Frumento v. Mezzanotte

• Decision Date: 10 April 1984
• Citation: 192 Conn. 606,473 A.2d 1193
• Court: Connecticut Supreme Court
• Parties: Frank P. FRUMENTO v. Mary MEZZANOTTE et al.

Page 1193

473 A.2d 1193

192 Conn. 606

Frank P. FRUMENTO v. Mary MEZZANOTTE et al.

Supreme Court of Connecticut.

Argued Dec. 9, 1983.

Decided April 10, 1984.

Brian T. Fischer, West Haven, with whom, on the brief, was James E. Fischer, West Haven, for appellant (plaintiff).

R. William Bohonnon, New Haven, with whom, on the brief, were Kenneth W. Bohonnon and David M. Bohonnon, New Haven, for appellee in the main action and appellant on the third party complaint (defendant and third party plaintiff Louis D'Onofrio, Jr., administrator [estate of Louis D'Onofrio].

Jonathan J. Einhorn, New Haven, with whom, on the brief, was Stuart A. Margolis, New Haven, for appellee in the main action and on the third party complaint (named defendant and third party defendant).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, GRILLO and MENT, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff, Frank Frumento, brought this action seeking specific performance of a contract entered into with the defendants, Mary Mezzanotte and Louis D'Onofrio, Jr., administrator d.b.n. of the estate of Louis D'Onofrio, co-owners of certain real property located in West Haven. The trial court refused to decree specific performance and this appeal followed.

The pertinent facts found by the trial court are as follows: The realty in question was purchased in 1948 by David Mezzanotte, the now-deceased husband of the defendant Mary Mezzanotte, and Louis D'Onofrio, the now-deceased father of the defendant D'Onofrio. Following the deaths of David Mezzanotte and Louis D'Onofrio in 1959 and 1960, respectively, their widows succeeded to their ownership of the realty and at that time unpaid taxes began to accrue on the property.

In 1976, Mezzanotte determined through inquiry at the West Haven tax office that there was a large amount of unpaid taxes on the property. At that time, Mezzanotte offered to pay her share of the taxes if the D'Onofrios would do likewise, but the D'Onofrios would not pay their share. The D'Onofrio widow died in 1977 and Mezzanotte repeated her offer to pay her share of the taxes, but the defendant D'Onofrio refused to pay the share of the D'Onofrio estate.

Thereafter, Attorney William Bohonnon, the defendant D'Onofrio's attorney, approached Mezzanotte regarding the sale of the property. Mezzanotte told Bohonnon that she was not interested in selling. Mezzanotte then retained Attorney Frederick Greenberg and met with him in the spring of 1978. At that time, she related her concern over the taxes on the property and her desire to settle the matter. There was no discussion during this meeting about selling the property.

Approximately one year later, Bohonnon advised a former law associate of Mezzanotte's brother-in-law that substantial back taxes were due on the property in question. This attorney communicated this to Mezzanotte who then confirmed it with the West Haven tax office and the corporation counsel's office. Shortly thereafter, Mezzanotte received a telephone call from Greenberg who informed her tht he had received an offer to purchase the property and he requested that she meet with him in his office to discuss the matter. This meeting, the second of three which Mezzanotte had with Greenberg, took place in the latter part of July, 1979. Mezzanotte was informed by Greenberg during this meeting that an offer of $35,000 had been made for the property and that he had engaged Robert Parente, an appraiser, who believed this to be a good offer. ¹ Mezzanotte responded that, although she did not know what price to put on the property, she felt that $35,000 was not the right amount and that it was too low. Mezzanotte then left Greenberg's office.

In the latter part of August, 1979, Mezzanotte received another telephone call from Greenberg in which he requested that she come to his office to sign a sales agreement for the property. Greenberg told Mezzanotte over the telephone that he could see no point in not selling, that she was going to lose the property anyway. Mezzanotte responded that she could not meet with Greenberg until her daughter, who was then visiting in San Francisco, was able to accompany her to Greenberg's office since she did not go out alone. ² Thereafter, on or about August 21 or 22, 1979, Mezzanotte and her daughter met with Greenberg in his office. During this third meeting, Greenberg again told Mezzanotte that if she did not sell the property she would lose it through foreclosure. At this meeting, Mezzanotte signed the agreement ³ for the sale of the property. It is this agreement for which the plaintiff seeks specific performance. ⁴ At the time when she signed the agreement, it provided for a closing date of August 15, 1979. ⁵ This date was subsequently crossed out and the date August 31, 1979, was substituted without Mezzanotte's knowledge. Apparently she understood that Greenberg would contact her later concerning an actual date for the closing.

Early in September, 1979, Mezzanotte and her daughter became aware that the land had been cleared and Mezzanotte's daughter called Greenberg to ask him about this since the closing had not yet taken place. ⁶ Greenberg's response was unsatisfactory to her. At this point, a definite date for the closing on the sale of the land had still not been scheduled. "Sometime in September" Greenberg advised Mezzanotte that there was to be a closing "sometime in October."

In support of his claim for a decree of specific performance, the plaintiff points to certain direct testimony of Mezzanotte that sometime in October, 1979, she informed Greenberg that she would not attend a closing. There is no evidence of the date in October of this "closing" and the trial court so found. In any event, the plaintiff testified that his attorney's office informed him "[s]ometime in October ... [t]wo days before the closing ... [that] it was off completely." The plaintiff thereafter brought this action seeking specific performance of the agreement for the sale of the realty.

After a trial to the court, a judgment was rendered in which the court refused to order a specific performance. The trial court grounded its decision on its conclusion that the plaintiff, who had "the burden of proving that he was ready, willing and able to close, and that the defendants neglected to convey the property ... failed to prove by a fair preponderance of the evidence that he would and could close on the property on August 15, 1979, or August 31, 1979, the only closing dates which appear on the agreement of sale." This appeal followed. ⁷

On this appeal, it is claimed that the trial court erred in: (1) refusing to permit the plaintiff and the defendant D'Onofrio to call Greenberg as a witness to testify at the trial based upon Mezzanotte's invocation of the attorney-client privilege; (2) finding that Mezzanotte had not been made aware of a closing date other than the date which appeared in the sales agreement; (3) failing to find that the plaintiff was not required to tender performance because such tender would have been a futile act; (4) finding that the plaintiff was not ready, willing and able to purchase the property; and (5) not ordering specific performance where the contract contained all the essential elements of the agreement among the parties. On the other hand, the defendant Mezzanotte claims that the trial court properly found for her on the foregoing issues and makes further claims which we need not reach. ⁸ We find that the trial court properly refused to order the specific performance of the agreement.

We need address only those claims of the plaintiff which relate to the trial court's finding that he was not ready, willing and able to purchase the property, since those claims are dispositive of all others before us. ⁹ We first note in this regard that the plaintiff claims that the trial court erred in finding that Mezzanotte was never informed of a closing date other than that which was stated on the agreement at which her presence was requested. In so doing, the plaintiff claims that certain direct testimony of Mezzanotte, which we have referred to above, establishes that she was informed of a "new closing date" by Greenberg, and when so informed, she stated that she would not attend the closing. The plaintiff maintains, therefore, that the trial court erred in its determination that "[a]t a minimum a date certain for [the] closing should have been communicated to [Mezzanotte]," that the "[p]laintiff had a responsibility to show that on that date certain he was ready, willing and able to consummate the deal," and that the plaintiff could not claim that to set such a time for performance would be futile. Even if we accept, arguendo, the plaintiff's claim in this regard, i.e., that Mezzanotte's refusal to appear at such a "scheduled" closing relieved the plaintiff of his duty to make an actual tender of performance; see, e.g., Vachon v. Tomascak, 155 Conn. 52, 57, 230 A.2d 5 (1967); specific performance was properly denied because the plaintiff, nevertheless, had not sustained his burden of proving that he was ready, willing and able to perform the agreement as he alleged.

In bringing this action, the plaintiff alleged in his complaint, inter alia, that: by written agreement, the plaintiff agreed to buy and the defendants agreed to sell the land in question; Probate Court approval had been received for the sale; the agreement provided that the sale and conveyance be completed by August 31, 1979; the defendant owners have not conveyed the property; and that "[t]he plaintiff was at all times and still is ready, willing and able to perform the agreement on his part according to its tenor...." At the trial, the plaintiff, after testifying that he signed the agreement on July 16, 1979, indicated that from that "time until the time of the closing date" ¹⁰ he had the "financial ability" to purchase the property.

The purchase price of the property was $35,000 and the plaintiff had...