ZIPP v. JFC ENDEAVORS, INC.

Full title: THOMAS C. ZIPP v. JFC ENDEAVORS, INC

Court: Connecticut Superior Court Judicial District of New Britain at New Britain

Date published: Mar 18, 2011

2011 Ct. Sup. 7373 (Conn. Super. Ct. 2011)

Opinion

No. CV 10-5014884

March 18, 2011

MEMORANDUM OF DECISION

SWIENTON, J.

The plaintiff, Thomas C. Zipp ("Zipp"), brought a two-count complaint against the defendant, J.F.C. Endeavors, Inc. ("JFC"), for breach of contract and unjust enrichment, relative to the purchase and development of property known as 38 Moses Place, in Farmington, Connecticut ("Moses Place"). JFC denies liability and asserts numerous special defenses as to both claims. The matter was tried to the court over three days, during which time the parties were heard and presented evidence consisting of documentary exhibits and sworn testimony of Thomas C. Zipp, Jake Carrier, ¹ Thomas Jurkiewicz, Esq., and George Santos. The court requested trial briefs of the parties, which were submitted.²

1 Jake Carrier is the president of J.F.C. Endeavors, Inc.

2 The court allowed the plaintiff to submit a reply brief to address the special defenses raised by the defendant in his trial brief only. JFC did not address either the special defenses of equitable estoppel or laches in its post-trial brief, and therefore, the court will treat them as waived and abandoned. On December 9, 2010, the defendant forwarded correspondence to the court by letter attempting to clarify statements in the Plaintiff's reply brief.

I FACTS

The plaintiff is a real estate developer and entrepreneur, involved in residential and commercial real estate ventures and real estate investment for over twenty years, in the Farmington, Connecticut, area. He holds a real estate salesman's license, which he uses primarily for informational and acquisition purposes. In 1986, together with his wife, he acquired land for development in the Unionville section of Farmington. His company, Krell Farms, LLC, owned property which he developed into two residential subdivisions, known as "Hunter's Ridge" and "Strawfield," and an elderly housing component on an adjoining smaller parcel of land.

In July 1996, Zipp became aware that property adjoining his Krell Farms, LLC., property came on the market. The property's owner, Eveline Stewart, had died, and her heirs, Scott and Seth Stewart wished to sell the property. The Stewarts' property, known as 38 Moses Place, consisted of 26.335 acres, and was listed for sale with Rosemary McGuire of ERA Lindquist Realty, with whom Zipp had worked on other real estate ventures. Zipp began negotiations with Maguire, who was interested in selling the property to a builder/developer who would eventually hire her agency as the listing broker for homes that would eventually be built. Zipp said that McGuire wanted "the mother lode," implying the listing commissions, in return for prevailing on the Stewarts to accept an offer to purchase. Zipp began to consider his options if he were going to buy the Moses Place property. Was he going to develop it on his own, enter into a joint venture, or eventually re-sell it? Since he had been working with JFC since August 1995, on the adjacent Hunter's Ridge and Strawfield projects, Zipp decided to speak with Jake Carrier, JFC's president, first. Carrier was interested in the property and very excited about the potential deal.

On July 2, 1996, Zipp entered into an Offer to Purchase the Moses Place property with Scott Stewart and Seth Stewart (the "Stewarts"), as Sellers, for a purchase price of $1.2 million. Zipp contributed a total of $12,500 towards the $25,000 deposit, and on July 8, 1996, Carrier paid the balance of the deposit of $12,500.³ Plaintiff's Exh. 1. The Offer to Purchase was subject to four contingencies: (1) the town of Farmington approving a zone change to allow smaller lots and a higher density; (2) the town granting subdivision approval for at least 60 lots; (3) construction financing "from a financial institution" at "competitive rates"; and (4) environmental testing to demonstrate the absence of contamination. These contingencies were to be fulfilled by January 31, 1997, or the offer would expire.

3 Although the plaintiff contends that he did not approach Carrier until after Zipp had the agreement in hand from the Stewarts, the facts support the defendant's position that Zipp and Carrier had established some type of agreement prior to the execution of the Offer to Purchase. In any event, it is undisputed that throughout the second half of 1996, Zipp had "control" of the land through the Stewarts' acceptance of his July 1996, Offer to Purchase.

Over the next several months, discussions took place among Zipp, Carrier and McGuire regarding various aspects of the proposed project. Zipp made arrangements for a meeting with Carrier and an officer of Farmington Savings Bank to discuss financing of the project, and the bank committed to financing 50 building lots. Zipp and McGuire entered into an agreement wherein Zipp would receive a co-brokerage commission upon the sale of the whole Moses Place parcel to be paid out of the commission paid by the Stewarts to McGuire. But the ultimate arrangements between Zipp and Carrier regarding any assignment of Zipp's rights under the Offer to Purchase were yet to be worked out. At one point, Zipp testified that he proposed to Carrier that he receive a flat $5,000 per lot fee, but Carrier preferred to make any compensations based upon a percentage of the selling price of each improved lot, in any event, during this period of time, the alternatives were merely at the discussion stage, and the recollections of both men were vague either in fact or for convenience.⁴

4 Although Zipp attempted to refresh his own recollection using his notes that he kept in his monthly appointment book, his appointment book merely confirmed that the meetings occurred. Also, the court acknowledges that these discussions were over a decade ago, and it is understandable that the parties' memories would be less than perfect. But the court had the clear impression that Carrier's memory lapses at times were for convenience. At time he was so vague and evasive that the court could not believe he had so little understanding of the marketing and selling of a home. The court found him to be less credible than Zipp. "In a case before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).

On August 1, 1996, a meeting took place with Zipp, Carrier, and representatives of ERA Lindquist Realty, specifically McGuire and her associate, Beryl Marsh. McGuire was pushing for the meeting with Carrier in order to secure the listing on the final sales of the lots, and she and her associate made their marketing pitch. Carrier was very interested, and he asked McGuire and Marsh to put together some marketing research. Nothing was finalized between Carrier and ERA Lindquist at that point. Zipp testified that he reached an oral agreement with Carrier after that meeting regarding Zipp's compensation from JFC for the transfer of the Moses Place contract. Carrier acknowledged that he and Zipp had many discussions regarding their potential arrangement, but he testified that he never understood that the discussion of commissions with ERA Lindquist as listing broker involved a percentage fee for Zipp assisting JFC in purchasing the land, separate from, and over and above, the brokerage commissions to be paid to Lindquist for listing and selling homes to be built in the subdivision.

A The January 20, 1997, Agreement ("Agreement")

Because it did not appear that the contingencies provided for in the Offer to Purchase would be met by January 31, 1997, Zipp would have to elect to extend the option to July 31, 1997. This would require an additional deposit of $25,000 on or before January 31, 1997, and the entire deposit of $50,000 would become nonrefundable. With that deadline looming, the parties — particularly Zipp — felt it necessary to put something in writing concerning the transfer of the purchase contract. Carrier contacted his real estate attorney, Thomas Jurkiewicz, to meet with them and to draw up an agreement. Zipp and Carrier met with Jurkiewicz on Saturday, January 18, 1997, for that purpose, and they returned on January 20, 1997, to execute the Agreement.⁵ Jurkiewicz acknowledged that he was Carrier's attorney, and that he was not representing Zipp in this transaction. Almost all of the terms were provided to Jurkiewicz by Zipp, who had the most to gain and/or lose. The 1997 Agreement was executed by both Thomas Zipp and Jake Carrier, on behalf of JFC, and was witnessed, subscribed and notarized.

5 The Plaintiff's brief refers to this agreement as the "Assignment Agreement." The document is entitled "AGREEMENT," and does not contain the word "assignment" in its title. The defendant takes issue with the use of the term "assignment agreement." The purpose of the document, whether it was an assignment as Zipp contends, or a mere "memo that summarized discussions" as Carrier would have it, was to set forth the parties' understanding of the terms and conditions by which Zipp would assign his rights under the Offer to Purchase to Carrier. The court will refer to the document as the "Agreement."

The Agreement is the basis of Zipp's breach of contract claim. It purports to assign the contractual rights of Zipp under the Offer to Purchase Moses Place to JFC, "for and in consideration of a valuable sum." Plaintiff's Exh. 11. It provides for Zipp to assign and convey "all his right title and interest [in the Offer to Purchase]" to JFC. Id. It further provides that JFC shall reimburse Zipp for the initial $12,500 deposit he made at the time of the execution of the Offer to Purchase.⁶ The Agreement further provides as follows:

6 JFC had previously paid the other half of the $25,000 deposit back in July 1996.

3. The Assignor [Zipp] and Assignee [JFC] contemplate that if the purchase occurs in accordance with the [Offer to Purchase] then the Assignee [JFC] shall develop a multiple lot subdivision.

4. The Assignee [JFC] agrees to engage ERA Linquist (sic) of 850 Farmington Ave., Farmington, Connecticut as the listing agent for the individual lots which the Assignee [JFC] intends to develop and sell provided the agent agrees to the following terms:

a. Commission to be based on 3% if listing agent is also the selling agent.

b. Commission to be based on 4 1/2% if co-broker with 3% to selling agent and 1 1/2% to listing agent.

c. Listing would be on the multiple listing service.

5. As additional consideration the Assignee [JFC] would pay the Assignor [Zipp] a commission of 2 1/2% based on the advertised price of a single lot without extras. This commission shall only be paid if ERA, the broker agrees to the commissions set forth in Paragraph 3 above.

6. It is understood that if Assignee [JFC] does purchase the property any deposits which were paid towards the purchase shall be and are the property of the Assignee [JFC] and no monies would be due the Assignor [Zipp].

7. If the Broker does not sell at least 20% of available lots within the first 6 months after model completed then the Assignee [JFC] can use another broker and any commission to be paid the Assignee [Zipp]⁷ shall be 2 1/2% provided the new broker agrees to the terms set forth in paragraph 4 above. The maximum commission including the commission to the Assignor [Zipp] that the Assignee [JFC] will be (sic) is 5 1/2% when the listing agent is also the selling agent and 7% when it is a co-broker situation. Thus if the new broker requires a higher commission then the Assignee [Zipp]⁸ will have to accept a commission proportionally lower to keep it under the limits set forth but in no case less than 2%.

7 The agreement incorrectly transposed Assignee and Assignor.

8 See n. 7.

8. The first 3000 yards of material (sand — gravel) from the site shall be given to the Assignor [Zipp]." (Emphasis added.) Plaintiff's Exh. 11.

The Agreement also provided that "this assignment shall be binding on the heirs, successors and assigns of the parties."

On January 28, 1997, an amendment to the July 1996, Offer to Purchase was signed by Zipp (Offeror), and the Stewarts, extending the period during which any contingencies may be fulfilled to July 31, 1998, for the payment of an additional, nonrefundable deposit of $25,000, to be paid on or before July 31, 1997. In addition, the amendment provided that the offeror would also pay the real estate taxes on the property, due July 1, 1997, and January 31, 1998.⁹ Plaintiff's Exh. 12. Oddly, even though Zipp argues that the Offer to Purchase was assigned to Carrier, he continued to act as though he was still the purchaser, but all monies for deposits and taxes came from Carrier. On July 30, 1997, Zipp's personal attorney forwarded a letter to McGuire which stated that "Thomas C. Zipp hereby exercises his option to extend," enclosing the additional $25,000 deposit, and a statement that Zipp would "reimburse [Stewart] for $3,650.42 for the taxes due July 1, 1997." Plaintiff's Exh. 15. All monies, however, came from Carrier.

9 These taxes were paid by JFC.

B The July 1998, Purchase Option

Once the January 1997, extension was received, Carrier began the approval process for the subdivision with "his team." Discussions continued throughout the next year regarding the Moses Place project among Zipp, Carrier and McGuire. As the July 1998, extension approached, Zipp and Carrier participated in a new round of negotiations, and set forth in writing their understanding pertaining to the "Stewart Contract." It reads as follows:

"Per meeting between Jake Carrier and Thomas C. Zipp, Wednesday morning May 6, 1998, regarding the Stewart Contract. To extend the contract from July 1998 to July 1999 and change the amount from $1,200,000.00 to $1,250,000.00. If they gives (sic) us the extension, Jake agrees to pay $125,000 as an addition to down payment on July 1, 1998. The balance due in July 1999 will be $1,050,000.00. Then we agree to pay the taxes on the property like we did last year, providing we get the bill on time.

Rosemary [McGuire] would get the listing, 35 lots on Hunter Ridge and 25 lots on Strawfield Road.¹⁰ Tom would get the referral commission on those listings at commission rate of 4% in house sales and 5% co-broke, which would be split 2 1/2% each agency. Tom will get 25% on the listing side." Plaintiff's Exh. 19.

10 Although Zipp and his wife purchased the property which became the Hunters Ridge and Strawfield developments, Carrier was the developer.

In June 1998, Zipp and Carrier met with Attorney John Burns, who was representing the Stewarts, and who was conducting the negotiations on their behalf in order to further extend the Stewarts' contract. Carrier memorialized their discussion with a document setting forth the terms discussed in order to extend the contract four more months. Plaintiff's Exh. 25. The document identifies McGuire as the realtor, Zipp as the "Negotiator," and Burns as the lawyer. It provided for a purchase price of $1.2 million, with additional deposits to be paid in July and August, as well as payment of $45,000 in "interest" payable at the end of the fourth month, which would be November 1998. A second communication was written by Carrier with the same parties identified indicating Carrier's legitimate desire to follow through with the purchase of the property under those terms, and agreeing to "sign an agreement that time will be in (sic) the essence."¹¹ Plaintiff's Exh. 26.

11 ". . . I feel we work real hard, my team and myself that we will be able to accomplish the work within the time period and keep up with the payments. Now that we are this close to approval (4 months maximum), I really want to hang on to it to the property." Plaintiff's Exh. 26.

On July 31, 1998, Zipp, in his own name, executed a document entitled, "Purchase Option," to purchase 38 Moses Place, which agreement provided for a purchase price of $1,250,000, eliminated the contingencies set forth in the July 1996 Offer to Purchase, but which made no mention of JFC. Plaintiff's Exh. 27 and 28.¹² The Purchase Option provided: "Paragraph 12. Complete Agreement. This option contains the entire agreement between Buyer and Seller concerning this transaction, and supersedes any and all previous written or oral agreements concerning the Property." Id. After July 31, 1998, no further assignments from Zipp to Carrier were executed, nor did he and JFC execute any document adopting and/or incorporating the 1997 Agreement's terms or conditions. However, the deposits called for in the 1998 Purchase Option were made by JFC in checks made payable to Seth Hamilton Stewart, one of the sellers. Plaintiff's Exh. 29 and 30.

12 Plaintiff's Exh. 27 is the document executed by Zipp, and Plaintiff's Exh. 28 is the document executed by the Stewarts. The two documents are identical, except in Exh. 27, the real estate broker is identified as Lindquist Realty, and Exh. 28 identifies the broker as Prestige Properties. Rosemary McGuire had left Lindquist and joined Prestige Properties after the 1996 Option to Purchase was signed and prior to the 1998 Option.

Also in July 1998, Carrier, on behalf of JFC, executed a one-year exclusive listing agreement with Prestige Properties, for property identified as "35 lots Railroad Avenue, Unionville, Connecticut." Although the contract only identified the lots at Railroad Avenue as the "Listed Property," it provided for broker commissions as follows: 4 percent in house/5 percent co-broke — Strawberry Fields (sic), Moses Place 15 [market value] units at Railroad Avenue; 3% in house/4% co-broke — 20 affordable units — Railroad Avenue. Plaintiff's Exh. 23. Immediately following the execution of this listing agreement, on July 20, 1998, Zipp and McGuire entered into an agreement concerning "49 homes on Moses Place, 35 lots on Railroad Avenue, and 25 lots on Strawfield." McGuire agreed to give to Zipp a referral commission of 25 percent on the lots and homes that are sold in these projects. Plaintiff's Exh. 24. This agreement was to be in effect for the entire term of the exclusive listing agreement with JFC. Id. ¹³

13 The exclusive listing agreement concerning Moses Place was executed by McGuire and Carrier, on behalf of JFC, on July 1, and July 29, 1999. The agreement covered the period from July 31, 1999, through and including December 31, 2002. It provided for a service fee of 4% in house and 5% co-broke. The agreement was with Rosemary McGuire, Broker, and not with any named real estate agency. Plaintiff's Exh. 37. McGuire died in 2000.

C JFC'S PURCHASE OF MOSES PLACE

Once JFC secured the financing to purchase Moses Place, application was made to the town of Farmington in September 1998, for a special permit to develop a cluster subdivision on the property. In November 1998, the Farmington Town Plan and Zoning Commission approved the special permit for a forty-five-lot development. The commission imposed eleven conditions on the approval, including a ban on the removal of sand or gravel off the site. Plaintiff's Exh. 33.

The closing on the sale of the Moses Place property took place on December 11, 1998. Although Zipp had signed the option contract documents in his own name, JFC was the listed purchaser of the property in the closing documents, and title was conveyed to J.F.C. Endeavors, Inc.¹⁴ Neither JFC nor the Stewarts seemed to pay much attention to the fact that Zipp was listed as "Buyer" in the July 1998, Purchase Option. By the date of the closing, a total of $200,000 in non-refundable deposits towards the $1.25 million purchase price had been paid by JFC, part of which JFC had sent directly to Seth Stewart (Plaintiff's Exhs. 29 and 30); JFC secured the special permit in its own name for the 45-unit subdivision from the Farmington Town Plan and Zoning Commission; JFC secured $950,000 in purchase money financing from Farmington Savings Bank; and JFC closed the purchase of 38 Moses Place for $1.25 million from the Stewarts. Zipp did not attend the closing, but a check in the amount of $43,700 was paid to his real estate company, R-Z Realty of Bristol, Inc., from the total commissions paid to McGuire, the selling broker. Plaintiff's Exh. 36.

14 On November 20, 1998, the Stewarts' attorney sent a letter addressed to both Zipp and Carrier, requesting the name of their closing attorney. Plaintiff's Exh. 32.

In July 1999, JFC executed a new listing agreement with McGuire for the homes to be built on Moses Place, indicating a brokerage fee of 4% in house, 5% co-broke. This listing agreement was for the period of July 31, 1999, through December 31, 2002. Plaintiff's Exh. 37. Listing agreements for the Strawfield and Hunters Ridge Subdivisions were also executed by JFC and McGuire. Plaintiff's Exh. 38 and 39. After McGuire's death, JFC terminated its listing agreements through Prestige Properties, resulting in Zipp no longer receiving referral payments for the subdivisions of Strawfield and Hunters Ridge. In a letter dated January 12, 2001, Lori Arute of Prestige Properties notified Zipp that the agreement that had been reached between he and McGuire regarding referral payments (Plaintiff's Exh. 23) had been terminated. Plaintiff's Exh. 43. Although Zipp asked Carrier to continue with Prestige, in May 2001, JFC executed listing agreements for Strawfield and Hunters Ridge with Beryl Marsh through another agency, Realty Executives. Plaintiff's Exh. 40, 41, and 42.

D DEVELOPMENT OF LANGDON'S QUARTERS¹⁵ (MOSES PLACE)

15 Langdon's Quarters is the official name of the development of the parcel known as Moses Place.

JFC had received the special permit for the 45-lot development of Moses Place in 1998, but the final subdivision approval did not occur until 2007. Plaintiff's Exh. 44 and 45. Beginning in 1999 and continuing until 2007, the town of Farmington was rebuilding River Road, a road which runs adjacent to Moses Place and where JFC intended to locate the main entrance to the development. The town had problems with its contractors and other obstacles arose to completing its proposed rebuilding project, and River Road had to be built before JFC could submit a plan of infrastructure. Thus, final approval for the 45-lot cluster subdivision for property located at Moses Place, to be known as Langdon's Quarters, was not given until July 12, 2007. As part of that approval, the town set forth fourteen conditions, one of which was that JFC would "grade and develop the subdivision as a balanced site," which meant that no material such as sand and/or gravel could be moved on or off the site. Plaintiff's Exh. 45, Condition 9.

Zipp and Carrier did not have any communications about Moses Place from 2002 until March 2009. Around that time, Zipp began to see some activity on the site, and he contacted Carrier to remind him of their January 20, 1997, agreement, indicating that he was looking to collect money based upon the agreement. Carrier did not respond. In May 2009, JFC offered for sale to the public the first phase of single-family homes constructed at Langdon's Quarters, with prices initially starting at $419,600. The first closing on a house in Langdon's Quarters came in August 2009.

JFC markets the property at Langdon's Quarters by offering six or seven different models, with varying number of bedrooms, square footage and of course, prices. Plaintiff's Exh. 68 and 81. The prices are based upon standard features, and as reflected in the "Price List," "additional options may not be reflected in pricing," and premiums are added to various home sites. Instead of contracting with an outside real estate agency to sell the homes, JFC hired George Santos for marketing and selling the properties, and working with the buyers, for a salary rather than a percentage based commission. On those occasions when a broker has been used by a buyer to purchase the property, the broker was paid a co-brokerage commission of 2 1/2 percent of the base price.¹⁶ Once the properties began selling, Zipp billed JFC for what he believed was the percentage compensation due to him on the closed sales of homes by JFC in the Langdon's Quarters subdivision. He calculated the compensation at the rate of 2 1/2 percent of the sales price at the time of the closing.

16 A review of the HUD Settlement Statements (Plaintiff Exhs. 50-66) as well as the summary of Langdon's Quarters closed sales by date (Plaintiff's Exh. 67), indicates that on those occasions when a real estate commission was paid to an outside agency, the commission is calculated on the base contract price. The actual sales price shown on the Settlement Statement is a higher amount, and includes the costs of any extras. This procedure was supported by the testimony of both Carrier and Santos.

II DISCUSSION

In his first count, Zipp alleges that the defendant breached the 1997 Agreement. Generally, "[t]he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2007). So the first question the court must address is whether the 1997 Agreement was in fact a contract. That is, are the terms sufficient to form a meeting of the minds relative to the terms and conditions for a contract to be formed.

A Is the 1997 Agreement a "meeting of the minds?"

The Plaintiff's claim is that the 1997 Agreement constituted an enforceable contract, drawn up by a real estate attorney for JFC, executed by both parties, witnessed and notarized, and which set forth the terms and conditions by which Zipp would assign his rights to the Option to Purchase to JFC. In return, he was to receive from JFC: (1) reimbursement of any deposit monies Zipp had provided to the Stewarts; (2) a percentage commission of between 2 and 2 1/2 "based on the advertised price of a single lot without extras" on the sale of the individual lots in the proposed subdivision; and (3) the first 3,000 cubic yards of sand or gravel material from the property.¹⁷ While Zipp acknowledges that the Agreement "was not a thing of beauty," he argues it sets forth the essential terms of the parties' agreement and their clear intent to reach a binding agreement to assign the purchase contract for which he was to be compensated by Carrier. The defendant argues the Agreement is not an enforceable contract because there was no meeting of the minds regarding the nature of the document, the document on its face is rife with errors as well as bereft of essential terms, and was dependent on the discretionary acts of independent third parties. JFC also argues that the agreement was nothing more than a "mid-course memo reflecting on-going, incomplete negotiations," dependent on information not known at the time of its execution.¹⁸

17 It is undisputed that JFC reimbursed Zipp for all deposit monies paid to the sellers, and, therefore, one aspect of the consideration of the Agreement was performed by JFC.

18 The defendant raises for the first time in his post-trial brief that the 1997 Agreement was a "mid-course memo," but in fact Carrier referred to it as a "concept" and a "listing agreement" in his testimony. He also testified that he was "confused" by the 1997 Agreement, citing his lack of a formal education, and difficulty reading. Most everyone involved in this trial had more formal education than the defendant, but given the interpretations and litigation, etc., it would appear that Carrier is not alone in his characterization of the document as "confusing."

"In order for an enforceable contract to exist, the court must find that the parties' minds had truly met . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make . . . [A]n agreement must be definite and certain as to its terms and requirements." (Citations omitted; internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 302, 912 A.2d 1117 (2007). "Whether the parties intended legally to bind themselves prior to the execution of a formal contract is to be determined from (1) the language used, (2) the circumstances surrounding the transaction, and (3) the purpose that they sought to accomplish. A consideration of these factors enables a court to determine if [an] informal contract . . . is enforceable or merely an intention to negotiate a contract in the future." Fowler v. Weiss, 15 Conn.App. 690, 693, 546 A.2d 321 (1988).

"In the formation of contracts . . . it was long ago settled that secret, subjective intent is immaterial, so that mutual asset is to be judged only by overt acts and words rather than by the hidden, subjective, or secret intention of the parties." 1 S. Williston, Contracts (4th Ed. Lord 2007) § 4.1, p. 325; Rosenblit v. Laschever, 115 Conn.App. 282, 289, 972 A.2d 736 (2009) (citing Ravenswood Constr., LLC v. F.L. Merritt, Inc., 105 Conn.App. 7, 12, 936 A.2d 679 (2007).

"A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms . . . When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact . . ." (Citations omitted; internal quotation marks omitted.) David M. Somers Associates, P.C. v. Busch, 283 Conn. 396, 402-03, 927 A.2d 832 (2007). "Similarly, we accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract . . . Where the language is unambiguous, we must give the contract effect according to its terms . . . Where the language is ambiguous, however, we must construe those ambiguities against the drafter . . .¹⁹ Moreover, in construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous." (Citations omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13-14, 938 A.2d 576 (2008).

19 Although the plaintiff asserts that any ambiguity in the contract should be construed against JFC because its lawyer drew the document, the court will not do so because it appears that both parties directed Attorney Jurkiewicz to draft it, and the plaintiff had as much if not more input into its terms. A review of appellate court decision would indicate that the principle of "contra proferentem" is not applicable in this case. See, David M. Somers Associates, P.C. v. Busch, supra, 283 Conn. 405, n. 10; Sturman v. Socha, 191 Conn. 1, 9, 463 A.2d 527 (1983).

The single document that Zipp and Carrier signed was denominated an "Agreement." Plaintiff's Exh. 11. Its execution was accomplished with the formalities of witnesses and subscription of the parties' signature under oath by an attorney. It identified the parties as "assignor" and "assignee," and recited that its object was to transfer and assign Zipp's purchase rights in 38 Moses Place to JFC, so that JFC could acquire the property and develop a subdivision. The 1997 Agreement also formalized in writing the discussions that had occurred prior to its execution: that JFC would purchase the property, he would develop a subdivision, he would hire a broker to assist with the sale of the "lots," and that Zipp would get a commission on each lot sold.²⁰ Zipp assigned his rights to the 1996 Offer to Purchase to JFC in exchange for getting a commission on each and every lot sold. To think that Zipp would get "zip" for this assignment of his rights is not a reasonable interpretation and renders portions of the agreement meaningless.²¹

20 These discussions support the court's finding that there was a meeting of the minds in order for the 1997 Agreement to constitute an enforceable contract.

21 JFC argues that Zipp received a commission on the sale of the property in the amount of $43,700, which ultimately was "paid" by JFC since JFC paid the $1.25 million purchase price from which the Stewarts paid Zipp the commission. JFC was going to pay the $1.25 million purchase price no matter who was going to get the commission, and to somehow say that JFC paid Zipp the commission is illogical based upon the contract between McGuire and the Stewarts, and who the buyer was is immaterial.

There are several areas where the 1997 Agreement is either silent or potentially ambiguous. When Zipp was to be paid a commission was not expressly set forth as a contract term. The 1997 Agreement did not define the concept of "advertised price of a single lot without extras." And the most obvious ambiguity is the interaction between paragraphs 4, 5 and 7 of the 1997 Agreement, wherein Zipp's commission rate would be linked to the real estate commissions that JFC might be obligated to pay to its listing agent and/or co-brokers. None of these potential ambiguities cause the 1997 Agreement to fail.²² The material terms were that Zipp would assign his interest in the Offer to Purchase to JFC, JFC would develop the property into a "multiple lot subdivision," and Zipp would be paid a commission on the sale of each lot. The parties' intent is clear from the language of the contract itself.

22 See a further discussion of the payment terms infra.

The plaintiff argues that the Agreement provides the essential terms — the parties, the purchase price (reimbursement of deposit monies, future percentage commissions on lot sales, and the first 3000 yards of sand or gravel from the site), and the subject matter, which he defines as the "Option to Purchase 38 Moses Place" between Zipp and the Stewarts. The crux of the defendant's argument relates to the determination of compensation of future percentage commissions based upon the "advertised price of a lot without extras." The defendant asserts that the purchase price term is undetermined because the basis of calculating the payment is vague and indeterminable due to the absence of three essential terms: (1) identification of the dollar amount on which the claimed percentage of compensation would be paid, i.e., the "advertised price of a single lot without extras"; (2) the percentage to be paid; and (3) the number of approved residential lots against which the additional consideration would be applied.²³

23 The defendant also argues that the 1997 Agreement is conditioned on unknown future events surrounding the potential purchase, such as zoning approvals, mortgage contingencies, etc., as set forth in the 1996 Option to Purchase, and these contingencies are not sufficiently detailed. These contingencies are not essential terms to the 1997 Agreement that would preclude the formation of an assignment contract to transfer the offer to purchase. See, Willow Funding Co., L.P. v. Grencom Associates, 63 Conn.App. 832, 843-44, 779 A.2d 174 (2001).

As with all essential terms, the purchase price may be shown "either by direct statement or by reference therein to some other writing or thing certain." Garre v. Geryk, 145 Conn. 669, 673, 145 A.2d 829 (1958); see also Montanaro v. Pandolfini, 148 Conn. 153, 168 A.2d 550 (1961); Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91 0117891 (December 1, 1993); R. Powell, Powell on Real Property (2010) § 81.01(1)(d) ("A statement of price is sufficient to satisfy the statute of frauds even though it is not specifically stated, as long as the method of ascertaining the price is set out with certainty").

"All relevant evidence is admissible on the issue of contract interpretation, and any determination of the meaning or ambiguity should only be made in the light of the relevant evidence of the situation and relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties. The only limitation is that the asserted meaning must be one to which the language of the writing read in context, is reasonably susceptible in light of all of the evidence introduced. The operative question becomes whether parol evidence is offered to contradict the writing or to aid in its interpretation.

"The evidence admitted . . . was not used to vary the terms of the contract, but to ascertain the meaning of the terms. The evidence was used to aid in the interpretation of the contract and to determine the intent of the parties. The parol evidence rule does not prevent the introduction of evidence to show the facts and circumstances existing at the time of execution . . . and parol evidence is admissible to explain an ambiguity in a contract or to prove a collateral oral agreement that does not vary the terms of the contract. The parol evidence rule, therefore, should not have been invoked in this case to prevent the consideration and utilization of the evidence." (Emphasis added.) (Citations omitted; internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn.App. 712, 729-30, 682 A.2d 1006, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).²⁴

24 Foley dealt with the sale of a business and property on which the business operated. The contract specified that the business and a 3.74-acre parcel that the business sat upon would be transferred to the buyer. The tract of land, however, was in violation of the town's zoning requirements for the operation of the business. The parcel specified in the contract would make it impossible to operate the business, and therefore created the question of fact whether the parties intended to contract for the sale on 3.74 acres or the sale of an operable business. The court found that it was appropriate for the finder of fact to consider evidence outside the four comers of the contract in determining the intent of the parties. Both parties offered parol evidence to aid in interpreting exactly what real estate was contemplated to be included in the option to purchase. The court found that because the contract involved an interest in land, the statute of frauds applied in the case, and "[e]xtrinsic oral evidence was admitted to aid in the interpretation of the contract," without error. Id., 735.

The fact that the eventual "advertised price" was unknown to the parties at the time the contract was formed is inapposite. Wieneke Properties, Inc. v. Thiessen, 94 Or.App. 306, 310, 765 P.2d 815 (1989) (fee agreement states that plaintiff will receive commission of six percent of selling price. "Defendants argue that the fee agreement does not comply [with the statute of frauds], because it does not state with `reasonable certainty' the amount of Plaintiff's commission . . . We conclude that the fee agreement states the amount of the commission with `reasonable certainty.' The [trial] court correctly found that the commission is six percent of the final sales price").

To interpret the phrase, "advertised price of lot without extras," the court looks to the phrase based upon the entire agreement as well as the evidence at trial. It is also generally held that parol evidence is admissible to explain the meaning of trade or technical terms in a memorandum subject to the statute of frauds. 10 S. Williston, supra, § 29.8, p. 474-76.

JFC was a developer and builder of residential homes. JFC always intended to acquire this land, secure subdivision approval, and build and sell homes in an improved subdivision. The references in the agreement to "extras" and to completion of a "model" would make no sense if the term "lot" meant unimproved lots.²⁵ Both Zipp and Carrier gave cogent and similar explanations of the word "extras" in the context of building and contracting for construction of a home. Both parties were unquestionably aware at the time of contracting of these common "trade usage" terms, and there was no misunderstanding between the two of them as to what was meant. By qualifying the concept of an "advertised" price with the phrase "without extras," a fair construction of the words they used is that they were referring to the base contract sales price for an improved lot, constructed based on standard specifications, before the addition of "extras."²⁶

25 Although Carrier testified at trial that "lot means a lot," his testimony was inconsistent with his deposition testimony where he stated, "I think he means a home — it means a home . . ." He also stated that "extras" referred to the dollar amount of buyer additions to the base sales price for the model chosen, which was the amount shown on the purchase and sales agreement. "The contract price is what we advertise and someone come in and buy."

26 By analogy, the court cites Dow Condon v. Garden M. St., Superior Court, judicial district of Hartford, CV 08 5020258 (July 15, 2009), an action to recover damages for a breach of contract regarding the payment of a broker's commission pursuant to an exclusive listing agreement. Although the listing agreement is governed by General Statutes § 20-325a, the claim was that the listing agreement was not enforceable because the purchase price set forth in the agreement was "TBD," and therefore not in compliance with § 20-325a(b)(4) which requires that the listing agreement "contain the conditions of such contract or authorization." The court found that leaving the price to be determined "made economic sense. It was not necessary for the listing agreement to specify the specific price in order to state the conditions of [the] contract or authorization."

The court concludes that the "advertised price of a single lot without extras" means the based price as advertised in JFC's price lists, without the inclusion of any extras. This amount is the price upon which the purchase and sales contract agreement is established.

Having established the mechanism for determining the price upon which the commission is based, the court will examine the Agreement to see if the percentage of the commission has been specified. In examining paragraphs 4, 5 and 7 of the Agreement, whether Zipp would receive a 2 1/2 percentage fee or the minimum 2 percentage fee on lots sold in the subdivision as compensation for his assignment depended upon the percentage total commission JFC had to pay to real estate brokers at future lot closings. Both of the percentages set forth were directly linked to the percentages JFC would pay in situations where there was one broker, or a co-broker scenario. Although the Agreement anticipated that ERA Lindquist would be the initial broker, the Agreement also contemplated JFC engaging a different listing agent for the sale of the improved lots in the subdivision on the same or similar terms. As the evidence indicated, the broker with whom Carrier was negotiating was McGuire, who left ERA Lindquist some time prior to July 1998. What was contemplated was that the "maximum commission including the commission to the Assignor that the Assignee [would pay] is 5 1/2 percent when the listing agent is also the selling agent and 7 percent when it is a co-broker situation." (Emphasis added.) Plaintiff's Exh. 11, ¶ 7.²⁷ Whether the broker was ERA Lindquist, or Prestige Properties, or some other broker chosen by Carrier, Zipp was to receive a commission of between 2 and 2 1/2 percent depending on the amount charged by the listing broker.

27 The defendant asks the court to "take judicial notice" of adjudicative facts concerning real estate brokerage commission rates and median priced homes, and applying those to the paragraphs 4, 5, and 7, which it argues would, "in today's market, yield absurd results." The court in no way relies on any of these "facts," as to do so would be improper, and is not supported by the evidence adduced at trial. See, Connecticut Code of Evidence §§ 2-1 and 2-2; Drabik v. Town of East Lyme, 234 Conn. 390, 397-98, 662 A.2d 118 (1995). This argument appears to be no more than an argument that "I agreed to pay too much." The court is not charged with deciding whether Carrier made a "good or bad deal," but whether in fact he made a deal at all.

The number of lots requires no interpretation — it applies to all the lots sold. As to when the compensation is to be paid to Zipp, there is no dispute that these amounts are paid at the time of the closing of the properties, as is the common trade practice and custom. See, Plaintiff's Exhs. 50-66.

The fact that the parties to the contract may not have anticipated some of the developments does not prevent the contract from having been formed; the contract specifically recognized several contingencies regarding the brokers' agreements, etc., and the provisions of the contract addressed those contingencies. The fact that all possible contingencies were not specifically provided for does not defeat the contract. "Under the modern law of contract, if the parties so intend, they may reach a binding agreement even if some of the terms of that agreement are still indefinite . . . As Professor E. Allan Farnsworth has noted, courts increasingly have been willing to flesh out the intended meaning of indefinite contract language by recourse to trade custom, standard usage and past dealings." (Citations omitted.) Willow Funding Co., L.P. v. Grencom Assoc., supra, 63 Conn.App. 843. The fundamental terms, identity of the parties, property subject to the agreement, and price were agreed to or could be determined "from the circumstances surrounding the transaction and the purpose it sought to accomplish." Fowler v. Weiss, supra, 15 Conn.App. 693.

The court finds a meeting of the minds as to the essential terms and requirements of their agreement.

B IS THE 1997 AGREEMENT SUBJECT TO THE STATUTE OF FRAUDS?

JFC claims that the 1997 Agreement is subject to the statute of frauds as it involves an interest in land, and it was, when negotiated, an agreement that could not be performed within one year. Zipp argues the defendant's reliance upon the statute of frauds is misplaced, as the 1997 Agreement was not an agreement for the sale of real property or any interest in real property. The court agrees with JFC.

The statute of frauds requires a written, signed agreement for a person to recover on an "agreement for the sale of real property or any interest in or concerning real property." General Statutes § 52-550 provides in pertinent part: "(a) No civil action may be maintained . . . unless the agreement, or a memorandum of the agreement, is in writing, signed by the party, or the agent of the party, to be charged . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not be to performed within one year from the making thereof."

The Appellate Court has held that: "[o]ption contracts for the purchase of land must . . . satisfy the [statute of frauds.]" Battalino v. Van Patten, 100 Conn.App. 155, 164, 917 A.2d 595, cert. denied, 282 Conn. 924, 925 A.2d 1102 (2007); Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 460 A.2d 1297 (1983). Neither party has furnished the court with any authority as to whether an assignment of an option to purchase is subject to the statute of frauds.

"Any contract whose purpose is to transfer to one of the parties an interest in land for a price paid or to be paid to the other party is within the Statute." 9 S. Williston, supra, § 25.1, p. 533-35. "It is immaterial that the conveyance is not to be made directly from one party to the contract to the other. A contract to convey to or purchase from a third person is within the Statute." Id., § 25.3, p. 544; Outback Contracting v. Stone Southwest, 167 Or.App. 98, 1 P.3rd 469 (2000). "The policy of the law requires that everything which affects the title to real estate shall be in writing, and that nothing shall be left to the frailty of human memory or as a temptation to perjury." Id., § 25.6, p. 559.

The plaintiff argues that the agreement which underlies his breach of contract claim was not an agreement for the sale of real property or any interest in the real property, and points to Pagano v. Ippoliti, 245 Conn. 640, 646-47, 716 A.2d 848 (1998), which held that if the promise sued upon is "for the recovery of money and not for the recovery of real estate," it does not involve an interest in land and therefore, is not within the statute of frauds. However, in Pagano, the plaintiff was seeking the enforcement of an oral agreement which gave employees a share of profits to be generated by the employer's land development, and was only concerned with a financial interest in profits of the sale of land owned outright by the employer, rather than any interest in the land itself.²⁸

28 The plaintiff also cites the case of BJRM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 154-55 n. 10, 917 A.2d 605 (2007), as a case addressing the statute of frauds in the context of an assignment of real estate purchase contract in which the court held the statute is inapplicable. The court did not directly address this issue, but instead only noted the argument set forth by the defendant that the agreement violated the statute of frauds because the parties were not identified to a reasonable certainty. The court never made any findings regarding whether the agreement was or was not subject to the statute of frauds.

The plaintiff correctly points out that the majority of the cases cited by the defendant involve the attempted enforcement of real estate contracts or lease options to purchase property between the contracting parties on a sale of land. See SS-II, LLC v. Bridge Street Assocs., 293 Conn. 287, 294, 977 A.2d 189 (2009) (suit for specific performance of an option to purchase property under the terms of a commercial lease agreement between the parties); Lynch v. Davis, 181 Conn. 434, 438, 435 A.2d 977 (1980) (declaratory judgment on bond for deed and real estate purchase contract between buyer and seller); Sullivan v. Ladden, 101 Conn. 166, 125 A.2d 250, (1924) (suit for specific performance on written agreement to sell land); Carta v. Marino, 13 Conn.App. 677, 538 A.2d 1091 (1988) (suit by prospective buyer against seller for failure to convey real property). Zipp argues that what is at issue here is enforcement of compensation under an assignment agreement, not a transfer of real property or an interest in land, and therefore, the statute of frauds is not applicable.²⁹

29 The court notes that in our sister state of Maine, the court held that an assignment of a property right and option may itself be oral. "There is no prohibition of the assignment of option contracts for the purchase of land; they are subject to the general principles of assignability that govern all contractual rights. Restatement (Second) of Contracts § 320 (1981). [The Maine Statute of Frauds] governs all contracts for the sale of lands . . . or of any interest in or concerning them . . . An option contract of land is nothing more than an irrevocable and continuing offer to sell, and conveys no interest in land to the optionee, but vests in him only a right in personam to buy at his election. At best it is but an irrevocable right or privilege of purchase and does not come within the statute of frauds." DiPietro v. Boynton, 628 A.2d 1019, 1023 (Maine, 1993).

Because an option contract to purchase land is subject to the statute of frauds, it would logically follow that an assignment of that option would also be subject to the same application of the statute. The consideration for that assignment, or in this case, the method of compensation, is only one part of that Agreement. The Agreement dealt with the purchase and sale of an interest in real estate, namely Zipp's contract right to purchase the Moses Place property.³⁰ The court concludes that the Agreement is subject to the statute of frauds.

30 If a contract includes any provision that is subject to the statute of frauds, the entire contract is. 73 Am.Jur.2d Statute of Frauds § 437 (2d Ed. 2001 and 2010 Sup.).

C Does it satisfy the Statute of Frauds?

"The statute of frauds requires that the essential terms and not every term of a contract be set forth therein. The essential provisions of a contract are the purchase price, the parties, and the subject matter for sale. In order to be in compliance with the statute of frauds, therefore, an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof." SS-II, LLC v. Bridge Street Associates, supra, CT Page 7389 293 Conn. 294.

An option to purchase requires the same degree of definiteness as a general contract for the sale of real property which includes the parties, a description of the subject property, and the terms of payment, including a basis for determining the purchase price. Bayer v. Showmotion, Inc., 292 Conn. 381, 973 A.2d 1229 (2009). "Under established principles of contract law, an agreement must be definite and certain as to its terms and requirements. Parties, however, may form a binding contract even if some nonessential terms of their agreement are indefinite or left to further negotiations . . . [W]e agree with the weight of authority that this rule applies with equal vigor where a party exercises an option." (Citations omitted; internal quotation marks omitted.) Id., 411-12.

The court has previously found that there was a meeting of the minds between the parties, sufficient to constitute an enforceable contract. The defendant argues that, as in the case of SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 977 A.2d 189 (2009), the Agreement prevents recovery because the essential terms are not sufficiently determined. The court disagrees. In SS-II, the plaintiff brought an action seeking specific performance of an option to purchase contract in the parties' commercial lease. An essential term, the price, was not defined, could not be reasonably determined, and did not guarantee that the plaintiff would be able to purchase the property due to unknown conditions. Adjustments to the price would be based on environmental factors that were to be "mutually determined" by the parties, however, when that adjustment was to take place, and how much of an adjustment was not stated in the contract. Id. Here, by reference to the language of the Agreement, trade custom and usuage, course of dealings between the parties, and the contradicted testimony of the parties, there is no dispute as to the meaning of the terms of the Agreement.

The court disagrees with the defendant's argument that the purchase price term is too indefinite to satisfy the statute of frauds because there is a method of ascertaining the price sufficient in the agreement. The court, therefore, finds that the agreement satisfies the statute of frauds.

D Part performance

Even if the contract did not satisfy the statute of frauds, the court would find that the statute of frauds cannot be used as a defense by JFC because part performance by Zipp takes it out of the statute of frauds. "Acts on the part of the promisee may be sufficient to take a contract out of the statute [of frauds] if they are such as clearly refer to some contract in relation to the matter in dispute . . . [T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties . . . The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute." (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., supra, 99 Conn.App. 306; see also Breen v. Phelps, 186 Conn. 86, 94, 439 A.2d 1066 (1982).

"The doctrine of part performance operates on the theory of estoppel, particularly estoppel by conduct, to assert the statute." 10 S. Williston, supra, § 28.2, p. 266. "Although [the Supreme Court] on occasion has used the terms interchangeably, we have never intended that the doctrine of equitable estoppel and the doctrine of part performance operate as independent exceptions to the statute of frauds . . .³¹ Rather, part performance is an essential element of the estoppel exception to the statute of frauds . . . Indeed our review of cases since the [mid-1800s] reveals no instance in which this court has concluded that a party was estopped from asserting the statute of frauds without evidence of part performance. We recognize that some other jurisdictions apply the doctrine of equitable estoppel even in the absence of part performance or when evidence of part performance may be insufficient . . . In our view, however, this approach is unwise when an independent cause of action or other remedial measures may be available to address such conduct . . ." Glazer v. Dress Barn, Inc., 274 Conn. 33, 63-65, 873 A.2d 929 (2005).

31 Although many jurisdictions adhere to the doctrine that the part performance rule is an equitable doctrine and thus has no application only where relief sought is money damages rather than equitable relief (See, 10 S. Williston, supra, § 28.4, p. 290-94), Glazer found this distinction no longer warranted with the merger of actions in law and equity. Glazer v. Dress Barn, Inc., supra, 274 Conn. 63, n. 25. citing Wolfe v. Wallingford Bank Trust Co., 124 Conn. 507, 516, 1 A.2d 146 (1938) (plaintiff would have been entitled to the same relief under either estoppel or part performance and required part performance as a necessary element when applying equitable estoppel.

"[W]hen estoppel is applied to bar a party from asserting the statute of frauds . . . we require that the party seeking to avoid the statute must demonstrate acts that constitute part performance of the contract . . . Specifically, [t]he acts of part performance . . . must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties . . . The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute.

"Thus in sum, the elements required for part performance are: (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract; (2) knowledge or assent to the party's actions in reliance on the contract; and (3) acts that unmistakably point to the contract . . . Under this test, two separate but related criteria are met that warrant precluding a party from asserting the statute of frauds . . . First, part performance satisfies the evidentiary function of the statute of frauds by providing proof of the contract itself . . . Second, the inducement of reliance on the oral agreement implicates the equitable principle underlying estoppel because repudiation of the contract by the other party would amount to the perpetration of a fraud." (Citations omitted; internal quotation marks omitted.) Id., 60-63.

The parties' conduct following the execution of the 1997 Agreement is sufficient to establish part performance. Zipp assigned his rights under the Offer to Purchase to JFC as of January 20, 1997, and JFC ultimately purchased the property in 1998 in its name. Zipp's contractual obligations under the Agreement were precisely that — to assign whatever rights he had under the Option to Purchase to Carrier. He accomplished that. Even after Zipp assigned his rights, JFC continued to instruct Zipp to execute contract extensions and amendments with the Stewarts in Zipp's own name, and to negotiate for additional extensions and terms. When any extension required additional deposit monies, or payment of taxes — as the extensions did — if Zipp made the additional deposit, he was always reimbursed for those deposits by JFC, as called for in the Agreement.

In July 1997, and again in August 1998, additional deposit monies were provided to the Stewarts directly by JFC. Carrier's own memoranda of July 24, 1998 to Zipp, McGuire and Attorney Burns demonstrate that JFC acting through Carrier was actively calling the shots on the negotiation of an extension or amendment of the property purchase from the Stewarts. Plaintiff's Exhs. 25 26. Carrier was confident that JFC would consummate the purchase and noted: "Now that we are this close to [zoning] approval (four months maximum), I really want to hang on to it [sic] the property." Plaintiff's Exh. 26. The Farmington Town Plan and Zoning Commission on November 23, 1998, issued zoning approval to JFC, granting the application for a 45-unit cluster development at 38 Moses Place. Plaintiff's Exh. 33. All of these subsequent acts and JFC's ultimate acquisition of the Moses Place property in December 1998, without ever having signed a purchase agreement with the Stewarts would make no sense if an agreement had not been reached between Zipp and JFC in January 1997, assigning the Offer to Purchase to JFC. Most importantly, Zipp participated in and allowed JFC to become the owner of Moses Place, thereby losing any ability he had to directly profit from the development of the parcel. Clearly the actions of the parties constituted part performance that was sufficient to remove the Agreement from the statute of frauds and to preclude the defendant from raising it as a defense. It would be grossly inequitable to permit JFC to reap all of the benefits of the development without payment to Zipp of the compensation he bargained for.

The court has previously found that there was a meeting of the minds between the parties, enough to constitute an enforceable contract. Again, this is distinguishable from the case of SS-II, LLC v. Bridge Street Associates, supra, 293 Conn. 287, where the trial court found that the option to purchase contract failed to set a definite price term, and therefore, violated the statute of frauds. Partial performance did not excuse compliance with the statute of frauds, because the option to purchase did not evince a meeting of the minds regarding the purchase price of the property because that price could not be reasonably determined and did not guarantee that the plaintiff would be able to purchase the property. The court held that part performance could not provide a legal remedy for the lack of an agreement in the first instance. Id., 297.

"The doctrine of part performance requires conduct that is referable to and consistent with [an] oral agreement between the parties. In the absence of an underlying agreement, there is no basis for finding that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement . . ." Id., 298. Here, Zipp permitted JFC to own the land fully expecting that he would be paid the commission provided for in the Agreement.

Having previously found there to be a meeting of the minds of the parties to support an enforceable contract, Zipp's part performance would provide him with a legal remedy even if the defendant prevailed on its argument that the Agreement is deficient or does not satisfy the statute of frauds.

III DEFENSES A Condition Precedent

The defendant argues that because JFC did not engage ERA Lindquist Realty as the listing agent at the commission rates specified in paragraph 4 of the 1997 Agreement, an express condition of the Agreement was not fulfilled, and that its non-occurrence excused JFC from performance of any obligations to Zipp. Thus, Zipp cannot recover a commission under paragraph 5 because an express condition of the Agreement did not occur.

"A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance." Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990); Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951). "A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due." 2 Restatement (Second), Contracts, § 224. "Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract and read in light of the circumstances surrounding the execution of the instrument." (Internal quotation marks omitted.) Gingras v. Avery, 90 Conn.App. 585, 590, 878 A.2d 404 (2005).

The defendant's argument is not persuasive. Based upon construction of the language of the 1997 Agreement as a whole, the engagement of ERA Lindquist or another broker on the terms in paragraph 4 was not a condition precedent. JFC had the ability to change listing brokers under paragraph 7 of the Agreement, and even contemplated a proportional reduction in Zipp's commission percentage if the broker's terms varied from those percentages set forth in paragraph 4. Furthermore, the performance or satisfaction of the condition of engaging ERA Lindquist was entirely within JFC's control and not Zipp's control. "Where a promisor prevents, hinders or renders impossible the occurrence of a condition precedent to his or her promise to perform, or to the performance of a return promise, the promisor is not relieved of the obligation to perform, and may not legally terminate the contract for non-performance. Furthermore, in such a case, the promisor may not invoke the other party's nonperformance as a defense if sued upon by the contract. In short, under the doctrine of prevention, where a party to the contract is the cause of the failure of the performance of the obligation due him or her, that party cannot in any way take advantage of that failure . . ." Powell v. Spruce Peak Realty LLC, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 095006181 (Sept. 17, 2009) (citing 13 S. Williston, Contracts (4th Ed. 2000) § 39:3, p. 516-22.)

In July 1996, when this deal was being put together, Rosemary McGuire was working at ERA Lindquist. She was the original listing agent for the initial sale of the Moses property by the Stewarts. When she was negotiating the 1996 Option to Purchase, the intention was that Zipp would obtain the Option to Purchase Moses Place, JFC would then buy the property and develop it, and McGuire would list the finished lots for sale to the public. The 1997 Agreement was drafted with that intention in mind, with the additional piece added that Zipp would be getting a percentage commission as well. When JFC purchased the property in 1998, McGuire was no longer at ERA Lindquist, but had changed agencies and was associated with Prestige Properties. JFC made no efforts to contract with ERA Lindquist, since McGuire, an integral part of the entire negotiations from August 1996, forward, was no longer there. So JFC contracted with McGuire and Prestige Property in July 1998 for the listing. Plaintiff's Exh. 23.

No listing broker or real estate broker was a party to this Agreement, and JFC had no existing listing contract with ERA Lindquist or with any real estate broker setting forth the commission rates in paragraph 4. JFC could not control whether ERA Lindquist or any other broker would accept the percentage rates for commissions in paragraph 4 at the time Zipp and JFC entered into the 1997 Agreement. However, paragraph 7 contemplates a situation wherein a broker would not accept the commission rates provided for, and states: "Thus, if the new broker requires a higher commission then the Assignee [Zipp] (sic) will have to accept a commission proportionally lower to keep it under the limits set forth but in no case less then (sic) 2%." Plaintiff's Exh. 11, ¶ 7.

The parties' intent here is clear enough based on their situation and circumstances. It was not so much of a question of "who" the listing broker might be, as it was "how much" JFC might be compelled to pay for total commissions on the individual lost sales. Whether Zipp would receive a 2 1/2% fee or the minimum 2% fee on lot sales in the subdivision as compensation for his assignment depended upon what JFC had to pay as commission at future lot closings to real estate brokers. Just because the formula was a convoluted one does not invalidate it, and JFC cannot use this as an excuse not to perform.

B Superseding Agreement

When the final extension date of July 31, 1998, to the 1996 Option to Purchase was approaching and JFC was still unable to close on the Moses Place property, the Stewarts did not want to extend the purchase agreement any further. JFC at this point did not have either its zoning approval or a special permit or its financing in place and could not have closed by the July 31, 1998, date. After negotiations with Carrier and the Stewarts' attorney, an agreement was reached to extend the closing date, as well as to modify the purchase price.

This 1998 Option to Purchase was signed by Zipp and the Stewarts.³² JFC argues that because this agreement contained a merger clause, it voided the 1996 Option to Purchase and therefore makes the 1997 Agreement also void. The argument is unpersuasive and contrary to the evidence.

32 JFC's argument that Zipp was "hedging his bets" or attempting to buy Moses Place in 1998 in his own name is refuted by all the evidence of record.

The 1998 Option to Purchase contained the following clause: "This Option contains the entire agreement between Buyer and Seller concerning this transaction, and supersedes any and all previous written or oral agreements concerning the property." Plaintiff's Exh. 27 and 28, ¶ 12.³³

33 As noted previously, Plaintiff's Exh. 27 was only signed by Zipp, and provided for a broker commission to Lindquist Realty, while Plaintiff's Exh. 28 was only signed by one of the Stewarts and provided for a broker commission to Prestige Properties. Although the plaintiff in his reply brief appears to take the position that the different versions of the July 1998 Option never created a single, binding contract, this is the first time he has raised this argument as to its validity. In any event, given the court's ruling on this issue, this question does not need to be addressed.

While the defendant is correct in the law regarding the insertion of a merger clause in an agreement as evidence of an intent to create a fully integrated agreement, and the court's inability to add additional terms to the contract; See, Tallmadge Brothers, Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 503-05 (2000); Lux v. Environmental Warranty, Inc., 59 Conn.App. 26, 33 n. 8 (2000); there is no evidence to suggest that the subsequent Option to Purchase was meant to negate or modify the 1997 Agreement between Zipp and JFC. "Parties may alter any term or an existing contract by entering into a subsequent contract . . . The contract as modified becomes a new contract between the parties. The meaning to be given subsequent agreements . . . depends on the intention of the parties." Association Resources, Inc. v. Wall, 298 Conn. 145, 2 A.3d 873 (2010) (court rejected special defense that merger clause of later agreement was intended to supersede, negate or modify parties' prior agreement on which Plaintiff's claim was based) (citing Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 145, 709 A.2d 1075 (1998) (rejecting contract modification claim because "the language of the 1990 settlement agreement did not . . . supersede or extinguish the warranty obligations contained in the 1987 purchase agreement").

Further, Zipp and JFC, by their own conduct, acknowledged the viability of the 1997 Agreement subsequent to the 1998 Option to Purchase being executed. Carrier testified that he discussed the financial aspects of the July 1998, Option with Zipp, discussed that Zipp should sign it, and acknowledged its financial terms were consistent with his own July 24, 1998 memoranda and proposal. Plaintiff's Exhs. 24 25. Zipp dropped off a copy of the proposed 1998 Option to JFC's attorney; he spoke to Carrier to get authority to sign it in his name; and he never intended to consummate the property purchase with the Stewarts in his own name.

The evidence establishes that JFC fully intended to carry out the terms of the 1997 Agreement between it and Zipp even after the 1998 Option was executed. Carrier forwarded the additional deposits to the sellers, secured a special permit in the name of JFC for a 45-unit subdivision, secured purchase money financing, and the ultimate act — closed the purchase of 38 Moses Place for $1.25 million from the Stewarts on December 11, 1998. To argue that the 1998 Option to Purchase somehow released any obligation that Zipp had under the assignment is preposterous. No reasonable person could conclude that after Zipp entered into the second option to purchase agreement that he would be free to buy the property in his own name or assign the option to a third party. JFC would have surely had a viable cause of action against Zipp.

C Statute of Limitations

Section 52-576 of the Connecticut General Statutes concerns the statute of limitations on written contracts. It provides in pertinent part that: "No action . . . on any simple or implied contract or on any contract in writing, shall be brought but within six years after the right of action accrues." JFC contends that, if the 1997 Agreement was an enforceable contract, the breach of that contract occurred with Zipp was notified on January 12, 2001, that Prestige Realty's listing agreement with JFC was terminated.

"The true test [for accrual] is to establish the time when the plaintiff first could have successfully maintained an action." (Internal quotation marks omitted.) Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 609, 767 A.2d 1202 (2002); Wynn v. Metropolitan Property Casualty Ins. Co., 30 Conn.App. 803, 808, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994). "[A]n action cannot be maintained until a right of action is complete and hence, the statute of limitations cannot run before that time." Gaylord Hospital v. Massaro, 5 Conn.App. 465, 467, 499 A.2d 1162 (1986) . . ."In an action for breach of contract, the cause of action is complete upon the occurrence of the breach, that is, when the injury has been inflicted." Id.

Zipp's right to a percentage commission from JFC under the 1997 Agreement did not accrue until JFC began selling improved lots in the subdivision at Moses Place. The January 12, 2001, letter from the broker/owner of Prestige Properties was notification that the Prestige's agreement with JFC "for the properties located on Moses Place, Railroad Avenue, and Strawfield [was] not being continued." Plaintiff's Exh. 43. As a result, Zipp would not be receiving the referral commissions from Prestige Properties per his agreement between Zipp and McGuire. Plaintiff's Exh. 24. That notification had nothing to do with the breach of the 1997 Agreement between Zipp and JFC. This defense fails.

D Legal Impracticability

The 1997 Agreement provided that JFC would furnish the first 3000 yards of material, sand and gravel, from the site to Zipp to compensate him in part for his assignment of his purchase contract rights. At the November 17, 1998, meeting for subdivision approval, the Farmington Town Plan and Zoning Commission made as a condition of its approval that "[t]here shall be no fill material brought onto or taken off the site." Plaintiff's Exh. 33. This prohibition, the defendant argues, made it impossible for JFC to remove any material from the property. Zipp does not argue that the approval called for a "balanced site,"³⁴ but contends that JFC could have sought permission to export suitable material, or sought relief from or alteration of the grading stipulation in order to fulfill its contractual obligations.

34 The common trade usage in referencing such a condition is a "balanced site," which is defined as prohibiting the import or export of fill from a development.

"Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary." 2 Restatement (Second) Contracts, § 261, p. 313 (1979). See West Haven Sound Dev. Corp. v. West Haven, 201 Conn. 305, 313 (1986) (citing cases recognizing doctrines of impossibility and impracticability).

"The impracticability doctrine represents an exception to the accepted maxim of pacta sunt servanda, in recognition of the fact that certain conditions cannot be met because of unforeseen occurrences. A party claiming that a supervening event or contingency has prevented, and thus excused, a promised performance must demonstrate that: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not assumed a greater obligation than the law imposes." Dills v. Enfield, 210 Conn. 705, 717, 557 A.2d 517 (1989).

There was no evidence presented that JFC could have sought relief, or that he was able to obtain this sand and/or gravel from another site, or any evidence as to the value of the commodity in order to compensate Zipp for JFC's inability to comply with this provision of the 1997 Agreement. When the parties entered into the contract, it was assumed that removing sand and gravel would be permissible. Any duty that JFC had to deliver the sand and/or gravel to Zipp from the Moses Place property was made impossible by the condition set forth in the subdivision approval. Thus, the court finds that the defense of impracticability is appropriate to Zipp's claim for the sand and/or gravel.

IV SECOND COUNT OF UNJUST ENRICMENT

The second count is based on unjust enrichment and incorporates essentially the same factual allegations on which Zipp bases his breach of contract claim in the first count. JFC argues that this claim is legally insufficient because a party may assert an unjust enrichment claim as an alternative to a breach of contract claim, but in doing so, cannot incorporate the allegations of an express contract.³⁵

35 This claim is better suited for a pre-trial motion to strike based upon form or legal sufficiency of the pleadings, rather than post-trial. See, Practice Book § 10-39.

"Parties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims . . . Under this typical belt and suspenders approach, the equitable claim is brought in an alternative count to ensure that the plaintiff receives some recovery in the event that the contract claim fails." (Citations omitted; internal quotation marks omitted.) Stein v. Horton, 99 Conn.App. 477, 485, 914 A.2d 606 (2007).

Because the court has found in favor of the plaintiff on the breach of contract count, the plaintiff is entitled to only one single measure of damages arising out of these alternative counts. Therefore, the court finds in favor of the defendant on count two.

V DAMAGES

Because the court has found that the defendant has breached the 1997 Agreement by not paying the plaintiff the commissions due as provided, the court will address the issue of damages.³⁶

36 "[T]he elements of a cause of action founded on breach of contract [are] (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party and (4) damages . . . [and] causation." (Citation omitted; internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

"The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as he would have been in had the contract been performed. Damages for breach of contract are to be determined as of the time of the occurrence of the breach." (Citations omitted; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988). "As a general rule, contract damages are awarded to place the injured party in the same position as he would have been in had the contract been fully performed." (Internal quotation marks omitted.) Fuessenich v. DiNardo, 195 Conn. 144, 153, 487 A.2d 514 (1985). "Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Dent v. Lovejoy, 85 Conn.App. 455, 470, 857 A.2d 952 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005), quoting Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689-90, 697 A.2d 1137 (1997). "Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate." Id., p. 471. "[C]ontract damages are ordinarily based on the injured party's expectation interest and are intended to give him the benefit of the bargain by awarding a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed." (Citation omitted; internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn.App. 601, 749 A.2d 1219 (2000).

On his breach of contract claim, Zipp claims damages for failure of JFC to pay him a percentage commission on sales of individual lots in Langdon's Quarters that have occurred since August 2009, and approximately $15,000 for the value of the 3,000 yards of sand and/or gravel that JFC failed to provide to him.³⁷ He is claiming a commission based upon 2 1/2 percent of $7,992,600 total in contract price for the 17 closed sales of Phase I of the project, for a total of $199,815. For the remaining sales in Langdon's Quarters on the balance of the 45 units whose sales have not yet closed, Zipp suggests two options to the court. One would be to declare that Zipp be due a 2 1/2 percent commission from JFC computed on the buyer's purchase agreement price, prior to the inclusion of extras, payable at each closing, or to treat JFC's repudiation of the 1997 Agreement as a breach of the entire contract and award damages now based on the same commission formula applied against those reasonably anticipated future sales. He asks the court to find an average contract price based upon the sales that have already taken place, and apply the 2 1/2 percent commission on that average price, which would result in additional commissions of $329,107 for the remaining 28 lots.

37 The issue of the sand and gravel is addressed in Part III, D. The court does not recall any evidence submitted as to the value of the sand and gravel.

The defendant argues that Zipp's case fails for lack of proof of damages, and bases his argument on the failure to define the term "advertised price of a single lot without extras." The court has addressed this in Part II, A.

The subdivision Langdon's Quarters is being built in three phases. Phase 1 is complete and JFC is now constructing and marketing Phase 2. Rather than contracting with an independent real estate broker to market and sell homes in Langdon's Quarters to the public, JFC has engaged a salaried real estate broker and employee, George Santos. Santos sells Langdon's Quarters units, and is not paid the traditional percentage-based commission as a listing agent or selling broker, but is instead paid a salary of approximately $70,000 per year by JFC. However, buyer's brokers who bring buyers to a consummated purchase of a home in Langdon's Quarters receive a 2 1/2 percent commission of the contract purchase price at closing. This percentage commission is based upon the advertised price of the home, as set forth in the price lists which are modified from time to time, and as set forth in the purchase and sales agreements, and is not based upon the total purchase price paid at the time of closing, which includes the extras. Plaintiff's Exhs. 50-66, 68 and 81.

Plaintiff's Exh. 67 is a compilation of the 17 closed sales that have occurred as of the date of the trial. It indicates the purchase agreement price, the closing price, and the brokerage paid. The purchase agreement price is in all cases less than the closing price. The broker commission, when paid, is 2 1/2 percent of the purchase agreement price. Plaintiff's Exhs. 50-67.³⁸ The purchase agreement prices indicated also correlate with the various price lists for Phase I, which price lists indicate prices for various models " based on standard features — additional options may not be reflected in pricing." Plaintiff's Exh. 81.

38 For the property 45 Strawfield, the commission is based on 2.449 percent of the higher closing price of $547,471, rather than based on the purchase agreement price of $521,600. Plaintiff's Exh. 53.

The court will calculate the damages for Phase I on the total purchase agreement price of $7,992,600 at the percentage of 2 1/2 percent. This is entirely within the terms and conditions of the 1997 Agreement, and would provide that JFC would in no event be paying a "maximum commission" of 7 percent when there is a "co-broker situation." Even if Santos' annual salary of $70,000 was fully apportioned and applied solely to the sales of Langdon's Quarters, from the date of the first sale on August 31, 2009, to the date of trial, his salary would only amount to less than a 1 percent commission rate. Thus the total commission JFC would be paying would fall below the maximum of 7 percent allowed for in the 1997 Agreement, when combining the total commissions to Zipp, the co-broker, and Santos. The total damages awarded to Zipp for Phase I is $199,815.

Because the remaining lots have not sold, ³⁹ the court must determine the amount of recovery Zipp is entitled to. The court has determined, based upon the evidence presented, that the purchase price listed on the contracts are the same as the advertised price shown in the Price Lists and on the purchase and sales agreements. These figures represent the price of the improved lot, without the addition of any extras. One option the plaintiff asks the court to consider is to calculate an average contract price of $470,153, and award Zipp 2 1/2 percent of $13,164,284, or $329,107.10. The court declines to do so.

39 As of the trial date, there were four purchase contracts in effect for Lots 32, 33, 34, and 37. Plaintiff's Exhs. 71-74.

The second option would be to declare that Zipp be due a 2 1/2 percent commission computed on the buyer's purchase agreement price. JFC sometimes pays a 2 1/2 percent commission to a buyer's broker on the contract price, which price excludes any extras. Plaintiff's Exhs. 50-66. Again, by annualizing Santos' salary, and taking into account any co-broker commission, if any, the total commission JFC would be paying would still fall below the maximum of 7 percent allowed for in the 1997 Agreement.

The court orders that JFC shall pay to Zipp an amount equal to 2 1/2 percent of the price as shown on the buyer's purchase agreement for each of the remaining 28 lots to be sold, which amount shall be paid at the time of the closing of the property.

Interest under General Statutes § 37-3a

The plaintiff is also seeking interest under General Statutes § 37-3a, pursuant to his claims for relief. General Statutes § 37-3a provides, in relevant part, that "interest at the rate of ten percent a year . . . may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable."

"The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted . . . An award of such interest is an equitable determination lying within the trier's sound discretion . . . The determination is one to be made in view of the demands of justice rather than through the application of an arbitrary rule . . . A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated." Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005). "Prejudgment interest pursuant to § 37-3a has been applied to breach of contract claims for liquidated damages, namely, where a party claims that a specified sum under the terms of a contract, or a sum to be determined by the terms of the contract, owed to that party has been detained by another party." Foley v. Huntington, Co., supra, 42 Conn.App. 740.

The court finds that the defendant wrongfully withheld the commissions payable to the plaintiff, which commissions should have been paid by JFC at each closing of sale of the individual improved lots, as is the customary practice as evidenced by the HUD-1 Settlement statements admitted into evidence. JFC has wrongfully withheld these liquidated sums from Zipp from the dates of the closings, and pre-judgment interest under General Statutes § 37-3a at the statutory rate of 10 percent is awarded, to be computed as of the date of each individual closing.

VI CONCLUSION

Accordingly, the court finds in favor of the plaintiff on count one, and in favor of the defendant on count two. Judgment shall enter in accordance with this memorandum.