Aubin v. Miller

• Decision Date: 07 August 2001
• Docket Number: (AC 20744)
• Citation: Aubin v. Miller, 781 A.2d 396, 64 Conn. App. 781 (Conn. App. 2001)
• Court: Connecticut Court of Appeals
• Parties: ROBERT AUBIN ET AL. v. JAMES A. MILLER, JR., ET AL.

64 Conn. App. 781

781 A.2d 396

ROBERT AUBIN ET AL. v. JAMES A. MILLER, JR., ET AL.

(AC 20744)

Appellate Court of Connecticut.

Argued May 3, 2001.

Officially released August 7, 2001.

Foti, Flynn and Healey, Js. Kevin A. Coles, for the appellant (defendant Munson Builders, Inc.).

Michael P. Kaelin, with whom, on the brief, was James M. Moriarty, for the appellees (plaintiffs).

Opinion

FOTI, J.

The defendant Munson Builders, Inc.,¹ appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs, Robert Aubin and Denyse Aubin. On appeal, the defendant claims that the court improperly (1) concluded that the plaintiffs were diligent in their attempt to secure a mortgage, (2) construed the terms of paragraph twenty-three of the parties' contract, (3) concluded that the parties' initial letter of agreement did not control the escrow agreement, (4) concluded that the defendant had recouped moneys that it had spent on changes in the construction plan that were requested by the plaintiffs, (5) failed to allow the defendant the opportunity to prove the cost of building a larger structure, (6) found that the defendant had converted the plaintiffs' money and (7) awarded interest on the entire amount of the down payment and stated in its memorandum of decision that the defendant would have to pay offer of judgment interest to the date of satisfaction of the judgment. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. In June, 1996, the plaintiffs met with the president of the defendant corporation, Calvin Munson, to discuss the purchase of certain real property located in Fairfield and the construction of a home thereon. On July 23, 1996, the parties entered into a sales agreement. The sales agreement provided for a down payment of $74,900, which included $7490 that was paid when the plaintiffs submitted an offer to purchase on July 2, 1996, and $5000 paid pursuant to the terms of a letter of agreement dated July 2, 1996. The plaintiffs paid the remaining balance due on the down payment to the defendant after deducting the $12,490 that they already had paid.

Paragraph nineteen of the sales agreement contained a mortgage contingency clause on which the effectiveness of the contract depended. The mortgage contingency clause provided: "It is expressly understood and agreed by the parties hereto that this contract is conditioned on the Purchaser being able to obtain a mortgage loan in the amount of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00) from a recognized lending institution which loan shall be for a period not to exceed thirty (30) years and shall bear interest at the prevailing rate of said institution. Purchaser shall make prompt and immediate application with diligence, including the providing of all documentation necessary to support said application promptly. If Purchaser is unable to obtain a commitment for such loan on or before August 16, 1996, and if Purchaser so notifies Seller in writing care of James A. Miller, Jr., Attorney at Law, 140 Sherman Street, P.O. Box 826 Fairfield, Connecticut, 06430, on or before August 16, 1996, at 5:00 p.m., then this contract shall be null and void and the Purchaser shall be entitled to the return of all sums paid by the Purchaser on account of this contract, except $250.00 to cover the cost of preparing this contract. Should the Purchaser fail to provide such notice or fulfill the foregoing requirements, this contract shall continue in full force and effect, and the rights and obligations of the parties hereunder shall be as if this paragraph did not appear in this contract."

On July 30, 1996, Robert Aubin sent a fully executed copy of the sales agreement to People's Bank, a recognized lending institution. On August 6, 1996, Robert Aubin completed additional documents as requested by People's Bank, including additional credit and employment release authorization forms, a borrower's certification and authorization, another copy of the mortgage application and a rate lock-in agreement. He also advised the bank of the August 16, 1996 deadline.

On August 8, 1996, Robert Aubin's employer, Reader's Digest, prepared an employment verification form, and its senior vice president for strategic planning and human resources sent the bank a letter confirming that Robert Aubin would be given an interest free corporate loan ranging from $150,000 to $250,000 to assist in his relocation. That loan would be secured by a second mortgage on the property.

On August 13, 1996, Reader's Digest terminated Robert Aubin's employment. He thereafter advised his attorney, Kathryn Hunter, and the account officer at People's Bank, Mary Neidermeier, that Reader's Digest had terminated his employment. On August 14, 1996, Hunter notified the defendant and its attorney, James A. Miller, Jr., by facsimile and registered mail that the plaintiffs were unable to secure a mortgage and, therefore, that they sought the return of all sums paid under the sales agreement pursuant to paragraph nineteen of the sales agreement.

Despite the plaintiffs' repeated demands, the defendant refused to return the plaintiffs' deposit. On August 10, 1998, the plaintiffs commenced the present action by service of process upon Munson Builders, Inc., and its attorney, James A. Miller, Jr., who was the escrow agent under the sales agreement. The first count of the complaint alleged breach of contract against the defendant. The second count alleged breach of the escrow agreement by Miller. The third count of the complaint alleged violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., against Miller. The fourth count of the complaint alleged theft against the defendant and Miller, and the fifth count of the complaint alleged conversion against the defendant and Miller. After a trial to the court, the court rendered judgment in favor of the plaintiffs and against the defendant as to counts one and five. The court further rendered judgment in favor of Miller on all counts, and in favor of the defendant as to the fourth count. The court awarded damages to the plaintiffs in the amount of $74,650, plus prejudgment interest in the amount of $26,749.58 and offer of judgment interest in the amount of $20,006.03, for a total amount of $121,405.61. The defendant appeals from that judgment. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly determined that the plaintiffs were diligent in their application for the required loan. We disagree.

Before we address the defendant's claim, we first articulate the applicable standard of review. "If the factual basis of the court's decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 606, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). "With regard to the trial court's factual findings, the clearly erroneous standard of review is appropriate." Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265, 747 A.2d 1063 (2000). "The trial court's legal conclusions are subject to plenary review. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... [T]he interpretation of the contract is a matter of law and our review is plenary." (Internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 199, 756 A.2d 309 (2000).

"It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible.... On appeal, we do not retry the facts or pass on the credibility of witnesses." (Citations omitted; internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000).

After careful review of the record, we conclude that there is ample evidence in the record to support the court's finding that the plaintiffs made reasonable efforts to secure a mortgage. The defendant is asking this court to reconsider the evidence and to reach a different finding. We cannot do so.

"Reasonableness ... is an objective standard, involving an analysis of what a person with ordinary prudence would do given the circumstances, without accounting for any particular knowledge or skill.... In contracts as in tort cases, [t]he test is external, not subjective; that is, the question is how would a person of ordinary prudence in such a situation have behaved, not how did the defendant in fact behave.... Whether the plaintiffs actions constituted reasonable efforts to satisfy the contractual condition is a factual determination for the trial court." (Citations omitted; internal quotation marks omitted.) Phillipe v. Thomas, 3 Conn. App. 471, 475, 489 A.2d 1056 (1985).

The defendant makes several different arguments to support its position that the plaintiffs did not make reasonable attempts to secure a mortgage. We address each argument in turn.

First, the defendant claims that because Denyse Aubin did not herself apply for a mortgage after the bank denied Robert Aubin's application, the plaintiffs did not make reasonable efforts. The defendant's argument is without merit. Here, the court found that the plaintiffs disclosed all assets and debts to the bank, including the fact that Denyse Aubin had no income. We agree with the...