Peterson v. McAndrew ( 2015 )

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JAMES M. PETERSON v. MONICA
MCANDREW ET AL.
(AC 36327)
Beach, Prescott and Bear, Js.
Argued March 4—officially released September 29, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Genuario, J.)
Kimberly A. Knox, with whom was Dana M. Hrelic,
for the appellant-appellee (plaintiff).
Mark S. Gregory, for the appellees-appellants
(defendants).
Opinion
BEACH, J. The plaintiff, James M. Peterson, appeals
from the judgment of the trial court rendered, in part,
in favor of the defendants, Monica McAndrew and David
M. Chute, and the defendants cross appeal. The dispute
arises from an agreement whereby the plaintiff was to
purchase a parcel of land from the defendants.1
Although the defendants owned the entire parcel, it was
not possible to convey marketable title to the entire
parcel. The plaintiff claims that the court erred in con-
cluding that (1) the defendants did not breach the con-
tract; (2) the defendants were not unjustly enriched by
the full amount of the plaintiff’s deposit; (3) the parties
were not mutually mistaken as to what was being con-
veyed when they signed the purchase and sales
agreement; (4) Chute did not make misrepresentations
of fact to induce the plaintiff to enter into the sales
agreement; (5) Chute did not violate the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq.; and (6) the defendants were entitled
to attorney’s fees pursuant to the contract. On cross
appeal, the defendants claim that the court erred in (1)
concluding that enforcement of the liquidated damages
provision of the contract, as written, resulted in unjust
enrichment, and (2) awarding attorney’s fees in a lesser
amount than requested. We agree with the defendants’
claim regarding the unjust enrichment count and dis-
agree with the remaining claims of both parties. Accord-
ingly, we reverse in part the judgment of the trial court.
The following facts, as found by the trial court and as
revealed in a joint stipulation of facts that was expressly
adopted by the trial court, are relevant to our resolution
of these appeals. In 2009, the defendants owned a single-
family residence at 43 Rowayton Avenue in Norwalk.
They listed the property for sale, describing it as ‘‘direct
waterfront property’’ with ‘‘expansive sandy beach.’’
In February, 2011, the plaintiff became interested in
purchasing the property and met with Chute. During
this meeting, Chute told the plaintiff that the property
had benefited from accretion2 and that the property
that he was offering for sale included the land to the
current mean high waterline. Chute provided the plain-
tiff with a survey of the property, which showed a prop-
erty line depicted on map #591 of the Norwalk land
records (591 map). The 591 map was recorded in the
Norwalk land records in 1924. It depicted a subdivision
of a substantial tract of land. The 591 map labelled the
property at issue in this case as ‘‘lot 3’’ and showed it
bounded by Rowayton Avenue on the east and on the
west by the approximate mean high waterline as it
existed at that time (591 line). Since 1924, the physical
condition of the property changed, and the portion of
the property that was bounded by the mean high water-
line on the west had expanded as a result of accretion.
During the February, 2011 meeting, Chute told the plain-
tiff that he owned the property between the 591 line
and the current mean high waterline. In their discus-
sions prior to the execution of the contract, the parties
did not consider the nature of the title to be conveyed.
In April, 2011, the plaintiff and the defendants entered
into a purchase and sales agreement (contract) for the
sale of the property. Both the plaintiff and Chute had
reasonable levels of business sophistication. The pur-
chase price for the property, as set forth in the contract
and agreed upon by the parties, was $2,550,000. To
comply with a condition of the contract, the plaintiff
deposited $255,000 with the defendants’ counsel. Para-
graph 1 of the contract provides: ‘‘The seller in consider-
ation of the purchase price hereinafter specified, hereby
agrees to sell and convey, and the buyer hereby agrees
to purchase the real property commonly known as 43
ROWAYTON AVENUE, ROWAYTON (NORWALK),
Connecticut and specifically described in Schedule A
attached hereto . . . .’’
The contract provides in schedule A that the property
at issue was bounded on the west by the 591 line, or,
in other words, by the 1924 mean high waterline. By
the action of accretion over the years, the current mean
high waterline was farther west than the 1924 mean
high waterline. The 1924 mean high waterline coincided
with a bulkhead consisting of piers and tarred material.
At that time, the bulkhead established the western
boundary of the property. In the early 1930s a masonry
wall was constructed to the west of the original bulk-
head. Since then, additional beach area to the west of
the masonry wall line has been created by accretion.
Before and after the execution of the contract, the
plaintiff and Chute talked about demolishing the
existing house and constructing a new house. The plain-
tiff knew that Chute had built several single-family
houses. He liked Chute’s work and hoped that he and
the defendants would reach an agreement for the con-
struction of a single-family residence on the property.
After the contract was signed, the plaintiff and Chute
developed plans for the construction of a house and a
swimming pool. When Chute provided a copy of the
plans to Norwalk zoning officials, he was asked to pro-
vide the zoning office with proof of ownership of the
area west of the 591 line. Subsequent research into
ownership of the property revealed, as previously dis-
cussed, that the property had been built up over the
years by a combination of accretion and fill.
At all relevant times, the defendants were ready, will-
ing and able to convey marketable title3 to the property
specifically described in schedule A of the contract,
and to quitclaim all of their title to and interest in the
property located west of the 591 line. The plaintiff was
ready, willing and able at all times to pay the total
purchase price required in the contract upon receipt of
a warranty deed conveying marketable title to all of
the land bounded on the east by Rowayton Avenue and
on the west by the current mean high waterline. The
plaintiff was not willing to pay the full purchase price
unless the warranty deed conveyed marketable title to
the property to the current mean high waterline, and
the defendants were not able to do this. By e-mail dated
June 30, 2011, the plaintiff demanded that the defen-
dants close on the property; by an email of the same
date, the defendants stated that they were prepared to
close and to deliver good title to the premises described
in the contract (schedule A). A closing never was
scheduled.
By letter dated July 8, 2011, the plaintiff noted that
the contract was terminated and demanded the return
of the deposit. The defendants refused to return the
deposit and sold the property to a third party in August,
2011, for $2,525,000, which was $25,000 less than the
purchase price agreed upon by the plaintiff and the
defendants. The plaintiff has demanded and the defen-
dants continuously have refused to return to the plain-
tiff the $255,000 deposit. The court determined that it
was unnecessary to reach any conclusion as to who
actually owned the property west of the 591 line, but
nonetheless said that the more persuasive evidence
indicated that the defendants owned the property to
the current mean high waterline. Had the plaintiff com-
pleted the transaction as suggested by the defendants,
he would have owned the property to the current mean
high waterline.
In his fourth amended complaint, the plaintiff alleged
breach of contract and unjust enrichment against both
defendants, and negligent misrepresentation, fraudu-
lent misrepresentation, and a violation of CUTPA, inno-
cent misrepresentation and mutual mistake against
Chute. The defendants filed a counterclaim alleging that
the plaintiff was unjustly enriched by the work per-
formed by Chute in preparing for the construction of
the improvements.
After a trial, the court initially found in favor of the
defendants on the plaintiff’s entire complaint and found
in favor of the plaintiff on the defendants’ counterclaim.
The plaintiff filed a motion for reargument/reconsidera-
tion of the breach of contract and unjust enrichment
counts of his complaint. The court revised its initial
decision on the unjust enrichment claim and rendered
judgment in favor of the plaintiff in the amount of
$124,266. It reaffirmed its judgment as to all other
counts of the complaint. The defendants filed a motion
for attorney’s fees. The court granted the motion and
awarded attorney’s fees of $80,000 and ‘‘disbursements
incurred by the defendants’’ in the amount of $741.35.
These appeals followed.
I
The plaintiff first claims that the court erred in render-
ing judgment against him as to the count alleging that
the defendants breached the contract. We disagree.
The court observed that the contract obligated the
seller, upon receiving the total purchase price, to con-
vey to the plaintiff the premises described in schedule
A. The court determined that the contract’s description
of the property to be conveyed with marketable title
was unambiguous. The court reasoned that schedule
A, referenced in the contract, defined the property as
that described as lot 3 on map 591. The plaintiff claimed
that the defendants had been obligated to convey mar-
ketable title to the accreted strip extending to the cur-
rent mean high waterline in addition to the property
described in schedule A. The court stated that because
the contract was unambiguous, it ought not look beyond
the four corners of the contract, and that taking the
plaintiff’s position would require it to ignore or to vio-
late the parol evidence rule.
The plaintiff argues that the court erred in determin-
ing that the defendants were obligated to convey mar-
ketable title only to property described in schedule A
when the provisions of the contract demonstrated the
parties’ intent to do otherwise. He contends that the
contract, in paragraph 1, defined the ‘‘property’’ in two
ways: (1) as 43 Rowayton Avenue and (2) as the prop-
erty defined in schedule A. He argues that schedule A,
by its terms, excluded a portion of the property bounded
by the mean high watermark. He further notes that
paragraph 38 of the contract provided that the seller
was to transfer to the buyer pending applications to
the state Department of Environmental Protection and
the United States Army Corps of Engineers ‘‘to install
a dock, pier and ramp at the Premises.’’ He argues that
this provision showed that the contract contemplated
the transfer of waterfront property, and that the prop-
erty described in schedule A alone was not literally on
the waterfront. In light of this ambiguity, the plaintiff
argues, the court erred in failing to consider parol evi-
dence as to the intent of the parties in conveying water-
front property.
‘‘[T]he interpretation of [definitive contract] language
[is] a question of law subject to plenary review by this
court. . . . If a contract is unambiguous within its four
corners the determination of what the parties intended
by their contractual commitments is a question of law.’’
(Citation omitted; internal quotation marks omitted.)
Western Dermatology Consultants, P.C. v. VitalWorks,
Inc., 146 Conn. App. 169, 187, 78 A.3d 167, cert. granted
on other grounds, 310 Conn. 955, 81 A.3d 1182 (2013).
‘‘In determining a boundary line in a deed, the law
is clear that the description in the deed, if clear and
unambiguous, must be given effect. In such a case, there
is no room for construction. The inquiry is not the intent
of the parties but the intent which is expressed in the
deed.’’ (Internal quotation marks omitted.) Mierzejew-
ski v. Laneri, 130 Conn. App. 306, 311, 23 A.3d 82, cert.
denied, 302 Conn. 932, 28 A.3d 344 (2011).
The contract for the purchase of property is unambig-
uous. Paragraph 1 provides only one description of the
property: it is defined as the property in schedule A
and only schedule A. The contract states: ‘‘The seller
in consideration of the purchase price hereinafter speci-
fied, hereby agrees to sell and convey, and the buyer
hereby agrees to purchase the real property commonly
known as 43 ROWAYTON AVENUE, ROWAYTON
(NORWALK), Connecticut and specifically described in
Schedule A attached hereto . . . .’’ The contract notes
that the property is ‘‘commonly’’ referred to as 43
Rowayton Avenue and is ‘‘specifically described’’ in
schedule A. (Emphasis added.) The street address gen-
erally located the property and provided useful informa-
tion, but it did not establish or purport to establish
boundaries to the property. Rather, the contract
expressly stated that schedule A provided the specific
description of the property. Schedule A clearly
described the property as ‘‘that certain tract or parcel
of land, situated in the Town of Norwalk, known and
designated as lot number three (3) on a certain map
. . . which map is recorded in the office of the town
clerk of said Norwalk as map number 591.’’ Map 591
described the property as being bounded on the west
by the mean high watermark as of 1924. The description
of the property conveyed by the deed is clear and unam-
biguous; see Mierzejewski v. Laneri, supra, 130 Conn.
App. 311; see also Lisiewski v. Seidel, 72 Conn. App.
861, 866, 806 A.2d 1121 (‘‘[i]n determining the location
of a boundary line expressed in a deed, if the description
is clear and unambiguous, it governs and the actual
intent of the parties is irrelevant’’), cert. denied, 262
Conn. 921, 922, 812 A.2d 865 (2002).
The plaintiff additionally argues that the reference in
paragraph 38 of the contract to the transfer of pending
applications for the installation of a dock, pier and ramp
‘‘at the [p]remises’’ created an ambiguity. Because the
unambiguous language in the description of the prop-
erty conveyed is controlling, reliance on other language
obliquely hinting at a different intent is misplaced.
Moreover, the provision in paragraph 38 merely indi-
cated that the defendants were to transfer certain pend-
ing applications. The language, ‘‘at the [p]remises,’’
clarified which applications were to be transferred; the
casual language could not in itself vary the express
description of the premises conveyed. See Mierzejew-
ski v. Laneri, supra, 130 Conn. App. 314; see also Lisie-
wski v. Seidel, supra, 72 Conn. App. 869.
There was no ambiguity in the description of the
property and the court properly declined to consider
parol evidence4 to vary the terms of the integrated con-
tract.5 ‘‘The parol evidence rule does not of itself . . .
forbid the presentation of parol evidence, that is, evi-
dence outside the four corners of the contract concern-
ing matters governed by an integrated contract, but
forbids only the use of such evidence to vary or contra-
dict the terms of such a contract.’’ (Internal quotation
marks omitted.) Weiss v. Smulders, 313 Conn. 227, 249,
96 A.3d 1175 (2014).
We conclude that the contract was unambiguous as
to the description of the property. Although the plaintiff
argues that the contract was ambiguous as to whether
the contract provided that the property to be conveyed
included accreted land, the contract clearly and specifi-
cally delineated the property to be conveyed by the
deed. Thus, the court properly determined that the
defendants did not breach the contract by being ready,
willing and able to close and deliver marketable title
only to the 591 line, because that was the description
of the property in the contract, as referenced by sched-
ule A and map 591.
II
The plaintiff next claims that the court erred in
determining that the defendants were not unjustly
enriched by retaining some of the plaintiff’s $255,000
deposit. On cross appeal, the defendants claim that the
court erred in concluding that the defendants were not
entitled to retain the full amount of the deposit. We
agree with the defendants.
The plaintiff argued in the trial court that the defen-
dants were unjustly enriched by their retention of the
contract deposit of $255,000. In its original memoran-
dum of decision, the trial court noted that the contract
required the plaintiff to deposit $255,000 with the defen-
dants’ attorney on signing the contract and further pro-
vided that, in the event of a default by the plaintiff
buyer, the sellers’ remedy was to terminate the contract
and to retain the down payment as liquidated damages.
The court then found the buyer to be in default because
he rejected the conveyance of marketable title to the
described premises and refused to tender the purchase
price. The court determined that the liquidated damages
provision of the contract was enforceable and, thus,
that the plaintiff’s claim of unjust enrichment failed.
The plaintiff moved for reconsideration, and the court
noted that in its original decision it had overlooked
Vines v. Orchard Hills, Inc., 181 Conn. 501, 435 A.2d
1022 (1980), cited in the plaintiff’s motion for reconsid-
eration. The trial court, relying on Vines, reversed itself
and decided not to enforce the liquidated damages
clause. It first determined that the plaintiff’s breach was
not wilful. The court expressly noted in the present
case that the plaintiff’s subjective fear that he would
not own waterfront property after the closing6 was not
legally justified, but, nonetheless, was genuine. Second,
the court found that the defendants incurred actual
damages of $130,734. The trial court found that, after
the plaintiff’s default, the defendants sold the property
to third party purchasers, Thomas Keller and Laura
Keller, for $2,525,000, which was $25,000 less than the
contract price with the plaintiff. The closing for the
sale to the Kellers was held on August 31, 2011. The
defendants provided the Kellers with a warranty deed,
for the property as described on schedule A and map
591, and a quitclaim deed for the property west of the
591 line. There were greater expenses incurred in the
sale to the Kellers than those that would have been
incurred if the plaintiff had closed on the property pur-
suant to the contract. The increase included a higher
broker commission in the amount of $12,500 and a
higher conveyance tax in the amount of $6313, due to
a change in the law. The defendants paid carrying costs
with respect to the property because of the delay in
closing. The additional carrying costs included mort-
gage interest of $23,450; property taxes of $8836; insur-
ance costs of $748; and Rowayton Beach Association
dues of $72. The defendants also incurred additional
legal fees in the amount of $5039, additional attorney’s
fees in the amount of $18,454, and dock permit applica-
tion expenses of $1554. They lost a reasonable return
on their equity in the property in the amount of $5268.
The court reasoned that ‘‘[b]ecause the actual damages
incurred by the defendants are so disparate, from the
amount that they seek to retain pursuant to the liqui-
dated damages clause the court finds that the plaintiff
has sustained his burden of proof with regard to count
two that the defendants have been unjustly enriched
in the amount of $124,266.’’
The plaintiff claims that the court erred in calculating
the amount of the defendants’ actual damages to be
$130,734 ($255,000 less $124,266) because (1) the court
did not calculate the defendants’ actual damages as of
the date of the plaintiff’s breach, but rather included
calculations of damages occurring after the breach; and
(2) the court improperly considered incidental and con-
sequential damages in its assessment of whether the
damages suffered were ‘‘substantially less’’ than those
provided for under the liquidated damages clause, pur-
suant to Vines v. Orchard Hills, Inc., supra, 181
Conn. 513.
On cross appeal, the defendants argue that the liqui-
dated damages clause was enforceable because it met
the three conditions set forth in our case law. See Amer-
ican Car Rental, Inc. v. Commissioner of Consumer
Protection, 273 Conn. 296, 306–307, 869 A.2d 1198
(2005). They further argue that it is not appropriate to
calculate actual losses in order to decide whether a
liquidated damages clause applies.7 We agree with
the defendants.
The liquidated damages provision of the contract pro-
vides in paragraph 16: ‘‘If BUYER is in material default
hereunder and the closing fails to occur within thirty
(30) days of the date set forth herein for closing, and
Seller is not in default hereunder, or, on or before the
date of closing as set forth herein, indicates in writing
that BUYER is unable or unwilling to perform and
SELLER stands ready to perform SELLER’s obligations,
SELLER’s sole and exclusive remedy shall be the right
to terminate this agreement by written notice to BUYER
or BUYER’s attorney and retain the down payment as
reasonable liquidated damages for BUYER’s inability
or unwillingness to perform.’’
‘‘A provision for liquidated damages . . . is one the
real purpose of which is to fix fair compensation to the
injured party for a breach of the contract. In determin-
ing whether any particular provision is for liquidated
damages or for a penalty, the courts are not controlled
by the fact that the phrase liquidated damages or the
word penalty is used. Rather, that which is determina-
tive of the question is the intention of the parties to the
contract. Accordingly, such a provision is ordinarily to
be construed as one for liquidated damages if three
conditions are satisfied: (1) The damage which was to
be expected as a result of a breach of the contract was
uncertain in amount or difficult to prove; (2) there was
an intent on the part of the parties to liquidate damages
in advance; and (3) the amount stipulated was reason-
able in the sense that it was not greatly disproportionate
to the amount of the damage which, as the parties
looked forward, seemed to be the presumable loss
which would be sustained by the contractee in the event
of a breach of the contract.’’ (Internal quotation marks
omitted.) American Car Rental, Inc. v. Commissioner
of Consumer Protection, supra, 273 Conn. 306–307. The
court found before reconsideration that these condi-
tions were satisfied and that the clause, as written, was
not unconscionable. The court on reconsideration, was
not asked and therefore did not reconsider whether
the claim was unenforceable, but simply decided that
enforcing it in the circumstances would result in unjust
enrichment. The plaintiff does not contest this finding
on appeal.
The plaintiff claims on appeal that the defendants
were unjustly enriched by retaining the deposit as liqui-
dated damages when actual damages were ‘‘substan-
tially less’’ than the liquidated amount. In Vines v.
Orchard Hills, Inc., supra, 181 Conn. 503, a husband
and wife, the purchasers, had given the seller a $7880
down payment toward the purchase of a condominium,
which amount was designated in the contract of sale
to be liquidated damages on default. The buyers later
refused to accept title to the property because the hus-
band’s employment was transferred out of state. Id. The
purchasers established at the trial court that they had
agreed to buy the condominium for $78,800 and that
by the time of trial, approximately six years later, the
condominium had a fair market value of $160,000. Id.,
503. The trial court, using the fair market value at the
time of trial, concluded that, because the seller had
received a windfall of approximately $80,000, the pur-
chasers were entitled to recover their down payment.
Id. There was no evidence at trial of the market value
of the condominium at the time of the breach or the
damages sustained by the seller as a result of that
breach. Id., 503–504.
In Vines, our Supreme Court addressed the issue of
‘‘the enforceability of a liquidated damages clause as a
defense to a claim of restitution by purchasers in default
on a land sale contract.’’ Id., 504. The court held that
‘‘a purchaser whose breach is not willful has a restitu-
tionary claim to recover moneys paid that unjustly
enrich his seller.’’ Id. 509. The court further stated:
‘‘Despite the judicial resistance that [liquidated dam-
ages] clauses have encountered in the past . . . this
court has recognized the principle that there are circum-
stances that justify private agreements to supplant judi-
cially determined remedies for breach of contract. . . .
This court has however refused to enforce an otherwise
valid liquidated damages clause upon a finding that no
damages whatsoever ensued from the particular breach
of contract that actually occurred. Norwalk Door Closer
Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 689,
220 A.2d 263 (1966). Most of the litigation concerning
liquidated damages clauses arises in the context of an
affirmative action by the party injured by breach to
enforce the clause in order to recover the amount
therein stipulated. In such cases, the burden of persua-
sion about the enforceability of the clause naturally
rests with its proponent. . . . In the case before us, by
contrast, where the plaintiffs are themselves in default,
the plaintiffs bear the burden of showing that the clause
is invalid and unenforceable. . . . It is not unreason-
able in these circumstances to presume that a liquidated
damages clause that is appropriately limited in amount
bears a reasonable relationship to the damages that the
seller has actually suffered. . . . A liquidated damages
clause allowing the seller to retain 10 percent of the
contract price as earnest money is presumptively a rea-
sonable allocation of the risks associated with default.
. . . The presumption of validity that attaches to a
clause liquidating the seller’s damages at 10 percent
of the contract price in the event of the purchaser’s
unexcused nonperformance is, like most other pre-
sumptions, rebuttable. The purchaser, despite his
default, is free to prove that the contract, or any part
thereof, was the product of fraud or mistake or uncon-
scionability. . . . In the alternative, the purchaser is
free to offer evidence that his breach in fact caused the
seller no damages or damages substantially less than the
amount stipulated as liquidated damages. See Norwalk
Door Closer Co. v. Eagle Lock & Screw Co., supra, 689.’’
(Citations omitted; internal quotation marks omitted.)
Vines v. Orchard Hills, Inc., supra, 181 Conn. 511–13.
The court in Vines concluded that the trial court
had erred in concluding that the sellers had received a
windfall because the relevant time as of which to mea-
sure the seller’s damages is the time of breach. Id., 513.
The court noted that there was no evidence that the
seller was not injured at the time of the purchaser’s
breach and concluded that ‘‘[b]ecause the availability
of, and the limits on, restitutionary claims by a plaintiff
in default have not previously been clearly spelled out
in our cases, it is appropriate to afford to the purchasers
herein another opportunity to proffer evidence to sub-
stantiate their claim. What showing the purchasers must
make cannot be spelled out with specificity in view of
the sparsity of the present record. The purchasers may
be able to demonstrate that the condominium could,
at the time of their breach, have been resold at a price
sufficiently higher than their contract price to obviate
any loss of profits and to compensate the seller for any
incidental and consequential damages. Alternatively,
the purchasers may be able to present evidence of
unconscionability or of excuse, to avoid the applicabil-
ity of the liquidated damages clause altogether. The
plaintiffs’ burden of proof is not an easy one to sustain,
but they are entitled to their day in court.’’ Id., 514.
In Norwalk Door Closer Co. v. Eagle Lock & Screw
Co., supra, 153 Conn. 689, our Supreme Court deter-
mined that an otherwise valid liquidated damages
clause was not enforceable where the nonbreaching
party suffered no damages. The court reasoned: ‘‘The
circumstances which the parties might reasonably fore-
see at the time of making a contract could, in any given
case, be vastly different from the circumstances which
actually exist when a court is called upon to enforce
the contract. It is not the function of the court to deter-
mine by hindsight the reasonableness of the expectation
of the parties at the time the contract was made, but
it is the function of the court at the time of enforcement
to do justice. In the ordinary contract action the court
determines the just damages from evidence offered. In
a valid contract for liquidated damages, the parties are
permitted, in order to avoid the uncertainties and time-
consuming effort involved, to estimate in advance the
reasonably probable foreseeable damages which would
arise in the event of a default. Implicit in the transaction
is the premise that the sum agreed upon will be within
the fair range of those just damages which would be
called for and provable had the parties resorted to
proof. Consequently, if the damage envisioned by the
parties never occurs, the whole premise for their agreed
estimate vanishes, and, even if the contract was to be
construed as one for liquidated damages rather than
one for a penalty, neither justice nor the intent of the
parties is served by enforcement. To enforce it would
amount in reality to the infliction of a penalty.’’ Id.,
688–89.
In Stabenau v. Cairelli, 22 Conn. App. 578, 577 A.2d
1130 (1990), this court held that the trial court’s finding
of unjust enrichment was not clearly erroneous because
there was evidence to support the trial court’s finding
that the purchaser’s breach was not wilful, but rather
was prompted by a fear that he would lose his job
and be unable to make the payments necessary for the
purchase of the real estate, and that the sellers sold
the real estate at a higher price, thereby suffering no
damage. Citing Vines, this court stated: ‘‘Otherwise
valid liquidated damages clauses may not be enforced
when the nonbreaching party suffers no damages. [I]f
the damage envisioned by the parties never occurs, the
whole premise for their agreed estimate vanishes, and
. . . neither justice nor the intent of the parties is
served by enforcement. . . . A purchaser of real prop-
erty does not, despite his knowing default, forfeit the
right to seek restitution of sums of money earlier paid
under the contract of sale, even when such payments
are therein characterized as liquidated damages. . . .
A buyer in nonwillful default can recover monies paid
upon the contract and retained by the seller, despite
an otherwise valid liquidated damages clause, where
the seller has sustained no damages. . . . A conclusion
of unjust enrichment required the court to find that the
plaintiffs’ breach was not willful and that the defendants
sustained no damage or damage substantially less than
the amount stipulated in the liquidated damages clause.
. . . These conclusions are factual findings that we will
not retry on appeal. . . . Our review is limited solely
to the determination of whether, on the record, the
court’s determinations are clearly erroneous.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
580–81 (liquidated damages provision in contract not
enforceable because nonbreaching seller suffered no
damages).
We need not address the plaintiff’s argument that
the trial court erred in failing to award in restitution
damages the full amount of the $255,000 deposit
because we conclude that the liquidated damages
clause should have been enforced. In balancing the
sometimes competing considerations of liquidated dam-
ages clauses and equitable restitution, Vines carved out
an exception to the enforcement of otherwise valid
liquidated damages clauses in certain circumstances.
The court noted that the breaching party bears the
burden of rebutting the presumptive validity of liqui-
dated damages clauses that fix damages at 10 percent
of the real estate contract price. The buyer has the
burden to prove that his nonwilful breach ‘‘in fact
caused the seller no damages or damages substantially
less than the amount stipulated as liquidated damages.’’
Vines v. Orchard Hills, Inc., 181 Conn. 513. The present
case differs from Stabenau and Norwalk Door Closer
Co., in which the nonbreaching party suffered no dam-
ages. We then must consider the language in Vines
stating that liquidated damages clauses may be unen-
forceable when the actual damages are ‘‘substantially
less’’ than the contractual amount of liquidated dam-
ages. Vines does not elaborate on the language. The
parties have not referred us to any binding authority,
nor have we been able to find any, that addresses the
scope of the Vines exception.
Expansion of the ‘‘substantially less’’ exception in
Vines would allow the tail to wag the dog. Parties con-
tract for liquidated damages clauses at least partly
because of difficulty in assessing damages.8 So long as
neither the contract nor its enforcement is patently
inequitable, parties are to be accorded the benefits,
or burdens, of their bargains; after-the-fact parsing of
damages defeats that purpose. ‘‘Because [t]he very pur-
pose for which [liquidated damages] provisions are sus-
tained is to obviate the difficulties of [proof of actual
damage], once such a provision is found to be valid,
no proof of the true amount of injury is required. . . .
Rather, if an anticipated measure of damages is speci-
fied in the contract, the terms of the contract prevail
over any measure of actual damages. The liquidated
amount is not reduced or expanded by the actual dam-
age suffered.’’ (Citations omitted; internal quotation
marks omitted.) Litton Industries Credit Corp. v. Cata-
nuto, 175 Conn. 69, 74–75, 394 A.2d 191 (1978). The
exception in Vines may be invoked to avoid injustice
in unusual situations.9 See, e.g., Stabenau v. Cairelli,
supra, 22 Conn. App. 580.
The court erred in concluding that the actual damages
in this case were so substantially less than that provided
as liquidated damages that the provision was unenforce-
able. Accordingly, we reverse the judgment of the trial
court as to the unjust enrichment count and direct judg-
ment in favor of the defendants.
III
The plaintiff next claims that the court erred in
determining that there was no mutual mistake sufficient
to compel reformation of the contract. We disagree.
‘‘A mutual mistake is one that is common to both
parties and effects a result that neither intended. . . .
In that sense, a mutual mistake requires a mutual misun-
derstanding between the parties as to a material fact.’’
(Citation omitted; internal quotation marks omitted.)
BRJM, LLC v. Output Systems, Inc., 100 Conn. App.
143, 148, 917 A.2d 605, cert. denied, 282 Conn. 917, 925
A.2d 1099 (2007). ‘‘Whether there has been [a mutual]
mistake is a question of fact.’’ Inland Wetlands & Water-
courses Agency v. Landmark Investment Group, Inc.,
218 Conn. 703, 708, 590 A.2d 968 (1991). ‘‘The remedy of
reformation is appropriate in cases of mutual mistake—
that is where, in reducing to writing an agreement made
or transaction entered into as intended by the parties
thereto, through mistake, common to both parties, the
written instrument fails to express the real agreement
or transaction. . . . In short, the mistake, being com-
mon to both parties, effects a result which neither
intended.’’ (Citations omitted; internal quotation marks
omitted.) Lopinto v. Haines, 185 Conn. 527, 532, 441
A.2d 151 (1981).
The plaintiff sought reformation of the contract on
the ground of mutual mistake. The court noted that
‘‘[t]he assumption underlying the plaintiff’s argument
is that both parties were mistaken in their mutual belief
that the defendants owned all of the property to the
mean high waterline.’’ The trial court rejected the plain-
tiff’s claim. The court reasoned that, although it was
the parties’ intent to contract for the sale of property
to the mean high waterline, there was no evidence pre-
sented to the court that the defendants did not own the
property to the mean high waterline. Rather, the better
evidence demonstrated that the defendants owned the
property to the current mean high waterline, through
the doctrine of accretion, and that, had the plaintiff
accepted the deed or deeds the defendants were willing
to provide, the plaintiff would have owned the property
to the current mean high waterline. The court further
found that Chute was aware of the doctrine of accretion
and had explained to the plaintiff that the property had
been expanded by accretion.
The plaintiff argues that the court erred in character-
izing the claimed mutual mistake as a mutual belief that
the defendants owned all the property to the mean high
waterline. The plaintiff contends rather that the mutual
mistake was that both parties had mistakenly believed
that the property description in schedule A included
the full extent of the property to the current mean high
waterline. In other words, the mutual mistake was that
both parties believed that the defendants owned mar-
ketable title to the property beyond the 591 line to
the current mean high waterline. Schedule A, however,
expressly described the property as bound on the west
by the 591 line. The plaintiff argues that because the
court misinterpreted the plaintiff’s claim regarding what
constituted the mutual mistake, its conclusion that the
plaintiff did not satisfy his burden was clearly
erroneous.
The court, however, did address the claim that the
parties intended to convey marketable title to the entire
property, including that portion west of the 591 line
to the current mean high waterline. In ruling on the
plaintiff’s motion for reargument and reconsideration
as to the breach of contract claim, the court stated:
‘‘The plaintiff seeks to twist the finding of the court
into a finding that it was the intent of the parties to
contract for the conveyance of marketable title to all
the property to the mean high waterline. The court
made no such finding and, in fact, the better evidence
is that the parties in their discussions prior to execution
[of] the contract did not consider the nature of the title
to be conveyed.’’ (Emphasis in original.) Because the
court found that the parties did not consider the precise
nature of title to be conveyed, the plaintiff did not sus-
tain his burden as to his claim of mutual mistake. On
the record provided to us, the court’s conclusion that
the plaintiff had not proved a mutual mistake is not
clearly erroneous.
IV
The plaintiff next claims that the court erred in con-
cluding that he did not prove the counts alleging fraudu-
lent misrepresentation, innocent misrepresentation and
negligent misrepresentation as against Chute. We
disagree.
This court reviews findings of misrepresentation
under the clearly erroneous standard. McClintock v.
Rivard, 219 Conn. 417, 426–27, 593 A.2d 1375 (1991).
‘‘To assert a claim for intentional misrepresentation
or fraudulent inducement the buyers must prove that
(1) a false representation was made as a statement of
fact; (2) it was untrue and known to be untrue by the
party making it; (3) it was made to induce the other
party to act upon it; and (4) the other party did so act
upon that false representation to his injury.’’ Biro v.
Matz, 132 Conn. App. 272, 288, 33 A.3d 742 (2011).
‘‘The elements of [innocent misrepresentation] are (1)
a representation of material fact, (2) made for the pur-
pose of inducing the purchase, (3) the representation
is untrue, and (4) there is justifiable reliance by the
plaintiff on the representation by the defendant and (5)
damages.’’ (Internal quotation marks omitted.) Matyas
v. Minck, 37 Conn. App. 321, 333, 655 A.2d 1155 (1995).
‘‘Traditionally, an action for negligent misrepresenta-
tion requires the plaintiff to establish (1) that the defen-
dant made a misrepresentation of fact (2) that the
defendant knew or should have known was false, and
(3) that the plaintiff reasonably relied on the misrepre-
sentation, and (4) suffered pecuniary harm as a result.’’
Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626,
910 A.2d 209 (2006). ‘‘Liability for negligent misrepre-
sentation may be placed on an individual when there has
been a failure to disclose known facts and, in addition
thereto, a request or an occasion or a circumstance
which imposes a duty to speak. . . . Such a duty is
imposed on a party insofar as he voluntarily makes
disclosure. A party who assumes to speak must make
full and fair disclosure as to the matters about which he
assumes to speak.’’ (Internal quotation marks omitted.)
Johnnycake Mountain Associates v. Ochs, 104 Conn.
App. 194, 206, 932 A.2d 472 (2007), cert. denied, 286
Conn. 906, 944 A.2d 978 (2008).
The court determined that common elements of each
of the misrepresentation claims were a material misrep-
resentation by Chute and justifiable reliance by the
plaintiff on such misrepresentation. The court noted
that the plaintiff asserted that Chute misrepresented
the property to be waterfront and misrepresented that
he owned the property to the current mean high water-
line. The court found that Chute made the representa-
tions, but that the plaintiff failed to sustain his burden
of proving that the representations were false. The court
noted that there was no evidence that the defendants
did not own the property to the current mean high
waterline and that the more persuasive evidence indi-
cated that the defendants owned the property west of
the 591 line; had the plaintiff completed the transaction,
he would have owned the property to the current mean
high waterline.10 The court further concluded that the
plaintiff had not proven justifiable reliance on any
alleged misrepresentation because a simple comparison
between the property description contained in the ini-
tial survey and that in the contract would have alerted
the plaintiff to any discrepancy. The court further found
that Chute, in representing that the property was water-
front and that he owned the property to the mean high
waterline, did not represent the nature of his ownership
in terms of marketable title or otherwise. The court
found that in his discussions with the plaintiff, Chute
was speaking in common parlance and said that he
owned the property. The court found credible Chute’s
testimony that, prior to the execution of the contract,
he would not have thought of or known of the nuances
of marketable title.
The plaintiff argues that the court erroneously con-
cluded that Chute’s representations pertained only to
ownership rather than to marketable title. He contends
that, prior to the signing of the contract, the defendants
provided him with a survey that depicted the western
boundary as the current mean high waterline, as well as
with other documents similarly depicting the property.
The parties discussed water related amenities, includ-
ing a dock, and incorporated such considerations into
the contract in paragraph 38.11 The plaintiff argues that
he relied on such representations and entered into the
contract believing that he was purchasing marketable
title to the property to the current mean high waterline.
The plaintiff’s claim hinges on the premise that Chute
represented that he owned marketable title to the prop-
erty to the west of the 591 line when he did not. The
court, however, found the testimony of Chute credible
in this regard. It found that Chute accurately repre-
sented that he owned the property to the mean high
waterline, but he did not represent the nature of his
ownership as marketable title or otherwise. The court’s
findings were not clearly erroneous, and it was within
the exclusive province of the trial court, as the fact
finder, to resolve questions of credibility. See, e.g., Levy,
Miller, Maretz, LLC v. Vuoso, 70 Conn. App. 124, 130-
31, 797 A.2d 574 (2002).
V
The plaintiff next claims that the court erred in
determining that Chute did not violate CUTPA. We
disagree.
In his posttrial memorandum of law, the plaintiff
argued that Chute was engaged in the business of selling
and building residential homes and that his misrepre-
sentations to the plaintiff regarding his ownership of
the property and his refusal to return the plaintiff’s
deposit violated CUTPA. The trial court determined that
the plaintiff failed to prove that Chute’s conduct ‘‘in
any way was a violation of CUTPA.’’
‘‘[General Statutes §] 42-110b (a) provides that [n]o
person shall engage in unfair methods of competition
and unfair or deceptive acts or practices in the conduct
of any trade or commerce. It is well settled that in
determining whether a practice violates CUTPA we
have adopted the criteria set out in the cigarette rule
by the [F]ederal [T]rade [C]omission for determining
when a practice is unfair: (1) [W]hether the practice,
without necessarily having been previously considered
unlawful, offends public policy as it has been estab-
lished by statutes, the common law, or otherwise—in
other words, it is within at least the penumbra of some
common law, statutory, or other established concept
of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; (3) whether it causes sub-
stantial injury to consumers, [competitors or other busi-
nesspersons]. . . . All three criteria do not need to be
satisfied to support a finding of unfairness. A practice
may be unfair because of the degree to which it meets
one of the criteria or because to a lesser extent it meets
all three. . . . Thus a violation of CUTPA may be estab-
lished by showing either an actual deceptive practice
. . . or a practice amounting to a violation of public
policy. . . . In order to enforce this prohibition,
CUTPA provides a private cause of action to [a]ny per-
son who suffers any ascertainable loss of money or
property, real or personal, as a result of the use or
employment of a [prohibited] method, act or practice
. . . .’’ (Internal quotation marks omitted.) Ulbrich v.
Groth, 310 Conn. 375, 409–10, 78 A.3d 76 (2013). ‘‘It is
well settled that whether a defendant’s acts constitute
. . . deceptive or unfair trade practices under CUTPA,
is a question of fact for the trier’’ that we review under
the clearly erroneous standard. Russell v. Russell, 91
Conn. App. 619, 646, 882 A.2d 98, cert. denied, 276 Conn.
924, 925, 888 A.2d 92 (2005).
The plaintiff’s CUTPA claim incorporates and
expands upon his claims regarding breach of contract
and misrepresentation. We have concluded that the
court properly rejected the plaintiff’s claims for breach
of contract and misrepresentation, on which the CUTPA
claim was premised. Accordingly, we conclude that the
court did not err in concluding that the plaintiff had
not proved his CUTPA claim.
VI
The plaintiff’s final claim concerns the court’s award
of attorney’s fees to the defendants. On appeal, the
plaintiff claims that the court erred in awarding to the
defendants attorney’s fees and disbursements. On cross
appeal, the defendants claim that the court erred in
reducing the amount of attorney’s fees. We disagree
with both contentions.
The defendants filed a motion for attorney’s fees on
the ground that the contract provided that the prevailing
party was entitled to attorney’s fees and that they were
the prevailing parties in the litigation. Following the
court’s ruling on the plaintiff’s motion for reargument/
reconsideration, the defendants filed a supplemental
motion for attorney’s fees on the same ground and
added a claim for additional attorney’s fees for litigating
the plaintiff’s motion for reargument/reconsideration.
The court granted the defendants’ motion for attorney’s
fees, and awarded $80,000 in attorney’s fees and $741.35
in disbursements.
‘‘The general rule of law known as the American
rule is that attorney’s fees and ordinary expenses and
burdens of litigation are not allowed to the successful
party absent a contractual or statutory exception. . . .
Connecticut adheres to the American rule. . . . There
are few exceptions. For example, where a specific con-
tractual term provides for the recovery of attorney’s
fees and costs . . . or where a statute controls.’’ (Cita-
tions omitted; internal quotation marks omitted.) 24
Leggett Street Ltd. Partnership v. Beacon Industries,
Inc., 239 Conn. 284, 311, 685 A.2d 305 (1996).
‘‘A court has few duties of a more delicate nature
than that of fixing counsel fees. The issue grows even
more delicate on appeal; we may not alter an award of
attorney’s fees unless the trial court has clearly abused
its discretion, for the trial court is in the best position
to evaluate the circumstances of each case. . . .
Because the trial court is in the best position to evaluate
the circumstances of each case, we will not substitute
our opinion concerning counsel fees or alter an award
of attorney’s fees unless the trial court has clearly
abused its discretion.’’ (Citation omitted; internal quota-
tion marks omitted.) LaMontagne v. Musano, Inc., 61
Conn. App. 60, 64, 762 A.2d 508 (2000).
A
The plaintiff argues that the defendants are not enti-
tled to attorney’s fees pursuant to the contract because
the contract provided that the prevailing party was
entitled to recover reasonable attorney’s fees and costs,
and the defendants were not the prevailing party. The
plaintiff argues that the only provision of the contract
that the defendants sought to have enforced was the
liquidated damages clause; the court, in its decision on
the plaintiff’s motion for reargument/reconsideration,
found in favor of the plaintiff on the unjust enrichment
count and declined to enforce the liquidated damages
provision.12 We are not persuaded, in part because the
defendants have prevailed in this court on their claim
that the liquidated damages clause is enforceable in
its entirety.
The contract provides in paragraph 29: ‘‘Except as
otherwise expressly provided herein, in the event of
any litigation brought to enforce any material provision
of this Agreement, the prevailing party shall be entitled
to recover its reasonable attorneys’ fees and court costs
from the other party.’’ The contract did not specify
that the prevailing party must also have been the party
seeking to enforce a material provision, but rather in
more general terms provided for attorney’s fees to the
prevailing party in the event that ‘‘any litigation’’ is
brought to ‘‘enforce any material provision of this
Agreement . . . .’’ The present case clearly qualifies as
‘‘any litigation,’’ which sought the enforcement of a
material provision of the contract. The defendants pre-
vailed insofar as they successfully defended against the
plaintiff’s claim that they had breached paragraph 6 (a)
of the contract by not delivering good and marketable
title. ‘‘A prevailing party is one in whose favor a judg-
ment is rendered, regardless of the amount of damages
awarded.’’ (Internal quotation marks omitted.) Yeager
v. Alvarez, 134 Conn. App. 112, 123, 38 A.3d 1224 (2012).
Moreover, the defendants have successfully contended
on appeal that they were entitled to keep the full amount
of the deposit. Although the matter was perhaps a ‘‘split
decision’’ in the trial court, it was within the court’s
discretion to determine that the defendants were, on
the whole, ‘‘prevailing.’’
B
In their postjudgment motions for attorney’s fees,
the defendants sought $138,642 in attorney’s fees and
$741.35 in disbursements. In its decision on the defen-
dants’ motion for attorney’s fees, the court addressed
the plaintiff’s objections, which included arguments
that the defendants’ attorney spent some of his time
on the defendants’ counterclaim on which the defen-
dants did not prevail; he did not spend all of his time
defending the breach of contract claim. The plaintiff
also argued that the hourly rate sought by the defen-
dants’ attorney, between $520 and $540 an hour, was
greater than the prevailing rate. The court determined
that it would be impractical to apportion the time spent
on the various claims and the counterclaim because
evidence and time spent were not clearly assignable to
discrete claims and the counterclaim. The court
observed that the head of the litigation department at
the law firm of the plaintiff’s counsel testified that the
prevailing rate for the type of litigation involved in the
present case was between $300 and $425 per hour and
that the rates charged by the defendants’ counsel were
considerably above the prevailing rate. The court found
that the hourly rates charged by the defendants’ counsel
were outside the norm charged for this type of litigation,
and determined that reasonable attorney’s fees in the
case were $80,000, and $741.35 in disbursements.
The defendants argue in their cross appeal that the
court should have awarded the amount of attorney’s
fees requested for the trial portion of the case, which
was $138,642, and that it erred in reducing the attorney’s
fees portion of the award to $80,000. They contend that
the key factor in the reduction was the court’s finding
that the hourly rates charged by the defendants’ counsel
were higher than typical rates charged. The defendants
argue that the plaintiff’s counsel, who testified as to
typical market rates, readily acknowledged that his
office rates were below market. The defendants further
argue that their attorney spent fewer hours working on
the litigation than the plaintiff’s multiple attorneys and
that efficiency should have been considered in
determining the hourly rate.
‘‘If a contractual provision allows for reasonable
attorney’s fees, [t]here are several general factors which
may properly be considered in determining the amount
to be allowed as reasonable compensation to an attor-
ney. These factors are summarized in [rule 1.5 (a) of
the Rules of Professional Conduct]. . . . These factors
include: the time and labor required; the novelty and
difficulty of the questions involved; the skill requisite to
perform the legal service properly; the fee customarily
charged in the locality for similar legal services; the
amount involved and the results obtained; the time limi-
tations imposed by the client; the experience, reputa-
tion and ability of the lawyer or lawyers performing the
services, and whether the fee is fixed or contingent.
Rules of Professional Conduct 1.5 (a). The commentary
to rule 1.5 provides that the factors specified in the
rule, however, are not exclusive. [W]e have explained
previously courts . . . may rely on their general knowl-
edge of what has occurred at the proceedings before
them to supply evidence in support of an award of
attorney’s fees.’’ (Citations omitted; internal quotation
marks omitted.) WiFiLand, LLP v. Hudson, 153 Conn.
App. 87, 102–103, 100 A.3d 450 (2014).
The court considered relevant factors and acted
within its discretion in determining that reasonable
attorney’s fees were $80,000. The defendants challenge
the court’s finding regarding a reasonable market rate
for the services of their counsel. The head of the litiga-
tion department at the law firm of the plaintiff’s trial
counsel testified that his firm tried to set hourly rates
that were ‘‘comparable’’ to the ranges generally charged
by litigators in the Stamford-Norwalk judicial district
but perhaps were ‘‘a little bit more reasonable . . .
than [those of] most law firms . . . .’’ The trial court
reasonably could have found that the extent to which
the rates were a ‘‘bit more reasonable’’ was minimal or
immaterial. At any rate, we do not conclude that the
court’s finding that the hourly rates of the defendants’
counsel were above market average was a manifest
abuse of its discretion. ‘‘[I]t is not an abuse of discretion
for a court to apply local market rates. Thus, a renowned
lawyer who customarily receives $250 an hour in a field
in which competent and experienced lawyers in the
region normally receive $85 an hour should be compen-
sated at the lower rate.’’ (Internal quotation marks omit-
ted.) Stokes v. Norwich Taxi, LLC, 289 Conn. 465,
495–96, 958 A.2d 1195 (2008) (rejecting plaintiffs’ claim
that trial court abused discretion in failing to apply
current hourly rate of plaintiff’s counsel and holding
that trial court properly applied its broad discretion to
apply local market rate).
The judgment is reversed only as to the unjust enrich-
ment count and the case is remanded with direction to
render judgment on that count in favor of the defen-
dants. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The plaintiff dealt primarily with the Chute.
2
‘‘Accretion is defined as [a]ddition of portions of soil, by gradual deposi-
tion through the operation of natural causes, to that already in possession
of the owner. . . . [T]he owner of waterfront property is benefited in title
by whatever may be joined to his land, above the high-water mark, through
accretion.’’ (Citations omitted; internal quotation marks omitted.) Roche v.
Fairfield, 186 Conn. 490, 495, 442 A.2d 911 (1982).
3
‘‘Pursuant to the [Marketable Title Act (act), General Statutes § 47-33b
et seq.], any person who has an unbroken record chain of title to an interest
in land for a period of forty years, plus any additional period of time necessary
to trace the title back to the latest connecting title instrument of earlier
record (which is the root of title under the act) has a marketable record
title subject only to those pre-root of title matters that are excepted under
the statute or are caused to reappear in the latest forty year record chain
of title. . . . The act declares null and void any interest in real property
not specifically described in the deed to the property which it purports to
affect, unless within a forty year period, a notice specifically reciting the
clamed interest is placed on the land records in the affected land’s chain
of title.’’ (Internal quotation marks omitted.) Irving v. Firehouse Associates,
LLC, 95 Conn. App. 713, 724, 898 A.2d 270, cert. denied, 280 Conn. 903, 907
A.2d 90 (2006). It is, of course, possible to have unfettered title without
having marketable title; here, of course, there technically was no root of
title to the accreted land, yet, by law, it was ‘‘owned’’ by the owner of the
preexisting abutting land.
4
‘‘[T]he parol evidence rule is not an exclusionary rule of evidence . . .
but a rule of substantive contract law . . . to which we afford plenary
review. . . . The rule is premised upon the idea that when the parties have
deliberately put their engagements into writing, in such terms as import a
legal obligation, without any uncertainty as to the object or extent of such
engagement, it is conclusively presumed, that the whole engagement of the
parties, and the extent and manner of their understanding, was reduced to
writing. After this, to permit oral testimony, or prior or contemporaneous
conversations, or circumstances, or usages . . . in order to learn what was
intended, or to contradict what is written, would be dangerous and unjust
in the extreme. . . . Ordinarily, a merger clause provision indicates that the
subject agreement is completely integrated, and parol evidence is precluded
from altering or interpreting the agreement.’’ (Citations omitted; internal
quotation marks omitted.) Weiss v. Smulders, 313 Conn. 227, 248–49, 96
A.3d 1175 (2014).
5
The contract contained, in paragraph 32, a merger clause indicating that
the contract ‘‘completely expresses the agreement of the parties . . . .’’
6
There has been no suggestion in this court that the plaintiff would not
have owned the accreted land after a closing. As stated previously, only
‘‘marketable title’’ could not be conveyed as to the accreted land.
7
The defendants also argue that the court erred in determining that the
plaintiff did not wilfully breach the contract. Because we agree with the
defendants’ other arguments, we need not address this claim.
8
‘‘We long have held that contracting parties may decide on a specified
monetary remedy for the failure to perform a contractual obligation. . . .
[A] liquidated damages provision that fixes the amount of damages to be
paid in the event of a breach is enforceable if it satisfies certain conditions.
. . . A provision for liquidated damages . . . is one the real purpose of
which is to fix fair compensation to the injured party for a breach of the
contract.’’ (Citations omitted; internal quotation marks omitted.) Federal
National Mortgage Assn. v. Bridgeport Portfolio, LLC, 150 Conn. App. 610,
620–21, 92 A.3d 966, cert. denied, 312 Conn. 926, 95 A.3d 523 (2014).
9
Here, the court’s analysis of damages, though gratuitous, illustrates the
point of liquidated damages. The seller’s actual damages as established by
the court, though substantial, were approximately half of the amount of
liquidated damages. The parties were, as the situation developed, somewhat
fortunate, in that the subsequent sale of the property was consummated
within a reasonably short time for a comparable (though somewhat lower)
price. It is not difficult to imagine a different outcome: suppose the property
had remained on the market for an extended period of time, so that the
actual damages turned out to be many times the amount of liquidated
damages. In sum, both sides, in agreeing upon a liquidated damages clause,
incur benefits and risks, and we ought not lightly to disturb the bargain.
10
In reaching this conclusion, the court referenced an opinion letter by
the plaintiff’s expert, a lawyer employed by a title insurance company, who
stated that she had based her opinion on documentation provided by the
defendants’ real estate counsel. She opined that the defendants owned the
property to the current mean high waterline, but neither she nor the defen-
dants’ real estate counsel opined that the defendants had marketable title
to the mean high waterline. The court concluded that the conclusions
reached by the plaintiff’s expert and Chute’s real estate counsel, which were
that the defendants owned the property to the mean high waterline, was
consistent with Connecticut law on the doctrine of accretion. See, e.g.,
Roche v. Fairfield, 186 Conn. 490, 495, 442 A.2d 911 (1982).
11
See part I of this opinion.
12
But see part II of this opinion.