Opinion
MMXCV166015551
12-01-2016
Chabad at Wesleyan, Inc. v. Raimond Duy Baird Memorial Association, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE
Julia L. Aurigemma, J.
The defendant, Trevor Davis Commercial Real Estate, LLC (" Trevor Davis") has moved to strike the complaint on the grounds that it fails to state a cause of action.
Allegations of the Complaint
The complaint alleges that the plaintiff, Chabad at Wesleyan, Inc., is a domestic non-profit Connecticut corporation, the defendant, Raimond Duy Baird Memorial Association, Incorporated (" Association") is a corporation with a business address in Middletown, Connecticut and the defendant, Trevor Davis, is a limited liability company also located in Middletown, Connecticut. It further alleges that on April 1, 2016 Association, acting through Trevor Davis, offered for sale or lease improved real property in Middletown at 184 High Street (" the Property").
The complaint annexes Exhibit B, which is a Trevor Davis advertisement of the Property which contains two photographs of the property and various bullet points including: " > Over 9, 000 SF Finished; > Downtown Village District Zoning; > $599,000 or $5,000/M." The complaint further alleges:
7. On or about April 12, 2016, while said offer[the advertisement] was still in effect, the Plaintiff, Chabad at Wesleyan, Inc. Agreed to purchase the premises without any conditions or contingencies, upon transfer of good marketable title thereto, for the full asking purchase price of $599,000.00. A copy of the Plaintiff's agreement to purchase is annexed hereto and identified as Exhibit C .
The so-called agreement to purchase was a letter from Attorney Mark Balaban to defendant Trevor Davis, which stated, in pertinent part:
Please be advised that this office represents the interests of Chabad at Wesleyan in connection with the proposed purchase of 184 High Street, Middletown, CT. Chabad at Wesleyan is hereby prepared to tender a full price offer to purchase the above referenced property for Five Hundred Ninety-Nine Thousand ($599,000.00) Dollars.
The purchase price offered is unconditional as it is a cash offer without any contingencies nor inspections, subject only to the customary provisions of a standard commercial purchase and sale agreement for Middlesex County . The seller must convey a marketable title. Chabad at Wesleyan is prepared to close on or before May 15, 2016.
Kindly advise the undersigned with regard to the drafting of the purchase and sale agreement. In the event that the seller does not object, this office will be pleased to draft the proposed agreement for the seller's review.
Accordingly, Chabad at Wesleyan has tendered with this correspondence a check in the amount of One Hundred (sic) ($100,000.00) Dollars (Check #148), made payable to Trevor Davis Commercial Real Estate, LLC escrow account. Please deposit same in your escrow account where the funds shall be held until such times as the parties have a fully executed purchase and sales contract .Complaint, ¶ 7. Emphasis added.
The complaint goes on to allege that the defendant owner, Association, acting through its agent, Trevor Davis, notified that plaintiff via e-mail that the " Defendant owner had repudiated the agreement and would not accept the balance of the purchase price or transfer and convey the Premises to the Plaintiff in accordance with the terms of the agreement." Complaint ¶ 12. The complaint incorporates the aforementioned e-mail as Exhibit E. That e-mail is dated April 22, 2016 and is from Trevor Davis to Mark Balaban and states:
Hi Mark:
Sorry I couldn't return you call today, I had back to back appts.
Thank you again for your offer to purchase. However, the Seller has it for sale or lease, and they prefer to lease it. If we haven't leased it in a few weeks we will reconsider your offer to purchase.
The complaint seeks specific performance compelling Association to convey the property to the plaintiff, a decree vesting title and possession of the Property in the plaintiff, an injunction from conveying, transferring, encumbering or disposing of the property, and money damages.
Discussion of the Law and Ruling
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Faulkner v. United Techs. Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The Statute of Frauds may be raised by a motion to strike when the alleged agreement falls within those categories of agreements required to be in writing. Carabetta Construction v. Martinez, 42 Conn.L.Rptr. 300, Judicial District of New Haven at Meriden (November 9, 2006, Taylor, J.); Wolf v. Giosa, 2006 WL 3041923, Judicial District of Hartford (October 6, 2006, Tanzer, J.).
Connecticut General Statutes § 52-550(a) provides in pertinent part:
(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged : . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property; . . .
Emphasis added.
" The primary purpose of the Statute of Frauds is to provide reliable evidence of the existence and the terms of the contract . . ." Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 302, 912 A.2d 1117 (2007). " The party to be charged within the meaning of the statute, is the party against whom the contract is to be enforced . . ." Kasper v. Anderson, 5 Conn.App. 358, 362, 498 A.2d 132 (1985). In this case there is no claim that any contract was signed by any defendant. Moreover, the letter from the plaintiff's attorney, the so-called agreement, is clearly not an agreement at all. That letter makes two references to the future written purchase and sale agreement to be signed as well as a reference to unspecified " customary provisions" to be included in said agreement. If the execution of a future contract was an essential term of the parties' agreement, neither party would be bound to proceed with the sale in the absence of that contract." (Internal quotation marks omitted.) Friedman v. Donenfeld, 92 Conn.App. 33, 39-40, 882 A.2d 1286, 1290 (2005).
The plaintiff has filed no substantive objection to the motion to strike. It has only objected on the grounds that the motion to strike was untimely. The court disagrees. Connecticut General Statutes § 52-121(a) provides: " Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending." The motion to strike was filed on July 20, 2016 and the motion for default for failure to plead was not acted on (denied) until July 23, 2016, so the motion to strike was timely filed.
Even when taken in a manner most favorable to the plaintiff, the complaint alleges only that the plaintiff offered to enter into an agreement to purchase the Property, but fails to allege that any agreement signed by the defendants ever existed. This action is barred by the Statute of Frauds. Therefore, the motion to strike is granted.