Francoline v. Klatt

600 A.2d 8, 26 Conn. App. 203, 1991 Conn. App. LEXIS 421
CourtConnecticut Appellate Court
DecidedDecember 10, 1991
Docket9659
StatusPublished
Cited by8 cases

This text of 600 A.2d 8 (Francoline v. Klatt) 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
Francoline v. Klatt, 600 A.2d 8, 26 Conn. App. 203, 1991 Conn. App. LEXIS 421 (Colo. Ct. App. 1991).

Opinion

Foti, J.

The named defendant1 appeals from the judgment rendered against her on her counterclaim alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-110q.2 The defendant filed the counterclaim in response to the plaintiff’s action for specific performance of an alleged contract for the sale of certain of [205]*205the defendant’s real property. The defendant claims that the trial court applied an incorrect legal standard and that it failed to conclude from the facts found that a violation of CUTPA had been established as a matter of law. The defendant also claims that the court ruled incorrectly on certain evidentiary matters.3 We reverse the judgment.

The trial court found the following facts. The defendant owns a parcel of commercially zoned land in the town of Avon. On the property, which is known as 37 West Main Street, there is a freestanding garage and an old house that was used for offices. The plaintiff owns the property that abuts the defendant’s property to the west and south, and George Recck owns the adjacent real estate to the east of the defendant’s land. All three properties front on West Main Street.

The defendant purchased 37 West Main Street in 1982. She is an attorney admitted to the practice of law in this state and had conducted her law practice from that location until 1986, when she relocated to South Carolina. Both the plaintiff and Recck are in the real estate development business. The defendant has been renting the garage at 37 West Main Street to the plaintiff for the last five to six years. In either 1983 or 1984, the plaintiff approached the defendant and indicated that he was interested in either purchasing her property or entering into a joint venture to develop it. Nothing came from these discussions. In September, 1988, the plaintiff contacted the defendant to see if she was interested in selling 37 West Main Street to him. After a number of telephone calls, they orally agreed on a purchase price of $400,000.

By letter dated October 18, 1988, the plaintiff sent his version of the parties’ telephone agreement and [206]*206requested that she sign the letter. The defendant made two changes to the proposal and initialed both changes. The first change was an addition stating “Buyer to pay Connecticut Transfer Taxes.” The second change substituted October for November as the time of the expiration of the leases of the buildings on the premises. The defendant then signed the letter as she had changed it and returned it to the plaintiff with an undated cover letter which the plaintiff received on November 3, 1988. He took no further action on the letter itself. The proposed agreement was by its terms subject to “a mutually agreeable Bond for Deed.” Ten percent of the purchase price of $400,000 (i.e., $40,000) was payable at the signing of a mutually agreeable bond for deed by November 11, 1989.

The plaintiff began discussing the development of the referenced property with one of his tenants, who claimed to need more space than the plaintiff had at his property to the west of the subject property. On January 7, 1989, the plaintiffs attorneys sent the defendant an unsigned “Purchase and Sales Agreement” for her review, enclosed with a cover letter. Shortly thereafter, the plaintiff telephoned the defendant and the two discussed the possibility of a tax free exchange of realty at no cost to the plaintiff.

On January 25, 1989, the defendant returned the “Purchase Agreement” which she had amended in four respects. First, she deleted a clause. Second, she added a sentence making the purchaser liable for transfer taxes and fees. Third, she removed a paragraph entitled “Purchaser's Default” and inserted a new paragraph. Last, she added a paragraph marked “Tax Free Exchange.” In addition, she completed a “Rent Roll” and a “Tenant Collateral Agreements” as requested by the plaintiff’s attorney. She signed the changed agreement, had her signature witnessed and notarized, and sent the changed agreement to the plaintiff with [207]*207a cover letter dated January 25, 1989. The plaintiff received this correspondence on January 30, 1989.

The parties spoke on the telephone within a few days and discussed the changes that the defendant had made. They also discussed a sewer lien which was not mentioned in the agreement. Finally, they discussed the tax free exchange by which the plaintiff would purchase some property in South Carolina and swap it for the subject property.

On February 8, 1989, the plaintiff sent the defendant the “Purchase and Sales Agreement” signed by him, which had been witnessed and notarized. The plaintiff had initialed the defendant’s changes, crossed out one full paragraph, inserted another, and added a clause to another section. The defendant did not initial these changes, did not sign the document as changed by the plaintiff and did not return the document to the plaintiff. In late February, 1989, the plaintiff attempted to call the defendant but was unable to reach her. He left a message for her to call him. On February 27, 1989, the defendant returned the plaintiff’s call. He was not there. She left a message that she did not agree with his changes to the agreement and she instructed him to call her. The two did not talk further until the middle of March, when the plaintiff discovered that the defendant planned to sell the real estate to Recck and not to the plaintiff.

In mid-February, 1989, Recck had telephoned the defendant in regard to the sale of the realty in question. He had a bond for deed to purchase the realty to the east of the subject property which he purchased shortly thereafter. The defendant told Recck that the property was for sale at $425,000. Recck told the defendant that he would get back to her. After he had an engineer do a sketch, he called the defendant and accepted her offer. He then called his attorney to draft [208]*208a bond for deed which he signed before a notary, his attorney, and witnesses. He then sent this document to the defendant on February 15, 1989. The bond for deed called for a closing on or before April 15, 1989. The two parties then executed a “Purchase and Sales Agreement” which provided that the closing would take place on April 15, 1989. To date, no closing has occurred.

The plaintiff had been told by his attorney to get the defendant’s signature on his changes to the agreement, and the plaintiff had sent the agreement to the defendant for her signature. The plaintiff, however, signed the altered agreement on the same pages as the defendant had signed earlier, prior to the changes. On the same date, he mailed the agreement to the defendant for her signature. In other words, the agreement now bearing the defendant’s signature had been changed after she signed it.

On March 16,1989, the plaintiff learned from one of the defendant’s tenants in the building on the subject premises that the defendant had agreed to sell the realty to Recck. On March 21, 1989, the plaintiff recorded the altered purchase and sales agreement on the town of Avon land records. On April 7, 1989, he commenced an action for, inter alia, specific performance of the alleged contract against the defendant, and recorded a lis pendens on the land records. The defendant demanded that the plaintiff remove the “agreement” from the land records and discharge the lis pendens. The plaintiff refused to do so.

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Cite This Page — Counsel Stack

Bluebook (online)
600 A.2d 8, 26 Conn. App. 203, 1991 Conn. App. LEXIS 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francoline-v-klatt-connappct-1991.