Dalia Giedrimiene v. George J. Emmanuel et al.

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Superior Court of Connecticut.

Dalia Giedrimiene v. George J. Emmanuel et al.

CV075003255

Decided: October 27, 2010

MEMORANDUM OF DECISION AFTER COURT TRIAL

I. NATURE AND HISTORY OF PROCEEDINGS

A. The Underlying Action-The Plaintiff's Complaint

This case arises out of a failed real estate closing.   The plaintiff, Dalia Giedrimiene, a self-represented litigant, brings this action to recover damages she claims were caused to her from the breach of a real estate sales agreement.1  The plaintiff, who was the putative buyer of a one-family residence, sues the seller George Emmanuel, the real estate agents Kathy Zdeb and Michael Calabro, the real estate agency for whom they worked-Calabro & Associates LLC, and the putative mortgagees-Steve Bysko and Noreast Mortgage Services LLC. Each of the defendants was represented by counsel throughout the proceedings.

In her complaint, dated December 14, 2006, the plaintiff claims that on March 22, 2006, she entered into a contract to purchase the Emmanuel property located at 297 Catherine Drive, Rocky Hill, CT. The purchase price in the contract was $610,000.   The plaintiff alleges that she made a total deposit into the escrow account of the realtors of $31,000.   The contract contained a contingency clause that the plaintiff would obtain a mortgage for $579,000 on or before April 18, 2006.   The plaintiff alleges that the mortgage contingency date was extended twice, first to May 2 and then to May 19, 2006.   The plaintiff alleges that on May 2, 2006, she informed the defendant realtors, who were representing both the plaintiff as buyer and the defendant Emmanuel as seller, that she was unable to obtain the necessary mortgage.   The plaintiff alleges that on May 2, 2006, and thereafter, she made repeated demands for the return of her deposit, but that it was not returned to her.

In the First Count, against the defendant Emmanuel only, the plaintiff asserts a breach of contract claim against the seller for his failure to return the deposit of $31,000.   In the Second Count, against the defendants Kathy Zdeb and Calabro & Associates LLC, the plaintiff asserts a claim for conversion of the deposit funds.   In the Third Count, also against Zdeb and the LLC, the plaintiff asserts a claim for statutory theft, including a claim for treble damages, pursuant to General Statutes Section 52-564.   In the Fourth Count, against Zdeb and the LLC, the plaintiff asserts a claim for a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), pursuant to General Statutes Section 42-110b.   In the Fifth Count, against Zdeb and the LLC, the plaintiff asserts a claim of negligence in several respects.   The Sixth, Seventh, Eighth, and Ninth Counts are against Michael Calabro and mirror the allegations in the Second, Third, Fourth, and Fifth Counts, respectively.   In the Tenth Count, against Noreast Mortgage Services LLC and Steve Bysko, the plaintiff asserts that she was told by the realtors that only by obtaining a mortgage from Noreast and Bysko could she salvage the real estate contract, that otherwise she would lose her deposit money.   The plaintiff alleges that Noreast and Bysko also confirmed that this was so.   The plaintiff alleges that this was erroneous advice and that Noreast and Bysko were negligent in giving her this advice, and that in fact Noreast and Bysko intended to mislead the plaintiff and were acting in collusion with the realtors such that the plaintiff suffered financial damages.2  In the Eleventh Count, against Noreast and Bysko, the plaintiff alleges that the conduct of Noreast and Bysko violated the Connecticut Unfair Trade Practices Act (“CUTPA”), pursuant to Section 42-110b.3

B. Subsequent Pleadings

Numerous pleadings were filed by the defendants in response to the plaintiff's complaint that not only included answers and special defenses, but also counterclaims and cross-claims and responses to the latter.   Before commencing the evidence, the plaintiff and all counsel agreed that the operative pleadings consisted of ten separate documents, one of which was amended.   A list of those pleadings was made part of the file.   The court will attempt to summarize the various defenses, claims and counterclaims contained therein.

On June 30, 2007, the seller (Emmanuel) filed his substituted answer and four-count counterclaim. (# 125).  The seller admitted the execution of the buy-sell agreement and the two extensions as alleged by the plaintiff but denied that he in any way failed to comply with the contract, thereby causing the plaintiff damages.   The counterclaim lodged against the plaintiff consisted of claims of breach of contract, intentional misconduct, wanton and reckless misconduct and a violation of CUTPA.   The latter count was withdrawn by the seller at the close of evidence.

On March 13, 2007, Kathy Zdeb, Michael Calabro and Calabro Associates, LLC (hereinafter referred to as the “Calabro Defendants”) filed their answer, special defense counterclaim and cross-claim.4  On June 19, 2007, Bysko and Noreast filed an answer (# 126) in which they denied the plaintiff's allegations of negligence and collusion.   This document appears to have closed the pleadings and finally joined the issues for trial.

C. The Trial

The trial commenced before this court on March 23, 2010.   The court heard nine days of testimony on various dates in March, April and May. The presentation of the evidence concluded on May 6, 2010.   Final argument was held on May 18, 2010.   The parties agreed to forgo the filing of briefs in light of the lengthy trial and the self-represented litigant.   The last transcript ordered by the court was received on July 29, 2010.   The court heard from eleven witnesses.5  In addition to herself, the plaintiff called her husband and a neighbor.   The defendant Emmanuel, who testified during the case in chief and in rebuttal, called attorney Lawrence Garfinkel, who was the plaintiff's attorney in the failed real estate transaction.   The Calabro defendants produced five witnesses, including the two individual defendants, a former receptionist with the agency, a competing realtor and a real estate expert.   Bysko testified on his own behalf and on behalf of Noreast.   The court received ninety-three exhibits into evidence, twenty-eight submitted by the plaintiff, twenty-two submitted by Emmanuel, twenty-eight submitted by the Calabro defendants, and fifteen submitted by Bysko and Noreast.6  During the trial the court took seventy-eight pages of notes.   After reviewing all of those notes and considering the testimony of all witnesses and assessing the credibility of each;  after reviewing all of the operative pleadings;  after reviewing each and every one of the submitted exhibits;  and after considering the oral arguments advanced by the parties, for reasons hereinafter stated, the court finds in favor of the seller (Emmanuel) and in favor of the mortgage broker (Steve Bysko and Noreast).   For reasons hereinafter stated, the court finds that although, based upon the allegations in her complaint, the plaintiff has sustained her burden of proof against the Calabro defendants, the court also finds that said defendants have met their burden and have proven two of their special defenses.   Nevertheless, the court further finds that the Calabro defendants significantly contributed to the plaintiff's default, therefore, under applicable terms of the buy-sell agreement, are not entitled to an award of attorneys fees or costs.

II. THE OPERATIVE PLEADINGS-SPECIFIC ALLEGATIONS

A. Plaintiff's Complaint

As noted, only four counts of the plaintiff's original ten-count complaint are ripe for disposition, i.e., the first, fifth, ninth and tenth counts.   In the First Count of her complaint plaintiff alleges that she was able to get an extension of the mortgage contingency and closing dates, however, on May 2, 2006, her mortgage application for the requisite $579,000 mortgage was rejected whereupon she alleges that she informed her agent, Kathy Zdeb, and her employer Calabro Associates, LLC of the rejection of her application.   She further alleges that the seller, for whom Zdeb was also the agent, after repeated demands to do so, refused to return her deposit of $31,000 resulting in financial loss to the plaintiff.

The Fifth Count is based upon a claim of negligence and is brought against Zdeb and her employer.   Specifically the plaintiff alleges that Zdeb was negligent in that Zdeb and the LLC failed to give the plaintiff proper advice about the transaction, failed to get an additional extension of time for the plaintiff to obtain a mortgage commitment, advised the plaintiff that no extension was needed when that was not the case, failed to properly represent the plaintiff's interests, and failed to represent the plaintiff's interests because of Zdeb's and Calabro & Associates LLC's status as a dual agent representing both the buyer and the seller in the transaction.   The plaintiff alleges that the loss of her $31,000 deposit was caused by the negligence of said defendants.   The Ninth Count is brought against Michael Calabro and the LLC and is based upon identical allegations of negligence that are contained in the Fifth Count.

As noted, the Tenth Count is brought against Bysko and Noreast.   Although allegations of collusion and willful misconduct were contained therein, the plaintiff agreed at the commencement of trial that the actions she wished to attribute to said defendants were based upon alleged negligent conduct only.   Thus, the plaintiff alleges that Bysko informed her that unless she pursued a mortgage with him she would lose her deposit.   She further alleges that said defendant was negligent in failing to get a mortgage for the plaintiff, in furnishing improper advice regarding the status of her deposit;  in failing to properly represent the plaintiff's interest in the transaction;  and in advising the plaintiff that she did not need to get an additional mortgage extension.   The plaintiff alleges that as a result of said defendants' negligent conduct she has suffered financial damages, i.e., the loss of her deposit.

B. Responsive Pleadings

The seller claimed, inter alia, that as a result of the plaintiff's failure to terminate the buy-sell agreement and failure to appear at a scheduled closing, thereby breaching the contract, he was compelled to seek another buyer, to obtain interim financing and to maintain a home for several months in which he did not reside.   In addition, the seller claimed that the plaintiff, intentionally, willfully, wantonly and recklessly caused an illegal lis pendens to be placed on the land records, thereby causing him to incur legal expense and further delaying the ultimate sale of Catherine Drive to another buyer.   The seller further alleges that this conduct on the part of the plaintiff caused him permanent and severe mental and emotional distress.7  Emmanuel seeks liquidated and punitive damages, including substantial attorneys fees, from the plaintiff.

In their answer the Calabro defendants assert that the terms of the buy-sell agreement and the two extensions speak for themselves and that the $31,000 deposit was not paid to Kathy Zdeb, as the plaintiff alleged, but was paid to the real estate corporation.   These defendants, however, admit that at all relevant times the individual agents and the corporation were acting as realtors for both the plaintiff and the seller.   They deny they were negligent in any manner in connection with this transaction, as alleged by the plaintiff.   They filed three special defenses claiming comparative negligence on the part of the plaintiff, equitable estoppel and waiver.   Specifically, the Calabro defendants claim that the plaintiff failed to make “prompt and diligent” efforts to obtain a mortgage commitment, refused to terminate the contract by providing the proper notice to the seller and refused to instruct these defendants to do so on her behalf.   The Calabro defendants further assert that the plaintiff “induced” them to refrain from sending notice to the seller, and that said defendants acted in reliance on said inducement.   The third special defense asserts that the plaintiff waived any claims she might have against them by choosing not to exercise her right under the mortgage contingency clause to terminate the agreement with the seller.   In the second count of their amended counterclaim, these defendants are seeking substantial attorneys fees and costs from the plaintiff based upon a provision in the buy-sell contract permitting such recovery from the unsuccessful party in this action.8

As previously noted, in their answer, Bysko and Noreast deny that they were negligent in any manner relative to the services they provided for the plaintiff in connection with this transaction.   Notably, these defendants are the only parties who have not asserted counterclaims or cross-claims against another party to the action.

III. FACTUAL BACKGROUND

In March 2006, the plaintiff was in the market for a house that was closer to her eight-year-old's school.   She drove by 297 Catherine Drive in Rocky Hill and called the advertising broker, Zdeb, from Calabro Associates.   Zdeb gave the plaintiff a folder containing information showing how successful she had been as a real estate agent.   Zdeb also discussed with the plaintiff the possibility of selling the plaintiff's house at 193 Stonehill Drive, Rocky Hill, which the plaintiff had been attempting to sell on her own;  Zdeb told the plaintiff that she had buyers in mind and discussed with the plaintiff a dual agency agreement.   DEF BB. On March 20, 2006, the plaintiff signed an exclusive right to buy agreement permitting Zdeb and her agency to represent her in the purchase of Catherine Drive.   DEF AA. Although that document provided for a fee of three percent of the purchase price to be paid by the buyer in the event that the transaction was completed, all parties agreed that the seller would be responsible for any commission notwithstanding the plain language of that agreement.   The buyer acknowledged in the agreement that Zdeb would also act as an agent for the seller and would thereafter be considered a dual agent.

Two days later the plaintiff entered into the buy-sell agreement with Emmanuel, which, inter alia, contained a mortgage contingency date of April 18, 2006.   DEF CC. As noted, the agreement provided that the purchase price for the seller's dwelling would be $610,000, $31,000 of which (by the 14th day thereafter) would constitute the deposit.   The balance of $579,000 was to be paid via a mortgage loan from a lender at prevailing interest rates amortized over a period of thirty years with no more than a two-point assessment for any commitment.   Essentially, the mortgage contingency clause (Par # 5) permitted the buyer to terminate the agreement so long as written notice of the buyer's inability to obtain the requisite mortgage was provided by the buyer to the seller “not later than the mortgage contingency date,” whereupon the buyer would be entitled to a full refund of her deposit.   The buyer agreed to make “prompt and diligent efforts ” to obtain her commitment from the lender.   Par # 6 obligated the listing broker, Coldwell Banker Calabro, to retain the buyer's deposit in escrow in the event of any dispute between the buyer and the seller over said deposit.   The closing of the transaction was to take place on or before May 1, 2006, or sooner by mutual agreement.   Par # 7.   Other relevant portions of the buy-sell agreement will be hereinafter discussed where relevant and appropriate.

The plaintiff expressed her concern to her agent as to the shortness of the date whereupon Zdeb emphasized her experience in these matters and asked the plaintiff to “trust me,” telling the plaintiff that it should be no problem to obtain an extension of both the mortgage contingency date and the closing date.   On April 4, 2006, the seller agreed to an extension of the mortgage contingency date to May 2 and the closing date to May 15.   DEF B. Despite the plaintiff's protestations, however, she did not file an application for the requisite mortgage until April 25, over a month from the date that she entered into the buy-sell agreement!   The plaintiff filed the application with Trout Brook Mortgage (Munish Arora).   DEF MM. On the application, the plaintiff inserted a monthly income of $8,333.33.   While the plaintiff was pursuing the mortgage with Trout Brook, a second extension was agreed to by the seller;  that extension, however, contained the addition of the phrase:  “time is of the essence.”   DEF C. On May 2 the seller, extended the mortgage contingency from May 2 to May 19;  the closing day was extended from May 15 to May 31.   The added language applied to the closing date only.   The phrase was added by the seller on the advice of his attorney.   Arora, had expressed his concern that the plaintiff would not have sufficient time to get the required mortgage or sufficient income to make the payments.   On April 25 he faxed a letter to Zdeb expressing his concern that the plaintiff would be unable to get a mortgage without first selling her home and requesting a new closing date.   P # 7.   It was, however, clearly understood by the buyer and the seller that the transaction would not be contingent upon the plaintiff selling her residence and that there would be no agreement to a so-called Hubbard clause to permit that to occur.   On April 29 the plaintiff received a commitment from Mortgageit, Inc. for a new first mortgage, however, the amount was for $279,000 only and the commitment contained a specific condition that the plaintiff sell her current residence on Stonehill Drive in Rocky Hill. On May 2, the plaintiff received a formal denial of her mortgage application that sought a new first mortgage in the amount of $579,000 on Catherine Drive.   Arora faxed the document to Zdeb. The denial was based upon a belief that the plaintiff's income would not support the payments and that a larger down payment was needed, which should be obtained via the sale of the plaintiff's existing home.   DEF NN.

Having received that denial, the plaintiff met with Zdeb and Michael Calabro on that day, which was the date on which the first mortgage contingency extension expired.   The plaintiff asked those defendants to obtain another extension from the seller, which they did with the addition of the “time is of the essence” phrase.   The plaintiff was confident that she could obtain the necessary financing.   As Arora continued to search for appropriate financing, including a suggestion of a home equity loan on the plaintiff's existing home, an appraisal was needed of the Catherine Drive property, which was performed on May 22 at which time Zdeb, the bank appraiser and the plaintiff went to the premises.   It was the first time the plaintiff met Emmanuel.   The plaintiff testified that she was surprised to find a house nearly empty as Zdeb had told the plaintiff the seller was in no hurry to move before the end of summer.9

Since the second mortgage contingency date of May 19 had come and gone and the closing date of May 31 was fast approaching, the plaintiff met with Zdeb on May 24 with regard to her ongoing difficulties in obtaining the requisite financing.   During the meeting Zdeb assured the plaintiff that her contract was “secure.”   When the plaintiff asked to speak to the seller directly to request a further extension, Zdeb insisted that such was not necessary as she spoke with Emmanuel every day.   Zdeb then strongly insisted that she should use the services of Bysko, and assured the plaintiff that he was the best and could obtain the necessary financing to close the deal.   Zdeb then telephoned Bysko, who met with the plaintiff on that day.

The evidence clearly demonstrates that Bysko went right to work on the plaintiff's behalf in an effort to obtain the necessary financing.   On the May 24 he discussed the financial issues with the plaintiff for nearly two hours, while assisting her in completing the necessary paperwork.   When, however, he asked the plaintiff to disclose her income, the plaintiff told him that she earned $15,000 a month from her employment, an amount nearly double of that disclosed to Arora! 10  DEF BB. At the meeting Bysko suggested and the plaintiff agreed that the quickest and most efficient method to secure the financing necessary to consummate the purchase of Catherine Drive was to place an equity line of credit on the plaintiff's Stonehill Drive residence in order to obtain funds for a larger down payment.   The next step would be to place a second mortgage on the Catherine Drive property, which would be paid off, along with the equity line of credit, when the Stonehill property was sold.   Bysko explained to the plaintiff that this approach would avoid the higher interest rate that the plaintiff would be required to pay over a thirty-year period for a “jumbo loan” of $579,000 as a first mortgage on Catherine, assuming that the plaintiff was able to obtain such a loan.   Over the next several weeks Bysko diligently pursued this plan.   See DEF DDD, JJJ and III.

In that the home equity loan was the essential first step in putting together the financial package, Bysko obtained the necessary insurance information from the plaintiff (DEF GGG) and was in communication with Zdeb and the paralegal from the office of Attorney Lawrence Garfinkel, who, on recommendation by Zdeb, had been retained by the plaintiff to represent her in closing the loans and the purchase of Catherine Drive.11  DEF OOO. On the very day of his meeting with the plaintiff, Bysko obtained a commitment from Citibank for a home equity loan on the Stonehill property for up to $185,200.   DEF KKK. On May 31, he obtained a commitment from Provident Funding for the first mortgage on Catherine Drive in the amount of $250,000 (DEF LLL), which, due to increases in Provident's rates, was later substituted on June 14 by an identical commitment from Mortgage Lenders Network.   DEF MMM. Finally, also on June 14, Bysko obtained a commitment from GB Home Equity for the second mortgage on Catherine Drive in the amount of $160,000.   DEF NNN. The total of these commitments ($595,200) exceeded the amount that the plaintiff needed to close the transaction with Emmanuel.   To proceed to consummate the purchase of Catherine Drive the plaintiff needed to obtain $169,000 from the approved home equity line of credit on the Stonehill property.   The two mortgages committed for Catherine Drive would make then up the difference and provide the $579,000 needed to close.

Bysko explained that Citibank simply hired a notary, who would then arrange to meet with the plaintiff at her home to close the home equity portion of the financial package.   On June 14, he delivered all of the above referenced commitments to the plaintiff's home by leaving them in the mailbox as prearranged.   P # 15.   Shortly thereafter he received word from Citibank that the plaintiff was not cooperating with the notary.   Bysko then telephoned the plaintiff, who informed him that she and her husband would not sign any documents until they received “more paperwork.”   Bysko attempted to explain that they had three business days after signing to negate the loan if they deemed it unacceptable.   He reminded the plaintiff that prior to the 14th, he provided the plaintiff with all of the Truth-In-Lending documents applicable to each of the aforementioned commitments (P # 15), however, the plaintiff persisted in her refusal to sign.   The next time Bysko heard from the plaintiff is when he was served with this lawsuit!

After speaking to Bysko the plaintiff requested a meeting with Zdeb and Calabro during which she expressed her concerns as to the financial package compiled by Bysko.   Calabro then telephoned Bysko who, as he explained to the plaintiff, told Calabro that the home equity line on Stonehill was the essential first step in the process that would enable the plaintiff to complete the purchase of Catherine Drive and that the plaintiff had failed to cooperate when contacted by the notary.   Calabro's reaction was to urge the plaintiff to give his agency an exclusive right to sell her residence at Stonehill, assuring her that the deposit on Catherine Drive was safe.   Notably, the plaintiff had previously declined such an offer by Zdeb. Two days later, Bysko informed the realtor that the loans were still available if the plaintiff was willing to proceed.   Bysko testified that at no time between the first meeting with the plaintiff on May 14 and their conversation shortly after June 14 did the plaintiff give any indication that the financial package he recommended and did in fact obtain was unacceptable.

While Bysko was putting together that package, the plaintiff's attorney, Garfinkel, and the attorney representing Emmanuel, Atty. Heneghan, were, according to Bysko, “pushing for a closing” and had actually, unbeknown to him, scheduled a closing, first on June 9, and then on June 16.   Bysko testified that although he had a “clear to close” from all three lenders that formed the financial package, even if the plaintiff had met with the notary and, along with her co-owner husband, had executed the home equity loan documents relative to Stonehill, he could not have been ready to close by June 16.   He testified that the earliest possible date by which he could have secured the funds was June 19 or 20.   He recalls speaking with attorney Garfinkel's paralegal prior to June 16 and advising her that he would not be able to meet that closing date as the financing was still “up in the air.”   He added that no one set up a closing date with him.   In this regard, it is noteworthy that one day after the plaintiff's first meeting with Bsyko, concerning this transaction, Zdeb faxed the following note to the seller's attorney:  “Buyer finally got her financing together!!   Her closing will be 6-9-06 [underlined three times].   I have talked to Jamie about it.”   P # 14.   The plaintiff insisted that she had “no knowledge” of that communication at the time it was sent;  the plaintiff asserted that she “had no idea what was going on.”   The plaintiff did, however, recall that after meeting with Atty. Garfinkel on May 31, she expressed concern to Zdeb as to the security of her deposit whereupon Zdeb assured the plaintiff that her deposit was safe and that she would “push” Bysko to procure the requisite financing, adding:  “People listen to me!”

Garfinkel, an experienced real estate attorney whose firm conducts more than a thousand closings per year, was called as a witness by Emmanuel's attorney.   He testified and offered several documents from this file after receiving permission to do so from the plaintiff.   He recalled meeting with the plaintiff, who was referred to him by Zdeb, in May 2006.   His file was actually opened and a title search was ordered on May 31, the closing date referred to in the second extension of the buy-sell agreement.   He recalls having contact with Zdeb, Bysko and the plaintiff with regard to the financing that the plaintiff needed to obtain to complete the purchase of Catherine Drive.   The tab on his file reflected a closing date of June 16, 2006.   Several documents from his file were received into evidence, including a partially completed HUD-1 form, which his paralegal, Carolyn Cromwell, prepared in anticipation of a closing.   The lender was listed as Mortgage Lenders Network.   A first mortgage on Catherine Drive in the amount of $250,000 was the financing referred to therein, the same lender and the same amount that were arranged by Bysko.   DEF MMM. Garfinkel's office also prepared a title insurance commitment in anticipation of the closing.   DEF S. A HUD-1 form reflecting the proposed second mortgage on Catherine Drive (DEF NNN) was also prepared.   DEF T. On June 7, Cromwell in a fax to Atty. Heneghan's office, enclosed a copy of the plaintiff's quitclaim deed and mortgage deed on Stonehill and furnished information on the real estate taxes.   Atty. Garfinkel's paralegal then informed her counterpart as to the manner in which the plaintiff would take title to Catherine Drive.   DEF D. The next day Cromwell sent a fax to Bysko enclosing information that he requested in preparing the financial package.   Cromwell advised:  “You should have it all.”   DEF U. Garfinkel testified that he recalled personally meeting with the plaintiff on at least two occasions, and specifically recalled advising her as to the financial consequences, i.e., the loss of her deposit, if she did not meet her contractual obligations to the seller.

He noted that his file reflected “more than usual” contact with Zdeb, Bysko and the plaintiff and stated that it was clear to him that the June 16 closing date was “imperative.”   He recalled, however, hearing sometime prior to June 16 that there would be no closing on that date due to the plaintiff's difficulties in obtaining the requisite financing.   He was unable to recall when the closing date was set as that was his paralegal's responsibility in his high volume real estate practice, but insisted he spoke to Bysko on a regular basis relative to the plaintiff's financing.   His file did reflect an initial closing target date of June 9, however, his recollection was that as of that date, as well as June 16, the necessary financing was not in place.12  As to the plaintiff's concerns regarding the home-equity loan on Stonehill, Garfinkel recalled that the plaintiff was “hesitant to proceed” but stated he had “no involvement” in that crucial first step in Bysko's financing package.   Although he could not recall many of the specifics of his meetings with the plaintiff, he did confirm her claim that every conversation with him involved the issue of the deposit.   When a legal dispute arose as a result of the failed closing, he offered that he would have declined to represent the plaintiff and her attempts to recover the deposit due to his relationship with both Zdeb and Bysko!   He indicated that of a thousand closings his firm conducts per year, an estimated 20 or 2% result from references by those individuals.   He offered no explanation as to why he did not attempt on his client's behalf to terminate the buy-sell agreement and demand a return of the plaintiff's deposit based on a claim that she was unable to get the specific type of mortgage referred to therein.

On June 23 Heneghan sent a fax to Garfinkel (P # 16), which referenced the plaintiff's alleged “failure to appear and close” on June 16, declared that the plaintiff was in default under the buy-sell agreement and warned of further damages suffered by the seller.   The letter also requested the release of the $31,000 deposit and advised that the Catherine Drive property was going back on the market.   Garfinkel testified that upon receipt of this communication he attempted unsuccessfully to telephone the plaintiff.   He did follow up with a letter dated July 5, twelve business days after the alleged failed closing.   P # 18.   Garfinkel informed the plaintiff that he hadn't heard from her in “a few weeks.”   He enclosed Heneghan's letter and referred to previous conversations with the plaintiff concerning the protection of her deposit, which, according to a said letter was in “great jeopardy.”   He advised the plaintiff to contact his office, which apparently the plaintiff did not do.   On June 29, Zdeb faxed the plaintiff Heneghan's letter.   P # 16.   The plaintiff's husband testified he and the plaintiff considered Heneghan's letter and that of Garfinkel as simply a “scare tactic.”

Despite the plaintiff's alleged failure to close on June 9, and on June 16 the seller testified that regardless of his attorney's letter of June 23 and the “time is of the essence” extended closing dates of May 31, he was willing to sell Catherine Drive to the plaintiff after the decision to place the property back on the market, which, according to him, was made in June or July. He added that the decision to place the property back on the market was made only after a meeting he held with his attorney and Zdeb, which obviously took place some time after June 16.   He recalled that either Zdeb or his attorney, informed him of the June 16 closing day, one week prior thereto.   It was not until August 23 that Emmanuel entered into a buy-sell agreement with a buyer who did consummate the purchase of Catherine Drive but at a price $60,000 below that which the plaintiff agreed to pay.   In light of that fact one could readily infer that Emmanuel would have sold Catherine Drive to the plaintiff any time before August 22 had the plaintiff accepted Bysko's financial package and had the plaintiff remained in communication with her attorney and Bysko.   The closing with Anthony D'Alessandro did occur on November 2, 2006.   A commission of $16,500 was paid by Emmanuel to the Calabro agency.   DEF H and I.

While Bysko was diligently pursuing the financial package needed for the plaintiff to close, which, as noted, included a home equity line on the plaintiff's residence on Stonehill Drive, Zdeb was pressuring the plaintiff to enter into an exclusive right to sell with her agency.   P # 13.13  On July 7, despite Atty. Heneghan's letter of June 23, Zdeb and Michael Calabro assured the plaintiff that her deposit was safe and that the Calabro agency would be able to effectuate a quick sale of Stonehill, which would then generate the funds to pay off the line of credit as well as the second mortgage on Catherine Drive, both of which carried a much higher interest rate than the committed new first mortgage.   The plaintiff then executed, the exclusive right to sell.   DEF VV. Unbeknown to the Calabro defendants, however, on June 2, the plaintiff had signed an exclusive listing with a Century 21 agency, Access America, which was managed by Glen Rowland, who testified at the trial.   DEF WW. That listing was in effect on July 7. When the double listing was mutually discovered a dispute arose, which necessitated the intervention of the local realty board to resolve.   The plaintiff failed to disclose to each agency her involvement with the other!

Unfortunately, amid the chaos and uncertainty that surrounded her planned purchase of Catherine Drive and her intended sale of Stonehill, the plaintiff left for a European vacation in mid July, leaving her e-mail address with the agency and a key with her adult son, who was available to show the house.   Prior to leaving, the plaintiff declined Zdeb's request to install a lockbox at the Stonehill property and insisted on two hours notice prior to any prospective buyer who might wish to see the house.   DEF XX. Zdeb testified that she attempted to show the house on two occasions before the plaintiff left for Europe, but was met with “excuses” each time.   Upon her return in mid August the plaintiff learned that there was no activity relative to the sale of her house.   On August 29 the plaintiff brought a neighbor, Manuel Canard, with her, along with her young son to meet with Michael Calabro and to, among other things, request the return of her deposit.   The plaintiff presented a letter to Calabro dated August 29, 2006, claiming her inability to obtain a conventional mortgage in the amount of $579,000, insisting that the buy-sell agreement with Emmanuel was terminated and demanding the return of her deposit.   P # 21.   Curiously, that letter is identical to P # 19, which is dated July 5, 2006, and which the plaintiff insists was provided on July 5 to Calabro, an assertion which is vehemently denied by the latter.   At the meeting Calabro informed the plaintiff that Emmanuel had contracted to sell Catherine Drive to another buyer for a price $60,000 below that offered by the plaintiff, whereupon coarse words were exchanged and anger ensued, prompting Calabro to threaten to call the police if they didn't leave his office immediately.14  That evening, the plaintiff was visited by a local police officer.   Within two weeks, the plaintiff retained attorney Neistat, who on January 11, 2007 filed this action.

IV. DISCUSSION

A. In General

Prior to addressing the specific allegations in the plaintiff's complaint against each of the defendants and the Emmanuel and Calabro defendants' counterclaim against the plaintiff, the court, based upon the foregoing factual analysis, will offer the following general observations as to the root causes of the failed real estate closing, the relative culpability of the parties and the unfortunate financial consequences resulting from the prolonged litigation and ultimate trial.

In this court's view the least culpable of the parties is Steve Bysko and Noreast.   Bysko did everything that he was asked to do by the plaintiff.   Based upon the information that the plaintiff provided, he pat together and secured approval of a financial package, well within the plaintiff's disclosed financial capability, that would have provided the financing called for by the buy-sell agreement and would have enabled the plaintiff to complete the purchase of Catherine Drive within a few days of June 16, which would have been acceptable to the seller.

The second least culpable is the seller, George Emmanuel.   Apart from providing the plaintiff with two extensions of the mortgage contingency and closing dates, the evidence clearly demonstrates that, despite “the time is of the essence” language that his attorney inserted into the contract extension, he was ready, willing and able to sell Catherine Drive to the plaintiff at the agreed price of $610,000 up until the time that plaintiff decided to vacation in Europe.   As a result of the plaintiff's breach of the buy-sell agreement, and due to the financial pressure of carrying two houses, Emmanuel was forced to sustain a loss of $60,000 and more and was compelled to retain counsel to defend this prolonged action.   But for a small award of attorneys fees as a result the plaintiff's inappropriate attempt to delay the sale of Catherine Drive to the ultimate buyer via the lis pendens, the liquidated damages provision in the buy-sell agreement precludes this court from awarding money damages in excess of $31,000 deposit to the seller.

In this court's view, the plaintiff and the Calabro defendants must share the blame for the failed closing.   The plaintiff's unwarranted and unexplained rejection of Bysko's financial package after the lack of diligence in initially pursuing the requisite financing in light of the seller's two extensions, and Bysko's work on her behalf, and her departure for Europe, which really killed the deal, all clearly establish the breach of the buy-sell agreement by the plaintiff.

As to the Calabro defendants, by actively pursuing the dual agency relationship they put themselves in the untenable position of owing a fiduciary duty of loyalty to both the seller and the buyer.   The seller was under great financial pressure to close as soon as possible, while the buyer was taking her time comparing rates and misrepresenting her income.   Although the plaintiff most likely could have gotten out of the deal prior to visiting Bysko, Zdeb urged the plaintiff to continue to pursue financing through Bysko.   Moreover, when the plaintiff rejected the first crucial component of the financial package that Bysko put together, instead of working with the plaintiff to recover her deposit and working with the seller to find another buyer, the Calabro defendants pressured the plaintiff to permit them to sell her house thereby conveying a clear message to the plaintiff, despite the seller's instructions to Zdeb to the contrary, that the deal was still viable.   The plaintiff then reasonably assumed that once Stonehill was in the hands of the Calabro agency, since Zdeb also represented the seller, all was well, which caused her to foolishly leave for the European vacation, while relying on Zdeb to procure a qualified buyer for Stonehill by the time she returned.   The plaintiff and the Calabro defendants must share the blame and the resultant financial loss as a consequence of this failed closing.

B. The Plaintiff's Claims Against Bysko and Noreast

As earlier noted, in the Tenth Count against Bysko and Noreast, the plaintiff alleges that these defendants were negligent in failing to get her a mortgage, in giving the plaintiff poor advice and not properly representing her interests in the transaction.   The plaintiff has failed to prove any allegations of negligence against these defendants.   Quite the contrary, the evidence demonstrates that Bysko did everything he could as a professional acting in the plaintiff's interest to obtain the requisite financing.   The financial package that he put together was approved by the individual lenders, was based upon income provided by the plaintiff and would have, if accepted by the plaintiff, enabled her to complete the purchase of Catherine Drive.   Moreover, the evidence shows that Bysko diligently worked with the three lenders and the paralegals from the two law firms, obtained the necessary commitments and was anticipating a prompt “clear to close” when the plaintiff refused to meet with the notary, thereby rejecting the crucial first step toward completing the purchase and thereafter severing further contact with Bysko.   The plaintiff was well aware of the “SISA” policy which, in effect, was a “no questions asked” program and therefore knew that the lenders would not be verifying the information that she provided to Bysko.   The lenders and Bysko were justified in relying upon that information and in acting pursuant to the income and asset information provided by the plaintiff.   This court finds credible Bysko's testimony that, until she refused to meet with the notary and to close the equity line on Stonehill, the plaintiff gave no indication to him that the work he was doing on her behalf was unacceptable.   The credible evidence and testimony clearly establish that at all relevant times Bysko acted on behalf of the plaintiff and in her best interest.   The plaintiff has failed to meet her burden of proof.   This court finds no negligence on the part of Bysko and Noreast and finds the Tenth Count in their favor.

C. As To The Seller-George Emmanuel

The Plaintiff's Claim

In the First Count which is brought against the seller, the plaintiff claims that Emmanuel breached the buy-sell agreement between the parties by refusing to return the plaintiff's deposit after her repeated demands to do so that she claims were made subsequent to the rejection of her initial mortgage application.   There is no dispute that the seller, after granting the plaintiff two extensions was, despite the “time is of the essence” language ready, willing and able to sell Catherine Drive to the plaintiff well after June 16, 2006, had the plaintiff cooperated with Bysko and her attorney by accepting the financial package that Bysko had procured, a financial package grounded upon the income and asset information furnished by the plaintiff.

The plaintiff was obligated pursuant to the provisions of Par # 5 of the buy-sell agreement, the mortgage contingency clause, to provide written notice to the seller demonstrating her inability to obtain the requisite financing.   The plaintiff has produced no documentary evidence that prior to the failed closings of June 9 and June 16, she provided such information to the seller either by herself, through her realtor or via her attorney.   Further, the plaintiff has produced no documentary evidence that prior to those failed closings she demanded from the seller, in writing, the return of her deposit.   In this regard, the plaintiff points to a letter dated July 5, which she claims to have presented to Zdeb, which was nearly three weeks after the second failed closing.   P # 19.   That notice, however, is identical to P # 21 dated August 29, 2006, after Emmanuel entered into a contract with the ultimate buyer and after the plaintiff's return from a European vacation.   The claimed July 5 notice is inconsistent with all of the other credible testimony and documentary evidence and appears to have been prepared for the purposes of this litigation.   In any event, that notice was well beyond any time limits provided by the buy-sell agreement or the two extensions thereof and was well after the plaintiff breached said agreement by obtaining the requisite financing and then refusing to proceed to closing.

Prior to engaging the services of Bysko, all the plaintiff had to do, pursuant to Par # 5 of the buy-sell, was to forward to the seller Arora's notice, dated May 2, of the rejection of the plaintiff's application for a $579,000 first mortgage without a prior sale of Stonehill.   DEF NN. Instead, the plaintiff chose not to do so and prevailed upon Zdeb to obtain an extension from the seller then proceeded to work with Bysko (disclosing to him a substantially higher income than that, unbeknown to Bysko, previously disclosed to Arora) to obtain the necessary financing, which pleased the seller as he was under heavy financial pressure in carrying two homes.   The seller was content to await the results of Bysko's efforts on the plaintiff's behalf, particularly after his attorney was informed by Zdeb on May 25 that the buyer had “finally got her financing together.”   P # 14.   The court finds credible Emmanuel's testimony that he was willing to sell Catherine Drive to the plaintiff pursuant to their buy-sell agreement of March 22, 2006, well past the date of the second failed closing, and inferentially, given the substantial subsequent reduction in the sale price, right up until the date she decided to leave for Europe.   The evidence shows that as a result of the plaintiff's breach of that agreement the seller has sustained financial loss well beyond the amount of the deposit.   With regard to the breach of contract claim that the plaintiff brings against the seller, the court will find the First Count in the seller's favor.

Emmanuel's Counterclaim

As noted, in his counterclaim the seller seeks damages well beyond that provided in the liquidated damages clause (Par # 12) contained in the buy-sell agreement, which, in pertinent part, provides:  “If Buyer defaults under this contract and Seller is not in default, Buyer's deposits shall be paid over to and retained by Seller as liquidated damages and both parties shall be relieved of further liability under this contract ․” In the first count of his counterclaim the seller seeks not only the $31,000 deposit being held by the clerk's office, but compensation for the interim financing he was compelled to obtain in carrying the expenses on two houses and the $60,000 loss he sustained in selling Catherine Drive to the ultimate buyer.   See DEF L. In the second and third counts, Emmanuel seeks punitive damages, including attorneys fees due to the plaintiff's alleged intentional, wanton and reckless misconduct in filing a lis pendens on the Catherine Drive property, thereby ignoring Connecticut's statutory pre-judgment remedy procedure.

Because liquidated damages clauses are “private agreements to supplant judicially determined remedies for breach of contract;  ․ the court may not award both actual and liquidated damages.  Sanitary Services Corp. v. Greenfield Village Assn., Inc., 36 Conn.App. 395, 398 (1994).  “[A]ctual damages are synonymous with compensatory damages ․” (Internal quotation marks omitted.)  DiNapoli v. Cook, 43 Conn.App. 419, 427, cert. denied, 229 Conn. 951 (1996), cert. denied, 520 U.S. 1213 (1997).  “The term [compensatory damages] covers all loss recoverable as a matter of right and includes all damages (beyond nominal damages) other than punitive or exemplary damages.”   22 Am.Jur.2d 63 Damages Section 24 (2003).   Therefore, a liquidated damages clause forecloses any damages for breach of contract, other than punitive or exemplary damages.

Based upon the foregoing the seller is not entitled to recover as compensatory damages for the plaintiff's breach of the buy-sell agreement any sum beyond the amount provided for liquidated damages, i.e., the $31,000 deposit.   The seller has proven by a fair preponderance of the evidence that he is entitled to be paid that deposit as a consequence of the plaintiff's breach.   Since the liquidated damages clause does not prevent the seller from seeking and obtaining an award that includes punitive or exemplary damages, the court is entitled to entertain claims made against the plaintiff in the second and third count of his counterclaim.   To recover such damages the seller must prove that the plaintiff engaged in wanton, willful or malicious conduct.   Our Supreme Court has defined conduct that is wanton, reckless, willful, intentional or malicious as something more than negligence, more than gross negligence.   It is such conduct that indicates a reckless disregard of the just rights of others.  Elliott v. Waterbury, 24 Conn. 385, 415 (1998).   Although the plaintiff's conduct in breaching the contractual obligations assumed by her under the buy-sell agreement and the two extensions thereof might be characterized as negligent or even grossly negligent, it does not meet the above standard.   The plaintiff's conduct, however, in placing the lis pendens on the Catherine Drive property after her breach in flagrant violation of the prejudgment remedy procedures provided in General Statutes Sections 52-278a-52-278n, does meet that test and does entitle the seller to recover, in addition to the deposit, the attorneys fees and costs that he incurred in obtaining the release of the lis pendens.   According to attorney Heneghan's affidavit dated June 4, 2010, he spent six hours and ten minutes on the seller's behalf in securing the discharge of the lis pendens and paid a filing fee of $20 for the application to do so.   As a result, the seller was obligated to pay his attorney a total of $1,840 for those services.   The court therefore finds all three remaining counts in the seller's counterclaim in the seller's favor and awards Emmanuel $32,840, $31,000 of which is being held by the clerk.   The plaintiff shall pay to Emmanuel the balance of $1,840 in attorneys fees.

D. As To The Calabro Defendants

The Plaintiff's Claim

As noted, the fifth and ninth counts of the plaintiff's complaint consist of a claim of negligence made against Kathy Zdeb, Michael Calabro and Calabro and Associates, LLC, collectively referred to herein as the Calabro defendants.   The plaintiff alleges that she received improper advice, including being told that no further extension of the mortgage contingency and/or closing dates was needed, and that the information and advice she did receive was tainted by the fact that Zdeb was, at all times, acting as the agent for both the plaintiff and Emmanuel.

During the trial the Calabro defendants called as an unchallenged expert Frederic Southwell, who is a supervisory real estate agent and broker and who teaches courses to prospective realtor licensees.   He responded to a lengthy hypothetical question proposed by counsel for the Calabro defendants that detailed all of Zdeb's doings in connection with this transaction.   He reviewed all of the relevant documents.   He offered his opinion that Zdeb and Calabro acted within the acceptable standard of care and that all of the documents complied with Connecticut law.   He insisted that the sale of Catherine Drive and the sale of Stonehill were “totally separate transactions” and that the dual agency orchestrated by Zdeb was perfectly acceptable and appropriate.   However, as was the case with Zdeb during her testimony, he was unable to offer any meaningful explanation as to the circumstances under which a realtor would or would not employ a dual agency agreement.15  More specifically, neither he nor Zdeb could offer any explanation as to the reason such a device was employed under the circumstances of this case.   He offered that once such an agreement is signed by both buyer and seller, the agent is “no longer an advocate for one party or the other!”   This court, however, finds that the execution of such a document does not negate the fact that Zdeb owed a fiduciary duty to both the plaintiff and Emmanuel, which, in this court's view, created an irreconcilable conflict of interest, which becomes all the more apparent when one factors in the fact that Zdeb procured both the mortgage broker (Bysko), whom she referred to as “Steve,” and the attorney (Garfinkel), whom she referred to as “Larry” to handle the transaction on the plaintiff's behalf.   Zdeb placed herself right into the center of this transaction and thereby significantly contributed to its failure and the subsequent financial consequences that have befallen all of the participants.

A real estate broker is a fiduciary.   As such, he is required to exercise fidelity and good faith, and cannot put himself in a position antagonistic to his principal's interest;  by fraudulent conduct, acting adversely to his client's interests, or by failing to communicate information he may possess or acquire which is or may be material to his principal's advantage ․ This rule requiring a broker, or his [sub]agent, to act with the utmost good faith towards his principal places him under a legal obligation to make a full, fair and prompt disclosure to his employer of all facts within his knowledge which are, or may be material to the matter in connection with which he is employed, which might affect his principal's rights and interests, or his action in relation to the subject matter of the employment, or which in any way pertains to the discharge of the agency which the broker has undertaken.  (Internal quotation marks and citations omitted.)

Licari v. Blackwelder, 14 Conn.App. 46, 53-54;  cert. denied 208 Conn. 803 (1988).

In this case, for reasons to be hereinafter addressed, although the plaintiff bears a greater responsibility for the failed closing, the Calabro defendants must share that responsibility as, in this court's view, their conduct in connection with this transaction significantly contributed to the circumstances that resulted in the plaintiff's default.   Throughout the relationship between the plaintiff and Zdeb, the latter, from the time she first met the plaintiff until the confrontation with Calabro at the real estate office on August 29, solicited the plaintiff to list her Stonehill residence with the agency.   At a time when Arora informed the plaintiff and Zdeb of the rejection of the mortgage referred to in the buy-sell agreement, instead of assisting the plaintiff in obtaining a refund of her deposit pursuant to the mortgage contingency clause, Zdeb assured the plaintiff that the deposit was safe.   On May 24, one week before the “time is of the essence” extended closing date, Zdeb criticized the work that Arora performed on the plaintiff's behalf and strongly recommended that the plaintiff engage the services of Bysko.   The very next day, the plaintiff, by fax to Emmanuel's attorney, informed the seller that the plaintiff finally got her financing.   Zdeb did this without checking with Bysko or, perhaps, ignoring the information which he provided as to his progress in obtaining the financing.   Her actions in this regard, communicated a false impression to Emmanuel, his attorney and the plaintiff's attorney that the plaintiff was ready, willing and able to close.   Zdeb then proceeded to inform Emmanuel of a closing date of which Bysko was completely unaware and could not possibly have met thereby adding further fuel to the smoldering fire.   When the closing did not occur on the second date, June 16, Zdeb unbeknown to the plaintiff, met with Emmanuel and his attorney and the three of them decided to place Catherine Drive back on the market.   Zdeb then began to look for another buyer on Emmanuel's behalf while, at the same time, prevailing upon the plaintiff on July 7, weeks after the second cancelled closing, to enter into exclusive listing to sell Stonehill, after providing the plaintiff with her self-promoting letter that pledged to sell the house as soon as possible at the highest possible price.   Once the exclusive listing agreement was signed, the plaintiff could have and did reasonably assume, as a result of Zdeb's assurance that any financial problems with which the plaintiff was concerned would be resolved by the prompt sale of Stonehill.   This would enable the plaintiff to complete the purchase with the seller who was also Zdeb's principal and who was, despite his attorney's letter, still willing to sell to the plaintiff.   This caused the plaintiff to harbor the mistaken belief that she was free to sojourn to Europe, which she foolishly decided to do.   Unfortunately, during the month that the plaintiff and her husband spent in Europe there was little activity on the Stonehill residence, whether, as Zdeb claimed, due to the high listing price imposed by the plaintiff before she left, a decline in the market or Zdeb's aggressive pursuit, on behalf of the seller, of an alternative buyer.

At the time the plaintiff left for Europe in mid July, insofar as the seller was concerned, due to Zdeb's words (the three-way meeting), and actions (actively seeking another buyer), he reasonably assumed that Zdeb was working diligently on his behalf in producing a buyer who was ready, willing and able to close the deal, whether it was the plaintiff or, as it turned out, someone else.   Insofar as the plaintiff was concerned, having been unaware of the three-way meeting and having provided Zdeb with the exclusive listing on Stonehill, she reasonably assumed that the deal with the seller was still viable as Zdeb was the seller's agent.   As one who owed a fiduciary duty to the plaintiff, Zdeb should have informed the plaintiff of the result of the three-way meeting and should have, under the circumstances then and there existing, refrained from pressuring the plaintiff to list her Stonehill residence with the Calabro agency.   The issue of the deposit should have been then left for resolution by the attorneys.   Zdeb's actions as the duly authorized agent of the seller communicated to the plaintiff the false impression that all was well.   Unfortunately, Zdeb let her aggressive business practices (such as her self-promoting literature and reassuring statements to the plaintiff that included:  “trust me,” “people listen to me,” and “I talk to Jaime every day”) take control, while ignoring the realities of the situation, thereby significantly contributing to the failed closing and the resultant financial consequences to all involved.   The court will note, however, that Zdeb did collect a commission from Emmanuel from the sale of Catherine Drive to the ultimate buyer, albeit a somewhat smaller amount than originally anticipated.   As a duly authorized agent, employee and servant of Calabro Associates, the conduct of Zdeb as outlined above, binds all of the Calabro defendants vis-a-vis the consequences of her actions.   The court finds that by virtue of that conduct, precipitated by the conflict of interest that was innate to the dual agency arrangement orchestrated by Zdeb, the plaintiff has proven by a fair preponderance of the evidence that the Calabro defendants were negligent under the circumstances set forth herein and that their negligence was a proximate cause of this failed closing.

The Special Defenses

Having found that the conduct of the Calabro defendants with regard to the plaintiff was negligent the court will further find that said defendants have proven by a fair preponderance the evidence the facts necessary to sustain two of the three special defenses which they filed in response to the plaintiff's complaint, thereby negating any negligence on their part and precluding the plaintiff from recovering any damages from these defendants.   As previously noted, in response to the plaintiff's complaint the Calabro defendants filed an answer denying any negligence on their part and three special defenses:  contributory negligence, waiver and estoppel.   These defendants have met their burden and have proven by a fair preponderance of the evidence that the plaintiff was contributorily negligent, that such negligence was a proximate cause of the plaintiff's default under the buy-sell agreement and that the plaintiff's negligence exceeded that attributable by this court to the Calabro defendants.   By the same token, the court agrees with these defendants that the plaintiff has, by her negligent conduct, waived any right to claim that the Calabro defendants neglected to request the return of the plaintiff's deposit at various stages in their relationship.

Quite frankly, the plaintiff's negligence, manipulation and dishonesty preclude her from recovering any money damages from these defendants.   From the outset, the plaintiff, in degradation of her obligations under the mortgage contingency clause of the buy-sell agreement, did not exert a “prompt and diligent” effort to obtain the requisite financing.  “Mortgage contingency clauses in contracts imply a promise by the borrower that he or she will make reasonable efforts to secure a suitable mortgage.”  Lach v. Cahill, 138 Conn. 418, 422 (1951);  Barber v. Jacobs, 58 Conn.App. 330, 335 (2000).   The plaintiff did not file an application for the requisite mortgage until a full month after she signed the buy-sell agreement.   She requested the two extensions granted by the seller, each request made as the time for getting the financing was due to expire.   Most significantly, her conduct in nearly doubling her disclosed income ($15,000 per month) after being informed that the income disclosed to Arora ($8,333.33 per month) was insufficient to enable the plaintiff to obtain the requisite financing, is indicative of her cavalier attitude throughout the transaction and causes this court to conclude that her purported July 5 (P # 19) written request to Calabro to refund the deposit was bogus and was created for the purposes of this litigation.   The plaintiff is not an uneducated, naive and inexperienced buyer.   She has an M.D. degree, a PhD. degree and is experienced in buying and selling property.   She is a sophisticated, well-educated buyer, who is well aware, not only of her obligations under the buy-sell agreement, but was keenly aware of the circumstances under which she could request the return of her deposit and how to do so.   All she needed to do was to request the return of the deposit in writing.   Prior to the expiration of a mortgage contingency date she could have done so by herself.   She could have instructed either Zdeb or her attorney to do so.   Once the mortgage referred to in the agreement was declined by Arora's lender, it was as simple as writing a letter enclosing the rejection notice.   Instead, the plaintiff's inappropriate conduct caused inordinate delay and substantial expense to the seller.   The plaintiff opted to grossly over exaggerate her income to Bysko in a SISA lending environment, a process of which she was well aware, and allowed him to diligently, if not feverishly, work on her behalf to secure the financing that she needed.   Once he was successful in doing so, she then rejected the crucial first step (the home equity loan on Stonehill), presumably due to her claim that she couldn't afford the payments although her falsely disclosed income would have clearly supported such payments.16  Finally, being led to believe, by Zdeb's silence and procurement of the exclusive listing on Stonehill, that the purchase of Catherine Drive was still viable, the plaintiff foolishly left for a month's vacation, causing the seller further delay and compelling him to seek an alternative buyer at a substantial financial loss.   The plaintiff's behavior as outlined above clearly establish that her negligent and to some degree intentional conduct was a substantial factor in her failure to complete that purchase, a failure that was substantially due to her default under the buy-sell agreement.   By her conduct, the plaintiff clearly waived any right to pursue the return of her deposit.

As to the defendant's third special defense that of estoppel, as hereinafter addressed, that legal doctrine applies more to the Calabro defendants than to the plaintiff.

The Calabro Counterclaim

In their counterclaim the Calabro defendants seek substantial attorneys fees and costs from the plaintiff.   Pursuant to their claim counsel has submitted an affidavit attesting to the attorneys fees and costs incurred by her in defending this action.   These defendants are asking this court to order the plaintiff to pay attorneys fees and expenses totaling $58,330.48.   They base their claim upon a provision in Par # 6 of the buy sell agreement, which provides:

In case of a dispute, listing Broker shall continue to hold all deposits until the party's rights to the deposits are finally adjudicated or agreed upon.   If listing Broker initiates or is made a party in any action arising out of a dispute between the parties over deposits, then any and all costs incurred by listing Broker (including, without limitation, attorneys fees and court costs) shall be paid by the non-prevailing party.

These defendants, however, also ask the court to ignore or, more specifically, to separate out their claim under this paragraph from the following provision contained in Par # 12 of the agreement:  “If a legal action is brought to enforce any provision of the Contract, the prevailing party, including a broker who is made a party to such action and who has not significantly contributed to the default, shall be entitled to court costs and attorneys fees.”

As to Par # 6, given the finding by this court that the Calabro defendants must share the blame with the plaintiff for the failed closing, said defendants are clearly not “the prevailing party” and should therefore be equitably estopped from claiming that status.

The doctrine of equitable estoppel is well established.  [W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time ․ Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct ․ In its general application, we have recognized that [t]here are two essential elements to an estoppel-the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.   (Internal quotation marks and citations omitted.)

Blackwell v. Mahmood et al., 120 Conn.App. 690, 694-95 (2010).

As hereinbefore addressed the conduct of Zdeb in not disclosing to the plaintiff the decision to place Catherine Drive on the market while, at the same time, pressuring the plaintiff to sign the exclusive listing agreement to sell Stonehill, thus providing the plaintiff with the false impression that all was well, induced the plaintiff to leave for Europe, thereby risking what actually occurred while she was gone, i.e., the loss of Catherine Drive.   But for Zdeb's conduct in this regard, the plaintiff may very well have canceled the trip in order to diligently pursue the purchase.   Under those circumstances, the Calabro defendants should be equitably estopped from claiming the benefits provided by the sixth paragraph of the buy-sell agreement.   As to the quoted portion of the twelfth paragraph, this court, for reasons previously set forth herein, has found that the conduct of Zdeb, as one who owed a fiduciary duty to the plaintiff as well as to Emmanuel, “significantly contributed” to the plaintiff's default.   Therefore pursuant to the plain language of said paragraph this court finds that the Calabro defendants are precluded from the recovery of any attorneys fees and costs from the plaintiff.  “The construction of a contract is usually a question of fact, because the interpretation of its language is a search for the intent of the parties, making contractual intent a question of fact ․ A contract must be construed as a whole, with all the relevant provisions considered together.   The intent of the parties is to be garnered in light of the situation of the parties and the circumstances surrounding the contract, along with the primary purpose of the contract.”  (Internal quotation marks and citations omitted).   Emphasis added.  Viera v. Cohen, 283 Conn. 412, 440-41 (2007).

It would be not only inequitable but nonsensical for this court to separate out the two cited paragraphs and find that, under the facts and circumstances of this case, the Calabro defendants are entitled to an award of attorneys fees and costs despite the court's finding that Zdeb's conduct significantly contributed to the plaintiff's default and the failed closing.   The court therefore finds the Calabro counterclaim in favor of the plaintiff.

V. CONCLUSION

Based upon the foregoing, the court finds as follows:

1. As To The Plaintiff's Complaint:

First Count-The court finds the issues in favor of the defendant, George Emmanuel, as against the plaintiff.

Fifth Count-Based upon two of the three special defenses (contributory negligence and waiver), the court finds the issues in favor of the defendants, Kathy Zdeb and Calabro Associates, LLC as against the plaintiff.

Ninth Count-For the same reasons applicable to the Fifth Count the court finds the issues in favor of the defendants, Michael Calabro and Calabro Associates, LLC, as against the plaintiff.

Tenth Count-The court finds the issues in favor of the defendants, Steve Bysko and Noreast Mortgage Services, LLC as against the plaintiff.

2. As To The Defendant Emmanuel's Counterclaim (# 125), the court finds the issues in favor of said defendant as against the plaintiff and enters judgment in the amount of $31,000, which sum has been held by the clerk since June 20, 2007.   The plaintiff shall pay to said defendant the sum of $1,840 as attorneys fees.

3. As To The Counterclaim filed by the Calabro defendants (# 124), the court finds in favor of the plaintiff and therefore awards no damages, i.e., attorneys fees, to said defendants.

In considering all of the equities and in recognition of the fact that all of the parties hereto have incurred substantial financial loss, the court will not order any party to pay court costs to any other party.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. The plaintiff brought this action through counsel, however, the attorney who commenced the action, Mark Neistat, and an attorney thereafter retained by the plaintiff, Paul Taub, were allowed to withdraw from the case long before the commencement of the trial..  FN1. The plaintiff brought this action through counsel, however, the attorney who commenced the action, Mark Neistat, and an attorney thereafter retained by the plaintiff, Paul Taub, were allowed to withdraw from the case long before the commencement of the trial.

FN2. At the commencement of the trial the parties agreed that this count is solely based upon a claim of negligent acts and/or omissions attributed to Bysko and Noreast.   Therefore, any claim by the plaintiff that their conduct was intentional was longer pursued..  FN2. At the commencement of the trial the parties agreed that this count is solely based upon a claim of negligent acts and/or omissions attributed to Bysko and Noreast.   Therefore, any claim by the plaintiff that their conduct was intentional was longer pursued.

FN3. Only the italicized counts remain at issue and are addressed in this memorandum.   Counts Two, Three, Four, Six, Seven and Eight were withdrawn by the plaintiff before the issues were submitted for final resolution by this court.   On May 26, 2010, after the plaintiff had rested, the court, on motion by Noreast and Bysko, dismissed Count Eleven..  FN3. Only the italicized counts remain at issue and are addressed in this memorandum.   Counts Two, Three, Four, Six, Seven and Eight were withdrawn by the plaintiff before the issues were submitted for final resolution by this court.   On May 26, 2010, after the plaintiff had rested, the court, on motion by Noreast and Bysko, dismissed Count Eleven.

FN4. The counterclaim, and cross-claim appeared to be directed to both the plaintiff and the seller.   The initial document (# 105) consists of one count only, however it was amended on June 19, 2007, to add a second count (# 124).   The first count of the counterclaim was withdrawn after the close of evidence.   According to counsel for these defendants, the second count is now the only operative count..  FN4. The counterclaim, and cross-claim appeared to be directed to both the plaintiff and the seller.   The initial document (# 105) consists of one count only, however it was amended on June 19, 2007, to add a second count (# 124).   The first count of the counterclaim was withdrawn after the close of evidence.   According to counsel for these defendants, the second count is now the only operative count.

FN5. On the first day of trial the plaintiff called her ten-year-old son, who witnessed an emotional incident, at age six, that took place between the plaintiff and Michael Calabro at the real estate agency.   The court saw no useful purpose in hearing from the child and would not permit the child to take the stand.   The court believed that the plaintiff's testimony and that of a neighbor who witnessed the incident would enable the plaintiff to adequately present this nondispositive issue to the court..  FN5. On the first day of trial the plaintiff called her ten-year-old son, who witnessed an emotional incident, at age six, that took place between the plaintiff and Michael Calabro at the real estate agency.   The court saw no useful purpose in hearing from the child and would not permit the child to take the stand.   The court believed that the plaintiff's testimony and that of a neighbor who witnessed the incident would enable the plaintiff to adequately present this nondispositive issue to the court.

FN6. Several of the exhibits submitted by the plaintiff were duplicated by the defendants..  FN6. Several of the exhibits submitted by the plaintiff were duplicated by the defendants.

FN7. In this essentially breach of contract action the court cannot recall any medical psychiatric or psychological evidence other than the testimony of this defendant which would justify an award of damages in this category without the court engaging in pure conjecture and speculation and thereby convert this contract action into a personal injury lawsuit..  FN7. In this essentially breach of contract action the court cannot recall any medical psychiatric or psychological evidence other than the testimony of this defendant which would justify an award of damages in this category without the court engaging in pure conjecture and speculation and thereby convert this contract action into a personal injury lawsuit.

FN8. It is apparent from an extensive review of the operative pleadings, in particular, Emmanuel's answer and special defense to a counterclaim/cross-complaint filed by the Calabro defendants, that there was an issue raised as to the claimed interpleader status of said defendants.   With the withdrawal of the first count of said counterclaim/cross-complaint, that issue appears to be moot.   See General Statutes Sec. 52-184.   Also see Vincent Metro, LLC v. Yah Realty, LLC, 297 Conn. 489, 495-98 (2010), for a recent discussion of the nature and purpose of an interpleader action..  FN8. It is apparent from an extensive review of the operative pleadings, in particular, Emmanuel's answer and special defense to a counterclaim/cross-complaint filed by the Calabro defendants, that there was an issue raised as to the claimed interpleader status of said defendants.   With the withdrawal of the first count of said counterclaim/cross-complaint, that issue appears to be moot.   See General Statutes Sec. 52-184.   Also see Vincent Metro, LLC v. Yah Realty, LLC, 297 Conn. 489, 495-98 (2010), for a recent discussion of the nature and purpose of an interpleader action.

FN9. A Certificate of Occupancy permitting Emmanuel to reside in his newly constructed dwelling was issued by Rocky Hill's building official on May 2, 2006..  FN9. A Certificate of Occupancy permitting Emmanuel to reside in his newly constructed dwelling was issued by Rocky Hill's building official on May 2, 2006.

FN10. It is noteworthy that the plaintiff's credit score at the time was in excess of 700.   As a result of that score, she was able to apply through Trout Brook and Noreast, for what was known at the time as a “SISA” (Stated Income-Stated Assets) loan.   That credit score enabled the plaintiff to simply state her income and her assets on an application.   No verification was necessary.   The lender would simply accept as income whatever number the qualified applicant disclosed!   This process was prevalent in the banking industry in 2006 as was explained by Bysko and confirmed by Frederic Southwell, the real estate expert called by the Calabro defendants..  FN10. It is noteworthy that the plaintiff's credit score at the time was in excess of 700.   As a result of that score, she was able to apply through Trout Brook and Noreast, for what was known at the time as a “SISA” (Stated Income-Stated Assets) loan.   That credit score enabled the plaintiff to simply state her income and her assets on an application.   No verification was necessary.   The lender would simply accept as income whatever number the qualified applicant disclosed!   This process was prevalent in the banking industry in 2006 as was explained by Bysko and confirmed by Frederic Southwell, the real estate expert called by the Calabro defendants.

FN11. Atty. Garfinkel testified that although he would represent the plaintiff's interests in the closing of the first and second mortgages and represent her in the closing with the seller, he played no part and did not represent the plaintiff relative to the closing of the home equity loan on Stonehill although he was aware that this was the first and essential step that the plaintiff needed to take to secure the financial package necessary for the purchase..  FN11. Atty. Garfinkel testified that although he would represent the plaintiff's interests in the closing of the first and second mortgages and represent her in the closing with the seller, he played no part and did not represent the plaintiff relative to the closing of the home equity loan on Stonehill although he was aware that this was the first and essential step that the plaintiff needed to take to secure the financial package necessary for the purchase.

FN12. See the last page of P # 16, which is a fax dated June 16, from Cromwell to Nancy Lambert, Atty. Heneghan”s paralegal asking:  “ARE WE CLOSING TODAY?”.  FN12. See the last page of P # 16, which is a fax dated June 16, from Cromwell to Nancy Lambert, Atty. Heneghan”s paralegal asking:  “ARE WE CLOSING TODAY?”

FN13. In a letter to the plaintiff dated June 2, 2006, Zdeb, which enclosed the agency's “listing folder,” Zdeb promoted her and her realtor husband as top agents in Connecticut and, in particular, Rocky Hill. She reminded the plaintiff that they were a “very aggressive sales team” offering “a very aggressive commission scale.”   She indicated that they can handle the financing home inspections and “all the negotiations through the closing.”   She closed with the following:  “Because we are such prominent Realtors in Rocky Hill, we know the best bankers, attorneys and appraisers to get the job done!   We look forward to the opportunity to work with you to sell your home from the highest possible price as soon as possible.”   Emphasis included..  FN13. In a letter to the plaintiff dated June 2, 2006, Zdeb, which enclosed the agency's “listing folder,” Zdeb promoted her and her realtor husband as top agents in Connecticut and, in particular, Rocky Hill. She reminded the plaintiff that they were a “very aggressive sales team” offering “a very aggressive commission scale.”   She indicated that they can handle the financing home inspections and “all the negotiations through the closing.”   She closed with the following:  “Because we are such prominent Realtors in Rocky Hill, we know the best bankers, attorneys and appraisers to get the job done!   We look forward to the opportunity to work with you to sell your home from the highest possible price as soon as possible.”   Emphasis included.

FN14. The plaintiff and her neighbor offered an entirely different account of that meeting than that offered by Michael Calabro and his former office receptionist, Camille Bieniek.   Suffice it to say that the plaintiff's professional relationship with the Calabro defendants came to an unfortunate and abrupt end on that day.   In light of the extent of the deterioration of that relationship this court does not find credible the testimony from the plaintiff's husband, Edvinas Giedrimiene, that he and the plaintiff were, nevertheless, willing to purchase Catherine Drive after August 29..  FN14. The plaintiff and her neighbor offered an entirely different account of that meeting than that offered by Michael Calabro and his former office receptionist, Camille Bieniek.   Suffice it to say that the plaintiff's professional relationship with the Calabro defendants came to an unfortunate and abrupt end on that day.   In light of the extent of the deterioration of that relationship this court does not find credible the testimony from the plaintiff's husband, Edvinas Giedrimiene, that he and the plaintiff were, nevertheless, willing to purchase Catherine Drive after August 29.

FN15. On questioning by the court he did explain that the relevant statute, General Statutes Sec. 20-325g, which provides for the content of such an agreement, was enacted in 1996 as a result of a recommendation by the commissioner of consumer protection, as some buyers were not aware that a realtor who posted a sign on a lawn was the agent for the seller..  FN15. On questioning by the court he did explain that the relevant statute, General Statutes Sec. 20-325g, which provides for the content of such an agreement, was enacted in 1996 as a result of a recommendation by the commissioner of consumer protection, as some buyers were not aware that a realtor who posted a sign on a lawn was the agent for the seller.

FN16. In this regard, it should be noted that the plaintiff offered no testimony as to which of the disclosed incomes was her actual income at the time.   Given the substantial difference between the two disclosed amounts and the motivation that prompted the false disclosure, this court saw no reason to inquire further..  FN16. In this regard, it should be noted that the plaintiff offered no testimony as to which of the disclosed incomes was her actual income at the time.   Given the substantial difference between the two disclosed amounts and the motivation that prompted the false disclosure, this court saw no reason to inquire further.

Trombley, Wilson J., J.