Four D's, Inc. v. Mattera

• Decision Date: 23 July 1991
• Docket Number: No. 9530,9530
• Citation: 25 Conn.App. 308,594 A.2d 484
• Court: Connecticut Court of Appeals
• Parties: FOUR D's, INC. v. Salvatore MATTERA, et al.

Page 484

594 A.2d 484

25 Conn.App. 308

FOUR D's, INC. v. Salvatore MATTERA, et al.

No. 9530.

Appellate Court of Connecticut.

Argued April 22, 1991.

Decided July 23, 1991.

Robert M. Davidson, with whom, on the brief, were Howard B. Naylor and James F. Wojeck, Norwalk, for appellants (defendants).

Paul J. Pacifico, Rowayton, for appellee (plaintiff).

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

NORCOTT, Judge.

The principal issue in this appeal is whether, under the terms of an agreement to convey certain real estate located in Norwalk, the proposed corporate purchaser met its contractual obligations. The defendants also claim that the trial court improperly (1) accepted the trial referee's recommended award of damages, (2) failed to render a decision on their motion for a mistrial and (3) refused to correct the referee's findings of fact. We affirm the judgment of the trial court.

The following facts are necessary to our discussion of these issues. In a written agreement signed by the defendants, Salvatore and Mary Ann Mattera, on December 28, 1985, and by the plaintiff on January 3, 1986, the defendants agreed to sell certain real estate that they owned in Norwalk to the plaintiff. Pursuant to the agreement, which stated a base price of $231,000, the plaintiff was to use due diligence to secure, on or before May 1, 1986, ¹ zoning approval to construct at least seven housing units on the property. If the plaintiff was unable to secure such zoning approval, the contract provided that the defendants were to be so notified before the deadline, in which case the agreement would become null and void and all moneys paid as a deposit, less a $150 fee for the preparation of the agreement, would be refunded to the plaintiff. ² The agreement also provided that if the plaintiff was able to secure zoning approval for any additional units the defendants were to receive $33,000 for each such unit, even if the approval was obtained after the closing of title. ³

After March 1, 1986, the parties met regarding the plaintiff's ability to obtain zoning approval for more than seven units. The defendants claimed that the plaintiff was not trying to maximize the development capabilities of the property. The plaintiff contended that it had been led to believe from discussions with Norwalk zoning officials that a variance would be needed to construct more than the seven base units and that approval for such a variance was unlikely. Despite these discussions, the plaintiff demanded to close title on May 1, 1986, and stood ready to pay the $231,000 contract price. The defendants refused to close title and retained certain moneys as provided for in the agreement.

The plaintiff instituted this action against the defendants on June 17, 1986, seeking specific performance of the agreement, damages for the defendants' breach of the agreement and attorney's fees. The case was referred to a state trial referee appointed pursuant to General Statutes § 52-434(a)(4). After a full hearing held in June and July of 1986, the referee reported her findings of fact in a memorandum of decision dated December 13, 1988. The referee concluded that the plaintiff had performed its obligations but that the defendants had breached the contract by refusing to convey title. She recommended that the plaintiff be awarded specific performance of the contract and $56,000 in damages plus statutory interest from May 1, 1986, the date that the closing was scheduled to have taken place.

The defendants filed a motion to correct the referee's findings on May 31, 1989. Because the referee failed to render a decision on that motion, the defendants moved for a mistrial on April 12, 1990. Shortly thereafter, the referee denied the defendants' motion to correct. On August 28, 1990, the trial court accepted all of the referee's recommendations, except for the award of statutory interest, ⁴ and rendered judgment accordingly. The defendants filed objections and exceptions to the trial court's actions, and this appeal ensued.

Finally, during the pendency of the action at the trial court, the city of Norwalk rezoned the property so that it can now contain only four units.

I

The essence of the defendants' first claim lies in the interpretation of the agreement regarding the plaintiff's obligation to secure zoning approval. The defendants contend that the plaintiff did not satisfy the agreement's due diligence requirement because (1) the agreement mandated that the plaintiff use due diligence to secure zoning approval for more than the seven base units and (2) the plaintiff failed to secure zoning approval for even the seven base units.

It is axiomatic that "a reviewing authority may not substitute its findings for those of the trier of the facts." Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). "In a contract action, findings of fact should be overturned only when they are clearly erroneous. Pomarico v. Gary Construction, Inc., 5 Conn.App. 106, 112, 497 A.2d 70, cert. denied, 197 Conn. 816, 500 A.2d 1336 (1985)." Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra, 20 Conn.App. at 425, 567 A.2d 1250. What the parties intended to include in their contract is a question of fact. Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983); Crowther v. Gerber Garment Technology, Inc., 8 Conn.App. 254, 263, 513 A.2d 144 (1986). Although attorney trial referees are bona fide factfinders in this state, a referee's determinations of law are not binding on the court. See Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989).

In this case, the attorney trial referee found that, pursuant to paragraph twenty of the agreement, the plaintiff was obligated to use due diligence to secure zoning approval for the construction of seven units only. The referee further found that the parties agreed that approval of the seven units was obtainable and that, prior to the closing date, the plaintiff had clearly notified the defendants that it was "ready, willing and able to close." The referee concluded that the defendants had refused to convey title because the plaintiff had not succeeded in obtaining permission from the Norwalk zoning authorities to build more than seven units. The trial court reviewed the record, fully agreed with the referee's conclusions of law and implicitly found that her findings of fact were not clearly erroneous. Our review of the record does not lead us to a different conclusion.

The defendants' argument that the agreement required the plaintiff to exercise due diligence to obtain zoning approval for more than seven units is unsupported by the record. As duly noted by both the referee and the trial court, although paragraph twenty, which deals with the seven base units, contains a due diligence requirement, paragraph twenty-one, which refers to additional units, does not. The plain, clear language of the contract must be accorded its logical effect. Leonard Concrete Pipe Co. v. C.W. Blakeslee & Sons, Inc., 178 Conn. 594, 599, 424 A.2d 277 (1979). Thus, the referee and the trial court properly concluded that there was no need to use due diligence with respect to the securing of zoning approval for any additional units.

In any case, it is clear from the referee's report and from the court's memorandum of decision that, notwithstanding the lack of such a due diligence requirement, the plaintiff actively and diligently pursued zoning approval for additional units by contacting zoning authorities, discussing the problems of zoning approval with the defendants, asking the defendants to sign documents necessary to initiate the variance process and offering to pay for all costs incurred by the defendants if they could obtain zoning approval despite the plaintiff's efforts.

The defendants' claim that the referee improperly failed to find that the plaintiff had not used due diligence in securing zoning approval for the seven base units is equally without merit. The trial court accepted the referee's finding that "[t]here was and is no dispute among the parties that approval for seven units was in fact obtainable." This finding was in accord with the referee's further determination that, although the plaintiff had never obtained zoning approval for the seven unit proposal, the defendants had asserted early in the negotiations that, the agreement notwithstanding, they would not close title on only seven units. The referee specifically found that the defendants' insistence on maximizing the development possibilities of the property manifested itself in their refusal to sign certain documents that would have initiated the approval process for the seven base units. On the basis of these findings, the referee concluded, and the trial court agreed, that the plaintiff had fulfilled its obligation under the contract. Absent clear error, we will not disturb the trier's factual findings. Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra, 20 Conn.App. at 425, 567 A.2d 1250; Pomarico v. Gary Construction, Inc., supra, 5 Conn.App. at 112, 497 A.2d 70. We find no such error in this case.

II

The defendants next claim that the trial court improperly accepted the referee's recommended award of damages. Specifically, they claim that there was insufficient evidence from which the court could have based an award of damages because the plaintiff's expert used no acceptable method of valuing the property.

Both parties acknowledge that in an action for specific performance the trial court maintains the discretion to award damages. Allen v. Nissley, 184 Conn. 539, 440 A.2d...