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LISA BRUNO v. REED WHIPPLE ET AL.

(AC 35707)

Sheldon, Keller and Harper, Js.

Argued September 16—officially released December 29, 2015

(Appeal from Superior Court, judicial district of

Danbury, Maronich, J. [summary judgment]; Doherty,

J. [judgment; motion for permission to file amended

answer, special defense; motion to set aside verdict;

articulation].)

Lisa Bruno, self-represented, the appellant

(plaintiff).

Laura Pascale Zaino, with whom, on the brief, was

Stephen P. Fogerty, for the appellees (defendants).
Opinion

SHELDON, J. This case arises from dealings between

the parties concerning the construction by the defendant Heritage Homes Construction Company, LLC (Heritage Homes), of a new home in Ridgefield for the

plaintiff, Lisa Bruno, and her former husband, Stephen

Bruno (Bruno). The plaintiff appeals from the judgment

of the trial court in favor of the defendants, Heritage

Homes and its president, Reed Whipple, claiming that

the trial court erred: (1) in denying her posttrial motion

to set aside the jury’s verdict (a) for Heritage Homes

on her claim of breach of contract, and (b) for Whipple

on her claim of violation of the Connecticut Unfair

Trade Practices Act (CUTPA), General Statutes § 42-

110a et seq.; and (2) in granting the pretrial motion of

Heritage Homes for summary judgment on her claims

of breach of the implied covenant of good faith and

fair dealing and violation of CUTPA. We reverse the

judgment in favor of Heritage Homes on the plaintiff’s

claim of breach of contract and remand the case for

a hearing in damages on that claim pursuant to the

unchallenged portion of the jury’s verdict and accompanying answers to interrogatories concerning that claim.

We affirm the judgment in all other respects.

In a previous appeal in this matter, Bruno v. Whipple,

138 Conn. App. 496, 498–503, 54 A.3d 184 (2012), this

court set forth the following relevant factual and procedural history. ‘‘On January 27, 2010, the plaintiff filed

a six count amended second revised complaint against

the defendants. In the complaint, the plaintiff alleged

that the defendants, as parties to a contract with herself

and Bruno to build the new home, had breached the

contract and the implied covenant of good faith and

fair dealing arising thereunder by conspiring with Bruno

to launder his money through the project, and thus to

deprive her of fair, just and reasonable alimony and

division of assets in connection with the impending

dissolution of her marriage. On that score, the plaintiff

alleged, more particularly, that by December, 2005,

when Bruno initiated marital dissolution proceedings

against her, construction of the new home was nearly

complete for what by then was the total sum of approximately $1,800,000. Thereafter, however, from December, 2005, to January, 2006, and from May, 2006, to

July, 2006, Bruno paid the defendants additional sums

totaling approximately $2,600,000, all purportedly for

expenditures on the project that she did not authorize.

On that basis, the plaintiff alleged that the defendants

had colluded with Bruno to launder his money through

the project, either by not performing all of the construction work they claimed to have performed on the project

or by submitting multiple billings for the work they did

perform. The plaintiff claimed . . . that by engaging in

such collusive conduct with Bruno, [the defendants]

not only breached the contract, as alleged in count[s]
one [and two] of the complaint,1 and the implied covenant of good faith and fair dealing arising under the

contract, as alleged in count[s] three [and four], but

[they] also committed unfair or deceptive acts or practices in the conduct of a trade or commerce that caused

her to suffer ascertainable economic losses in violation

of CUTPA, as alleged in count[s] five [and six].

‘‘On March 25, 2011, the plaintiff and, on March 28,

2011, the defendants filed motions for summary judgment. In support of their motion, the defendants argued,

inter alia, that Whipple was entitled to judgment as a

matter of law on each of the plaintiff’s claims against

him because all such claims were based materially upon

alleged breaches of duties arising under a contract to

which he was not a party. On that score, they argued

that Whipple was not identified in the contract as a

party and that, although he signed the contract in his

representative capacity as a member of Heritage

Homes, he did not sign it in his individual capacity. In

support of that argument, the defendants submitted

Whipple’s personal affidavit in which he averred that

he had never individually entered into any contract

with the plaintiff or Bruno, nor had he ever individually

performed any work or provided any labor, services or

material for either of them on his own behalf. In addition, with respect to the plaintiff’s core allegation of

wrongdoing against him in each of her claims—that he

had engaged in money laundering on behalf of Bruno

by returning money to him for work billed on the home

construction project—Whipple averred that all work

billed by Heritage Homes on the project was performed

and fully paid for by Bruno pursuant to the contract,

and that neither he nor Heritage Homes ever had

returned any money to Bruno or laundered money for

him through the project, as the plaintiff had alleged. The

defendants supported their summary judgment motion

with a memorandum of law and several exhibits, including Whipple’s affidavit and an unauthenticated copy of

the subject contract.

‘‘In opposition to the defendants’ motion, the plaintiff

filed, inter alia, a memorandum of law and several

exhibits, including a copy of the contract that was textually identical to that submitted by the defendants and

two personal affidavits. . . . As grounds for opposing

the defendants’ motion, the plaintiff argued, inter alia,

that (1) the defendants had failed to support their

motion by properly authenticated documents and materials; (2) Whipple was indeed a party to the contract in

his individual capacity; (3) even if Whipple signed the

contract only in his representative capacity, he nonetheless should be held liable for Heritage Homes’ tortious

conduct, either as a direct participant in such conduct

or as a person who so completely and pervasively controlled the company as to warrant piercing the corporate veil; and (4) the defendants’ documented

interference with her ability to keep informed of and
participate in the construction project’s planning and

oversight after Bruno commenced marital dissolution

proceedings against her, by dealing solely and exclusively with Bruno as to costly project modifications

without her knowledge or consent, supports the inference that the defendants conspired with Bruno to launder his marital assets through Heritage Homes’

accounts,for Bruno’s benefit and to her own great financial loss.

‘‘After hearing oral argument on the parties’ motions

for summary judgment, the court issued a memorandum

of decision in which it granted the defendants’ motion

as to all three of the plaintiff’s claims against Whipple.

As to the plaintiff’s threshold claim of breach of contract, under count one of her complaint, the court relied

upon the language of the contract, as submitted to it

by both parties, to conclude that Whipple could not

be found liable because ‘there is no genuine issue of

[material] fact that Whipple was not a party to the

contract as pleaded by the plaintiff.’ As to the plaintiff’s

claims of breach of the implied covenant of good faith

and fair dealing and . . . violation of CUTPA, under

counts three and five of her complaint, the court determined that both of those claims were also ‘directly

dependent upon the existence of the contractual relationship’ between the plaintiff and Whipple, and thus

that Whipple could not be held liable on either such

claim due to his status as a nonparty to the contract.

The court’s determination to this effect on the plaintiff’s

claim of breach of the implied covenant of good faith

and fair dealing was based upon both settled case law,

holding that such a claim can only be asserted against

a contracting party, and its conclusion that the allegations of the third count failed to state any independent

basis for establishing his liability in tort. By contrast,

the court’s determination that the plaintiff’s CUTPA

claim against Whipple was directly dependent upon

the existence of a contractual relationship was based

simply upon its observation that all of the allegations

of her breach of contract claim against him were realleged in support of the CUTPA claim.

‘‘Following the issuance of the court’s decision, the

defendants asked that the decision be clarified as to

whether it also was intended to apply to the plaintiff’s

claims against Heritage Homes, which had joined with

[Whipple] in moving for summary judgment. In

response to that request, the court promptly issued

a corrected memorandum of decision in which it (1)

restated nearly verbatim, in the first section of the corrected decision bearing only Whipple’s name and a specific reference to the three numbered counts against

him (one, three and five), its prior decision granting

the defendants’ motion as to each such count; and then

(2) proceeded, in the second section bearing only the

name of Heritage Homes and a specific reference to

the three numbered counts against it (two, four and
six), to deny the defendants’ motion with respect to

count two, alleging breach of contract, but to grant the

motion as to counts four and six, alleging breach of the

implied covenant of good faith and fair dealing and

. . . violation of CUTPA. With respect to counts four

and six, in particular, the court concluded its analysis

as follows: ‘While the plaintiff has alleged conduct that

would support a finding of aggravating circumstances

sufficient for a CUTPA claim or a claim for breach

of covenants of good faith and fair dealing, that the

defendants have engaged in a scheme to launder money

through . . . Bruno through the construction contract,

those allegations are conclusory and supported by no

facts. The defendants have challenged those assertions

in their motion for summary judgment together with

supporting affidavits and documents. If the plaintiff has

no evidence and her supporting documents are inadequate, the court is justified in granting summary judgment provided the defendants have met their burden

of proof. . . . The plaintiff must demonstrate that a

genuine issue of material fact exists through ‘counter

affidavits and concrete evidence.’ . . . The court finds

that the plaintiff has failed to meet that burden. . . .

Following the court’s later denials of the plaintiff’s separate motions for reargument with respect to the court’s

summary judgment as to Whipple and Heritage Homes,

the plaintiff filed this appeal.’’ (Footnotes altered.) Id.

This court dismissed the plaintiff’s appeal from the

summary judgment rendered for Heritage Homes for

lack of a final judgment due to the continuing pendency

in the trial court of the plaintiff’s claim of breach of

contract against it. Id., 498 n.1. Thereafter, this court

affirmed the summary judgment rendered for Whipple

on the plaintiff’s claims of breach of contract and breach

of the implied covenant of good faith and fair dealing

against him, but found errorin the trial court’s rendering

of summary judgment for Whipple on the plaintiff’s

CUTPA claim against him. Id., 503. Accordingly, on

remand, the remaining two counts of the plaintiff’s complaint—her breach of contract claim against Heritage

Homes and her CUTPA claim against Whipple—were

tried to a jury.

The presentation of evidence to the jury commenced

on February 27, 2013. Five days later, after both sides

had rested, the defendants filed written requests to

charge dated March 4, 2013, that included a proposed

instruction on the special defense of waiverto the plaintiff’s claim of breach of contract. The theory of waiver

set forth in the proposed instruction was that both the

plaintiff and Bruno had made oral requests for changes

to the construction contract without signed work orders

and that neither had requested billings every two weeks,

as required by the parties’ contract. The plaintiff

objected to the defendants’ proposed charge on waiver,

arguing that waiver had not been pleaded as a special

defense, and thus that she had had no notice of that
claim. In response, the defendants argued that they had

mentioned waiver in their opening statement to the jury

and had introduced evidence of waiver throughout the

trial.2 The defendants further argued that because the

plaintiff had not objected to their evidence of waiver,

she had waived her right to object to an instruction on

waiver as a special defense.

The court determined that sufficient evidence of

waiver had been presented at trial to apprise the plaintiff of that claim. It therefore granted the defendants

permission to amend their answer by pleading waiver

as a special defense3 and agreed to instruct the jury on

that special defense. Consistent with those rulings, the

court instructed the jury on waiver with directions to

have the jury separately answer jury interrogatories

asking whether it ‘‘f[ou]nd in favor of Lisa Bruno’’ on

her claim of breach of contract against Heritage Homes’’

and, if so, whether ‘‘the plaintiff, Lisa Bruno, waived

the breach of contract by the defendant Heritage

Homes . . . .’’

On March 8, 2013, the jury returned a verdict in favor

of Whipple on the plaintiff’s CUTPA claim against him.

It also returned a verdict in favor of Heritage Homes

on the plaintiff’s breach of contract claim against it,

expressly basing the latter verdict on its answers to

jury interrogatories that (1) Heritage Homes had

breached its contract with the plaintiff, but(2)the plaintiff had waived that breach.

On March 18, 2013, the plaintiff filed a motion to set

aside the verdict, claiming that the trial court erred by

instructing the jury on Heritage Homes’ special defense

of waiver because the defendants had neither pleaded

waiver as a special defense nor alleged facts supportive

of that special defense in any of its other pleadings. She

argued that the trial court’s ruling permitting Heritage

Homes to assertthat special defense, without any notice

to her before the close of evidence, violated her right

not to be deprived of her property without due process

of law. She also argued that the jury’s verdict in favor

of Whipple on her CUTPA claim against him should be

set aside because it was contrary to law and to the

evidence presented at trial, particularly Whipple’s

admission in his testimony that, at Bruno’s request,

he had refused to give the plaintiff any information

concerning the construction project after Bruno’s initiation of divorce proceedings against her. The trial court

summarily denied the plaintiff’s motion. On July 7, 2014,

after this appeal was filed, the trial court filed an articulation as to its rationale for denying the motion to set

aside the verdict on the CUTPA claim, stating simply

that ‘‘[t]here was no reason not to accept the verdict of

the jury.’’ Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court erred in deny-
ing her motion to set aside the jury verdict (1) for

Heritage Homes on her claim of breach of contract,

and (2) for Whipple on her claim of violation of CUTPA.

‘‘The standard of review governing our review of a trial

court’s denial of a motion to set aside the verdict is

well settled. The trial court possesses inherent power

to set aside a jury verdict which, in the court’s opinion,

is against the law or the evidence. . . . [The trial court]

should not set aside a verdict where it is apparent that

there was some evidence upon which the jury might

reasonably reach [its] conclusion, and should notrefuse

to set it aside where the manifest injustice of the verdict

is so plain and palpable as clearly to denote that some

mistake was made by the jury in the application of legal

principles . . . . Ultimately, [t]he decision to set aside

a verdict entails the exercise of a broad legal discretion

. . . that, in the absence of clear abuse, we shall not

disturb.’’ (Internal quotation marks omitted.) Beeman

v. Stratford, 157 Conn. App. 528, 542, 116 A.3d 855

(2015). With this standard in mind, we address the plaintiff’s first two claims of error.

A

The plaintiff first claims that the trial court erred in

denying her motion to set aside the jury’s verdict for

Heritage Homes on her breach of contract claim. Specifically, she challenges the court’s ruling permitting Heritage Homes to claim that she had waived her

contractual rights, allowing Heritage Homes to plead

the special defense of waiver after the close of evidence

at trial, then instructing the jury on that special defense.

In response, Heritage Homes argues, as it did before

the trial court, that the plaintiff waived her right not

to have the court adjudicate that special defense by

allowing that claim to be fully litigated at trial without

any objection by her. The plaintiff disputes this argument, insisting that she objected to the belated claim

of waiver as soon as Heritage Homes made it clear that

it wished to assert it. We agree with the plaintiff.

The following additional procedural history is relevant to this claim. Upon the filing of Heritage Homes’

request to charge seeking a jury instruction on waiver,

the court heard extensive argument by the parties. The

plaintiff argued that she had not been given notice of

the claim of waiver until she received the request to

charge. Heritage Homes argued that because it had mentioned waiver in its opening statement to the jury and

had introduced evidence of waiver throughout the trial

without any objection by the plaintiff, the defense of

waiver had been fully litigated and, thus, pursuant to

Stratford v. A. Secondino & Son, Inc., 133 Conn. App.

737, 38 A.3d 179, cert. denied, 304 Conn. 918, 41 A.3d

305 (2012), was properly before the court.4

The trial court overruled the plaintiff’s objection to

the request to charge on waiver as follows: ‘‘[M]y recollection of the evidence and testimony is that there
were—there was evidence concerning the special

defense of waiver, and it was in through witnesses that

were asked those questions.’’ Heritage Homes offered

to ‘‘take on the burden [of proving] waiver as a special

defense.’’5 The trial court agreed to allow the issue of

waiver in as a special defense so that Heritage Homes

would bear the burden of proving it and the plaintiff

would have no burden of disproving it. The court later

expounded upon its ruling as follows: ‘‘I’m going to find

in this case, similarly as in Stratford v. A. Secondino &

Son, Inc., [supra, 133 Conn. App. 737], the defendant

indicated to the court at the start of trial that the [plaintiff] negated through a course of conduct the language

in the contract, which required that the contractor shall

bill the owner every two weeks a sum equal to the total

of all labor, work, and materials plus 15 percent of that

total for that previous two week period, and that the

defendants. . . . That all modification and additions to

the contract shall be in writing and signed by the plaintiff with the amounts agreed to price—with the amount

of the agreed price. So, that the court’s going to find

in this case there was sufficient evidence or testimony

at the time of the trial to apprise . . . the plaintiff . . .

of that affirmative or special defense.

‘‘So, the court’s going to allow it, and the court’s

going to charge the jury . . . that the special defense

has been alleged by the defendant and it has to be

proven by the defendant by a fair preponderance of the

evidence, and the plaintiff has no burden to disprove

it.’’ The court thus permitted Heritage Homes to amend

its answer by pleading waiver as a special defense to

the plaintiff’s breach of contract claim6 and instructed

the jury on that special defense.7 The plaintiff claims

that the trial court erred in so ruling.

‘‘Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial

standard that once prevailed, we still cling to the belief,

even in these iconoclastic days, that no orderly administration of justice is possible without them.’’ (Internal

quotation marks omitted.) McKenna v. Delente, 123

Conn. App. 146, 156–57, 2 A.3d 38 (2010). Whether to

grant an untimely amendment to the pleadings is within

the discretion of the trial court. McLaughlin Ford, Inc.

v. Ford Motor Co., 192 Conn. 558, 564, 473 A.2d 1185

(1984).

As for special defenses, our Supreme Court has stated

that ‘‘[t]he fundamental purpose of a special defense,

like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues

are not concealed until the trial is underway.’’ (Internal

quotation marks omitted.) Almada v. Wausau Business

Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Practice Book § 10-50 provides in relevant part: ‘‘No facts

may be proved under either a general or special denial

except such as show that the plaintiff’s statements of
fact are untrue. Facts which are consistent with such

statements but show, notwithstanding, that the plaintiff

has no cause of action, must be specially alleged. . . .’’

Thus, ‘‘[i]f a party seeks to introduce evidence under a

denial which is consistent with a prima facie case, but

nevertheless would tend to destroy the cause of action,

the new matter must be affirmatively pleaded as a special defense.’’ (Internal quotation marks omitted.)

Mitchell v. Guardian Systems, Inc., 72 Conn. App. 158,

166–67, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810

A.2d 269 (2002). ‘‘A defendant’s failure to plead a special

defense precludes the admission of evidence on the

subject. . . . It would be fundamentally unfair to allow

any defendant to await the time of trial to introduce

an unpleaded defense. Such conduct would result in

trial by ambuscade to the detriment of the opposing

party.’’ (Internal quotation marks omitted.) Jo-Ann

Stores, Inc. v. Property Operating Co., LLC, 91 Conn.

App. 179, 198–99, 880 A.2d 945 (2005).

‘‘Waiver is an intentional relinquishment or abandonment of a known right or privilege. . . . [W]aiver, as a

special defense, must be specifically pleaded.’’(Citation

omitted; internal quotation marks omitted.) Id.

‘‘[W]here, however, facts are sufficiently set up in a

pleading to warrant the inference of waiver, it will be

considered though it is not expressly alleged . . . .’’

(Internal quotation marks omitted.) Stratford v. A. Secondino & Son, Inc., supra, 133 Conn. App. 745.

In Stratford v. A. Secondino & Son, Inc., supra, 133

Conn. App. 737, the case cited by the trial court in its

challenged ruling, the plaintiff argued that the trial court

erred in rendering judgment for the defendant on its

counterclaim seeking damages for nonpayment of sums

allegedly due to it under a contract after excusing the

defendant’s noncompliance, on the ground of waiver

by the plaintiff, with a condition precedent to payment

under the contract. The plaintiff argued, more particularly, that the court’s finding that it had ‘‘waived the

condition precedent to payment provision was

improper because the defendant did not specially plead

waiver, and that, in any event, the court’s finding was

not supported by the evidence adduced at trial, and,

thus, was clearly erroneous.’’ Id., 744. There, as here,

waiver had not been specially pleaded by the party

asserting it at trial. The court in Stratford determined,

however, that the issue of waiver was properly considered by the trial court as a basis for its decision on the

merits because it was not only inferrable from allegations in the defendant’s operative pleadings, but it was

fully litigated at trial without objection by the plaintiff.

‘‘In this instance,’’ the court in Stratford explained, ‘‘the

defendant’s second amended answer and counterclaim

contained factual allegations consistent with a claim of

waiver—namely, that the defendant continued to work

on the project despite completing its contractual obligations and not receiving payment. Furthermore, the
defendant indicated to the court at the start of trial that

the parties negated, through ‘the course of conduct,’

the language in the contract requiring . . . certificate

of payment[from the architect who was acting on behalf

of the defendant]. . . . The plaintiff failed to object

at that time, and later, made no objection when the

defendant presented evidence that the plaintiff had

sought to forgo [the defendant’s architect’s] services in

the role set forth for him under the contract. Nor did the

plaintiff object to the defendant’s treatment of waiver

throughout trial orin its posttrial brief.’’(Footnote omitted.) Id., 745–46.

The present case is readily distinguishable from

Stratford in two important ways. First, here, unlike in

Stratford, the pleadings do not ‘‘warrant the inference

of waiver.’’ Not only was waiver not pleaded as a special

defense, but no inference of waiver arose or could have

arisen from the factual allegations in any of the operative pleadings because, very simply, Heritage Homes

made no factual allegations in any of its pleadings.

Instead, it simply denied the plaintiff’s allegations of

breach of contract. It is axiomatic that a special defense

is not provable under a simple denial, because, by definition, a special defense is a claim that defeats the plaintiff’s cause of action without disproving it. Therefore,

because the special defense of waiver was not provable

under Heritage Homes’ denial of the plaintiff’s claim of

breach of contract, the pleading gave the plaintiff no

notice that it might attempt to assert that special

defense at trial.

Notwithstanding this pleading deficiency, Heritage

Homes argues that the plaintiff waived her right not to

litigate its unpleaded claim of waiver by failing to object

to such a claim either when defense counsel first mentioned waiver in his opening statement or when evidence of waiver was offered during the trial. This takes

us to the second distinction between the circumstances

at issue in Stratford and those involved in this case.

As previously noted, the plaintiff in Stratford had notice

from the defendant’s pleadings of the factual allegations

upon which a claim of waiver could be based. It also

heard the defendant, through counsel, explain that

claim of waiver and give notice of its intent to rely upon

it in a lengthy colloquy with the court at the start of trial.

Notwithstanding such clear notice of the defendant’s

claim, the plaintiff made no objection to the court’s

consideration of it at any time, from the moment counsel first mentioned it in open court, through the defendant’s presentation of evidence directly supporting that

claim, to its ultimate submission of posttrial briefs and

final argument addressing that issue. It was not until

after the trial court issued its final decision relying upon

the defendant’s claim of waiver that the plaintiff in

Stratford objected to the court’s consideration of that

claim. That is certainly not what happened in this case.
Here, it is true that the defense counsel used the term

waiver in the course of his opening statement. On that

score, however, the opening statement lacked any clear

connection to the plaintiff’s claim of breach of contract,

for it referenced the parties’ dealings before, not after,

Bruno filed for divorce. The plaintiff’s claim of breach

of contract, by contrast, was based exclusively upon

Heritage Homes’ conduct toward the plaintiff, through

the actions of Whipple after Bruno initiated divorce

proceedings against her. Although prior to that time,

the plaintiff and Bruno had handled all of their dealings

with the defendants jointly, with both attending construction meetings, discussing proposed changes in

plans and approving additional expenditures on the

project together, the plaintiff claims that after Bruno’s

commencement of divorce proceedings against her, the

defendants cut her completely out of the loop about

the ongoing home construction project and refused to

deal with her except through Bruno. It was in this later

time frame, she claims, when the defendants were refusing to deal with her directly, that expenditures on the

project skyrocketed without her knowledge or assent,

thereby depleting the marital estate to her great financial loss.

Against this background, just as nothing in Heritage

Homes’ pleadings raised any inference of waiver by the

plaintiff of the contractual rights she claimed to have

been violated by its conduct toward her after Bruno

filed for divorce, nothing in counsel’s opening statement

raised such an inference, either. At no point did counsel

suggest that the plaintiff had assented in that postfiling

period to have change orders approved orally, without

her knowledge or approval. At no point, moreover, did

counsel suggest that the plaintiff had assented in that

period to not being advised of all ongoing expenditures

on the project, as required by the contractual provision

calling for billing for such expenditures on a biweekly

basis. Here, then, unlike in Stratford, nothing in either

Heritage Homes’ pleadings or its first mention of waiver

in counsel’s opening statement gave the plaintiff any

forewarning that a special defense of waiver might be

asserted as to the conduct she claimed to have violated

her contractual rights after Bruno filed for divorce.

For similar reasons, evidence presented by the defendants as to the plaintiff’s and Bruno’s dealings with

Whipple before Bruno filed for divorce did not put her

on notice that her breach of contract claim, which was

based exclusively upon the defendants’ postfiling conduct toward her, might later be met, on the basis of her

prefiling behavior, with an unpleaded special defense of

waiver. Heritage Homes, to reiterate, had flatly denied

the plaintiff’s claim of breach of contract based upon

its refusal to deal with her directly after Bruno filed for

divorce. She thus had no reason to consider any of its

evidence concerning their earlier dealings as the basis
for mounting a waiver defense, or thus to object to the

admission of any such evidence. Unlike the plaintiff in

Stratford, which had clearly been apprised of the factual basis for and the defendant’s plan to rely on its

unpleaded claim of waiver, before evidence supporting

that claim was presented at trial, the plaintiff here had

no basis for objecting to testimony as to her predivorce

dealings with Heritage Homes, which at most appeared

to be historical background for her later-arising breach

of contract claim.

Finally, at the close of all the evidence, when Heritage

Homes first submitted its requests to charge and formally sought the court’s permission to assert the special

defense of waiver, the plaintiff behaved very differently

than her counterpart did in Stratford by objecting immediately and with great energy to Heritage Homes’

belated claim. Whereas the plaintiff in Stratford not

only briefed the ultimate issue of waiver in its final

posttrial brief but argued it on the merits in its final

argument, all without objection of any kind, the plaintiff

in this case objected strenuously and repeatedly to Heritage Homes’ thirteenth-hour special defense, claiming

that waiver should have been specially pleaded and that

its interposition after the close of all the evidence at

trial violated herright not to be deprived of her property

without due process of law. Therefore, unlike in Stratford, it cannot be found here that Heritage Homes’

unpleaded defense of waiver was fully litigated without

objection by the plaintiff.

In light of the plaintiff’s strong opposition to the

belated amendment of Heritage Homes’ special

defenses to add the special defense of waiver, its only

remaining argument is that it gave such clear notice to

the plaintiff of its intent to rely upon that defense in its

opening statement and its subsequent offers of relevant

evidence at trial that the plaintiff’s failure to object

seasonably to such a defense itself constituted a waiver

of its right to do so. That, of course, is not the standard

announced in Stratford, where the exception to the rule

requiring the special pleading of extrinsic matters that

defeat an opponent’s claim without contradicting it is

reserved for situations in which the unpleaded claim

is fully litigated without objection at trial. Manifestly,

that is not what occurred in this case. Even, moreover,

if it were possible to base a finding of waiver of the

right to object to an unpleaded special defense based

upon the complaining party’s tardiness in raising an

objection to that special defense after it was substantially raised by evidence presented at trial, that is not

what happened here, either. For the reasons previously

stated, it did not become obvious that Heritage Homes

was seeking to rely upon that special defense until

the very moment when it requested that the jury be

charged thereon.

On the basis of the foregoing, we conclude that the
trial court abused its discretion by permitting Heritage

Homes to raise the special defense of waiver for the

first time after the close of evidence at trial, as it had

not been specially pleaded, the pleadings did not allege

any facts supporting an inference of waiver, and the

claim that the plaintiff knowingly relinquished her contractual rights was not fully litigated at trial without

objection by the plaintiff.8 Accordingly, we further conclude that the court should have set aside the jury’s

verdict as to waiver.9

We must now address the scope of the remand of this

case to the trial court. Specifically, we must determine

whether the case should be remanded for a hearing in

damages on the plaintiff’s breach of contract claim or

whether the jury’s verdict on her breach of contract

claim also must be set aside and remanded for a retrial

on that issue. In finding in favor of the plaintiff on

her breach of contract claim, the jury essentially has

determined liability in herfavor against Heritage Homes

and the remaining determination is damages resulting

from that breach. The plaintiff requests that the case

be remanded for a hearing in damages on the jury’s

verdict in her favor on her breach of contract claim. The

defendants have expressed no position on the plaintiff’s

request for relief and simply asked that the judgment

be affirmed.

Our Supreme Court has held that, ‘‘As a rule the issues

[at trial] are interwoven, and may not be separated

without injustice to one of the parties,’’ and ‘‘[a]n order

restricting the issues [of a new trial] is the exception,

not the rule.’’ (Internal quotation marks omitted.) Fazio

v. Brown, 209 Conn. 450, 455–56, 551 A.2d 1227 (1988).

Nevertheless, a retrial may be limited to a specific issue

or issues, ‘‘[w]here the error as to one issue or issues

is separable from the general issues . . . [and] such

. . . limitation does not work injustice to the other

issues orthe case as a whole.’’(Internal quotation marks

omitted.) Id., 455.

Here, because the improper verdict on the special

defense of waiver is wholly separable from the verdict

in favor of the plaintiff on her breach of contract claim,

we conclude that limiting the remand to a hearing in

damages on the breach of contract verdict does not

work injustice in this case.10

B

The plaintiff also claims that the court should have

set aside the jury’s verdict in favor of Whipple on her

CUTPA claim. We disagree.

‘‘[General Statutes §] 42-110b (a) provides that [n]o

person shall engage in unfair methods of competition

and unfair or deceptive acts or practices in the conduct

of any trade or commerce. . . . [I]n determining

whether a practice violates CUTPA we have adopted

the criteria set out in the cigarette rule by the [F]ederal
[T]rade [C]ommission for determining when a practice

is unfair:(1) [w]hether the practice, without necessarily

having been previously considered unlawful, offends

public policy as it has been established by statutes, the

common law, or otherwise—in other words, it is within

at least the penumbra of some common law, statutory,

or other established concept of unfairness; (2) whether

it is immoral, unethical, oppressive, or unscrupulous;

(3) whether it causes substantial injury to consumers,

[competitors or other businesspersons]. . . . All three

criteria do not need to be satisfied to support a finding

of unfairness. . . . In order to enforce this prohibition,

CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money . . .

as a result of the use or employment of a [prohibited]

method, act or practice . . . .’’ (Internal quotation

marks omitted.) Landmark Investment Group, LLC v.

CALCO Construction & Development Co., 318 Conn.

847, 880–81, A.3d (2015). ‘‘[W]hether a practice

is unfair and thus violates CUTPA is an issue of fact,

to which we must afford our traditional deference.’’

(Internal quotation marks omitted.) Id., 881.

The plaintiff argued to the jury that Whipple violated

CUTPA by ‘‘intentionally concealing and withholding

information from [her] in collusion with Stephen

Bruno.’’ As to her CUTPA claim against Whipple, the

court instructed the jury as follows: ‘‘The plaintiff has

. . . alleged in her complaint that . . . Whipple

engaged in unfair and deceptive acts and practices in

trade and commerce in violation of . . . General Statutes . . . [§] 42-110a . . . . That’s called CUTPA. Specifically, she alleges that . . . Whipple conspired with

Heritage Homes Construction Company, LLC, to not

perform all of the construction work they claimed to

have performed and conspired with Stephen Bruno, the

plaintiff’s former husband, to launder . . . Mr. Bruno’s

cash under the guise of work paid for and thereby

depriving the plaintiff of fair, just and reasonable alimony and division of assets in connection with the

plaintiff’s divorce proceedings . . . . [I]n the scope of

the CUTPA charge against . . . Whipple there is the

additional allegation against him that he failed to provide the bills every two weeks as per a contract, that

he failed to inform the plaintiff of change orders and

work that was done, which was not contracted for by

the plaintiff, and that he failed to inform the plaintiff

of additional cost of work which was done but was not

authorized by the plaintiff.’’

Although we cannot speculate as to which element

of her CUTPA claim the jury found that the plaintiff

had failed to prove—that Whipple’s conduct violated

CUTPA or that she sustained an ascertainable loss—

she argues on appeal that she proved both elements.

If the jury reasonably could have found that the plaintiff

failed to prove either of those two essential elements

of CUTPA, her claim on appeal must fail.
The plaintiff contends that she proved both a violation of CUTPA and ascertainable damages arising from

that violation by virtue of the jury’s verdict that Heritage

Homes had violated her contractual rights. A simple

breach of contract, however, does not necessarily constitute a violation of CUTPA. Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 247–48, 919 A.2d 421 (2007).

The plaintiff claims that ‘‘the record evidence clearly

discloses that the plaintiff plead[ed] and proved a collusive arrangement between Whipple and Bruno which

was premised on fraudulent concealment and nondisclosure of project financial information against the

plaintiff in order to prevent the plaintiff from making

a full investigation and taking action to prevent any

further unilateral spending/dissipation of marital

funds.’’ She argues that ‘‘[d]uring the civil trial, Whipple

came clean and testified under oath to both the existence of his collusive agreement with Bruno as well

as his fraudulent conduct to conceal material project

information from [her] pursuant to Bruno’s instructions

and plan because ‘he was the guy paying us.’ ’’ The

plaintiff further argues that, ‘‘Whipple confessed to

aggravating and unscrupulous conduct that was unlawful, unethical, wilful, reckless, deceptive and unfair by

its very nature and definition.’’ The plaintiff further

argues that she proved that she suffered an ascertainable loss as a result of Whipple’s allegedly unfair

trade practice.11

Although Whipple admitted at trial that he filtered

the project information through Bruno, the jury, as the

finder of fact, was free to accept or reject the plaintiff’s

argument that he did so in collusion with Bruno with

the intent to deprive the plaintiff of her fair share of

the marital assets. The jury also was within its province

to determine whether Whipple’s decision to deal only

with Bruno was unscrupulous, wilful, reckless and

deceptive. Through her arguments on appeal, the plaintiff asks this court to sit as a seventh juror and to pass

our judgment on the nature of the relationship between

Whipple and Bruno. It is well settled, however, that that

function is not ours to perform. See Doe v. Hartford

Roman Catholic Diocesan Corp., 317 Conn. 357, 381,

119 A.3d 462 (2015). We thus cannot conclude that the

court abused its discretion in denying the plaintiff’s

motion to set aside the verdict as to her CUTPA claim.12

II

The plaintiff also claims that the court erred in granting summary judgment in favor of Heritage Homes on

her claims of breach of the implied covenant of good

faith and fair dealing and violation of CUTPA.13 The

plaintiff correctly argues that the trial court’s granting

of summary judgment for Heritage Homes on her claim

of breach of the implied covenant of good faith and fair

dealing against Whipple was premised on the lack of a

contractual relationship between her and Whipple, and
that such an argument cannot, in itself, form a proper

basis for the trial court’s granting of summary judgment

on her parallel claim against Heritage Homes because

she did have a contractual relationship with Heritage

Homes, upon which such a claim properly could have

been premised. The trial court, however, also based its

summary judgment on breach of the implied covenant

of good faith and fair dealing, and violation of CUTPA,

against Heritage Homes on its determination that the

plaintiff’s allegations ‘‘that the defendants have engaged

in a scheme to launder money for Stephen Bruno

through the construction contract,’’ were ‘‘conclusory

and supported by no facts.’’ On that score, the plaintiff

argues that because the defendants never established

a prima facie case for summary judgment, the burden

never shifted to her to present concrete evidence to

demonstrate the existence of a genuine issue of material

fact.14 We disagree.

‘‘The standard by which we review a trial court’s

decision to grant a motion for summary judgment is

well established. Summary judgment shall be rendered

forthwith if the pleadings, affidavits and any other proof

submitted show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. . . . In deciding a motion

for summary judgment, the trial court must view the

evidence in the light most favorable to the nonmoving

party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of

any material fact [however] a party opposing summary

judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together

with the evidence disclosing the existence of such an

issue. . . . It is not enough . . . for the opposing

party merely to assert the existence of such a disputed

issue. . . . Mere assertions of fact, whether contained

in a complaint or in a brief, are insufficient to establish

the existence of a material fact and, therefore, cannot

refute evidence properly presented to the court [in support of a motion for summary judgment]. . . .

‘‘As a generalrule, then, [w]hen a motion for summary

judgment is filed and supported by affidavits and other

documents, an adverse party, by affidavit or as otherwise provided by . . . [the rules of practice], must set

forth specific facts showing that there is a genuine issue

for trial, and if he does not so respond, summary judgment shall be entered against him. . . . Requiring the

nonmovant to produce such evidence does not shift the

burden of proof. Rather, it ensures that the nonmovant

has not raised a specious issue for the sole purpose of

forcing the case to trial.’’ (Citations omitted; emphasis

in original; internal quotation marks omitted.) Squeo v.

Norwalk Hospital Assn., 316 Conn. 558, 593–94, 113

A.3d 932 (2015).

More specifically, ‘‘[t]he party opposing a motion for
summary judgment must present evidence that demonstrates the existence of some disputed factual issue

. . . . The movant has the burden of showing the

nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the

bald statement that an issue of fact does exist. . . . To

oppose a motion for summary judgment successfully,

the nonmovant must recite specific facts . . . which

contradict those stated in the movant’s affidavits and

documents. . . . The opposing party to a motion for

summary judgment must substantiate its adverse claim

by showing that there is a genuine issue of material

fact together with the evidence disclosing the existence

of such an issue. . . . The existence of the genuine

issue of material fact must be demonstrated by counteraffidavits and concrete evidence. . . . Our review of

the trial court’s decision to grant a motion for summary

judgment is plenary.’’ (Internal quotation marks omitted.) Brusby v. Metropolitan District, 160 Conn. App.

638, 646, A.3d (2015).

In its memorandum of law in support of summary

judgment, the defendants argued, ‘‘As stated in the affidavit of Mr. Reed Whipple, the manager of Heritage

Homes, there was no conspiracy with Mr. Bruno and

no cash was ‘laundered’ as alleged. The plaintiff has no

evidence to support such a damnable claim, which is

categorically denied by the defendants. In sum, Heritage

Homes entered into a contract to build a mansion at

111 Spring Valley Road, Ridgefield, Connecticut. The

contract had no fixed price; rather, it was based on

work, labor and materials experienced plus a set percentage of fifteen percent (15%) for management of the

project. Heritage Homes completed construction of the

home and obtained a Certificate of Occupancy for the

home on or about July 28, 2006. Heritage Homes submitted invoices from all the subcontractors who performed

work on the project, which totaled approximately

$4,850,000. Heritage Homes charged the agreed upon

fifteen percent (15%) management fee of $750,000 for

a total of approximately $5,600,000. Mr. Bruno paid for

the completed work and was satisfied with the performance of Heritage Homes. At no time did Reed Whipple

or Heritage Homes return any payments to Mr. Bruno.’’

In support of summary judgment, the defendants submitted, inter alia, an affidavit in which Whipple averred,

inter alia, as follows: ‘‘Mr. Bruno paid Heritage Homes

all money owed pursuant to the [c]onstruction [c]ontract. Neither I nor Heritage Homes ever returned any

money to Mr. Bruno, or ‘laundered’ money as alleged

by the plaintiff . . . in her complaint.’’

Upon the submission of Whipple’s sworn affidavit

that neither he nor Heritage Homes had colluded with

Bruno to launder his cash through the construction

project, with its express averment that no money paid

for the construction of the home was ever returned to
Bruno, the plaintiff needed to submit concrete evidence

to demonstrate a genuine issue of material fact as to

those claims in order to defeat Heritage Homes’ motion

for summary judgment. She failed to do so. She provided

no evidence whatsoever that Heritage Homes ever

returned any of the money paid by Bruno to him, much

less that it did so in a scheme to launder that money

through the project to keep it from her. Simply put,

the fact that Heritage Homes may have breached the

construction contract by choosing to deal only with

Bruno because he was the party who was paying for the

work performed does not, in itself, show that Heritage

Homes acted in bad faith or that it colluded with Bruno

to launder his cash through the construction project.

We thus agree with the trial court’s determination that

the plaintiff’s claim for breach of the implied covenant

of good faith and fair dealing and violation of CUTPA

consisted only of conclusory allegations and thus that

Heritage Homes was entitled to judgment on those

claims as a matter of law.

The judgment is reversed only as to the jury’s verdict

on the special defense of waiver and the case is

remanded for a hearing in damages on the jury’s verdict

in favor of the plaintiff on her breach of contract claim.

The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

1 The odd numbered counts allege claims against Whipple. Each even

numbered count parrots the allegations of the odd numbered count that

immediately precedes it, but asserts a claim against Heritage Homes.

2

In its opening remarks to the jury, counsel for Heritage Homes mentioned

‘‘waiver’’ one time. During its opening remarks, the defendants explained

to the jury, inter alia: ‘‘Never did Mr. or Mrs. Bruno say, hey, where’s our

bill? Hey, where’s our bill every two weeks? And when you’re involved in

a contract, as the judge will instruct you on the law later, is an element

of waiver.

‘‘You can’t say after the fact, oh, you’ve breached the contract when month

after month after month this was the conduct which was acquiesced in and

which was approved by the people who you were dealing with. Bills went

out. Bills were paid.

‘‘No one even talked about the one year. Oh, we’re going to finish this

contract in one year. On October 28 of 2005 when—which was a month—

more than a month before the divorce, no one—Ms. Bruno didn’t say, hey,

how come you’re not done because she knew that they didn’t even have

the plans finished.

‘‘You’re going to see plans dated well after the date of divorce, and you’re

going to hear testimony from Mr. [Jeffrey] Celestino, the project manager

of Heritage Homes, and you’re going to hear testimony from Mr. [Jay] Mose,

[the architect], that we were designing as they were building, and Mr. Bruno

approved everything.

‘‘You’re also going to hear testimony that Ms. Bruno and Mr. Bruno, before

the divorce was filed, approved everything, and in many respects the house

that was built was approved and was in motion prior to the divorce

being filed.

‘‘The evidence will then show that Ms. Bruno never said to Mr. Whipple,

Mr. Celestino, who was on the property almost every day, stop what you’re

doing. I don’t approve it. She never did.’’

3 The defendants filed that amended pleading on March 15, 2013.

4 During argument on the issue of waiver, however, Heritage Homes failed

to direct the court to any specific evidence that the plaintiff knowingly

relinquished her rights under the contract. It argued to the trial court: ‘‘My

opening statement when I—when I referenced the fact that she waived

those provisions of the contract. I stated in my opening statement and then

during the cross of the plaintiff and during the direct of other witnesses I
specifically asked them, did you bill every two weeks; no. Did the plaintiff

ever complain; no. Did the plaintiff ever come and ask for a billing for every

two weeks; no. So, it was—it was mentioned in the opening statement.

There was no objection to it at that point, and there was—all the evidence

went in without objection . . . .’’ The defendant continued: ‘‘I don’t think

I can even ask the question did she waive her right. That’s a legal conclusion.

I—I asked the questions to the plaintiff. I stated waiver in my opening

argument. I asked the question of the plaintiff. I asked the question of almost

every witness on the defense side without objection, and without objection

after I stated in my opening argument, I might add, Your Honor.’’

5 We find this ‘‘offer’’ puzzling since it is a bedrock principle of law that

a defendant bears the burden of proving its own special defense.

6 The defendants amended their answer on March 15, 2013, one week

following the jury’s verdict, to add the following special defense as to the

breach of contract claim:

‘‘If the plaintiff has proven a breach of contract, any alleged breach was

waived by the plaintiff by the following acts or omissions of the plaintiff:

‘‘A. The plaintiff did not demand biweekly billing after an established

pattern of non-biweekly billing.

‘‘B. The plaintiff did not object and/or acquiesced in verbal change orders

concerning the scope of work under the contract.

‘‘C. The plaintiff made oral directions to change the scope of work under

the contract.’’

7 The court instructed the jury as follows: ‘‘Now, as regards to breach of

contract as to Heritage Homes Construction Company, LLC, in this case

the plaintiff, Lisa Bruno, has alleged that the defendant, Heritage Homes

Construction Company, LLC, breached its October 28, 2004 contract with

her to construct a custom built home on her premises located at 111 Spring

Valley Road in the town of Ridgefield for a total price of $2,565,550.

‘‘Specifically, the plaintiff alleges (1) that the defendant Heritage Homes

failed to provide her with bills on a biweekly basis, and (2)that said defendant

failed to provide her with written change orders regarding modifications

and additions to the contract and the agreed price for her signature.

‘‘The defendant Heritage Homes has admitted that the contract required

them to provide biweekly reports to the plaintiff but denied that it failed

to provide such records or bills and denied that change orders were not

provided to the defendant.’’

***

‘‘The defendant in this case, in addition to denying the claims that were

made by the plaintiff, has affirmatively asserted [a] certain special defense

to the plaintiff’s claims. The special defense, which the defendant alleges,

is that the plaintiff waived her right to complain that the defendant breached

the contract because she did not complain when she did not receive bills

every two weeks or to complain about not being given change orders for

her signature.

‘‘The plaintiff does not have the burden to disprove the allegations in that

special defense. Rather, each party has the burden of proving each party’s

own claim and no burden to disprove the claims of that party’s adversary.’’

***

‘‘As far as the breach of the contract, if you conclude that there was a

breach of contract and that such breach was material, you must also consider

whether the plaintiff waived any such breach. Waiver is the intentional

relinquishment or abandonment of a known right. Contract right[s] such as

claims for breach of contract may be waived. Such a waiver may be established through the words or conduct of the other party. That’s a question

of fact for you to decide, whether or not that there was a waiver, in fact.’’

8

In light of this conclusion, we need not address the plaintiff’s additional

claim that the trial court’s ruling violated her constitutional rights.

9 The plaintiff also claims that a certain provision of the construction

contract at issue in this case barred the defense of waiver. Because this

claim was raised by the plaintiff for the first time in her reply brief to this

court, we decline to address it. See 2 National Place, LLC v. Reiner, 152

Conn. App. 544, 548 n.4, 99 A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d

1112 (2014).

10 Because the jury’s determination that Heritage Homes had breached

the contract was returned as a general verdict, there is a presumption that

the jury found in favor of the plaintiff on both of her claims of breach.

Lukas v. McCoy, 157 Conn. App. 384, 388, 116 A.3d 827 (2015). We recognize

that Heritage Homes could not yet have appealed from the jury’s determination that it had breached the contract because it was not aggrieved. If the
jury awards damages to the plaintiff on the basis of the breach of Heritage

Homes, it will then be aggrieved and can properly appeal from the jury’s

determination of liability at that time.

11 In support of her argument that she proved an ascertainable loss, the

plaintiff cites to her trial testimony, as follows: ‘‘The house sold for 3.7

million in 2011. There was a 4 million dollar loss of equity. The contract

had a price of 2.6 million dollars. The final amount paid to Heritage Homes

was 5.6 million dollars. There’s not a single change order that I ever signed

authorizing an expenditure above the 2.65 million dollars. The house sold

at a substantial loss. The amount of money spent at the time of the divorce

was only 1.4 million. Given the chance, I would have completed the house

for another million dollars had I been [given] the opportunity to do so. I

never would have agreed or allowed for 4.2 million to be spent on a house

I wasn’t going to live in and that was going to be ordered to be sold.’’

12 Because we conclude that the jury reasonably could have rejected the

plaintiff’s claim that Whipple engaged in conduct that violated CUTPA, we

need not additionally address her claim that she suffered an ascertainable loss.

13 Although the plaintiff earlier appealed the trial court’s summary judgment in favor of Heritage Homes, that appeal was dismissed for lack of a

final judgment due to the surviving breach of contract count that was then

remaining against Heritage Homes. There no longer being a final judgment

problem, the plaintiff’s claim in this regard is properly before us.

14 We note that the plaintiff’s earlier appeal from, and our reversal of, the

trial court’s granting of summary judgment as to her CUTPA claim against

Whipple was based upon the sufficiency of the pleadings to state a CUTPA

claim, not an examination of the sufficiency of the plaintiff’s evidence to

raise a genuine issue of material fact in support of such a claim in the face

of the Whipple’s averments to the contrary. See Bruno v. Whipple, supra,

138 Conn. App. 514.