Foley v. Huntington Co.
| Decision Date | 27 August 1996 |
| Docket Number | No. 13331,13331 |
| Citation | 682 A.2d 1026,42 Conn.App. 712 |
| Court | Connecticut Court of Appeals |
| Parties | Brian J. FOLEY v. HUNTINGTON COMPANY et al. |
Louis R. Pepe, Hartford, with whom were Thomas J. Rechen, and, on the brief, James G. Green, Jr., for appellant-appellee (plaintiff).
Dion W. Moore, Bridgeport, with whom was James T. Shearin, for appellees-appellants (defendant Southport Manor Convalescent Center, Inc., et al.).
Before DUPONT, C.J., and LAVERY and FRANCIS X. HENNESSY, JJ.
The issues of this appeal by the plaintiff are whether the trial court improperly (1) set aside a jury verdict awarding the plaintiff damages for breach of contract and rendered judgment notwithstanding the verdict, (2) refused to award prejudgment interest on the jury's award of damages, and (3) excluded the plaintiff's evidence on lost profits. Other issues raised by the defendants' 1 cross appeal are whether the trial court improperly (1) failed to set aside a jury award of damages for the plaintiff for negligent The record reveals the facts and procedural history that follow. On September 30, 1984, the defendants entered into a contract, secured by a down payment of $5000, to sell Southport Manor Convalescent Center, Inc. (Southport Manor), a 140 bed nursing home in the town of Fairfield, to the plaintiff at a cost of $5,250,000. The contract provided for a closing date of October 30, 1984, and required an additional deposit of $150,000 from the plaintiff on or before October 15, 1984.
misrepresentation and (2) ordered the return of the plaintiff's deposits made pursuant to a contract of the parties.
The dispute of the parties primarily centers about the amount of land that the parties intended to sell and buy. The plaintiff was interested in purchasing enough land to operate the nursing home, and, therefore, the defendant Garofalo hired Huntington Company, a licensed surveyor company, to propose a description. Although the nursing home was located on a 10.09 acre tract of land, the contract provided for the sale of 3.74 acres of that tract as measured from a line drawn by the surveyor fifty feet from the nursing home and parking lots.
Several disputes arose among the parties concerning the performance of the contract. First, the plaintiff claimed that Garofalo failed to provide notice of the pending sale to the department of health services as promised. This notice was required for the plaintiff to receive financing, state approval for the transfer, and a license to operate the facility. The plaintiff withheld the additional deposit payment and brought an action for injunctive relief, requesting that the defendants be restrained from conveying or encumbering the property, and for specific performance, requesting that Garofalo be compelled to perform the contract. The defendants claimed that the plaintiff breached the contract by failing to make the additional deposit payment.
On November 9, 1984, the trial court held a hearing on the plaintiff's motion for a temporary injunction, and, after a partial hearing, the parties agreed to the following judgment rendered by the trial court: The plaintiff made the additional deposit, and the defendant delivered to the plaintiff the appropriate letter addressed to the department of health services.
Prior to the new closing date, the plaintiff's attorney discovered that the 3.74 acre tract of land, which the nursing home would occupy after the sale, was in violation of the town of Fairfield's zoning requirements. The plaintiff offered several solutions, including one that would require Garofalo to seek a variance or a zone change from the town to allow the nursing home to occupy a 3.74 acre parcel, another that would require Garofalo to convey the entire 10.09 acre parcel to the plaintiff and to accept a lease from the plaintiff for the difference between 10.09 and 3.74 acres, another that would permit the plaintiff to purchase the ten acre parcel outright, and another that would require Garofalo to provide the plaintiff with a ninety-nine year ground lease for the 3.74 acres at the same price as a purchase in fee simple. The defendants rejected these suggestions, maintained that they could not close the transaction because they could not deliver marketable title, and offered a full refund. This delay cost the plaintiff $51,000 in financing extensions penalties.
The plaintiff moved to hold the defendants in contempt of court for their alleged failure to comply with the judgment rendered on November 9, 1984. On September 23, 1985, the trial court did not hold the defendants in contempt, but ordered that "they make an application for a variance and take whatever steps are necessary to comply with the intent of the contract." The defendants agreed to The defendants failed to apply for a variance and claimed that, after speaking with town officials, it became apparent that the application would ultimately be denied or would not be feasible. On March 31, 1985, as a result of the plaintiff's motion, the trial court found Garofalo in contempt of court because of his bad faith failure to apply for a variance, and it imposed sanctions. Garofalo appealed to this court from the judgment of contempt.
apply for a variance, and the trial court continued the case to December 16, 1985. 2
After concluding that the original court order constituted a reformation of the original contract and not a judgment for specific performance, we set aside the judgment of contempt and remanded the case with direction to deny the plaintiff's motion to hold the defendant in contempt of court. See Foley v. Southport Manor Convalescent Center, Inc., 11 Conn.App. 530, 536, 528 A.2d 841, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987) (Foley I ).
On October 13, 1987, the plaintiff made a motion for a supplemental judgment of specific performance of the reformed contract and cited a footnote in Foley I as support for this motion. See id., at 537 n. 4, 528 A.2d 841. The trial court denied the motion, and we affirmed the denial on different grounds. Foley v. Southport Manor Convalescent Center, Inc., 19 Conn.App. 239, 245, 561 A.2d 978 (1989) (Foley II ). In Foley II we noted that the footnote in Foley I had been misconstrued by the plaintiff and stated that the proper action for the plaintiff would have been to initiate a new suit claiming a breach of the reformed contract and requesting the relief of specific performance. Foley II, supra, at 244-45, 561 A.2d 978.
Thereafter, the plaintiff brought this action 3 against Huntington Company, David S. Huntington, Southport Manor, Albert A. Garofalo, and Anne P. Toth. As to the claims against the defendants Garofalo and Southport Manor, the plaintiff alleged breach of contract, negligent and fraudulent misrepresentation, and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq. He sought declaratory relief, monetary damages and specific performance. The defendants asserted numerous special defenses, including, but not limited to, that the claims were barred by General Statutes §§ 52-577 and 42-110g and the statute of frauds, that proof of the breach of contract claim was limited by the parol evidence rule, that the remedies sought were limited by the contract, that the plaintiff's own negligence estopped him from claiming any injury or reliance, that the plaintiff breached the contract first, that the contract could not be performed due to zoning regulations, and that the claims were barred by res judicata.
The defendants also counterclaimed and sought declaratory relief pursuant to General Statutes § 52-29 to declare the rights and other legal relations in and to the contract, and brought claims of a breach of contract, misrepresentation, negligence, and unfair trade practices against the plaintiff. The plaintiff denied these counterclaims and asserted several special defenses, including that the claims and setoffs failed to state a claim or setoff recognized under Connecticut law and that the claims were barred by the doctrines of res judicata and collateral estoppel.
The jury found in favor of the plaintiff against Garofalo and Southport Manor on the breach of contract and negligent misrepresentation claims, in favor of the Huntington defendants on a negligence claim, and in favor of Garofalo and Southport Manor on Southport Manor and Garofalo moved for a directed verdict after the close of the plaintiff's case, which motion was denied, and they subsequently moved to set aside the verdict, which motion was granted in part and denied in part by the trial court. 5 We first discuss the claims of the appeal and the cross appeal that relate to the jury's verdict.
the fraudulent misrepresentation claim. 4 The court accepted the [42 Conn.App. 720] verdicts as to liability and accepted the answers to the interrogatories and then committed the action to the jury to decide the issue of damages due the plaintiff from the defendants Southport Manor and Garofalo. The jury was expressly told by the court not to include the down payment of $155,000 in its calculation of damages because the court had reserved the issue to itself to be determined after the court decided whether specific performance was appropriate. The court subsequently denied...To continue reading
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