Peterson v. McAndrew

160 Conn.App. 180

125 A.3d 241

James M. PETERSON

v.Monica McANDREW et al.

No. 36327.

Appellate Court of Connecticut.

Argued March 4, 2015.

Decided Sept. 29, 2015.

Kimberly A. Knox, with whom was Dana M. Hrelic, Hartford, for the appellant-appellee (plaintiff).

Mark S. Gregory, for the appellees-appellants (defendants).

BEACH, PRESCOTT and BEAR, Js.

BEACH, J.

The plaintiff, James M. Peterson, appeals from the judgment of the trial court rendered, in part, in favor of the defendants, Monica McAndrew and David M. Chute, and the defendants cross appeal. The dispute arises from an agreement whereby the plaintiff was to purchase a parcel of land from the defendants.¹ Although the defendants owned the entire parcel, it was not possible to convey marketable title to the entire parcel. The plaintiff claims that the court erred in concluding that (1) the defendants did not breach the contract; (2) the defendants were not unjustly enriched by the full amount of the plaintiff's deposit; (3) the parties were not mutually mistaken as to what was being conveyed when they signed the purchase and sales agreement; (4) Chute did not make misrepresentations of fact to induce the plaintiff to enter into the sales agreement; (5) Chute did not violate the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq. ; and (6) the defendants were entitled to attorney's fees pursuant to the contract. On cross appeal, the defendants claim that the court erred in (1) concluding that enforcement of the liquidated damages provision of the contract, as written, resulted in unjust enrichment, and (2) awarding attorney's fees in a lesser amount than requested. We agree with the defendants' claim regarding the unjust enrichment count and disagree with the remaining claims of both parties. Accordingly, we reverse in part the judgment of the trial court.

The following facts, as found by the trial court and as revealed in a joint stipulation of facts that was expressly adopted by the trial court, are relevant to our resolution of these appeals. In 2009, the defendants owned a single-family residence at 43 Rowayton Avenue in Norwalk. They listed the property for sale, describing it as "direct waterfront property" with "expansive sandy beach." In February, 2011, the plaintiff became interested in purchasing the property and met with Chute. During this meeting, Chute told the plaintiff that the property had benefited from accretion² and that the property that he was offering for sale included the land to the current mean high waterline. Chute provided the plaintiff with a survey of the property, which showed a property line depicted on map # 591 of the Norwalk land records (591 map). The 591 map was recorded in the Norwalk land records in 1924. It depicted a subdivision of a substantial tract of land. The 591 map labelled the property at issue in this case as "lot 3" and showed it bounded by Rowayton Avenue on the east and on the west by the approximate mean high waterline as it existed at that time (591 line). Since 1924, the physical condition of the property changed, and the portion of the property that was bounded by the mean high waterline on the west had expanded as a result of accretion. During the February, 2011 meeting, Chute told the plaintiff that he owned the property between the 591 line and the current mean high waterline. In their discussions prior to the execution of the contract, the parties did not consider the nature of the title to be conveyed.

In April, 2011, the plaintiff and the defendants entered into a purchase and sales agreement (contract) for the sale of the property. Both the plaintiff and Chute had reasonable levels of business sophistication. The purchase price for the property, as set forth in the contract and agreed upon by the parties, was $2,550,000. To comply with a condition of the contract, the plaintiff deposited $255,000 with the defendants' counsel. Paragraph 1 of the contract provides: "The seller in consideration of the purchase price hereinafter specified, hereby agrees to sell and convey, and the buyer hereby agrees to purchase the real property commonly known as 43 ROWAYTON AVENUE, ROWAYTON (NORWALK), Connecticut and specifically described in Schedule A attached hereto...."

The contract provides in schedule A that the property at issue was bounded on the west by the 591 line, or, in other words, by the 1924 mean high waterline. By the action of accretion over the years, the current mean high waterline was farther west than the 1924 mean high waterline. The 1924 mean high waterline coincided with a bulkhead consisting of piers and tarred material. At that time, the bulkhead established the western boundary of the property. In the early 1930s a masonry wall was constructed to the west of the original bulkhead. Since then, additional beach area to the west of the masonry wall line has been created by accretion.

Before and after the execution of the contract, the plaintiff and Chute talked about demolishing the existing house and constructing a new house. The plaintiff knew that Chute had built several single-family houses. He liked Chute's work and hoped that he and the defendants would reach an agreement for the construction of a single-family residence on the property. After the contract was signed, the plaintiff and Chute developed plans for the construction of a house and a swimming pool. When Chute provided a copy of the plans to Norwalk zoning officials, he was asked to provide the zoning office with proof of ownership of the area west of the 591 line. Subsequent research into ownership of the property revealed, as previously discussed, that the property had been built up over the years by a combination of accretion and fill.

At all relevant times, the defendants were ready, willing and able to convey marketable title³ to the property specifically described in schedule A of the contract, and to quitclaim all of their title to and interest in the property located west of the 591 line. The plaintiff was ready, willing and able at all times to pay the total purchase price required in the contract upon receipt of a warranty deed conveying marketable title to all of the land bounded on the east by Rowayton Avenue and on the west by the current mean high waterline. The plaintiff was not willing to pay the full purchase price unless the warranty deed conveyed marketable title to the property to the current mean high waterline, and the defendants were not able to do this. By e-mail dated June 30, 2011, the plaintiff demanded that the defendants close on the property; by an email of the same date, the defendants stated that they were prepared to close and to deliver good title to the premises described in the contract (schedule A). A closing never was scheduled.

By letter dated July 8, 2011, the plaintiff noted that the contract was terminated and demanded the return of the deposit. The defendants refused to return the deposit and sold the property to a third party in August, 2011, for $2,525,000, which was $25,000 less than the purchase price agreed upon by the plaintiff and the defendants. The plaintiff has demanded and the defendants continuously have refused to return to the plaintiff the $255,000 deposit. The court determined that it was unnecessary to reach any conclusion as to who actually owned the property west of the 591 line, but nonetheless said that the more persuasive evidence indicated that the defendants owned the property to the current mean high waterline. Had the plaintiff completed the transaction as suggested by the defendants, he would have owned the property to the current mean high waterline.

In his fourth amended complaint, the plaintiff alleged breach of contract and unjust enrichment against both defendants, and negligent misrepresentation, fraudulent misrepresentation, and a violation of CUTPA, innocent misrepresentation and mutual mistake against Chute. The defendants filed a counterclaim alleging that the plaintiff was unjustly enriched by the work performed by Chute in preparing for the construction of the improvements.

After a trial, the court initially found in favor of the defendants on the plaintiff's entire complaint and found in favor of the plaintiff on the defendants' counterclaim. The plaintiff filed a motion for reargument/reconsideration of the breach of contract and unjust enrichment counts of his complaint. The court revised its initial decision on the unjust enrichment claim and rendered judgment in favor of the plaintiff in the amount of $124,266. It reaffirmed its judgment as to all other counts of the complaint. The defendants filed a motion for attorney's fees. The court granted the motion and awarded attorney's fees of $80,000 and "disbursements incurred by the defendants" in the amount of $741.35. These appeals followed.

I

The plaintiff first claims that the court erred in rendering judgment against him as to the count alleging that the defendants breached the contract. We disagree.

The court observed that the contract obligated the seller, upon receiving the total purchase price, to convey to the plaintiff the premises described in schedule A. The court determined that the contract's description of the property to be conveyed with marketable title was unambiguous. The court reasoned that schedule A, referenced in the contract, defined the property as that described as lot 3 on map 591. The plaintiff claimed that the defendants had been obligated to convey marketable title to the accreted strip extending to the current mean high waterline in addition to the property described in schedule A. The court stated that because the contract was unambiguous, it ought not look beyond the four corners of the contract, and that taking the plaintiff's position would require it to ignore or to violate the parol evidence rule.

The plaintiff argues that the court erred in determining that the defendants were obligated to convey marketable title only to property...