******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
THE RESERVE REALTY, LLC, ET AL. v. WINDEMERE

RESERVE, LLC, ET AL.

(AC 38167)

Alvord, Sheldon and Schaller, Js.

Argued January 4—officially released June 20, 2017

(Appeal from Superior Court, judicial district of

Danbury, Truglia, J.)

Daniel E. Casagrande, with whom was Lisa M.

Rivas, for the appellants (plaintiffs).

Christopher Rooney, with whom was Brian A. Daley,

for the appellees (named defendant et al.).
Opinion

SCHALLER, J. This appeal arises from a breach of

contract action in which the plaintiffs, The Reserve

Realty, LLC (Reserve Realty), and Theodore Haddad,

Sr., as executor of the estate of Jeanette Haddad, sought

to recover real estate brokerage fees in connection with

the sale and/or lease of units in an apartment complex

constructed and leased by the defendant BLT Reserve,

LLC (BLT), and of commercial office space not yet

constructed by the defendant Windemere Reserve, LLC

(Windemere). After a trial to the court, judgment was

rendered in favor of the defendants. The plaintiffs

appeal from that judgment, claiming that the trial court

improperly determined that (1) the purchase and sale

agreements upon which they based their claims for

brokerage fees constituted part of an illegal tying

arrangement in violation of the Connecticut Antitrust

Act, General Statutes § 35-24 et seq. (antitrust act), (2)

the listing agreements entered into pursuant to such

purchase and sale agreements did not comply with General Statutes § 20-325a, and (3) such listing agreements

were unenforceable by the plaintiffs because they were

personal to Jeanette Haddad. We affirm the judgment

of the trial court.

The following facts, as found by the trial court in its

memorandum of decision, are pertinent to our review.

The plaintiff, Theodore Haddad, Sr., is the duly

appointed executor of the estate of his wife, Jeanette

Haddad. Prior to her death in January, 2013, Jeanette

Haddad was a successful and highly regarded real estate

broker in the Danbury real estate market, performing

brokerage services under the business name, ‘‘Jeanette

Haddad, Broker.’’1 She employed several licensed salespersons, including Theodore Haddad, Sr., and she

engaged the services of her son, Theodore Haddad, Jr.,

who was a licensed real estate broker with his own

broker’s license and business. The plaintiff, Reserve

Realty, a limited liability company organized and

existing pursuant to the laws of Connecticut, was

founded by Jeanette Haddad and Paul Scalzo on September 15, 2003.2 The defendants, BLT and Windemere,

are limited liability companies, the principals and owners of which include Carl Kuehner, Jr., and Paul

Kuehner.3

In early 2002, a group of real estate developers, later

known as Woodland Group II, LLC (Woodland), contacted Jeanette Haddad and Century 21 Scalzo Realty,

Inc. (Scalzo Realty), a real estate franchise owned by

Scalzo,4

to engage their brokerage services in connection with the negotiations for the purchase of a 546

acre parcel known as the Reserve. As part of the broker/

client relationship, the ‘‘Exclusive Right to Sell–Listing

Agreement’’ (Woodland agreement) was executed by

and between Jeanette Haddad and Scalzo, and two of

the Woodland real estate developers. Pursuant to the
Woodland agreement, Jeanette Haddad and Scalzo

Realty had the exclusive right to sell and/or lease property in the Reserve, and the real estate developers were

required to ‘‘make aware to the new purchaser of any

part, or of individual lots, or of land, that this Agreement

shall apply to that new purchaser and [Jeanette Haddad

and Scalzo Realty].’’

On or about June 28, 2002, Woodland purchased the

Reserve. Woodland, which wished to develop the

Reserve, continued to use the services of Jeanette Haddad and Scalzo thereafter to market the property.5

Woodland also proposed a master plan forthe entire 546

acres, which the Danbury ZoningCommission approved

on or about November 26, 2002. Shortly thereafter, Windemere filed an administrative appeal of the plan’s

approval in the Superior Court, which effectively stayed

the approval of the master plan and prevented Woodland from moving forward with the development and

sale of the Reserve. Thereafter, representatives of

Woodland, Windemere, and BLT met to negotiate the

sale of two tracts of land, later known as parcel 13 and

parcel 15. Part of the negotiation resulted in Windemere’s withdrawal of the administrative appeal.

On July 17, 2004, Woodland entered into the purchase

and sale agreement with BLT for the purchase of parcel

13 and the purchase and sale agreement with Windemere for the purchase of parcel 15 (purchase and sale

agreements). Paragraph eight of the purchase and sale

agreement for parcel 13 obligated BLT to enter into

a listing agreement with Jeanette Haddad and Scalzo

Realty, pursuant to which Jeanette Haddad and Scalzo

Realty would receive a 3 percent commission on any

subsequent sale and/or lease of parcel 13, either as a

whole or as individual lots. Similarly, paragraph eight of

the purchase and sale agreement for parcel 15 obligated

Windemere to enter into a listing agreement with Jeanette Haddad and Scalzo Realty, pursuant to which

Jeanette Haddad and Scalzo Realty would receive a $1

million commission for their efforts in the leasing of

office space that Windemere intended to develop on

the parcel.6

Woodland, BLT, and Windemere also executed an

escrow agreement, pursuant to which the purchase and

sale agreements would be held in escrow by Woodland’s

counsel for ninety days until several conditions were

met. One of the conditions was the execution of listing

agreements and consent to sell the property

agreements, to be executed by Jeanette Haddad and

Scalzo Realty. This condition was included to satisfy

the requirement in the Woodland agreement between

Woodland, Jeanette Haddad, and Scalzo Realty that

Woodland ‘‘make aware to the new purchaser of any

part, or of individual lots, or of land, that this Agreement

shall apply to that new purchaser and [Jeanette Haddad

and Scalzo Realty].’’
Between July 17 and September 10, 2003, representatives of Woodland, BLT, Windemere, and Jeanette Haddad7 negotiated the terms of the listing agreements. On

September 10, 2003, a meeting was held, at which several documents were executed,8

including the exclusive

right to represent buyer/tenant (buyer’s agreement);9

the consent agreements;10 and the exclusive right to

sell–listing agreement for parcel 13,11 the exclusive right

to sell/lease–listing agreement for parcel 13,12 the exclusive right to sell/lease–listing agreement for parcel 15,13

and the exclusive right to sell–listing agreement for

parcel 1514 (listing agreements).

Despite having executed the listing agreements, the

defendants at no time desired to retain Jeanette Haddad

as the broker for the sale and/or lease of units to be

built on parcel 13 and parcel 15. Rather, the defendants

entered into the listing agreements only to satisfy the

requirements of paragraph eight of the purchase and

sale agreements, and the only reason that the parties

included paragraph eight in the purchase and sale

agreements was to allow Woodland to comply with its

contractual obligation under the Woodland agreement

to require subsequent purchasers of the Reserve to

retain Jeanette Haddad and Scalzo Realty as their

brokers.

Beginning in early 2006, representatives of Jeanette

Haddad and Scalzo Realty, including Theodore Haddad,

Sr., and Theodore Haddad, Jr., diligently marketed and

contacted possible buyers and lessees for the Reserve.

At some point, however, the defendants decided that

the listing agreements were a ‘‘ ‘bad marriage,’ ’’ and,

in January, 2007, Paul Kuehner and Theodore Haddad,

Jr., met to discuss terminating the broker/client relationship. A buy-out figure was offered to Jeanette Haddad and Scalzo, which they both refused. From early

to mid-2007, Jeanette Haddad and Scalzo Realty continued to make best efforts to find prospective buyers or

lessees for parcel 13 and parcel 15, but ultimately were

unsuccessful. The defendants began to explore other

available options, including the development of parcel

13 into a luxury apartment rental complex.

On or about April 18, 2011, the Danbury Planning and

Zoning Department issued a site plan approval to BLT

for the construction of a rental apartment complex on

parcel 13, which would later be known as Abbey Woods.

Shortly thereafter, the defendants began construction.

BLT subsequently leased the apartment units in Abbey

Woods through its own on-site leasing agent, with the

first lease being entered into in March, 2013. Theodore

Haddad, Jr., upon learning about Abbey Woods, contacted Carl Kuehner, Jr., and asked him if the defendants intended to honor the listing agreements by

allowing Reserve Realty to act as broker and by paying

commissions on those units already leased. Carl

Kuehner, Jr.,refused to discuss the issue with Theodore
Haddad, Jr., claiming that the listing agreements for

parcel 13 were personal service agreements between

BLT and Jeanette Haddad.

In July, 2013, the plaintiffs brought this action against

the defendants, claiming compensatory damages for

breach of the listing agreements.15 Specifically, the

plaintiffs sought the commissions for the leasing of

apartments in the Abbey Woods complex built on parcel

13 and for the lease and/or sale of a commercial office

building not yet constructed on parcel 15. The defendants raised five special defenses: (1) the listing

agreements were entered into pursuant to an illegal

tying arrangement;(2)there was a lack of consideration

in that the plaintiffs had failed to perform brokerage

services entitling them to compensation; (3) the listing

agreements were personal service contracts; (4) the

listing agreements, by their express terms, expired on

September 10, 2010; and (5) the listing agreements were

unenforceable because the necessary conditions precedent had not been satisfied. After hearing twelve days

of evidence, the trial court rendered judgment in favor

of the defendants, concluding that the purchase and

sale agreements created an illegal tying arrangement,

the listing agreements did not satisfy the requirements

of § 20-325a, and the listing agreements were personal

service contracts with Jeanette Haddad. The plaintiffs

then filed this appeal. Additional facts will be set forth

as necessary.

On appeal, the plaintiffs claim that the trial court

improperly concluded that (1) the purchase and sale

agreements constituted part of an illegal tying arrangement, (2) the listing agreements did not comply with

§ 20-325a, and (3) the listing agreements were personal

to Jeanette Haddad. In orderforthe plaintiffs to succeed

on appeal, they must prevail on all three of these claims.

Because we conclude that the trial court properly determined that the purchase and sale agreements constituted part of an illegal tying arrangement, we need only

address this antitrust issue in order to affirm the judgment of the trial court.

The plaintiffs claim that the defendants’ agreement

in the purchase and sale agreements to execute the

listing agreements as a condition for purchasing parcel

13 and parcel 15 did not constitute an illegal tying

arrangement in violation of the antitrust act. Specifically, the plaintiffs contend that the interpretation of

illegal tying arrangements in State v. Hossan-Maxwell,

Inc., 181 Conn. 655, 436 A.2d 284 (1980), upon which

the trial court relied, no longer applies because the rule

of that case has been abrogated by recent federal case

law. In addition, the plaintiffs contend that the defendants failed to plead or prove the existence of a relevant

market, which they claim to be crucial to proving an

illegal tying arrangement claim. Moreover, the plaintiffs

contend that the defendants did not prove that the list-
ing agreements’requirement that BLT use Jeanette Haddad and Scalzo Realty to market Abbey Woods

foreclosed competition in the market for brokerage services.16 We disagree.

I

At the outset, we must determine the correct legal

standards to apply to the facts as found by the trial

court, particularly with regard to the alleged invalidity

of Hossan-Maxwell, Inc. Indeed, the plaintiffs argue

that recent federal case law has abrogated the rule of

State v. Hossan-Maxwell,Inc., supra, 181 Conn. 655, the

controlling authority for evaluating a tying arrangement

claim under Connecticut antitrust law, specifically General Statutes § 35-29.17 Furthermore, the plaintiffs contend that General Statutes § 35-44b18 grants this court

the authority to analyze the validity of Hossan-Maxwell,

Inc., in light of recent federal case law, particularly

Jefferson Parish Hospital District No. 2 v. Hyde, 466

U.S. 2, 104 S. Ct. 1551, 80 L. Ed. 2d 2 (1984);19 Concord

Associates, L.P. v. Entertainment Properties Trust, 817

F.3d 46 (2d Cir. 2016; and Smugglers Notch Homeowners’ Assn., Inc. v. Smugglers’ Notch Management Co.,

414 Fed. Appx. 372 (2d Cir. 2011).

As an intermediate appellate court, we must follow

the precedent established by our Supreme Court. As

we have previously noted, ‘‘[o]ur duty is to follow controlling judicial precedent rather than base our decision

on our own view or the popular view of what the law

ought to be.’’ State v. Thurman, 10 Conn. App. 302, 316,

523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152

(1987). Moreover, in interpreting § 35-44b, our Supreme

Court has concluded that ‘‘[o]ur construction of the

[antitrust act] is aided by reference to judicial opinions

interpreting the federal antitrust statutes. . . . Accordingly, we follow federal precedent when we interpret

the act unless the text of our antitrust statutes, or

other pertinent state law, requires us to interpret it

differently.’’ (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District,

235 Conn. 1, 15–16, 664 A.2d 719 (1995). Our Supreme

Court has further stated that ‘‘§ 35-44b merely gave legislative imprimatur to what this court had been doing

long before its enactment, namely, looking to case law

construing relevant federal statutes as persuasive

authority.’’ Miller’s Pond Co., LLC v. New London, 273

Conn. 786, 809–810, 873 A.2d 965 (2005). Accordingly,

we are bound by the decision of our Supreme Court in

State v. Hossan-Maxwell, Inc., supra, 181 Conn. 655.

We, therefore, apply Hossan-Maxwell, Inc., as a controlling interpretation of § 35-29.

II

Having concluded that § 35-29, as explained and

applied in Hossan-Maxwell, Inc., provides the govern-
ing standard to apply in the present action, we now

consider whether the trial court applied it properly to

the facts. We first set forth the standard of review that

guides ourinterpretation ofthe antitrust act. ‘‘The scope

of our appellate review depends on the proper characterization of the rulings made by the trial court. To the

extent that the trial court has made findings of fact,

our review is limited to deciding whether such findings

are 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 that

appear in the record. . . . This court cannot retry the

facts or pass upon the credibility of witnesses. . . .

Furthermore, [o]ur function is not to examine the

record to see if the trier of fact could have reached a

contrary conclusion. . . . A finding of fact is clearly

erroneous when there is no evidence in the record to

support it . . . or when although there is evidence to

support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial

court’s function to weigh the evidence and determine

credibility, we give great deference to its findings.’’

(Citations omitted; internal quotation marks omitted.)

Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 14–15.

Tying arrangements were made illegal by § 3 of the

Clayton Act, which was enacted October 15, 1914; see

15 U.S.C. § 14 (2012);20 after which General Statutes

§ 35-29 was patterned. ‘‘A tying arrangement is an

agreement by a party to sell one product but only on

the condition that the buyer also purchase a different

(tied) product, or at least agree that he will not purchase

that product from another supplier. Northern Pacific

Ry. Co. v. United States, 356 U.S. 1, 78 S. Ct. 514, 2 L.

Ed. 2d 545 [(1958)].’’ State v. Hossan-Maxwell, Inc.,

supra, 181 Conn. 659. ‘‘Tying arrangements are among

the small group of practices which courts have found

to be unlawful in and of themselves; Northern Pacific

Ry. Co. v. United States, supra, 5; International Salt

Co. v. United States, 332 U.S. 392, 396, 68 S. Ct. 12, 92

L. Ed. 20 [1947]; Elida, Inc. v. Harmor Realty Corp.,

[177 Conn. 218, 227–28, 413 A.2d 1226 (1979)]. The justification for the per se approach is that [t]ying

agreements serve hardly any purpose beyond the suppression of competition. Standard Oil Co. v. United

States, 337 U.S. 293, 305, 69 S. Ct. 1051, 93 L. Ed. 1371

[(1949)]. Nonetheless, [it is only] when certain prerequisites are met, [that] arrangements of this kind are illegal

in and of themselves, and no specific showing of unreasonable competitive effect is required. Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495,

498, 89 S. Ct. 1252, 22 L. Ed. 2d 495 [(1969)]. . . .

[T]ying arrangements [are] deemed per se illegal, whenever the party has sufficient economic power with
respect to the tying product to appreciably restrain free

competition in the market for the tied product and

a not insubstantial amount of interstate commerce is

affected. Northern Pacific Ry. Co. v. United States,

supra, 6.’’ (Internal quotation marks omitted.) State v.

Hossan-Maxwell, Inc., supra, 660–61. Because § 35-29

is based on § 3 of the Clayton Act, and § 3 of the Clayton

Act only requires the party to prove either sufficient

economic power or a ‘‘ ‘not insubstantial’ ’’ effect on

commerce, a tying arrangement is illegal if either condition is met.21 Id., 661–62.

A

An illegal tying arrangement may be found if the tying

party ‘‘has sufficient economic power with respect to

the tying product to appreciably restrain free competition in the market forthe tied product.’’ State v. HossanMaxwell, Inc., supra, 181 Conn. 661. Market power

exists when ‘‘the seller has some special ability . . .

to force a purchaser to do something that he would not

do in a competitive market.’’ Jefferson Parish Hospital

District No. 2 v. Hyde, supra, 466 U.S. 13–14. The United

States Supreme Court has made clearthat ‘‘the standard

of sufficient economic power does not . . . require

that the [seller] have a monopoly or even a dominant

position throughout the market for the tying product.’’

(Internal quotation marks omitted.) Fortner Enterprises, Inc. v. United States Steel Corp., supra, 394

U.S. 502; see State v. Hossan-Maxwell, Inc., supra, 664.

Moreover, ‘‘[e]ven absent a showing of market dominance, the crucial economic power may be inferred

from the tying product’s desirability to consumers or

from uniqueness in its attributes.’’ (Internal quotation

marks omitted.) Fortner Enterprises, Inc. v. United

States Steel Corp., supra, 503; see State v. Hossan-Maxwell, Inc., supra, 664. ‘‘[T]he proper focus of concern

is whether the seller has the power to raise prices, or

to require other burdensome terms such as a tie-in, with

respect to any appreciable number of buyers within the

market. In short, the question is whether the seller has

some advantage not shared by his competitors in the

market forthe tying product.’’ State v. Hossan-Maxwell,

Inc., supra, 664.

In the present case, Woodland, the tying party, has

imposed a tying arrangement upon all of the parcels

that formed the Reserve, the tying product, by tying

the purchase of any of the parcels to the purchase of

Jeanette Haddad’s and Scalzo Realty’s brokerage services. This situation is similar to that in Hossan-Maxwell,Inc., where sixty-four subdivision housing lots had

restrictive covenants requiring all purchasers to give

exclusive sales and leasing rights to the named brokerage services for three months.22 State v. Hossan-Maxwell,Inc., supra, 181 Conn. 657–58. In Hossan-Maxwell,

Inc., our Supreme Court found that, based on federal

precedent and Connecticut case law on property char-
acteristics,23 the tying arrangement met the sufficient

economic power test because the residential property

was sufficiently unique that the tying party had some

advantage in the market not shared by his competitors.

Id., 665. Likewise, the record before this court supports

the conclusion that the Reserve was sufficiently unique

to infer that Woodland held sufficient economic power.

The present action involves a substantially larger area

of land than Hossan-Maxwell, Inc., with the Reserve

being comprised of 546 undeveloped acres. Such a large

area of undeveloped land is rarely available in the

densely populated Northeast. Moreover, the Danbury

Planning and Zoning Department granted flexible zoning for the Reserve, so that both residential and commercial buildings could be constructed. Thus, parcel

13 was zoned for residential development, and parcel

15 was zoned for commercial development. According

to the proposed master plan, the ‘‘plan seeks to achieve

a balance between residential, commercial and other

uses, recognizing that the site is sufficiently large and

physically diverse to accommodate a development of

a new, cohesive residential community . . . .’’ This

flexibility was intended to create a unique community

where people both could live and work within a

short distance.

Consequently, we conclude that the Reserve is sufficiently unique that the trial court logically could have

inferred that Woodland restrained free competition

when it required subsequent purchasers of property in

the Reserve to use the brokerage services of Jeanette

Haddad and Scalzo Realty, because that requirement

forced such purchasers to use a brokerage service that

they would not have used otherwise. In fact,representatives of the defendants testified, and the trial court

found credible, that they did not want to use Jeanette

Haddad and Scalzo Realty, and that the only reason

they did use their brokerage services was that the tying

arrangement compelled them to do so, for the defendants otherwise would have lost the opportunity to

purchase parcel 13 and parcel 15. Accordingly, we conclude that the trial court logically determined that

Woodland possessed sufficient market power over the

Reserve, and, therefore, an illegal tying arrangement

existed.

The plaintiffs contend that the defendants did not

successfully prove that Woodland had sufficient economic power with respect to the Reserve because they

did not establish the relevant market for the Reserve.

According to the plaintiffs, the establishment of a relevant market is a critical component to an antitrust claim

because it is required to evaluate the extent to which

the plaintiffs exercised power. In Hossan-Maxwell,

Inc., our Supreme Court did not find it necessary to

identify the relevant market in which a unique property

was situated when it determined that ‘‘the uniqueness

of residential property is . . . sufficient evidence of
the market power possessed by the [tying party].’’ State

v. Hossan-Maxwell, Inc., supra, 181 Conn. 665. Moreover, in reaching its conclusion, our Supreme Court

cited to United State v. Loew’s, Inc., 371 U.S. 38, 45

n.4, 83 S. Ct. 97, 9 L. Ed. 2d 11 (1962), in which the

United States Supreme Court, when discussing the

appropriateness of inferring economic power from

uniqueness, noted that ‘‘[s]ince the requisite economic

power may be found on the basis of either uniqueness

or consumer appeal, and since the market dominance

in the present context does not necessitate a demonstration of market power in the sense of § 2 of the Sherman

Act, it should seldom be necessary in a [tying arrangement] case to embark upon a full-scale factual inquiry

into the scope of the relevant market for the tying product and into the corollary problem of the seller’s percentage share in that market.’’

Furthermore, in Jefferson Parish Hospital District

No. 2, the United States Supreme Court made it clear

that the establishment of a relevant market is not

required when economic power is proven through a

product’s uniqueness. Specifically, it stated that

‘‘[w]hen the seller’s share of the market is high . . . or

when the seller offers a unique product that competitors

are not able to offer . . . the Court has held that the

likelihood that market power exists and is being used

to restrain competition in a separate market is sufficient

to make per se condemnation appropriate. . . . Thus,

in Northern Pacific R. Co. v. United States, [supra, 356

U.S. 8], we held that the railroad’s control over vast

tracts of western real estate, although not itself unlawful, gave the railroad a unique kind of bargaining power

that enabled it to tie the sales of that land to exclusive,

long term commitments that fenced out competition in

the transportation market over a protracted period.’’

(Citations omitted.) Jefferson Parish Hospital District

No. 2 v. Hyde, supra, 466 U.S. 17. Consequently, we

conclude that the defendants did not have to prove a

relevant market to succeed on their claim that the

Reserve was sufficiently unique to meet the sufficient

economic power test.

B

Alternatively, an illegal tying arrangement may be

present when a ‘‘not insubstantial’’ amount of commerce in the tied product is restrained.24 ‘‘The tying of

brokerage services to the sale of residential development of real estate is automatically illegal under § 35-

29 whenever a substantial volume of commerce in the

tied product is restrained. . . . The amount of commerce affected is not measured by reference to the

size of the tied product market. . . . [N]ormally, the

controlling consideration is simply whether a total

amount of business, substantial enough in terms of dollar-volume so as to not be merely de minimis, is foreclosed to competitors by the tie, for as [the United
States Supreme Court] said in International Salt [Co.

v. United States, supra, 332 U.S. 396], it is unreasonable,

per se, to foreclose competitors from any substantial

market through use of a tying arrangement.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Hossan-Maxwell, Inc., supra, 181 Conn. 662–63.

In the present case, the trial court found that ‘‘the

market values of parcel 13 and parcel 15, and the commissions that would have been due to the plaintiffs upon

resale or lease of the developed parcels, concerned a

substantial amount of commerce in the tied market.’’

The record before this court supports the trial court’s

finding. BLT paid $15 million for parcel 13, and, pursuant to the Woodland agreement between Woodland,

Jeanette Haddad, and Scalzo Realty, Jeanette Haddad

and Scalzo Realty were owed a 3 percent commission

from the transaction. This calculates to a $450,000 commission. Moreover, paragraph eight of the purchase and

sale agreement for parcel 13 includes language obligating BLT to enter into a listing agreement with Jeanette

Haddad and Scalzo Realty, pursuant to which the two

brokers would receive a 3 percent commission on any

subsequent sale or lease of all or any portion of the

parcel. After purchasing parcel 13, BLT received the

approval of the Danbury Planning and Zoning Department to construct a rental apartment complex containing 470 units. With the units being rented for $1515

to $1910 a month, the total potential commerce involved

for the first month of the initial lease of each unit is

between $712,050 and $897,700, and the real estate commission foreclosed is between $21,361.50 and $26,931.

Moreover, Windemere paid $7 million for parcel 15,

and, also pursuant to the Woodland agreement, Jeanette

Haddad and Scalzo Realty were owed a 3 percent commission from the transaction. This calculates to a

$210,000 commission for Jeanette Haddad and Scalzo

Realty. Furthermore, paragraph eight of the purchase

and sale agreement for parcel 15 included language

obligating Windemere to enter into a listing agreement

with Jeanette Haddad and Scalzo Realty, pursuant to

which the brokers would receive a $1 million commission for their efforts to sell and/or lease the commercial

office space that Windemere was intending to build on

parcel 15. Thus, between parcel 13 and parcel 15, more

than $1.5 million in brokerage fees was foreclosed,

which is not a de minimis amount. See State v. HossanMaxwell, Inc., supra, 181 Conn. 663–64 ($60,800 was

sufficient amount of money to meet ‘‘not insubstantial’’

test).25 Accordingly, we conclude that the trial court

logically determined that, by restricting the pool of brokers for the sale and/or lease of the Reserve, the

arrangement between Woodland, Jeanette Haddad, and

Scalzo Realty restricted a ‘‘not insubstantial’’ volume

of commerce in the Reserve.

The judgment is affirmed.
In this opinion the other judges concurred.

1 To the extent that ‘‘Jeanette Haddad, Broker’’ is distinct from Jeanette

Haddad, those distinctions are not material to our resolution of the claims

on appeal.

2 When formed, Reserve Realty was named UC Properties, LLC (UC Properties). On July 22, 2004, Scalzo filed articles of amendment, changing the

name of the company from UC Properties to Reserve Realty.

3 The Kuehner and Haddad families have been personal friends and business associates since the late 1970s.

4 The plaintiffs moved to add Scalzo Realty as a necessary party to the

action. The trial court granted the motion, ordering that the complaint be

amended to state facts showing the interest of Scalzo Realty in the action

and that Scalzo Realty appear as a defendant. Thereafter, Scalzo Realty was

defaulted for failure to plead. Subsequently, the plaintiffs withdrew this

action as to Scalzo Realty.

5 Reserve Realty was formed by Jeanette Haddad and Scalzo to market

and sell the Reserve as it became subdivided.

6 Pursuant to paragraph twelve of the purchase and sale agreement for

parcel 15, titled conditions of purchase, Woodland was required to obtain

government approval for the development of a conference center and to

provide Windemere with a site plan sketch for an office building so that

Windemere could petition for a change in the master plan to allow for the

construction of a large office space.

7 Theodore Haddad, Jr., acted on behalf of Jeanette Haddad.

8 The trial court determined that it was not clear precisely how the final,

fully-executed hard copies of the agreements came to be executed by Jeanette Haddad. Although Theodore Haddad, Jr., testified that Jeanette Haddad

was faxed the agreements on September 10, 2003, and she subsequently

returned them with her signature via fax on the same day, the trial court

did not find his testimony entirely credible. The trial court found, however,

that Carl Kuehner, Jr., executed the agreements on behalf of both BLT and

Windemere with the intent that the defendants be legally bound.

9

In the buyer’s agreement, the defendants appointed Scalzo Realty, UC

Properties, and Jeanette Haddad as their exclusive agents to assist in the

purchase of parcel 13 and parcel 15.

10 The consent agreements did not address the defendants’ obligation to

use the plaintiffs’ brokerage services.

11 In the exclusive right to sell–listing agreement for parcel 13, BLT granted

Jeanette Haddad and Scalzo Realty the exclusive right to sell and/or lease

parcel 13.

12 In the exclusive right to sell/lease–listing agreement for parcel 13, BLT

granted UC Properties, Scalzo Realty, and Jeanette Haddad the exclusive

right to sell and/or lease parcel 13 or any portion of parcel 13.

13 In the exclusive right to sell/lease listing agreement for parcel 15, Windemere granted UC Properties, Scalzo Realty, and Jeanette Haddad the exclusive right to sell and/or lease parcel 15 or any portion of parcel 15.

14 In the exclusive right to sell–listing agreement for parcel 15, Windemere

granted Jeanette Haddad and Scalzo Realty the exclusive right to sell and/

or lease parcel 15.

15 Subsequently, on May 6, 2014, the plaintiffs commenced two actions

seeking to foreclose liens that they had recorded as to parcel 13 and parcel

15 (foreclosure actions). On September 28, 2015, the parties filed a stipulation

in each of the foreclosure actions, stipulating that the memorandum of

decision in the present action required the conclusion that the plaintiffs

could not establish probable cause to sustain the validity of the liens, as

required by General Statutes § 20-325e. The parties, therefore, stipulated

that judgment be rendered against the plaintiffs in the foreclosure actions,

but that all appellate rights be reserved. The plaintiffs also have appealed

from the judgments ordering the discharge of the liens. See Reserve Realty,

LLC v. BLT Reserve, LLC, 174 Conn. App. , A.3d (2017); Reserve

Realty, LLC v. Windemere Reserve, LLC, 174 Conn. App. , A.3d

(2017).

16 The plaintiffs further argued that the defendants’ illegal tying arrangement claim must fail because it did not pass the rule of reason test. As

subsequently discussed in this opinion, tying arrangements, due to their

manifestly anticompetitive nature, fall under the per se test, not the rule of

reason test.

17 General Statutes § 35-29 provides in relevant part: ‘‘Every lease, sale or

contract for the furnishing of services or for the sale of commodities . . .

on the condition or understanding that the lessee or purchaser shall not
deal in the services or the commodities of a competitor or competitors of

the lessor or seller, shall be unlawful where the effect of such lease or

sale or contract for sale or such condition or understanding may be to

substantially lessen competition or tend to create a monopoly in any part

of trade or commerce and where such goods or services are for the use,

consumption or resale in this state.’’

18 General Statutes § 35-44b provides: ‘‘It is the intent of the General Assembly that in construing sections 35-24 to 35-46, inclusive, the courts of this

state shall be guided by interpretations given by the federal courts to federal

antitrust statutes.’’

19 But see Illinois Tool Works, Inc. v. Independent Ink, Inc., 547 U.S. 28,

31, 43–45, 126 S. Ct. 1281, 164 L. Ed. 2d 26 (2006) (rejecting dicta from

Jefferson Parish Hospital District No. 2 regarding presumption that patents

afforded sufficient market power to restrain competition in tied market).

20 Section 3 of the Clayton Act, 15 U.S.C. § 14 (2012), provides in relevant

part: ‘‘It shall be unlawful for any person engaged in commerce, in the

course of such commerce, to lease or make a sale or contract for the sale

of . . . commodities . . . for use, consumption, or resale within the United

States . . . or fix a price charged therefor, or discount from, or rebate

upon, such price, on the condition, agreement, or understanding that the

lessee or purchaser thereof shall not use or deal in the . . . commodities

of a competitor or competitors of the lessor or seller, where the effect

of such lease, sale, or contract for sale or such condition, agreement, or

understanding may be to substantially lessen competition or tend to create

a monopoly in any line of commerce.’’

21 ‘‘Although both tests must be met to constitute a violation of § 1 of the

Sherman [Antitrust Act 15 U.S.C § 1], under § 3 of the Clayton Antitrust Act;

15 U.S.C. § 14; a [tying arrangement] is per se illegal if either condition is

met. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 608,

609, 73 S. Ct. 872, 97 L. Ed. 1277 [(1953)]; Moore v. Jas. H. Matthews & Co.,

550 F.2d 1207, 1214 (9th Cir. [1977]); Advance Business Systems & Supply

Co. v. SCM Corp., 415 F.2d 55, 61–62 (4th Cir. [1969]), cert. denied, 397 U.S.

920, 90 S. Ct. 928, 25 L. Ed. 2d 101 [(1970)]; ILC Peripherals Leasing Corp.

v. International Business Machines Corp., 448 F. Supp. 228, 230 (N.D. Cal.

[1978]). Since General Statutes § 35-29 is patterned after § 3 of the Clayton

[Antitrust] [A]ct; 14 H.R. Proc., Pt. 9, 1971 Sess., p. 4182 (remarks of Rep.

David H. Neiditz); Brodigan, ‘The Connecticut Antitrust Act,’ 47 Conn. B.J.

12, 15 (1973); and specifically includes the provision of services within its

ambit, we believe that it is appropriate to adopt the Clayton [Antitrust] [A]ct

test in determining whether a violation of § 35-29 has occurred. Thus, the

declaration of covenants and restrictions is unlawful per se if either condition

under Northern Pacific Ry. Co. v. United States, supra, [356 U.S.] 6, is met;

that is, if (1) the party has sufficient economic power in the tying product,

or (2) a not insubstantial amount of commerce is affected.’’ (Footnotes

omitted.) State v. Hossan-Maxwell, Inc., supra, 181 Conn. 661–62.

22 The plaintiffs claim that, even if this court is bound by Hossan-Maxwell,

Inc., the present action is distinguishable. Specifically, the plaintiffs argue

that: (1) the covenants in Hossan-Maxwell, Inc., bound all subsequent purchasers, whereas in the present case only Windemere and the first purchasers

after BLT are bound; (2) the owner in Hossan-Maxwell, Inc., was also the

broker, and therefore had an economic interest in both the tying product

and the tied product; (3) the purchasers in Hossan-Maxwell, Inc., had no

powerto negotiate, whereas in the present case the defendants freely entered

into the listing agreements after negotiations; and (4) the illegal clauses in

the present case are part of otherwise valid agreements, and therefore the

rule ofreason test, notthe per se test, should apply. Forthe reasons discussed

subsequently in this opinion, we conclude that Hossan-Maxwell, Inc., is

analogous to the present case and, therefore, we are not persuaded by the

plaintiffs’ argument.

23 ‘‘In Connecticut, the uniqueness and special characteristics of a particular plot of land have long been recognized.’’ State v. Hossan-Maxwell, Inc.,

supra, 181 Conn. 665, citing Anderson v. Yaworksi, 120 Conn. 390, 395, 399,

181 A. 205 (1935).

24 The plaintiffs failed to raise the issue as to a ‘‘not insubstantial’’ amount

of commerce test in their main brief. Because this is an alternative test to

finding a tying arrangement and it was a means by which the trial court

found an illegal tying arrangement, however, we still address whether a ‘‘not

insubstantial’’ amount of commerce was affected. In addition, the defendants

argued in their briefs that a ‘‘not insubstantial’’ amount of commerce was

foreclosed in the tied market for brokerage services, and the plaintiffs
addressed the issue in their reply brief.

25 The total amount foreclosed is only a portion of the property of the

Reserve being sold by Woodland with the tied brokerage services. See

Fortner Enterprises, Inc. v. United States Steel Corp., supra, 394 U.S. 502

(‘‘[f]or purposes of determining whetherthe amount of commerce foreclosed

is too insubstantial to warrant prohibition of the practice . . . the relevant

figure is the total volume of sales held by the sales policy under challenge,

not the portion of [the] total accounted for by the particular plaintiff who

brings suit’’). The record indicates that additional buyers of the Reserve

parcels included White Peterman for $13,931,000, with Jeanette Haddad and

Scalzo Realty receiving a 3 percent commission, and WCI for approximately

$44 million, with Jeanette Haddad and Scalzo Realty receiving a 3 percent commission.