the field of . . . ordinary knowledge and experience.’ ’’ Therefore,
because it is inadequately briefed, we decline to reach the merits of this
argument. See Lucarelli v. Freedom of Information Commission, supra,
136 Conn. App. 407 n.1.
18
The plaintiff argues in his brief that the testimony of Daniel LaPorte, a
certified residential real estate appraiser who testified on the plaintiff’s
behalf, did, in fact, satisfy any requirement of expert testimony as to the
standard of care of a realtor and/or broker in the determination and recom-
mendation of a list price. Because we determine that expert testimony was
adequately provided by Olson and Fairfield, we need not decide whether
LaPorte’s testimony also satisfied this requirement.
19
The plaintiff also argues, with respect to this claim, that the procedural
requirements of the statute must be met before the trial court can make a
§ 52-226a finding; they were not met here, he argues, because the action
was tried to a jury and, thus, the special findings had to have been made
‘‘after the return of a verdict and before judgment has been rendered
thereon,’’ which did not occur. General Statutes § 52-226a. Because we
reverse the court’s § 52-226a findings on other grounds, we need not address
the merits of this argument.
20
Specifically, the plaintiff presented the following issue: ‘‘Did the trial
court err in making a finding pursuant to General Statutes § 52-226a when
the [plaintiff’s] causes of action both had merit and were brought in good
faith because [Kimberly] Kilduff was a licensed real estate agent, affiliated
with the Keller Williams Agency, who represented [Stephen Pellet] as [his]
real estate agent, suggesting a conflict of interest that rose to the level of
negligent misrepresentation, intentional misrepresentation, and conspiracy
to defraud?’’
21
To the extent that the court supported its special finding as to Kimberly
Kilduff by concluding that ‘‘the plaintiff offered no evidence to prove’’;
(emphasis in original); his allegation that Kimberly Kilduff was a real estate
agent affiliated with Keller Williams, we note that Kimberly Kilduff testified
at trial that she was a licensed real estate agent twelve years prior and that
she carried her license with Keller Williams. (Emphasis in original.)
22
The court concluded in its memorandum of decision that ‘‘[w]hether or
not the plaintiff had probable cause to bring the action against [Kimberly]
Kilduff at the commencement of the suit is questionable. However, once
she provided him with a full package of documents sometime in October,
2012, through discovery, and participated in numerous pretrial[s] over the
four years the case was pending, there would have been sufficient evidence
to indicate that his claims were totally without merit and unwarranted.’’