Channing Real Estate, LLC v. Gates ( 2015 )

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CHANNING REAL ESTATE, LLC v. BRIAN GATES
(AC 35786)
Sheldon, Keller and Bear, Js.
Argued February 6—officially released August 4, 2015
(Appeal from Superior Court, judicial district of
Windham, Vacchelli, J. [motion to open judgment]; A.
Santos, J. [motion in limine; judgment].)
Linda L. Morkan, with whom were Stuart D. Rosen
and, on the brief, Susan Kim and Sara R. Simeonidis,
for the appellant (plaintiff).
Frank J. Liberty, for the appellee (defendant).
Opinion
BEAR, J. This is an action on six promissory notes in
which the plaintiff, Channing Real Estate, LLC, appeals
from the judgment of the trial court, after a bench trial,
in favor of the defendant, Brian Gates, on the plaintiff’s
complaint, sustaining the defendant’s special defenses
of misrepresentation and promissory estoppel, and, on
the second and third counts of the defendant’s counter-
claim, alleging negligent misrepresentation and a viola-
tion of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq. On appeal,
the plaintiff claims that the court improperly (1) granted
the defendant’s motion to open the default judgment
previously rendered against him due to his negligence,
and (2) denied it recovery on the notes after opening
the default judgment by admitting parol evidence to
vary or contradict the integrated and unambiguous
terms of the notes.1 We agree that the court improperly
admitted parol evidence to vary or contradict the unam-
biguous terms of the notes and, accordingly, we reverse
the judgment and remand the case for a new trial.
The following facts and procedural history, as found
by the court in its June 4, 2013 memorandum of decision
and as apparent in the record, are relevant to our dispo-
sition of this appeal. At all relevant times, the plaintiff
was a limited liability company organized under New
York law with an office in the state of New York. Doug-
las Chan (Chan), a New York resident, was a member
and principal of the plaintiff. Chan’s wife, Sharon Chan,
was also a member of the plaintiff.
The defendant was a resident of Connecticut. He and
his wife, Ulrika Gates, were each 50 percent owners
and members of Front Street Commons, LLC (Front
Street Commons), a Connecticut limited liability com-
pany.2 Front Street Commons was the owner of two
parcels of commercial real estate located in Putnam
(properties). The properties were encumbered by mort-
gages with Putnam Bank. One of the properties was
operated formerly as a dry cleaning establishment and,
accordingly, was subject to the Hazardous Waste Trans-
fer Act, General Statutes § 22a-134 et seq., upon transfer
of the property.
In September, 2007, the defendant and the plaintiff,
through Chan, met at the properties and commenced
negotiations. Chan was interested in developing a
mixed use shopping mall on the properties and on adja-
cent parcels. In October, 2007, Chan proposed initially
that the plaintiff purchase the defendant’s 50 percent
equity interest in Front Street Commons for $373,640.3
Under his proposal, a new entity, Front Street Associ-
ates, LLC (Front Street Associates), would be created,
which would own and develop the properties. Profits
and losses were to be divided equally between the own-
ers. The plaintiff, the defendant and Front Street Com-
mons would participate as members of Front Street
Associates. During these and subsequent discussions
and negotiations, both parties were represented by
counsel.
As of December 14, 2007, the parties had entered into
an option agreement in principle for the plaintiff to
purchase ‘‘one half of the subject premises’’ for $250,000
by January 7, 2008. The closing, as contemplated, did
not occur by February 8, 2008. Despite the delays in
closing, the parties worked together from August, 2008,
until December, 2008. Although the parties exchanged
several versions of the proposed operating agreements,
they did not execute a contract establishing the joint
ownership of the entity that was Front Street Associ-
ates. Nor did the parties sign the proposed operating
agreements or the option agreement.
On six separate occasions, the defendant asked the
plaintiff for varying sums of money, and the plaintiff,
in response to each request, agreed to provide the funds
requested. The plaintiff and the defendant followed the
same routine with respect to each separate transaction.
On each occasion, prior to the disbursement of any
funds, the plaintiff required that the defendant sign a
promissory note. The plaintiff transmitted a promissory
note from its office in New York to the defendant in
Connecticut. The defendant signed the note in Connect-
icut and then mailed it to the plaintiff in New York.
Thereafter, the plaintiff wired the funds from an
account in New York to the defendant’s Front Street
Commons account at Putnam Bank in Connecticut.
The six promissory notes varied in principal amounts.
The first note, dated January 8, 2008, was in the amount
of $38,939.50. The second note, dated February 8, 2008,4
was in the amount of $28,000. The third note, dated
March 12, 2008, was in the amount of $50,000. The
fourth note, dated January 7, 2009, was in the amount
of $17,333.24. The fifth note, dated February 13, 2009,
was in the amount of $30,000. The sixth note, dated
February 17, 2009, was in the amount of $117,000. The
total principal on the notes was $281,272.74.
The plaintiff provided a total of $117,000 to the defen-
dant, as reflected in the sixth note, to complete his
purchase of a new residence in Stonington. On February
18, 2009, the defendant sent an e-mail to Sharon Chan,
in which he requested a ‘‘simple letter . . . to see
where all the monies [came] from and [to demonstrate
to his bank that the plaintiff] bought out half [of the
defendant’s] equity [in Front Street Commons].’’
Despite the absence of an executed operating
agreement or option agreement as anticipated by the
parties, Sharon Chan, on behalf of the plaintiff, signed
a letter in which she affirmed that the defendant had
received $250,000 for the purchase of a 50 percent inter-
est in Front Street Commons. In the letter, the plaintiff
indicated that it ‘‘[would] be responsible for one half
of the bills and operating expenses,’’ and would receive
50 percent of the profit and income of Front Street
Commons.
The defendant did not repay any sums on the notes.
On December 15, 2009, the plaintiff demanded repay-
ment of principal, interest, and attorney’s fees pursuant
to the terms of each of the notes. Thereafter, by way
of summons and complaint filed on March 3, 2010, the
plaintiff brought suit against the defendant on the basis
of his default under each of the notes.
The defendant filed a revised answer, in which he
alleged multiple special defenses and a counterclaim
against the plaintiff. The defendant asserted as special
defenses fraud in the inducement, unjust enrichment,
innocent or negligent misrepresentation, and promis-
sory estoppel. The defendant also filed a three count
counterclaim alleging fraud, negligent misrepresenta-
tion, and a violation of CUTPA.
On April 26, 2010, the plaintiff filed a motion for
default for failure to appear pursuant to Practice Book
§ 17-23. On May 6, 2010, the court, Riley, J., granted
the motion and rendered judgment in favor of the plain-
tiff. On June 22, 2010, the defendant filed a motion to
open the judgment pursuant to General Statutes § 52-
212 and Practice Book § 17-4 (a).5 The defendant
requested that the court open the default judgment
because he had not received notice of the proceedings
due to a change of residence. In his motion, the defen-
dant further indicated that he had a valid defense to
the complaint and was in the process of hiring an attor-
ney to represent him. On September 21, 2010, the court,
Vacchelli, J., granted the motion to open. The court
concluded that the ‘‘defendant has demonstrated rea-
sonable cause and [the] existence of a good defense
justifying the opening of the judgment in this case.’’
On July 25, 2012, the plaintiff filed a pretrial motion
in limine to preclude ‘‘any evidence of an alleged condi-
tion or purpose to [the] defendant’s payment obligation
under the six promissory notes . . . .’’ The plaintiff
argued this motion at the commencement of trial, con-
tending that the parol evidence rule barred the court
from considering any evidence that would vary the
terms of the notes. Specifically, the plaintiff argued that
the defendant sought to vary the terms of the notes by
offering evidence that the plaintiff told the defendant
that the promissory notes were solely to protect the
plaintiff if the defendant backed out of the real
estate deal.
A trial to the court, A. Santos, J., was held over four
days on July 26, July 27, September 6, and October 11,
2012. As of the first day of trial, the total amount due
under the notes was $454,366.45, consisting of
$281,272.74 in principal and $173,093.71 in prejudgment
interest. The plaintiff also requested that the court
award it attorney’s fees and related litigation expenses
in the amount of $56,411.47.
On June 4, 2013, the court issued a memorandum of
decision in which it (1) denied the plaintiff’s motion in
limine, (2) rendered judgment in favor of the defendant
on the plaintiff’s complaint, and on the second and third
counts of his counterclaim alleging negligent misrepre-
sentation and a CUTPA violation, and (3) rendered judg-
ment in favor of the plaintiff on the first count of the
defendant’s counterclaim alleging fraudulent induce-
ment. The court awarded the defendant $28,000 in rea-
sonable attorney’s fees under CUTPA. See General
Statutes § 42-110g (d).6 Thereafter, on July 31, 2013, the
court sustained in part the plaintiff’s objection to the
award of attorney’s fees and entered an order awarding
the defendant the lesser sum of $25,575. This appeal
followed.
I
The plaintiff first claims that the court abused its
discretion in granting the defendant’s motion to open
the default judgment previously rendered against him
because of his negligence. Specifically, the plaintiff
argues that the defendant failed to establish, as required
by § 52-212,7 that he had a good defense at the time
judgment was rendered and that he was prevented from
raising that defense ‘‘because of mistake, accident or
other reasonable cause.’’ (Internal quotation marks
omitted.) We do not agree.
We begin by setting forth the standard of review
governing motions to open default judgments. ‘‘It is well
established that the action of the trial court, in either
granting or denying a motion to open a default judg-
ment, lies within its sound discretion. A trial court’s
conclusions are not erroneous unless they violate law,
logic, or reason or are inconsistent with the subordinate
facts in the finding. . . . Once the trial court has
refused to open a judgment, the action of the court
will not be disturbed on appeal unless it has acted
unreasonably and in clear abuse of its discretion. . . .
‘‘Because opening a judgment is a matter of discretion
. . . [t]he exercise of equitable authority is vested in
the discretion of the trial court and is subject only to
limited review on appeal. . . . We do not undertake a
plenary review of the merits of a decision of the trial
court to grant or to deny a motion to open a judgment.
The only issue on appeal is whether the trial court has
acted unreasonably and in clear abuse of its discretion.
. . . In determining whether the trial court abused its
discretion, this court must make every reasonable pre-
sumption in favor of its action.’’ (Citations omitted;
internal quotation marks omitted.) Priest v. Edmonds,
295 Conn. 132, 137–38, 989 A.2d 588 (2010).
As our Supreme Court has explained, ‘‘[i]t is incum-
bent upon the [appellant] to take the necessary steps
to sustain [its] burden of providing an adequate record
for appellate review. . . . Our role is not to guess at
possibilities . . . but to review claims based on a com-
plete factual record developed by a trial court. . . .
Without the necessary factual and legal conclusions
furnished by the trial court . . . any decision made by
us respecting [the appellant’s claim] would be entirely
speculative.’’ (Internal quotation marks omitted.) Id.,
138.
On appeal, the plaintiff argues that the defendant did
not have a good defense to its complaint at the time
judgment was rendered, and that the defendant’s failure
to appear was due solely to his inattention rather than
to a ‘‘mistake, accident or other reasonable cause
. . . .’’ General Statutes § 52-212 (a). The defendant
counters that the letter sent by the plaintiff provided
him with a strong defense because it ‘‘completely con-
tradicted the plaintiff’s position that the defendant
owed any money as the result of the execution of the
promissory notes.’’ The defendant further argues that
he demonstrated reasonable cause for opening the judg-
ment because: (1) the plaintiff addressed the summons
and first motion for default to a residence that it knew
the defendant had not resided at since September, 2009;
(2) he believed that his counsel in a different proceeding
had filed a pro se appearance on his behalf in the present
case; (3) he filed an appearance immediately upon
learning that his bank account had been levied against
to execute the default judgment; and (4) he had compel-
ling familial and professional obligations during this
time.
In the present case, the court found that the ‘‘defen-
dant has demonstrated reasonable cause and [the] exis-
tence of a good defense justifying the opening of the
judgment in this case.’’ The record does not contain
any specific or detailed reasons underlying the trial
court’s ruling. Making every presumption in favor of
the court’s action, as we must; Priest v. Edmonds,
supra, 295 Conn. 138; the plaintiff has not persuaded
us that the court abused its discretion in granting the
motion to open the default judgment.
II
The plaintiff next claims that the court improperly
denied it recovery on the notes by admitting parol evi-
dence to vary or contradict the integrated and unambig-
uous terms of the notes. Specifically, the plaintiff argues
that the court improperly concluded that the defendant
had proven by ‘‘clear and unequivocal evidence’’ that
the funds advanced by the plaintiff were in payment
for an interest in Front Street Commons and were not
loans to be repaid. We agree and, accordingly, reverse
the judgment of the court and remand the case for a
new trial.
Each promissory note was admitted as a full exhibit
at the trial, and each provided that, for value received,
the defendant was to pay the plaintiff, or order, the
principal amount by the maturity date. In addition, inter-
est was to be paid annually at the rate of 16 percent.
The notes also provided that, in the event of default,
the applicable interest rate would be governed by New
York law. Specifically, if the defendant did not pay the
sums due in full on or before the maturity date specified
in each note, interest ‘‘at the higher of [a] the rate of
[16] percent per annum, or [b] the highest rate permitted
by New York State law, shall be due on the unpaid
principal balance, calculated from the date hereof
through the date of payment.’’ The notes further pro-
vided that the defendant would pay all reasonable costs
of collection, including reasonable attorney’s fees and
expenses, incurred in any action brought by the plaintiff
to collect on the sums due on the notes. Another provi-
sion in each note prohibited any oral modification of
the terms of the note, and required that any amendment
be in writing and ‘‘signed by the party against whom
enforcement of any such change, modification, dis-
charge or waiver [was] sought.’’8
As a preliminary matter, the court addressed the
plaintiff’s motion in limine. The court concluded that
the introduction of extrinsic evidence was not pre-
cluded by the parol evidence rule in the present case
because ‘‘the contract was not fully integrated, and the
parties’ full true agreement was not reduced to a
signed writing.’’
The court rendered judgment in favor of the defen-
dant on the plaintiff’s complaint. The court concluded
that the defendant had proven, by clear and unequivocal
evidence, that the funds provided to the defendant were
not loans to be repaid. The court further concluded
that the plaintiff had failed to prove that the defendant
was unwilling to perform on the promise to sell his 50
percent interest in Front Street Commons.
The court sustained the defendant’s innocent or negli-
gent misrepresentation special defense and the second
count of his counterclaim. Considering the lower stan-
dard for proving negligent or innocent misrepresenta-
tion as opposed to fraudulent misrepresentation, the
court concluded that the defendant had established that
the plaintiff had negligently and innocently misrepre-
sented the purpose of each note. The court determined
that the defendant had relied on the plaintiff’s misrepre-
sentations and incurred damages by not pursuing ten-
ants for available space and declining to enter into long-
term leases.
In sustaining the defendant’s special defense of prom-
issory estoppel, the court concluded that the plaintiff
was estopped from claiming that the notes were not
advancements toward the purchase of a 50 percent
interest in Front Street Commons. The court deter-
mined that the defendant had acted in reliance on the
plaintiff’s representations by evicting tenants and using
the money provided to him for the expenses and losses
of Front Street Commons and for his personal needs.
The court denied the defendant’s special defense and
the first count of his counterclaim alleging fraud in the
inducement. The defendant could not prevail, the court
reasoned, because he did not produce evidence show-
ing that the statements made by the plaintiff were
untrue and were known to be untrue by the plaintiff.
See Sturm v. Harb Development, LLC, 298 Conn. 124,
142, 2 A.3d 859 (2010).
The court was similarly not persuaded by the defen-
dant’s special defense of unjust enrichment. Specifi-
cally, the court determined that (1) the defendant
‘‘received [money] advances from the plaintiff toward
the purchase of a 50 percent [interest] in Front Street
Commons,’’ (2) the defendant had not made any pay-
ments on the notes, and (3) the plaintiff had not retained
any other benefit outside of the parties’ agreement.
Finally, the court agreed with the defendant that the
plaintiff engaged in an unfair or deceptive act or prac-
tice in misrepresenting the purpose of the promissory
notes and, accordingly, rendered judgment in favor of
the defendant on the third count of his counterclaim
alleging a CUTPA violation. The court, in a modified
ruling, ordered the plaintiff to pay the defendant $25,575
in reasonable attorney’s fees under CUTPA.
We turn next to our standard of review. ‘‘Ordinarily,
[o]n appeal, the trial court’s rulings on the admissibility
of evidence are accorded great deference. . . . Rulings
on such matters will be disturbed only upon a showing
of clear abuse of discretion. . . . Because the parol
evidence rule is not an exclusionary rule of evidence,
however, but a rule of substantive contract law . . .
the [plaintiff’s] claim involves a question of law to which
we afford plenary review.’’ (Internal quotation marks
omitted.) Alstom Power, Inc. v. Balcke-Durr, Inc., 269
Conn. 599, 609, 849 A.2d 804 (2004).
‘‘A promissory note is a written contract for the pay-
ment of money, and, as such, contract law applies.’’
Antonino v. Johnson, 113 Conn. App. 72, 75, 966 A.2d
261 (2009). ‘‘The standard of review for the issue of
contract interpretation is well established. When, as
here, there is definitive contract language, the determi-
nation of what the parties intended by their contractual
commitments is a question of law. . . . Accordingly,
our review is plenary. . . . The reviewing court must
decide whether [the trial court’s] conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Citation omitted; internal quota-
tion marks omitted.) Genua v. Logan, 118 Conn. App.
270, 273–74, 982 A.2d 1125 (2009).
Having set forth the applicable standard of review,
we now consider whether our analysis is guided by the
substantive contract law of New York or Connecticut.9
The plaintiff argues that the validity and enforcement
of a promissory note generally depends on the law of
the state where it is payable.10 The plaintiff urges this
court to apply the substantive contract law of New York
because the notes required payment in that state. With
respect to the application of the parol evidence rule, the
plaintiff recognizes correctly that there are no material
differences between New York and Connecticut law as
applied to the facts of the present case. The defendant
did not reply to these arguments in his appellate brief
or during oral argument before this court.
We conclude that the substantive contract law of
New York governs our interpretation and construction
of the notes. The notes at issue in this case do not
contain choice of law clauses. In the absence of an
effective choice of law by the parties to govern our
interpretation of the notes, it is appropriate for us to
apply the local law of the state where the contracts
require that repayment be made. See 1 Restatement
(Second), Conflict of Laws § 195 (1971).11 Our examina-
tion of the notes reveals that each agreement required
that the defendant repay the funds by mailing payment
to the plaintiff in New York. Each note stated explicitly
that payment ‘‘shall be mailed [by the defendant] to 131
West 35th Street, New York, New York 10001, or at
such other place as designated by [the plaintiff] . . . .’’
We, accordingly, will apply the substantive contract law
of New York in the present case.
As noted previously, the Connecticut and New York
approaches to parol evidence are substantially similar.
The New York parol evidence rule has been explained in
the following terms: ‘‘A familiar and eminently sensible
proposition of law is that, when parties set down their
agreement in a clear, complete document, their writing
should as a rule be enforced according to its terms.
Evidence outside the four corners of the document as
to what was really intended but unstated or misstated
is generally inadmissible to add to or vary the writing.
That rule imparts stability to commercial transactions
by safeguarding against fraudulent claims, perjury,
death of witnesses[,] infirmity of memory and the fear
that the jury will improperly evaluate the extrinsic evi-
dence. . . .
‘‘Thus, the parol evidence rule bars the consideration
of extrinsic evidence of the meaning of a complete
written agreement if the terms of the agreement, consid-
ered in isolation, are clear and unambiguous. . . . If
the terms are ambiguous or contradictory, however,
the rule permits the consideration of such evidence
not to alter the terms but solely to ascertain the true
meaning of the terms. . . . Moreover, the parol evi-
dence rule is a rule of substantive law rather than one
of procedure or evidence. . . .
‘‘Application of the parol evidence rule requires a
three-step inquiry: first, whether the written contract
is an integrated agreement; if it is, then, second, whether
the language of the written contract is clear or is ambig-
uous; and, if the language is clear, then third, applying
that clear language, whether [the plaintiff] has alleged
a breach of the contract.’’ (Citations omitted; internal
quotation marks omitted.) Wayland Investment Fund,
LLC v. Millenium Seacarriers, Inc., 111 F. Supp. 2d
450, 453–54 (S.D.N.Y. 2000).
The first step in applying the parol evidence rule is
to assess whether the written contract is integrated.
‘‘[An] integrated contract is one which represents the
entire understanding of the parties to the transaction.
. . . [U]nder New York law a contract which appears
complete on its face is an integrated agreement as a
matter of law. . . . Therefore, if the written document
appears to contain the engagements of the parties, and
to define the object and measure the extent of such
[engagements, then] it constitutes the contract between
them, and is presumed to contain the whole of that
contract. . . . Where . . . a party points to another
agreement beyond the four corners of the contract, and
the contract itself lacks a merger clause, the court must
determine whether or not there is an integration by
reading the writing in the light of surrounding circum-
stances, and by determining whether or not the [other]
agreement was one which the parties would ordinarily
be expected to embody in the writing.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 454.
The second step in applying the parol evidence rule
requires us to ‘‘determine whether the language of the
written instrument is clear or whether it is ambiguous.
. . . Whether or not a writing is ambiguous is a question
of law to be resolved by the courts. . . . An ambiguity
arises if the terms of a contract could suggest more than
one meaning when viewed objectively by a reasonably
intelligent person who has examined the context of the
entire integrated agreement and who is cognizant of the
customs, practices, usages and terminology as generally
understood in the particular trade or business. . . . It
is well settled that extrinsic and parol evidence is not
admissible to create an ambiguity where none exists.’’
(Citations omitted; internal quotation marks omitted.)
Id., 455. The third and final step is to determine
‘‘whether, applying the clear contractual terms, [the
plaintiff] has alleged a breach of the written contract.’’
Id., 456.
Having set forth our standard of review and the appli-
cable law, we now consider the specific arguments
raised by the parties on appeal. The plaintiff contends
that the court’s finding that ‘‘the contract was not fully
integrated, and the parties’ full true agreement was not
reduced to a signed writing’’ was improper. The plaintiff
argues that the court should have declined to admit
parol evidence to vary the clear and unambiguous
repayment terms of the notes. The plaintiff further
argues that each note was an integrated agreement that
was separate and distinct from the parties’ unsuccessful
negotiations relating to Front Street Commons in the
broader transactional context found by the court to be
determinative. The defendant counters that the court
found correctly that the notes were not fully integrated,
and that the introduction of extrinsic evidence of an
alleged oral condition to his payment obligation under
the notes was not precluded by the parol evidence rule.
We agree with the plaintiff.
We find further guidance with respect to the applica-
tion of the first step of the parol evidence rule in Miller
v. Steloff, 686 F. Supp. 91, 93–94 (S.D.N.Y. 1988). The
court in Miller found, applying New York law, that
despite the defendants’ claim that a January, 1984 note
and a March, 1985 note were actually part of a continu-
ing transaction, the March note was ‘‘an agreement unto
itself.’’ Id., 94. In concluding that the March note was
an integrated agreement, the terms of which could not
be contradicted by reference to prior or contemporane-
ous agreements, the court reasoned: ‘‘The amount bor-
rowed, the rate of interest, the terms of repayment, and
the events of default are set forth in full detail. When
the parties wished to refer to a collateral document to
incorporate its terms, they did so explicitly. [W]here a
note appears on its face to be a completely integrated,
unconditional promise to pay, and where the evidence
of [the extraneous] agreement sought to be introduced
is at variance with the terms of the obligation, the parol
evidence rule applies.’’ (Internal quotation marks omit-
ted.) Id. The court in Miller thus concluded that the
March note was an integrated agreement, and that its
terms could not be contradicted by reference to prior
or contemporaneous agreements. Id.
Turning to the present case, we conclude that the
court improperly determined that the notes were not
fully integrated and considered extrinsic evidence to
vary or contradict the explicit terms of the notes. The
evidence before the court demonstrated that the defen-
dant was aware that an agreement had not been final-
ized for the sale of his 50 percent interest in Front
Street Commons and that an agreement might not be
reached in the future. The evidence further demon-
strated that the defendant, nevertheless, almost imme-
diately sought a series of personal loans from the
plaintiff, for each of which he executed a written note.
The defendant, who was represented by counsel, exe-
cuted six notes over the course of thirteen months that
were payable to the plaintiff. The defendant received
a total sum of $281,272.74 that he used for various
purposes, including his personal needs.
Here, the parties failed in their subsequent efforts to
achieve a comprehensive written agreement separate
from the notes. The defendant did not prove a modifica-
tion of the terms of any of the notes that was agreed
to by the plaintiff after the notes were executed, in
accordance with the provisions in the notes governing
modification. It is undisputed that the parties intended
for their agreements concerning Front Street Commons
to be in writing and, as noted by the court, they
attempted assiduously to prepare those agreements
without success from September, 2007, through 2009,
when discussions and negotiations ceased. The over-
arching business agreement that the parties sought to
reach was never achieved, and the notes were never
modified in writing as required by their terms and condi-
tions as a prerequisite to any modification.
Each of the six notes represented and reflected a
specific transaction between the parties. Standing
alone, each note constituted an integrated agreement,
supported by new and different consideration, and was
enforceable separately according to its unambiguous
terms. Each note provided that it could not be ‘‘changed,
modified or discharged, nor [could] any provision [be]
waived, orally, but only in writing, signed by the party
against whom enforcement of any such change, modifi-
cation, discharge or waiver [was] sought.’’ The defen-
dant cannot point to any such document signed
subsequently by the plaintiff.
As noted previously, the court concluded that ‘‘the
contract was not fully integrated and the parties’ full
true agreement was not reduced to a signed writing’’
and, therefore, ‘‘the introduction of extrinsic evidence
[was] not precluded by the parol evidence rule in the
present case.’’ In referencing ‘‘the contract’’ in its memo-
randum of decision, the court was not referring to each
note but instead, to an arduously negotiated—but never
completely agreed to and consummated—written con-
tract concerning the sale of the defendant’s 50 percent
interest in Front Street Commons, or to some other
transaction concerning the properties that also was
never completely agreed to and committed to writing
by the parties. The court did not analyze whether each
of the notes was an integrated obligation and whether
each could be enforced separately according to its
terms, which were voluntarily entered into by the com-
mercially sophisticated defendant, subject to any
proper defenses that he could prove.12 The court there-
fore erred as a matter of law in concluding that each
note was not fully integrated.
We now turn to the exceptions to the application of
the parol evidence rule under New York law.13 In
Adler & Shaykin v. Wachner, 721 F. Supp. 472, 478
(S.D.N.Y. 1988), the United States District Court,
applying New York law, set forth three circumstances
in which parol evidence may be admitted even if an
agreement is integrated. ‘‘First, parol evidence may
come in if the alleged agreement is collateral, that is,
one which is separate, independent and complete . . .
although relating to the same object. . . . Only where
three conditions are met will the Court allow evidence
in support of an allegedly collateral agreement. . . .
‘‘[B]efore such an . . . agreement as the present is
received to vary the written contract at least three con-
ditions must exist, (1) the agreement must in form be
a collateral one; (2) it must not contradict express or
implied provisions of the written contract; (3) it must
be one that parties would not ordinarily be expected
to embody in the writing. . . . [The . . . agreement]
must not be so clearly connected with the principal
transaction as to be part and parcel of it.’’ (Citations
omitted; internal quotation marks omitted.) Id.
Second, parol evidence may be admitted if the under-
lying contract is ambiguous. ‘‘Where the language
employed in a contract is ambiguous or equivocal, the
parties may submit parol evidence concerning the facts
and surrounding the making of the agreement in order
to demonstrate the intent of the parties . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) Id.,
479; see also Ralli v. Tavern on the Green, 566 F. Supp.
329, 331 (S.D.N.Y. 1983). ‘‘[Where] contract language is
susceptible of at least two fairly reasonable meanings,
the parties have a right to present extrinsic evidence
of their intent at the time of contracting.’’ Schering
Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983).
Finally, the parol evidence rule has no application
‘‘in a suit brought to rescind a contract on the ground of
fraud.’’ (Emphasis in original; internal quotation marks
omitted.) Adler & Shaykin v. Wachner, supra, 721 F.
Supp. 479. ‘‘Under New York law, to plead a prima facie
case of fraud the plaintiff must allege representation
of a material existing fact, falsity, scienter, deception
and injury. . . . In short, a contractual promise made
with the undisclosed intention not to perform it consti-
tutes fraud and, despite the so-called merger clause,
the plaintiff is free to prove that he was induced by
false and fraudulent misrepresentations . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
479–80.
After our review of the court’s memorandum of deci-
sion and the record, we have determined that the court
could not reasonably find or conclude that the defen-
dant proved the existence of any completed written
collateral agreements that modified the terms of any
of the notes. In addition, the evidence before the court
does not show that either party sought to rescind any of
the contracts on the ground of fraud.14 When considered
facially, the terms of the notes are clear and unam-
biguous.
In summary, because of the court’s erroneous conclu-
sion that each of the notes was not integrated, it improp-
erly allowed the defendant to offer evidence that
violated the parol evidence rule without first applying
the law pertaining to the recognized exceptions thereto
under New York law.15 The court improperly based its
findings and conclusions on the parties’ ultimately
unsuccessful negotiations regarding a comprehensive
written contract separate from the notes. Accordingly,
the court did not separately analyze and apply to each
note the New York parol evidence rule, and each of the
recognized exceptions thereto. On remand, the plaintiff
is, therefore, entitled to the opportunity to prove its
damages with respect to each of the notes, the existence
and written terms of which the defendant does not
dispute. The defendant is entitled on remand to allege
and prove any of the defenses it may have to each of
the notes in accordance with the recognized exceptions
under New York law to the parol evidence rule.
As set forth previously, the application of the parol
evidence rule requires a three step inquiry. In this case,
each note is a separate integrated agreement supported
by consideration, the language of which is clear and
unambiguous, and in its complaint the plaintiff has
alleged a breach of each note. The only exceptions to
the parol evidence rule that the defendant has pleaded
as a special defense or counterclaim are mistake, fraud,
and a violation of CUTPA. On remand, the trier of fact
should analyze separately each of the defendant’s valid
defenses under New York law with respect to each of
the notes, and the counterclaim alleged by the defen-
dant, at least one of which, the CUTPA count, is subject
to Connecticut law, in accordance with this opinion.
This court has held previously that where a substan-
tive error permeates the court’s findings and under-
mines its judgment, reversal of the entire judgment and
further proceedings may be required. See, e.g., Milford
Paintball, LLC v. Wampus Milford Associates, LLC,
117 Conn. App. 86, 92, 978 A.2d 118 (2009) (remanding
for new trial and declining to reach further claims on
appeal where court’s findings and judgment were based
on substantive error); see also Milford Paintball, LLC
v. Wampus Milford Associates, LLC, 137 Conn. App.
842, 853–54, 49 A.3d 1072 (2012) (same). Here, the court
sustained the defendant’s special defenses of misrepre-
sentation and promissory estoppel, and rendered judg-
ment in his favor on the second and third counts of his
counterclaim alleging negligent misrepresentation and
a violation of CUTPA. The court denied the defendant’s
claim for damages for lost rents under CUTPA, but
granted the defendant an award of reasonable attor-
ney’s fees. We conclude that the court’s legal determina-
tion that the parol evidence rule did not preclude the
introduction of extrinsic evidence to avoid the enforce-
ment of each of the notes is an error that permeates
the court’s findings and undermines its entire judgment.
A new trial before a different judge is necessary so that
the court may review all of the claims raised by the
parties in this case viewing the notes as separate inte-
grated agreements subject to interpretation and con-
struction under New York law. See General Statutes
§ 51-183c.16 To the extent that the tort counts of the
counterclaim are pursued by the defendant, it is likely
that those claims, on the basis of the alleged place of
injury, will be subject to Connecticut law.
The judgment is reversed and the case is remanded
for a new trial in accordance with this opinion.
In this opinion the other judges concurred.
1
The plaintiff also claims that the court improperly (1) rendered judgment
in favor of the defendant because he lacked standing to assert his counter-
claim, (2) rendered judgment in favor of the defendant on his CUTPA coun-
terclaim because it was based solely on intrabusiness conflicts rather than
‘‘competitive acts or practices,’’ and (3) awarded attorney’s fees to the
defendant on his CUTPA counterclaim. The defendant counters that (1) he
had standing to bring his counterclaim and special defenses because he
proved substantial injuries, (2) the court properly rendered judgment in his
favor on his CUTPA counterclaim because the plaintiff engaged in a decep-
tive practice by claiming that the purchase price for the defendant’s interest
in Front Street Commons was a loan, and (3) the court’s award of attorney’s
fees to litigate the CUTPA action and, specifically, to prove that the plaintiff
lied as to the true purpose of the notes, was reasonable. Because we conclude
that the plaintiff’s claim regarding the parol evidence rule is dispositive, we
do not address these arguments in this opinion.
2
Ulrika Gates, Douglas Chan, Sharon Chan, and Front Street Commons
are not defendants in this case.
3
Subsequently, upon completion of environmental surveys on the proper-
ties, the purchase price to be paid by the plaintiff for the defendant’s 50
percent interest in Front Street Commons was reduced from $373,640 to
$250,000.
4
We note that the trial court, in its memorandum of decision, indicated
that the second note was dated February 6, 2008. Our review of the record
reveals that the note was dated February 8, 2008.
5
Practice Book § 17-4 (a) provides: ‘‘Unless otherwise provided by law
and except in such cases in which the court has continuing jurisdiction,
any civil judgment or decree rendered in the superior court may not be
opened or set aside unless a motion to open or set aside is filed within four
months succeeding the date on which notice was sent. The parties may waive
the provisions of this subsection or otherwise submit to the jurisdiction of
the court.’’
6
General Statutes § 42-110g (d) provides in relevant part that a party
prevailing under a CUTPA claim may be awarded ‘‘costs and reasonable
attorneys’ fees . . . .’’
7
General Statutes § 52-212 provides: ‘‘(a) Any judgment rendered or decree
passed upon a default or nonsuit in the Superior Court may be set aside,
within four months following the date on which it was rendered or passed,
and the case reinstated on the docket, on such terms in respect to costs as
the court deems reasonable, upon the complaint or written motion of any
party or person prejudiced thereby, showing reasonable cause, or that a
good cause of action or defense in whole or in part existed at the time of
the rendition of the judgment or the passage of the decree, and that the
plaintiff or defendant was prevented by mistake, accident or other reason-
able cause from prosecuting the action or making the defense.
‘‘(b) The complaint or written motion shall be verified by the oath of the
complainant or his attorney, shall state in general terms the nature of the
claim or defense and shall particularly set forth the reason why the plaintiff
or defendant failed to appear.
‘‘(c) The court shall order reasonable notice of the pendency of the com-
plaint or written motion to be given to the adverse party, and may enjoin
him against enforcing the judgment or decree until the decision upon the
complaint or written motion.’’
8
The notes dated January 8, 2008, and February 8, 2008, included addi-
tional language providing that the note was negotiable. The notes dated
March 12, 2008, January 7, 2009, February 13, 2009, and February 17, 2009,
included the following additional language for identification: ‘‘Reference:
Brian Gates Loan.’’
9
This court has set forth previously the general rules of contract formation
in Connecticut. ‘‘A contract is an agreement between parties . . . . Con-
tracts may be express or implied. . . . If the agreement is shown by the
direct words of the parties, spoken or written, the contract is said to be an
express one. But if such agreement can only be shown by the acts and
conduct of the parties, interpreted in the light of the subject matter and of the
surrounding circumstances, then the contract is an implied one.’’ (Internal
quotation marks omitted.) Boland v. Catalano, 202 Conn. 333, 336, 521 A.2d
142 (1987). ‘‘To form a valid and binding contract in Connecticut, 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).
10
The plaintiff relies on Santoro v. Osman, 149 Conn. 9, 174 A.2d 800
(1961), in support of its argument. The note in Santoro both had been made
and was payable in New York. Id., 11. The issue in Santoro was whether
the usury law of New York or Connecticut was to be applied on behalf of
the defendant, a Connecticut resident. Id., 12. Our Supreme Court determined
that the rule as to choice of law in cases where usury is claimed depends
upon the law of the place where the note is payable. Id.; see also Heating
Acceptance Corp. v. Patterson, 152 Conn. 467, 474 n.3, 208 A.2d 341 (1965);
Pioneer Credit Corp. v. Radding, 149 Conn. 157, 159, 176 A.2d 560 (1961).
As in Santoro, the notes in this case were payable in New York.
11
Section 195 of 1 Restatement (Second) of Conflict of Laws provides:
‘‘The validity of a contract for the repayment of money lent and the rights
created thereby are determined, in the absence of an effective choice of
law by the parties, by the local law of the state where the contract requires
that repayment be made, unless, with respect to the particular issue, some
other state has a more significant relationship under the principles stated
in § 6 to the transaction and the parties, in which event the local law of the
other state will be applied.’’
12
Our Supreme Court has explained the proper analysis of negotiable
notes, as exist in this case. ‘‘[General Statutes §] 42a-3-104 provides that
any writing may be a negotiable instrument if it (1) is payable to order or
to bearer, (2) is payable on demand or at a definite time and (3) contains
an unconditional promise or order to pay a fixed amount of money, with
or without interest or other charges, and no other promise, order, obligation
or power is given by the maker or drawer except as otherwise authorized.’’
Florian v. Lenge, 91 Conn. App. 268, 277, 880 A.2d 985 (2005). ‘‘To prevail
in an action to enforce a negotiable instrument, the plaintiff must be a holder
of the instrument or a nonholder with the rights of a holder. . . . Only a
holder in due course may enforce a negotiable instrument. . . . Pursuant
to General Statutes § 42a-3-301, a [p]erson entitled to enforce an instrument
[such as a promissory note] means . . . the holder of the instrument . . . .
Moreover, General Statutes § 42a-1-201 (20) defines the term holder, with
respect to a negotiable instrument, as meaning the person in possession if
the instrument is payable to bearer or, in the case of an instrument payable
to an identified person, if the identified person is in possession.’’ (Emphasis
in original; internal quotation marks omitted.) Id., 278. Upon this showing
by the plaintiff, it was incumbent upon the defendant to allege and prove
a valid defense. See Connecticut Bank & Trust Co. v. Dadi, 182 Conn. 530,
531, 438 A.2d 733 (1980). The New York law is substantively similar. See,
e.g., First International Bank of Israel, Ltd. v. L. Blankstein & Son, Inc.,
59 N.Y.2d 436, 444, 452 N.E.2d 1216, 465 N.Y.S.2d 88 (1983) (noting that,
under UCC § 3-307 (2), when holder of promissory note produces properly
signed instrument, it is entitled to recover on note unless defendant estab-
lishes genuine defense).
13
As stated previously, our Supreme Court has recognized exceptions to
the parol evidence rule that are substantially similar to those under New York
law. See Alstom Power, Inc. v. Balcke-Durr, Inc., supra, 269 Conn. 609–10.
14
Although the defendant alleged fraud in the inducement as a special
defense and in the first count of his counterclaim, he does not seek to
rescind any of the contracts. ‘‘The effect of rescission is to declare [a]
contract void from its inception and to put or restore the parties to status
quo . . . . As a general rule, rescission of a contract is permitted where
there is a breach of contract that is material and willful, or, if not willful,
so substantial and fundamental as to strongly tend to defeat the object of
the parties in making the contract . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Lenel Systems International, Inc. v. Smith, 106 Ohio App.
Div. 3d 1536, 1537–38, 966 N.Y.S.2d 618 (2013). Here, the defendant has not
tendered to the plaintiff any of the funds provided to him as a result of the
execution of the notes.
15
In its memorandum of decision, the court did not state that it applied
New York law in its legal analysis of each of the notes.
16
General Statutes § 51-183c provides in relevant part: ‘‘No judge of any
court who tried a case without a jury in which a new trial is granted, or in
which the judgment is reversed by the Supreme Court, may again try the
case. . . .’’