Opinion
No. CV08-5008894 S
September 28, 2011
MEMORANDUM OF DECISION
The principal issue in this case is whether the plaintiff, Danziger Homes, Inc., had an agreement with the defendant, Julia Wasserman, to obtain subdivision approval from the town of Newtown and develop and build homes on the defendant's property.
This case was initiated on April 14, 2008 in Bridgeport. On January 31, 2011, the case was transferred to Danbury superior court. The operative complaint is dated June 11, 2009 and asserts two causes of action: breach of an oral contact and unjust enrichment or quantum meruit. In her operative answer and special defenses, the defendant denies the essential allegations of the plaintiff's complaint and asserts that the statute of frauds bars the plaintiff's claims.
In the defendant's answer and special defenses, she improperly cites "§ 52-500," rather than "§ 52-550," as the statutory provision for the statute of frauds. The plaintiff does not dispute that this mistake was a typographical error in the defendant's special defense answer, and that the special defense is the statute of frauds. Also, in the defendant's operative answer and special defenses, the defendant asserts that pursuant to § 52-581, the plaintiff's claims are barred by the three-year statute of limitations. The defendant did not brief this special defense and, at argument, abandoned it on the record.
The action was tried to the court on July 12, July 13, and July 19, 2011. The parties filed post-trial briefs on or about August 19, 2011. The court heard argument on August 26, 2011.
FINDINGS OF FACT
Based on the testimony and exhibits presented at trial, the court finds the following facts. The plaintiff is a Connecticut corporation in the business of home construction. Its president is Kim Danziger, who is a builder and developer of residential properties and has been in the business of home construction for 26 years. The plaintiff has built over 200 homes and seven subdivisions.
The defendant is, and has been for many years, a resident of the town of Newtown and owns approximately 110 acres of land there. Danziger met the defendant at a Newtown rotary club event prior to July 2003. At a rotary club function, the defendant told Danziger that she was considering donating a portion of her property to the Audubon Society for conservation purposes. The defendant explained that the Audubon Society would not accept a land donation without a significant endowment of $750,000 to $1 million to support it. The defendant asked Danziger for his opinion "as a friend" about subdividing a portion of her property as building lots in order to generate funds to establish an endowment. Sometime after this conversation, Danziger surveyed the defendant's property and told her that a cluster development would be the best way to proceed to achieve the defendant's goals of subdividing her property for residential lots and preserving a significant amount of the property as open space. Because the town did not have regulations permitting cluster developments, Danziger explained to the defendant that the town would have to adopt a new regulation allowing cluster developments before the subdivision project could be pursued on her property.
On July 2, 2003, the defendant's attorney, Seth O.L. Brody, who has represented the defendant for 40 years, sent the plaintiff a letter which outlined a proposed agreement regarding the subdivision project. The letter provided that if the plaintiff (1) drafted and presented to the town of Newtown planning and zoning commission a new zoning regulation to allow a cluster development on the defendant's property to be accessed from Valley Field Road; and (2) prepared and presented applications to subdivide the defendant's property into three parcels, one for the plaintiff's residence and accompanying buildings, one for the cluster development and one for the remaining land donation, then the defendant would give the plaintiff the right of first negotiation for the construction and development of the cluster development. Brody's July 2 letter also stated that the agreement was conditioned upon the plaintiff submitting proposed cluster regulations and a subdivision application to the town within six months of signing the letter agreement, consummation of a written agreement for the purchase and sale of the cluster zone parcels not later than six months after approval of the regulations and subdivision by the town, and the retention by the defendant of the right to approve or disapprove the configuration of the subdivision, the number of residential lots in the development; the size and design of structures to be built in the cluster development, and the use and other restrictions to be placed on the development. If the requisite approvals by the town were not obtained, the defendant would not be obligated to the plaintiff. The July 2 letter instructed the plaintiff to sign and return it if it accepted the defendant's terms.
The plaintiff rejected the July 2 proposed letter agreement and did not sign or return it to Brody. Instead, after receiving the July 2 letter from Brody, Danziger prepared a response in the form of typed, undated and untitled notes. These notes did not constitute an agreement but rather, reflected the plaintiff's "wish list" or "conceptual outline" for an agreement with the defendant.
Sometime after Brody sent the July 2 letter to the plaintiff, Danziger, his attorney, James Mannion and Brody, held a meeting at Mannion's office. At the meeting, Danziger presented his "conceptual outline" or "wish list" as set forth in his typed notes. In particular, Danziger indicated at the meeting, and his notes reflect, that he agreed with the defendant's proposal to divide the property into three areas, but did not agree with the time frames and did not agree to "negotiate" with the defendant. Danziger's notes reflected the plaintiff's position that any agreement would have to include the following terms: the defendant would (1) establish the number of lots to be developed and their layout; (2) set the selling price of the lot; (3) approve the design of the homes; (4) receive full price for the lot sales after reimbursement for development costs; and (5) agree to mortgage the property to finance the development costs.
Danziger's notes also spelled out the plaintiff's responsibilities as: (1) working with the Newtown planning and zoning commission to write a cluster zoning regulations; (2) preparing and paying for the subdivision application; (3) being reimbursed for the costs of the subdivision application and infrastructure on a preferred basis; (4) developing and paying for the infrastructure of the subdivision; (5) having exclusive rights to market and build homes on the subdivision, and retain all profits for homes. Danziger's notes also included foreseeable consequences that allowed the defendant to sell or transfer lots to "other individuals" and if she did so, the plaintiff would receive 20% of the sale of the lot. If the plaintiff became incapacitated, the agreement would be dissolved and the plaintiff would be reimbursed for costs.
The parties did not reach agreement at the meeting and their discussions remained "open-ended." The parties agreed that the plaintiff's attorney would prepare a written agreement. Neither the plaintiff nor his attorney ever prepared a written proposal or agreement. Mannion has since died.
Even though no written agreement had been executed, Danziger approached the town about amending its regulations to allow for cluster developments and offered to assist town officials in drafting the regulations. The town had been considering adopting cluster regulations for some time prior to Danziger's inquiry. The town declined Danziger's offer to help, stating that it would draft its own regulations. Accordingly, Danziger never submitted a formal application on the defendant's behalf to amend the regulations. On other occasions, town staff sent drafts of the amended regulations to Danziger. On a couple of occasions, Danziger sent drafts of the cluster regulations to Brody. Eventually, on August 30, 2004, the town adopted a zoning regulation to allow cluster developments.
Although Danziger tried to put the parties' agreement in writing and believed a written agreement was preferable, he "could not manage to do so." Danziger testified that the parties reached an oral agreement. However, he could not state precisely when the parties reached the agreement and his testimony on this important point was contradictory. At one point in Danziger's testimony, he stated that the parties reached an agreement at the conclusion of the 2003 meeting. However, he later testified that no agreement was reached at the meeting and that, in fact, matters were left "open-ended." Danziger admitted that the defendant did not agree to all of the items on the plaintiff's wish list, but later described those open-ended issues as "technical." When questioned by the court as to when the oral agreement was reached, Danziger responded that the agreement was reached "sometime in the spring of 2004."
Danziger testified that paragraph 3 of the plaintiff's operative complaint contained all material terms of the parties' oral agreement, except for "minutia." Paragraph 3 provides:
(a) The plaintiff would undertake to have the Newtown zoning regulations and subdivision regulations amended to allow for cluster zoning;
(b) If the plaintiff was successful in causing the Newtown zoning regulations and subdivision regulations to be so amended, the plaintiff would then submit and prosecute a subdivision application for the defendant's land;
(c) If subdivision approval was obtained, the plaintiff would construct subdivision improvements and the defendant would mortgage her land as collateral for financing the plaintiff might take out to finance the construction of the subdivision improvements;
(d) The plaintiff would construct homes on and sell the subdivision lots, except for lots that the defendant might sell to friends, if she desired to do so; and
(e) The proceeds from the sale of the lots with completed houses and/or lots without houses would be distributed as follows.
(i) Out of any proceeds otherwise payable to the defendant, said proceeds would instead be payable to the plaintiff to reimburse the plaintiff for the costs incurred by the plaintiff for the approval of the subdivision and the construction of the subdivision improvements until all of said costs had been reimbursed;
(ii) If a lot was sold by the defendant to a friend rather than the plaintiff constructing a home on it, the plaintiff would receive 20% of the sales price of the lot and, after the reimbursement described in subparagraph (i) had been satisfied, the balance of the sales proceeds from the sale of such lot would be distributed to the defendant;
(iii) In the case of the sale of a lot with a home on it constructed by the plaintiff, after the reimbursement described in subparagraph (i) had been satisfied, 100% value of a lot would be distributed to the defendant upon the closing for the lot with a home on it and balance of proceeds would be distributed to the plaintiff.
The defendant relied on Brody for all legal matters, and Brody believed that a written agreement executed by the parties was a condition of the agreement. In addition, the defendant claims that she did not agree to all of the terms in the complaint and, in particular, she never agreed to mortgage her property to finance the project.
In the fall of 2004, even though no written agreement had been prepared by the plaintiff, the plaintiff hired a civil engineer to prepare subdivision plans for the defendant's property and was charged $10,218.90 for those services. The subdivision plans were reviewed and rejected by the defendant because the plan contained a subdivision with 15 residential lots, which were too many. The defendant was only interested in a subdivision with the fewest number of lots possible to achieve her purposes and in no event did she want a subdivision with more than eight lots.
Danziger explained that the subdivision plans included 15 lots because it was his opinion that the defendant should obtain town approval for the maximum amount of lots possible but the defendant would not have to sell all of the lots. Despite the plaintiff's insistence on this point, it was rejected by the defendant.
During his entire course of dealing with the defendant on the subdivision project, Danziger mistakenly believed that the defendant intended to donate land to the Audubon Society and was pursuing the subdivision of her property to generate $1 million to support that land gift. From the inception of the project, the defendant was consistent in her intention to donate a large parcel of her land as open space for conservation purposes. Although she initially considered a gift to the Audubon Society, she abandoned that gift option in January 2004, when she realized that she was not in a position to establish a significant endowment to support a land donation that the Audubon Society required. The defendant, however, remained resolute in her intention to donate a large portion of her land as open space and continued to search for an acceptable donee. Regardless of who was to be the specific recipient of the land donation, it was the defendant's intent to create and develop the fewest number of residential lots on her property so that she could dedicate as much of her property as possible to open space for conservation purposes.
The defendant was not required to, and did not, inform the plaintiff of her decision to find a different recipient of her land donation.
The plaintiff's motivations for pursing the subdivision project on the defendant's land were, understandably, quite different than the defendant's motivations. While Danziger considered the defendant a friend, his company, the plaintiff was in the business of constructing homes for profit. In the plaintiff's version of the agreement, it would obtain 20% of the lot sales and retain all profits from the sale of the new homes it built on the property. Presumably then, plaintiff hoped to build as many homes as possible on the defendant's property in order to maximize its profits.
In May 2004, the defendant's residence located on the property was destroyed by fire. The defendant hired the plaintiff to construct a new residence on the property and the parties' plans for the cluster subdivision were given a significantly lower priority so that the parties could concentrate on the home construction. The plaintiff began constructing the defendant's residence in late summer of 2004 and completed it the next year.
A dispute arose between the parties with respect to the construction of the defendant's new residence and payments for that work. The parties' relationship was negatively impacted by that dispute. The plaintiff stopped working on the subdivision due to the impasse with the defendant over the dispute regarding the construction of defendant's new home.
On November 15, 2007, the Newtown planning and zoning commission voted to approve a subdivision application for the defendant's property. The approval permitted four residential lots on the defendant's property; one of those lots is the defendant's present residence, one is the location of the defendant's original residence that was destroyed in the fire, and the other two lots are undeveloped new lots that may be developed as residences. The defendant donated 91.530 acres of her property to the town of Newtown to be used for conservation purposes. As of the date of trial, the defendant had not sold any of the lots. The plaintiff hired professionals, other than the plaintiff, to prepare and submit the subdivision plans for the four-lot subdivision and conservation easement to the town. Because of the size of the subdivision and the number of lots, it was not necessary for the defendant to use the new cluster development regulations adopted by the town in 2004.
The plaintiff did not know the defendant had decided to proceed with the subdivision of her property until he read about the town's decision in the newspaper.
ANALYSIS I.
The operative complaint is in two counts and alleges a breach of an oral agreement and unjust enrichment or quantum meruit. The case was tried to the court on these two causes of action only, as well as the defendant's special defenses. No motion to amend the complaint was filed before, during or after the trial. However, for the first time in its post-trial brief and then at argument, the plaintiff interjected a new theory of the case — that the parties were joint venturers. The plaintiff claimed at argument that it produced evidence of this new claim of a joint venture at the trial and that because the defendant failed to object to that evidence, she waived her right to object and the court is free to consider it. The court is not persuaded.
It is well established that the right of a plaintiff to recover at trial is limited by the allegations of the complaint. Journal Publishing Co. v. Hartford Courant, Co., 261 Conn. 673, 686, 804 A.2d 823 (2002); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 823 (1969); Boccanfuso v. Conner, 89 Conn.App. 260, 286-87, 873 A.2d 208 (2005). Any judgment issued by the court should conform to the pleadings, the issues and the prayers for relief. Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977). This rule "maintain[s] regularity in procedure, and it makes for just decisions that the plaintiff should not be allowed to recover for a cause which he has not fairly alleged in his pleadings . . ." (Citation omitted.) Epstein v. M. Blumenthal Co., 114 Conn. 195, 198, 158 A. 234 (1932); Frosch v. Sears, Roebuck Co., 124 Conn. 300, 303, 199 A. 646 (1938).
The plaintiff relies on cases finding that minor variances between allegations in a complaint and proof may be considered by the trier of fact if the opposing party does not object to the evidence at trial. See Winsor v. Hawkins, 130 Conn. 669, 670, 37 A.2d 222 (1944); Sansone v. Bechtel, 180 Conn. 96, 100, 429 A.2d 820 (1980). The plaintiff's reliance on these cases is misplaced.
"A variance is a departure of the proof from the facts as alleged [in the complaint]." Strimiska v. Yates, 158 Conn 179, 183, 257 A.2d 814 (1969). The Supreme Court has held that in cases where the difference between the allegations of a complaint and the proof at trial is so slight and unimportant that the adverse party is not misled, it is generally treated as an immaterial variance. Reciprocal Exchange v. Altherm, Inc., 142 Conn. 545, 552, 115 A.2d 460 (1955). However, where the difference in allegations and proof is so substantial and material that the adverse party is misled by the allegation and would be prejudiced on the merits of the case, it may be held to be a material variance. Id.; Klein v. DeRosa, 137 Conn. 586, 591, 79 A.2d 773 (1951); Rose v. Van Bosch, 119 Conn. 514, 518, 177 A. 565 (1935).
To be material, "a variance must relate to the cause of action alleged . . . [A] variance which alters the basis nature of a complainant's cause of action cannot be condoned . . . The critical inquiry is whether the opposing party was on notice of the variance . . ." (Citations omitted; internal quotation marks omitted.) Michalski v. Hinz, 100 Conn.App. 389, 396, 918 A.2d 964 (2007). "Ordinarily, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and the complaining party, at all times, was in a position to know the true state of the facts." Strimiska v. Yates, supra, 158 Conn. 184.
Here, the plaintiff is not simply trying to assert a minor variance between its complaint and proof at trial, but rather, is attempting to assert an entirely new theory or claim of joint venture that it has not pleaded and that includes additional and different elements. See Doe v. Yale University, 252 Conn. 641, 672-76, 748 A.2d 834 (2000) (a joint venture exists where two or more parties combine their property, money, efforts, skill or knowledge in some common undertaking); see also Electronic Associates, Inc. v. Automatic Equipment Development Corp., 185 Conn. 31, 35, 440 A.2d 249 (1981) (claim of joint venture requires that parties have specific intent to enter into such a venture); Roberts v. Weiner, 137 Conn. 668, 671, 81 A.2d 115 (1951); Lesser v. Smith, 115 Conn. 86, 89, 160 A. 302 (1932); Dolan v. Dolan, 107 Conn. 342, 349, 140 A. 745 (1928).
The plaintiff did not file a motion seeking to amend its complaint before, during or after the trial to include this new claim. See Practice Book § 10-62. There has been no showing by the plaintiff that the defendant had any notice of this claim. Indeed the term "joint venture" was not even raised until after the trial, for the first time, in the defendant's post-trial brief. Accordingly, the court finds that the plaintiff's attempt to interject a new theory or claim is not a minor variance between pleading and proof, but rather is an attempt to interject a new theory into the case. The defendant had no notice of this claim, and she would be prejudiced by its introduction into the case at this late stage in the proceedings, when the case has been tried to conclusion.
The court, therefore, declines to consider the claim of joint venture.
II.
In the plaintiff's first count, it claims that it had an oral agreement with the defendant to construct homes on her property, after cluster regulations and a subdivision plan was adopted, and that the defendant breached that agreement after the plaintiff performed certain of its responsibilities. To prevail on this breach of contract claim, the plaintiff must establish by a preponderance of the evidence that it and the defendant entered into an enforceable oral agreement. "The 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.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780-81, 887 A.2d 420 (2005).
It is well established that "[t]o form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete . . . A contract requires a clear and definite promise . . ." (Citations omitted; internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 627, 760 A.2d 969 (2000). See also Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246-51, 268 A.2d 391 (1970).
Based on this record, the court finds that the plaintiff's breach of contract claim fails on the first element — formation of an agreement — because there was no meeting of the minds or mutual understanding among the parties as to several essential terms and an essential term was left indefinite.
As a fundamental matter, the plaintiff has failed to establish when the parties reached a mutual understanding as to all of the terms the plaintiff claims were contained in the parties' agreement. The testimony on this point presented by the plaintiff's key witness, Danziger, was a moving target. At one point, Danziger, the plaintiff's president and primary negotiator of this project, said that the parties' agreement was finalized at the conclusion of the 2003 meeting, but later he said matters were left open-ended at that meeting. He also testified that the parties finalized their agreement at least six months after the meeting in the spring of 2004. The court finds this to be a significant deficiency in the plaintiff's case. The fact that the plaintiff's primary witness and key negotiator on this project could not specify when the parties reached a mutual understanding on the essential terms of the agreement undermines Danziger's credibility and lends support to the defendant's view that the parties never had a mutual understanding on essential terms.
In addition, the court finds that the parties contemplated and intended that any agreement be in writing. Given the complexity of the project, the significant stakes for both parties, and that both parties were represented by experienced legal counsel, a written agreement would have been preferable. The defendant's attorney, Brody, whom the defendant relied on for all of her legal matters, expressly testified, credibly, that a written agreement was contemplated by the parties at the conclusion of the only formal meeting the parties had on the project, and that the plaintiff's counsel was charged with drafting the agreement at the meeting in the summer of 2003. Brody's testimony on this point was buttressed by his proposed July 2, 2003 letter agreement to the plaintiff which expressly contemplated a written agreement. While the plaintiff rejected the July 2 letter agreement, the fact that the letter contains a provision that the agreement be in writing substantiates Brody's testimony on this issue.
In addition, Brody's testimony that the parties anticipated a written agreement is supported by Danziger's testimony. Danziger agreed that a written agreement was preferable and that he tried to put the agreement in writing, but never managed to do so. Although Danziger did not go so far as to say that a written agreement was a necessary element of any agreement, the court finds that his testimony is consistent with Brody's. The court concludes that a written agreement was an essential term of the parties' understanding, and that no writing was prepared or executed by the parties.
That its attorney later died is not a valid reason for the court to ignore this essential term of a written agreement. Danziger was present at the meeting in the summer of 2003 when the parties agreed to put the agreement in writing, and when the parties agreed that it was the plaintiff's responsibility to do so. The death of the plaintiff's attorney does not eliminate the need for a written agreement or the plaintiff's responsibility to prepare a written agreement. The plaintiff could have hired new counsel or, at a minimum, approached the defendant or Brody to renegotiate the issue of whether a written agreement was necessary and who would be responsible for drafting it.
Another essential term to which there was no meeting of the minds was financing the defendant's property to finance the project. The plaintiff asserts, and Danziger testified, that the defendant agreed to take out a mortgage in the amount of $800,000 on her property in order to finance the construction of the subdivision improvements. Both the defendant and Brody testified, credibly, that the defendant would never agree, and did not agree, to encumber her property in connection with this project.
The court finds that an essential term, from the plaintiff's perspective, was the defendant's agreement to mortgage her property in the amount of $800,000 to pay for the development costs of the project. The parties did not agree on this essential and material term.
Another essential term to which the parties did not come to a mutual understanding was the number of building lots to be developed. The parties approached this issue from very different perspectives and had different motivations. The defendant's decision to subdivide her property was motivated by her intention to donate a large portion of it as open space to be used for conservation purposes. In order to achieve this goal and fund it, the defendant intended to subdivide and develop the fewest number of residential lots on her property so that she could donate and dedicate as much of her property as possible to open space. Indeed, in the end, the defendant donated just over 90 acres of her 110 acres of land to the town of Newtown to be dedicated for conservation, and subdivided only four lots.
The plaintiff, on the other hand, had a different motivation. While, as the defendant's friend, Danziger, wanted to help her with her project, his company was in the business of developing property and constructing residences for profit. The more lots that were developed and homes constructed on the lots, the more the plaintiff stood to gain financially. As a result, the subdivision plans it had produced for the defendant contained 15 lots consuming 30-40% of the defendant's property. The defendant rejected these plans and there was no set of plans created by the plaintiff with fewer lots that was acceptable to the defendant.
In addition, because the number of lots was an essential and material term to the parties' agreement, any agreement would have had to contain a specific number of lots or range of lots. Not only was there no meeting of the minds on this point, but the plaintiff's version of the agreement did not even include a provision for the number of lots. "Under established principles of contract law, an agreement must be definite and certain as to its terms and requirements . . ." (Citations omitted; internal quotation marks omitted.) Suffield Development Associates, Ltd. v. Society for Savings, 243 Conn. 832, 843, 708 A.2d 1361 (1998); Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 303 (1987). "So long as any essential matters are left open for further consideration, the contract is not complete . . . A contract requires a clear and definite promise . . ." (Citations omitted; internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn.App. 622, 627, 760 A.2d 969 (2000).
The court finds that the number of lots to be contained in a subdivision plan approved by the town and ultimately developed on the defendant's property was an essential and material term that was not included in the plaintiff's version of the agreement. This was because the parties never reached a mutual understanding as to the number of lots to be contained in a subdivision plan or ultimately developed on the property.
Accordingly, for the reasons set forth above, the court finds that the plaintiff has not met its burden to establish that the parties had a clear and mutual understanding of the definite terms of an agreement. The court, therefore, concludes that no valid and enforceable contract was formed and agreed to by the parties.
III
In its second count for unjust enrichment the plaintiff asserts that even if it does not prevail on its contract claim, it is entitled to damages for the benefit of the services it provided to the defendant. As damages, the plaintiff seeks the value of the services he rendered.
"[U]njust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006); Meany v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 511-12, 735 A.2d 813 (1999).
To establish a claim of unjust enrichment the plaintiff must prove; (1) that the defendant was benefited; (2) that the defendant unjustly did not pay the plaintiff for the benefits; and (3) that the failure of payment was to the plaintiffs' detriment. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994). "[T]he determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal." Id. "The fact that the plaintiff could not recover under the contract does not bar its recovery under the theory of unjust enrichment; indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment." Id., at 284. The "measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant." Id., at 285.
Based on the record in this case, the court finds that the plaintiff has not met its burden of proving that the defendant benefited from the plaintiff's services. As to the plaintiff's claim that the defendant benefited from its facilitation of an amendment to the town of Newtown's cluster development regulations, the court finds that the plaintiff's services did not result in the passage of the regulation. While Danziger did approach the town and offer his services in drafting the proposed regulations, his offer was declined and the town drafted the regulations without any significant input from the plaintiff. Moreover, when the regulations were finalized by the town in August 2004, it did not appear that the plaintiff was even aware of this important development. Even if it was aware, it did not inform the defendant's attorney of the passage of the regulations until months afterward.
Moreover, even if the plaintiff contributed to the passage of the cluster development regulation by the town, the defendant did not benefit from it. When the defendant proceeded to seek subdivision approval in 2007, she did not avail herself of the new cluster regulations. She ultimately established a small subdivision with only four lots which did not necessitate reliance on the cluster development regulations.
Accordingly, the court finds that the defendant did not benefit from the plaintiff's efforts to obtain an amendment to the town zoning regulations.
The plaintiff also claims that the defendant benefited from its preparation of subdivision plans for the subdivision of her property, and should be compensated for the costs of the plans. The plaintiff has failed to prove this claim. The plaintiff did not produce and provide to the defendant an acceptable subdivision plan. Although the plaintiff hired and paid a third party to prepare subdivision plans for the defendant, the defendant rejected the plans because they included too many lots. The plaintiff did not present the defendant with any subdivision plans that were acceptable to her containing a smaller number of lots.
When the defendant went forward with the subdivision of her property in 2007, she did not use the plans developed by the plaintiff. Instead, the defendant hired and paid a different professional to design a wholly different subdivision plan that contained only four lots for development, leaving most of the property undeveloped. She donated the undeveloped portion of approximately 90 acres to the town for conservation purposes.
Accordingly, the court finds that the plaintiff has failed to prove that the defendant benefited from its services.
IV.
In conclusion, the plaintiff has failed to prove the existence of an enforceable agreement between the parties or that the defendant was unjustly enriched. Accordingly, judgment may enter for the defendant on both counts of the complaint.