Opinion
AANCV156019263S
02-10-2017
Peter J. Francini, Trustee et al. v. Nicholas Riggione aka Nicholas A. Riggione
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John W. Moran, JUDGE TRIAL REFEREE.
The genesis of this controversy is a real estate transaction involving a residential building lot wherein Riggione is the seller and Francini is the buyer. Specifically, there are claims for breach of contract, denial of breach of contract, injunction, specific performance, private nuisance, counterclaim and attorneys fees.
Although the named plaintiff is Peter J. Francini, Trustee, Donald W. Anderson, Trustee, the real party in interest is Peter J. Francini, hereafter Francini. For all intents and purposes, he is the alter ego of the trust for which he serves as trustee.
The named defendant is Nicholas Riggione a/k/a Nicholas A. Riggione, hereafter Riggione.
Both Francini and Riggione testified extensively. Francini was comfortable in the witness box. His testimony was candid, forthright, direct, to the point and unhesitant. His testimony made sense. The court finds Francini credible.
Riggione was uncomfortable in the witness box. His testimony was evasive, unresponsive, hesitant, self-serving and half-truths. It was difficult to get a straight answer from him. The court finds that Riggione was not credible.
By way of background, Riggione was the owner and developer of a three-lot residential subdivision commonly known as Victoria Estates. These lots front on Gulf Street, Milford, Connecticut, and they also have frontage on Milford Harbor with views of Long Island Sound and Charles Island.
These lots are identified on an approved subdivision map as Lot 1 (southerly lot and unimproved); Lot 2 (with a residence dating back to the 1890s) which is in a state of disrepair/repair; and Lot 3, which is an unimproved building lot.
After gaining subdivision approval, Riggione posted all three lots for sale. Francini expressed interest in purchasing Lot 1, but Riggione explained that he was saving Lot 1 for his daughter. Riggione showed Lot 3 to Francini, who was pleased with its location and views of Milford Harbor and Long Island Sound. Francini and Riggione negotiated an agreed purchase price for Lot 3. This led to a " Real Estate Purchase and Sales Agreement" dated 5/4/12.
The parties and counsel for the parties agree that the said " Real Estate Purchase and Sales Agreement" dated 5/4/12 is immaterial to the controversy and the court so agrees.
This agreement was inadequate for the terms and purposes of the parties' agreement. Thus, the parties entered into a " Residential Real Estate Sales Agreement" (hereinafter Lawyer's Contract) dated the 21st day of August 2012.
" The rules governing contract formation are well settled. To form a valid and binding contract . . . there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). " To be enforceable, an agreement must be definite and certain as to its [essential] terms and requirements." (Internal quotation marks omitted.) Presidential Capital Corp. v. Reale, 231 Conn. 500, 506-07, 652 A.2d 489 (1994).
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other, and damages." (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn.Ap. 10, 15-16, 971 A.2d 90 (2009). " It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] . . . Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms." (Citations omitted; internal quotation marks omitted.) Auto Glass Express v. Hanover Insurance Co., 293 Conn. 218, 225-26, 975 A.2d 1266 (2009).
" A contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . [A]ny ambiguity in a contract must emanate from the language used by the parties . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so . . . if the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Citations omitted; internal quotation marks omitted.) Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 102-03, 84 A.3d 828 (2014).
The " Lawyer's Contract" was legally binding and enforceable between Riggione and Francini. This contract called for a real estate closing and delivery of the deed to Lot 3 on the 14th day of September 2012. The " Lawyer's Contract" also contained certain terms which included timeframes and due dates for the accomplishment of obligations and responsibilities of the parties. The obligations and responsibilities of the parties included the installation of concrete aprons, installation of a water line, installation of sanitary sewer hookup, leveling of topsoil stockpiled on Lot 2, and limited time access over Lot 2 to Lot 3. These due dates and timeframes were set and agreed to by the parties in contemplation of a closing and transfer of title on the 14th day of September 2012.
The anticipated closing did not occur because Riggione could not convey good title to Lot 3 free and clear of all legal impediments on the appointed date.
After the passage of approximately 18 months including a lawsuit by Francini versus Riggione claiming specific performance and conveyance of title pursuant to that " Lawyer's Contract" dated the 21st day of August 2012, a closing of Lot 3 took place on March 6, 2014 and title to Lot 3 passed to Francini from Riggione.
Contemporaneous with this closing, the parties entered into a " Post-Closing Agreement" dated the 6th day of March 2014. Attorney Marc Wallman (Francini's closing attorney) testified credibly that the purpose of the Post-Closing Agreement was basically furtherance of the parties' agreement as reflected in the " Lawyer's Contract." The Post-Closing Agreement was suggested by Attorney Joseph Dey (Riggione's closing attorney) because many dates in the Lawyer's Contract were stale. Although the Post-Closing Agreement was prepared by Attorney Joseph Dey, the court considers it to be a joint effort. Despite the testimony of Attorney Marc Wallman that the Post-Closing Agreement was merely an amendment of the Lawyer's Contract, Attorney Joseph Dey, on behalf of Riggione, contends that the " Post-Closing Agreement" is a stand-alone contract and a novation of the Lawyer's Contract.
" Novation may be broadly defined as a substitution of a new contract or obligation for an old one which is thereby extinguished . . . [The terms] '[n]ovation' and 'substitute contract' often are used interchangeably to refer to a subsequent contract . . . Our Supreme Court has stated that a novation is usually used with reference to instances in which a new party is introduced into the new contract, while substitute contract is the designation commonly employed to cover agreements between the same parties which supersede and discharge prior contract obligations." (Citations omitted; internal quotation marks omitted.) Willamette Management Associates, Inc. v. Palczynski, 134 Conn.App. 58, 71-72, 38 A.3d 1212 (2012).
" A recognized test for whether a later agreement between the same parties to an earlier contract constitutes a substitute contract looks to the terms of the . . . second contract. If it contains terms inconsistent with the former contract, so that the two cannot stand together it exhibits characteristics . . . indicating a substitute contract. [A]n essential element of any novation [or substitute contract] is the extinguishing of the original contract by substitution of a new one." (Citations omitted; internal quotation marks omitted.) Alarmax Distributors, Inc. v. New Canaan Alarm Co., Inc., 141 Conn.App. 319, 331-32, 61 A.3d 1142 (2013).
" As a general rule, when the new contract is in regard to the same matter and has the same scope as the earlier contract and the terms of the two are inconsistent either in whole or in a substantial part, so that they cannot subsist together, the new contract abrogates the earlier one in toto and takes its place, even though there is no express agreement that the new contract shall have that effect." (Emphasis omitted; internal quotation marks omitted.) Cameron v. Avonridge, Inc., 3 Conn.App. 230, 233, 486 A.2d 661 (1985).
This court concludes that the Post-Closing Agreement is an amendment to the Lawyer's Contract and not a novation thereof. It is not an abrogation of the Lawyer's Contract. It is not a stand-alone contract.
The court's conclusion is based on several reasons. The main thrust of the Post-Closing Agreement as indicated in the preamble is to update and clarify paragraph 40 of the Lawyer's Contract.
The terms of the Post-Closing Agreement are consistent with the terms of the Lawyer's Contract.
The Post-Closing Agreement does not change, frustrate or compromise the overall transaction of the parties.
To hold the Post-Closing Agreement as a novation would be self-serving to the defendant Riggione as he would be relieved of many obligations and responsibilities to which he agreed to in the Lawyer's Contract.
A novation would be an unjust and inequitable detriment to the plaintiff Francini as to such obligations and responsibilities he was legally entitled to rely on.
Therefore, the court considers the Lawyer's Contract and the Post-Closing Agreement as an integrated contract consisting of two documents.
A major issue in this case is the topsoil stockpiled on Lot 3, some of which was swapped/traded for commercial fill.
The first step in preparation of building the residence of Lot 3 is to clear Lot 3 of topsoil. Griffin, the site contractor, stockpiled topsoil in anticipation of future use in the back and front of Lot 3. Griffin also stockpiled topsoil which was not anticipated to be used for Lot 3 on Riggione's Lot 2.
After scarifying Lot 3 and stockpiling estimated amounts of topsoil on Lot 3 for future use, it was discovered that the condition of subsurface soil beneath the layer of topsoil was sandy and spongy. It was inadequate to support further construction and improvement of impervious areas such as driveways, walkways, backfilling, patios, pools, and other areas requiring concrete and regrading.
The remedy to cure this problem was to bring in commercial fill to Lot 3.
Griffin, who was in the soil business in addition to excavating, offered Francini to swap/trade commercial fill that he had on his yard in exchange for equal amounts of topsoil then stockpiled on Lot 3. Francini agreed to this arrangement. Griffin testified that about eight to ten truckloads of topsoil were traded/swapped for eight to ten truckloads of commercial fill deposited on Lot 3. This was an even exchange and no money was exchanged between Francini and Griffin for the swapping/trading of topsoil for commercial fill.
Griffin testified that the going price of unscreened topsoil in 2014 was $5.00/$6.00 per cubic yard, not including delivery charge. Griffin further testified that the going price for commercial fill in 2014 was $5.00/$6.00 per cubic yard not including delivery charge.
Toward the end of the site improvement, Griffin arbitrarily took two truckloads of unused topsoil from Lot 3 back to his yard in Seymour. This is contrary to the agreement of the parties pursuant to paragraph 40C of the Lawyer's Contract and paragraph 1 of the Post-Closing Agreement.
Said paragraphs provide . . . " All the excess subsurface gravel and topsoil material taken from Lot #3 during construction and not re-used for Lot 3, will be stockpiled in a Seller designated location on lot #2, to be used to repair and grade any damage caused to Lot #2 as a result of the access granted."
There was approximately 300 cubic yards of topsoil stockpiled on lot 2. There was testimony that it would take about 2 cubic yards of topsoil spread on the damaged areas to repair any damage. Obviously, there was ample topsoil to repair any damaged area.
Riggione claims that all topsoil swapped for commercial fill and trucked offsite should have been stockpiled on Lot 2 for Riggione's use.
Francini claims that it was permissible in accordance with the language of paragraph 40C and paragraph 1 to reuse the topsoil to swap for commercial fill.
The critical words of paragraph 40C and paragraph 1 are " re-use" and " for."
Reiterating from the previously boilerplate:
It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing] . . . Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms. (Citations omitted; internal quotation marks omitted.) Auto Glass Express v. Hanover Insurance Co., 293 Conn. 218, 225-26, 975 A.2d 1266 (2009).
A contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 102-03, 84 A.3d 828 (2014).
The common, natural and ordinary meaning of the words " re, " and " use" and " for" are:
re: Again; anew.
Use: 1. To put into service or employ for a purpose.
Law: Enjoyment of property, as by occupying or exercising it.The American Heritage College Dictionary, 3rd Ed., c. 1993.
Use: The employment or enjoyment of property; the act of employing; the act of using; applying to one's service; the state of being used, employed or applied.Ballantine's Law Dictionary, c. 1969.
Use: To make use of, to convert to one's service, to avail one's self of, to employ. N. Act of employing everything, or state of being employed; To put on, bring into action or service, to employ for or apply to a given service: especially to allow an end.Black's Law Dictionary, Fifth Edition, c. 1979.
For: Used to indicate the object, aim or purpose of an action or activity.The American Heritage College Dictionary, 3rd Ed., c. 1993.
There are no words in the language of paragraph 40C and paragraph 1 which limit or further define the common, natural, ordinary meaning of the words " re, " " use" and " for."
Applying the meaning of these words to the activity of swapping/trading topsoil for commercial fill, the court finds that the exchange between Francini and Griffin was within the purview of the terms of paragraph 40C and paragraph 1 and therefore permissible. The topsoil was USED FOR Lot 3.
The court notes that the use of the word " for" is critical to the court's analysis. The court finds that if the word " on" had been used instead of " for, " then the court would have had to find that the exchanged topsoil would not have been used " on" Lot 3 and therefore the exchange of topsoil for commercial fill would not be within the purview of paragraph 40C and paragraph 1 and therefore an impermissible exchange.
There remains the issue of Griffin arbitrarily taking two truckloads of topsoil back to Seymour, contrary to paragraph 40C and paragraph 1.
In order to avoid liability, Francini may argue that Riggione was emailed that two truckloads of unused topsoil (may now be characterized as excess topsoil in that it was unused after the conclusion of the exchange of topsoil for commercial fill) was left and available to him and did he want it. Riggione was asked to reply by 5:00 p.m. the next day. Riggione did not reply by the 5:00 p.m. deadline, so Griffin, on behalf of Francini, took the two truckloads of topsoil off site to Seymour. Francini may claim this is " fair warning" to Riggione and therefore should not be liable to Riggione for the value of two truckloads of topsoil. This " fair warning" may also be considered a polite ultimatum. Pursuant to paragraph 40C and paragraph 1, Francini did not have the discretion to truck unused topsoil offsite. It is unequivocal that paragraph 40C and paragraph 1 absolutely require that unused (excess) topsoil be deposited on Lot 2. There is no evidence or testimony that Riggione was at Lot 2 nor was there any evidence that access to the rear of Lot 2 was denied, impeded or precluded. Griffin, on behalf of Francini, had the right and implied permission to go on lot 2 for the purpose of depositing topsoil. Griffin merely had to drive over to Lot 2 and deposit the two loads of unused topsoil.
Riggione is awarded the sum of $192.00 as damages on his amended counterclaim.
Each truckload holds 16 cubic yards, therefore two truckloads equals 32 cubic yards at $6.00 per yard (32 x $6.00 = $192.00).
There are other issues remaining to be resolved by the court. Pursuant to paragraph 40A of the Lawyer's Contract and paragraph 2 of the Post-Closing Agreement, Riggione was obligated to install a driveway apron and curb for Lot 3. By his answer to Francini's Amended complaint (paragraph 10), Riggione admits that he did not install a driveway apron and curb. Francini engaged a contractor to install the driveway and curb at a cost of $3, 300.00. There is no contention that this sum was unreasonable. The court awards Francini the sum of $3, 300.00 as damages on his Amended Complaint on this claim.
Pursuant to the subdivision approval, Riggione was obligated for certain plantings along Gulf Street, specifically two trees along the front of Lot 3. These trees were bonded at $400.00 each for the subdivision approval. Francini saved Riggione the sum of $800.00 on the bond. The court awards Francini the sum of $800.00 as damages on this claim.
Francini, in his Plaintiff's Trial Brief, claims damages and reimbursement of the cost of renting concrete pumps because Riggione prevented access to Lot 3 across Lot 2. Paragraph 6 of Francini's Amended Complaint merely alludes to access across the Riggione property during construction. Paragraph 6 is incorporated in the Fourth Count--Breach of Contract. Paragraphs 18 and 19 of the Fourth Count claim damages relating to driveway aprons, street curbs and plantings along Gulf Street. The Fourth Count is void of any reference to damages for renting a concrete pump. The court is precluded from entertaining claims for damages which are not within the purview of Francini's Amended Complaint.
The court accepts the representation of both Attorney James Lenes and Attorney Joseph Dey that Riggione leveled, cleared and spread the topsoil stockpiled on Lot 2 and this is no longer an issue
The court further accepts the representation of both Attorney James Lenes and Attorney Joseph Dey that Riggione has pruned the lower limbs of the elm?/oak? tree and this is no longer an issue. However, Francini, in his post-trial brief dated October 31, 2016, seeks " An Order requiring the Defendant to prune the elm Tree, at least once per year." However, paragraphs 14, 18 and 19 of Francini's complaint referencing pruning the lower limbs of the oak tree do not suggest pruning the limbs of the oak tree in the future. Paragraph 40D of the Lawyer's Contract recites: " The lower limbs of the oak tree by the water's edge shall be pruned by the Seller . . ."
The testimony of both Francini and Riggione was that the intention of the pruning was to cut the limbs off.
It is a quizzical request that the limbs be pruned in the future because once they are cut off there is nothing to prune in the future.
The court affirms the conclusion that the Post-Closing Agreement is an amendment to the Lawyer's Contract and not a novation of the Lawyer's Contract. The two documents taken together are an integrated, two document, legally enforceable contract. All applicable provisions survive the closing and are enforceable.
In his trial brief, Francini requests this court issue " [a]n order requiring the defendant [Riggione], within sixty (60) days of the court's decision, to complete the installation of a new roof, windows, and exterior siding on the Lot 2 premises (417 Gulf Street, Milford, CT) in accordance with applicable building codes." Francini, however, has never sought this remedy in his Prayer for Relief. " When prosecuting a civil matter, the general rule is that a prayer for relief must articulate with specificity the form of relief that is sought . . . A party who fails to comply with this rule runs the risk of being denied recovery." (Internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., 30 Conn.App. 129, 133-34, 619 A.2d 863 (1993).
Practice Book § 10-27 provides: " A party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself indicates that the relief sought is equitable relief." " Where the nature of the case and the nature of the plaintiff's demand is such that equitable relief is clearly being sought, a specific demand for equitable relief is not necessary." (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn.App. 813, 859, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001) and 258 Conn. 947, 788 A.2d 96 (2001). In the present case, while the complaint makes clear that Francini is seeking equitable relief, specifically injunctive relief, it is only in the area of ordering Riggione to prune the oak tree and to remove or grade the fill on the Riggione property. Nowhere in the complaint does Francini allege facts regarding a new roof, windows, and siding on the defendant's house that would infer that he is seeking equitable relief regarding completion of a new roof, windows and exterior siding on the premises on Lot 2.
Further, Francini does not claim injunctive relief regarding repairing the residence on Lot 2 in his Prayer for Relief.
Francini's Prayer for Relief contains the timeworn phrase " [s]uch other relief within which equity and law appertain." This phrase is too amorphous and lacks specificity to be a claim for injunctive relief. The defendant could not possibly be put on notice that Francini is seeking relief regarding completion of the exterior of the residence on Lot 2. Based on the foregoing, the court declines to order injunctive relief regarding completion of the residence on Lot 2.
See Solomon v. Hall-Brooke Foundation, Inc., 30 Conn.App. 129, 133, 619 A.2d 863. Although this case speaks of a claim for money damages, the same principal applies to the instant case.
The court enters judgment in favor of Francini on his amended complaint as follows:
Damages in the amount of $3, 300.00 for Riggione's failure to install a driveway and curb for Lot 3.
Damages in the amount of $800.00 for Riggione's failure to install two trees in the frontage along Gulf Street on Lot 3.
The court further finds in favor of Francini on Riggione's amended counterclaim regarding the swapping of topsoil for commercial fill.
The court awards damages to Riggione on his amended counterclaim in the amount of $192.00 for two truckloads of topsoil trucked off site.