Stephanie Salzano et al. v. Mark H. Goulet et al. (2012)

CORRECTED MEMORANDUM OF DECISION (Correction to Memorandum of Decision dated January 10, 2012.   Correction made was re error in IV Conclusion second paragraph on counts)

This complex and fact-specific case arises from the sale of a house by Elizabeth and Mark Goulet (the Goulets).   The house was located in the town of Cheshire and situated on a non-conforming lot that was contiguous to another nonconforming lot, both of which were owned by the Goulets.¹  Out of that sale has come an avalanche of litigation.

The buyers of the house, Stephanie Salzano and Carolyn Stanat (the Salzanos),² have sued the Goulets for breach of warranty and fraud.   The Salzanos have also sued the Law Offices of Alan B. Silver LLC and Attorney Alan Silver who was their lawyer at the closing (together, Silver), for legal malpractice.³

The Goulets, in turn, have sued the law firm of Elliot, Stanek & Sciota (the ESS Firm) for legal malpractice and also sued Attorney Mark Sciota (Sciota) for legal malpractice.   The Goulets also have sought indemnification from both the ESS Firm and Sciota in defending their suit against the Salzanos.⁴  The Goulets also appealed the decision of the zoning board of appeals of the town of Cheshire after being refused a building permit;  a case which made its way to the Appellate Court.   See Goulet v. Zoning Board of Appeal of the Town of Cheshire, 117 Conn.App. 333, cert. denied, 294 Conn. 909 (2009).

While the zoning case made its way through the appellate process, the other claims of the Salzanos and Goulets were put on hold and have now returned to court where the combined cases were tried to this court on June 28–30, 2011.   Thereafter, all parties filed briefs and reply briefs.⁵  The court has carefully reviewed the evidence presented and the arguments of counsel and makes the following findings of fact and conclusions of law.

I. FACTS ABOUT THE PROPERTIES AT ISSUE

The claims of the parties are based upon the nature of the two parcels of property that were owned by the Goulets.   The court finds it useful to begin with the Appellate Court opinion, which set forth the following facts:

The plaintiffs, Elizabeth Goulet and Mark Goulet, appeal from the judgment of the trial court affirming the decision of the defendant, the zoning board of appeals of the town of Cheshire, affirming the decision of Lisa Murphy, the town zoning enforcement officer, to deny the plaintiffs' application for a zoning permit to build a single-family residence.   On appeal, the plaintiffs argue that the court improperly determined that (1) two parcels merged by operation of § 24.8 of the Cheshire zoning regulations and (2) the board did not arbitrarily interpret § 24.8. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to our discussion.   On April 8, 1970, the town of Cheshire (town) adopted zoning regulations.   In 1972, Elizabeth Goulet acquired title to property known as lot 19 in Cheshire.   At all relevant times, a single-family home has been located on lot 19.   Five years later, she obtained title to a contiguous parcel of unimproved land known as lot 18.   Lots 18 and 19 are located in an R–20 zoning district.   Neither lot 18 nor lot 19 meets the minimum dimensional requirements of the zoning regulations for an R–20 zone.   Elizabeth Goulet owned both lots from 1977 until the conveyance of lot 19 to a third party on July 12, 2002.

On or about July 14, 2005, the plaintiffs filed an application for a building permit to construct a single-family residence on lot 18.   By letter dated August 24, 2005, Murphy denied the application for lack of zoning certification.   The plaintiffs filed an appeal to the board, which held a hearing.   On December 5, 2005, following a 3–2 vote in favor of the plaintiffs, the appeal was denied because it failed to meet the statutory requirement of four concurring votes necessary to sustain the appeal.

On December 27, 2005, the plaintiffs filed an appeal to the Superior Court from the board's decision.   The court issued a memorandum of decision denying the appeal on December 19, 2006.   Specifically, the court concluded that the lots 18 and 19 were in common ownership during the time of certain amendments to the town's zoning regulations and, therefore, merged by operation of § 24.8 of the Cheshire zoning regulations.   It then determined that the denial of a building permit for lot 18 was not arbitrary, unreasonable or contrary to law.   Consequently, it affirmed the decision of the board.  (Footnotes omitted.)   Id., 335–36.

II. ADDITIONAL FACTS

In addition to the facts set forth by the Appellate Court, this court makes the following additional findings.   In 1996, Elizabeth Goulet quit-claimed her interest in both lot 18 and lot 19 to herself and her husband Mark Goulet.   Attached to this quitclaim deed was a “Schedule A,” which was a single piece of paper upon which were written descriptions of both lots.⁶

In 2001, the Goulets decided to sell the house lot (lot 19) and keep the other lot (lot 18) with the intention of building a house on it.   To that end, on October 15, 2001, the Goulets entered into a contract with a realtor to list lot 19.   That same day, Elizabeth Goulet and the realtor went to the Cheshire town hall to look up the deeds in the vault.   While there, Lisa Murphy (Murphy), the Cheshire zoning enforcement officer, overheard them talking and volunteered that there might be a zoning issue due to the lot size of the Goulets' two properties.   Murphy then gave Elizabeth Goulet copies of the Cheshire zoning regulations pertaining to the minimum lot size allowed and also the Cheshire zoning regulation pertaining to merger.⁷

At that point, the Goulets took the house off the market and contacted Attorney Robert Stanek (Stanek), a partner in the ESS Firm. Elizabeth Goulet brought the papers she had been given by Murphy and asked Stanek if he would find out whether she had a legal building lot.   Stanek said that he would refer the matter to Sciota because it was an area in which he specialized.

Sciota testified that Stanek asked him to look at the two parcels of property in the town of Cheshire and to offer an opinion as to whether they were legal nonconforming lots.   Sciota then had an associate attorney do a title search of the properties and collected data from the tax collector's office and the assessor's office.   Sciota also reviewed the Cheshire zoning regulations but he did not go down to the zoning office.

By letter dated November 30, 2001, Sciota sent a letter to Murphy in which he wrote that he had performed a title search at the request of the Goulets concerning the lots at issue and recounted his title search.   The letter then states:

As with the first parcel, the description of the second piece did not change during the chain of title.

Under the State Statutes and your regulations, it is my understanding that as long as these parcels remained distinct and separate at the time your regulations were enacted in 1949, then the properties are still separate building lots.   In fact, one of the properties has had a house on it since the 1920's.

If you do not concur with this opinion, please contact me at your earliest convenience to discuss this matter.   My client will be looking for a building permit for the lot without the home upon it.

Murphy never responded to Sciota's letter.   At trial, Sciota acknowledged that Murphy was not required to respond to it and that it did not bind the town of Cheshire to anything.   Prior to sending the letter Sciota also relayed his opinion to Stanek.

Either right before or after Sciota sent the letter to Murphy, Elizabeth Goulet received a copy of the letter and had her first conversation with Sciota.   In that phone call, Sciota told her that he had done a search on the property and that her unimproved lot was a legal building lot that had been “grand-fathered.”   This testimony was essentially unchallenged, although Sciota testified that he did not remember talking to Elizabeth Goulet.⁸  At that point, Elizabeth Goulet figured “everything was good to go to sell—I could resume to sell off my parcel that I wanted to sell the house on and retain the other piece.”   Goulet also testified that if she had known that lot 18 would not be considered to be a valid building lot she might have sold both parcels together or improved the house by putting a two-car garage on it and sold it all as one parcel.

In reliance upon Sciota's opinion, the Goulets decided to retain ownership of lot 18 and to put the house, lot 19, back on the market.   The latter proved unnecessary, however, because the Goulets and the Salzanos were able to come to terms about lot 19 without the assistance of a realtor.   The sale price agreed to was $139,500.   A contract was signed in June 2002 and the closing was held on July 12, 2002.   During discussions, Elizabeth Goulet also offered to sell the Salzanos the adjoining unimproved property, lot 18, as a separate sale, and Salzano testified that he intended to purchase it after the Salzanos moved into the house on lot 19.⁹

Subsequently, Sciota became aware that the Goulets were going to sell lot 19 and that Stanek was going to represent them at the closing.   Sciota never suggested to Stanek that they should try to clarify any zoning issues prior to the closing because Sciota was of the opinion that there were two separate lots.   At the closing, the Goulets were represented by Stanek and at no time during the period surrounding the closing did Stanek raise the issue of merger.

The Salzanos, who had never purchased real property before, were represented at the closing by Silver who testified that it was his job to determine the legalities of the properties after the title search had been performed, which in this case had been done by Silver's brother.   Attorney Silver testified that he did not know the Salzanos prior to the closing and that, to the best of his recollection, he began working on the closing after getting a search order from the mortgage company.   Silver stated that his role would have been to represent the interests of both the Salzanos and the mortgage company.¹⁰  Silver further testified that it was his responsibility to see if there was a chain of title and to check for encumbrances.

As noted, Silver ordered a title search of the property, which the searcher did, returning with a batch of notes and documents that included the quitclaim deed of 1996 along with the descriptions of the two parcels on “Schedule A.” See footnote 3. This quitclaim deed was the last document in the chain of title, which Silver knew was important because he testified that “you want to make sure that the person who is going to be selling the property is the person that owns the property.”

Silver was aware from the documents that the house that the Goulets were selling had been built prior to the inception of zoning regulations in Cheshire.   He was also aware from the documents that the lot was a nonconforming lot in terms of size.   Silver reviewed all the documents and “saw nothing here that would lead me to the concept of merger.   Nothing.”  Silver further testified that he was aware of the common law doctrine of “merger” from his law school days and that if the issue of merger had come into his mind, Silver would have halted the closing and investigated the issue.

Although the term “merger” was not used at the closing, according to Salzano, there was some discussion between Silver, Stanek and Goulet about whether the Goulets' other piece of property, lot 18, was a legal building lot.   As part of the closing documents, the Goulets presented an “owner's special title and survey report” in which they failed to check off any answer to the question:  “Does your Property share a common driveway with any adjoining property.”

Salzano testified that at the time of the closing they knew that they were purchasing only lot 19 from Goulet and not lot 18.   The Salzanos also signed the necessary paperwork at Silver's direction.   Salzano testified that Silver was hired to “protect my interests.   This was a major purchase, here.”

In early May 2003, the Salzanos met with Murphy to discuss the status of lot 18.   In a letter dated May 5, 2003, which the Salzanos sent to Silver, the Salzanos claimed that during the meeting Murphy stated that the sale of lot 19 without the inclusion of lot 18 “looks like an illegal sale” due to the merger requirement of the Cheshire zoning regulations and that Murphy thought that lot 18 should have been included in the sale of the house lot.   Murphy also suggested that they talk to an attorney.   After relating, inter alia, what they claimed had been said by Murphy,¹¹ the Salzanos wrote that “[w]e believe we need a lawyer to do an in-depth title search and are hoping to prove that the 0.14 acres of property on Poplar Drive in Cheshire [lot 18] is also the rightful property of those owning the adjoining 114 Poplar Drive, namely Stephanie Salzano and Carolyn Stanat.”

Thereafter, there was a meeting at Silver's office between the Salzanos, Silver and a paralegal in Silver's office about the issue.   Salzano claimed that when confronted with the property deeds and zoning regulations, Silver admitted that he erred—a statement which Silver denied making.   Salzano further testified that he came away thinking that Silver was going to help them resolve the issue, a feeling that dissipated when he got what he called a “bogus bill” from Silver.

The Salzanos also wrote to the town of Cheshire regarding the issue of their property.   The town responded that it was of the opinion that the two properties had merged pursuant to the zoning regulations.   The Salzanos were afraid that they now had an illegal lot and hired an attorney and, in turn, filed suit against the Goulets and Silver.   In their complaint,¹² which originally was filed on May 10, 2004, with a return date of June 15, 2004, the Salzanos brought a breach of contract claim against the Goulets, a claim of fraud against the Goulets, claims of malpractice against Silver, and claims of CUTPA violations against Silver.   In the ensuing pleadings, Silver raised as a special defense that the property had marketable title by virtue of General Statute § 8–13a.¹³

The Goulets, in addition to pursuing the above mentioned zoning appeal, also filed a two-count complaint on June 22, 2004, with a return date of July 6, 2004, against the ESS Firm and Sciota alleging malpractice in count one and indemnification in count two.   The Goulets still own lot 18 and claim that it continues to be assessed by the town of Cheshire as a building lot and that they continue to pay taxes on it as such, but no other evidence was presented to the court as to its current fair market value or its value at the time of the sale beyond that set forth in footnote 7.

At the trial, each of the four parties presented the court with expert testimony regarding the claims of legal malpractice.   The court finds that all of the experts were credible even though the court disagrees with some of their opinions.

Attorney Joan C. Malloy (Malloy) testified for the Salzanos.   She testified that although as a general rule in a real estate closing an attorney has no duty to check the zoning records, there may be something in the title search that could trigger such a duty.   Malloy testified that she reviewed the title search documents provided to Silver and that in her opinion there were several such triggers in this case, the first of which was the quitclaim deed's “Schedule A” containing the description of two nonconforming sized parcels on a single document with sequential numbers.   Moreover, she noted that the descriptions referred to a map from 1931 that in all likelihood predated zoning but that there was no map accompanying the title search.   Malloy further testified that the assessor's card referred to this as an “R–20” zone, which typically refers to one-half acre zoning.

In reviewing the contract, Malloy also noted that the warranty deed referred to the parcel being sold as “[b]eing a portion of the premises conveyed to the Grantors herein by Quit Claim Survivorship Deed ․” Malloy opined that the fact that the deed states that only a portion of the property was being conveyed should also trigger a further investigation by the closing attorney.   Based upon her review, Malloy's opinion was that Silver had breached the standard of care by proceeding to the closing without resolving the potential merger issue.   Malloy also testified that § 8–13 a did not cure any marketable title defects as to the land, only to the use of the house which was a further reason for a closing attorney to investigate the issue.

Attorney Richard Beatty (Beatty) testified for the defendant Silver.   He testified that Attorney Silver did not violate the standard for practicing lawyers because there was nothing on the zoning records to indicate that a merger had taken place.   Beatty further testified that there is no obligation for an attorney to go outside the land records unless there was some indication in the title search records that requires further investigation, such as a lis pendens or a deed from an executor.   Beatty further testified that the fact that these lots had merged would not be an encumbrance under the Connecticut Standards of Title because it was not a matter to be found in the land records.   He further testified that “latent violations of zoning issues are not encumbrances on the property and do not violate the warranty against encumbrances.”   Therefore, in Beatty's opinion, the Goulets had marketable title to lot 19 and could transfer it.   He did testify that in reviewing the parcel descriptions on “Schedule A” with their map references “it might” bring up a possible merger issue, and if it came up he would investigate it further.   He further testified that after three years, § 8–13a cured any marketable title defects.   Beatty also testified that a purchaser of a lot that was illegally subdivided could be damaged if the zoning enforcement officer issued a notice of violation and sought a cease and desist order within the proper time frame.

Attorney Robert Hanahan (Hanahan) testified on behalf of the Goulets in their case against the ESS Firm and Sciota.   He testified that at about the time of the property sale, the issue of whether such properties were deemed merged was open to debate and that it was reasonable for Sciota to reach the conclusion that the properties had not merged.   Hanahan further testified that the town of Cheshire had a formal process for obtaining a ruling on the viability of lot 18 (which was the submission of a building permit), and that the standards of care would have required Sciota to obtain such a ruling.   In Hanahan's opinion, because of the specific nature of his assignment, that is after being asked to investigate the zoning issues regarding the property, Sciota did not give the Goulets enough information to make an informed decision about what to do with their property and this fell below the standard of care.   He also testified that the standard of care requires an attorney to advise the Goulets to apply for a building permit and to litigate the issue if the permit was rejected because pursuing the permit would have been a reasonable expenditure of funds.

Attorney Michael O'Connell (O'Connell) testified for the ESS Firm and Sciota.   O'Connell testified that he reviewed all the documents that Sciota used in coming to his (Sciota's) opinion that the two parcels could be treated as separate parcels and that lot 18 could be used as a building lot.   O'Connell further opined that Sciota had not breached the standard of care in coming to that opinion and that Sciota was not required to send the letter to Murphy.   O'Connell further testified that Sciota was not at fault for failing to advise the Goulets to apply for a building permit prior to selling lot 19.   He also testified that the ESS Firm did not breach its standard of care at the closing and in advising the Goulets how to complete and execute the owner's affidavit.   He further testified that Sciota was not required to tell his clients that his opinion as to the legality of the lot was not necessarily the binding law and that selling lot 19 before resolving the issue with the town might cause problems.

In addition to the aforementioned experts, Ronald Diorio, a real estate appraiser, testified for the Goulets as an expert.   The court finds his testimony to be credible.   In Diorio's opinion, in July 2002, the combined value of the two lots, if sold as a single parcel, would have been $162,000.   Diorio did not offer any opinion as to what he thought was the present value of lot 18 or what the fair market value was at the time of the sale.

III. DISCUSSION

A. The Salzanos Claims Against the Goulets1. Breach of Warranty Claim

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Whitaker v. Taylor, 99 Conn.App. 719, 728 (2007).

a. Formation and performance

It is undisputed that the Goulets and the Salzanos reached an agreement for the sale of lot 19, 114 Poplar Drive.   It is also undisputed that the Salzanos tendered moneys for the property.   Accordingly, the court finds that the first two elements of a breach of contract action have been proven.

b. Breach of the agreement

As to the issue of whether there had been a breach of their agreement, the Goulets and Salzanos both signed the “CONTRACT OF SALE OF REAL ESTATE” June 19, 2002.   This contract provides the following, in pertinent part:

6.  CONVEYANCE. At the closing ․ the SELLER shall deliver, and the BUYER shall accept, a full covenant Warranty Deed according to Connecticut practice ․ conveying to the BUYER ․ a good, marketable title in fee simple in and to said premises, free and clear of all encumbrances and exceptions to title (according to the Standards of Title of the Connecticut Bar Association, where applicable) other than those hereinafter stated.14

7. EXCEPTIONS TO TITLE.   The premises will be conveyed to and accepted by the BUYER subject to:

(a) Zoning and building regulations, and any and all provisions of any ordinance, governmental regulation or public or private law affecting said premises provided, there are no violations thereof at the time of closing.

Thus, the agreement called for the Goulets to convey to the Salzanos a property that had marketable title and was free of zoning violations.   The Salzanos argue that such title was not conveyed, and accordingly there was a breach of the contract.   The Salzanos also argue that the Goulets sold the property in violation of the merger clause and thus it was not free from zoning violations.   Essentially, the Goulets do not contest that unmarketable title was conveyed, or that it was in zoning violation at the time, but argue that the there is no breach of contract because the Salzanos have not suffered any damages.

Although there may not have been a definitive court ruling on the merger issue at the time that Salzanos purchased the property, in the wake of the Appellate Court's decision, it cannot be denied that the Goulets were without right to sell only a portion of their merged lot because of § 24.8 of the Cheshire zoning regulations.   As the Appellate Court held, those regulations specifically prohibit the separation and use of a previously merged parcel, which is what happened here.   This court finds that marketable title was not conveyed by the Goulets at the time of the closing.

“An agreement to convey by a good and sufficient warranty deed free of all encumbrances is an undertaking to convey marketable title.”  Frank Towers Corp. v. Laviana, 140 Conn. 45, 52–53 (1953).  “A marketable title is one that can be sold at a fair price to a reasonable purchaser or mortgaged to a person of reasonable prudence as a security for money.   A title is not unmarketable just because the vendee is unwilling to accept it or because it is unsatisfactory to his attorney.   It must be subject to more than just mere suspicion.   To render a title unmarketable, the defect must present a real and substantial probability of litigation or loss.”  Id., 53 (citations omitted).   Where a defect in title is claimed, the court must determine, within its discretion, whether “it is free from reasonable doubt, in law or in fact.”  Id.

“An encumbrance is defined as ‘every right to or interest in land which may subsist in third persons, to the dimunition of the value of the land, but consistent with the passing of the fee by the conveyance.’   H.Tiffany, Real Property § 1002;  Aczas v. Stuart Heights, Inc., 154 Conn. 54, 50 (1966).”   Frimberger v. Anzellotti, 25 Conn.App. 401, 405 (1991) (latent violation of land use statute or regulation existing on land at time that title is conveyed is not an encumbrance).   An encumbrance “must be a lawful claim or demand enforceable against the grantee.”  Aczas v. Stuart Heights, supra, 152 Conn. 60.

This court concludes that, at the time of the closing, the Goulets did not convey marketable title to the Salzanos because the two parcels had been merged by the zoning regulations and could not be separated.¹⁵  Thus, the conveyance was also a breach of the agreement to convey the property free of any zoning violations.

In so concluding, it is significant to this court that by the operation of the merger regulation, lot 19 completely lost its identity as a separate and distinct parcel of land.   It is at this juncture that the operation of a merger regulation departs both in magnitude and character from the “latent zoning violations” cited in Frimberger v. Anzellotti, supra, 25 Conn.App. 405, because merger entails the destruction of the distinct and individual nature of a parcel of land.   Thus, a merger necessarily results in a defect that is more than just mere suspicion and is rather a defect that renders the title unmarketable because the loss of the parcel's distinctness reasonably presents a real and substantial probability of litigation or loss.   See Frank Towers Corp. v. Laviana, supra, 140 Conn. 53.

Further support that the merger of parcels creates such a title defect is found in Benson v. Zoning Board of Appeals, 89 Conn.App. 324 (2005).   There, the Appellate Court examined § 8–13a to ascertain whether the issuance of a cease and desist order would toll its operation.   In construing the statute, the Court declared that the “intended policies for which [§ 8–13a] was enacted were (1) to protect landowners and the public interest by requiring municipalities to act reasonably quickly on certain zoning violations, and (2) to protect innocent landowners from being unable to provide marketable title when a land survey uncovers an existing setback violation.”  Id. at 335 (emphasis added).   It follows from the reasoning of Benson that if a setback violation can lead to an unmarketable title, then certainly the eradication of the individuality of a parcel must also result in unmarketable title.

In sum, this court finds that the Goulets did not convey marketable title and did not convey the property free from zoning violations, which were breaches of the contract, and therefore, the third element has been met.

c. Damages

The Salzanos argue that they have sustained damages due to the aforementioned breaches and that they should be made whole.   In this regard they posit two different ways in which this can be accomplished:  (1) the Goulets should be forced to quitclaim lot 18 to them in order to “put the property back together in the state it was prior to the land transfer”;  or (2) money damages in the amount of $325,957.21, “that amount being the total of their payments on their mortgage ․”

The Goulets claim that the Salzanos cannot prevail upon their case because they have not and cannot prove damages.   The Goulets further argue that not only did the Salzanos not produce any evidence of damages, but whatever title defects might have been present were cured by operation of § 8–13a and, therefore, the Salzanos now have a legal nonconforming lot with marketable title.

“The burden of proving damages is on the party claiming them.”  Coughlin v. Anderson, 270 Conn. 487, 512 (2004).  “The basic measure of damages for injury to real property is the resultant dimunition in its value.”   WillowSprings Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 59 (1998), citing Fern v. Pyramid Construction Co., 186 Conn. 682, 689 (1982).   Damages “must be proved with reasonable certainty.”  24 Leggett Street Ltd. Partnership, v. Beacon Industries, Inc., 239 Conn. 284, 308–09 (1996).   The trier of fact, moreover, must have some manner which allows for the “objective ascertainment of the amount.”  Bronson & Townsend Co. v. Battistoni, 167 Conn, 321, 326–27 (1974).  “ ‘However, such damages for loss or enjoyment of [real] property ordinarily are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier.’  Johnson v. Flammia, 169 Conn. 491, 500 (1971).”  Nowakowski v. Rozbicki, 39 Conn.App. 458, 460 (1983).

This court begins its analysis of the alleged damages by an examination of § 8–13a and its role in measuring the damages claimed by the Salzanos.

As noted, in Benson v. Zoning Board of Appeals, supra, the Appellate Court declared that one of the “intended policies for which [§ 8–13a] was enacted [was] ․ (2) to protect innocent landowners from being unable to provide marketable title when a land survey uncovers an existing setback violation.”   Id. at 335 (emphasis added).   In this case, the court has no doubt that the Salzanos fit the definition of innocent landowners.   It is also clear that Cheshire has not acted on the zoning violation within the three-year mandate of the statute.   Thus, unless § 8–13a also acts to provide marketable title for the Salzanos, it does not fulfill its legislative purpose, which is to protect innocent landowners.   Certainly it would be a bizarre result if the statute applied only to the use of the property because then the legislature would have condoned a legal use on an illegal lot without creating (or recreating) marketable title.   Courts should not construe statutes in a manner that frustrates their purposes or creates a bizarre result.   See Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 725 (1998).  “It is not our practice to construe a statute in a way to thwart its purpose or lead to bizarre results ․ or in a way that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.”   (Citation omitted;  internal quotation marks omitted.)  Id. Accordingly, this court finds that after three years of inaction by the town of Cheshire, § 8–13a provided the Salzanos with marketable title for their property, a status that continues today.

This court, however, disagrees with the argument that, as a matter of law, because the lot now has become a legal nonconforming lot by operation of § 8–13a, the Salzanos could not have sustained any damages and the Salzanos' breach of contract claim must fail for this reason alone.   This court is not persuaded by this argument because while section 8–13a did provide marketable title, it did so only after a three-year period during which no enforcement action had been taken by the municipality or zoning authority.   See Levesque v. D & M Builders, Inc., 170 Conn. 177, 183 (1976) (“As of the [closing date] the building was in violation of the zoning regulations and had not ripened into a statutory nonconforming use”).   A fortiori, there was a three-year period in which the Salzanos were “unable to provide marketable title.”   See Benson v. Zoning Board of Appeals, supra, 89 Conn.App. 335.

“The measure of damages for the breach of a covenant against encumbrances is the loss actually sustained by the grantee.”  Aczas v. Stuart Heights, supra, 154 Conn. 60.   In Levesque v. D & M Builders, Inc., supra, 170 Conn. 181, the defendant was found to have been in breach of the sales contract and the warranty deed to the plaintiff, both of which required the house to be in conformity with the zoning regulations, because the house had been built too close to the set back, in violation of the zoning regulations.   In Levesque, the Supreme Court set aside the judgment of the trial court, which had measured the damages as being the cost of relocating the house, as well as the living expenses for the family during the relocation process.  Id., 180.   In doing so, the Supreme Court held that “where the shortcomings are such as may be remedied and completion according to the contract had without substantial interference with the structure of the building ․ [then damages] might be measured by the diminished value of the building to the owner by reason of the defects.”  (Internal quotation marks omitted.)  Id. at 181.   The Supreme Court further held that damages are measured as of the day of the breach of contract, but that if a zoning violation had not yet ripened into a valid nonconforming use pursuant to § 8–13a, that consideration might be taken into account in considering damages.  Id. The question of what loss of value, if any, that a building sustained in that three-year period, “can only be determined after a hearing in damages and the presentation of expert testimony.”  Id. at 183.¹⁶

In light of Levesque, the question for this court is what damages, if any, did the Salzanos sustain during the aforementioned three year time period.   In the present case, while there was speculation as to what might have happened, no evidence was placed before this court as to what actual damages were sustained during the three years following the sale of lot 19:  there was no evidence that they were unable to sell it, refinance it, or suffered any other type of damages during this period.   See id.   Instead, the Salzanos still retain the very property for which they bargained and while there was a three year hiatus during which they may not have had marketable title, they have marketable title now.

The Salzanos' novel assertion that the court should award them title to lot 18 comes without citation to any legal authority or analysis except to claim that it is an “equitable remedy” to make the Salzanos “whole.”   This court is aware of no authority that would allow such an award, nor can the court find any nexus between an award of lot 18 and any actual damages.   In any event, the Salzanos are “whole” in that they retain the very same property that they bought.   The court also rejects their claim that damages should be measured by the amount of the total mortgage payments ($325,957.21) that the Salzanos will have made by the year 2032 because it is entirely speculative, uncertain and unrelated to any evidence as to actual damage.   Therefore, this court finds that the Salzanos have not proven that they suffered any damages as a result of the breach.   Accordingly, judgment on this count enters for the Goulets.

2. The fraud claim

The Salzanos also claim the Goulets committed fraud in selling them lot 19.   To prevail on a claim of fraud, the Salzanos must show that:  “(1) a false representation was made as to a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  [and] (4) the other party did so act upon that false representation ․” Duplissie v. Devino, 96 Conn.App. 673, 681, cert. denied, 280 Conn. 916 (2006).   All these elements must be proven by clear, precise and unequivocal evidence.  Id. It has also been held by our Supreme Court that under certain circumstances a party may have a duty to make full disclosure rather than remain silent and the failure to do so may be regarded as fraud.  Egan v. Hudson Nut Products, Inc., 142 Conn. 344, 347 (1955).

The Salzanos assert that because the Goulets were on notice that the properties may have merged they were required to disclose that to them prior to the closing.   In doing so, the Salzanos cite to Bernard v. Gershman, 18 Conn.App. 652, 656 (1989).   This court finds Bernard distinguishable, however, because in Bernard, prior to the closing, the defendant gave the plaintiffs a personal assurance about the adequacy of the water supply, an assurance which was plainly misleading.  Id., 564.   As such, the fact finder found that there needed to be a more full and accurate disclosure.  Id. Unlike Bernard, however, this court makes no such findings.   There is no evidence that the Goulets gave the Salzanos any personal assurances about the lots prior to the closing.   Moreover, it is clear that the Goulets had an honest belief, based upon what they had been told unequivocally by legal counsel, that they had two legally nonconforming lots and thus could legally build another house on lot 18 following the sale of lot 19.   Although the Salzanos testified that there was open discussion at the closing about the viability of the other lot as a building lot, this court does not view that as an indication, or “badge” of fraud.   See, e.g., Heise Industries, Inc. v. Lerman Container Corporation, 18 Conn.App. 265, 269 (1989).   The behavior of the Goulets throughout the sale period does not strike this court as fraudulent ¹⁷ and certainly does not rise to the level of “clear, precise and unequivocal” evidence of fraud.   Accordingly, judgment on this count enters for the Goulets.

B. The Goulets' Claims Against the ESS Firm and Sciota

The Goulets allege that Sciota and the ESS Firm fell below the standard of care of average attorneys both in rendering a title opinion and in handling the closing.   The Goulets further allege that they have suffered damages in this regard and that the legal malpractice of the ESS Firm and Sciota were the proximate causes of their damages.   The Goulets also claim indemnification from the ESS firm and Sciota stemming from the Salzanos' lawsuit against them.

The ESS firm and Sciota counter that their conduct did not fall below the standard of an average attorney.   They also argue that the Goulets have not sustained any damages.

“ ‘Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by an average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ․ [T]he Salzanos must prove (1) the existence of an attorney-client relationship;  (2) the attorney's wrongful act or omission;  (3) causation;  and (4) damages.  (Citations omitted;  internal quotation marks omitted).’  Dubreuil v. Witt, 80 Conn.App. 410, 420 (2003), aff'd, 271 Conn. 782 (2004).”  Dixon v. Bromson & Reiner, 95 Conn.App. 294, 297 (2006).

1. The existence of an attorney-client relationship

It is undisputed that the Goulets had an attorney-client relationship with the ESS Firm as well as with Sciota.  “By agreeing to take on the representation of a client, the attorney promises to exercise ordinary skill and care in the representation of the client.”  Celentano v. Grudberg, 76 Conn.App. 119, 125 (2003).   Thus, the court finds that the first element of the malpractice claim has been met.

2. The attorney's wrongful act or omission

The Salzanos argue that the failure of the ESS Firm and Sciota to alert them to the possibility that their parcels had merged and that they could not legally convey lot 19 to the Salzanos, nor build on lot 18, fell below the standard of care of an average attorney who gives a title opinion and represents a client at a real estate closing.   The ESS Firm and Sciota strongly contest this allegation.   A review of the law, coupled with the facts of this case, leads this court to agree with the Goulets.

“A title opinion concerns the validity of title to real property.   It is distinct from an abstract of title, ‘which merely recites what the land records disclose without giving an opinion or advice as to the legal effect of what is found ․ (Internal quotation marks omitted.)’  Grievance Committee v. Payne, 128 Conn. 324, 331 (1941).”  Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 373 (2000).

“An attorney in examining title, functions as an advisor, a different role that the advocate in handling litigation.   In litigation, an attorney is often warranted in taking chances.   The attorney undertaking to advise a client whether the title is marketable, however, has no such discretion.   If there is any reasonable doubt of the sufficiency of the title, attorneys, who unilaterally resolve the doubt, do so at their own peril.   The client must be advised of any doubts or potential defects.   The decision whether to risk the possibility of an imperfect title is for the client after receiving the attorney's informed advice.   This rule recognizes the client's proprietary interest in the transaction.”  (Footnotes omitted).   R. Mallen & V. Levit, Legal Malpractice (2d Ed.1981) § 32.9, p. 846.

The ESS Firm and Sciota had been specifically retained to look into the very issue of merger ¹⁸ and render a title opinion to the Goulets.   The existence and operation of merger regulations with regard to nonconforming sized lots is hardly unique.¹⁹  Indeed, as already discussed, this court has determined that the operation of a merger clause will affect a parcels' marketable title and eradicate its individuality.   It is for these reasons in rendering a title opinion that “[t]he client must be advised of any doubts or potential defects.”  Id.

The court credits the testimony of Hanahan that it was not unreasonable for an average attorney to have reached the conclusion that the property had not merged and that reasonable attorneys could differ on the issue.   Thus, it is clear from this testimony, and a review of the applicable law, that similar merger issues had not been definitively resolved at that time.   Inasmuch as the issue was not settled law, the court finds that an average attorney would have been on guard to inform the client of any possible adverse consequences if the attorney's opinion proved to be incorrect.

Unfortunately, this was not done here.   Sciota did not attempt to speak with Murphy at any time after writing the letter and Sciota also did not inform the Goulets that the letter he had written to the town was not binding on the town.   Sciota failed to advise the Goulets of any potential pitfalls if his opinion was incorrect or of any possible problems if the town of Cheshire believed the properties had merged, and Sciota failed to give the Goulets any advice as to how to clarify the issue if that happened.   Instead, Sciota unequivocally told the Goulets that the lots were “grand-fathered” which they reasonably understood to mean that they had a viable building lot on lot 18.   The ESS Firm essentially did the same thing at the closing.²⁰  In so doing, the ESS Firm's and Sciota “unilaterally resolve[d] the doubt ․ at their peril.”  Id.

Given the magnitude of adverse consequences if the attorney was incorrect in his title opinion, and the town did consider the properties to be merged—a distinct and reasonable possibility given the prior cautionary statements and actions of the zoning enforcement officer—this court finds that the Goulets were entitled to be warned of the possibility that the parcels might be deemed to be merged and also to be warned that there might be adverse consequences if the merged lots were sold in piecemeal fashion.   Again, it is uncontradicted that such cautionary advice was not delivered to the Goulets.   The court finds that the sending of a non-binding letter to the town was insufficient to resolve the issue with the town and was not sufficient by itself to warn the Goulets of the possible dangers of selling merged property, i.e., that they could not sell lot 19 with marketable title and they might not be able to build a house on lot 18.

In sum, inasmuch as the matter had not been settled or resolved with the town, the ESS Firm and Sciota had a duty to warn the Goulets as to any potential defects in the marketability of the title, the consequences that might arise, and what efforts might be necessary to resolve the issue so that the Goulets could make an informed decision on how to proceed.   It is plain that this was not done.   For all the reasons, this court concludes that their conduct fell below that of an average attorney and the court finds for the Goulets on this element.

3. Causation

“To prevail upon a negligence claim, a plaintiff must establish that the defendant's conduct legally cause the injuries ․ As our [Supreme Court] observed ․ [l]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.   The first component is causation in fact.   Causation in fact is the purest application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct ․

“The second component of legal cause is proximate cause, which [our Supreme Court] defined as [a]n actual cause that is a substantial factor in the resulting harm ․ The proximate cause requirement tempers the expansive view of causation [in fact] ․ by the pragmatic ․ shaping [of] the rules which are feasible to administer and yield a workable degree of certainty.”   (Internal quotation marks omitted.)  Vorna v. Lerner, 72 Conn.App 179, 189 (2002), cert. denied, 262 Conn. 938 (2003).

Here, the court credits the testimony of Elizabeth Goulet who testified that she relied upon the advice and counsel of the ESS Firm and Sciota in deciding to sell lot 19 and to retain lot 18 as a building lot.   Hanahan testified as to the possible consequences of an incomplete disclosure of an average attorney to a client concerning a title opinion.   This court finds that the Goulets would not have gone forward with the closing if the ESS Firm or Sciota had raised the necessary cautionary doubt about their opinion on the issue of merger or the ability of the Goulets to provide marketable title to the property being conveyed or their subsequent ability to build on lot 18.   Therefore, the court finds that the causation element has been met.

4. Damages

The Goulets claim that they have been damaged in the following manner:  (1) Incurring attorneys fees of $30,994.91 in appealing the denial of the building permit;  (2) incurring attorneys fees of $58,125.77, in defense of the lawsuit brought by the Salzanos;  (3) the expenses incurred relating to the building permit;  (4) in losing the difference between the sales price of the house lot that was sold and what the price probably would have been if both lots were sold together;  and (5) they also ask for interest on any award at the rate of 10 percent a year dating back to July 2002.

The ESS Firm and Sciota counter that the Goulets have failed to establish any damages beyond being deprived of the ability to sell both lots together, which would have been $22,500 more than they received for lot 19.   They also argue that the evidence does not support the proposition that the Goulets would have sold both lots at that price in any event.   They further argue that the Goulets' claim for legal fees should be denied because they incurred them in appealing the zoning decision, which was essentially trying to prove Sciota was correct.

This court does find that the Goulets did suffer property damages that were caused by the legal malpractice of the ESS Firm and Sciota, jointly and severally.   The court finds that the best measure of these damages to be the difference between what a sale of the two lots in July 2002, would have brought, which was $162,000 and the actual sales price of one to the Salzanos, which was $139,500.   Accordingly, the court finds that the Goulets suffered damages in the amount of $22,500.²¹  The court also awards interest at ten percent for the property damages going back to the date that the Goulets filed the law suit in July 2004.

This court rejects the Goulets' claim that they are entitled to attorneys fees and costs associated with attempting to obtain a building permit for lot 18 because they have offered no authority or analysis for departing from the “American rule” regarding legal fees.²²

“The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ․ This rule is generally followed throughout the country ․ Connecticut adheres to the American rule ․ There are few exceptions.   For example, a specific contractual term may provide for the recovery of attorneys fees and costs, ․ or where a statute controls ․ Additionally, an indemnitee is entitled to recover from an indemnitor, as part of its damages, attorneys fees, costs, and expense.   41 Am.Jur.2d, Indemnity, § 48 (1995);  Sendroff v. Food Mart of Connecticut, 34 Conn.Sup. 624, 626, 381 A.2d 565 (1997) ․” 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 311–12 (1996) (other internal citations omitted).  “[The Supreme Court] also has recognized a bad faith exception to the American rule, which permits a court to award attorneys fees to the prevailing party on the basis of bad faith conduct of the other party or the other party's attorney.  (Internal quotation marks omitted.)   ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582 (2007).   With respect to statutory authorization, [b]ecause we must respect the legislative prerogative of choosing the special circumstances under which [attorneys fees] awards may be made ․ we require a clear expression of the legislative intent to create a statutory exception [to the rule].”   Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 695 (2008).

Except for the claim of indemnifications see Part III.B.5, the Goulets have not shown that they are entitled to exemption from the “American Rule” and, therefore, the court rejects their claim that they are entitled to all their legal expenses as damages.

5. Indemnification

In their complaint, the Goulets also seek indemnification from the ESS Firm and Sciota because they incurred attorneys fees of $30,994.91 in appealing the denial of the building permit and in incurring attorneys fees of $58,125.77 in defense of the law suit brought by the Salzanos.   The ESS Firm and Sciota claim that the Goulets claim for indemnification must fail because:  (1) The Goulets are not liable to the Salzanos;  (2) if the Goulets are liable it would only be for fraud or specific performance, neither of which trigger indemnity;  (3) the ESS Firm and Sciota were not in “sole control of the situation” and, therefore, not liable for indemnity;  and (4) the ESS Firm and Sciota were not negligent.

“As a general rule, unless the indemnity contract provides otherwise, an indemnitee is entitled to recover reasonable attorneys fees as part of his damages.   41 Am.Jur.2d., Indemnity, § 36.   The allowance is limited to fees incurred in defense of the claim indemnified and would not include services rendered in establishing the right of indemnity.  Id. The implied contract of indemnity which arises in favor of a person who is exposed to liability on account of a tortious act of another imposes an obligation upon the active wrongdoer not only for any damages which he has been obliged to pay but also for reasonable attorneys fees, at last where he has notice of a suit against the indemnitee and an opportunity to defend.   42 C.J.S., Indemnity, § 24.”   Sendroff v. Food Mart of Connecticut, Inc., supra, 34 Conn.Sup. 626.   The basis of the indemnity claim need not be in writing, “but is implied in law from the relationship of the parties to the subject matter.”  Id. at 627.

The court does find that the Goulets should be indemnified by both the ESS Firm and Sciota jointly and severally for any reasonable attorneys fees that were incurred by the Goulets in defending the lawsuit brought against them by the Salzanos.   The court finds that even though the Goulets are not liable for damages against the Salzanos, they did have to defend against the law suit brought on by the defendant's conduct.   See, id. 626–27.

The court rejects the Goulets' claim that they are entitled to be indemnified for the costs and fees associated with contesting the decision of the zoning board of appeals.   Those costs and fees were not incurred until after the Salzanos' filed suit and the court does not find them to have been part of their defense against the Salzanos' lawsuit.   See footnote 17.

A hearing is ordered for the court to hear evidence and determine the issue of what are fair and reasonable attorneys fees for the Goulets' defense of the Salzanos' lawsuit.

C. The Salzanos' malpractice claim against Silver

The Salzanos argue that Silver committed legal malpractice by failing to apprise them of the possibility that lot 19 had merged with lot 18 and that, consequently, it could not be sold with marketable title.   The defendant Silver argues that the “merger” was a latent defect that would not affect marketable title and thus he did not fall below the standard of practice of an average closing attorney in not investigating the issue further.   Silver also claims that he is entitled to judgment on the malpractice claims because the Salzanos have not, and cannot, prove that they suffered any damages.

The elements necessary to prove a claim of legal malpractice have been set forth above.   See Dixon v. Bromson & Reiner, supra, 95 Conn.App. 297.   The Salzanos argue under the specific facts of this case, Silver should have been alerted to the possibility that “merger” might be an issue at closing because (1) a review of “Schedule A” revealed that it contained the description of two nonconforming sized parcels on a single document with sequential numbers;  (2) a review of the descriptions referred to a map from 1931 that predated zoning;  (3) a review of the assessor's card referred to this as an “R–20” zone, which is typically one-half acre zoning;  and (4) a review of the warranty deed revealed that it referred the parcel being sold as “[b]eing a portion of the premises conveyed to the Grantors herein by Quit Claim Survivorship Deed ․” which signals the possibility that not all of a piece of property is being conveyed.

This court need not decide, however, whether the foregoing would have alerted an average closing attorney to the issue of merger, and triggered the commensurate duties to further investigate it and advise the client accordingly because it finds that the Salzanos have not proved the element of damages.   Accordingly, this court need not and will not reach this issue.   See Bortner v. Woodbridge, 250 Conn. 241, 251 n. 13 (1999).

The Salzanos argue that they have sustained damages due to Silver's legal malpractice.   They claim that due to his malpractice they:  (1) have actual damages in that they acquired an illegal lot that they will have a difficult time trying to sell or refinance, and;  (2) have incurred reasonably foreseeable litigation costs, including attorneys fees.

As discussed, supra, this court has already determined that the Salzanos have failed to provide the court with any reliable evidence as to the alleged property damages in their case against the Goulets and the same holds true of their case against Silver.   Moreover, because this court has concluded that § 8–13a has now provided them with marketable title to the property, their claims of difficulty in selling or refinancing must also fail.

As to their claim that they are entitled to attorneys fees and litigation costs the Salzanos offer no authority or legal analysis for such a proposition other than a generic appeal to “equity.”   The defendant objects to this entreaty on the grounds that such an award is not allowed in the absence of statutory or contractual authority, and no such authority is present in this case.   This court agrees with the defendant.

The contract in this case did not authorize an award of attorneys fees, and the Salzanos do not proffer any other authority or argument as to why such an award might be made in this case.   Accordingly, the Salzanos have failed to sustain their burden of proof on this element and judgment will enter in favor of the defendant Silver on this claim.

IV. CONCLUSION

In the Salzanos' suit against the Goulets, the court finds for the Goulets on counts one and two and judgment should enter accordingly.

In the Salzanos' suit against Silver, the court finds for Silver on counts three and four and judgment should enter accordingly.

In the Goulets' suit against the ESS Firm and Sciota, the court finds for the Goulets on counts one and two and finds the damages to be $22,500 and also awards interest in the amount of 10 percent dating back to July 2004.   As to count two (indemnification) the court orders a hearing be scheduled on the issue of reasonable attorneys fees in defending the suit brought by the Salzanos.

So ordered

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. The two parcels, lots 18 and 19 are depicted on a map which is attached hereto as “Attachment 1.”.  FN1. The two parcels, lots 18 and 19 are depicted on a map which is attached hereto as “Attachment 1.”

FN2. The plaintiffs, Stephanie Salzano (who testified) and Carolyn Stanat (who did not testify) are married.   For the sake of simplicity, this court will use the first named plaintiff—Salzano—in referring to both Salzano and Stanat..  FN2. The plaintiffs, Stephanie Salzano (who testified) and Carolyn Stanat (who did not testify) are married.   For the sake of simplicity, this court will use the first named plaintiff—Salzano—in referring to both Salzano and Stanat.

FN3. The Salzanos' claims against two other parties, the Cadre Group, LLC, and Michael Massa were dropped.   In addition, allegations against Silver of breach of fiduciary duty and violations of the Connecticut Unfair Trade Practices Act (CUTPA) were stricken by the court, Wiese, J., on April 18, 2005..  FN3. The Salzanos' claims against two other parties, the Cadre Group, LLC, and Michael Massa were dropped.   In addition, allegations against Silver of breach of fiduciary duty and violations of the Connecticut Unfair Trade Practices Act (CUTPA) were stricken by the court, Wiese, J., on April 18, 2005.

FN4. The lawsuits of the Salzanos and the Goulets were consolidated by order of the court, Taylor, J., on April 18, 2008..  FN4. The lawsuits of the Salzanos and the Goulets were consolidated by order of the court, Taylor, J., on April 18, 2008.

FN5. The parties agreed that if the court decision reached the issue of attorneys fees then a separate hearing would be held on that issue..  FN5. The parties agreed that if the court decision reached the issue of attorneys fees then a separate hearing would be held on that issue.

FN6. SCHEDULE APARCEL 1A certain piece or parcel of land situated in Birchwood in the Town of Cheshire, County of New Haven and State of Connecticut on the north side of Oak Drive known as lots # 61 (number sixty-one) and # 62 (number sixty-two) as shown on a map of Birchwood made by MacKenzie and Bowers, Civil Engineers, dated August 5th, 1931 and filed in the Office of the Town Clerk for the said Town of Cheshire.   Said lots are fifty feet on Oak Drive and one hundred and twenty-five feet deep more or less.Being the same premises conveyed to Elizabeth Bard from Anton J. Bard by Quit–Claim Deed dated November 18, 1982 and recorded November 18, 1982 in Volume 427 at Page 198 of the Cheshire Land Records.   See also Change of Name Certificate (Elizabeth Bard to Elizabeth Goulet) dated May 6, 1986 and recorded in Volume 566 at Page 323 of the Cheshire Land Records.PARCEL 2A certain piece or parcel of land, with all buildings and improvements thereon, situated on the northerly side of Oak Drive (now known as Poplar Drive) and being No. 114 Poplar Drive in the Town of Cheshire, County of New Haven and State of Connecticut, being shown as Lots # 63, # 64 and # 65, on a map entitled, “Map of Birchwood Situated in the Town of Cheshire, Connecticut Property of The Clark Realty & Insurance Corp. August 5, 1931,” which map is on file in the Cheshire Town Clerk's Office for reference.Said Lots # 63, # 64 and # 65 are bounded:SOUTHERLY by Oak Drive (now known as Poplar Drive), as shown on said map, 50 feet;EASTERLY by Lot # 66, as shown on said map, 145 feet, more or less;NORTHERLY by land now or formerly of The Clark Realty & Insurance Corp.;   andWESTERLY by Lot # 62, as shown on said map, 125 feet.Being the same premises conveyed to Elizabeth Goulet by Anton J. Bard by Quit–Claim Deed dated August 31, 1992 and recorded in Volume 929 at Page 221 of the Cheshire Land Records.   See also Change of Name Certificate (Elizabeth Bard to Elizabeth Goulet) dated May 5, 1986 and recorded in Volume 566 at Page 323 of the Cheshire Land Records..  FN6. SCHEDULE APARCEL 1A certain piece or parcel of land situated in Birchwood in the Town of Cheshire, County of New Haven and State of Connecticut on the north side of Oak Drive known as lots # 61 (number sixty-one) and # 62 (number sixty-two) as shown on a map of Birchwood made by MacKenzie and Bowers, Civil Engineers, dated August 5th, 1931 and filed in the Office of the Town Clerk for the said Town of Cheshire.   Said lots are fifty feet on Oak Drive and one hundred and twenty-five feet deep more or less.Being the same premises conveyed to Elizabeth Bard from Anton J. Bard by Quit–Claim Deed dated November 18, 1982 and recorded November 18, 1982 in Volume 427 at Page 198 of the Cheshire Land Records.   See also Change of Name Certificate (Elizabeth Bard to Elizabeth Goulet) dated May 6, 1986 and recorded in Volume 566 at Page 323 of the Cheshire Land Records.PARCEL 2A certain piece or parcel of land, with all buildings and improvements thereon, situated on the northerly side of Oak Drive (now known as Poplar Drive) and being No. 114 Poplar Drive in the Town of Cheshire, County of New Haven and State of Connecticut, being shown as Lots # 63, # 64 and # 65, on a map entitled, “Map of Birchwood Situated in the Town of Cheshire, Connecticut Property of The Clark Realty & Insurance Corp. August 5, 1931,” which map is on file in the Cheshire Town Clerk's Office for reference.Said Lots # 63, # 64 and # 65 are bounded:SOUTHERLY by Oak Drive (now known as Poplar Drive), as shown on said map, 50 feet;EASTERLY by Lot # 66, as shown on said map, 145 feet, more or less;NORTHERLY by land now or formerly of The Clark Realty & Insurance Corp.;   andWESTERLY by Lot # 62, as shown on said map, 125 feet.Being the same premises conveyed to Elizabeth Goulet by Anton J. Bard by Quit–Claim Deed dated August 31, 1992 and recorded in Volume 929 at Page 221 of the Cheshire Land Records.   See also Change of Name Certificate (Elizabeth Bard to Elizabeth Goulet) dated May 5, 1986 and recorded in Volume 566 at Page 323 of the Cheshire Land Records.

FN7. Section 24.8 of the Cheshire zoning regulations provides:  “In any district in which single family dwellings are permitted, a single-family and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of these regulations, notwithstanding the limitations proposed by other provisions of these Regulations.   Such lots must be in separate ownership and not of continuous frontage with other lots in the same ownership.   This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district, provided that setback dimensions and requirements other than these applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located.   Variance of setback requirements shall be obtained only through action of the Zoning Board of Appeals.   If two or more lots or combinations of lots with continuous frontage in single ownership are of record at the time of passage or amendment of these regulations, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided lot for the purposes of these Regulations, and no portion of said lot shall be used or sold in any manner which diminishes compliance with lot width and area requirements of these Regulations, nor shall any division of any lot be made which creates a lot with width or area below the requirement stated in these Regulations..  FN7. Section 24.8 of the Cheshire zoning regulations provides:  “In any district in which single family dwellings are permitted, a single-family and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of these regulations, notwithstanding the limitations proposed by other provisions of these Regulations.   Such lots must be in separate ownership and not of continuous frontage with other lots in the same ownership.   This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district, provided that setback dimensions and requirements other than these applying to area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located.   Variance of setback requirements shall be obtained only through action of the Zoning Board of Appeals.   If two or more lots or combinations of lots with continuous frontage in single ownership are of record at the time of passage or amendment of these regulations, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided lot for the purposes of these Regulations, and no portion of said lot shall be used or sold in any manner which diminishes compliance with lot width and area requirements of these Regulations, nor shall any division of any lot be made which creates a lot with width or area below the requirement stated in these Regulations.

FN8. The Goulets submitted evidence that they paid Sciota and the ESS Firm for the title opinion separately from the closing fees..  FN8. The Goulets submitted evidence that they paid Sciota and the ESS Firm for the title opinion separately from the closing fees.

FN9. There is a dispute about what was the offered price of lot 18, with the Salzanos claiming it was $25,000 for the entirety of lot 18.   After the closing, on several occasions the Salzanos approached Elizabeth Goulet about buying lot 18.   At some point, Goulet stated that she was not going to sell the lot and intended to build a home on it.   Then, in April 2003, the Goulets sent the Salzanos a handwritten letter offering to sell one-half of the lot to them and the half to a neighbor for $25,000 each.   The negotiations never went further.   This court is aware that unaccepted offers to sell property may be evidence of its value, especially as an admission against interest or against the party that introduced the evidence.   See Rudewicz v. Rudewicz, 3 Conn.App. 704, 706, cert. denied, 196 Conn. 813 (1985).   At the time of sale, however, the Goulets were operating on the assumption that a building permit could be obtained for lot 18, an assumption that proved to be incorrect.   In light of all the foregoing evidence, this court is unable to determine what was the fair market value of lot 18 as an uncertified zoning lot..  FN9. There is a dispute about what was the offered price of lot 18, with the Salzanos claiming it was $25,000 for the entirety of lot 18.   After the closing, on several occasions the Salzanos approached Elizabeth Goulet about buying lot 18.   At some point, Goulet stated that she was not going to sell the lot and intended to build a home on it.   Then, in April 2003, the Goulets sent the Salzanos a handwritten letter offering to sell one-half of the lot to them and the half to a neighbor for $25,000 each.   The negotiations never went further.   This court is aware that unaccepted offers to sell property may be evidence of its value, especially as an admission against interest or against the party that introduced the evidence.   See Rudewicz v. Rudewicz, 3 Conn.App. 704, 706, cert. denied, 196 Conn. 813 (1985).   At the time of sale, however, the Goulets were operating on the assumption that a building permit could be obtained for lot 18, an assumption that proved to be incorrect.   In light of all the foregoing evidence, this court is unable to determine what was the fair market value of lot 18 as an uncertified zoning lot.

FN10. Silver did not send an engagement letter to the Salzanos or enter into a written contract with them regarding the scope of his services..  FN10. Silver did not send an engagement letter to the Salzanos or enter into a written contract with them regarding the scope of his services.

FN11. Murphy did not testify at trial..  FN11. Murphy did not testify at trial.

FN12. A review of the file reveals that subsequently the Salzanos filed a series of amended complaints..  FN12. A review of the file reveals that subsequently the Salzanos filed a series of amended complaints.

FN13. Section 8–13a provides in pertinent part:  “Nonconforming buildings and land uses. (a) When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be.”.  FN13. Section 8–13a provides in pertinent part:  “Nonconforming buildings and land uses. (a) When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be.”

FN14. General Statutes § 47–36e provides in pertinent part:  “In any conveyance of real property with the words ‘with warranty covenants' have the full force, meaning and effect of the following words:  ‘The grantor covenants with the grantee that he is lawfully seized in fee simple of the granted premises;  that the same are free from all encumbrances except as therein set forth, that he has good right, full power and lawful authority to sell and convey the same to the grantee ․’ “.  FN14. General Statutes § 47–36e provides in pertinent part:  “In any conveyance of real property with the words ‘with warranty covenants' have the full force, meaning and effect of the following words:  ‘The grantor covenants with the grantee that he is lawfully seized in fee simple of the granted premises;  that the same are free from all encumbrances except as therein set forth, that he has good right, full power and lawful authority to sell and convey the same to the grantee ․’ “

FN15. The language of the agreement is plain and clear;  nothing therein suggests that the Goulets were conveying title contingent upon the passing of a three-year period of non-action by the town of Cheshire pursuant to § 8–13a.   See the discussion in the damages section, infra..  FN15. The language of the agreement is plain and clear;  nothing therein suggests that the Goulets were conveying title contingent upon the passing of a three-year period of non-action by the town of Cheshire pursuant to § 8–13a.   See the discussion in the damages section, infra.

FN16. A hearing in damages was required in Levesque because the Supreme Court affirmed the trial court's finding of a breach but reversed the trial court's findings as to damages..  FN16. A hearing in damages was required in Levesque because the Supreme Court affirmed the trial court's finding of a breach but reversed the trial court's findings as to damages.

FN17. This court does not view the Goulets' failure to answer to the question about a common driveway as an indication of an attempt to deceive..  FN17. This court does not view the Goulets' failure to answer to the question about a common driveway as an indication of an attempt to deceive.

FN18. Thus, their posture differs from that of Silver who had no prior warning that merger might be an issue in the case..  FN18. Thus, their posture differs from that of Silver who had no prior warning that merger might be an issue in the case.

FN19. See, e.g., Goulet et al. v. Zoning Board of Appeals of the Town of Cheshire, supra, 117 Conn.App. 339–40 (citing numerous merger cases).   See also, R. Burke, Ed., Connecticut Real Property Law, § 30d (1984).   “Since even title insurance policies except governmental laws and regulations, such as zoning laws, it is important for the purchaser's attorney to determine if the property being conveyed is or will violate any law or regulation.   For example, is the premises located on a non-conforming lot?   If so, what are the consequences? ”  (Emphasis added.)   Id..  FN19. See, e.g., Goulet et al. v. Zoning Board of Appeals of the Town of Cheshire, supra, 117 Conn.App. 339–40 (citing numerous merger cases).   See also, R. Burke, Ed., Connecticut Real Property Law, § 30d (1984).   “Since even title insurance policies except governmental laws and regulations, such as zoning laws, it is important for the purchaser's attorney to determine if the property being conveyed is or will violate any law or regulation.   For example, is the premises located on a non-conforming lot?   If so, what are the consequences? ”  (Emphasis added.)   Id.

FN20. Although this court is not aware of any requirement that a zoning authority notify the owners of properties that their properties have merged, nor is it aware of any requirement that a merged status be posted on the land records, this court concludes nonetheless that merger is of sufficient magnitude that whenever the average closing attorney is confronted with plain evidence that there may be an issue of merger, the attorney should undertake a further investigation of the issue.   Moreover, the average closing attorney would also alert his or her clients to the possibility of a defect in the marketability of the title that they are purchasing because of a merger issue.   Here, both the Law Firm and Sciota were aware that there was an issue of merger but failed to adequately warn and advise their client as to the potential perils that might arise from the sale of lot 19..  FN20. Although this court is not aware of any requirement that a zoning authority notify the owners of properties that their properties have merged, nor is it aware of any requirement that a merged status be posted on the land records, this court concludes nonetheless that merger is of sufficient magnitude that whenever the average closing attorney is confronted with plain evidence that there may be an issue of merger, the attorney should undertake a further investigation of the issue.   Moreover, the average closing attorney would also alert his or her clients to the possibility of a defect in the marketability of the title that they are purchasing because of a merger issue.   Here, both the Law Firm and Sciota were aware that there was an issue of merger but failed to adequately warn and advise their client as to the potential perils that might arise from the sale of lot 19.

FN21. The court is aware that the Goulets still own lot 18 and that this lot would seem to have some value, which might affect the amount of damages, however, no such argument in mitigation of damages was proffered.   The court is also aware that lot 18 is an uncertified zoning lot for which no building permit can be obtained.   Based upon the record and the evidence presented at trial, this court is unable to determine what the value of that property is, or was at the time of sale, and any attempt to do so would require the court to engage in speculation and conjecture, which it cannot do.   See Bronson & Townsend Co. v. Battistoni, supra, 167 Conn. 326–27..  FN21. The court is aware that the Goulets still own lot 18 and that this lot would seem to have some value, which might affect the amount of damages, however, no such argument in mitigation of damages was proffered.   The court is also aware that lot 18 is an uncertified zoning lot for which no building permit can be obtained.   Based upon the record and the evidence presented at trial, this court is unable to determine what the value of that property is, or was at the time of sale, and any attempt to do so would require the court to engage in speculation and conjecture, which it cannot do.   See Bronson & Townsend Co. v. Battistoni, supra, 167 Conn. 326–27.

FN22. The court would not find that the Goulets were entitled to attorneys fees and costs associated with the attempt to obtain a building permit for lot 18 in any event because:  (1) this litigation came a year after the Salzanos filed their lawsuit, and (2) these attorneys fees were not proximately caused by the malpractice of Sciota and the ESS Firm because they did not flow from the lawsuit brought by the Salzanos, which certainly did not resolve the issues in this case, as the instant trial and opinion attests..  FN22. The court would not find that the Goulets were entitled to attorneys fees and costs associated with the attempt to obtain a building permit for lot 18 in any event because:  (1) this litigation came a year after the Salzanos filed their lawsuit, and (2) these attorneys fees were not proximately caused by the malpractice of Sciota and the ESS Firm because they did not flow from the lawsuit brought by the Salzanos, which certainly did not resolve the issues in this case, as the instant trial and opinion attests.

Fischer, Jack W., J.