Opinion
No. CV085019674
October 5, 2010
MEMORANDUM OF DECISION
The plaintiffs, Scott Warner and Susan Warner, brought this action against the defendant, The Phuoc Long Buddhist Temple of Connecticut, Inc., on October 20, 2008. In the sole count of their complaint, the plaintiffs alleged that the defendant breached the terms of a contract for the purchase and sale of a parcel of land by refusing to return the plaintiffs' deposit after the plaintiffs exercised their right to cancel the contract. Specifically, the plaintiffs alleged that this cancellation right arose under the terms of the contract because, by the date specified in the contract, they were unable to obtain the necessary zoning approvals to operate a place of worship on the parcel. The plaintiffs seek damages, interest pursuant to General Statutes § 37-3a and a declaration that the contract is null and void.
In its answer, the defendant denied that it was in breach of the contract and interposed three special defenses: (1) The plaintiffs failed to make reasonable efforts to obtain the necessary zoning approvals; (2) the plaintiffs filed a zoning application in bad faith that was calculated to result in a denial and a triggering of their cancellation right; and (3) the plaintiffs breached the duty of good faith and fair dealing by filing the zoning application in bad faith and failing to make reasonable efforts to obtain the necessary zoning approvals. The plaintiffs denied all three special defenses.
The defendant also asserted a counterclaim with its answer. In the counterclaim, the defendant alleged that the plaintiffs' conduct, as stated in its special defenses, constituted a breach of contract. The defendant seeks an order permitting it to retain the plaintiffs' deposit as liquidated damages. The plaintiffs denied the material allegations of the counterclaim.
I
The action was tried to the court which finds the following facts. The plaintiffs, Scott Warner and Susan Warner, are the pastor and secretary, respectively, of a church called "The Bridge." In 2008, the church sought to expand itself and its related youth and community activities. During the summer of 2008, the plaintiffs became interested in purchasing property owned by the defendant. That property consisted of a single parcel identified as 1222 Fairfield Avenue and 41 Grove Street, Bridgeport, Connecticut (property).
For about fifty years prior to 1997, the property had been used as an owner-occupied funeral home. In 1996 or 1997, the defendant purchased it for use as a house of worship. The first floor housed a hall used for worship as well as restrooms. The second floor contained an apartment for the monk in charge, although other activities occurred there as well.
In 1997, the defendant obtained building permits to make interior alterations and to construct an exterior handicap ramp. On December 29, 1997, the defendant submitted an application for a certificate of zoning compliance with the zoning commission of the city of Bridgeport (commission). The application was incomplete and the commission never acted on it.
In the weeks prior to agreeing to purchase the property, Scott Warner inspected it several times. He discovered that the first floor housed a large room for worship, as well as a dining room, small kitchen, fireplace, bedroom and garage. The second floor contained additional bedrooms and some office space, but appeared to him to be occupied by more than one person. He also found evidence that four or five people lived in the basement. Also, the electrical wiring and plumbing appeared to him to be "problematical." As Scott Warner testified, his inspection revealed "a lot to be concerned about." Based on the condition of the property, he further testified that acquiring the property "looked like something we'd be foolish to pursue."
Nonetheless, on September 15, 2008, the plaintiffs entered into a contract with the defendant to purchase the property. Pursuant to the contract, the plaintiffs tendered a deposit of $23,750 to the defendant. The contract, under paragraph twenty-six, was made contingent on the plaintiffs' "obtaining the necessary municipal approvals . . . to [their] satisfaction and without conditions . . . from the appropriate authorities in the City of Bridgeport to operate a place of worship . . ." Paragraph twenty-six also provided that, if the plaintiffs were "unable to obtain the Approvals on or before October 1, 2008 (the `Zoning Approval Date')," then they had the right to cancel the contract and recover their deposit. Notably, the October 1, 2008 approval date was only fifteen days from the contract date.
After signing the contract, the plaintiffs requested that it be amended to provide an inspection contingency. The defendant refused to agree to such an amendment but represented that it would make certain repairs to the property to allay the plaintiff's concerns.
On September 29, 2008, the plaintiff, Scott Warner, applied for a certificate of zoning compliance for the property and tendered an $85 application fee. In the space on the application form following the words "Proposed Use of Above (describe in detail)," the plaintiff described the proposed use as "House of worship on the 1st and 2nd floors and offices for house of worship on the 1st and 2nd floors." The application described the presently existing use of the property as "House of Worship . . . 1st floor apartment on 2nd floor." The accompanying site plan depicted the uses on the first floor as a prayer hall, dining room, coat room, restrooms, kitchen, existing office and existing garage. It depicted the uses on the second floor as four offices, one classroom, one conference room, one existing full bathroom and one half bathroom.
Where the application asked "is pre-existing right claimed" the plaintiff answered "No." The defendant does not claim that this answer was incorrect.
On the same day that the plaintiff submitted the application for a certificate of zoning compliance, the application was returned by the zoning administrator, Dennis Buckley. In a letter of enclosure Buckley wrote: "Your Application For Certificate of Zoning Compliance can not be processed at this time. A review has determined that the second floor change in use will require waivers from the Zoning Board of Appeals and a Special Permit from the Planning and Zoning Commission.
"Your application and check are being returned to you. If you have further questions please don't hesitate to call."
As Buckley explained in his testimony, the plaintiffs' proposed inclusion of offices on the second floor, rather than an apartment, required additional parking spaces. The site plan submitted did not include these additional spaces.
Thereafter, on October 1, 2008, the plaintiffs, through their attorney, gave written notice to the defendant's attorney that their request for a certificate of zoning compliance had been denied and that they were exercising their right to terminate the contract. The letter further requested that the plaintiffs' deposit be returned immediately. A copy of Buckley's letter was enclosed. The defendant refused to return the deposit. The plaintiffs did not close on the purchase and sale of the property. Instead, on October 20, 2008, they brought this action for the return of their deposit.
The plaintiffs have already recovered the portion of their deposit, $4,250, that was still held in escrow. They now seek the remainder of their deposit, $19,500, as damages.
CT Page 18853
II A
The court will first address whether the plaintiffs have proven their prima facie case that the defendant breached the contract by failing to return their deposit after they exercised their right to cancel the contract. "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 party and damages." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).It is undisputed that there was a valid written contract between the parties. Whether there was a breach requires the court to interpret the contract. "A real estate contract, like any other agreement, must be considered as a whole and each part of it must be given effect if possible. The words used by the parties must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the agreement. If the terms of the contract are fairly susceptible of two or more interpretations, the one which is the more equitable, reasonable and rational is to be preferred." Lanna v. Greene, 175 Conn. 453, 458-59, 399 A.2d 837 (1978).
"As with any issue of contract interpretation, [the court begins] with the language of the contract." Poole v. Waterbury, 266 Conn. 68, 90, 831 A.2d 211 (2003). The relevant portion of the contract is paragraph twenty-six, which states: "ZONING CONTINGENCY. It is understood and agreed that the sale contemplated herein is expressly contingent on the Buyer, at its sole cost and expense, obtaining the necessary municipal approvals (i) to its satisfaction without conditions (or with conditions acceptable to Buyer in its sole discretion) and (ii) without any appeal taken (or if an appeal is taken, then such appeal is resolved to the Buyer's sole satisfaction), from the appropriate authorities in the City of Bridgeport to operate a place of worship at the property (collectively, the " Approvals"). In the event the Buyer is unable to obtain the Approvals on or before October 1, 2008 (the "Zoning Approval Date"), then the Buyer shall have the right to terminate this Agreement by providing written notice thereof to Seller's attorney on or before the Zoning Approval Date, whereupon this Agreement shall become null and void and all deposits paid by the Buyer shall be returned forthwith." (Emphasis in original.)
Thus, the duty of the defendant to return the plaintiffs' deposit was conditioned upon (1) the plaintiffs' inability to get the necessary zoning approvals to their satisfaction by October 1, 2008, and (2) the plaintiffs' providing the defendant with written notice by that date of their failure to obtain approvals and of their intent to cancel the contract. Since a party cannot expect performance of a conditional duty until the conditions are met; see Zivic v. Zivic, 26 Conn.App. 5, 9, 596 A.2d 475 (1991); the plaintiffs must have proved that these two conditions occurred, triggering the defendant's duty to return the deposit.
The court finds that the plaintiffs were unable to obtain the necessary approvals to operate a place of worship to their satisfaction. The court further finds that they provided written notice to the defendant's counsel, Attorney Louis C. Zowine, on October 1, 2008, of this fact and of their intent to cancel the contract. Therefore, the duty of the defendant to return the deposit arose on October 1, 2008.
Finally, there is no dispute that, since October 1, 2008, the defendant has never returned the $19,500 portion of the plaintiffs' deposit that it received. This was a breach of the defendant's duty under paragraph twenty-six. The amount of the plaintiffs' damages for this breach is $19,500. The court finds that the plaintiffs have proven their prima facie case for breach of contract.
B
The court turns to the issue of whether certain conduct alleged by the defendant bars recovery by the plaintiffs. The defendant alleged such conduct in its three special defenses: (1) failure to make reasonable efforts, (2) bad faith, and (3) breach of the duty of good faith and fair dealing. The second and third special defenses are similar and will be jointly addressed.
1.
The first special defense is that the plaintiffs failed to make reasonable efforts to obtain the necessary zoning approvals. At rock bottom, the defendant's argument is that, in the zoning application, on the line for "Proposed Use," the plaintiffs, under paragraph twenty-six, were reasonably limited to inserting the words "place of worship." The defendant contends that, by describing their proposed use as "House of worship on the 1st and 2nd floors and offices for house of worship on the 1st and 2nd floors," the plaintiffs failed to make reasonable efforts because they applied for approvals above and beyond those necessary for a "place of worship," resulting in an unnecessary and avoidable rejection of their application.
Where a real estate contract is made contingent on obtaining zoning approvals, the party seeking the approvals must make reasonable efforts to obtain them, or the failure of the contingency will not excuse their performance under the contract. Feinberg v. Berglewicz, 32 Conn.App. 857, 861, 632 A.2d 709 (1993). "Reasonableness . . . is an objective standard, involving an analysis of what a person with ordinary prudence would do given the circumstances, without accounting for any particular knowledge or skill." (Internal quotation marks omitted.) Jaramillo v. Case, 100 Conn.App. 815, 824-25, 919 A.2d 1061, cert. denied, 283 Conn. 902, 926 A.2d 670 (2007). Thus, if the plaintiffs failed to make reasonable efforts to obtain the necessary zoning approvals in accordance with paragraph twenty-six, their failure to obtain those approvals would not have given them the right to cancel the contract. The question for the court is, therefore, whether it was reasonable, in light of the language of paragraph twenty-six, for the plaintiffs to include approval for the use described as "offices for house of worship" as part of their application. Significantly, the contract did not limit the plaintiffs to the use of the words "place of worship" in any land use or other application. The contract did not prescribe any particular wording to which the plaintiffs were limited in seeking municipal approvals nor, substantively, did it prohibit the plaintiffs from seeking approval for accessory uses other than those the defendant had. "A term not expressly included will not be read into a contract unless it arises by necessary implication from the provisions of the instrument." (Internal quotation marks omitted.) Heyman v. CBS, Inc., 178 Conn. 215, 227, 423 A.2d 887 (1979).
Indeed, the contract did not even limit the plaintiffs to applying only for a use as a house of worship.
The court must determine whether "offices for house of worship" are included in the commonly understood meaning of the term "place of worship," as used in the contract. See Lanna v. Greene, supra, 175 Conn. 458 ("The words used by the parties must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the agreement"). If they are, then a reasonable person in the plaintiffs' position could have included them in the application and their inclusion would not have constituted a failure to make reasonable efforts.
A "place of worship" is synonymous with a church, temple, synagogue or mosque. Cf. State v. Cameron, 100 N.J. 586, 621, 498 A.2d 1217 (1985) ( Garibaldi, J., dissenting) ("[T]he standard dictionary definition [is] that a church is a `place of worship of any religion.' See Webster's New International Dictionary 404 (3d ed. 1971)"). But, as the plaintiffs rhetorically ask in their brief, "[i]s it just a big room with an alter [sic]?" The court agrees with the plaintiffs that a "place of worship" is not so limited.
While the question before the court is one of contract interpretation and not one of zoning law, the court's decision is informed by the law of accessory use in zoning jurisprudence. If "offices for house of worship" fits the definition of an accessory use for a "place of worship," it would be evidence that such offices are commonly understood to be part of a "place of worship."
The seminal case on accessory use in Connecticut is Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511-13, 264 A.2d 552 (1969), in which the court stated: "[An] accessory use [is] a use which is customary in the case of a permitted use and incidental to it . . . An accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use . . . The word `incidental' as employed in a definition of accessory use incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance . . . But `incidental,' when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of incidental would be to permit any use which is primary no matter how unrelated it is to the primary use . . . "Although [the word `customarily'] is used in this and many other ordinances as a modifier of `incidental,' it should be applied as a separate and distinct test. Courts have often held that use of the word `customarily' places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use of the land . . . In examining the use in question, it is not enough to determine that it is incidental in the two meanings of that word as discussed [previously]. The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use . . . In situations where there is no . . . specific provision in the ordinance, the question is the extent to which the principal use as a matter of custom, carries with it an incidental use so that as a matter of law, in the absence of a complete prohibition of the claimed incidental use in the ordinance, it will be deemed that the legislative intent was to include it." (Citations omitted; internal quotation marks omitted.) Loring v. Planning Zoning Commission, 287 Conn. 746, 753-54, 950 A.2d 494 (2008).
"The criteria that determine whether a use is accessory must, of necessity, be shaped by the primary use to which it is incidental. What is a reasonable accessory use for a private dwelling . . . is therefore not a helpful precedent for determining what is `customary with and subordinate to' a house of worship. A leading authority notes, in describing uses accessory to churches: `It has previously been commented upon that the concept of what constitutes a church has changed from a place of worship alone, used once or twice a week, to a church used during the entire week, nights as well as days, for various parochial and community functions . . . The question arises as to the extent to which the additional activities are covered by the cloak of immunity which traditionally has been extended to the church. The language of the courts in several cases indicates that it is difficult to find an activity which, if sponsored by the church, would not share the immunity.' 2 Rathkopf, The Law of Zoning and Planning, § 20.03, p. 20-53 (1978). Rathkopf cites as permitted accessory uses such far-ranging activities as `parking lots and playgrounds, convents, rectories, and monasteries . . . day care centers, drug rehabilitation centers, and softball fields.' Id., 20-54." Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 447-48, 418 A.2d 82 (1979); see also Minneapolis v. Church Universal Triumphant, Minneapolis/St. Paul Region, Inc., 339 N.W.2d 880, 889 (Minn. 1983); Shim v. Planning Board, 298 N.J. Super. 395, 408-09, 689 A.2d 804 (App.Div. 1997).
"Offices for house of worship" therefore fits the definition of an accessory use for a place of worship. It cannot be gainsaid that offices are incidental to a place of worship — that is, that such a use is subordinate to and reasonably related to worship activities. The allocation of space for offices within a house of worship is generally necessary for the proper and efficient functioning of the institution, whether to handle dues and expenses, administer budgets and personnel matters, meet with parishioners or manage the social or charitable activities of the institution. Furthermore, offices, being a crucial part of a properly functioning place of worship, are customary, since they are traditionally and commonly found at such institutions. It is evident, therefore, that the ordinary, commonly understood meaning of the term "place of worship" includes "offices for house of worship." Accordingly, it was reasonable for the plaintiffs to include "offices for house of worship" on its application.
Indeed, the defendant had also used space in the building for an office.
Moreover, that paragraph twenty-six conditioned the contract on the plaintiff's ability to obtain municipal approvals " to [ their] satisfaction and without conditions (or with conditions acceptable to [them] in [their] sole discretion)" (emphasis added); reflects that the parties contemplated that the plaintiffs' use would not necessarily mirror that of the defendant, which had used the second floor as living quarters. Rather, the plaintiffs would be permitted to tailor their use of the property, within the parameters of a "place of worship," to their church's particular needs.
Finally, the zoning application required the plaintiff not only to state the "proposed use" he planned to make of the property but to "describe [the use] in detail." A person with ordinary prudence could determine that he should state on the application that rooms previously used for an apartment were to be used as offices. Indeed, "a person with ordinary prudence . . . without accounting for any particular knowledge or skill"; Jaramillo v. Case, supra, 100 Conn.App. 824-25; could determine that if the application did not so state, it would fail to comply with the requirement that the proposed use be described "in detail," and might be rejected for that reason.
For these reasons, the court finds that the plaintiffs made reasonable efforts to obtain the necessary municipal approvals to operate a house of worship at the property and that they were unable to obtain the approvals before the zoning approval date. Accordingly, the court finds that the defendant has failed to prove its first special defense.
The court reaches this conclusion even if satisfaction of the zoning contingency is considered to be part of the plaintiff's case in chief.
2.
The essential allegations of the defendant's second and third special defenses are the same — that the plaintiffs, hoping to create a means to cancel the contract, filed an application in bad faith that they calculated would be rejected. Each of the two special defenses requires proof that the plaintiffs acted in bad faith.
The defendant alleged in its second special defense that the plaintiffs acted in bad faith by "[adding] elements having no relation to the property's `operation as a place of worship' as stated in the Contract and as mutually contemplated by the parties . . ." In its third special defense, the defendant repeated this allegation using different language and also repeated its claim that the plaintiffs failed to make reasonable efforts to fulfill the zoning contingency.
"Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citations omitted; internal quotation marks omitted.) Gupta v. New Britain General Hospital, 239 Conn. 574, 598, 687 A.2d 111 (1996).
The defendant argues that the real reason the plaintiffs desired to cancel the contract was that they were dissatisfied with the condition of the property. That Scott Warner inspected the property more than once before the plaintiffs signed the contract to purchase it casts doubt on this theory. Any dissatisfaction the plaintiffs had with the condition of the property arose prior to the time the contract was executed. It is true that the plaintiffs requested that the executed contract be amended to include an inspection contingency and that the defendant refused but instead agreed to make certain repairs. Nevertheless, the court is not persuaded that the plaintiffs cancelled the contract because of dissatisfaction with the condition of the property.
Even if the plaintiffs were subjectively motivated by something other than their failure to obtain the zoning approvals, that motivation did not render wrongful the legitimate exercise of their right to terminate the contract. In Zullo v. Smith, 179 Conn. 596, 597, 427 A.2d 409 (1980), the defendant entered into a contract with the plaintiff to purchase real estate subject only to his ability to obtain a building permit for an office building. After failing to obtain the building permit, the defendant sent the plaintiff a letter cancelling the contract and requesting the return of his deposit. Id. 596-97. The plaintiff refused to return the deposit, instead bringing an action for breach of contract. Id. The trial court found that the defendant had exercised due diligence in attempting to obtain the building permit but nonetheless found for the plaintiff based on its additional finding that the "defendant terminated the contract because he lost his prime tenant and not because of the inability to secure a permit." (Internal quotation marks omitted.) Id., 598. On appeal, the defendant claimed that he had the right to terminate the contract even though he did not state in his letter that he was motivated by his failure to obtain the building permit. Id. "The plaintiff contend[ed] that the defendant was precluded from terminating the contract because the reason the defendant sought to terminate was due to the loss of his prime tenant and that reason was not provided for in the contract." Id., 600-01. The Supreme Court reversed the decision of the trial court, stating: "The plaintiff . . . seeks to read the contract as providing that the defendant could terminate only if his sole reason for termination was the inability to obtain a building permit by January 31, 1974 . . .
"It is axiomatic that a party is entitled to rely upon its written contract as the final integration of its rights and duties . . .
"The defendant's right to terminate depended on the language of the contract, the defendant's conduct, and the events existing at the time the letter was written. Hence, assuming arguendo that the defendant's loss of a prime tenant motivated him to cancel, he nonetheless had the right to terminate because he had used due diligence in an effort to obtain the building permit and he could not have obtained it before January 31, 1974." (Citations omitted.) Id., 601.
The plaintiffs' application seeking approval for use of part of the property as church office space was reasonable. Nothing about the application itself, which was filled out completely and filed with the $85 fee, suggests that it was filed for the purpose of being rejected. Moreover, there is no evidence that the plaintiffs knew beforehand that their application was insufficient or that it would be rejected. The court finds that the plaintiffs did not act in bad faith and that the defendant has failed to prove either its second or third special defense.
B.
In its counterclaim, the defendant essentially repeats the allegations of its special defenses. It alleges that the plaintiffs failed to make reasonable efforts to obtain the zoning approvals and that they filed their application in bad faith for the purpose of being rejected, thus allowing them to cancel the contract. The court has found that the plaintiffs made reasonable efforts to obtain the zoning approvals and that they did not file the application in bad faith. Therefore, the court finds that the defendant has failed to prove its counterclaim.
C.
In their ad damnum, the plaintiffs seek interest pursuant to General Statutes § 37-3a. The defendant opposes the request in its brief. It argues that the court should not award interest because, even if its withholding of the deposit was wrong, it was not malicious or unreasonable because there was a genuine issue of fact as to whether the plaintiffs made reasonable efforts to obtain the zoning approvals.
General Statutes § 37-3a(a) provides in relevant part: "Except as provided in Sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable."
Section 37-3a was enacted "to compensate plaintiffs who have been deprived of the use of money wrongfully withheld by defendants." Paulus v. LaSala, 56 Conn.App. 139, 151, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). To that end, § 37-3a allows the court to award interest of up to ten percent per year.
"[T]he allowance of interest as an element of damages is . . . primarily an equitable determination and a matter lying within the discretion of the trial court." (Internal quotation marks omitted.) Ferrato v. Webster Bank, 67 Conn.App. 588, 596, 789 A.2d 472, cert. denied, 259 Conn. 930, 793 A.2d 1084 (2002). Nevertheless, "that `discretion is not unbounded' and the statute generally applies when a party claims that it was denied a specified sum owed to it under the terms of a contract. Travelers Property Casualty Co. v. Christie, 99 Conn.App. 747, 764, 916 A.2d 114 (2007) . . ." (Citation omitted; emphasis added.) McPhee Electric Ltd., LLC v. Konover Construction Corp., Superior Court, judicial district of New Haven, No. CV 07 5009694 (October 22, 2009). "Because an award of interest under § 37-3a is an equitable determination, it should be made in view of the demands of justice rather than through the application of any arbitrary rule." (Internal quotation marks omitted.) Hartford Steam Boiler Inspection Ins. Co. v. Underwriters at Lloyd's Cos. Collective, 121 Conn.App. 31, CT Page 18861 61, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010). "Among the factors which the court should consider in deciding to award prejudgment interest are: (1) whether the detention of the money is or is not wrongful under the circumstances; (2) whether the sum recovered was a liquidated amount; and (3) whether the party seeking prejudgment interest had `diligently presented' the claim throughout the course of the proceedings." Boulevard Associates v. Sovereign Hotels, Inc., 861 F.Sup. 1132, 1141 (D.Conn. 1994).
The court, having considered these factors, exercises its discretion in favor of awarding prejudgment interest. First, although the court is not persuaded that the defendant acted in bad faith or that its claim was frivolous, the court nevertheless finds that the defendant's withholding of the plaintiffs' money was wrongful. "[I]n the context of [§ 37-3a], `wrongful' is not synonymous with bad faith conduct. Rather, wrongful means simply that the act is performed without the legal right to do so." Ferrato v. Webster Bank, supra, 67 Conn.App. 596. The plaintiffs had a contractual right to the return of the deposit as of October 1, 2008 and the defendant failed to return that deposit. Second, this case involves a liquidated sum of money. "Whether a sum in certain circumstances has been liquidated may . . . be a useful although not necessarily controlling criterion." Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973). The plaintiffs gave the defendant $23,750 in deposit money pursuant to the contract, of which the defendant obtained and has wrongfully held $19,500. Third, the court finds that the plaintiffs have diligently presented their claim for interest. The plaintiffs requested interest in both their complaint and in their post-trial brief. See Alderman v. RPM of New Haven, Inc., 20 Conn.App. 566, 570, 568 A.2d 1068 (1990) (finding that plaintiff who had requested interest in both complaint and trial brief had "diligently presented his claim to the trial referee").
In fact, the Appellate Court, when faced with cases involving no bad faith, has upheld both denials and grants of interest awards. Maloney v. PCRE, LLC, 68 Conn.App. 727, 756, 793 A.2d 1118 (2002); compare, e.g., Hoye v. DeWolfe Co., 61 Conn.App. 558, 564, 764 A.2d 1269 (2001) (upholding trial court's denial of interest award where defendant withheld money wrongfully but in good faith based on counsel's erroneous advice that underlying agreement was enforceable), with Solomon v. Hall-Brooke Foundation, Inc., 30 Conn.App. 136, 147, 619 A.2d 866 (1993) (holding that trial court did not abuse discretion in awarding prejudgment interest despite issues being "hotly contested" at trial).
Having determined that the plaintiffs are entitled to prejudgment interest, the court must determine the rate of interest. "[T]the rate of interest under § 37-3a is not a fixed rate, but rather is the maximum rate of interest that a trial court, in its discretion, can award." Aubin v. Miller, 64 Conn.App. 781, 801 n. 7, 781 A.2d 396 (2001). As is common in civil cases, the parties have not submitted evidence as to the appropriate rate of interest. The court takes judicial notice that during the applicable period, interest rates of various sorts were at or near historic lows. In part V of Shelton v. Wiacek Farms, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. 4001956 (February 24, 2009, Levin, J.), a condemnation case, the court wrote:
This court's determination of a "reasonable and just" rate of interest is informed by a decision of the Ninth Circuit Court of Appeals, in which the court stated that "[t]o determine the appropriate rate of interest when payment of just compensation is delayed, the district court must examine what a reasonably prudent person investing funds so as to produce a reasonable return while maintaining safety of principal would receive . . . The district court should apply an interest rate based on evidence of the rate that would be generated by investment in a diverse group of securities, including treasury bills." Schneider v. County of San Diego, 285 F.3d 784, 793 (9th Cir. 2002) . . . in times of protracted low or negative growth, however, a reasonable and just annual rate of interest for a condemnee whose funds are being involuntarily withheld by the government under the power of eminent domain is at least equal to the weekly average one-year constant maturity yield of United States Treasury securities.
(Citations omitted.) Applying this methodology, the court finds that the appropriate interest rate is five percent.
Finally, the court must determine the appropriate time period for the award. Prejudgment interest commences on the date that the wrongful withholding began and terminates on the date judgment is rendered. Paulus v. LaSala, supra, 56 Conn.App. 150-51. The court finds that the date on which the wrongful detention of money began was October 1, 2008. Thus, the plaintiffs shall be entitled to interest for the period of time between that date and the date of judgment.
III
The court finds the issues for the plaintiffs on the complaint and on the counterclaim. Judgment may enter for the plaintiffs on the complaint in the amount of $19,500 together with prejudgment interest in the amount of $1,950 for a total award of $21,450 damages. Judgment shall also enter in favor of the plaintiffs on the defendant's counterclaim.