Hill v. Raffone

930 A.2d 788

103 Conn.App. 737

Kenny HILL v. Joseph RAFFONE.

Kenny Hill v. 119 Olive Street, LLC.

No. 27717.

Appellate Court of Connecticut.

Argued May 22, 2007.

Decided September 18, 2007.

Douglas J. Varga, with whom, on the brief, was Sarah W. Poston, Bridgeport, for the appellant (plaintiff).

Jeffrey M. Sachs, Hamden, for the appellees (defendants).

BISHOP, LAVINE and FOTI, Js.

FOTI, J.

The plaintiff, Kenny Hill, appeals from the judgments of the trial court, rendered in favor of the defendants Joseph A. Raffone¹ and 119 Olive Street, LLC, after a trial to the court in this consolidated action sounding in contract for the sale of real property. On appeal, the plaintiff claims that the court abused its discretion by refusing to order specific performance. Specifically, the plaintiff claims that the court (1) improperly applied the election of remedies doctrine, (2) incorrectly found that it would be difficult for the court to fashion and enforce an order for specific performance, and (3) incorrectly found that his attorney made a serious misrepresentation in his letter to the defendant's attorney.

We affirm the judgments of the trial court.

The property in question, 119 Olive Street, New Haven, was purchased in 2000 by the defendant.² On September 6, 2001, the defendant and the plaintiff signed a written contract under which the property would be transferred from 119 Olive Street, LLC, to the plaintiff for $307,500. The contract included by reference a first addendum, which concerned repairs that needed to be made to the premises.³

The defendant's father, Joseph Raffone, Sr., acted as his broker. On October 3, 2001, the plaintiff's real estate broker, John Migliaro, faxed the defendant a report of the plaintiff's inspection of the property. This report listed several repairs that still had to be made by the defendant. On October 24, 2001, the plaintiff and the defendant signed a second addendum to the contract. This addendum contained five clauses, some concerning the repairs previously mentioned and the others concerning the closing. Specifically, the plaintiff wanted the defendant to credit the plaintiff $1000 at the closing for defects that the plaintiff found during the inspection and wanted repaired, and the plaintiff wanted to pay an additional deposit of $9000 when all conditions of the agreement had been satisfied.

On November 12, 2001, the plaintiff inspected the property and observed that neither the heating systems nor the installation of the Sheetrock on the basement ceiling had been completed. Joseph Raffone, Sr., assured the plaintiff that the work would get done. As a result of that assurance, the plaintiff paid him the $9000 deposit. On December 3, 2001, the defendant requested an extension of the closing date to January 15, 2002, and on December 6, 2001, the plaintiff agreed to the extension. On January 10, 2002, the plaintiff and the defendant inspected the property together and found several incomplete repairs, including the installation of two of the new heating systems. On that same day, the plaintiff's attorney sent a letter to the defendant's attorney. The letter stated that there were several repairs that had to be done and asked the defendant to keep the plaintiff informed of progress on those repairs.

In the weeks that followed, several letters passed between the parties and their attorneys. These letters discussed repairs that had been completed and repairs that needed to be completed prior to the closing. On January 30, 2002, the plaintiff's attorney sent the defendant's attorney a letter listing the repairs that had not been completed and also noting several credits that he believed should be granted at closing. In addition, the letter stated that because interest rates had risen from the time of the original closing, the defendant "should contribute to any buydown required to get the rates close to those at the original closing." The defendant's attorney responded to the letter by stating that the defendant would install a new boiler for the second floor and that his client would be ready, willing and able to convey the property to the plaintiff on February 8, 2002. In response to the defendant's attorney, the plaintiff's attorney, in his second letter dated January 30, 2002, stated that his rate lock would expire if the transaction occurred after January 31, 2002, and that if the closing did not take place on that date, the defendant would be responsible for paying the plaintiff $5000 in consideration for the extension of the closing date. The court found that there was no evidence in the record that the plaintiff's interest rate was going to rise if the parties did not close by or before January 31, 2002. There was, however, evidence that the plaintiff's mortgage commitment was valid through February 12, 2002, which was beyond the requested February 8, 2002 extension date.

On January 31, 2002, the plaintiff's attorney sent another letter to the defendant's attorney in which he stated that the closing had to take place that day on the terms of his previous letters, or the parties had to resolve all issues by 5 p.m. that day. If neither of these conditions was met, then the letter would serve as a demand for the return of the deposit. On February 6, 2002, the defendant's attorney sent the plaintiff's attorney a letter in which he stated that if the plaintiff was not willing to close, the defendant was willing to return the plaintiff's deposit in exchange for an execution of mutual releases. Thereafter, the plaintiff filed separate actions against the defendant and 119 Olive Street, LLC, alleging breach of contract and seeking specific performance as the remedy. He claimed that the defendants had breached the contract by failing to comply with all of the plaintiff's conditions: installing four new heating systems, painting the third floor porch and repairing the basement Sheetrock. Both defendants filed counterclaims, alleging that the plaintiff had breached the contract and therefore that they were entitled to keep the deposit as liquidated damages.⁴ The court rendered judgments in favor of the defendants on the complaints and in favor of the plaintiff on the counterclaims. Although the court found that the defendant had breached the contract and that the plaintiff was entitled to the return of his deposit, the court held that awarding specific performance would not be equitable.⁵ The plaintiff appeals from the judgments, challenging the court's refusal to award specific performance of the contract. Additional facts will be set forth as necessary.

The plaintiff claims that the court abused its discretion when it failed to order specific performance after finding that the defendant had breached the contract. Specifically, the plaintiff argues that the factual findings the court relied on in fashioning its remedy were clearly erroneous. We disagree.

Prior to examining the plaintiff's claim, we set forth the legal principles that guide our review. "Specific performance is an equitable remedy permitting courts to compel the performance of contracts for the sale of real property, and certain other contracts, pursuant to the principles of equity." Jaramillo v. Case, 100 Conn.App. 815, 828, 919 A.2d 1061, cert. denied, 283 Conn. 902, 926 A.2d 670 (2007). Our standard of review is abuse of discretion because "[t]he granting of specific performance of a contract to sell land is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity." (Internal quotation marks omitted.) Id.

A court's decision to deny the remedy of specific performance in a breach of contract action is fact specific. "Questions of fact are subject to the clearly erroneous standard of review. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court's function to weigh the evidence . . . we give great deference to its findings." (Internal quotation marks omitted.) Id., at 823, 919 A.2d 1061.

I

The plaintiff first claims that the court improperly applied the election of remedies doctrine because his choice of specific performance was consistent...