Saggese v. Beazley Co. Realtors

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BARBARA SAGGESE v. BEAZLEY COMPANY
REALTORS ET AL.
(AC 35471)
Alvord, Keller and Harper, Js.
Argued December 1, 2014—officially released March 10, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Richard P. Gilardi, judge trial referee.)
Charles D. Ray, with whom, on the brief, was Lee
Friend Lizotte, for the appellant (plaintiff).
Michael C. Conroy, for the appellees (defendants).
Opinion
HARPER, J. This fraudulent nondisclosure appeal
arises out of claims made by the plaintiff purchaser of
shoreline real property against the defendant real estate
broker and its defendant agent who represented the
sellers of the property. The plaintiff predicated her
claim on the defendants’ failure to disclose the ‘‘entire
content’’ of a letter they received from a law firm repre-
senting a third party, which included a reference to a
1903 Supreme Court case concerning use of the com-
mon lawn in the subdivision where the property the
plaintiff purchased is located.1
The plaintiff, Barbara Saggese, appeals from the judg-
ment of the trial court rendered in favor of the defen-
dants, Beazley Company Realtors (Beazley) and its
agent, Kathleen Greenalch. On appeal, the plaintiff
claims that the trial court (1) failed to apply the proper
legal standard when adjudicating her fraudulent nondis-
closure claim, and consequently, (2) failed to adjudicate
her Connecticut Unfair Trade Practices Act (CUTPA)
claim.2 We affirm the judgment of the trial court.3
In July, 2003, the plaintiff purchased property con-
sisting of a house and land located in the Crescent Bluff
subdivision (subdivision) in the Pine Orchard District
in Branford. The property is depicted as Lot 3 on the
subdivision plan (Baker map) and is situated on the
southern end of Crescent Bluff Avenue (avenue), on
the east side of the street. See appendix to this opinion.
The plaintiff claims that at the time she purchased Lot
3, she believed that Lot 3 ‘‘ran from the house, south
to Long Island Sound.’’ She understood that residents
of the subdivision could pass over the lawn between
Lots 3 and 4 to get to the Sound, but she did not know
that residents of interior lots had the right to pass over
the lawn between Lot 3 and the Sound. After she pur-
chased Lot 3, the plaintiff claims that she observed her
neighbors setting up barbeque grills and blankets on
what she considered to be her lawn. The plaintiff com-
municated with her real estate attorney, William J. Var-
ese, and her real estate agent, Karen Stephens, and
allegedly then learned that she did not own all of the
lawn between Lot 3 and the Sound.
The plaintiff commenced the present action against
the defendants in June, 2004, and filed an amended
three count complaint on September 10, 2004, in which
she alleged fraudulent nondisclosure, violation of
CUTPA, and negligence against the defendants.4 At trial,
the plaintiff claimed, among many other things, that the
defendants knew when they listed Lot 3 for sale that
owners of interior lots had a right-of-way to cross the
lawn in front of Lot 3 but failed to disclose that fact to
her. Moreover, the plaintiff claimed that the defendants
were in possession of a letter from the law firm of
Robinson & Cole, LLP, advising them of pending litiga-
tion (McBurney litigation) regarding the right of resi-
dents of the subdivision to use the lawn and the case
of Fisk v. Ley, 76 Conn. 295, 56 A. 559 (1903).5 She
alleged that, despite informing her of the McBurney
litigation, the defendants fraudulently failed to disclose
the entire content of the Robinson & Cole letter, particu-
larly the reference to the Fisk case.
The court tried the case over several days between
November 3, 2011, and March 15, 2012, and issued a
corrected memorandum of decision on April 1, 2013.
The court concluded that the plaintiff had failed to
carry her burden of proof with respect to her claim of
fraudulent nondisclosure. Because the plaintiff’s
CUTPA claim was predicated on her claim of fraudulent
nondisclosure, the court rendered judgment for the
defendants on the CUTPA claim without further analy-
sis. The court denied the plaintiff’s motion to reargue
and for reconsideration. Thereafter, the plaintiff filed
the present appeal.
The plaintiff’s issue on appeal concerns her allegation
that, prior to closing the sale of Lot 3, Greenalch failed
to disclose to her the entire content of the Robinson &
Cole letter, particularly the substance of the McBurney
litigation claims and the Fisk case. The plaintiff alleged
that as a result of the defendants’ fraudulent failure to
disclose the entire content of the Robinson & Cole letter
she suffered loss and damage in that the value of Lot
3 ‘‘was substantially less than the price she paid, and
she will incur expenses for surveys, appraisals, title
searches, attorney fees and other costs.’’6
In their brief, the defendants contend that, despite
the plaintiff’s claims that they failed to disclose material
facts to her regarding the right of residents of the subdi-
vision to cross and use the common lawn, the plaintiff,
Stephens, and Varese were in possession of those facts
and information regarding the lawn prior to the closing
of the sale of Lot 3. Moreover, the defendants assert
that the plaintiff did not rely to her detriment on the
defendants’ failure to provide her with the entire con-
tent of the Robinson & Cole letter. We agree with the
defendants that the plaintiff was in possession of infor-
mation concerning the subdivision residents’ claimed
right to use the common lawn in front of Lot 3 and that
they did not fail to disclose material facts to the plaintiff
prior to her purchase of Lot 3.
I
TRIAL COURT’S DECISION
A
Factual Findings
The following historical facts, as found by the court,
are relevant to the plaintiff’s claims on appeal.7 In July,
1885, Ellis B. Baker, trustee, filed the Baker map in the
Branford land records, and the Baker map has been
referenced in every deed of conveyance regarding lots
in the subdivision since 1885. The Baker map depicts
a subdivision plan consisting of thirty-five residential
lots with an avenue, presently called Crescent Bluff
Avenue, that runs from the northern boundary of the
subdivision between the lots to an open area identified
on the Baker map as a ‘‘lawn’’ at the southern boundary.
Four lots at the southern end of the subdivision border
the lawn and are designated as Lots 4 and 2 on the
western side of the avenue and Lots 3 and 1 on the
eastern side. The lawn encompasses the entire width
of the southern part of the subdivision with an irregular
border along the Sound. See appendix to this opinion.
The court found that since the subdivision was estab-
lished, the residents have used the lawn to access the
slope to the beach and Sound.
The court found the following facts that underlie the
present litigation. In 2003, Joseph Millerick and Juanita
Millerick (Millericks) owned 1 Crescent Bluff Avenue,
which is also known as Lot 3 on the Baker map.8 When
they decided to sell Lot 3, the Millericks contacted
Greenalch, who has been a licensed real estate agent
for forty years and specializes in the sale of shoreline
property. The Millericks signed a listing agreement with
Beazley on March 10, 2003, placing Lot 3 on the market
for $1,990,000.
Greenalch was familiar with Lot 3 and knew that
residents of the subdivision crossed the subdivision
lawn to and from the Sound. Prior to listing Lot 3 for
sale, she went to the Branford tax assessor’s office to
consult the assessor’s map, which described Lot 3 as
‘‘waterfront,’’ 0.203 acres. Greenalch, therefore, adver-
tised Lot 3 as direct waterfront property and identified
its location within the subdivision by referencing the
Baker map.
After listing Lot 3 for sale in March, 2003, Beazley
received a letter from the law firm of Robinson & Cole,
LLP, stating that the firm represented Leslie Carothers
of Crescent Bluff Avenue.9 The firm understood that
Beazley had listed property on the avenue for sale and
it assumed that Beazley was aware of ‘‘claims of access
to Long Island Sound, to the Lawn, and to an unob-
structed view of the shoreline on behalf of property
owners on Crescent Bluff Avenue.’’10 The letter con-
cluded by stating that Robinson & Cole, LLP, was put-
ting Beazley ‘‘on notice in the event that you are not
[aware]’’ and opining that ‘‘a buyer should be made
aware of these claims’’ and the Fisk case.
The court found that the defendants did not have
‘‘any idea’’ what the Robinson & Cole letter was about.
Greenalch, therefore, took a copy of the letter to Joseph
Millerick, who informed her that the Millericks were
not parties to the litigation, that there was nothing to
be concerned about, and that he would take care of it
through his lawyer.
As to the plaintiff’s purchase of Lot 3, the court found
that the plaintiff had been looking to purchase property
on the shoreline. Before she knew that Lot 3 was for
sale, the plaintiff and Stephens had viewed one of the
interior lots on the avenue that was offered for sale
and were advised that all residents of the subdivision
used the lawn located at the southern end of the avenue
to access the Sound. The plaintiff and Stephens drove
to the southern end of the avenue, saw that Lot 3 was
for sale, and made arrangements to view it.
The court found that during their initial inspection of
Lot 3, Greenalch had stated to the plaintiff and Stephens
that Lot 3 did not include the common lawn and that
she had walked the dimensions of Lot 3 with them.11
When Joseph Millerick met the plaintiff, he stated two
things to her: (1) the house needed a new roof, and (2)
he did not own the land in front of the house. Greenalch,
Stephens, and the plaintiff had a discussion about a
survey of Lot 3. The plaintiff wanted to determine
exactly what land came with Lot 3, as there had been
some discussion about a common lawn and the right
of others to use it. Stephens assumed, at the time, that
if there were any issues concerning the property lines,
they would be discovered during the title search. The
court found that, at trial, the plaintiff could not recall
being informed that Lot 3 did not include the lawn,
although she admitted that Greenalch never repre-
sented to her that the lawn south of Lot 3 was included
in the sale. At trial, Stephens confirmed that Greenalch
never indicated that the property included the lawn
south of Lot 3.
Moreover, the court found that the plaintiff had read
real estate brochures describing Lot 3 as direct water-
front property and that she had assumed that the
description meant Lot 3 included all the land to the
Sound. The plaintiff observed and was advised several
times that residents of the subdivision used the lawn
to access the beach. During a second meeting with
the plaintiff, Stephens, Greenalch, and the Millericks,
Juanita Millerick stated that the neighbors have a right
to use the lawn to get to the beach and stairs to the
water. In response to a question from the plaintiff, Jua-
nita Millerick stated that sometimes people walk on the
lawn in front of the house, subdivision residents were
always cordial, used the lawn south of Lot 3 only to
access the slope and stairs, and that there never was
any congregating.
The court found that the plaintiff submitted an offer
to purchase Lot 3 for $1.4 million. The defendants
returned the offer to purchase with a notice, stating
‘‘this is to inform you that there is pending litigation
regarding property adjacent to the water in front of the
residences on the West side of Crescent Bluff Avenue.’’
Stephens or Varese returned the offer to purchase to
the defendants stating under additional terms and con-
ditions: ‘‘Buyer to be given satisfactory information
about pending litigation.’’12 Greenalch referred the issue
of pending litigation to the Millericks and their attorney,
J. Michael Suzlbach, for a response.
In a June 18, 2003 letter, Sulzbach stated to Varese:
‘‘Pursuant to paragraph 1 of the Addendum to the Sales
Agreement dated June 9, 2003, please accept this letter
as confirmation that Joseph Millerick is not a party to
any pending litigation concerning Crescent Bluff. The
cases which are presently pending in the Superior Court
for the Judicial District of New Haven at New Haven
. . . relate to disputes between the owners of 2 Cres-
cent Bluff and 6 Crescent Bluff and several owners of
property situated on Crescent Bluff Avenue north of
the waterfront homes.’’13 The court found that Varese
had several conversations with Sulzbach concerning
the McBurney litigation, in which Sulzbach informed
Varese of the common lawn historically used by subdivi-
sion residents to access the Sound. Varese, however,
never communicated with any of the attorneys repre-
senting the McBurney litigants to determine the issues
involved in the litigation, although the litigation con-
cerned the western portion of the common lawn. The
court found that Varese confirmed to the plaintiff and
Stephens that the McBurney litigation had nothing to
do with Lot 3 and that neither the plaintiff, nor Stephens,
nor Varese ever expressed dissatisfaction with the ade-
quacy of Sulzbach’s response to the amendment to the
sales agreement. See footnote 12 of this opinion.
The court found that prior to the closing of sale,
Varese reviewed a copy of the Baker map, the appraisal
of Lot 3, the title search, the proposed deed to the
plaintiff, and the deed conveying title to Lot 3 to the
Millericks. The court found that the appraisal described
Lot 3 as ‘‘sub/shared waterfront.’’ The title search stated
that Lot 3 was subject to ‘‘littoral rights of others into
Long Island Sound’’ and that the ‘‘house is bounded on
the south ‘by common lawn and shown on [Baker] map,
45 feet.’ ’’ Moreover, the Millericks’ proposed deed
stated that the forty-five foot southern boundary of Lot
3 consisted of a lawn, not the Sound, and that the deed
by which the Millericks took title to Lot 3 described its
southern boundary as a ‘‘common lawn’’ and referred
to the 1885 Baker map.14 The court found that Varese
and the title searcher had assumed that the common
lawn was shared by only Lots 3 and 4, and that Varese
had told the plaintiff that the title search ‘‘came out
fine.’’ At the time of closing on July 11, 2003, neither
the plaintiff, nor Stephens, nor Varese, had questions
regarding Lot 3.
As to whether the defendants fraudulently failed to
disclose the entire content of the Robinson & Cole letter
to the plaintiff, the parties presented expert testimony
at trial. The court found that the plaintiff’s expert,
Laureen Rubino, acquired her real estate license in 2009.
Rubino criticized Greenalch for not giving the entire
content of the Robinson & Cole letter to the plaintiff,
particularly the reference to the Fisk case. She opined
that the notice referencing pending litigation that the
defendants gave to the plaintiff when they returned her
offer to purchase violated the standard of care. She
testified that although the notice was accurate, it did not
disclose the use of the common lawn. Rubino admitted,
however, that Greenalch was not an appraiser, a title
searcher, or an attorney.
Barbara Fairfield testified as the defendants’ expert.
The court found that she had thirty-two years of experi-
ence in real estate and owns a business that conducts
courses to elevate the understanding and knowledge
of real estate agents, including all aspects of working
with a seller client. With respect to the portion of the
Robinson & Cole letter that instructed the defendants
to advise a prospective buyer of Lot 3 of the Fisk case,
Fairfield opined that a real estate agent has no responsi-
bility to follow instructions from an attorney for a third
party. The standard of care does not require a seller’s
agent who receives a letter, such as the one from Rob-
inson & Cole, LLP, stating that there may be a 100 year
old case that somehow impacts the right of people on
the avenue to use the lawn, to reveal automatically
the letter to any prospective buyer. Whether the entire
content of the Robinson & Cole letter constitutes a
material fact that a seller’s agent must disclose requires
legal analysis. In this case, Greenalch took the letter to
the Millericks and asked them if the litigation affected
Lot 3. Joseph Millerick told her the letter had nothing
to do with Lot 3. According to Fairfield, by going to
the Millericks, Greenalch complied with the standard
for a seller’s agent.
The court also made findings of fact regarding the
McBurney litigation.15 In McBurney I, our Supreme
Court determined that the litigation was limited to land
described as the second parcel on the western side of
the avenue, but determined that there was an undeline-
ated implied easement over the common lawn that
would affect all owners of property in the subdivision.
See McBurney v. Cirillo, 276 Conn. 782, 789 n.9, 792–98,
889 A.2d 759 (2006) (McBurney I), overruled in part on
other grounds by Batte-Holmgren v. Commissioner of
Public Health, 281 Conn. 277, 284–89, 914 A.2d 996
(2007). Our Supreme Court, therefore, remanded the
case to the trial court to determine the scope of the
implied easement and ordered that notice of the litiga-
tion be given to the owners of lots in the subdivision
and that they be permitted to intervene. See id., 823.
Subsequently, in McBurney v. Pacquin, 302 Conn. 359,
28 A.3d 272 (2011) (McBurney II), our Supreme Court
affirmed the judgment of the trial court that determined
that the owners of property in the subdivision have an
implied easement to use the common lawn as a right-
of-way to the Sound, but that it did not afford residents
‘‘a right to recreate on the lawn.’’ Id., 372. The trial court
in the present case found that the implied easement to
cross the common lawn existed on July 11, 2003, when
the plaintiff purchased Lot 3.
B
Legal Conclusions
On the basis of its factual findings and relevant legal
precedent, the court concluded that the plaintiff failed
to satisfy her burden of proof as to her claim of fraudu-
lent nondisclosure. The court found that the plaintiff
was well aware that the property she was buying did
not include the lawn south of the residence and that
it was a common lawn used by the residents of the
subdivision to go to and from the Sound. The defendants
did not mislead the plaintiff to believe that Lot 3
included the lawn down to the Sound. The title search
referenced the southern boundary of Lot 3 as ‘‘by com-
mon lawn, as shown on [the Baker map], 45 feet’’ and
the ‘‘littoral rights of others into Long Island Sound.’’
The appraisal listed Lot 3 as a ‘‘sub/shared waterfront.’’
The deed conveying title to Lot 3 to the Millericks identi-
fied the southern boundary as a common lawn forty-
five feet in length, and the deed from the Millericks
described the southern boundary as the lawn. More-
over, the court found that the experts who testified on
behalf of the plaintiff and the defendants opined that
a review of the title search and deeds would put a
potential buyer on notice that the buyer was not pur-
chasing property that extended to the Sound.
The court concluded that anyone reviewing the Baker
map would determine that the avenue and the common
lawn located between the lots and the sound were cre-
ated for the common use of all residents of the subdivi-
sion. In coming to that conclusion, the court quoted
from McBurney I, to wit: ‘‘Consequently, a title
researcher, reading the root of title [to Lot 4], namely,
the 1950 conveyance from Moran to Walker—and,
indeed, all of the subsequent conveyances—would have
been obligated to examine the Baker [map]. Indeed, the
plaintiffs’ own title expert testified accordingly.
Although we agree that . . . a title searcher would not
have been obligated, solely by that examination, to dis-
cover this court’s decision as reported in Fisk v. Ley,
supra, 76 Conn. 295, he or she would have been duly
charged with knowledge of the necessary legal conse-
quences of what the Baker [map] depicted. Put another
way, a title searcher, having been alerted to the Baker
[map] would be charged with knowledge of what it
necessarily implied as a matter of law. As we have
explained, these necessary legal consequences were
and are an implied easement over the second lawn
parcel in favor of the rear lot owners.’’ (Emphasis
added.) McBurney I, supra, 276 Conn. 811.
The court further concluded that the defendants did
not mislead the plaintiff with respect to Lot 3. Prior
to the closing, the plaintiff, Stephens, Varese, and the
plaintiff’s title searcher reviewed the Baker map. The
court found that Varese and the title searcher assumed
that the common lawn was shared by only Lots 1 and
3. The court concluded that if an attorney representing
the buyer of Lot 3 were informed that the lawn between
the property and the water was a ‘‘common lawn,’’ the
first priority should be to determine who has the com-
mon use of that property. On its face, ‘‘common use’’
could have been the right of the general public, citizens
of Branford, residents of the Pine Orchard District, or,
in this case, residents of the subdivision.
Having reviewed the Baker map, Varese knew that
the residents of the subdivision used the lawn to access
the Sound. The court found, according to our Supreme
Court, that the Baker map delineates the avenue enter-
ing the entire lawn south of the subdivision, which leads
to the conclusion that the avenue and lawn were created
for the use of the residents of the subdivision. See
McBurney I, supra, 276 Conn. 805. Prior to the closing,
Varese had read the appraisal that stated that Lot 3
was ‘‘sub/shared waterfront,’’ the title search stated the
southern border was the common lawn, the deed to
the Millericks and the deed from them to the plaintiff
stated that the southern boundary of Lot 3 was a com-
mon lawn. Although Varese had been given the docket
numbers of the five cases comprising the McBurney
litigation, which concerned use of the western portion
of the common lawn, he never contacted any of the
attorneys involved with the litigation to ascertain the
nature of that litigation and the matters at issue.
Moreover, the court concluded that the defendants
at all times conducted themselves within the standard
of care required of a seller’s real estate agent. At no
time did the defendants intentionally or negligently
withhold or fail to disclose material facts concerning
the subject property to the plaintiff prior to closing.
The court also concluded that the defendants were not
required to turn over the entire content of the Rob-
inson & Cole letter, including the reference to Fisk v.
Ley, supra, 76 Conn. 295. The court ultimately con-
cluded that Greenalch complied with her professional
obligations as the listing agent for the seller of Lot 3,
and her professional obligation did not extend to that
of the plaintiff’s attorney, title searcher, or real estate
agent.
For the foregoing reasons, the court concluded that
the plaintiff had failed to satisfy her burden of proof
as to her claim of fraudulent nondisclosure.
II
THE PLAINTIFF’S CLAIM ON APPEAL
On appeal, the plaintiff claims that the court failed
to apply the proper legal standard to her claim of fraudu-
lent nondisclosure.16 We disagree.
The plaintiff argues that, despite accurately setting
forth the elements of a claim of fraudulent nondisclo-
sure, the court adjudicated her claim as if the only
question were whether the defendants owed her a duty
other than that of a real estate agent. She contends that
her fraudulent nondisclosure claim is predicated on the
defendants’ two line notice concerning pending litiga-
tion regarding property adjacent to the water on the
western side of the avenue that accompanied their
return of her offer to purchase. The plaintiff further
claims that when the defendants sent the notice, they
were required to disclose the entire content of the Rob-
inson & Cole letter, which referred ‘‘to neighboring
property owner’s claimed right to use the property’s
lawn at any time and for any purpose’’ and the Fisk
case.17 On appeal, the plaintiff contends that the court
never addressed the defendants’ alleged fraudulent non-
disclosure by determining whether the entire content
of the Robinson & Cole letter was a material fact.
In response, the defendants argue that the court prop-
erly applied the applicable standard of care and found
that the defendants neither negligently nor intentionally
failed to disclose material facts relevant to the sale of
Lot 3. We agree with the plaintiff that the court never
explicitly found whether the entire content of the Rob-
inson & Cole letter was a material fact under the circum-
stances. In its lengthy memorandum of decision, the
court concluded by implication that the entire content
of the letter was not a material fact and, in any event,
that the substance of the entire content of the letter
was either known to the plaintiff or available to her
and her agents upon reasonable inquiry.
We first set forth the applicable standard of review.
‘‘The scope of our appellate review depends upon the
proper characterization of the rulings made by the trial
court. To the extent that the trial court has made find-
ings of fact, our review is limited to deciding whether
such findings were clearly erroneous. When, however,
the trial court draws conclusions of law, our review is
plenary and we must decide whether its conclusions
are legally and logically correct and find support in
the facts as they appear in the record.’’ Waterbury v.
Washington, 260 Conn. 506, 576, 800 A.2d 1102 (2002).
‘‘[W]hen the resolution of a question of law, such as
the existence of a fiduciary duty, depends on underlying
facts that are in dispute, that question becomes, in
essence, a mixed question of fact and law. Thus, we
review the subsidiary findings of historical fact, which
constitute a recital of external events and the credibility
of their narrators, for clear error, and engage in plenary
review of the trial court’s application of . . . legal stan-
dards . . . to the underlying historical facts.’’ (Internal
quotation marks omitted.) Iacurci v. Sax, 313 Conn.
786, 797 n.12, 99 A.3d 1145 (2014).
In the present case, the plaintiff does not claim that
the court’s findings of relevant facts are clearly errone-
ous. The plaintiff’s claim therefore turns on whether
the court properly applied the law.
‘‘The essential elements of a cause of action in fraud
are: (1) a false representation 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 representation to his injury. . . . All of
these ingredients must be found to exist; and the
absence of any one of them is fatal to recovery.’’ (Inter-
nal quotation marks omitted.) Harold Cohn & Co. v.
Harco International, LLC, 72 Conn. App. 43, 51, 804
A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269
(2002).
‘‘Fraud by nondisclosure, which expands on the first
three of [the] four elements [of fraud], involves the
failure to make a full and fair disclosure of known
facts connected with a matter about which a party has
assumed to speak, under circumstances in which there
was a duty to speak. . . . A lack of full and fair disclo-
sure of such facts must be accompanied by an intent
or expectation that the other party will make or will
continue in a mistake, in order to induce that other
party to act to her detriment.’’ (Internal quotation marks
omitted.) Reville v. Reville, 312 Conn. 428, 441, 93 A.3d
1076 (2014).
‘‘Regarding the duty to disclose, the general rule is
that . . . silence . . . cannot give rise to an action
. . . to set aside the transaction as fraudulent. Certainly
this is true as to all facts which are open to discovery
upon reasonable inquiry. . . . [M]ere nondisclosure
. . . does not amount to fraud. . . . To constitute
fraud on that ground, there must be a failure to disclose
known facts and, in addition thereto, a request or an
occasion or a circumstance which imposes a duty to
speak. . . . Such a duty is imposed on a party insofar
as he voluntarily makes disclosure. A party who
assumes to speak must make a full and fair disclosure
as to the matters about which he assumes to speak.’’
(Citations omitted; internal quotation marks omitted.)
Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d
1099 (1977).
‘‘Additionally, [t]he party asserting [a fraud] cause of
action must prove the existence of the first three of
[the] elements by a standard higher than the usual fair
preponderance of the evidence, which higher standard
we have described as clear and satisfactory or clear,
precise and unequivocal.’’ (Internal quotation marks
omitted.) Harold Cohn & Co. v. Harco International,
LLC, supra, 72 Conn. App. 51. ‘‘Proof by clear and con-
vincing evidence is an intermediate standard generally
used in civil cases involving allegations of fraud or some
other quasi-criminal wrongdoing, or when particularly
important individual rights are involved.’’ (Internal quo-
tation marks omitted.) State v. Davis, 229 Conn. 285,
293–94, 641 A.2d 370 (1994).
‘‘[C]lear and convincing proof denotes a degree of
belief that lies between the belief that is required to
find the truth or existence of the [fact in issue] in an
ordinary civil action and the belief that is required to
find guilt in a criminal prosecution. . . . [The burden]
is sustained if evidence induces in the mind of the trier
a reasonable belief that the facts asserted are highly
probably true, that the probability that they are true or
exist is substantially greater than the probability that
they are false or do not exist. . . . Our Supreme Court
has stated that the clear and convincing standard is a
demanding standard that should operate as a weighty
caution upon the minds of all judges, and it forbids
relief whenever the evidence is loose, equivocal or con-
tradictory.’’ (Citation omitted; internal quotation marks
omitted.) Shelton v. Statewide Grievance Committee,
85 Conn. App. 440, 443–44, 857 A.2d 432 (2004), aff’d,
277 Conn. 99, 890 A.2d 104 (2006). ‘‘Whether that burden
has been met is a question of fact that will not be
overturned unless it is clearly erroneous.’’ (Internal quo-
tation marks omitted.) Trumbull v. Palmer, 123 Conn.
App. 244, 257, 1 A.3d 1121, cert. denied, 299 Conn. 907,
10 A.3d 526 (2010).
We conclude that the trial court properly found that
the plaintiff failed to carry her burden of proof by clear
and convincing evidence that the defendants engaged
in fraudulent nondisclosure by failing to disclose known
material facts or the entire content of the Robinson &
Cole letter. As to the first element of fraud, i.e., whether
the representation was untrue and known to be untrue
by the party making it, the plaintiff herself admitted
that Greenalch did not tell her that Lot 3 encompassed
the common lawn. As to the second element, the court
found that Greenalch did not understand the Rob-
inson & Cole letter. Greenalch, therefore, could not
have known whether the entire content of the letter
was accurate or a material fact. The court found that
Greenalch properly took the letter to the Millericks and
consulted with them. She learned that the Millericks
were not parties to the McBurney litigation and that
the Millericks would have their attorney take care of
the matter. We agree with the court that a real estate
agent has no duty to follow the direction of an attorney
representing a third party. Moreover, the representa-
tions made by Robinson & Cole, LLP, concerning the
McBurney litigation and the Fisk case were subject to
legal analysis and Greenalch is not an attorney.
In this case, we agree with the court that the facts
that the plaintiff claims were material, but not disclosed
by the defendants, were ‘‘ ‘open to discovery upon rea-
sonable inquiry.’ ’’ Duksa v. Middletown, supra, 173
Conn. 127. After the plaintiff submitted an offer to pur-
chase, Greenalch returned the offer with a notice stating
‘‘this is to inform you that there is pending litigation
regarding property adjacent to the water in front of the
residences on the West side of Crescent Bluff Avenue.’’
The plaintiff returned the offer to purchase with addi-
tional terms: ‘‘Buyer to be given satisfactory informa-
tion about pending litigation.’’ The plaintiff and the
Millericks later signed an addendum to the sales con-
tract that stated: ‘‘Sellers to provide a written statement
verifying that 1 Crescent Bluff is not involved with any
pending litigation.’’ Sulzbach provided Varese with the
docket numbers of the five consolidated cases in the
McBurney litigation, as stated in the Robinson & Cole
letter. The substance of the McBurney litigation was
open to discovery upon reasonable inquiry had Varese
only communicated with any of the attorneys represent-
ing the parties involved in the litigation or gone to
the courthouse in New Haven and reviewed the files.
Moreover, the court found that Varese had reviewed
the appraisal, the deed to the Millericks, the proposed
deed to the plaintiff, and the Baker map that was refer-
enced in the deeds. Varese, however, made certain
assumptions about the common lawn, which were
incorrect. He informed the plaintiff that the title search
came out fine, and the plaintiff proceeded to close
the sale.
For the foregoing reasons, we conclude that the court
properly determined that the plaintiff failed to prove
by clear and convincing evidence that the defendants
failed to disclose to her a material fact about Lot 3.
Greenalch had no knowledge of or about the McBurney
litigation or the Fisk case and was not an attorney
with the skills necessary to perform legal analysis to
determine whether the representations in the Rob-
inson & Cole letter were accurate or material to the
sale of Lot 3. She, however, informed the plaintiff of
the pending litigation concerning property on the west
side of the avenue. Pursuant to the addendum to the
sales agreement, the Millericks, through Sulzbach, pro-
vided the docket numbers of the pending McBurney
litigation to the plaintiff’s attorney, who through reason-
able inquiry could have discovered the nature of the
litigation and the rights of subdivision residents to use
the common lawn. All of the material information was
in the plaintiff’s possession, but neither she nor her
agents made proper use of it. That failure cannot be
laid at the feet of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
(See Appendix next page)
Appendix
1
The common lawn in the subdivision has been the subject of prior
litigation. See McBurney v. Paquin, 302 Conn. 359, 28 A.3d 272 (2011)
(McBurney II); McBurney v. Cirillo, 276 Conn. 782, 889 A.2d 759 (2006)
(McBurney I), overruled in part on other grounds by Batte-Holmgren v.
Commissioner of Public Health, 281 Conn. 277, 284–89, 914 A.2d 996 (2007);
Fisk v. Ley, 76 Conn. 295, 56 A.2d 559 (1903). The plaintiff, Barabara Saggese,
commenced the present action in 2004. The scope of the easement over the
common lawn in the subdivision was resolved in McBurney II, prior to the
date the present case went to trial.
2
See General Statutes § 42-110a et seq.
3
We conclude that the court properly adjudicated the plaintiff’s claim of
fraudulent nondisclosure and, therefore, do not consider her claim that the
court improperly failed to adjudicate her CUTPA claim, which is predicated
on the claim of fraudulent nondisclosure.
4
The plaintiff withdrew the negligence count before trial.
5
In Fisk, in 1903, the owners of the lots abutting the lawn, including
Frederick Ley, began to construct a wall to replace the damaged wooden
bulkhead below the slope. The intended repair would have decreased the
size of the slope where residents congregated and increased the size of the
lawn. Fisk v. Ley, supra, 76 Conn. 298–99. ‘‘The ‘lawn’ was a level, grassy
piece of upland, not over 56 feet in depth at any point, terminating in a
slope leading down to the beach which was some 20 feet below.’’ Id., 297.
Louis A. Fisk, who owned one of the interior lots, and others, commenced
an action to enjoin the repair. The trial court granted the injunction against
‘‘substantially changing the extent and character of the beach and the shore
of the beach in front of said lawn, or of the grade of said lawn and said
avenue . . . .’’ (Internal quotation marks omitted.) Id., 303. The judgment
was affirmed by our Supreme Court. Id.
6
At trial, however, the plaintiff stipulated that Lot 3 had not diminished
in value since she purchased it. The plaintiff claimed that she was entitled
to the expenses she expended after she took possession of Lot 3. The court
stated, however, that the remedy for fraudulent nondisclosure is rescission
or actual damages.
7
The court made lengthy and detailed factual findings relevant to the
claims alleged in the plaintiff’s amended complaint. Only the facts relevant
to the plaintiff’s claim on appeal are recited herein.
8
The Millericks are not parties to this litigation. After selling Lot 3, they
retired far from Connecticut. When the plaintiff threatened to sue them,
they settled with her, rather than engage in litigation.
9
The Robinson & Cole letter stated more fully:
‘‘To Whom It May Concern:
‘‘This firm represents Leslie Carothers, 22 Crescent Bluff Avenue, Bran-
ford, CT 06405.
‘‘We understand that your company has listings on one or more properties
on Crescent Bluff Avenue, including property of Dr. John Millerick at 1
Crescent Bluff Avenue.
‘‘We assume that you are aware, as agents for the seller, of the claims of
access to Long Island Sound, to the Lawn, and to an unobstructed view of
the shoreline on behalf of property owners on Crescent Bluff Avenue.
‘‘These claims are the subject of pending litigation in the Superior Court
for the State of Connecticut. The pending litigation is in the five cases
consolidated for trial under the caption Salvatore Verderame et al. v. James
R.G. McBurney, et al., Docket No. CV-01-0453999-S, Superior Court, Judicial
District of New Haven at New Haven. The document number of the other
cases are: McBurney, et al. v. Cirillo, et al., Docket # CV-98-0414830; McBur-
ney, et al. v. Baldwin, et al., Docket # CV-99-0422100; McBurney, et al. v.
Verderame, et al., CV-99-0422102; and McBurney, et al. v. Paquin, et al.,
Docket # CV-01-0455411.
‘‘We assume also that you are aware of the Connecticut Supreme Court
case of Fisk v. Ley, 76 Conn. 295 (1903), which concerns the right of each
lot owner on Crescent Bluff Avenue to pass over the street and the Lawn
to the Sound, to use the Lawn, and to use the strip of beach.
‘‘While we have assumed that your principal has made you aware of these
claims and also of the Fisk v. Ley case, we write to put you on notice in
the event that you are not. In our view, a buyer should be made aware
of these claims, and of the Fisk v. Ley case. If you have any questions,
please call.’’
10
The court found that at all times relevant, James R.G. McBurney owned
Lot 4 of the subdivision. After he purchased Lot 4, McBurney obtained title
to the balance of the common lawn on the western side of the avenue down
to the Sound (known as the second parcel). McBurney informed Joseph
Millerick that he was having problems with subdivision residents who were
using what he considered to be his land in front of Lot 4. McBurney instituted
four lawsuits against some residents of the subdivision and an action was
brought against him all concerning the second parcel.
The court found that the litigation referred to in the Robinson & Cole letter
concerned the McBurney litigation, which involved McBurney’s claimed
ownership of the second parcel. Moreover, the court found that the Millericks
were not parties to the McBurney litigation. See McBurney I, supra, 276
Conn. 788–89 (‘‘Only the parties’ interests in this second lawn parcel are at
issue in these appeals. Put another way, the defendants did not challenge
in the trial court and do not challenge on appeal the plaintiffs’ ownership
of and exclusive right to use the first lawn parcel, constituting the ten feet
of lawn directly in front of lot 4. Only the second lawn parcel, constituting
the remaining eight feet of lawn in front of lot 4 and the remaining strip of
land in front of lot 4 lying between the lawn and the Sound, is at issue.’’).
11
The court found that Greenalch later assumed that the plaintiff’s offer
to purchase Lot 3 was greatly reduced from the asking price because the
lot did not include the common lawn.
12
On June 9, 2003, the plaintiff and the Millericks signed an addendum
to the sales agreement, which stated: ‘‘Sellers to provide a written statement
verifying that 1 Crescent Bluff is not involved with any pending litigation.’’
13
Sulzbach’s letter to Varese included the case captions and docket num-
bers of each of the cases involved in the McBurney litigation, which were the
cases identified in the Robinson & Cole letter. See footnote 9 of this opinion.
14
Schedule A of the deed stated: ‘‘First piece: All that certain piece or
parcel of land, situated in the Town of Branford, County of New Haven and
State of Connecticut, known as #1 Crescent Bluff Avenue, being Lot #3 on
a map entitled ‘‘Lot 1 ‘Baker Map’ To be conveyed by Elsie S. Jones to
William M. Thompson, Pine Orchard, Branford, Conn. April 1967, Scale
1’’–20’ ’’ Walter B. Evarts, Land Surveyor #1340, Branford, Conn., on file in
the Branford Town Clerk’s Office, and bounded:
‘‘Westerly: by Crescent Bluff Avenue, 110 feet;
‘‘Northerly: by a portion of Lot #5 as shown on said map; 45 feet;
‘‘Easterly: by Lot #1 as shown on said map; 110 feet;
‘‘Southerly: by Lawn as shown on said map, 45 feet.
‘‘Together with all right, title and interest, if any, in and to the Common
Lawn, Beach Bank, and land lying above and below the waters of Long
Island Sound, abutting said piece.
‘‘Together with all right, title and interest, if any, in and to an additional
10’ wide parcel lying southerly of Lot #3, more particularly bounded and
described:
‘‘Westerly: by Crescent Bluff Avenue, 10 feet;
‘‘Northerly: by Lot #3 as shown on said map, 45 feet;
‘‘Easterly: by property now or formerly of Johanna S. Crawford and Lucy
Y. Noyes, 10 feet;
‘‘Southerly: by Lawn as shown on said map, 45 feet.
‘‘Together with the effect, if any, of a Water Line Easement and right of
way for ingress and egress as set forth in a certain Warranty Deed recorded
in Volume 209, Page 346.’’
15
The docket numbers of the five consolidated cases comprising the
McBurney litigation indicate that the first action was commenced in 1998.
‘‘Appellate courts may take judicial notice of files of the trial court in the
same or other cases.’’ Stuart v. Freiberg, 142 Conn. App. 684, 687 n.3, 69
A.3d 320, cert. granted on other grounds, 310 Conn. 921, 77 A.3d 142 (2013).
The McBurney I opinion was issued in January, 2006.
16
See footnote 3 of this opinion.
17
In McBurney II, our Supreme Court settled the dispute regarding the
scope of the easement residents of the subdivision have over the common
lawn. Residents may cross the lawn to and from the Sound, but they have
no right to use the lawn for recreational purposes. See McBurney II, supra,
302 Conn. 372.