Slattery v. Maykut

• Decision Date: 19 September 1978
• Citation: 405 A.2d 76,176 Conn. 147
• Court: Connecticut Supreme Court
• Parties: Gary SLATTERY et al. v. August P. MAYKUT et al. August P. MAYKUT v. Gary SLATTERY et al.

Page 76

405 A.2d 76

176 Conn. 147

Gary SLATTERY et al. v. August P. MAYKUT et al.

August P. MAYKUT v. Gary SLATTERY et al.

Supreme Court of Connecticut.

Argued May 4, 1978.

Decided Sept. 19, 1978.

Helen F. Krause, Trumbull, with whom on brief, was Raphael Korff, Bridgeport, for appellants-appellees (defendants in the first case) and appellant-appellee (plaintiff in the second case).

J. Daniel Sagarin, Bridgeport, with whom, on brief, was Michael L. Shapiro, Fairfield, for appellees-appellants (plaintiffs in the first case) and appellees-appellants (defendants in the second case).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and RUBINOW, JJ.

LONGO, Associate Justice.

This is an appeal and cross appeal from a judgment rendered in each of two cases after a combined trial. The plaintiffs in the first case, Gary and Eileen Slattery, instituted an action against the defendants, August P. and Helen F. Maykut, seeking damages for breach of a contract to convey residential real estate, specific performance, and damages for fraud. In the second case, the plaintiff, August P. Maykut, sought from the defendants, Gary and Eileen Slattery, damages for the use and occupancy of the real estate, an award for damage to the real estate, and punitive damages. The Slatterys were awarded $15,300 in damages, with interest, on the breach of contract count. August Maykut was awarded $7000 for the Slatterys' use and occupancy of the premises and $2000 for damage to the premises.

In both cases the parties, hereinafter referred to as the Slatterys and the Maykuts, have assigned numerous errors in the court's finding; we shall deal with the claims of the Slatterys first. The Slatterys assign as error the finding without evidence of certain facts crucial to the Maykuts' claim for damage to the real estate. The burden of printing evidence to show that no error was committed has clearly been sustained by the Maykuts; the appendix to their brief discloses that the challenged findings are reasonably supported by the evidence. Morningside Assn. v. Morningside Development, Inc., 172 Conn. 60, 63, 372 A.2d 141.

The Slatterys next contend that the court erred in reaching conclusions as to the reasonable value of their use and occupancy of the real estate in question, in that those conclusions are contrary to law and unsupported by the findings. It is futile to assign error involving the weight of testimony or the credibility of witnesses. Hartford-Connecticut Trust Co. v. Putnam Phalanx, 138 Conn. 695, 699, 88 A.2d 393. We find that the trial court's conclusions were correct in law; see 5 Corbin, Contracts, § 1115; and consistent with the facts found. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58.

The Slatterys finally assign error in the court's overruling of their claims of law. Two of those claims were neither briefed nor pursued at oral argument. ¹ Thus, we treat them as abandoned. Stoner v. Stoner,163 Conn. 345, 348, 307 A.2d 146. The remaining claims of law warrant discussion at some length and will be addressed later.

The Maykuts assign as error the court's failure to find admitted or undisputed facts, certain of the court's findings as not supported by the evidence, the court's overruling of their claims of law, and certain of the court's conclusions. ² In so doing, the Maykuts claim error by the court in connection with virtually every paragraph of their draft finding, a practice unfailingly discountenanced by this court. Arcari v. Dellaripa, 164 Conn. 532, 534, 325 A.2d 280. Some of the facts claimed are not admitted or undisputed. Salvatore v. Milicki, 163 Conn. 275, 277, 303 A.2d 734. In most instances, the facts sought to be added are already included in the finding, explicitly or implicitly, and in the remaining instances the facts claimed would not affect the conclusions of this court. ³ Walsh v. Turlick, 164 Conn. 75, 77, 316 A.2d 759.

The Maykuts' assignments of error relating to facts claimed to be found without evidence are without merit, except for the claim that there was no evidence to support the court's award of $2000 for damage to the premises by the Slatterys. At trial the Maykuts called a contractor to testify to the amount of property damage. He produced a list of the damaged items and an overall estimate of the cost of repairs, $4100. No allocation was made as to the cost of each item. The court found that the itemized list of needed repairs was accurate but that $4100 was in excess of the reasonable cost for making the repairs, and assessed damages at $2000.

As it does not appear there was any evidence to support the $2000 figure, we agree with the Maykuts that the award cannot stand. Damages must be based on evidence. Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553. It does not follow, however, that the court was required to accept the estimate of $4100 offered by the Maykuts' contractor merely because no other estimate was offered. The weight and credibility of the contractor's testimony was for the court to determine. Willametz v. Goldfeld, 171 Conn. 622, 628, 370 A.2d 1089. Since the record does not support a definite award for property damage, a new trial of that issue is necessary. See Bianco v. Floatex, Inc., 145 Conn. 523, 525, 144 A.2d 310; Sidor v. Kravec, 135 Conn. 571, 575, 66 A.2d 812.

I

As may appear from our discussion thus far, the facts underlying these appeals are complex: On or about September 30, 1971, August Maykut leased to the Slatterys for one year a twelve-room house in Greenwich. The lease, which was later recorded, was drafted by Helen Maykut, an attorney-at-law. The terms of the lease contained an option allowing the Slatterys to purchase the premises for $165,000, after a payment of $15,300 to exercise the option, which sum would be applied against the purchase price as a down payment. ⁴ The Slatterys moved into the house in October of 1971 and paid the rent at the rate of $1000 per month through October 10, 1972. When the Slatterys moved into the house, it was in excellent condition, completely redecorated. The total rental paid was $12,000, which was to be applied as a credit on the price of the house if the Slatterys exercised their option and purchased the premises.

On October 10, 1972, the date the lease expired, the Slatterys paid to Helen Maykut $15,300 for the exercise of their option to purchase, which sum was and continues to be held in escrow by the Maykuts' attorneys. The lease and option agreement did not provide for payment or nonpayment of rent between October 10, 1972, and the time of closing. The Slatterys held over on the premises and had the beneficial use, enjoyment and possession of the property without paying rent from October 10, 1972, until some time in May, 1973. During that period they were served with two notices to quit.

On April 10, 1973, the date stated in the option for the purchase of the premises, the Slatterys tendered at the closing a certified check in the amount of $140,000. The closing did not take place, however, because of a claim upon the land of Karen Ivey, the former owner of the property. She had been represented by Helen Maykut in a divorce proceeding, and, as a result of a trust arrangement between Karen Ivey, Helen Maykut and August Maykut, Karen Ivey conveyed the premises to August Maykut, Trustee, by a deed which was executed and recorded in the Greenwich land records on June 20, 1969. The Maykuts informed Gary Slattery of the trust agreement disclosing Karen Ivey's equity in the land at the time of the execution of the lease option. Sometime later, the property was conveyed by August Maykut, as trustee, to himself individually. Thereafter Karen Ivey brought suit against the Maykuts, alleging fraud in the conveyance, and placed a real estate attachment on the house and property. ⁵ The Slatterys had actual knowledge of this claim, and were advised by counsel that the claim represented a cloud on the title and that a release or quitclaim deed from Karen Ivey would be a necessary precondition to closing the deal. Because August Maykut was unable to obtain the quitclaim deed from Karen Ivey, the closing did not take place.

The closing was rescheduled for April 17, 1973, by agreement of the parties, extending the time for performance of the lease option. On that date, the Slatterys were ready, willing and able to close, but again August Maykut offered no deed from Karen Ivey. Thus the closing fell through a second and final time. Thereafter, August Maykut visited the premises. He found that the Slatterys appeared to have vacated the premises and that the house was substantially damaged and badly in need of repair.

The Slatterys instituted their action against the Maykuts on May 10, 1973, and the Maykuts brought their suit shortly thereafter. The Maykuts demurred to the Slatterys' complaint on the ground that the lease and option agreement forming the basis of the damages and specific performance counts was unenforceable under the Statute of Frauds. The Superior Court (Irving Levine, J.) overruled this demurrer on November 6, 1973, essentially finding that the lease and option satisfied the Statute of Frauds.

Notwithstanding the overruling of their demurrer in the Superior Court the Maykuts filed suit in the United States District Court for the District of Connecticut, seeking to have the same lease and option declared invalid. Service was made on the Slatterys. They never appeared or answered and the Maykuts obtained a default judgment against them, decreeing that the lease option was void, on February 5, 1974. ⁶ Thereupon the Maykuts moved for summary judgment in the Superior Court on the ground that the federal court decision was res judicata, conclusively establishing the invalidity of the lease option, and that the Slatterys were thereby estopped from maintaining an action premised upon the invalid option. The Superior Court (Tedesco, J.) agreed, in part, and held that partial summary...