James Peterson v. Monica McAndrew et al. (2013)

MEMORANDUM OF DECISION

I BACKGROUND

This action was brought by the plaintiff seeking, inter alia, return of a $255,000 contract deposit made pursuant to a purchase and sale agreement concerning a parcel of real estate entered into between the plaintiff as buyer and the defendants as sellers.   The plaintiff seeks relief in seven counts:  breach of contract, unjust enrichment, negligent misrepresentation, fraudulent misrepresentation, violation of Connecticut Unfair Trade Practices Act, innocent misrepresentation, and mutual mistake.   The defendants have answered the complaint denying many of the pertinent allegations and in turn have asserted a counterclaim alleging that the defendant ¹ at the plaintiff's request devoted significant time and resources to developing plans for the development of the subject property, that at the time the plaintiff asked the defendant to expend his time and energy the plaintiff understood that the defendant expected to be paid for his services but that the plaintiff has not paid him for those services.   The defendant in his counterclaim alleges that the plaintiff has been unjustly enriched and that the defendant has been damaged.

II FINDINGS OF FACT

The case was tried to the court over three days.   At the outset of the trial the parties entered into evidence as Exhibit 1 a thirty-three-paragraph joint stipulation of facts.   The court adopts each and every one of the stipulated facts as a part of its finding of facts.   The court will not repeat each of the thirty-three paragraphs in its decision but will make reference to those facts as needed to explain its decision.   In addition, based upon the evidence the court makes the following findings of fact.

1. On or about February 11, 2011 the plaintiff and the defendant met at the property generally known as 43 Rowayton Avenue which the defendants had listed for sale.   The plaintiff was interested in purchasing the property for his own residence.   At that time the plaintiff and the defendant walked the property together and discussed potential options for either renovations of the existing single-family residence or alternatively the construction of a new single-family residence and amenities on the property.

2. During this meeting the defendant told the plaintiff that the property had benefitted by accretion and therefore the property that he was offering for sale included the property to the current mean high waterline.

3. The defendant at the same meeting also told the plaintiff that the Norwalk building setback line was 15 feet from the boundary line of the property and therefore 15 feet from the mean high waterline.

4. The plaintiff and the defendant at that meeting also discussed the construction of a dock and a possible swimming pool.

5. At that same meeting the defendant provided the plaintiff with a zoning location survey.   The plaintiff never provided that survey to his lawyer prior to signing the purchase and sale agreement (contract).

6. Both the plaintiff and the defendant have reasonable levels of business sophistication.   The plaintiff is a manager of a large investment fund.   The defendant has built and sold several single-family residences.

7. In 1924, a substantial tract of land was the subject of a subdivision map recorded in the Norwalk land records as map # 591.   43 Rowayton Avenue was first identified as lot 3 on said map # 591.   Over the years since 1924 the physical condition of the property changed as a result of the actions of man and nature.   As a result of these changing physical conditions the property can be fairly described as consisting of three categories.   Category 1 is bounded by Rowayton Avenue on the east and the property line depicted on map # 591 in the Norwalk land records (the 591 line) on the west;  category 2 is the area between the 591 line on the east and a stone and masonry wall (the masonry wall) constructed sometime after 1924 by prior owners or their agents on the west;  category 3 is the area bounded by the masonry wall on the east and the current mean high water line on the west.   Over the years the category 3 property has expanded as a result of accretion.

8. The survey provided by the defendant to the plaintiff on the date that they met on the property depicts all of these several boundary lines.   It depicts the 591 line;  it depicts the masonry wall to the west of the 591 line, and it depicts the mean high water line to the west of the masonry wall.

9. The property described in category 1 is the precise property described in the deed received by the defendants from Gladys Dowling (the Dowling Deed) when they purchased the property in 2005 which deed is recorded in the Norwalk land records.

10. During the meeting between the plaintiff and the defendant the defendant told the plaintiff that he owned the property beyond the 591 line to the current mean high water line.

11. The plaintiff knew the defendant was a builder of single-family residences and had seen some of the houses that the defendant had built.   The plaintiff liked the defendant's work and hoped that he and the defendant would eventually reach an agreement for the construction of a single-family home and amenities on the subject property.   Both before and after the execution of the contract the plaintiff and the defendant continued a dialogue about the demolition of the existing house and the construction of the new house and amenities including a pool and a dock.

12. While both of the parties expected that they would eventually reach an agreement for a construction of a home and amenities on the property and conducted themselves in furtherance of that expectation the parties never did reach such an agreement.   The parties however did execute a contract for the purchase and sale of the property on or about April 4, 2011.   Prior to April 4, 2011 the defendants' lawyer sent a proposed draft contract to the plaintiff's lawyer.   Some changes to that proposed draft were negotiated and included in the final document which changes included the addition of a rider to the contract and a requirement that the seller transfer to the buyer all rights to any pending applications to the operative governmental regulatory bodies for installation of a dock, pier and ramp at the premises.

13. Paragraph 1 of the contract states “1. Property.   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 “Premises”) subject to the encumbrances and exceptions to title set forth or referred to in paragraph 6E and schedule A (legal description and exceptions, if any) attached hereto.”   Schedule A referred to in paragraph 1 contains a description of the property which is precisely the same as the description of the property contained in the Dowling deed.   In other words it describes the property as lot 3 on map 591.

14. Paragraph 3 of the contract obligates the seller upon receipt of the total purchase price to deliver to the buyer “the usual Connecticut full covenant warranty deed ․ in proper form to convey to the buyer ․ the fee simple of the Premises ․” Paragraph 6 of the contract states that if “the seller shall be unable to deliver or cause to be delivered a deed or deeds conveying a good and marketable title to the Premises ․ then the buyer may reject such title.   Upon such rejection all sums paid on account hereof together with any nonrefundable expenses ․ shall be paid to the buyer without any interest thereon.”   Paragraph 6b states “the title herein required to be furnished by the seller shall be marketable, subject only to the items set forth in schedule A and paragraph 6e hereof and the marketability thereof shall be determined in accordance with the Connecticut General Statutes and the Connecticut Standards of Title of the Connecticut Bar Association.”

15. Paragraph 32 of the contract states:  “Entire agreement.   All prior understanding, agreements, representations and warranties, oral and written between seller and buyer are merged in this agreement.   This agreement completely expresses the agreement of the party and have been entered into by the parties after discussion with their respective attorneys and after full investigation, neither party relying upon and statement made by anyone else that is not set forth in this agreement.   Neither this agreement nor any provision hereof may be waived, changed or canceled except by a written instrument signed by both parties.”

16. While the parties did continue their dialogue about the development of the property the contract was not contingent upon the parties entering into a development agreement nor was it contingent upon the approval of any specific building plans.   The purchase price for the property set forth in the contract and agreed upon by the parties was $2,550,000 and the plaintiff deposited $255,000 as a contract deposit with the defendant's attorney.

17. Subsequent to the signing of the contract the plaintiff and the defendant developed plans which at the plaintiff's request included a new house and a swimming pool which swimming pool was located, in part, west of the existing masonry wall and therefore necessitated a reconstruction of the masonry wall to a point west of its existing location.

18. The defendant provided a copy of this plan to certain Norwalk zoning officials.   Because the Norwalk building setback line is measured from the rear property line a Norwalk zoning official asked the defendant to provide the Norwalk zoning office with proof of ownership of the area west of the 591 line.   The defendant engaged his attorney to assist in resolving the official's question.

19. Some of the neighbors of the property raised concerns about the development of a pool and its proposed location.

20. At all relevant times the defendants were ready willing and able to convey marketable title to property described in Schedule A and communicated this to the defendant's attorney.

21. The defendants were also ready willing and able to quit claim all of their right title and interest to the property located to the west of the 591 line and communicated this to the defendant.

22. At all times the plaintiff was ready willing and able to pay the total purchase price required in the contract upon receipt of a Connecticut full covenant warranty deed conveying marketable title to the property bounded on the east by Rowayton Avenue and bounded on the west by the mean high water line.   The plaintiff was not willing to pay the full purchase price unless the defendants provided him with a warranty deed conveying marketable title to the property from Rowayton Avenue to the mean high water line and the defendants were not willing to do this.   Both parties were firm in their positions and their respective attorneys were clear in their communication regarding their positions.

23. Because of the clarity of their positions a closing was never scheduled and a closing never took place.   Given the position of the parties the scheduling of such closing and the tendering of the deed or deeds that the defendants were willing to execute would have been a futile action.   The defendants refused to return the plaintiff's contract deposit.   This lawsuit followed.

III DISCUSSION

A. BREACH OF CONTRACT CLAIM

In the first count of the complaint the plaintiff alleges that the defendants breached their contract with the plaintiff “by failing to provide good and marketable title to the property ․ which includes the land beyond the former mean high tide line and to the current mean high tide line.”

Of course, this assertion begs the requisite initial question.   The first question is, what did the contract oblige the defendants to do.   The court has reviewed the contract in detail and finds that it is unambiguous.   The contract obliged the seller upon receiving the total purchase price to “execute, acknowledge and deliver to the buyer or the buyer's permitted assigns the usual Connecticut full covenant warranty deed ․ in proper form to convey to the buyer ․ the fee simple of the Premises free of all encumbrances except as hereinafter provided.”  (Emphasis added).   Premises is expressly defined in the contract as the property “commonly known as 43 Rowayton Avenue, Rowayton (Norwalk), CT and specifically described in schedule A attached hereto (the “Premises”).   The contract is clear that the property that the defendant seller is obliged to convey by warranty deed is that property which is specifically described in schedule A to the contract.   The contract provides the buyer with certain rights including the right to reject title and obtain returnable deposited funds in the event that the “seller should be unable to deliver or cause to be delivered a deed or deeds conveying a good and marketable title to the Premises.”  The Premises described in schedule A referred to in the body of the contract is “all that certain tract or parcel of land, situated in the town of Norwalk, known and designated as lot number three (3) on a certain map entitled ‘Rowayton Beach at Rowayton Conn., 1924, the Samuel W. Hoyt, Jr., Co., Inc., Engineers & Surveyors, owned by Ralph E. Case, Esq.,’ which map is recorded in the office of the town clerk of said Norwalk as map # 591 ․”

The court finds no ambiguity in the contract particularly with regard to the issue of what property the defendants were obliged to convey marketable title to.

The plaintiff argues in part that an ambiguity was created when the plaintiff's real estate attorney attached a rider to the contract which used the word “property” as opposed to “premises.”   The court finds no ambiguity resulting from the attachment of the rider.   The contract is specific in referring to a map recorded in the Norwalk land records as to what property the defendants were obliged to convey marketable title to.   The rider in no way contradicts that.

The plaintiff essentially argues that the defendants were obliged to convey marketable title not only to the premises described in schedule A but also to the property that exists west of the property described in schedule A. The plaintiff claims that the defendants were obliged to convey marketable title to the property that exists to the current mean high water line.   The plaintiff's position would require the court to consider evidence outside the four corners of the contract to vary or contradict the terms of the contract.   The plaintiff's position would require the court to ignore or violate the parol evidence rule.

As we have so often noted, the parol evidence rule is not a rule of evidence, but a substantive rule of contract law.   The rule was premised upon the idea that ‘when the parties have deliberately put their engagements into writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing.   After this, to permit oral testimony, or prior or contemporaneous conversation, or circumstances, or usages [etc.] in order to learn what was intended, or to contradict what was written, would be dangerous and unjust in the extreme.  Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. 19, 37 (1851)

The parol evidence rule does not of itself, therefore forbid the presentation of ‘parol evidence,’ that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such contract.   Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant.   When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant.

TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288 (1991) (Some citations omitted;  emphasis in original).   See also Ruscito v. F–Dyne Electronics, 177 Conn. 149, 159 (1979);  Connecticut Acoustics, Inc. v. Xhema Construction, Inc., 88 Conn.App. 741, 745 (2005).

While the court need not, and should not, look beyond the four corners of the integrated contract before it to interpret its meaning when the contract's language is clear and unambiguous, the court observes that rather than mislead the plaintiff the defendant provided the plaintiff with a survey prior to the execution of the contract which clearly demonstrated the location of the westerly line as shown on the map recorded in the Norwalk land records as map # 591, as well as the location of the masonry wall and the mean high water line.   This is not the act of an individual who is attempting a “bait and switch” as the plaintiff claims.

The plaintiff also claims that the defendants breached their obligation under the contract by failing to keep the plaintiff informed of challenges to his title by neighbors.   While there is some tangential reference to such challenge, it is clear to the court that the challenge being made by the neighbors was the right of the defendant or the plaintiff to build a pool west of the masonry wall.   There is no credible evidence that anyone ever asserted any meaningful challenge to the defendants' ownership.   The evidence suggests that neighbors threatened and indeed were willing to challenge, through the normal regulatory processes, the right of an owner of the premises to construct certain amenities which they viewed as inconsistent in scope and location with the regulatory requirements that governed development within the neighborhood.   The evidence is clear that the defendant kept the plaintiff apprised of the concerns of the neighbors.

The contract obliged the defendant to convey by warranty deed marketable title to the property described in schedule A. The evidence was uncontradicted that the defendants owned marketable title to the property described in schedule A of the contract and that they were ready willing and able to convey it upon tendering of the contract purchase price by the plaintiff.

Nor is it of moment that the actual deed conveying marketable title to the premises described in schedule A was not signed or tendered.   It is a credit to both of the real estate attorneys representing the plaintiff buyer and the defendant sellers that their communication was so clear with regard to what the defendants were ready willing and able to convey and what the plaintiff was ready willing and able to accept.   The correspondence between the attorneys is clear that the plaintiff would reject and not tender the full contract purchase price in exchange for a warranty deed that conveyed marketable title to the premises described in schedule A. Execution and tendering of such a deed would have been an exercise in futility.   The law does not require a futile exercise on the part of the defendants in order to preserve their rights under the contract.

B. UNJUST ENRICHMENT CLAIM

In the second count of the complaint the plaintiff seeks relief on the grounds that the defendants have been or will be unjustly enriched if they are allowed to keep the $255,000 contract deposit.   This, of course, raises the issue of whether the liquidated damages clause contained in the contract is enforceable.   The contract required the plaintiff to deposit $255,000 with the defendants' attorney upon execution of the contract.   In the event of a buyer's default the contract sets forth the seller's sole and exclusive remedy as the right to terminate the agreement “and retain the down payment as reasonable as liquidated damages.”   The court finds that the buyer was in fact in default by rejecting the conveyance of marketable title to the premises which the defendants were obliged to convey and in refusing to tender the balance of the contract purchase price in exchange for the same.   With regard to the liquidated damages clause itself the court finds that while the initial draft was written by the defendants' attorney, some language changes were negotiated and included in the clause at the request of the plaintiff's attorney prior to execution of the contract.   Moreover the court finds that the amount of the liquidated damages clause was also expressly negotiated before execution of the contracts.

The law is well established in this jurisdiction as well as elsewhere, that a term in a contract calling for the imposition of a penalty for breach of the contract is contrary to public policy and invalid, but a contractual provision fixing the amount of damages to be paid in the event of a breach is enforceable if it satisfies certain conditions ․ A contractual provision for a penalty is one the prime purpose of which is to prevent a breach of contract by the holding over the head of a contracting party the threat of punishment for a breach ․ A provision for liquidated damages on the other hand is one the real purpose of which to fix fair compensation to the injured party for a breach of contract.

American Car Rental, Inc. v. Consumer Protection, 273 Conn. 296, 306 (2005) quoting Berger v. Shananhan, 142 Conn. 726, 731, 732 (1955).

[W]here experienced parties and their attorneys had multiple opportunities to examine the contracts and discuss their terms, including the liquidated damages clauses, we conclude the evidence supports the district court's finding that the liquidated damages clauses were the result of a reasonable endeavor by the parties to fix compensation.

HH East Parcel, LLC v. Handy & Harmon, Inc., 287 Conn. 189, 206 (2008) quoting Hendricks Property Management Corp. v. Birchwood Properties LTD. Partnership, 741 N.W.2d 461, 470 (N.D.2007).

In the case at bar the liquidated damages clause was specifically addressed and negotiated by the parties and their counsel prior to execution of the contract.   Our Supreme Court has suggested three factors that should be considered in determining whether or not a particular clause is an appropriate liquidated damages clause or an unenforceable penalty under Connecticut law those factors are 1) whether or not the damages that would be incurred in the event of a breach were uncertain or difficult to prove;  2) whether or not the intent was to liquidate damages and;  3) whether or not the amount stipulated was reasonable.  HH East Parcel, LLC v. Handy and Harmon, Inc. supra at 205.

The evidence reveals and the court finds that the liquidated damages clause was the subject of specific and expressed negotiations between the parties and their representatives.   The specific liquidated damages amount was expressly agreed upon by the parties.   At the time of the execution of the contract the property had been on the market for a considerable period of time;  at that time neither the buyer nor the seller could be reasonably certain as to how long it would take to find another buyer in the event the buyer defaulted on the contract nor could the parties be reasonably certain as to what a subsequent purchase price would be in the event of a buyer's default.   Moreover the evidence is clear that the defendants themselves had a substantial mortgage on the property which carried with it a significant interest payment and that the defendants had a tenant in the property paying a substantial rent whom they were required to cause to vacate upon the execution of the contracts.   At the time of the signing of the contract neither of the parties could be certain as to whether the damages in the event of a buyer's default would be less than or more than the 10% down payment that was negotiated as a liquidated damages clause.   The defendant testified that he had incurred substantial damages as a result of the buyer's default and the court finds based upon all of the circumstances that the amount called for with regard to liquidated damages was reasonable given the uncertainty of the defendants' damages at the time of the execution of the contract.   The court also finds that it was the intent of the parties to liquidate damages in the event of a breach.

Since the court finds that the liquidated damages clause negotiated by the parties was a reasonable and enforceable liquidated damages provision in the contract the plaintiff's claim that the defendant has been unjustly enriched must fail.

C. MISREPRESENTATION CLAIMS

The plaintiff has asserted in three separate counts against the defendants sounding in misrepresentation:  fraudulent misrepresentation, negligent misrepresentation and innocent misrepresentation.

There are two common elements to each of these misrepresentation claims that the plaintiff must prove in order to prevail.   The first element is that there must be a representation of a material fact which was false and the second common element is that the plaintiff must justifiably rely on the misrepresentation of that material fact.   See e.g. D'Ulisse v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217–18 (1987);  Centimark Corp. v. Village Manor Associates LTD., 113 Conn.App. 509, 518 (2009).   The plaintiff asserts that the defendant misrepresented the property as “direct waterfront” property with “an expansive sandy beach.”   The plaintiff also asserts that the defendant represented that he owned the property to the current mean high water line though, the plaintiff asserts, he did not own the property to the current mean high water line.

While the court finds that the defendant did make the representations that the plaintiff claims the defendant made, the plaintiff has failed to sustain his burden of proof that the representations were false.   In fact the better evidence is that the defendant did own the property to the mean high water line and had the plaintiff completed the transaction he too would have become the owner to the property of the mean high water line.

The plaintiff's expert, a lawyer employed by Title Insurance Companies for 29 years, testified that in her opinion the defendants owned the property to the current mean high water line and that the property owned by the defendants was direct waterfront property.   While the plaintiff's expert testified that she did not do an independent investigation she based her opinion on the documentation provided by the defendant's real estate counsel which documentation was contained as attachment to his opinion letter.   That opinion letter with exhibits was admitted into evidence as a full exhibit without objection.   That exhibit also contained the conclusion that the defendant owned the property to the mean high water line.   To be clear neither the opinion letter of the defendant's real estate counsel nor the plaintiff's expert opined that the defendant had marketable title to the mean high water line.   The plaintiff's expert concluded that the defendant owned the property to the water, had insurable title to the masonry wall, and had marketable title to the 591 line.

The detailed and thorough exhibits contained in the opinion letter of the defendant's real estate counsel revealed that the original 1924 subdivision map which contained well over 100 lots including the subject lot along with approximately 18 other lots that were bounded by Rowayton Avenue on the east and what is referred to on map 591 as Rowayton Harbor on the west.   The exhibits reveal that in 1924 the mean high water line coincided with a bulkhead consisting of piers and tarred material alongside the westwardly boundary.   This bulkhead did not just establish the westerly boundary of the subject property but also the westerly boundary of at least 15 of these newly created subdivided lots.   The masonry wall was constructed in the early 1930s by a consortium of these lot owners who hired a single contractor to construct the masonry wall to the west of the original bulkhead and filled in behind the newly constructed masonry wall.   Subsequent to the early 1930s when the masonry wall was constructed, the additional beach area to the west of the masonry wall line was created by the natural process of accretion which resulted in the mean high water line moving westward.  “Accretion is defined as ‘addition of portions of soil, by gradual deposition through the operation of natural causes, to that already in possession of the owner.’   Black's Law Dictionary (5th ed.)”  Roche v. Fairfield, 186 Conn. 490, 495 (1982).  (Some citations omitted.)

Connecticut has long recognized the riparian rights of both reclamation and accretion.   See e.g. Short Beach Cottage Owners Improvement Association v. Stratford, 154 Conn. 194, 200 (1966);  Lockwood v. New York & New Haven Railroad Company, 37 Conn. 387, 391 (1930).

The conveyance of upland bordering upon the mean high watermark presumptively carries with it the riparian rights attached thereto, including privileges of reclamation and wharfing out.

Gray v. Hudson 34 Conn.Sup. 31 (1974 Saden, J.), affirmed 173 Conn. 230 (1977), citing Barri v. Schwarz Brothers Co., 93 Conn. 501, 507 (1919);  see also Powell on Real Property, volume 9 section 66.01[3].

“A substantial majority of courts infer, from actual coincidence of the described boundary and the water's edge, an intent to have land riparian in character, thus reaching the same result as if the doctrine were rule of law.”  Powell, supra, volume 9 section 66.03[2] citing Gray, supra.

The owner of waterfront property is benefitted in title by whatever may be joined to his land above the high watermark through accretion.  Rochester v. Barney, 117 Conn. 462, 468 (1933).

Thus the conveyance of lot 3 to the defendants in the Dowd deed carried with it the riparian rights and therefore the newly created property to the west of the 591 line.

Based on these authorities the conclusion reached by the plaintiff's expert and the defendant's real estate counsel that the defendants were the owners of the property to the mean high water line were certainly consistent with Connecticut law.   There was no testimony or evidence that the defendant was not the owner to the property to the mean high water line.   Moreover the court observes that the 1927 deed from Case to Dowling carried with it a prohibition on a subdivision of the individual lots created on the 1924 subdivision map.   This prohibition on subdivision may well have been violated if Mrs. Dowling had intended to retain a portion of the parcel for herself or convey it to a third person.   Of course there is no evidence that she had any such intention and the legal presumptions as well as the factual evidence submitted would indicate quite the contrary.

While it is unnecessary in these proceedings for the court to reach any conclusion as to who actually is the owner of the property west of the 591 line, the better and more persuasive evidence is that the defendants were the owners and therefore that the property was direct waterfront and contained a sandy beach.   In any event the plaintiff has failed to sustain his burden of proof that the defendant made a misrepresentation of material fact.   Nor has the plaintiff proven that he justifiably relied on any such misrepresentation since the plaintiff had in his possession prior to the execution of the contract a survey which clearly indicated the 591 property line, the masonry wall and the current mean high water line along with other pertinent information.   When compared with the property description contained in the contract this survey would have alerted the plaintiff to these issues prior to the execution of the contract.   For some reason the plaintiff did not share this survey with his real estate attorney.

In saying that the property was waterfront property or that he was the owner of the property to the mean high water line the defendant did not represent the nature of his ownership as marketable title, insurable title or otherwise.   Indeed the defendant's credible testimony was that prior to the incidents that occurred subsequent to the execution to a contract, he would not have thought of or known of the nuances of marketable title or other types of ownership.   He was speaking in common parlance.   On the other hand marketable title is a specific legal term with a specific definition laid out in detail in the contract between the plaintiff and the defendants.   Marketable title in that contract is specifically defined and what the plaintiff was obliged to convey was also specifically defined.   The plaintiff has failed to sustain his burden of proof that any of the defendant's statements were false.

D. THE CONNECTICUT UNFAIR TRADE PRACTICES ACT

The plaintiff further alleges that the defendants acted in violation of the provisions of the Connecticut Unfair Trade Practices Act (CUTPA).   CUTPA states that “no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”   C.G.S. section 42–110b.   In determining whether an act or practice is unfair the Connecticut Supreme Court has adopted the “cigarette rule” the cigarette rule contains three criteria:  “(1) Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise-whether, in other words it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is an immoral, unethical, oppressive or unscrupulous;  (3) whether it causes substantial injury to consumers ․” Conaway v. Prestia, 191 Conn. 484, 492–93 (1983) quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972).   The plaintiff has failed to prove that the defendant's conduct in any way was a violation of CUTPA.

E. MUTUAL MISTAKE

Finally the plaintiff seeks to have the contract reformed based upon the doctrine of mutual mistake.  “A mutual mistake is one that is common to both parties and effects a result that neither intended.”  BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 148 (2007), quoting Inland Wetlands and Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708 (1991).  “Reformation is appropriate in cases of mutual mistake-that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, to both parties, the written instrument fails to express the real agreement or transaction ․ [R]eformation is also available in equity when the instrument does not express the true intent of the parties owing to the mistake of one party.”  Harlach v. Metropolitan Property and Liability Insurance Co., 221 Conn. 185, 190–91 (1992).   In pursuing this claim the plaintiff relies on cases such as Manaker v. Rosenfield, 2012 WL 5860385 at 45 (Conn.Sup., 2012) [54 Conn. L. Rptr. 910], arguing that where an agreement fails to establish all of the essential terms of the agreement as is required to form a meeting of the minds reformation is appropriate.   The Manaker court citing Restatement Second of Contracts section 33 noted “if the essential terms are so uncertain that there is no bases for deciding whether the agreement has been broken there is no contract.”

The assumption underlying the plaintiff's argument is that both parties were mistaken in their mutual belief that the defendants owned all of the property to the mean high water line.   The reasoning follows that since the defendant did not own all of the property to the mean high water line the contract as written did not effectuate the intent of the parties which was to sell all of the property to the mean high water line.   Ultimately the problem with the plaintiff's argument is that it is based upon unproven facts.   While the court agrees that it was the intent of the parties to contract for the sale of all of the property to the mean high water line there is no evidence before the court that the defendants did not own the property to the mean high water line and it was the plaintiff's burden to prove that.   Moreover, as previously discussed, based upon the law regarding a land owner's acquisition of property through accretion and reclamation as well as the presumptions embedded in documents that convey upland property that has been enlarged through the doctrines of reclamation and accretion the better evidence shows that the defendants did own the property to the mean high water line and had the plaintiff accepted the deed or deeds that the defendants were ready willing and able to convey the plaintiff too would have become the owner of all of the property to the mean high water line.   The intent of all parties would have been effectuated had the plaintiff been willing to consummate the contract consistent with its terms.   The contract laid out in very specific terms the obligation of the defendants to convey marketable title to the property described in schedule A to the contract.   A deed conveying marketable title to the property in schedule A by operation of law would have conveyed ownership of the property to the west of the 591 property line.   At a minimum there is no evidence before the court from which the court could conclude otherwise.

The case at bar is more like of McBurney v. Cirillo, 276 Conn. 782, 814–17 (2006).   The court therein held that the parties' ignorance of a particular legal doctrine at the time they executed the agreement had been irrelevant to the formation of the agreement because the agreement had effectuated the result intended by the parties, specifically the exchange of certain right title and interest in real property.   In the case at bar there does not appear to have been a mutual mistake.   The defendant by virtue of his conversations with the plaintiff demonstrated that he was aware of the doctrine of accretion and explained to the plaintiff that the property had been enhanced and enlarged by that doctrine.   The intent of the parties to convey all of the property owned by the defendants would have been effectuated by consummation of the contract.   The specific nature of the title that the defendants were obligated to convey was spelled out in detail in the contract.

F. THE DEFENDANT'S COUNTERCLAIM

The defendant asserts a counterclaim against the plaintiff alleging that at the plaintiff's request the defendant spent a considerable amount of time energy and resources at the plaintiff's request in pursuing and doing preliminary work with regard to the development of the property.   While court finds that the defendant did spend considerable time in assisting the plaintiff with his development plans for the property the defendant spent this time in the hopes of entering into a contract for demolition of the existing house and the construction of the new house and amenities on the property.   There was never a written contract entered into between the plaintiff and the defendant;  there was never a specific expression between the parties of how the defendant would be compensated for this project;  there was never a expression between the parties of whether or not the defendant would be compensated if the defendant did not get the contract for the development of the subject property.   There was no discussion between the plaintiff and the defendant as to whether or not the defendant would be compensated on a time and materials basis, a lump sum basis or some other basis.

The defendant desired to get the contract and was doing the preliminary work in an effort to bolster his opportunity to obtain the contract for the development and construction work.   The defendant was willing to risk some of his time energy and resources in an effort to win this contract and to put himself in a better position to get what, no doubt, would have been a substantial contract, had things worked out as both parties had hoped.   They did not.

For obvious reasons the parties never entered into that contract.   The defendant has no claim for contractual damages nor has the defendant proven a claim for unjust enrichment for his efforts.   For all these reasons the defendant has failed to prove that he is entitled to damages for breach of contract or unjust enrichment as alleged in his counterclaim.

G. CONCLUSION

Judgment for the defendants shall enter on the plaintiff's complaint;  judgment for the plaintiff shall enter on the defendant's counterclaim.

GENUARIO, J.

FOOTNOTES

FN1. All of the conversations and dealings evidenced at trial were between the plaintiff and the defendant Chute.   There was no evidence of any statements or conduct by the defendant McAndrew (other than her signing the contract).   Accordingly all references to the defendant (singular) are references to the defendant Chute..  FN1. All of the conversations and dealings evidenced at trial were between the plaintiff and the defendant Chute.   There was no evidence of any statements or conduct by the defendant McAndrew (other than her signing the contract).   Accordingly all references to the defendant (singular) are references to the defendant Chute.

Genuario, Robert L., J.