Foley v. Southport Manor Convalescent Center, Inc., 6875

• Decision Date: 01 August 1989
• Docket Number: No. 6875,6875
• Citation: 19 Conn.App. 239,561 A.2d 978
• Court: Connecticut Court of Appeals
• Parties: Brian J. FOLEY v. SOUTHPORT MANOR CONVALESCENT CENTER, INC., et al.

Page 978

561 A.2d 978

19 Conn.App. 239

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

No. 6875.

Appellate Court of Connecticut.

Argued March 7, 1989.

Decided Aug. 1, 1989.

Louis R. Pepe, with whom was Jeanine M. Dumont and, on the brief, James G. Green, Hartford, for appellant (plaintiff).

Dion W. Moore, with whom was James T. Shearin and, on the brief, Dwight F. Fanton, Bridgeport, for appellees (defendants).

Before DUPONT, C.J., and STOUGHTON and NORCOTT, JJ.

DUPONT, Chief Judge.

This case involves the following undisputed facts. On September 30, 1984, the parties entered into a contract whereby the defendants agreed to sell their 140 bed nursing home, including land, located in the town of Fairfield, to the plaintiff for $5,250,000. The plaintiff paid a $5000 deposit, and was obligated under the contract to make an additional deposit of $150,000 on or before October 15, 1984. The contract provided for the sale of only 3.74 acres, a portion of the property on which the nursing home was situated. The real property was owned by the defendant Albert A. Garofalo. The contract obligated the defendants to convey marketable title, free from encumbrances, excepting any town zoning restrictions.

A dispute arose between the parties concerning the performance of the contract. The plaintiff claimed that the defendants were in breach for failure to give notice of the sale to the state health department. The defendants claimed that the plaintiff was in breach for failure to pay 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.

The parties ultimately stipulated to a judgment that the court, Kline, J., 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."

On November 9, 1984, the trial court rendered judgment in accordance with the stipulation: "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 defendants delivered to the plaintiff the appropriate letter addressed to the state health department.

It thereafter became known that the sale of only 3.74 acres with the nursing home would violate certain zoning regulations. The defendants maintained that they could not deliver marketable title, and offered to refund the plaintiff's deposit. Finding that option to be unsatisfactory, the plaintiff moved to hold the defendants in contempt of court for their alleged failure to comply with the judgment.

After a hearing held on September 23, 1985, the court rendered the following orders: "I am ordering [the defendants] to do everything possible to effect the sale, whatever zoning is required.... I am not going to hold anyone in contempt, but I am 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."

The defendants did not thereafter apply for a zoning variance or for a change of zone. After an evidentiary hearing on the plaintiff's motion for contempt on March 31, 1986, the court adjudged Garofalo in contempt of court because of his bad faith failure to apply for the variance or zone change that the court, on September 23, 1985, had ordered him to seek. The court, as did the parties, 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 until the defendant purged himself of contempt 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 its fair market value.

On April 17, 1986, the defendants appealed to this court. In Foley v. Southport Manor Convalescent Center, Inc., 11 Conn.App. 530, 528 A.2d 841, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987) (Foley I ), this court 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. The case was not remanded for any other purpose, and the rescript of the case did not order any other further proceedings.

In alternative holdings, this court held (1) that the trial court erred in holding the defendant in contempt for failing to apply for the variance because the order requiring...