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Szynkowicz v. Bonauitoo'Hara

Court of Appeals of Connecticut

January 10, 2017

PETER SZYNKOWICZ
v.
LINDA BONAUITO-O'HARA

          Submitted on briefs October 19, 2016

         Appeal from Superior Court, judicial district of Waterbury, Zemetis, J. [motion to strike]; Brazzel-Massaro, J. [summary judgment].

          Steven P. Kulas filed a brief for the appellant (plaintiff).

          Elizabeth S. Bennett filed a brief for the appellee (defendant).

          DiPentima, C. J., and Lavine and Pellegrino, Js.

          OPINION

          DiPENTIMA, C. J.

         The plaintiff, Peter Szynkowicz, appeals from the judgment rendered in favor of the defendant, Linda Bonauito-O'Hara, doing business as Linda's Team, William Raveis. The underlying dispute arose when the plaintiff and the seller, Edward Development Company, LLC, entered into a dual agency agreement[1] naming Brenda Hanley, a realtor who worked for the same real estate company as the defendant, to act as their dual agent in connection with locating, purchasing and developing the property known as Lot7 Meadow Brook Drive in East Haddam. After entering into the dual agency agreement, the plaintiff entered into a real estate contract with the seller to develop a single-family home on the property, which was subsequently cancelled when the seller was unable to complete construction. The plaintiff commenced this action against the defendant, whom the plaintiff alleges was also a party to the dual agency agreement, for the return of his deposited moneys advanced to the seller upon the advice of the defendant. On appeal, the plaintiff claims that the court erred in granting (1) the motion to strike count five of his complaint because he adequately had alleged an action for breach of an oral contract against the defendant, and (2) the motion for summary judgment because genuine issues of material fact exist as to the defendant's liability under counts one, two, three and four of his complaint. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our determination of this appeal. On October 5, 2012, the plaintiff commenced this action against the defendant with a five count complaint. In ruling on the motion to strike, the court, Zemetis, J., succinctly set forth the factual allegations of the complaint: The plaintiff alleged that he ‘‘and the defendant entered into a dual agency agreement on May 2, 2008, in connection with the defendant aiding the plaintiff in locating, purchasing and developing a piece of real property known as Lot 7 Meadow Brook Drive, East Haddam, Connecticut . . . . The defendant and its employees knew or should have known that the seller of the property was having financial difficulties when the dual agency agreement was entered into because the defendant was the seller's exclusive broker. The defendant failed to disclose the seller's financial difficulties to the plaintiff, despite the duty to do so. After entering the dual agency agreement, the plaintiff entered into a [purchase agreement] with the seller to develop a single family home on the property. After signing the purchase agreement, the defendant repeatedly represented to the plaintiff that the defendant would be able to obtain financing for the plaintiff and failed to disclose the seller's shaky financial condition. The defendant encouraged the plaintiff [to] remain in the deal after he had offered to withdraw. Based on his reliance on the defendant's representations that the seller was in good financial condition, the plaintiff advanced money to the seller in connection with the construction project. On November 25, 2008, the [dual agency] agreement was cancelled because the seller was unable to complete construction. The defendant, although having a duty to disclose the seller's financial difficulties, never did so.''

         The plaintiff's complaint contained five counts. Count one alleged that the defendant's failure to disclose information about the seller's financial difficulty constituted a breach of the defendant's contract with the plaintiff. Count two alleged that the defendant's actions in entering a dual agency agreement, i.e., a contract, with the plaintiff and failing to disclose the seller's financial difficulty constituted a breach of the implied covenant of good faith and fair dealing. Count three alleged that the defendant's actions in representing that she could obtain financing for the plaintiff, encouraging the plaintiff to stay in the deal when he offered to withdraw, and failing to disclose the seller's financial difficulty were fraudulent in connection with her duty to represent the plaintiff. Count four alleged that the defendant's actions in stating that she could obtain financing for the plaintiff, encouraging the plaintiff to stay in the deal when he offered to withdraw and failing to disclose the seller's financial difficulty violated General Statutes § 42-110b, a provision of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Count five alleged that the defendant's actions in failing to secure the purchase and the development of the real property violated an oral agreement between the defendant and the plaintiff.

         On April 8, 2013, the defendant filed a motion to strike counts one, two and five on the grounds that the plaintiff had failed to allege facts to support the existence of a contract between himself and the defendant. On July 26, 2013, the court denied the defendant's motion to strike counts one and two, but granted the defendant's motion as to count five. In granting the defendant's motion to strike count five, the court noted that it could not ‘‘find that the plaintiff . . . sufficiently pleaded that the defendant breached an oral contract in count five. First, [the] plaintiff has insufficiently alleged the existence of an oral contract because the plaintiff failed to allege facts pertaining to scope or terms of an oral agreement. Additionally, in count five the plaintiff has alleged no specific contractual obligation that has not been met.'' Accordingly, the court concluded that because ‘‘the plaintiff has failed to sufficiently allege facts implying the existence of a privity of contract between the parties and has merely alleged misrepresentations and omissions by the defendant . . . count five has failed to sufficiently allege a breach of a term of that alleged oral contract . . . [and] [t]he defendant's motion to strike count five is granted.'' Judgment was subsequently rendered in favor of the defendant on this count.[2] Thereafter, the defendant filed an answer specifically denying the allegation that she had entered into a contract with the plaintiff.

         On February 13, 2014, the defendant filed a motion for summary judgment as to counts three and four of the complaint. The plaintiff filed an objection to the defendant's motion for summary judgment. On May 5, 2014, the court denied the motion ‘‘without prejudice.''

         One year later, on February 13, 2015, the defendant filed another motion for summary judgment as to all the remaining counts of the complaint. In its July 16, 2015 memorandum of decision granting the motion for summary judgment, the court, Brazzel-Massaro, J., stated: ‘‘[T]he defendant filed a motion for summary judgment as to counts one and two of the plaintiff's complaint on the ground that there [was] no privity of contract between the plaintiff and the defendant. The defendant further [sought] summary judgment as to count three on the ground that it [was] barred by General Statutes § 52-577, and count four on the ground that it [was] barred by General Statutes § 42-110g (f). The defendant filed a memorandum [of law] in support of the motion and the [dual agency agreement], the ‘Exclusive Right to Represent Buyer or Tenant Authorization' form, and the partial deposition transcript of the plaintiff. On March 18, 2015, the plaintiff filed an objection and a memorandum [of law] in support of the objection, as well as an affidavit of the plaintiff.''

         The court further stated: ‘‘In the memorandum of law in support of the motion, the defendant argues that summary judgment as to count one and two is proper because there is no privity of contract between the plaintiff and the defendant. In particular, the dual agency agreement on which the plaintiff is basing his claims is actually a form consenting to Brenda Hanley acting as a dual agent, to which the defendant is not a party. The plaintiff counters that the actions of the parties raise factual issues as to whether the defendant was acting on behalf of the plaintiff and that the plaintiff believed at the time that the defendant was acting on his behalf. The defendant further argues that summary judgment should be granted as to count three [and count four] because the plaintiff filed his lawsuit outside the three year statutes of limitations as outlined in [§§ 52-577 and 42-110g (f)] and that the statutes of limitations [are] not tolled. The plaintiff again counters that the statutes of limitations [were] tolled by a continuing course of conduct. The defendant contends in response that the continuing course of conduct doctrine requires the existence of a special relationship between the parties giving rise to a continuing duty and no special relationship exists because there is no privity of contract between the plaintiff and the defendant.''

         In granting the defendant's motion for summary judg- ment on counts one and two, the court stated: ‘‘The defendant has met her burden of showing that there is no genuine issue of material fact that there [was] no privity of contract between the plaintiff and the defendant [and] [t]he plaintiff has provided no evidence [to rebut this].'' In granting the motion for summary judgment on counts three and four, the court also stated that: ‘‘The defendant has met her burden of showing that there [was] no genuine issue of material fact that count three and count four are barred by the statutes of limitations under § 52-577 and § 42-110g (f) . . . [and] [t]he plaintiff has provided no evidence to rebut this finding.'' This appeal followed.

         I

         We decline to review the plaintiff's claim that the court erred in granting the defendant's motion to strike count five because this claim is inadequately briefed.[3]We first note that the plaintiff has devoted less than one page to his argument on this claim. The plaintiff's analysis of this claim consists of a statement that ‘‘[a] review of count [five] of the Plaintiff's complaint, which incorporated by reference the allegation of count [one] of the Plaintiff's complaint, indicates that the Plaintiff adequately alleged an action for a breach of an oral contract against the Defendant.'' Where a claim is simply asserted but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. See Bicio v.Brewer, 92 Conn.App. 158, 172, 884 A.2d 12 (2005); ...


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