Opinion
No. CV 08-501 99 60 S
May 18, 2009
MEMORANDUM OF DECISION
The present matter is before the court as a prejudgment attachment action. The plaintiff buyers, David Zeldis and Maureen Linder, are asking this court to issue an attachment on the defendant seller, Frank Marini's property, in the amount of $210,000. According to the plaintiff, this amount is equal to the deposit that the plaintiffs paid the defendant, which the defendant has refused to pay back to the plaintiffs following their failure to close on the subject real estate contract. An evidentiary hearing was held on January 20, 2009, at which time the parties also entered into certain stipulations of fact. The defendant filed his brief on February 10, 2009, and the plaintiffs filed their brief on February 11, 2009.
General Statutes § 52-278d(a) provides in relevant part that a hearing on a prejudgment remedy "shall be limited to a determination of . . . whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . . If the court, upon consideration of the facts before it and taking into account any . . . counterclaims . . . finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court . . . "The role of the trial court in considering an award of a prejudgment remedy is well established. Pursuant to our prejudgment remedy statutes . . . the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities." (Internal quotation marks omitted.) Benton v. Simpson, 78 Conn.App. 746, 751, 829 A.2d 68 (2003). "Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence . . . The legal idea of probable cause is a bonafide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." Kosiorek v. Smigelski, 112 Conn.App. 315, 319, 926 A.2d 880 (2009).
The evidentiary hearing established the following. The defendant owns real property primarily located in Redding, Connecticut. The property consists of two lots; 411 Rock House Road is approximately 14 acres, and 417 Rock House Road is approximately six acres. Record map 4271 on the land records of the Town of Redding is the most current map, and was received as a full exhibit. On May 27, 2008, the defendant's application for subdivision, Application #516, was approved by the Town of Redding Planning Commission; the approved subdivision map shows the same lot outlines as Record map 4271. At the time of the hearing, the subdivision map had not been recorded on the land records; the deadline to do so had been extended to a future date.
Some of the property is situated in Easton, Connecticut.
In April of 2007 the plaintiffs and the defendant entered into a written contract for the purchase of part of the land owned by the defendant; the plaintiffs gave a deposit of $210,000.00. The metes and bounds description contained in that contract differs from the record map and the approved subdivision map, but matches the survey map showing lot line revision dated March 26, 2007.,
The property description is contained in Schedule A of the contract. The property described in Schedule A contains less acreage than the property shown on Record Map #4271. However, the contracted-for property is at least 100 feet wide at all points, unlike the property which was legally approved, which showed an area with the narrowest point as 85 feet.
In addition to the claim of a discrepency in the property description, the plaintiff's claim that the defendant could not meet its obligations under the contract, with respect to the obligation of the defendant seller to grant an easement and right-of-way over the driveway to permit the plaintiff buyer to access the pool house, pursuant to the paragraph 42 of the contract. The court agrees with the defendant seller on this point; based upon the credible evidence presented at the hearing, the defendant's obligation to convey an easement over the common driveway is unaffected by the conditions of the subdivision approval.
The parties stipulated that the contract called for a closing date between September 1, 2008 and September 15, 2008, and that the defendant could not then and could not as of the date of the hearing legally convey the property described in the contract. On July 8, 2008, July 31, 2008, August 29, 2008, and November 18, 2008, plaintiff's counsel corresponded with defendant's counsel on this issue.
The contract does not contain a "time is of the essence" provision.
On or about September 10, 2008, counsel on behalf of the defendant seller corresponded with the Town of Redding Planning commission regarding the property lines described in the contract, and the approved property lines; counsel received a letter in response, dated September 15, 2008. On October 24, 2008, defense counsel again corresponded with the Town of Redding Planning commission on this issue.
Essentially, the plaintiffs argue that their application for prejudgment remedy should be granted, as the defendant is unable to convey the property described in the contract. The plaintiffs also argue that the defendant did not go to town officials until after September 15, 2008. The defendant takes the position that the difference in the property description is de minimis, that the property that the defendant can convey does not differ materially from the property described in the contract, that the defendant has substantially performed, and that any breach is immaterial.
In Pullman, Comley, Bradley Reeves v. Tuck-it-away Bridgeport, Inc., 28 Conn.App. 460, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992); the plaintiff law firm brought an interpleader action to determine the rightful holder of a $100,000 escrow deposit. The potential buyer, Vestpro, had deposited this amount with the seller, Tuck-it-away's attorneys, as down payment pursuant to a real estate contract. Around the time of the closing, Tuck-it-away received a letter from Vestpro, where Vestpro indicated that it was cancelling the contract because of a lis pendens and certificate of attachment on the property, as well as "a three foot nonconformity in one of the lengths of the legal description of the property as referenced in the contract." Id., 462. The lis pendens and attachment were dissolved prior to the closing, however, so the only remaining issue was the misdescription of the property. "At the time of execution of the contract, neither Tuck-it-away nor Vestpro was aware that the legal description contained an incorrect length . . . At no time prior to the . . . letter did Vestpro ever advise Tuck-it-away or complain to Tuck-it-away about the error in the legal description of the property contained in the contract." Id.
As the closing date approached, it became apparent that Vestpro lacked sufficient funds to complete the transaction, so it decided to cancel the contract "because of Tuck-it-away's inability to convey title to the premises in accordance with the terms of the contract." Id., 464. According to testimony given at trial, "Vestpro representatives met with their prospective investors to discuss [their lack of sufficient funds to complete the closing]. During the meeting, the group received a call from [its attorney], who told the group `You got lucky' because he had discovered a discrepancy in one of the courses in the property description." Id., 463. This phone call provided the impetus for Vestpro's decision to withdraw from the contract.
Despite this nonconformity in the description of the property's boundaries, the trial court determined that Vestpro had anticipatorily breached the contract and was in default. Accordingly, the trial court held that Tuck-it-away could keep the deposit as liquidated damages in accordance to the contract. The Appellate Court upheld the trial court's decision that Vestpro breached the contract. It noted that "the trial court's findings supporting the conclusion that Vestpro had anticipatorily breached the contract are sufficiently supported by the evidence presented . . . [Testimony demonstrated that] Vestpro representatives had stated that they would not be able to close on [the closing date]. Such statements are clear and unequivocal manifestations of Vestpro's inability to close . . ." Id., 466.
The trial court ruled against Vestpro on its claim that Tuck-it-away was the party in breach because of the alleged defects in title, finding, according to the Appellate court, that either the defect was minor, or was curable by the closing date.
In response to Vestpro's argument that Tuck-it-away's failure to tender the deed to the property placed it in default before Vestpro's breach, the Appellate Court stated that "[t]he law . . . does not require a party to undertake a futile act . . . Because Vestpro failed to appear at the closing and perform its obligation, which was a condition precedent to Tuck-it-away's obligation to perform, it would have been an act in futility for Tuck-it-away to tender a deed to Vestpro. We will not require the seller in this situation to perform such a futile act." (Citations omitted.) Id., 468.
The plaintiff refers to Strouth v. Pools by Murphy Sons, Inc., 79 Conn.App. 55 (2003) in support of its argument that the difference at issue here constitutes a material breach. In Strouth, the appellate court affirmed the trial court, which had found that the custom, kidney-shaped pool being constructed by the defendant was materially different from the custom-made peanut-shaped pool it had contracted to build, and rejected the defendant's argument of substantial performance based on the claim that the pool would still be fit for its intended use. However, the deviations at issue here are minor deviations to excess acreage, unlike the deviations in the Strouth case, which involved the shape of a custom made pool. Strouth is instructive, however, in setting forth the standards of materiality:
In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; and (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
The standards of materiality are to be applied in the light of the facts of each case in such a way as to further the purpose of securing for each party his expectation of an exchange of performances. Section 241 therefore states circumstances, not rules, which are to be considered in determining whether a particular failure is material. Id. at 60; (Citations omitted; internal quotations omitted).
The courts in other jurisdiction, when faced with the issue of materiality in cases involving the purchase and sale of land, are generally dealing with situations where the buyer claims that he received less land than what was contracted for. See Yocom v. Kindle, 766 S.W.2d 140 (Mo.App.S.D. 1989) (where seller represented to buyer that property had 100 feet of lakefront shoreline, but property in fact had only 80 feet of shoreline and was 11% smaller than what was represented, deficiency held material, and contract rescinded); Cundiff v. Cline, 752 S.W.2d 409 (Mo.App.S.D. 1988) (where both parties to real estate contract were under mistaken belief that 480 acres of farmland were being conveyed, when in fact only 348 acres were being conveyed, the shortage of 132 acres of timberland held clearly material; Snyder v. Potter, 134 A.2d 664 [N.Y.App.Div.3d. Dept. 1987] (issue of fact as to whether defendant was fraudulently induced into purchasing property, where contract provided for sale of "four acres," and land actually conveyed contained less than four acres, with significantly different boundaries).
Cundiff sets forth, in a footnote, other Missouri cases where deficiencies in acreage was held to be material, as follows: MacKinnon v. Weber, 230 Mo.App. 785, 75 S.W.2d 638, 641 (1934) (deficiency of 7.6 acres on a tract represented to be 35 acres-22 percent); Kite v. Pullman, CT Page 8150 278 S.W. 830, 831 (Mo.App. 1926) (deficiency of 4.5 acres on a tract represented to be 18 acres-25 percent); Messerli v. Bantrup, 216 S.W. 825, 827 (Mo.App. 1919) (deficiency of 28 acres on a 190-acre representation-14.7 percent); Kelley v. Peeples, 192 Mo.App 435, 182 S.W. 809, 811 (1916) (deficiency of 53.31 acres on a tract alleged to contain 480 acres-11 percent); and, Leicher v. Kenney, 98 Mo.App. 394, 404, 72 S.W. 145, 148 (1903) (deficiency of 18 acres on a tract alleged to contain 160 acres-11 percent). Id. at 413.
In the present case, the court rejects the argument that the mere existence of a deviation is a sufficient basis for finding probable cause that the plaintiffs will prevail. The deviation at issue is a minor deviation on excess acreage on an approved lot. The contract clearly provides that the defendant seller made no representations regarding the plaintiff's ability to subdivide or re-subdivide the property, and, moreover, the evidence established that the defendant knew that he was contracting to buy an oversized lot and that, pursuant to the contract, there were no further representations regarding subdivisions.
Paragraph 45 of the contact provides as follows: "Buyer acknowledges that Seller has made no representation as to whether the Property could be subdivided or re-subdivided into one or more additional lots. Nothing herein shall obligate Seller to make or pursue any further or pending application(s) to any federal, state or local land use agency for any approvals or uses not in place on the date hereof."
Here, the plaintiff is not deprived of the benefit which he reasonably expected — an approved lot, with excess acreage. The plaintiff bargained for, and will receive, a parcel of land with existing structures as described in a contract which used the best legal description available. "A description of a parcel of land is not a homogeneous entity, but rather it is a collection of quantitative and qualitative measurements which are `more or less.'" Robillard and Bouman, Surveying and Boundaries, Sixth Edition, § 16.03, page 450. He is getting more, rather than less, land, assuming that the defendant remains unable to cure the problem. There was no credible evidence presented to the court that the defendant seller failed to comply with the standards of good faith and fair dealing when dealing with the plaintiff. For these reasons, the court finds that the deviation is not material, and that the plaintiffs have failed to meet their burden of establishing probable cause that their claim here is valid.
For the foregoing reasons, the plaintiffs' application is denied.