author: Borden, J.

text:
    Nufer B. Bolmer et al. v. Mary Kocet et al.
    (3683)
    Borden, Daly and Bieluch, Js.

      Argued December 10, 1985
    decision released April 1, 1986

      Robert H. Hall, for the appellants (plaintiffs).

      James R. Mulvey, with whom on the brief, was Mark W. Korotash, for the appellees (defendants).
   Borden, J.

The plaintiffs appeal from the judgment of the trial court dismissing all three counts of their complaint against the three defendants for failure to make out a prima facie case pursuant to Practice Book § 302. The issues involve the sufficiency of the evidence to make out prima facie cases regarding the plaintiffs’ claims of express contract, implied contract and unjust enrichment, arising out of a complicated real estate transaction.

The plaintiffs, Nufer B. Bolmer (hereinafter referred to as Bolmer) and R. Eugene Bolmer, who are residential real estate developers, sued the defendants, Mary Kocet and her daughter, Mildred Barago, and Mildred Barago’s husband, John Barago, claiming breach of an express contract for the sale of real estate by Kocet, and also claiming breach of an implied contract and unjust enrichment as to all three defendants. The three count complaint contains thirty allegations which pertain to all of the counts and all of the defendants. It contains one additional allegation against Kocet pertaining to count one for breach of an express contract, three additional allegations against all defendants pertaining to count two for breach of an implied contract, and one additional allegation against all defendants in count three for unjust enrichment. We find error in the trial court’s dismissal of the complaint for failure to make out a prima facie case in express contract against Kocet. As to count two, we find error in the trial court’s dismissal of the complaint for failure to make out a prima facie case in implied contract against Kocet and against John Barago, but we find no error in the dismissal of this count against Mildred Barago. Finally, we find error in the trial court’s dismissal of the unjust enrichment claim against Kocet, but no error in the dismissal of this count against the Baragos.

Admissions of Fact

Certain factual allegations of the plaintiffs’ complaint were admitted by the defendants. These admissions are as follows: The defendants knew that the plaintiffs were in the business of subdividing and building on residential property. Prior to August 14, 1964, Mary Kocet and her late husband, John Kocet, owned twenty-seven acres of primarily undeveloped land (the tract) east of Flat Swamp Road and north of Cemetery Road in New-town. Mary and John Kocet occupied a house in the northwest corner of the tract fronting on Flat Swamp Road (the Kocet house lot). On August 14, 1964, the Kocets conveyed approximately 1.5 acres of the tract to the Baragos (the Barago house lot). This property is south of the Kocet house lot and is bounded on the west by Flat Swamp Road. The Baragos built a house on this lot. In May, 1969, the Kocets conveyed a lot to Mildred Barago (the Mildred Barago lot). This lot is south of the Barago house lot and is bounded on the west by Flat Swamp Road. In 1977, John Kocet requested that Bolmer obtain subdivision approval for the balance of the tract which he and Mary Kocet owned, which approval was also to include the Barago house lot and the Mildred Barago lot. Negotiations between Bolmer and the Kocets resulted in an agreement, the general effect of which was that Bolmer would, at his expense, take all necessary steps for residential subdivision approval for the tract, and that this subdivision approval would include as legal conforming lots a lot for the residence of the Kocets and an enlarged lot for the Baragos. In exchange, the Kocets agreed to convey the balance of the tract, except for the lots of the Kocets and the Baragos, to Bolmer at a price of $9333 per approved building lot.

The defendants further admitted as follows: A written contract embodying their agreement was signed by the Kocets and Bolmer on March 7,1977. The contract provided for a closing “60 days after approval of a subdivision plan of said property by the Planning and Zoning Board of the Town of Newtown, which the Buyer herein shall pursue with diligence.” The contract further provided that the “Buyer . . . agrees that he will obtain as soon as possible at his own expense, a subdivision map acceptable by the Planning and Zoning Commission of the above described property. The purchase price for the above sale shall be that amount equal to $9,333.00 times the number of acceptable building lots approved on the above subdivision map by the said Planning and Zoning Commission. The buyer will attempt to procure approval of 9 lots and if that is not possible, a minimum of 8 lots. If the Planning and Zoning Commission does not approve at least 8 lots this contract may be voided at the option of either party,” in which case the deposit would be returned “and all further rights under this contract will terminate except that seller will pay one-half of the surveying and engineering costs, but in any event not over $4000, the other costs being borne by the buyer.” In addition to a deposit of $1000, Bolmer was to pay for the property by a purchase money first mortgage described in a schedule attached to the contract. The mortgage note called for the first annual payment of principal and interest on January 10,1978. It was also admitted that John Kocet died after the execution of the agreement, and that Mary Kocet is now the owner of the tract. The defendants’ final admission in the pleadings is that the plaintiffs kept the defendants informed of the progress being made to obtain subdivision approval, and that the defendants knew that they would be required to cooperate with the plaintiffs to obtain that approval.

Issues of Fact

Those allegations which the defendants did not admit, and which form the rest of the bases of the plaintiffs’ claims against the defendants, are as follows: The conveyances to the Baragos jointly and to Mildred Barago constituted unapproved subdivisions in violation of the General Statutes and the Newtown subdivision regulations. The Mildred Barago lot was also in violation of the town zoning regulations because it was less than one acre, the minimum area required by those regulations. In July, 1969, the zoning classification of all the land involved was upgraded from one acre to two acres minimum lot size. All the land involved in the case contains substantial “wetlands” under the town’s inland wetlands map. Approval of a subdivision by the town wetlands agency is a condition precedent to subdivision approval by the planning and zoning commission. After March 7, 1977, Bolmer spent substantial sums of money to survey the land, to have a subdivision laid out on it, to obtain the engineering work required by the subdivision regulations, by the town road ordinance and by the inland wetlands and watercourse regulations, and obtained complete approval for the subdivision from the town inland wetlands agency on September 17, 1979.

The disputed allegations continued as follows: Immediately after the wetlands approval, the plaintiffs began to seek subdivision approval from the planning and zoning commission, a process which usually involves several submissions before final approval. One of the requirements of the subdivision regulations is the dedication of up to 10 percent of the land area as open space. In lieu of dedicating open space in the proposed subdivision, the plaintiffs dedicated, from another subdivision .which they owned, 2.75 acres of land which they could have used for a building lot. The plaintiff R. Eugene Bolmer is the agent and partner of the plaintiff Nufer B. Bolmer in connection with the events described in the complaint.

The final set of the plaintiffs’ contested allegations, which form the core of one of the central issues in this case, were as follows: Another subdivision requirement, applicable where land fronts on an existing town highway, as here, is the dedication of sufficient land so that the street right of way is widened to a width of twenty-five feet from the center line of the existing highway. The street lines of Flat Swamp Road and Cemetery Road adjoining the tract are less than twenty-five feet from their center lines. It was thus a condition precedent to subdivision approval that the defendants execute road widening deeds. The defendants are aware of this condition, and have frustrated the plaintiffs in carrying out the contract by refusing to execute road widening deeds as requested by the plaintiffs. There is a reasonable probability that subdivision approval would be obtained if the defendants execute these road widening deeds.

The first count of the complaint is against Mary Kocet only. It is based on breach of the express contract by her refusal to execute the road widening deed needed for subdivision approval. The second count of the complaint is against all the defendants. It asserts an implied contract under which the plaintiffs are required to use their best efforts to obtain subdivision approval, and the defendants are required to cooperate with them to do so. It claims breach of this implied contract by the defendants’ refusal to execute the road widening deeds. The third count of the complaint is against all of the defendants. It asserts that the defendants have been unjustly enriched by virtue of the action of the plaintiffs to obtain subdivision approval, including the wetlands approval already obtained. The plaintiffs sought money damages, an order requiring the defendants to execute the road widening deeds and to authorize the plaintiffs to continue with the subdivision approval process, and specific performance of the written contract.

The defendants asserted three special defenses. The first was that specific performance was barred by General Statutes § 47-33a. The second asserted that Mary Kocet had, pursuant to the contract, elected to declare the contract void because the planning and zoning commission had disapproved the minimum eight lot subdivision plan in July, 1980. The third asserted that any quasi contractual recovery was limited by the contract to reimbursement of one-half of the plaintiffs’ survey and engineering costs not exceeding $4000.

At the end of the plaintiffs’ case-in-chief, the court granted the oral motion of the defendants to dismiss the plaintiffs’ case pursuant to Practice Book § 302. This appeal followed.

Evidence Presented

“In considering a motion for judgment of dismissal under Practice Book § 302, a trial court is mandated to consider as true the evidence offered by the plaintiff and to draw all favorable and reasonable inferences from such evidence. When ruling on such a motion, the trier’s discretion is limited and the parameters within which it may act are narrowed to the extent that it must consider the plaintiff’s evidence as true and draw all reasonable inferences in the plaintiffs favor.” Strickland v. Vescovi, 3 Conn. App. 10, 14-15, 484 A.2d 460 (1984). We therefore consider the plaintiffs’ evidence in their favor under each count of their complaint.

In addition to those facts admitted by the defendants in their answer, the court had before it the following evidence produced by the plaintiffs, which should be taken in their favor: Newtown adopted zoning regulations in August, 1958. The Kocet property was originally in a minimum one acre zone and in June, 1969, was upgraded to a minimum two acre zone. The Mildred Barago lot was less than one acre, and thus did not conform to either the old or new regulations. Furthermore, both that lot and the Barago house lot were illegal because they were created without subdivision approval as required by General Statutes § 8-18 and the town subdivision regulations.

At the time of the signing of the contract, the subdivision regulations made wetlands approval from the town inland wetlands agency a condition precedent to applying for subdivision approval. The regulations also permitted the planning and zoning commission to require dedication of 10 percent of the land in the subdivision for open space, and, if the street right of way was less than fifty feet, required dedication of strips along the existing highway to widen the street right of way to not less than twenty-five feet from the highway center line. The regulations also required a ratio of two to one between lots with street frontage and lots having access only by twenty-five foot roadways. From 1977 through 1980, obtaining subdivision approval in Newtown was difficult. All applications were rejected at least once. Two or three rejections were commonplace. Limekiln Brook entered the property at Cemetery Road and exited under Flat Swamp Road to the south of the Baragos’ home. The tract was very wet. Furthermore, subdivision layout was difficult because much of the usable property in the tract was cut off from the road by the brook and because the wetlands had to be crossed.

After the execution of the contract, in order to meet the requirements of subdivision consideration, the plaintiffs had to have a property survey prepared, lay out the lots to meet geometric requirements of the zoning regulations, stake the wetlands and the crossings of the wetlands and watercourses, and locate septic systems in order to conduct septic tests. Early on, the plaintiffs discovered that none of the existing boundary lines of the Kocet and Barago house lots, and of the Mildred Barago lot, could be maintained if the parties were to maximize the number of subdivision lots. When this became known, Bolmer conferred with John Kocet and John Barago. John Kocet told Bolmer, in John Barago’s presence, that Bolmer could change the lot lines in order to meet this problem and make the three lots conforming. When Bolmer suggested that John Barago might have to be compensated, John Kocet told him that, since the house lot in the Baragos’ names had been a gift, compensation was not necessary. John Barago was silent. In this conversation, Bolmer showed both John Kocet and John Barago maps indicating the required changes.

John Barago also indicated his knowledge of the required changes in the lot lines of the Barago house lot in a conversation with the other plaintiff, R. Eugene Bolmer. They discussed building a pond in the back of the house, and John Barago wanted to be sure that his revised house lot would include the pond area. In the first half of 1979, the plaintiffs met with the Kocets and John Barago at the Kocets’ house and discussed the subdivision. The plaintiffs left subdivision maps with the Kocets.

In October, 1977, the plaintiffs submitted the first application to the town inland wetlands agency in the form of a so-called short form application. The agency disapproved of the short form and requested a long form, which was submitted in January, 1978. On September 12, 1979, after several agency meetings and requests for more information, two public hearings, and a separate application for one lot which required a re-engineered wetlands crossing, the agency gave final wetlands approval to the subdivision. In testimony before the trial court, the agency chairman explained this twenty-three month delay by describing the parcel as very difficult for approval because of the complexities and difficulties of the wetlands impact.

The plaintiffs thereupon submitted a subdivison approval application to the planning and zoning commission. A requirement of application approval was the 10 percent open space dedication. If this 10 percent were taken from the Kocet tract, one subdivision lot would have been lost. The plaintiffs, therefore, actually dedicated land from another subdivision they owned. The commission accepted this dedication, and title to it has passed to the town.

The town engineer raised numerous objections to the initial plans, which resulted in the plaintiffs’ withdrawal of the application and in further work by their engineers. A new application met further opposition by the town engineer and resulted in a denial of the application on July 17, 1980, for seven reasons. This, in turn, resulted in more work by the plaintiffs’ engineers to meet these objections. There was testimony by the plaintiffs’ surveyor, by a former town engineer, and by a planning and zoning commission member, that the plaintiffs’ revised plans met the seven objections, that these plans now met all the requirements of the subdivision regulations, and that, despite the prior disapproval, once the regulations were complied with the commission would approve the subdivision. This set the stage for the controversy concerning the road widening deeds.

There was evidence that when the plaintiffs first submitted the subdivision application to the commission, they incorrectly assumed that they would be able to execute the necessary deeds, widening the highway right of way to twenty-five feet from the center line, after they acquired title to the property from Kocet. They soon realized, however, that the subdivision regulations required that an executed deed be submitted with the application and that, absent such a deed, the application would be considered incomplete and rejected.

In April, 1981, the plaintiffs had prepared the final revised subdivision plan, but in order for the plan to be approved the defendants would have to execute road widening deeds. No road widening deed was required in front of Mary Kocet’s home. It was required, however, on her undeveloped property along Cemetery Road, around the corner and along Flat Swamp Road. Furthermore, such deeds were required along the Mildred Barago lot and in front of the Baragos’ house lot. The plaintiffs had placed stakes indicating the new boundaries along the Baragos’ properties. Despite the plaintiffs’ requests for the deeds and explanations of the reasons therefor, the defendants refused to execute the deeds.

There was also evidence that the plaintiffs had spent $23,453 for engineering services and other expenses in connection with the subdivision application. They had obtained inland wetlands approval for the defendants’ properties. There was expert testimony that upon subdivision approval, the subdivision lots would be worth $30,000 per lot, and that even without final subdivision approval, a buyer of the land would pay nearly that amount because of the inland wetlands approval and the two previous subdivision submissions. It was also the expert’s opinion that, even without final subdivision approval, the eight undeveloped lots shown on the proposed subdivision map would be worth $215,000 because so little additional work would be required for final approval. There was also evidence from the maps to support the inference that, if the Baragos do not participate in the subdivision, two of the proposed lots will be lost and the Baragos’ two lots will not conform to the zoning regulations. On this scenario, the expert testified, a buyer would pay $170,000 for the six remaining proposed lots even without subdivision approval. He also testified that Mary Kocet’s raw land, consisting of these six proposed lots, was worth $96,000 before the plaintiffs’ efforts toward subdivision approval, indicating an increase in value of $74,000 as a result of their work.

I

First Count: Breach of Express Contract by Mary Kocet

The plaintiffs claim that they produced sufficient evidence on which the court could find that the written contract signed by Mary Kocet, interpreted in their favor pursuant to Practice Book § 302, required her to sign the road widening deed along her undeveloped property on Cemetery Road and Flat Swamp Road. Therefore, the plaintiffs argue, the court erred in holding that they failed to make out a prima facie case on the first count. We agree.

“[A]bsent a statutory warranty or definitive contract language, whether there was a contract and the scope of its terms are questions of fact to be determined by the trier on the basis of all the evidence.” (Emphasis added.) Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 404, 499 A.2d 64 (1985), cert. granted, 198 Conn. 802, 501 A.2d 1213 (1986); see also Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). The evidence, taken in the plaintiffs’ favor, was that the only property Mary Kocet would have retained after the subdivision approval was her house lot. The road widening deed which she was asked to execute would not have conveyed any property along that house lot. It would only have conveyed part of the property which she had already agreed to sell to Bolmer. She admitted that she knew that she would be required to cooperate with the plaintiffs in order to obtain subdivision approval. Under these circumstances, a factfinder could reasonably infer that the scope of the terms of the agreement between the plaintiffs and Mary Kocet included an obligation on her part to execute the road widening deed.

We emphasize the limited nature of this holding on a motion to dismiss. We do not hold that, after a full trial, the court would be required to find that Mary Kocet had such an obligation. See Strickland v. Vescovi, supra, 15. We hold only that, taking the plaintiffs’ evidence as true and drawing all reasonable inferences in their favor, the evidence would reasonably support such a finding. Id. Therefore, a prima facie case was established, and the court erred in granting Kocet’s motion as to the first count.

II

Second Count: Implied Contract as to All Defendants

A

In this count the plaintiffs alleged an implied contract whereby they were required to use their best efforts to obtain subdivision approval for the tract and the defendants were required to cooperate with the plaintiffs in that endeavor, and that the defendants breached this contract by refusing to execute the road widening deeds. We first consider the evidence on this count as to Mary Kocet, and conclude that the evidence was sufficient to withstand the motion to dismiss.

“A contract implied in fact may be inferred from words, action or conduct. Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94-95, 429 A.2d 808 (1980).” Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 81, 504 A.2d 1376 (1986). The existence and scope of such a contract is a question of fact for the trier, to be determined from all the evidence. Finley v. Aetna Life & Casualty Co., supra. A contractual undertaking carries with it the implied obligation not to obstruct the performance of the other party to the contract. Hartford Electric Applicators of Thermalux, Inc. v. Alden, 169 Conn. 177, 182-83, 363 A.2d 135 (1975).

Mary Kocet admitted that she knew her cooperation was required to obtain the subdivision approval which her late husband, and predecessor in title of an undivided one-half interest, had requested Bolmer to obtain, and which was the objective of the written contract she and her late husband had entered into with Bolmer. She also admitted that she had been kept informed of the progress being made to obtain that approval. There was ample evidence of the great amount of expense and work of the plaintiffs involved in that progress. The road widening deeds sought by the plaintiffs would have required her to convey only property which her contract obligated her to sell to the plaintiffs. Under these circumstances, it was a permissible inference that she had an implied contractual obligation to cooperate with the plaintiffs in the subdivision approval process, which obligation included executing the road widening deeds. A prima facie case was established, and the court erred in granting Kocet’s motion to dismiss as to the second count.

B

We next consider the evidence under the second count as to John Barago. We conclude that it was sufficient to establish a prima facie case of a breach of an implied contract to execute the road widening deeds.

There was evidence that in the latter half of 1977 Bolmer explained to John Kocet and John Barago that, in order to maximize the number of subdivision lots and meet the aims of the Kocets to obtain subdivision approval, the lot lines of the Kocet and Barago house lots would have to be changed. There was also evidence that John Kocet agreed to this in John Barago’s presence, that he stated there was no need to compensate the Baragos for this, and that John Barago remained silent in the face of these statements. In addition, in a different conversation John Barago requested Bolmer to retain, within his proposed revised house lot, the area in which he wanted to build a pond. John Barago admitted in the pleadings that Bolmer and the Kocets had agreed that the subdivision would include a legally conforming and enlarged lot for the Baragos, that he knew his cooperation was needed for the subdivision approval, and that he had been kept informed of the progress toward that approval. There was ample evidence of the expense and work of the plaintiffs involved in that progress. There was also evidence that the Barago house lot was illegally created and that the revised lot lines would render it conforming. Thus, there was sufficient evidence that John Barago had impliedly agreed to cooperate with the plaintiffs in the subdivision process, and a factfinder could also have reasonably inferred that this agreement carried with it the obligation to execute the road widening deeds which were necessary for subdivision approval. A prima facie case was established. The court erred in granting John Barago’s motion to dismiss as to the second count.

C

The evidence under this second count is insufficient, however, as to Mildred Barago. She was neither a signatory to the written contract nor present at any of the conversations. She did not participate in any of the subdivision negotiations. There is no evidence of any words or conduct by her to support an implied in fact contractual undertaking by her.

The plaintiffs argue that her status as John Barago’s wife permits a reasonable inference that his knowledge was imparted to her. We disagree. Just as marital status does not prove an agency relationship; Botticello v. Stefanovicz, 177 Conn. 22, 26, 411 A.2d 16 (1979); marital status in and of itself does not prove that the knowledge of one party to the relationship was conveyed to the other, at least as to the particular kind of commercial land transaction involved in this case. A reasonable factfinder could not infer solely from John Barago’s silence, words and conduct as described above, that his wife had made the same implied contract as he did. The court did not err in granting Mildred Barago’s motion to dismiss as to the second count.

Ill

Third Count: Unjust Enrichment as to All Defendants

A

Although the plaintiffs did not specifically label this count as being in the alternative to the first and second counts, it is clear that it is meant to provide an alternative basis for recovery in the event of a failure of proof under those counts. Unjust enrichment applies when 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.’ 5 Williston, Contracts (Rev. Ed.) § 1479.” Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564, 244 A.2d 404 (1968); Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 53, 492 A.2d 223 (1985).

Unjust enrichment is a very broad and flexible equitable doctrine; Cecio Bros., Inc. v. Greenwich, supra; which has as its basis that “ ‘it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.’ ” National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). Its three basic requirements are (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. Montanaro Bros. Builders, Inc. v. Snow, supra. All the facts of each case must be examined to determine whether the circumstances render it “just or unjust, equitable or inequitable, conscionable or unconscionable,” to apply the doctrine. Cecio Bros., Inc. v. Greenwich, supra, 565.

Applying this flexible standard, we conclude that the plaintiffs’ evidence as to Mary Kocet was sufficient to withstand her motion to dismiss. In order to carry out their obligations under the contract with her, the plaintiffs spent $25,453, and conveyed 2.75 acres of their land to the town. As a result of the plaintiffs’ work, she now has property which is quite near final subdivision approval and has increased in value by tens of thousands of dollars. This evidence is clearly sufficient to make out a prima facie case of unjust enrichment.

B

The evidence of unjust enrichment of John Barago was insufficient, however. His sole interest in the entire transaction was as a one-half owner of the Barago house lot. The plaintiffs do not point to any evidence indicating any increase in value of that lot as a result of their actions. Thus, there is no evidentiary basis for an award of damages based on unjust enrichment against John Barago. This conclusion also applies to Mildred Barago as the other one-half owner of their house lot.

It is true that this evidentiary insufficiency is not the basis on which the trial court dismissed the plaintiffs’ unjust enrichment count against the Baragos. We are free, of course, to sustain a trial court’s judgment on a basis different from that used by the trial court. Bencivenga v. Zoning Board of Appeals, 2 Conn. App. 384, 387, 478 A.2d 1049 (1984).

c

We reach a similar conclusion as to Mildred Barago as the owner of the Mildred Barago lot. The plaintiffs’ claim of benefit to her is that, if their contract with Mary Kocet is construed as requiring them to transform that lot into a legally conforming subdivision lot, namely lot number four of the proposed subdivision, their efforts have given her such a lot with wetlands approval. We disagree.

Even if we assume arguendo that their construction of the contract is permissible, there is no evidentiary basis upon which to measure an award of damages based on the amount of her enrichment. Approximately two-thirds of her existing lot covers a part of lot number four; the balance of lot number four comes from property of Mary Kocet. The plaintiffs do not point to any evidence of the increase in value of the Mildred Barago lot as a result of their efforts, nor is there any way for a factfinder to allocate the general increases in values supplied by the experts, described above, between the existing Mildred Barago lot and the proposed lot number four. Thus, there is no basis for an award of damages based on unjust enrichment against Mildred Barago. Cf. Preisner v. Illman, 1 Conn. App. 264, 269, 470 A.2d 1237 (1984).

IV

The defendants argue that the trial court’s judgment should be sustained because the contract with Mary Kocet did not comply with the statute of frauds; General Statutes § 52-550; regarding contracts for the sale of real estate. It is true that the court in its oral memorandum of decision appears to have relied, in part at least, on that statute, focusing on the purported lack of specificity in the closing date. That reliance by the trial court, however, and the defendants’ similar reliance in this court, are misplaced.

First, the defendants did not raise the statute of frauds in their pleadings. They admitted that paragraph of the plaintiffs’ complaint which alleged the written contract executed between Bolmer and the Kocets and which incorporated by reference a copy of the contract annexed to the complaint. Practice Book § 164 requires at least a denial in order to take advantage of the statute of frauds. It provides that certain defenses, such as “the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds . . . .’’Id.

Second, even if we assume arguendo that General Statutes § 52-550 was properly in the case pursuant to the court’s ruling on the motion to dismiss, there was evidence to afford a reasonable basis for a finding of part performance by the plaintiffs sufficient to take the transaction out of the statute of frauds. See Breen v. Phelps, 186 Conn. 86, 95-97, 439 A.2d 1066 (1982).

There is error in part. With regard to the defendant Mary Kocet, the judgment is set aside as to all three counts. With regard to the defendant John Barago, the judgment is set aside as to the second count, and there is no error as to the third count. With regard to the defendant Mildred Barago, there is no error. The case is remanded for a new trial as to the defendant Mary Kocet, on all three counts, and for a new trial as to the defendant John Barago, on the second count.

In this opinion the other judges concurred.

       The written contract described the property to be sold specifically by boundaries, and provided that the “Sellers shall retain title to such property on Flat Swamp Road as required by the Planning and Zoning Commission to make the Sellers’ home property . . . on Flat Swamp Road and property of John Robert Barago and Mildred Ann Barago and property of Mildred Ann Barago, respectively, on Flat Swamp Road conform to two acre size zone requirement for said area.”

       General Statutes § 47-33a provides: “(a) No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pen-dens is filed as directed by section 52-325.
      “(b) The interest may be extended only by reexecution of the written agreement or by execution of a new written agreement, provided the agreement, whether reexecuted or newly executed, shall be recorded as directed by sections 47-10 and 47-17. The period provided by this section shall not otherwise be extended, whether because of death, disability or absence from the state or for any other reason. Upon the expiration of an interest the title to property affected by the interest shall not thereafter be considered unmarketable because of the expired interest.
      “(c) Nothing in this section shall be construed to limit or deny any legal or equitable rights a party may have under the agreement except the right to have the agreement specifically enforced.”

       Practice Book § 302 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Thomas Williams v. Trans-Atlantic Motors, Inc., et al.
    (3913)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 5
    decision released April 1, 1986

      Harold N. Godlin, for the appellant (named defendant).

      John S. Terzis, for the appellee (plaintiff).
   Per Curiam.

The issue on appeal is whether the plaintiff is entitled to the addition of prejudgment interest to a verdict awarding damages, after the verdict has been rendered in a specific amount by a jury and after judgment has been rendered thereon by the trial court. The jury rendered its verdict in favor of the plaintiff and awarded him $10,956.09 in damages. The court accepted the verdict and rendered judgment thereon. The issue of prejudgment interest as damages had not been submitted to the jury. When a property execution was subsequently issued to satisfy this judgment, the court modified the judgment by adding prejudgment interest in the amount of $4586.96. The named defendant has appealed from that portion of the judgment involving prejudgment interest. This identical issue was considered in Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 464, 505 A.2d 1255 (1986), wherein we held that, although a jury might consider whether interest should be awarded, it was error for the court to award prejudgment interest as damages in a jury case.

There is error in part, that part of the judgment involving prejudgment interest is set aside, and the case is remanded with direction to reinstate the original judgment.


author: Daly, J.

text:
    Bette L. Ellsworth v. Whitby K. Ellsworth
    (3522)
    Dupont, C. J., Hull and Daly, Js.
    Argued December 13, 1985
    decision released April 1, 1986

      Thomas F. Parker, with whom was Brenda M. Bergeron, for the appellant (defendant).

      Paul Smith, with whom was GwenB. Dreilinger, for the appellee (plaintiff).
   Daly, J.

This is an appeal by the defendant husband from the judgment of a state trial referee rendered in a dissolution of marriage action.

The defendant claims that the court erred (1) in valuing the stock in his closely held corporation by using a capitalization of income approach with a capitalization multiplier of ten, without expert testimony as to the appropriateness of that method of valuation, and (2) in awarding $10,000 in attorney’s fees to the plaintiff.

The court found that the twenty-five year old marriage experienced an irretrievable breakdown, the major cause of which was the “actions of the defendant.” The main asset of the defendant is a metal electroplating firm, known as the National Chromium Company, Inc., in which the defendant, at the time of trial, owned all of the stock. In 1979, the few remaining shares outstanding, not owned by the defendant, were purchased by National Chromium for $1800. The company had been in financial difficulty when the defendant acquired it but he has since developed it into a profitable enterprise. The book value of the company from 1980 through 1983 ranged from $215,748 to $325,700. The defendant maintained that, at the time of trial, the book value was $180,058 but that he would not sell the company for that amount. At the time of trial, the defendant owned all 1118 shares of stock of the corporation. The average profit for the five years prior to 1982 was $39.19 per share per annum.

The court further found that in 1982-83, the business was losing money and in April, 1983, there were only about thirty employees in the plant. At the time of trial in November, 1983, however, the number of employees had increased to fifty-five, working three shifts. After experiencing a loss of $23,000 for the six months prior to trial, an upturn in the profits was anticipated. Part of the company’s loss in 1983 was attributable to the acquisition of a majority interest in Putnam Braid, a concern which is now breaking even financially. The court farther found that other than the period in 1982 and 1983, National Chromium has a good earning capacity and has shown a profit. National Chromium is paying off the company’s former owner for the stock now owned by the defendant, and is leasing him premises at no profit. The defendant receives a $45,000 yearly salary from the corporation plus the use of a Mercedes automobile. The corporation owns a plant, machinery, and a lagoon in addition to property in Putnam valued at $115,000. These assets and the last six years of the company’s operations were taken into consideration by the court in arriving at its figure of $300,000 as the value of the stock.

At the time of the dissolution, the plaintiff, Bette L. Ellsworth, was forty-nine years old and possessed limited skills. The plaintiff had $23,000 remaining from her mother’s estate.

The defendant claims that the trial court employed the capitalization of income approach with a capitalization multiplier of ten to evaluate the 1100 shares (rounded off by the court from 1118) of stock of the company. The defendant maintains that the trial court found that the average annual per share income over six years was $27.02, which makes an average annual corporate income of $29,722. By multiplying this figure by ten, the total corporate income comes to $297,220 which the trial court rounded out to $300,000. The defendant claims this figure is not representative of the company’s stock value.

This court reviews the trial court’s exercise of broad discretion in domestic relations cases to determine whether it correctly applied the law and could reasonably have concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984), quoting Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982).

The trial court did not restrict its analysis of the valuation, as the defendant asserts, to only the capitalization of income method. In addition, the court did not expressly state that it used a capitalization of income approach and specifically said it considered the assets of the corporation. The court considered the book value of the corporation but did not find it controlling in evaluating stock of a close corporation. The court also considered but dismissed as inapplicable the comparative sales approach. The record reveals that the court did not arrive at its valuation by narrowly relying on the use of one method. Whitney Center, Inc. v. Hamden, 4 Conn. App. 426, 427-28, 494 A.2d 624 (1985); Welsh v. Independent Bank & Trust Co., 1 Conn. App. 14, 16-17, 467 A.2d 941 (1983).

The trial court has the discretion to accept whatever testimony and recognized appraisal methods it finds applicable; its valuation of property is reviewable only if a particular test or consideration was misapplied or overlooked. Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983). “No single method of valuation will control in all cases.” Welsh v. Independent Bank & Trust Co., supra. The capitalization of actual income has been approved as an appropriate method of valuation. Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 386, 389 A.2d 734 (1978). “It is generally recognized that closely held corporate stock cannot be valued reasonably by the application of any inflexible formula. . . . Since valuation of securities is, in essence, a prophecy as to the future . . . it is important that the prognostication be based on an examination of the appropriate financial tea leaves.” (Citations omitted.) Turgeon v. Turgeon, supra, 276.

Our reading of the memorandum of decision, however, does not indicate that the court relied primarily on the capitalization of income approach. If the defendant questioned the use of this method, or whether, in fact, it was used, the defendant could have moved pursuant to Practice Book § 3082 for the trial court to clarify its decision. Vaiuso v. Vaiuso, 2 Conn. App. 141, 148-49, 477 A.2d 678 (1984).

The trial court’s valuation of the defendant’s property was derived from all of the relevant considerations discussed and not solely from the capitalization of income method. When all of the financial factors are examined fairly, we cannot say that the trial court could not have concluded as it did in evaluating the defendant’s “one man” business. Since the court did not use a capitalization of income approach alone, we need not consider the defendant’s claim concerning the need for expert testimony regarding capitalization of income.

The defendant lastly claims that the court should not have awarded the plaintiff $10,000 in attorney’s fees. “Whether a party has ample liquid funds to pay counsel fees is determined by examining the total financial resources of the parties in light of the statutory factors.” Vaiuso v. Vaiuso, supra, 151.

The defendant contends that the plaintiff has $23,000 in liquid assets remaining from her mother’s estate which could be used to pay her counsel fees. In the granting of attorney’s fees of $10,000, the trial court specifically relied on Howat v. Howat, 1 Conn. App. 400, 408, 472 A.2d 799 (1984), wherein the court held that “[t]he allowance and amount of counsel fees is left to the exercise of judicial discretion, and the availability of cash with which to pay attorney’s fees of the spouse claiming the allowance is not an absolute standard for denying an award. Anderson v. Anderson, 191 Conn. 46, 59, 463 A.2d 578 (1983). There was no abuse of discretion here, given the respective financial abilities of the parties and the statutory criteria to be heeded by the court.”

There is no error.

In this opinion the other judges concurred.

       Practice Book § 3082 provides in pertinent part: “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be made in the first instance to the judge of the trial court whence the appeal is taken or the reservation is made . . .


text:
    Louis Schroeter et al. v. Thomas A. Salvati III et al.
    (3590)
    Hull, Spallone and Bieluch, Js.
    Argued February 14
    decision released April 1, 1986

      William T. Barrante, with whom, on the brief, was John L. Gerardo, for the appellants (plaintiffs).

      William A. Conti, for the appellees (named defendant et al.).
   Per Curiam.

The plaintiffs, Louis and Doris Schroeter, appeal from the trial court’s order dissolving their prejudgment attachment on the real estate of Polly Grogan, one of the defendants. The trial court dissolved the attachment based on its finding that the sheriff’s return to court did not, as required by General Statutes § 52-280, contain a description of the property attached. The plaintiffs claim that in so holding, the trial court erred. They also argue that the court erred by refusing to allow them to amend the sheriff’s return and by refusing to grant their motion for a stay of the order of dissolution pending the outcome of their appeal to this court. Because there is no practical remedy which this court can award, we now dismiss this appeal as moot.

This court may decide a case only when it presents a live controversy which can be resolved by relief that is within the court’s power to grant. Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 538, 506 A.2d 1054 (1986). Here, this requirement is not met. The bond, which the parties had stipulated would substitute for the real estate attachment and would rise or fall with the validity of the attachment, has been dissolved and the cash returned to the defendants. The land which was the subject of the attachment has been sold and title transferred to others. It would, therefore, be impossible for this court to reinstate the attachment even if it were to find that the trial court erred in ordering it dissolved. Accordingly, the validity of the trial court’s decision to dissolve the attachment and not to allow the plaintiff to amend the return presents a question that is merely academic. The claim is, therefore, moot.

Similarly, the plaintiffs’ claim that the trial court erred in refusing to order a stay is also moot. The trial court declined to order the stay, and pursuant to General Statutes § 52-2871 (c), the order was not automatically stayed. Accordingly, the attachment was dissolved and, as discussed above, the bond was returned and the real estate sold. There is, under these circumstances, no remedy that we can fashion which would put Humpty Dumpty back together again.

The appeal is dismissed.

       General Statutes § 52-2781 (a) (2) provides that an order granting a motion to dissolve a prejudgment remedy shall be deemed to be a final judgment for the purpose of appeal.

       Grogan was added as a defendant after Thomas Salvati III, the named defendant, conveyed the land in question to her.

       General Statutes § 52-280 provides in pertinent part that “[t]he officer serving the process shall leave with the person whose estate was attached . . . a true and attested copy of the process and of the accompanying complaint, and of his return thereon, describing any estate attached.”


author: Bieluch, J.

text:
    Robert G. Fullerton et al. v. Joseph J. McGowan
    (3040)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 4, 1985
    decision released April 1, 1986

      Joseph J. McGowan, pro se, the appellant (defendant).

      Reuben S. Midler, for the appellees (plaintiffs).
   Bieluch, J.

The defendant has appealed from a judgment for the plaintiffs in an action on a contract for the purchase and sale of land with a house then under construction thereon in Newtown. The pro se defendant, who was the owner and builder of the house, has raised four claims of error with regard to the court’s findings and award of damages. We find no error.

The facts are not in dispute. The plaintiffs contracted on August 23,1978, to purchase the property in question from the defendant for $108,000. This purchase price reflected an agreement between the parties pursuant to which the plaintiffs undertook to perform some of the work on the house themselves. During the negotiations prior to the written agreement, the defendant orally indicated that the house would be ready for occupancy on or about October 15, 1978, but this was extended to October 30, 1978, or “such other date ... as the parties may mutually agree upon” in the written contract.

Prior to October 30, 1978, the plaintiff Robert G. Fullerton visited the property often, on some of these occasions doing some of the construction work which he had agreed to do in reduction of the purchase price. On that date, Fullerton visited the property again and observed that the interior walls, the septic system, the driveway and the front steps had not been completed, and that the plumbing and kitchen fixtures, the heating unit and the oil tank had not been installed. Also, the electricity had not been connected. For these reasons, the defendant could not provide the plaintiffs with a certificate of occupancy, and the closing was therefore delayed. The defendant then informed the plaintiffs that he would complete the house before Thanksgiving. Fullerton, who had previously been in the real estate business, did not object to the delay, nor to a later extension of time to “before Christmas.” The plaintiffs did, however, inform the defendant that they had sold their existing home with an agreed closing date of December 20,1978, by which time they were to surrender possession without delay.

The sale of the plaintiffs’ former home took place as scheduled and, on December 20, 1978, they rented a bungalow for their interim occupancy at a rental of $50 per week. Three days later, a physical altercation occurred between Fullerton and the defendant as a result of their differences. After this flare-up, Fullerton was denied access to the premises to complete any of the work required of the buyers. He did, however, visit the premises several times to conduct settlement negotiations. A closing date of January 20, 1979, was requested by the plaintiffs. Fullerton informed the defendant that, otherwise, a suit for specific performance would be instituted. The defendant, in reply, imposed three conditions for closing on that day: (1) that the plaintiffs relinquish all claims occasioned by the delay in the completion of the house; (2) that the plaintiffs execute a waiver running to the town of Newtown with respect to a fifteen degree grade on portions of the driveway of the residence; and (3) that Fullerton execute a release in favor of the defendant with respect to the assault which had occurred on December 23, 1978. The plaintiffs refused these demands and brought this action for specific performance and damages. Ancillary to their suit, a lis pendens was filed on the land records on February 28,1979. The defendant obtained a conditional certificate of occupancy on March 2, 1979, but the parties were unable to reach an agreement on the closing and a stalemate followed. The defendant filed a counterclaim for damages allegedly caused by the plaintiffs’ failure to close within a reasonable time after March 2, 1979.

On December 20, 1979, the Citizens National Bank of Fairfield, a second mortgagee of the defendant, started foreclosure proceedings against the property. The plaintiffs were named defendants in that action because of their lis pendens against the property and a mechanic’s lien filed by Fullerton for materials and labor furnished in the amount of $4724.05. This foreclosure action went to a judgment of strict foreclosure. The plaintiffs exercised their right of redemption on June 10, 1980. Title in fee simple was obtained by payment of $103,524.86 to the prior encumbrancers, including the first mortgagee. To obtain this financing, the plaintiffs borrowed $75,000 from Fullerton’s parents at 10 percent interest.

In their purchase contract, the plaintiffs had agreed to apply for a mortgage loan at the Newtown Savings Bank, the defendant’s first mortgagee. This bank gave the plaintiffs a commitment for a mortgage loan of $75,000 for thirty years at 9% percent interest. The commitment was extended to January 3,1979, but can-celled on that date. Upon the plaintiffs’ redemption of the property seventeen months later, the bank had increased its rate to 14 percent, four percentage points higher than the interest rate charged by the parents. After taking possession of the premises, the plaintiffs incurred further expenditures to correct defects and to complete the work of the defendant on the house. Thereafter, on March 12,1981, the plaintiffs amended their complaint in this action by adding a second count alleging damages consequential to their obtaining title to the premises by redemption in the foreclosure proceeding.

The trial court concluded that time was not of the essence under the contract between the parties. It found that the agreement neither expressed nor implied such an intention in its terms. When the closing did not take place on October 30,1978, as specified in the agreement, the court held that the plaintiffs were under a duty to extend for a reasonable period the defendant’s time for completion of the house. The defendant knew that the plaintiffs had sold their former home with possession and occupancy to be delivered by them on December 20, 1978. The court found, therefore, that a closing on that date would have given the defendant a reasonable further time of almost two months for performance of the agreement. Consequently, it measured the plaintiffs’ damages from that date and awarded them judgment in the amount of $22,740.30. Damages were computed as follows:

Cost of property redemption $103,524.86
Counsel fees for property redemption 2,174.36
Correction and completion of defendant’s work 9,069.48
Deposit paid to defendant 11,000.00
Total cost of property $125,768.70
Contract price 108,000.00
Increased cost to plaintiffs $17,768.70
Additional mortgage interest of Vi percent for thirty years discounted 4,971.60
Total damages $22,740.30

Judgment was also rendered for the plaintiffs on the defendant’s counterclaim.

The defendant’s first claim is that the court erred in finding that the defendant breached the contract. This court disagrees with that claim. It is the contention of the defendant that since the closing date had passed, the plaintiffs waived their right to performance on October 30,1978, by working on the premises during November and December, 1978. Asserting that “[w]hen time is not the essence of a contract and the conduct of the parties creates a vacuum as to a date for performance, there is no date for performance until one party makes a formal demand to close,” the defendant maintains that “it was not until January 3, 1979, that the Plaintiffs demanded that the Defendant close on or before January 20,1979.” Therefore, it is his position that if any breach occurred, it was on January 20, 1979, and damages should be measured from that time.

“ ‘The law is that a day fixed in a contract for closing title, without more, is merely formal; but if it is stipulated that time is of the essence, or the circumstances are persuasive that that is the case, prompt performance is essential, and it is also the law that where the time fixed is regarded as a formality only, and the period has gone by, or where time is of the essence and there is a waiver, that time may nevertheless be made of the essence by formal demand that the title be closed by a given day; but the time given must be reasonable.’ Orange Society v. Konski, 94 N.J. Eq. 632, 635 [121 A. 448, aff’d, 95 N.J. Eq. 254, 122 A. 753 (1923)]. Of course, ‘The fact that a contract sets a date for the closing of a transaction does not of itself make time of the essence of the contract.’ Droppers v. Rand, 208 Wis. 681, 686 [242 N.W. 483 (1932)].” Calandro v. Koons, 17 Conn. Sup. 374, 380 (1951).

The trial court specifically found that “[t]he defendant breached the contract [on December 20,1978] and in the absence of circumstances of excuse or waiver, plaintiffs are entitled to recover any damages they have suffered by reason of said breach.” We will not disturb the court’s findings of a breach of contract by the defendant, and of an absence of excuse or waiver of such breach by the plaintiffs, unless they are clearly erroneous. Practice Book § 3060D. That is not the case here. The date of the defendant’s breach having been found to be December 20, 1978, all damages were appropriately calculated as of, and from, that day.

The remainder of the defendant’s claims of error relate to the court’s computation of damages. He complains of the inclusion in the award of (1) the cost of regrading the land, (2) expenses incurred in the completion and repairs after the plaintiffs’ occupancy of the home began, (3) attorney’s fees incurred by the plaintiffs in defending the foreclosure action brought by Citizens National Bank of Fairfield, and (4) the mortgage interest rate differential.

“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 that which he would have been in had the contract been performed.” Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309, 460 A.2d 488 (1983); Sperry v. Moler, 3 Conn. App. 692, 695, 491 A.2d 1115 (1985); Barnicoat v. Edwards, 1 Conn. App. 652, 654, 474 A.2d 808 (1984). Each of the elements of damages disputed by the defendant falls within the parameters of this general rule, and the court’s award cannot be said to have been clearly erroneous. Beckman v. Jalich Homes, Inc., supra, 310.

The relevant standard formula for computing the appropriate measure of damages in cases such as this is “the reasonable cost of construction and completion in accordance with the contract.” Levesque v. D & M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976). Thus, the cost of regrading the land and the expenses incurred by the plaintiffs to complete the home and repair the defendant’s work after they took possession were appropriately included in the amount of damages awarded to them by the court.

The attorney’s fees incurred by the plaintiffs in defense of the foreclosure action instituted by Citizens National Bank of Fairfield were the direct result of their lis pendens against the property which made them parties to the proceedings. Since this prior suit for specific performance was then pending, the lis pendens and the subsequent defense by the plaintiffs in the foreclosure action were necessary for the preservation of their contractual rights and interest in the foreclosed property. Thus, the plaintiffs’ attorney’s fees incurred in defense of the foreclosure proceedings were properly included in the damage award.

Finally, with regard to the mortgage interest differential, such damage naturally flowed from the defendant’s breach of contract and was correctly granted. The parties contemplated that the purchase of the home was to be financed by a mortgage. Indeed, the contract signed by the parties specifically required the plaintiffs to apply to the defendant’s first mortgagee, the Newtown Savings Bank, for that mortgage, which they did. The delay in the closing of the purchase of the premises by the plaintiffs, during which the dramatic rise in interest rates occurred, was caused by the defendant and the additional expense is, under these circumstances, a proper item of consequential damage for consideration by the court. It was the defendant who breached the contract. The resulting additional interest costs are attributable to this breach. The defendant is allowed, however, to benefit from the plaintiffs’ private mortgage arrangements for a reduced increase in rate. Under very similar circumstances the trial court awarded the mortgage interest differential as an element of damages in Cohen v. Meola, 37 Conn. Sup. 27, 36, 323 A.2d 553 (1980). Our Supreme Court upheld that ruling without articulation, stating that “[bjecause of the comprehensiveness of the memorandum of decision filed by the trial court, we adopt the trial court’s decision as a statement of the facts and the applicable law.” Cohen v. Meola, 184 Conn. 218, 221, 439 A.2d 966 (1981).

There is no error.

In this opinion the other judges concurred.

       The fifth issue raised in the defendant’s preliminary statement of issues claiming that the court erred in failing to find for the defendant on the counterclaim was not briefed and is considered abandoned. State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).


text:
    Melvin J. Jetmore, Jr. v. Elvira M. Jetmore
    (3423)
    Hull, Spallone and Daly, Js.
    Argued January 14
    decision released April 1, 1986

      Francis J. Pavetti, with whom, on the brief, was Jane W. Freeman, for the appellant (plaintiff).

      Mary E. Holzworth, with whom, on the brief, was Kathleen R. Gravalec, for the appellee (defendant).
   Daly, J.

This is an appeal by the plaintiff husband from the denial of his motion to open and modify the judgment of dissolution of the marriage between the parties.

On May 9, 1984, the trial court issued a memorandum of decision dissolving the marriage. The judgment of dissolution provided, inter alia, that the defendant was to quitclaim her interest in the jointly held real estate, which was the main asset of the marriage, to the plaintiff who in turn would execute a mortgage note and deed for $25,000 with interest to the defendant. No alimony was awarded to either party. The plaintiff moved to open and modify the judgment to make clear that title to the realty had not been held jointly, but was solely in the plaintiffs name, and to eliminate the execution of the mortgage note and deed by the plaintiff. The defendant moved to correct the judgment to reflect that, while the real property was not in joint names, it had been acquired by the parties during the pendency of the marriage with an equitable interest in the defendant. In a memorandum of decision dated July 10, 1984, the court denied the plaintiffs motion to open and modify but did correct the original memorandum of decision by eliminating the joint ownership reference. The court also noted the defendant’s equitable interest claim and reaffirmed all other findings and orders in the original memorandum of decision. The plaintiff appealed and the defendant moved for an allowance for attorney’s fees to defend the appeal and was awarded $2500 by the trial court, Schaller, J.

The facts are not in dispute. The parties had separated after approximately seven and one-half years of marriage. Shortly after the marriage, land consisting of 100 acres located primarily in Griswold was purchased for $80,000. Through their joint efforts, they constructed a house on the premises. At the time of trial, the residence had an appraised value of between $122,000 and $152,000, with a mortgage balance of $60,000. Both parties were employed and in poor health. The plaintiff grossed $31,000 per year in comparison to the defendant’s $13,260.

Pursuant to General Statutes § 46b-81, the defendant was ordered to quitclaim her equitable interest in the premises to the plaintiff in return for a mortgage note and deed for $25,000 payable with interest at 7 percent per annum over seven years.

The plaintiff makes the following claims on appeal: (1) that the court’s original memorandum (May 9,1984) is inconsistent with the corrected judgment (July 10, 1984), arguing that the second decision had the effect of reversing the first decision’s assignment order because the defendant had only an equitable interest but not legal title to the property; (2) that because there was no cash in the plaintiff’s estate the trial court invalidly assigned $25,000 in cash to the defendant; and (3) that the trial court erred in awarding $2500 to the defendant to defend the appeal.

“ ‘The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.’ ” McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982). “The trial court is ‘in a clearly advantageous position to assess all of the circumstances surrounding a dissolution action, in which personal factors such as the demeanor and the attitude of the parties are so significant.’ ” Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985). “In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action.” Id.; Kinney v. Kinney, 5 Conn. App. 484, 485, 500 A.2d 569 (1985).

The trial court properly corrected the original memorandum of decision deleting the joint ownership reference. “ Tt is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake.’ . . . If a memorandum incorrectly formalizes the decision that was reached in deliberation, it should be corrected.” Lamont v. New Hartford, 4 Conn. App. 303, 306, 493 A.2d 298 (1985).

Because the first two claims of error raised by the plaintiff challenge the propriety of the trial court’s award under General Statutes § 46b-81, these claims will be considered together. Section 46b-81 confers broad powers upon the court in the assignment of property and provides that the court “may assign to either the husband or wife all or any part of the estate of the other.” In any order entered under § 46b-81, the court may consider such factors as the “estate, liabilities and needs of each of the parties.” “We have repeatedly held that the trial court, in a dissolution action, [may exercise] wide discretion in the type and amount of alimony to be awarded . . . and in the property to be transferred.” Schmidt v. Schmidt, 180 Conn. 184, 191-92, 429 A.2d 470 (1980); see Hollingsworth v. Hollingsworth, 180 Conn. 212, 213, 429 A.2d 463 (1980).

The trial court considered the feasibility of ordering a sale of the premises and also recognized that the defendant claimed an equitable interest in the real estate. Nevertheless, the trial court ordered the defendant to quitclaim her interest in return for a mortgage deed and note. Such encumbrances upon real estate are common and sanctioned in Garrison v. Garrison, 190 Conn. 173, 176, 460 A.2d 945 (1983), Beede v. Beede, 186 Conn. 191, 197, 440 A.2d 283 (1982), and Hollingsworth v. Hollingsworth, supra, 213.

The trial court’s decision falls within the purview of § 46b-81. Ridgeway v. Ridgeway, 180 Conn. 533, 543-44, 429 A.2d 801 (1980). It is immaterial whether the real estate was in one or both names. The “estate” of the parties as referred to in § 46b-81 “comprehends the aggregate of the property and liabilities of each. . . . We construe the language of § 46b-81 to authorize the trial court to enter the order it did here. In doing so, it did not abuse its discretion.” (Citation omitted.) Schmidt v. Schmidt, supra, 192. The court did not err in ordering the assignment of $25,000 in cash from the plaintiffs estate to the defendant under § 46b-81.

The plaintiff further claims that the court erred in awarding the defendant $2500 to defend the appeal. “The decision to award attorney’s fees is made independently from a decision to award alimony or to assign property in a dissolution action. . . . Therefore, if a trial court does make other financial awards, this does not mean that it must also, ipso facto, make an award of attorney’s fees. This is evident in the language of General Statutes § 46b-62, which permits, without requiring, a trial court to award attorney’s fees after considering the respective ‘financial abilities’ of the parties‘and the criteria set forth in section 46b-82.’ . . . We have also noted that the availability of ‘sufficient cash’ to pay one’s attorney’s fees is not an absolute litmus test for making an award pursuant to General Statutes § 46b-62. . . . This is because a trial court’s discretion should be guided so that its decision regarding attorney’s fees does not undermine its purpose in making any other financial award.” (Footnotes added.) Fitzgerald v. Fitzgerald, 190 Conn. 26, 32-34, 459 A.2d 498 (1983).

Whether a spouse has sufficient liquid funds to pay for attorney’s fees can only be determined by examining the total financial resources of the parties in light of the statutory criteria. Id.; Ellsworth v. Ellsworth, 6 Conn. App. 617, 621, 506 A.2d 1080 (1986); Vaiuso v. Vaiuso, 2 Conn. App. 141, 151, 477 A.2d 678 (1984). “Therefore, if, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees. If, on the other hand, the trial court concludes, based on the total financial resources of the parties, that denying an award of counsel fees would undermine its prior financial orders, then it may award counsel fees to the requesting party. An abuse of discretion in denying an award of counsel fees will only be found if this court determines that the trial court could not have reasonably concluded as it did.” (Citations omitted.) Fitzgerald v. Fitzgerald, supra, 34.

We cannot find that the court abused its discretion or acted unreasonably in granting the defendant’s request for attorney’s fees.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46b-81 provides in pertinent part: “assignment of property and transfer OF title, (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. . . .
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court after hearing the witnesses . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-62 provides in pertinent part: “orders for payment of attorney’s fees in certain actions. In any proceeding seeking relief under the provisions of this chapter and sections 17-323a, 17-323b, 45-162, 46b-1, 46b-6, 46b-204, 47-14g, 51-348a and 52-362, the court may order either spouse to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.”

       General Statutes § 46b-82 provides in pertinent part: “alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. ... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81. ...”