155 Conn.App. 734
Conn. App. Ct.2015Background
- In July 2003 Barbara Saggese purchased Lot 3 in the Crescent Bluff subdivision (a shoreline property depicted on the 1885 Baker map) and later learned the southern lawn between the lot and Long Island Sound was a "common lawn," used by subdivision residents to access the Sound.
- The sellers’ listing agent (Greenalch) received a Robinson & Cole letter alerting the listing broker to pending litigation (the McBurney cases) and to the 1903 Fisk v. Ley decision; Greenalch gave the letter to the sellers, who said it did not affect Lot 3.
- Pre‑closing documents (title search, deed language, appraisal, Baker map) referenced a "common lawn," littoral rights of others, and described Lot 3 as sub/shared waterfront; buyer’s attorney (Varese) reviewed these materials and told Saggese the title search "came out fine."
- Saggese alleged fraudulent nondisclosure: defendants failed to disclose the entire Robinson & Cole letter (particularly the Fisk reference) and thus concealed that interior lot owners had rights to cross/use the lawn, damaging Lot 3’s value; she also asserted a CUTPA claim derivative of the fraud claim.
- Trial court found (1) Greenalch did not understand the Robinson & Cole letter and appropriately referred it to the sellers; (2) relevant information was either disclosed or reasonably discoverable by Saggese and her agents; (3) plaintiff failed to prove fraudulent nondisclosure by clear and convincing evidence; CUTPA claim therefore failed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants fraudulently nondisclosed material facts by not providing entire Robinson & Cole letter (incl. Fisk reference) | Saggese: the two‑line notice about pending litigation was insufficient; entire letter (and Fisk) was material and should have been disclosed | Defs: they alerted buyer to pending litigation; seller’s agent had no duty to follow a third‑party attorney’s advice or to perform legal analysis; material facts were in buyer’s possession or discoverable | Court: No fraud — buyer/agents had notice or could have discovered the substance; Greenalch lacked knowledge that letter’s content was true/material and reasonably referred it to sellers; plaintiff failed to prove fraud by clear and convincing evidence |
| Whether seller’s agent breached professional duty by not turning over the Robinson & Cole letter | Saggese: agent should have provided full letter and explained Fisk implication | Defs: agent met standard of care by notifying seller and by giving notice of litigation to buyer; agent is not the buyer’s attorney or title searcher | Held: Agent complied with seller‑agent standard; not obligated to perform legal analysis or automatically disclose a third‑party attorney’s legal conclusions |
| Whether the nondisclosure claim supported a CUTPA claim | Saggese: CUTPA claim predicated on fraudulent nondisclosure | Defs: CUTPA dependent on fraud finding | Held: Because fraud claim failed, CUTPA claim (derivative) was not sustained |
| Whether plaintiff relied to her detriment on defendants’ alleged omissions | Saggese: she relied on defendants’ communications and was harmed | Defs: plaintiff, her agent, and attorney had documents and could have investigated; no detrimental reliance shown | Held: No detrimental reliance proved; plaintiff and her agents had or could obtain the necessary information before closing |
Key Cases Cited
- McBurney v. Cirillo, 276 Conn. 782 (Conn. 2006) (discussing Baker map and implied easement over subdivision lawn)
- McBurney v. Paquin, 302 Conn. 359 (Conn. 2011) (affirming implied easement permitting crossing of common lawn but not recreational use)
- Fisk v. Ley, 76 Conn. 295 (Conn. 1903) (historic authority concerning rights to pass over subdivision lawn to shore)
- Duksa v. Middletown, 173 Conn. 124 (Conn. 1977) (general rule on fraudulent nondisclosure — silence not actionable where facts are discoverable)