Chiulli v. Chiulli ( 2015 )

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APPENDIX
ROBERT CHIULLI, JR. v. CHRIS
CHIULLI ET AL.*
Superior Court, Judicial District of Hartford
File No. CV-12-6036511S
Memorandum filed July 8, 2014
Proceedings
Memorandum of decision on plaintiff’s action alleg-
ing, inter alia, breach of contract. Judgment for the
defendants.
George W. Kramer, for the plaintiff.
Richard P. Kuzmak, Joseph W. Bibisi and Eric H.
Rothauser, for the defendants.
Opinion
PECK, J. This lawsuit arises out of an agreement to
share the proceeds from an anticipated sale of real
property identified as Lots 3A and 3B Alumni Road,
Newington. The plaintiff, Robert Chiulli, Jr., has sued
his cousin, the defendant Chris Chiulli, and the latter’s
business, Double ‘‘C’’ Construction Company, LLC
(Double ‘‘C’’), in two counts alleging breach of contract
and conversion and statutory theft, pursuant to General
Statutes § 52-564. In count one, the plaintiff alleges that
on February 4, 2008, the parties entered into a contract
whereby, in exchange for the plaintiff filing a release
of a notice of assignment on the Newington land
records, the defendants promised to pay the plaintiff
$30,000 upon the closing of the sale of those properties,
and that the defendants sold the lots in question on or
about February 18, 2011, but did not inform the plaintiff
of that sale or pay him the $30,000. In count two, the
plaintiff alleges that the defendants had the funds to
pay the $30,000 from the sale of the properties in 2011
but failed to pay him, and that the failure to do so
constitutes conversion and statutory theft. The plaintiff
seeks damages in the amount of $30,000, attorney’s
fees and costs, punitive damages and treble damages
pursuant to § 52-564. In their answer to the complaint,
the defendants have denied the material allegations of
both counts. A court trial was held on December 18,
2013, at which both Robert Chiulli, Jr., and Chris Chiulli
testified. Posttrial briefs were filed by the parties, and
closing argument was held on March 17, 2014.
The principal issue at trial focused on the scope of
the contract between the parties as memorialized in a
letter dated February 4, 2008, which was admitted into
evidence as a full exhibit by agreement of the parties.1
The defendants claim that their obligation to pay the
plaintiff $30,000 related to a specific deal concerning
Lots 3A and 3B as contemplated on February 4, 2008,
which deal ultimately failed, while the plaintiff claims
that the defendants’ obligation to pay him $30,000 was
open-ended and extended to the defendants’ ultimate
sale of the lots in question in February, 2011.
The court finds the following facts. Lots 3A and 3B
Alumni Road were originally owned by Newington Busi-
ness Park (NBP). In 2003, Double ‘‘C’’ entered into an
agreement with NBP, giving the defendants the right to
purchase Lots 1, 2, 3 (3A and 3B).2 On April 10, 2006,
NBP passed a resolution authorizing the sale of the lots
to the defendant Double ‘‘C’’ and/or its assignees for a
total amount of $187,000. In 2006 and 2007, the parties
had verbal agreements relating to the purchase of Lot
3 for $72,000. According to the 2006 agreement between
the parties, the defendants were to assign their right
to purchase Lot 3 to the plaintiff. Thereafter, the plaintiff
was to purchase Lot 3 from the defendants for $72,000
with $57,000 going to NBP and $15,000 going to the
defendants. The 2007 agreement contemplated the
plaintiff purchasing Lots 3A and 3B directly from NBP
for $57,000 and then paying the defendants $15,000.
Under both scenarios, the total to be paid by the plaintiff
for the lots was $72,000, with $15,000 going to the defen-
dants. The 2006 agreement required two closings, while
the 2007 agreement contemplated one closing. The
plaintiff planned to sell one of the lots and keep the
remaining lot for his own use.
The plaintiff filed a notice on the Newington land
records, dated October 8, 2007, of the defendants’
assignment to him of their right to purchase Lots 3A
and 3B.3 The plaintiff spent approximately $9500 for
engineering work and other costs relating to the subdivi-
sion of the property. Neither the 2006 nor the 2007
agreement ever came to fruition because the plaintiff
was either unwilling or unable to move forward with
the purchase.4 The plaintiff did not pay the defendants
any money or anything else of value for the assignment
of the lots.5
In 2008, Jim Cassidy, an engineer who did work for
both Robert Chiulli, Jr., and Chris Chiulli, approached
Chris about a prospective buyer for Lots 3A and 3B.
The name of the buyer was Phil Rouquier.6 Cassidy
approached Chris because he knew that Chris ‘‘con-
trolled’’ the deal with NBP. NBP was Chris Chiulli’s
client. Chris approached Robert about the sale but did
not disclose the name of the buyer. There is no dispute
that Chris told Robert that the anticipated purchase
price for this deal was $140,000. Chris and Robert made
a deal, reflected in the February 4, 2008 letter, that if
Robert signed a release of the notice of the assignment
previously filed on the Newington land records dated
October 8, 2007, Chris would pay Robert $30,000 ‘‘at
the closing for any prior agreements.’’ Robert was aware
that Chris had a specific buyer and the specific sales
price of $140,000 in mind when he approached Robert
about making this deal.
On February 4, 2008, the parties entered into a written
agreement (the contract), whereby the defendants
agreed that if the plaintiff ‘‘signs the February 4, 2008
release of Notice on the Newington Land Records Book
1950 at Page 567 that Robert Chiulli Jr. will receive
$30,000 at the closing for any prior agreements.’’
(Emphasis added.) The contract was drafted by Chris
on behalf of himself and Double ‘‘C’’ Construction, and
signed by him and by the plaintiff, Robert Chiulli, Jr. The
term ‘‘prior agreements’’ is undefined in the contract.
At trial, both parties agreed that parol evidence was
required to assist the court in interpreting the contract.
Also on February 4, 2008, the plaintiff executed a
release of the notice of the assignment to purchase Lots
3A and 3B. The release was recorded in the Newington
land records. At the time that the release of the assign-
ment was filed on the Newington land records, there
was no dispute that Robert had the right as an individual
to execute the release. The deal with Rouquier fell
through, and Lots 3A and 3B were not sold in 2008
for $140,000.
The plaintiff testified that he believed the contract
was not conditioned on a specific buyer purchasing the
lots and that the reference to prior agreements applied
to any agreements involving the sale of the property.
However, in his proposed findings of fact, the plaintiff
acknowledges that he knew that Chris had a specific
buyer in mind when he approached him about this deal.
See Plaintiff’s Proposed Findings of Fact and Posttrial
Brief, #7, p. 2. The plaintiff also testified that he believed
that when a closing on the property occurred, the defen-
dants would be required to pay him $30,000. He further
testified that he believed $30,000 was a fair amount
because of his time and expense he incurred in devel-
oping the property in the approximate amount of $9500.
Chris Chiulli testified that he believed it was clear that
the contract applied specifically to the anticipated
agreement with Rouquier and the sales price of $140,000
for Lots 3A and 3B. Chris further testified that the plain-
tiff never paid him for the assignment of the lots in
the first place and that the defendants also incurred
substantial expense in an effort to develop and sell the
lots. If the deal with Rouquier had gone through, Chris
would have paid the plaintiff the agreed upon amount
of $30,000.
In June, 2008, the plaintiff sustained serious injury
from an assault in a Massachusetts bar or restaurant
that left him in a coma and hospitalized until December,
2008. He did not learn that the Rouquier deal fell through
until after he got out of the hospital. The injury caused
him to suffer some memory loss. The plaintiff filed a
personal injury lawsuit in connection with the assault.
In November, 2011, the plaintiff entered into a stipulated
judgment with Mount Sinai Hospital for a bill relating
to his hospitalization and rehabilitation from his injur-
ies. The stipulation provided for a reduced amount if
payment of the judgment was made by a specified date.
In an effort to raise that amount, he was required to
raise $100,000 by November, 2012, which necessitated
the sale of some of his assets, including the sale of his
Mercedes to Chris for $23,000. At the end of 2012, the
plaintiff settled his lawsuit for five (5) million dollars,
after three weeks of trial.
After the Rouquier deal fell through, Chris assumed
that he and Robert would revert to their prior
agreements whereby Robert would purchase the prop-
erty and Chris would get $15,000 at the time of the
closing. Chris offered to sell the lots to Robert after
the Rouquier deal fell through and after Robert got out
of the hospital, but Robert lacked the financial
resources at that time to commit to a purchase. There
is no evidence that at any time between February, 2008,
and February, 2011, the plaintiff sought to purchase or
sell Lots 3A or 3B.
On February 18, 2011, Chris Chiulli purchased Lots
1, 2, 3A and 3B from NBP for $187,000 plus closing
expenses for a total of $194,935.85. The settlement state-
ment (Defendants’ Exhibit D) reflects a $100,000 credit
to Chris for money owed to him by NBP. The total cost
to the defendants for purchase of the property was
$86,892.35 plus $43,880.53, for a total of $130,772.88.
The same day, February 18, 2011, Double ‘‘C’’ sold
Lots 2, 3A, and 3B to Michael Geer for a total amount
of $141,674, including the deposit. (Defendants’ Exhibit
B.) After the payoff of a second mortgage, the defen-
dants received $131,624.96. The defendants did not
inform the plaintiff of the sale of Lots 2, 3A, and 3B
and did not pay him $30,000 from the proceeds. This
transaction included Lot 2, which was not part of any
agreement between the parties.
In May, 2011, the defendant Double ‘‘C’’ sold Lot 1
to Daniel Pizzoferrato for $82,240.64. The net sale price
was $75,464.64 after settlement charges and closing
costs. (Defendants’ Exhibit C.) The settlement state-
ment lists the purchase price as $82,241. In this transac-
tion, $75,465 was paid from the proceeds to the Internal
Revenue Service. (Defendants’ Exhibit C, line 504.) Lot
1 was not part of any agreement between the parties
and was sold in a separate transaction.
The defendant Double ‘‘C’’ paid NBP a total of
$194,934.85 for Lots 1, 2, 3A and 3B and received a total
of $207,089.60 from the sale of the lots. After develop-
ment costs and closing expenses, Double ‘‘C’’ netted
only $12,154.75 from these transactions. After purchas-
ing the four lots for $194,934.85 and then selling Lots
2, 3A, and 3B for $131,674, the defendants experienced
a shortfall of approximately $63,000 without taking into
account development costs that exceeded $100,000. The
plaintiff did not learn about the sale of Lots 3A and 3B
until 2012 when he checked the Newington land records
and found out that the properties had been sold, at
which time he immediately demanded payment.
Although there are credibility issues relating to the
testimony of both Robert Chiulli and Chris Chiulli, they
are not material to the resolution of this lawsuit. There
is no question that in February, 2011, Robert Chiulli
could have used the $30,000 to help pay his hospital
bill and believes his cousin Chris withheld moneys that
could have helped at a critical time. Robert believes
that Chris was less than forthcoming about the ultimate
disposition of Lots 3A and 3B. However, the testimony
of both individuals reflects what amounts to bad blood
between them, which does not alter the essential facts
of the case or the legal issues presented.
I
STANDARD OF PROOF
‘‘While a plaintiff is entitled to every favorable infer-
ence that may be legitimately drawn from the evidence,
and has the same right to submit a weak case as a
strong one, the plaintiff must still sustain the burden
of proof on the contested issues in the complaint and
the defendant need not present any evidence to contra-
dict it.’’ Gulycz v. Stop & Shop Cos., 29 Conn. App. 519,
523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618
A.2d 527 (1992). The general burden of proof in civil
actions is on the plaintiff, who must prove all the essen-
tial elements of the causes of action set forth in the
complaint by a preponderance of the evidence. Id.
II
COUNT ONE—BREACH OF CONTRACT
In count one of the complaint, the plaintiff alleges
breach of contract. The plaintiff first argues that the
February 4, 2008 contract was a valid and binding docu-
ment which was breached by the defendants’ failure to
pay him $30,000 upon the closing of the sale of Lots
3A and 3B on February 18, 2011. The defendants counter
that their promise to pay $30,000 was a one-time deal
based on a specific sale of Lots 3A and 3B for $140,000.
The defendants also assert that, in any event, Robert
Chiulli, Jr., did not have the authority to sign the release
of the assignment, and therefore, there was no valid
consideration for the February 4, 2008 agreement and
the contract was unenforceable for that reason alone.
‘‘The essential terms of a valid contract are an offer,
acceptance of that offer, and consideration.’’ Cimino
v. Drucas Builders, LLC, Superior Court, judicial dis-
trict of Middlesex, Docket No. CV-09-5007828 (Decem-
ber 30, 2011) (Abrams, J.), aff’d, 141 Conn. App. 905, 62
A.3d 643, cert. denied, 309 Conn. 914, 70 A.3d 38 (2013).
In the present case, there was an offer made by the
defendants to pay Robert Chiulli, Jr., $30,000 ‘‘at the
closing for any prior agreements,’’ if Robert was to
sign a release of the notice of assignment from the
defendants of their option to buy Lots 3A and 3B from
NBP filed on the Newington land records dated October
8, 2007. Acceptance of these terms was evidenced by
the signatures of the parties to the transaction.
The defendants argue that the stated consideration
for the $30,000 payment by the defendants is illusory
because Eastern Development, LLC, not Robert Chiulli,
Jr., was assigned the option to buy Lots 3A and 3B, and
therefore, Robert had no authority to sign a release of
the assignment in his individual capacity.
‘‘Consideration consists of a benefit to the party
promising, or a loss or detriment to the party to whom
the promise is made. . . . Whether an agreement is
supported by consideration is a factual inquiry reserved
for the trier of fact and subject to review under the
clearly erroneous standard. . . . The conclusion
drawn from the facts so found, i.e., whether a particular
set of facts constitutes consideration in the particular
circumstances, is a question of law . . . and, accord-
ingly, is subject to plenary review. . . . [T]he doctrine
of consideration does not require or imply an equal
exchange between the contracting parties . . . . The
general rule is that, in the absence of fraud or other
unconscionable circumstances, a contract will not be
rendered unenforceable at the behest of one of the
contracting parties merely because of an inadequacy
of consideration.’’ (Citation omitted; internal quotation
marks omitted.) Milford Bank v. Phoenix Contracting
Group, Inc., 143 Conn. App. 519, 529, 72 A.3d 55 (2013).
The admissible evidence establishes that the consid-
eration, as recited in the February 4, 2008 agreement,
was valid. The only mention of Eastern Development,
LLC, as the assignee of the right to purchase Lots 3A
and 3B, is in the unsigned ‘‘Assignment and Assumption
Agreement,’’ dated May 17, 2006, one of several docu-
ments contained in Defendants’ Exhibit A. Further, the
notice of assignment, dated October 8, 2007, filed on
the land records, states that Double ‘‘C’’ Construction
and/or Chris Chiulli assigned their rights to purchase
the property to an assignee stated as ‘‘Robert Chiulli,
Jr.’’ No other party is listed as assignee, and the notice
is signed by Robert Chiulli, Jr., individually. Further,
the reference in the February 4, 2008 contract is to ‘‘the
February 4, 2008 release of Notice on the Newington
Land Records Book 1950 at page 567,’’ which volume
and page number is the location of the notice of assign-
ment executed and filed by Robert Chiulli, Jr., on Octo-
ber 8, 2007.7 No one questioned the validity of the
release of the assignment as consideration for the con-
tract until the trial of this lawsuit, and the court finds
no legitimate basis for this claim. In his testimony, Chris
Chiulli never disputed the authority of Robert to exe-
cute the release of the assignment contained in Plain-
tiff’s Exhibit 1. For these reasons, the court finds by a
preponderance of the evidence that Robert Chiulli, Jr.,
had the authority to execute the release of the notice
of assignment and to file it on the Newington land
records. Therefore, the plaintiff has proven by a prepon-
derance of the evidence that there was valid consider-
ation for the defendants’ payment of $30,000.
The more significant issue concerning the February
4, 2008 agreement is the meaning of the phrase ‘‘at the
closing for any prior agreements.’’ The plaintiff argues
this phrase reflects an open-ended promise to pay him
$30,000 at any closing of the sale of Lots 3A and 3B,
including the sale concluded with Michael Geer on Feb-
ruary 18, 2011. On the other hand, the defendants argue
that at the time of the February 4, 2008 contract, the
parties had a specific understanding that the perfor-
mance of the contract contemplated only a specific sale
to a buyer (Rouquier) for $140,000, and that ‘‘for any
prior agreements’’ referred to the previous verbal
agreements between them from 2006 and 2007, whereby
the plaintiff would purchase the property at a cost of
$72,000 in one or two transactions and the defendants
would receive $15,000 at the closing.
‘‘[T]he determination as to whether contractual lan-
guage is plain and unambiguous is itself a question of
law subject to plenary review.’’ Cruz v. Visual Percep-
tions, LLC, 311 Conn. 93, 101–102, 84 A.3d 828 (2014).
‘‘In determining whether a contract is ambiguous, the
words of the contract must be given their natural and
ordinary meaning. . . . 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 lan-
guage in question does not necessitate a conclusion
that the language is ambiguous.’’ (Citations omitted;
internal quotation marks omitted.) United Illuminat-
ing Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665,
670, 791 A.2d 546 (2002). ‘‘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.’’ (Citations
omitted; internal quotation marks omitted.) Id., 670–71.
‘‘If the language of the contract is susceptible to more
than one reasonable interpretation, the contract is
ambiguous.’’ Id., 671. When a contract is ambiguous
the court must consider extrinsic evidence and make
factual findings as to the parties’ intent. Cruz v. Visual
Perceptions, LLC, supra, 106.
The term ‘‘at the closing for any prior agreements’’
is not defined within the contract and is unquestionably
ambiguous, requiring consideration of extrinsic evi-
dence in the form of the testimony and exhibits submit-
ted in evidence at trial. Based on all the relevant
evidence, the court finds that the plaintiff has failed to
prove the validity of his interpretation of the contract
by a preponderance of the evidence.
As previously discussed, there is undisputed evidence
of agreements between the parties prior to February 4,
2008, one in 2006 and another in 2007. In the 2006
agreement, the parties agreed that Robert would pur-
chase Lots 3A and 3B from the defendants for $72,000,
$57,000 of which would be paid to NBP and $15,000
would be paid to the defendants. In 2007, the parties
agreed that Robert would purchase the lots directly
from NBP, and the defendants would receive $15,000
at the closing. Further, $30,000 is twice the sum of
$15,000 that the parties had agreed that the defendants
would receive in either the 2006 or 2007 agreement. It is
unlikely that Chris reasonably would have contractually
committed to pay Robert $30,000, unless Chris was
certain that he would be able to deliver that sum to
Robert and make a more substantial profit for himself
and Double ‘‘C.’’
The language of the contract states that if the plaintiff
signed the February 4, 2008 release of the notice of
assignment on the Newington land records, the defen-
dants promised that the plaintiff ‘‘will receive $30,000
at the closing for any prior agreements.’’ (Emphasis
added.) Robert’s testimony confirmed that he knew that
Chris had a specific buyer in mind when Chris came
to him about this deal. He also knew that Chris antici-
pated a sale of Lots 3A and 3B to that buyer for $140,000,
with no mention of any other sales price. In addition,
the use of the specific participle ‘‘the’’ before the word
closing, further suggests that a particular closing was
contemplated. Although the contract sales price to
Michael Geer on February 18, 2011, was listed on the
settlement statement as $140,000, that sale also
included Lot 2, a parcel not covered by the February
4, 2008 agreement, which only covered Lots 3A and 3B.8
Finally, the plaintiff argues that because Chris Chiulli
drafted the contract, its terms must be construed
against him. However, the Supreme Court has recently
determined that this rule of interpretation is only to be
used as a last resort when the court finds the contract
language ambiguous after considering the external evi-
dence. Cruz v. Visual Perceptions, LLC, supra, 311
Conn. 108 (‘‘[i]t would make absolutely no sense to
require the trial court to construe the agreement against
the defendant if the extrinsic evidence showed that it
was more likely than not that the parties had a contrary
intent’’). Here, the court has considered extrinsic evi-
dence and finds that the evidence reflects more likely
than not that the contract was intended by the parties
to be limited to a specific sale of the property for
$140,000 to a particular buyer. Therefore, the drafting
of the document by the defendants is not an appropriate
factor for consideration by the court. Based on all the
foregoing evidence, the court finds that the plaintiff has
failed to prove by a preponderance of the evidence
that the February 4, 2008 contract was open-ended and
extended to any closing of a sale of Lots 3A and 3B,
including the February 18, 2011 sale of the property to
Michael Geer.
III
COUNT TWO—CONVERSION AND THEFT
In count two of his complaint, the plaintiff seeks a
judgment of attorney’s fees and treble damages for the
defendants’ alleged conversion and civil theft of $30,000
out of the moneys received from the sale of Lots 3A
and 3B to Michael Geer on February 18, 2011.
Conversion has been defined as ‘‘an unauthorized
assumption and exercise of the right of ownership over
property belonging to another, to the exclusion of the
owner’s rights.’’ Mystic Color Lab, Inc. v. Auctions
Worldwide, LLC, 284 Conn. 408, 418, 934 A.2d 227
(2007). Statutory theft requires an intent to deprive the
owner of his property. Suarez-Negrete v. Trotta, 47
Conn. App. 517, 521, 705 A.2d 215 (1998). Thus, in order
for the plaintiff to prevail in claims of statutory theft and
conversion, he or she must prove a sufficient property
interest in the item. See Discover Leasing, Inc. v. Mur-
phy, 33 Conn. App. 303, 309, 635 A.2d 843 (1993) (prima
facie case for conversion and statutory theft requires
proof that property in question ‘‘belonged to’’ plaintiff).
‘‘A mere obligation to pay money may not be enforced
by a conversion action . . . and an action in tort is
inappropriate where the basis of the suit is a contract,
either express or implied. . . . Consistent with this
rule, in our case law sustaining a cause of action
wherein money was the subject of the conversion or
theft, the plaintiffs in those cases at one time had pos-
session of, or legal title to, the money.’’ (Citations omit-
ted; internal quotation marks omitted.) Deming v.
Nationwide Mutual Ins. Co., 279 Conn. 745, 772, 905
A.2d 623 (2006). ‘‘Accordingly, a claim for conversion
may be brought when the relationship is one of bailor
and bailee but not when it is one of debtor and creditor.’’
Mystic Color Lab, Inc. v. Auctions Worldwide, LLC,
supra, 419.
The plaintiff in this case has not provided any evi-
dence supporting the conclusion that he at one time
had possession or legal title to the $30,000 he claims
he was promised by the defendants. There is no evi-
dence that the plaintiff ever gave the defendants any
money to hold for him, that he ever had a lien on the
subject property in expectation of the fulfillment of the
contract, or that the plaintiff in any other way had any
ownership of the amount at any time in the transactions.
The contract at issue states that the defendants prom-
ised to pay the $30,000 to Robert Chiulli based on a
sale of Lots 3A and 3B ‘‘at the closing for any prior
agreements.’’ A mere promise to pay money is not suffi-
cient to prove ownership of that money, and is not
enough to sustain a claim of statutory theft or conver-
sion. Therefore, the plaintiff has failed to prove his
claims of conversion and statutory theft by a preponder-
ance of the evidence.9
CONCLUSION
Accordingly, for all the foregoing reasons, the court
finds that the plaintiff has failed to sustain his burden
of proving either count one or count two by a prepon-
derance of the evidence. Accordingly, the court hereby
enters judgment in favor of the defendants.
* Affirmed. Chiulli v. Chiulli, 161 Conn. App. 638, A.3d (2015).
1
Plaintiff’s Exhibit 2.
2
At some point in the course of the transactions between the parties Lot
3 was subdivided into Lots 3A and 3B.
3
The notice of assignment is contained in the evidence as Defendants’
Exhibit A. The assignment itself is not in evidence other than by way of the
testimony of Robert Chiulli, Jr., and Chris Chiulli.
4
Documents relating to the 2007 agreement are all contained in Defen-
dants’ Exhibit A. The documents reflect that the plaintiff was informed by
the president of NBP of an environmental issue relating to the property on
or about January 30, 2007.
5
There is no dispute that Eastern Development, LLC, was owned by the
plaintiff and that an assignment by Double ‘‘C’’ and Chris Chiulli of Lots 3A
and 3B was apparently made to the plaintiff before October 8, 2007, when
the notice of assignment (signed by Robert Chiulli, Jr., only), is dated. What
is less clear is to whom the assignment was made, Eastern Development,
LLC, or the plaintiff. The document which purportedly reflects the actual
assignment is unsigned and is contained in Defendants’ Exhibit A. The notice
of assignment, filed on the Newington land records, which is also included
in Exhibit A, lists the assignee as Robert Chiulli, Jr., and is signed by him,
individually. In addition, the release of the assignment, dated February 4,
2008, Plaintiff’s Exhibit 1, was also executed by the plaintiff individually.
Although the defendants have made much of their claim that the assignment
was actually made to Eastern Development, LLC, a limited liability company
owned by the plaintiff and not the plaintiff, individually, the only evidence
of this is the unsigned ‘‘Assignment and Assumption Agreement,’’ contained
in Defendants’ Exhibit A. As discussed later on in this memorandum, this
is not a valid issue in this case, and therefore, is not a factor in the decision
of the court.
6
The spelling of this name is unclear as neither of the witnesses were
able to give a definitive spelling.
7
The precise wording in the contract is that, ‘‘Double C Construction and
Chris Chiulli agree that if Robert Chiulli signs the February 4, 2008 release
of notice on the Newington Land Records Book 1950 at Page 567 that Robert
Chiulli will receive $30,000 at the closing for any prior agreements.’’
8
The plaintiff offered no evidence concerning the value of Lot 1 and the
defendants had no reason to.
9
The plaintiff cites to the case William Raveis Real Estate, Inc. v. Bran-
cale, Superior Court, judicial district of Fairfield, Docket No. CV-11-6019722-
S (January 29, 2013) (Sommer, J.), in support of their argument that conver-
sion and statutory theft can properly be pleaded in an action based on a
breach of contract. However, in contrast to the present case, the dispute
in Brancale concerned an unpaid contractual commission for a known and
definite sale that had already occurred.