McNeil v. Riccio

• Decision Date: 17 June 1997
• Docket Number: No. AC,AC
• Citation: 696 A.2d 1050,45 Conn.App. 466
• Court: Connecticut Court of Appeals
• Parties: Lydia McNEIL et al. v. Evelyn RICCIO et al. 15310.

Page 1050

696 A.2d 1050

45 Conn.App. 466

Lydia McNEIL et al. v. Evelyn RICCIO et al.

No. AC 15310.

Appellate Court of Connecticut.

Argued Feb. 18, 1997.

Decided June 17, 1997

Earl I. Williams, New Haven, for appellants-appellees (plaintiffs).

D. Kirt Westfall, New Haven, with whom, on the brief, was Rhoda L. Rudnick, for appellees-appellants (defendants).

Before DUPONT, C.J., and SCHALLER and SPEAR, JJ.

SPEAR, Judge.

In this real estate dispute, the plaintiffs, would-be buyers, appeal from the judgment of the trial court claiming that the trial court improperly (1) refused to enforce the plaintiffs' rights in either of two 1975 real estate sales contracts by finding that such rights were time barred and (2) failed to find that a 1982 document, either alone or in conjunction with certain claimed acts of part performance, constituted a contract between the plaintiffs and the defendants for the sale of the subject property. The defendants filed a cross appeal, claiming that the trial court improperly (1) allowed the plaintiffs to amend their complaint by adding, inter alia, an unjust enrichment count based on claimed improvements to the property after the defendants had moved for summary judgment on the complaint and (2) awarded the plaintiffs damages on the unjust enrichment count. We affirm the judgment of the trial court.

The relevant findings and conclusions of law made by the trial court are as follows. The parties entered into a written contract on July 15, 1975, pursuant to which the defendants were to sell certain real property to the plaintiffs. This contract was superseded by a second contract dated December 31, 1975. Any action on the second contract was barred by the six year statute of limitations provided in General Statutes § 52-576. The parties had discussions in 1982 concerning revisions to the second contract. Although a draft agreement was produced, it was not signed by any of the parties. The claimed acts of partial performance by the plaintiffs were repairs and improvements unrelated to performance under the contract and were thus insufficient to overcome the defendants' statute of frauds defense. The plaintiffs' claim for specific performance based on either of the 1975 contracts was at least twelve years late and, therefore, barred by General Statutes § 47-33a (c). ¹ Finally, the trial court found that certain maintenance and improvements paid for by the plaintiffs benefited the defendants and constituted unjust enrichment. The court rendered judgment for the plaintiffs in the amount of $ 20,674.35 on that claim. This appeal and cross appeal followed.

The plaintiffs assert that they should prevail on their appeal because (1) the 1982 draft agreement was effective even though it was not signed, (2) their part performance pursuant to the unsigned 1982 document was sufficient to prevent the operation of the statute of frauds, and (3) the statutes of limitation on the 1975 contract were tolled, or the defendants are equitably estopped from asserting such a defense.

I

A

In their brief, the plaintiffs claim that the 1982 document was a valid contract despite the absence of the parties' signatures. The cases cited by the plaintiffs, Schwarzschild v. Martin, 191 Conn. 316, 464 A.2d 774 (1983), and Sawmill Brook Racing Assn., Inc. v. Boston Realty Advisors, Inc., 39 Conn.App. 444, 664 A.2d 819 (1995), are inapposite cases discussing the writing requirement of General Statutes § 52-408 for a contract authorizing arbitration. Neither case is concerned with contracts for the sale of real property. The statute of frauds section that is applicable to real property transfer applies here. ²

B

The plaintiffs next contend that the unsigned 1982 draft agreement is valid and enforceable. Despite the parties' failure to sign the draft agreement, the plaintiffs assert that it is enforceable because the parties assented to it and performed in accordance with its terms. We are not persuaded.

The statute of frauds requires contracts for the conveyance of realty to be in writing. Hieble v. Hieble, 164 Conn. 56, 59, 316 A.2d 777 (1972). "We have repeatedly recognized that a contract is enforceable, despite the statute, when, subsequent to the making of the contract, there has been conduct that amounts to part performance." Heyman v. CBS, Inc., 178 Conn. 215, 222, 423 A.2d 887 (1979). The plaintiffs do not claim that the 1982 draft agreement was signed, but rather that this case falls into the partial performance exception to the statute of frauds.

"[T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties.... The acts must also be of such a character that they can be naturally and reasonably accounted for in no other way than the existence of some contract in relation to the subject matter in dispute...." (Citations omitted; internal quotation marks omitted.) Ubysz v. DiPietro, 185 Conn. 47, 54, 440 A.2d 830 (1981).

At trial, the plaintiffs introduced evidence of continued monthly rental payments and voluntary repairs made on the premises. Occupancy payments and normal upkeep, however, were not part of the consideration that the parties bargained for and indicate only a landlord-tenant relationship. Such conduct does not further the contract and provide a basis for finding that " 'the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.' 1 Restatement (Second), Contracts (1981) § 129; Montanaro Bros. Builders, Inc. v. Snow, [190 Conn. 481, 487, 460 A.2d 1297 (1983) ]." Dunham v. Dunham, 204 Conn. 303, 315, 528 A.2d 1123 (1987). Accordingly, we conclude that the plaintiffs failed to satisfy the requirements for the partial performance exception to the statute of frauds.

II

The plaintiffs claim that the trial court improperly found that their specific performance and breach of contract claims are time barred. We are unpersuaded.

Generally, a claim for specific performance of a contract for the sale of realty must be brought within one year of the specified date of closing or no more than eighteen months from the date of the contract's execution. General Statutes § 47-33a (a). ³ Although the plaintiffs do not indicate which of the claimed contracts should survive the statute of limitations, the only valid contract is the second of the two contracts executed. The trial court's legal conclusion that the second contract superseded the first is not challenged. Pursuant to § 47-33a(b), the interest in real estate may be extended only by "reexecution of the written agreement or by execution of a new agreement." There were no extensions in this case, and the trial court properly concluded that the claim was time barred.

To save the 1975 contract from the statute of limitations, the plaintiffs invoke the equitable principle of estoppel. "There are two essential elements to an estoppel--the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.... Estoppel rests on the misleading conduct of one party to the prejudice of the other." (Citations omitted; internal quotation marks omitted.) Spear-Newman, Inc. v. Modern Floors Corp., 149 Conn. 88, 91, 175 A.2d 565 (1961); see also Morris v. Costa, 174 Conn. 592, 599, 392 A.2d 468 (1978).

The short answer to this claim is that the trial court did not find that the defendants' actions constituted misrepresentation. "The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... We cannot retry the facts or pass on the credibility of witnesses.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed...." (Citations omitted; internal quotation marks omitted.) Tyler's Cove Assn., Inc. v. Middlebury, 44 Conn.App. 517, 527-28, 690 A.2d 412 (1997). After a careful review of the record, we conclude that the trial court's factual findings are not clearly erroneous.

The plaintiffs also claim that under the circumstances of this case, the statute of limitations, § 52-576, was tolled. ⁴ We disagree. Any claim upon a written contract must be brought within six years after the right of action accrues. "In an action for breach of contract, the cause of action is complete upon the occurrence of the breach, that is, when the injury has been inflicted." Gaylord Hospital v. Massaro, 5 Conn.App. 465, 467, 499 A.2d 1162 (1985). This action was commenced in 1989, more than six years after the December 31, 1975 closing date passed.

The defendants contend that the statute of limitations was tolled because of the defendants' continuing course of misrepresentations and promises to convey the property. In light of the specific refusal by the trial court to find that the defendants' conduct was malicious or that misrepresentations were made, we will not deprive the defendants of the "finality, repose and avoidance of stale claims and stale evidence" for which the statute of limitations was designed. Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 157 n. 20, 622 A.2d 536 (1993).

III

On their cross appeal, the defendants claim that the trial court improperly allowed ...