Lopinto v. Haines

• Decision Date: 08 December 1981
• Citation: Lopinto v. Haines, 185 Conn. 527, 441 A.2d 151 (Conn. 1981)
• Court: Connecticut Supreme Court
• Parties: Nancy LOPINTO v. Frank C. HAINES, Jr.

Page 151

441 A.2d 151

185 Conn. 527

Nancy LOPINTO v. Frank C. HAINES, Jr.

Supreme Court of Connecticut.

Argued Oct. 15, 1981.

Decided Dec. 8, 1981.

Robert R. Petrucelli, Bridgeport, for appellant (plaintiff).

Vincent M. Simko, Bridgeport, with whom, on brief, was Alice E. Harrington, Bridgeport, for appellee (defendant).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff's complaint in this action sought injunctive relief against the defendant restraining him from violating a restrictive covenant in a warranty deed executed by the plaintiff to the defendant. The deed conveyed title to a vacant lot in the city of Bridgeport. ¹ The defendant filed an answer and a counterclaim. The counterclaim was in three counts: the first count alleged that the restriction in the deed did not reflect the actual agreement between the parties; the second count alleged a scrivener's mistake; and the third count alleged financial obligations incurred and to be incurred by the defendant as a result of his reliance on the agreement as he understood it. The defendant also sought a reformation of the warranty deed and damages. After a court trial, the court (Saden, J.) found for the defendant on the complaint and on the first count of the counterclaim ² upon which it ordered a reformation of the warranty deed. The plaintiff has appealed from the judgment rendered on the counterclaim ordering reformation of the deed.

The trial court's memorandum of decision discloses the following facts: The plaintiff owned two adjoining lots on Dande Street in Bridgeport. There was a two-family house on one lot (Lot 11) while the other lot (Lot 12) was vacant. The plaintiff did not live in this two-family house but leased both flats to tenants. One Alan Fischer had an option contract to purchase the vacant lot but never took title. The defendant, who was interested in buying Fischer's interest in the contract, after obtaining Fischer's consent, met with the plaintiff concerning the sale of the lot. At that meeting the plaintiff and the defendant discussed the terms of sale including the location of a house which the defendant intended to build on the lot. ³ On the next day, the plaintiff, whose command of the English language is "somewhat limited," called her attorney and told him the terms of the sale agreement arrived at between herself and the defendant at this meeting and instructed him to proceed with the sale. No written contract to sell was ever prepared and both parties were anxious to close title.

The plaintiff's attorney prepared a warranty deed with a clause stating "that (the) newly constructed dwelling will be placed at least 24 feet from adjoining premises" of the plaintiff, "being Lot No. 11, as shown on said map." ⁴ The closing ⁵ took place on October 15, 1979, and the deed was recorded on October 16, 1979.

The defendant poured the footings on October 24, 1979, and the walls on October 30, 1979. The court observed that the plaintiff claimed that she visited the site every day during this period, but did not call her attorney until November 2 to complain that the new house was "too close." The plaintiff instituted this action claiming injunctive relief on November 6, 1979. ⁶

The trial court's memorandum of decision stated that the case "turns on the question whether there was a mutual mistake of the parties or a mistake by (the) plaintiff in describing to her attorney the location of the new house or by a misunderstanding of (the) defendant's attorney." As we have set out below, we do not believe that this correctly articulates the legal issue raised by this case.

The trial court found that the actual agreement between the parties fixed the distance between the existing and the new house. Pointing out that the plaintiff's testimony on this "vital question" was "ambiguous," the court found, as a fact, that in her previous agreement with Fischer, ⁷ the plaintiff had not required the new house to be built twenty-four feet from Lot 11, but, instead, "had her attorney employ language consonant with the oral agreement" that the defendant claims she subsequently made with him at their meeting. The court observed that the Fischer agreement, which both the plaintiff and defendant were familiar with at the time they reached their oral agreement, fixed the location of the house to be built "as far as possible from the (plaintiff's) existing house." Therefore, the court said that "(i)t is reasonable to infer that, with this in mind, the parties agreed on the location of the new house to be 24 feet from the adjoining house rather than the lot." (Emphasis in original.) It concluded that on this basis, "as well as other facts found from the evidence, ... the language of the deed prepared by (the) plaintiff's attorney describing the location of the new house should be reformed to read that it shall be 'at least 24 feet from the adjoining house owned by the grantor.' "

The plaintiff claims the court erred: (1) in failing to apply the proper standard of proof "in concluding that there was a mutual mistake of the parties in describing in the Warranty Deed the location of the new house from the adjoining land," and (2) in relying upon the prior written contract between the plaintiff and Fischer (Fischer contract) to infer the intent of the parties to this action in reaching their agreement when the only purpose for admitting the Fischer contract into evidence was to impeach the plaintiff's credibility.

"A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other. Moffett, Hodgkins & Clarke Co. v. Rochester, 178 U.S. 373, 385, 20 S.Ct. 957, (961) 44 L.Ed. 1108 (1900); Patalano v. Chabot, 139 Conn. 356, 359, 94 A.2d 15 (1952); Home Owners' Loan Corporation v. Stevens, 120 Conn. 6, 9, 179 A. 330 (1935); 27 Am.Jur.2d 555, Equity, § 33; 45 Am.Jur., Reformation of Instruments, 584 § 2, 621 § 62; 76 C.J.S. 375, Reformation of Instruments, § 30." Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 126, 239 A.2d 519 (1968). See also Rodie v. National Surety Corporation, 143 Conn. 66, 69, 118 A.2d 908 (1955). We have held that this also applies to actions for reformation of a deed; Patalano v. Chabot, 139 Conn. 356, 359, 94 A.2d 15 (1952); Milford Yacht Realty Co. v. Milford Yacht Club, Inc., 136 Conn. 544, 548, 72 A.2d 482 (1950); Home Owners' Loan Corporation v. Stevens, 120 Conn. 6, 10, 179 A. 330 (1935); the function of which is "merely to pass title to land, pursuant to the agreement of the parties." Patalano v. Chabot, supra, (139 Conn.) 360 (, 94 A.2d 15.) See also Cohen v. Holloways', Inc., 158 Conn. 395, 409, 260 A.2d 573 (1969). "Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties .... Equity evolved the doctrine because an action at law afforded no relief against an instrument secured by fraud or as a result of mutual mistake." George Backer Management Corporation v. Acme Quilting Co., 46 N.Y.2d 211, 219, (413 N.Y.S.2d 135) 385 N.E.2d 1062 (1978). The remedy of reformation "is appropriate in cases of mutual mistake-that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction. (Citations omitted.)" Home Owners' Loan Corporation v. Stevens, supra, 120 Conn. at pp. 9-10, 179 A. 330; see Restatement, Contracts (2d) § 297, Tentative Draft No. 10. In short, the mistake, being common to both parties, effects a result which neither intended. See, e.g., Mishiloff v. American Central Ins. Co., 102 Conn. 370, 374, 128 A. 33 (1925); Snelling v. Merritt, 85 Conn. 83, 100, 81 A. 1039 (1911).

There was no mutual mistake of that nature in this case. This is underscored by the express statement in the defendant's brief that he "claimed in the First Count of his Counterclaim that the deed was executed and recorded in its present form as the result of a mistake on his part coupled with inequitable conduct on the part of the Plaintiff." (Emphasis added.) This is the specific count of the counterclaim upon which the court found for the defendant.

We now turn to the question whether this case is one of a unilateral mistake coupled with actual or constructive fraud or inequitable conduct on the part of the plaintiff. See Greenwich Contracting Co. v. Bonwit Construction Co., supra. The defendant makes no claim of actual or constructive fraud, but does claim unilateral mistake coupled with inequitable conduct by the plaintiff. ⁸ "The burden of persuasion in an ordinary civil action is sustained if evidence 'induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true.' Darrow v. Fleischner, 117 Conn. 518, 520, 169 A. 197 (1933); Mead v. Husted, 52 Conn. 53, 56-61 (1884). In certain extraordinary circumstances a higher degree of belief has been required." Dacey v. Connecticut Bar Assn., 170 Conn. 520, 534, 368 A.2d 125 (1976). This case presents one "extraordinary circumstance" where that "higher degree of belief" is required.

The evolution of the equitable doctrine of reformation providing, as it does, relief where none was provided at law against an instrument secured by fraud and mistake has properly been said to require "evidence of a very high order" to overcome what the New York Court of Appeals calls "the heavy...