Aubin v. Miller

781 A.2d 396, 64 Conn. App. 781, 2001 Conn. App. LEXIS 407
CourtConnecticut Appellate Court
DecidedAugust 7, 2001
DocketAC 20744
StatusPublished
Cited by27 cases

This text of 781 A.2d 396 (Aubin v. Miller) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aubin v. Miller, 781 A.2d 396, 64 Conn. App. 781, 2001 Conn. App. LEXIS 407 (Colo. Ct. App. 2001).

Opinion

Opinion

FOTI, J.

The defendant Munson Builders, Inc.,1 appeals from the judgment of the trial court, rendered [783]*783after a trial to the court, in favor of the plaintiffs, Robert Aubin and Denyse Aubin. On appeal, the defendant claims that the court improperly (1) concluded that the plaintiffs were diligent in their attempt to secure a mortgage, (2) construed the terms of paragraph twenty-three of the parties’ contract, (3) concluded that the parties’ initial letter of agreement did not control the escrow agreement, (4) concluded that the defendant had recouped moneys that it had spent on changes in the construction plan that were requested by the plaintiffs, (5) failed to allow the defendant the opportunity to prove the cost of building a larger structure, (6) found that the defendant had converted the plaintiffs’ money and (7) awarded interest on the entire amount of the down payment and stated in its memorandum of decision that the defendant would have to pay offer of judgment interest to the date of satisfaction of the judgment. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. In June, 1996, the plaintiffs met with the president of the defendant corporation, Calvin Munson, to discuss the purchase of certain real property located in Fairfield and the construction of a home thereon. On July 23, 1996, the parties entered into a sales agreement. The sales agreement provided for a down payment of $74,900, which included $7490 that was paid when the plaintiffs submitted an offer to purchase on July 2,1996, and $5000 paid pursuant to the terms of a letter of agreement dated July 2, 1996. The plaintiffs paid the remaining balance due on the down payment to the defendant after deducting the $12,490 that they already had paid.

Paragraph nineteen of the sales agreement contained a mortgage contingency clause on which the effectiveness of the contract depended. The mortgage contingency clause provided: “It is expressly understood and agreed by the parties hereto that this contract is condi[784]*784tioned on the Purchaser being able to obtain a mortgage loan in the amount of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00) from a recognized lending institution which loan shall be for a period not to exceed thirty (30) years and shall bear interest at the prevailing rate of said institution. Purchaser shall make prompt and immediate application with diligence, including the providing of all documentation necessary to support said application promptly. If Purchaser is unable to obtain a commitment for such loan on or before August 16, 1996, and if Purchaser so notifies Seller in writing care of James A. Miller, Jr., Attorney at Law, 140 Sherman Street, P.O. Box 826 Fairfield, Connecticut, 06430, on or before August 16, 1996, at 5:00 p.m., then this contract shall be null and void and the Purchaser shall be entitled to the return of all sums paid by the Purchaser on account of this contract, except $250.00 to cover the cost of preparing this contract. Should the Purchaser fail to provide such notice or fulfill the foregoing requirements, this contract shall continue in full force and effect, and the rights and obligations of the parties hereunder shall be as if this paragraph did not appear in this contract.”

On July 30, 1996, Robert Aubin sent a fully executed copy of the sales agreement to People’s Bank, a recognized lending institution. On August 6, 1996, Robert Aubin completed additional documents as requested by People’s Bank, including additional credit and employment release authorization forms, a borrower’s certification and authorization, another copy of the mortgage application and a rate lock-in agreement. He also advised the bank of the August 16, 1996 deadline.

On August 8,1996, Robert Aubin’s employer, Reader’s Digest, prepared an employment verification form, and its senior vice president for strategic planning and human resources sent the bank a letter confirming that Robert Aubin would be given an interest free corporate [785]*785loan ranging from $150,000 to $250,000 to assist in his relocation. That loan would be secured by a second mortgage on the property.

On August 13, 1996, Reader’s Digest terminated Robert Aubin’s employment. He thereafter advised his attorney, Kathryn Hunter, and the account officer at People’s Bank, Mary Neidermeier, that Reader’s Digest had terminated his employment. On August 14, 1996, Hunter notified the defendant and its attorney, James A. Miller, Jr., by facsimile and registered mail that the plaintiffs were unable to secure a mortgage and, therefore, that they sought the return of all sums paid under the sales agreement pursuant to paragraph nineteen of the sales agreement.

Despite the plaintiffs’ repeated demands, the defendant refused to return the plaintiffs’ deposit. On August 10, 1998, the plaintiffs commenced the present action by service of process upon Munson Builders, Inc., and its attorney, James A. Miller, Jr., who was the escrow agent under the sales agreement. The first count of the complaint alleged breach of contract against the defendant. The second count alleged breach of the escrow agreement by Miller. The third count of the complaint alleged violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., against Miller. The fourth count of the complaint alleged theft against the defendant and Miller, and the fifth count of the complaint alleged conversion against the defendant and Miller. After a trial to the corut, the court rendered judgment in favor of the plaintiffs and against the defendant as to counts one and five. The court further rendered judgment in favor of Miller on all counts, and in favor of the defendant as to the fourth count. The court awarded damages to the plaintiffs in the amount of $74,650, plus prejudgment interest in the amount of $26,749.58 and offer of judgment interest in the amount of $20,006.03, for a total amount of [786]*786$121,405.61. The defendant appeals from that judgment. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly determined that the plaintiffs were diligent in their application for the required loan. We disagree.

Before we address the defendant’s claim, we first articulate the applicable standard of review. “If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 606, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). “With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate.” Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265, 747 A.2d 1063 (2000). “The trial court’s legal conclusions are subject to plenary review. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision ....

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Medical Device Solutions, LLC v. Aferzon
207 Conn. App. 707 (Connecticut Appellate Court, 2021)
Larmel v. Metro North Commuter Railroad Co.
Connecticut Appellate Court, 2020
Li v. Yaggi
198 A.3d 123 (Connecticut Appellate Court, 2018)
Jepsen v. Camassar
187 A.3d 486 (Connecticut Appellate Court, 2018)
Rana v. Terdjanian
46 A.3d 175 (Connecticut Appellate Court, 2012)
McCoy v. Brown
24 A.3d 597 (Connecticut Appellate Court, 2011)
Coster v. Duquette
990 A.2d 362 (Connecticut Appellate Court, 2010)
Urich v. Fish
965 A.2d 567 (Connecticut Appellate Court, 2009)
Jaramillo v. Case
919 A.2d 1061 (Connecticut Appellate Court, 2007)
Label Systems Corp. v. Samad Aghamohammadi
852 A.2d 703 (Supreme Court of Connecticut, 2004)
State v. Hooks
832 A.2d 690 (Connecticut Appellate Court, 2003)
Durso v. Vessichio
828 A.2d 1280 (Connecticut Appellate Court, 2003)
Miller v. Guimaraes
829 A.2d 422 (Connecticut Appellate Court, 2003)
Tuxis-Ohr's, Inc. v. Gherlone
818 A.2d 799 (Connecticut Appellate Court, 2003)
ARB Construction, LLC v. Pinney Construction Corp.
815 A.2d 705 (Connecticut Appellate Court, 2003)
Koch v. Stop Shop Company, Inc., No. Cv-02-0561277 S (Feb. 11, 2003)
2003 Conn. Super. Ct. 2245 (Connecticut Superior Court, 2003)
Fontaine v. Colt's Manufacturing Co.
814 A.2d 433 (Connecticut Appellate Court, 2003)
Breiter v. Breiter, No. Fa 99-0720705s (Jan. 21, 2003)
2003 Conn. Super. Ct. 1116 (Connecticut Superior Court, 2003)
Town of Southington v. Commercial Union Insurance
805 A.2d 76 (Connecticut Appellate Court, 2002)
Wren v. MacPherson Interiors, Inc.
794 A.2d 1043 (Connecticut Appellate Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
781 A.2d 396, 64 Conn. App. 781, 2001 Conn. App. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aubin-v-miller-connappct-2001.