Foley v. Southport Manor Convalescent Center, Inc.

• Decision Date: 23 September 1987
• Docket Number: No. 5062,5062
• Citation: 11 Conn.App. 530,528 A.2d 841
• Court: Connecticut Court of Appeals
• Parties: Brian J. FOLEY v. SOUTHPORT MANOR CONVALESCENT CENTER, INC., et al.

Page 841

528 A.2d 841

11 Conn.App. 530

Brian J. FOLEY v. SOUTHPORT MANOR CONVALESCENT CENTER, INC., et al.

No. 5062.

Appellate Court of Connecticut.

Argued March 6, 1987.

Decided July 14, 1987.

Certification Denied Sept. 23, 1987.

Dwight F. Fanton, with whom were James P. White and, on brief, Christopher S. Rode, Bridgeport, for appellants (defendant).

Louis R. Pepe, with whom were James G. Green, Jr., and, on brief, Jeanine M. Dumont, Hartford, for appellee (plaintiff).

Before DUPONT, C.J., and BORDEN and DALY, JJ.

BORDEN, Judge.

The defendant Albert A. Garofalo appealed from the judgment of the trial court holding him in contempt of court and imposing sanctions therefor. ¹ The trial court's judgment of contempt followed an earlier stipulated judgment arising out of a contract pursuant to which the defendants agreed to sell a nursing home to the plaintiff. Garafalo claims that the court erred in holding him in contempt of court for his failure to obey the court's order that he seek a zoning variance or change of zone as to the property. We find error.

The relevant facts are undisputed. On September 30, 1984, the parties entered into a contract whereby the defendants agreed to sell their one hundred forty bed nursing home, located in the town of Fairfield, to the plaintiff for $5,250,000. The plaintiff paid a $5000 deposit, and was obligated by the contract to make an additional deposit of $150,000 on or before October 15, 1984. The contract provided for a closing date of October 30, 1984. Although the nursing home was located on a 10.09 acre tract of land, the contract provided for the sale of only 3.74 acres of that tract. The smaller tract carved out of the larger tract that portion of the land essentially occupied by the buildings and parking area of the nursing home. The contract obligated the seller to convey marketable title, free from encumbrances "except for the following: (1) any and all provisions of any ordinance, municipal regulation and public or private law, building, building line and zoning restrictions of the town in which the Premises are located...."

A dispute arose between the parties concerning the performance of the contract. The plaintiff claimed, inter alia, that the defendants were in breach for failure to give notice of the sale to the state health department. The defendants claimed, inter alia, that the plaintiff was in breach for failure to make the additional deposit of $150,000. The plaintiff sued the defendants seeking, inter alia, specific performance of the contract and injunctive relief restraining the defendants from conveying the property.

On November 9, 1984, the trial court held a hearing on the plaintiff's motion for a temporary injunction to restrain the defendants from selling or encumbering the real estate pending the trial of the plaintiff's action. After a partial hearing, the parties stipulated to a judgment which the court rendered orally as follows: "What I'll do is right now enter by stipulation, I'll enter a reformation of the contract, and the only reformation will be an extension of time for the down payment. And the reformation will further state that the notice to the State of Connecticut Health Department will be simultaneous with the payment of the $150,000 down payment. The time for both of those acts is extended to November 16th, 1984, and the closing will take place on this premises on or before December 30th. I will extend the October 30th date to December 30th. Now, that's all I am going to do. I'm going to reform the contract to that extent. Are you in agreement with it?" The parties indicated their agreement. The court's judgment file provides in part: "The Court, having heard the parties on the stipulation, finds that judgment should be entered in accordance with the stipulation. Whereupon it is adjudged that a reformation of the purchase and sale agreement is ordered with November 16, 1984, set as the date that the plaintiff purchaser is to make an additional deposit of $150,000 simultaneously with the defendant seller delivering to the plaintiff the appropriate letter notifying the Connecticut Health Department of the impending sale and that the new closing date be on or before December 30, 1984." The plaintiff made the additional deposit and the defendant delivered to the plaintiff the appropriate letter addressed to the state health department.

In preparing for the closing, the plaintiff's attorney discovered that a zoning problem existed: because after the sale the nursing home would be located on the 3.74 acre tract rather than the 10.09 acre tract, the town of Fairfield would consider the nursing home to be in violation of certain zoning regulations. The plaintiff offered several solutions to the zoning problem, including a long term ground lease of the 3.74 acre tract, rather than a conveyance in fee. The defendants rejected the plaintiff's suggestions. The defendants maintained that they could not close the transaction because they could not deliver marketable title, and they offered to refund the plaintiff's deposit.

Thereafter, the plaintiff moved to hold the defendants in contempt of court for their alleged failure to comply with the judgment. On September 23, 1985, after a hearing in which no testimony was offered but in which the attorneys for the parties made representations to the court, the court entered the following orders: "I'm ordering [the defendants] to do everything possible to effect the sale, whatever zoning is required.... I think Mr. Garofalo and Mrs. Toth have an obligation to cooperate to the maximum in order to enforce the contract.... I'm not going to hold anyone in contempt, but I'm going to order that they make an application for a variance and take whatever steps are necessary to comply with the intent of the contract." After further colloquy among the court and the attorneys, the defendants' attorney stated: "We'll agree to apply for the variance on a hardship basis for the 3.74 acres that we agreed to sell. Now, anything beyond that, we cannot agree to, Your Honor." The court then continued the case to September 16, 1985.

The defendants did not thereafter apply for a zoning variance or for a change of zone. They justified their failure to take these actions on the basis that, as a result of discussions with local town officials, it became apparent to them that such applications would either be denied, would be vulnerable to challenge on appeal, or would involve great expense and delay and would not be feasible.

Ultimately, on March 21 and 31, 1986, an evidentiary hearing was held on the plaintiff's motion for contempt. The court adjudged Garofalo in contempt of court because of his bad faith ² failure to apply for the variance or zone change which the court, on September 23, 1985, had ordered him to seek. ³ It is clear from this record that the court viewed the stipulated judgment of November 9, 1984, as a judgment of specific performance of the contract between the parties, and was acting to protect the integrity of that judgment. The court imposed sanctions of $1774.31 per day, to be held in abeyance for sixty days during which period Garofalo could purge himself by either (1) entering into a long term ground lease of the 3.74 acres to the plaintiff or (2) reforming the contract further by agreeing to sell the entire 10.09 acres to the plaintiff based on a price to be set by three independent appraisers. This appeal followed.

Garofalo raises several arguments on appeal, two of which we find equally and independently dispositive. We therefore need not consider his other claims.

Garofalo argues that the stipulated judgment of November 9, 1984, was not a judgment of specific performance of the contract and that, therefore, the court erred in holding him in contempt of court for failure to obey its order, which was issued incident to that judgment and which was aimed at specific performance of the contract. We agree.

Although on appeal from a judgment of civil contempt, our scope of review is technically limited to jurisdictional questions such as whether the court had authority to impose the penalty inflicted and whether the conduct penalized could constitute a contempt, that scope of review is sufficiently broad to encompass many claims of error which are not facially jurisdictional. Barbato v. J. & M. Corporation, 194 Conn. 245, 250-51, 478 A.2d 1020 (1984). We conclude that our scope of review encompasses Garofalo's claims of error on this appeal.

The judgment of November 9, 1984, both as rendered orally by the court and as reflected in the judgment file, was a judgment reforming the contract only. It was not a judgment ordering specific performance of the contract. The court's language was quite clear. "What I'll do is right now enter by stipulation, I'll enter a reformation of the contract, and the only reformation will be an extension of time for the down payment. And the reformation will further state that the notice to the State of Connecticut Health Department will be simultaneous with the payment of $150,000.... Now, that's all I'm going to do. I'm going to reform the contract to that extent." After some further colloquy...