T & M Building Co. v. Hastings

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T & M BUILDING CO., INC. v. WILLIAM
HASTINGS
(AC 38614)
Alvord, Bright and Eveleigh, Js.
Syllabus
The plaintiff brought this action against the defendant seeking the specific
performance of a contract for the sale of certain of the defendant’s real
property to the plaintiff. In 2010, T, the chief executive officer of the
plaintiff, and the defendant created and signed a handwritten document
reflecting their intention for the defendant to sell a parcel of certain
real property to T for development into residential homes. The plaintiff
hired L, an engineer, to develop plans and to obtain permits from the
town and other governmental agencies. Thereafter, the defendant
informed L that he was concerned with the drainage system in L’s plans,
which extended the drainage system into a portion of the defendant’s
property that he was not selling. A revised drainage plan required addi-
tional governmental approvals, and without fully approved plans the
plaintiff refused to close. The plaintiff subsequently instituted this action
seeking specific performance and alleged claims for breach of contract,
unjust enrichment and promissory estoppel as a result of the defendant’s
failure to transfer the property to it. The trial court found in favor of
the defendant on all counts of the complaint and rendered judgment
thereon, from which the plaintiff appealed to this court. Held:
1. The plaintiff could not prevail on its claim that the trial court erred in
determining that the document executed by the parties violated the
statute of frauds: that court found that the document did not identify
the buyer or seller, describe the property with definiteness, or define
boundaries for the property or the size of the parcel, nor did it reference
maps or other documentation that would define and describe the prop-
erty, and it found that a phrase indicating a ‘‘right to back out’’ was so
lacking in context that it was itself evidence that the document did not
satisfy the statute of frauds, and because the document lacked essential
terms required to satisfy the statute of frauds, the court did not err in
declining to utilize extrinsic evidence where, as here, such evidence
was not introduced to aid in the interpretation of a valid contract,
but was advanced to provide essential missing terms; moreover, the
plaintiff’s claim that the court improperly failed to consider its claim
that part performance removed the agreement from the statute of frauds
was unavailing, as the court, in finding for the defendant on the plaintiff’s
breach of contract claim on the ground that the document violated the
statute of frauds, necessarily rejected that claim, and the court found
that the plaintiff’s actions could have been attributed to the risk it took
in investing in L’s services and, thus, did not unmistakably point to the
formation of an enforceable contract, which precluded a conclusion
that the plaintiff satisfied the requirements of part performance to defeat
the statute of frauds.
2. The trial court did not err in rendering judgment for the defendant on
the plaintiff’s unjust enrichment claim, and its finding that the plaintiff
did not confer any benefit on the defendant was not clearly erroneous;
that court found that the defendant was not unjustly enriched by the
plaintiff’s decisions, including its decision to invest in L’s preparation
of plans containing a drainage system that the defendant opposed, and
that there was no credible evidence to support the claim that the defen-
dant received the benefit of L’s plans, and those findings were supported
by the record.
3. The plaintiff’s claim that the trial court erred in rendering judgment for
the defendant on its promissory estoppel claim was unavailing: the court
did not err in concluding that the plaintiff did not suffer substantial
financial injury even though it had incurred expenses, as the court found
that it had incurred expenses not in reliance on a clear and definite
promise that the defendant reasonably could have expected to induce
reliance, but in furtherance of its choice to invest in L’s services, and
although the plaintiff claimed that the court erred, in its promissory
estoppel analysis, in considering the ambiguity of the document exe-
cuted by the parties, the court did not invoke the provisions of the
document to bar the plaintiff’s claim but, rather, considered the docu-
ment in the context of whether a promise, which a promisor reasonably
could have expected would have induced reliance, was made.
Argued September 17—officially released November 26, 2019
Procedural History
Action for specific performance of a contract for the
sale of certain real property, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the matter was tried to the court, Elgo,
J.; judgment in favor of the defendant, from which the
plaintiff appealed to this court. Affirmed.
Brandon B. Fontaine, with whom, on the brief, was
C. Michael Budlong, for the appellant (plaintiff)
Kevin M. Deneen, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiff, T & M Building Co., Inc.,
appeals from the judgment of the trial court rendered
in favor of the defendant, William Hastings. On appeal,
the plaintiff claims that the court erred in (1) determin-
ing that the agreement between the plaintiff and the
defendant violated the statute of frauds, (2) rendering
judgment for the defendant on the plaintiff’s unjust
enrichment claim, and (3) rendering judgment for the
defendant on the plaintiff’s promissory estoppel claim.
We affirm the judgment of the trial court.
The following facts, as found by the trial court or as
undisputed by the parties, and procedural history are
relevant to this appeal. The defendant is the owner of
a 196-acre farm, on which he farms tobacco. He, along
with his brother, Walter Hastings, and his sister, Marion
Jellison, inherited the property in 2007. In 2009, Walter
Hastings instituted a partition action. Following negoti-
ations, the defendant purchased his brother’s interest
in the property, obtaining a mortgage, and also acquired
his sister’s portion of the property. The defendant
engaged Edward Lally, a friend and engineer, to explore
a possible subdivision of a portion of the land. Lally
obtained a zone change for a portion of the land from
agricultural to residential use and submitted a request
for pre-application scrutiny. The defendant asked Lally
whether he knew of anyone interested in buying a por-
tion of his property, and Lally introduced the defendant
to Steven Temkin, chief executive officer of the plaintiff.
Prior to a formal meeting, Temkin drove out to look
at the property. The defendant noticed an individual on
his property and introduced himself. He then invited
Temkin to look over the property. A meeting was held
on July 26, 2010, at Lally’s office, and Temkin and the
defendant created and signed a handwritten document
(Exhibit 1); see appendix to this opinion; reflecting
their intention for the defendant to sell a parcel of his
farmland to Temkin for development into residential
homes. Exhibit 1 states: ‘‘1) Subject to environmental
review—seller to remediate if necessary; 2) Based on
forty-six lots 20,500 each Adjust up or down Right to
Back out $943,000; 3) Free & Clear title; 4) No water &
Sewer assessment due; 5) Closing Jan. 5 or sixty days
after approvals whichever comes first; 5) No mort-
gage contingency.’’
The plaintiff hired Lally to begin developing plans for
the subdivision and to obtain permits from the town of
Windsor and other governmental agencies. On Septem-
ber 7, 2010, shortly after Lally completed an initial draft
of the plans, the defendant immediately informed Lally
that he had a concern with the plans’ drainage system
extending into the portion of his property that he was
not selling. The defendant made clear that he found
drainage extending into such property unacceptable
and that he would not agree to drainage rights being
extended over his remaining land. Lally immediately
informed Temkin of the defendant’s concerns. Lally
continued to work on addressing the defendant’s con-
cerns by seeking permits to have drainage redirected
to the Farmington River. Lally recommended to both
parties that he continue to seek approval of the version
of the plans containing the unacceptable drainage sys-
tem from the Inland Wetlands and Watercourses Com-
mission of the Town of Windsor and the Planning and
Zoning Commission of the Town of Windsor, because if
he was unsuccessful in obtaining the special use permits
required for an open space subdivision, the drainage
issue would be moot. Lally obtained such permits in
October, 2010.
A revised drainage plan with drainage flowing into
the Farmington River required approval from the Army
Corps of Engineers and the Department of Environmen-
tal Protection. In January, 2011, the plaintiff paid the
defendant a 10 percent deposit, in the amount of
$94,300, which funds were held in escrow. The
remaining approvals were not in place as of January,
July, or December, 2011, the dates corresponding with
the defendant’s inquiries about closing the deal. Without
fully approved plans, the plaintiff refused to close. The
defendant had signed applications for extensions of the
existing approval of the subdivision, the last of which
he signed in December, 2011. Thereafter, he let the
approval lapse and ‘‘returned the deposit . . . .’’1
The plaintiff instituted this action against the defen-
dant in February, 2013. In the operative complaint, it
sought specific performance and alleged breach of con-
tract arising out of the defendant’s failure to transfer
the property to the plaintiff. It also alleged unjust enrich-
ment and promissory estoppel, both premised in part
on the allegation that the plaintiff had spent $243,340
in engaging Lally and obtaining the regulatory approvals
necessary to develop the property.2 The matter was
tried to the court. Four witnesses testified: the defen-
dant, Lally, Temkin, and Walter Hastings. Both parties
filed posttrial briefs and reply briefs.
In a memorandum of decision issued on October 5,
2015, the court found in favor of the defendant on all
counts of the plaintiff’s complaint. It first found that
Exhibit 1 failed to satisfy the statute of frauds, on the
basis that it failed to identify the buyer or seller, failed
to describe the property with any degree of definiteness,
and included the phrase ‘‘right to back out.’’ (Internal
quotation marks omitted.) With respect to the plaintiff’s
unjust enrichment claim, the court found that there was
no credible evidence to support the plaintiff’s claim
that the defendant had received the benefit of Lally’s
plans. It further found that despite the defendant’s con-
cerns with respect to drainage, Temkin assumed a busi-
ness risk when the plaintiff continued to invest in Lally’s
services. Thus, the court rejected the unjust enrichment
claim, finding that the defendant’s conduct had not been
inequitable or unconscionable such that he had been
unjustly enriched by the plaintiff’s actions. Turning to
the plaintiff’s promissory estoppel claim, the court
again noted that the ‘‘the plaintiff chose to take the risk
of investing in Lally’s services and other expenses after
the defendant made clear from the outset that he would
not give drainage rights over his property, before any
approvals were secured and well before the drawn out
process of attempting to get approval for a revised
drainage plan.’’ (Emphasis in original.) On the basis of
the ambiguity of Exhibit 1’s terms, including the ‘‘right
to back out’’ and the lack of clarity as to the subject
property, the court found that the plaintiff could not
recover under a theory of promissory estoppel. (Inter-
nal quotation marks omitted.) The plaintiff thereafter
filed a motion to reargue, which was denied summarily.
This appeal followed.3
I
The plaintiff’s first claim on appeal is that the court
erred in finding Exhibit 1 unenforceable under the stat-
ute of frauds without considering both extrinsic evi-
dence to resolve ambiguities contained therein and the
doctrine of part performance. The defendant responds
that the court correctly determined that Exhibit 1 failed
to meet the requirements of the statute of frauds and,
in the absence of an underlying agreement, the doctrine
of part performance is not applicable. We agree with
the defendant.
A
Acknowledging that Exhibit 1 contains ambiguities,
the plaintiff asserts that the court ‘‘should have consid-
ered the substantial extrinsic evidence in the record
that could have resolved those ambiguities.’’ We con-
clude that the court did not err in finding that Exhibit
1 lacked essential terms, such that it was unenforceable
under the statute of frauds.
We first set forth applicable principles of law and
our standard of review. General Statutes § 52-550 (a)
provides in relevant part that ‘‘[n]o civil action may be
maintained in the following cases unless the agreement,
or a memorandum of the agreement, is made in writing
and signed by the party, or the agent of the party, to
be charged . . . (4) upon any agreement for the sale
of real property or any interest in or concerning real
property . . . .’’ ‘‘To comply with the statute of frauds
an agreement must state the contract with such cer-
tainty that its essentials can be known from the memo-
randum itself, without the aid of parol proof, or from
a reference contained therein to some other writing or
thing certain; and these essentials must at least consist
of the subject of the sale, the terms of it and the parties
to it, so as to furnish evidence of a complete agreement.’’
(Internal quotation marks omitted.) Breen v. Phelps,
186 Conn. 86, 92, 439 A.2d 1066 (1982).
‘‘Whether a contract exists is a question of fact for
the court to determine. . . . It is not within the power
of this court to find facts or draw conclusions from
primary facts found by the trial court. As an appellate
court, we review the trial court’s factual findings to
ensure that they could have been found legally, logically
and reasonably. . . . Thus, the trial court’s factual
determination that a contract existed must stand unless
we conclude that it was clearly erroneous.’’ (Citations
omitted; internal quotation marks omitted.) Levesque
Builders, Inc. v. Hoerle, 49 Conn. App. 751, 754–55,
717 A.2d 252 (1998). The determination of whether a
contract is sufficiently definite to satisfy the statute of
frauds also is a question of fact, and ‘‘the trial court’s
findings in this regard must stand unless they are clearly
erroneous.’’ Id., 757.
‘‘Appellate review under the clearly erroneous stan-
dard is a two-pronged inquiry: [W]e first determine
whether there is evidence to support the finding. If
not, the finding is clearly erroneous. Even if there is
evidence to support it, however, a finding is clearly
erroneous if in view of the evidence and pleadings in
the whole record [this court] is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Id., 755.
In order for a contract for the sale of land to satisfy
the statute of frauds, it must set forth the essential
terms of the contract—the purchase price, the parties,
and the subject matter for sale. SS-II, LLC v. Bridge
Street Associates, 293 Conn. 287, 294, 977 A.2d 189(2009). In the present case, the court found that Exhibit
1 ‘‘does not identify the buyer or seller; it fails com-
pletely to describe the property with any degree of
definiteness. It does not even identify the street, town,
state or country in which the property is located. It
does not define boundaries for the property, the size
of the lots, the size of the parcel, nor does it reference
maps or other documentation that would define and
describe the property.’’ The court further found that
the ‘‘right to back out’’ phrase ‘‘is so lacking in adequate
context that it is itself evidence that the document does
not satisfy the statute of frauds.’’ (Internal quotation
marks omitted.)
We conclude that the court’s findings are not clearly
erroneous. Although the court found that Exhibit 1 con-
tains the signatures of both Temkin and the defendant,
neither party is identified in the document, nor is Tem-
kin identified in relation to the plaintiff. See DeLuca v.
C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 543–44,
391 A.2d 170 (1978) (holding that contract that men-
tioned only limited agent and not seller failed to satisfy
statute of frauds). Moreover, evidence supported a find-
ing that Exhibit 1 is deficient with respect to the subject
matter for sale. See Mansour v. Clark, 5 Conn. Cir. Ct.
439, 440 n.1, 442, 256 A.2d 436 (1968) (writing failed to
satisfy statute of frauds on basis that precise area of
land was not ascertained, where writing described sub-
ject of sale as portion of land lying ‘‘generally southerly
and westerly of your property’’). Exhibit 1 alludes to
forty-six lots, but wholly fails to identify the location
or size of the lots, and it includes the phrases ‘‘adjust
up or down’’ and ‘‘right to back out.’’ Thus, the court’s
finding that Exhibit 1 fails to satisfy the statute of frauds
is not clearly erroneous.
Moreover, because Exhibit 1 lacks essential terms
required to satisfy the statute of frauds, we cannot con-
clude that the court erred in declining to utilize extrinsic
evidence to add to those terms. Our Supreme Court
has stated that ‘‘[i]n order to be in compliance with the
statute of frauds . . . an agreement must state the con-
tract with such certainty that its essentials can be
known from the memorandum itself, without the aid
of parol proof . . . . The statute of frauds is also satis-
fied [when] the contract or memorandum contains by
reference some other writing or thing certain.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) SS-II, LLC v. Bridge Street Associates, supra,293 Conn. 294; see also DeLuca v. C. W. Blakeslee &
Sons, Inc., supra, 174 Conn. 543–44 (written memo-
randa were ‘‘not sufficient in themselves and made no
reference to any other writing or thing certain to provide
the missing essentials’’); Gabriele v. Brino, 85 Conn.
App. 503, 509, 858 A.2d 273 (2004) (‘‘[a]lthough under
certain circumstances, the court may read documents
together to satisfy the statute of frauds . . . the multi-
ple writings still must state the essential terms of the
contract without the use of parol proof’’ [citation omit-
ted]); cf. Lynch v. Davis, 181 Conn. 434, 441 n.5, 435
A.2d 977 (1980) (‘‘[a] memorandum under the Statute
of Frauds, because it serves a purpose different than
that of an integrated writing invoking the parol evidence
rule,4 does not exclude the introduction of consistent
additional nonessential parol terms’’ [emphasis added;
footnote added]). The court in the present case found
Exhibit 1 deficient as to its essential terms, and found
that it lacked reference to any other document. Thus,
the court was not required to consider parol evidence
to correct deficiencies in the essential terms of the
agreement.
On appeal, the plaintiff relies on Foley v. Huntington
Co., 42 Conn. App. 712, 735, 682 A.2d 1026, cert. denied,
239 Conn. 931, 683 A.2d 397 (1996), in support of its
claim that Exhibit 1, when considered in light of extrin-
sic evidence, is sufficient to satisfy the statute of frauds.
In Foley, the plaintiff entered into a contract with the
defendants for the purchase of a nursing home. Id., 715.
Although the nursing home was located on a 10.09 acre
tract of land, the contract provided for the sale of 3.74
acres of land, which had been proposed by a surveyor
in furtherance of the plaintiff’s intention to purchase
enough land to operate the nursing home. Id., 715–16.
Prior to the closing date, it was discovered that the
3.74 acre tract of land, which the nursing home would
occupy after the sale, would violate the town of Fair-
field’s zoning requirements. Id., 716. The defendants
rejected several solutions proposed by the plaintiff to
avoid the zoning violation and the defendants ultimately
failed to apply for a variance in violation of a court
order to do so. Id., 716–17. The plaintiff filed suit alleg-
ing, among other causes of action, breach of contract.
Id., 718. Following a jury verdict in the plaintiff’s favor
on his breach of contract claim, the trial court granted
the defendants’ motion to set aside the jury award.
Id., 722–23.
On appeal, the plaintiff in Foley argued that the trial
court improperly set aside the verdict because there
was sufficient evidence to establish that the defendants
had breached their promise to convey enough land to
operate a nursing home. Id., 726. The parties’ arguments
concerned whether the defendants were obligated to
sell only 3.74 acres and the nursing home building or
whether they were obligated to sell additional land to
make the nursing home operable. Id., 729. This court
concluded that the construction of the contract was a
question of fact for the jury and that the jury could
have concluded that the contract was ‘‘one for the sale
of land on which a nursing home business could be
conducted.’’ Id. In so concluding, the court looked to
various contract terms that supported a jury finding
that the parties intended to sell an operable nursing
home, including that the contract provided for the sale
of certain assets necessary for operating the business,
including employee information and certain licenses,
and that the seller agreed to ‘‘comply with all regulatory
agencies’ requirements regarding change of ownership
to allow the Buyer to obtain all necessary licenses,
Medicaid and Medicare rates and other necessary
requirements.’’ (Internal quotation marks omitted.) Id.,
731–32. This court also looked to extrinsic evidence in
the record of the parties’ intent, rejecting the defen-
dants’ argument that the introduction of such evidence
had violated the parol evidence rule.5 Id., 732–33. This
court concluded that the challenged evidence was not
used to vary the terms of the contract, but rather to
aid in the interpretation of the contract and to determine
the intent of the parties. Id., 734.
The defendant next argued that the additional obliga-
tion of ‘‘enough land to operate a nursing home’’ consti-
tuted an oral contract that was unenforceable in viola-
tion of the statute of frauds. (Internal quotation marks
omitted.) Id., 729, 735. This court explained that ‘‘[t]he
statute of frauds was not violated because a written
contract to sell land existed, and the evidence admitted
was used properly to discern the intent of the parties.’’
Id., 736. It reasoned that although ‘‘the addendum
clearly described the sale of 3.74 acres along with the
buildings on said acres, the contract language indicates
that the sale was of a nursing home, which is more
than the sale of a building. Whether the parties intended
to contract for the sale of a building on 3.74 acres or
the sale of an operable nursing home is a question of
fact, which properly was submitted to the jury.’’ Id., 729.
Because the extrinsic evidence in Foley was admitted
to discern the intent of the parties to a valid written
contract, we find Foley distinguishable. In the present
case, the extrinsic evidence advanced by the plaintiff
was not introduced to aid in the interpretation of a valid
contract formed between the parties, but, rather, it was
advanced to provide essential terms that were missing
from Exhibit 1.6
B
The plaintiff next argues that the court failed to con-
sider its claim that part performance removed the con-
tract from the statute of frauds. In the alternative, it
argues that ‘‘if this court holds that the trial court did
conduct that analysis, then the plaintiff asserts that the
trial court’s silent finding that part performance did not
apply was clearly erroneous.’’ The defendant responds
that ‘‘there was no meeting of the minds in regards to
essential contract terms between the parties here, and
therefore, part performance cannot apply.’’ We agree
with the defendant.
We first set forth general principles of law and our
standard of review. ‘‘[W]hen estoppel is applied to bar
a party from asserting the statute of frauds . . . we
. . . require that the party seeking to avoid the statute
must demonstrate acts that constitute part performance
of the contract. . . . Specifically, [t]he acts of part per-
formance . . . must be such as are done by the party
seeking to enforce the contract, in pursuance of the
contract, and with the design of carrying the same into
execution, and must also be done with the assent,
express or implied, or knowledge of the other party,
and be such acts as alter the relations of the parties.
. . . The acts also must be of such a character that
they can be naturally and reasonably accounted for in
no other way than by the existence of some contract
in relation to the subject matter in dispute. . . .
‘‘Thus . . . the elements required for part perfor-
mance are: (1) statements, acts or omissions that lead
a party to act to his detriment in reliance on the contract;
(2) knowledge or assent to the party’s actions in reliance
on the contract; and (3) acts that unmistakably point
to the contract. . . . Under this test, two separate but
related criteria are met that warrant precluding a party
from asserting the statute of frauds. . . . First, part
performance satisfies the evidentiary function of the
statute of frauds by providing proof of the contract
itself. . . . Second, the inducement of reliance on the
oral agreement implicates the equitable principle under-
lying estoppel because repudiation of the contract by
the other party would amount to the perpetration of a
fraud.’’ (Internal quotation marks omitted.) SS-II, LLC
v. Bridge Street Associates, supra, 293 Conn. 295–96.
Our review of a court’s determination as to whether a
party has demonstrated part performance of a contract
is governed by the clearly erroneous standard of review.
Patrowicz v. Peloquin, 190 Conn. App. 124, 139, 209
A.3d 1233, cert. denied, 333 Conn. 915, A.3d
(2019); Harley v. Indian Spring Land Co., 123 Conn.
App. 800, 826, 3 A.3d 992 (2010).
As a preliminary matter, we note that although the
court did not expressly reject the plaintiff’s part perfor-
mance argument, it found for the defendant on the
plaintiff’s breach of contract claim on the basis that
Exhibit 1 failed to satisfy the statute of frauds. Thus,
the court necessarily rejected the plaintiff’s argument
that part performance removed the agreement from the
statute of frauds. Moreover, the court found that the
plaintiff’s actions could have been attributed to its
choice to take a risk in investing in Lally’s services,
and, thus, its actions do not unmistakably point to a
contract. This finding precludes a conclusion that the
plaintiff satisfied the requirements of part performance
to defeat the statute of frauds.
Our Supreme Court has stated the principle that, in
the absence of a meeting of the minds, there can be no
part performance that removes the agreement from the
statute of frauds. SS-II, LLC v. Bridge Street Associates,
supra, 293 Conn. 301; Montanaro Bros. Builders, Inc.
v. Snow, 190 Conn. 481, 487, 460 A.2d 1297 (1983). This
is because ‘‘the doctrine of part performance requires
conduct that is referable to and consistent with [an]
oral agreement between the parties. In the absence of
an underlying agreement, there is no basis for finding
that the party seeking enforcement, in reasonable reli-
ance on the contract and on the continuing assent of
the party against whom enforcement is sought, has so
changed his position that injustice can be avoided only
by specific enforcement.’’ (Internal quotation marks
omitted.) SS-II, LLC v. Bridge Street Associates,
supra, 298.
In SS-II, LLC, our Supreme Court concluded that
part performance did not apply where there was no
meeting of the minds as to the purchase price in an
option to purchase, in part because ‘‘[a]lthough the
option to purchase provides that the purchase price of
the property shall be $1.2 million, subject to certain
adjustments that are to be calculated by a formula per-
taining to when the option is exercised, it also provides
that the price will be further adjusted to take into
account environmental conditions existing at the leased
premises, which adjustment shall be mutually deter-
mined by Lessor and Lessee.’’ (Emphasis in original;
internal quotation marks omitted.) Id., 299. The court
reasoned that ‘‘[a] mere statement that the parties will
mutually determine the future purchase prices does not
mean that the parties will, in fact, agree,’’ and ‘‘there
is no provision in the statute of frauds protecting the
plaintiff in the event that the parties are unable to agree
or the defendant refuses to sell . . . .’’ Id., 300–301.
Because ‘‘the option to purchase did not guarantee that
the plaintiff would be able to purchase the property
but simply constituted an agreement to agree,’’ there
was no meeting of the minds and could be no part
performance that removed the option to purchase from
the statute of frauds. Id., 301.
In the present case, the court found the ‘‘right to
back out’’ language, among other deficiencies, rendered
Exhibit 1 insufficient to satisfy the statute of frauds.
(Internal quotation marks omitted.) The court’s finding
that there was no enforceable contract, based partly
on the ‘‘right to back out,’’ was supported by the testi-
mony at trial. (Internal quotation marks omitted.) Tem-
kin testified that the right to back out was there ‘‘in the
event that, you know, we got two lots or something,’’
and he agreed that Exhibit 1 did not indicate that the
right to back out was solely his right.7 The defendant
testified that the ‘‘right to back out’’ meant that ‘‘at any
time either party could cancel this contract . . . for
any purpose.’’8 As in SS-II, LLC, Exhibit 1 did not guar-
antee that the plaintiff would be able to purchase the
property, and, thus, in the absence of a meeting of the
minds, the plaintiff could not avoid the statute of frauds
under a theory of part performance. See Montanaro
Bros. Builders, Inc. v. Snow, supra, 190 Conn. 487(plaintiffs could not rely on theory of part performance
where trial court found that minds never met on which
six acres were to be excluded from sale, ‘‘a factual
finding negating the presence of either an oral or a
written contract’’).
Moreover, the acts claimed by the plaintiff to consti-
tute part performance are not of such a character that
they can be naturally and reasonably accounted for in
no other way than by the existence of an enforceable
contract. The court found that ‘‘the plaintiff chose to
take the risk of investing in Lally’s services and other
expenses after the defendant made clear from the out-
set that he would not give drainage rights over his
property, before any approvals were secured and well
before the drawn out process of attempting to get
approval for a revised drainage plan.’’ (Emphasis in
original.)
This finding illustrates the risk that the plaintiff
accepted in investing in Lally’s services while continu-
ing to seek approval of a drainage plan acceptable to
both the governmental agencies and the defendant.9
Thus, we conclude that the plaintiff’s acts do not ‘‘com-
pel the inference that there was some contract by which
these acts were required of the plaintiff[s] and therefore
explainable upon no other theory’’; (internal quotation
marks omitted) Glazer v. Dress Barn, Inc., 274 Conn.
33, 67, 873 A.2d 929 (2005); and, thus, the court’s rejec-
tion of the plaintiff’s part performance argument was
not improper.
Accordingly, the plaintiff failed to prove that it had
an enforceable contract.10
II
The plaintiff’s second claim on appeal is that ‘‘[t]he
court erred when deciding the plaintiff’s unjust enrich-
ment claim by finding that the plaintiff did not confer
any benefit on the defendant.’’ Specifically, it argues
that the defendant was benefited in that he owns the
final set of plans, for which the defendant paid ‘‘a small
amount,’’ because ‘‘they were built upon the foundation
of the nearly $250,000 worth of work that the plaintiff
paid for beforehand.’’ It further argues that the plans
accommodating the defendant’s preferred drainage sys-
tem remain on file with the town of Windsor and that
‘‘little effort would be required on the defendant’s part
to reinitiate the subdivision process.’’ Thus, the plaintiff
argues that its work has ‘‘removed the risk for future
developers and substantially enhanced the land’s value
and marketability for the defendant.’’ The defendant
responds that the plaintiff failed to meet its burden of
producing evidence to show an increase in value to
the defendant and ‘‘has failed to point to any evidence
indicating exactly how much it has ‘positively impacted
the value’ of the defendant’s property as a result of
its actions.’’
We first set forth general principles of law and our
standard of review. ‘‘Under well established Connecti-
cut law, [p]laintiffs seeking recovery for unjust enrich-
ment must prove (1) that the defendants were benefited,
(2) that the defendants unjustly did not pay the plaintiffs
for the benefits, and (3) that the failure of payment
was to the plaintiffs’ detriment. . . . Furthermore, the
determinations of whether a particular failure to pay
was unjust and whether the defendant was benefited
are essentially factual findings for the trial court that
are subject only to a limited scope of review on appeal.
. . . Those findings must stand, therefore, unless they
are clearly erroneous or involve an abuse of discretion.
. . . This limited scope of review is consistent with the
general proposition that equitable determinations that
depend on the balancing of many factors are committed
to the sound discretion of the trial court.’’ (Internal
quotation marks omitted.) Utzler v. Braca, 115 Conn.
App. 261, 267–68, 972 A.2d 743 (2009).
The plaintiff relies primarily on Gardner v. Pilato,
68 Conn. App. 448, 449, 791 A.2d 707, cert. denied, 260
Conn. 908, 795 A.2d 544 (2002), to support its position.
In that case, the plaintiff, a surveyor, surveyed the
defendants’ property and made a topographical map at
the direction of an engineer hired by the defendants to
advise them on developing a piece of property. Id., 449.
The defendants then refused to pay the plaintiff and,
instead, hired another surveyor to do the same work.
Id. The second surveyor used the plaintiff’s work and
an old survey that the defendants had in their posses-
sion. Id., 449–50. The trial court accepted the fact find-
er’s11 finding that the defendants were unjustly enriched
for the full amount of the plaintiff’s bill. Id., 450–51. On
appeal, this court affirmed, rejecting the defendants’
argument that the benefit was required to be measured
only by an increase in value to the defendants’ property
as a direct result of the plaintiff’s work. Id., 453. The
court stated that ‘‘[a]lthough the defendants are correct
that the damages in an unjust enrichment case are ordi-
narily not the loss to the plaintiff but the benefit to
the defendant, a fact finder may rely on the plaintiff’s
bill when the benefit is too difficult to determine other-
wise.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 454.
Unlike Gardner, the present case does not involve a
situation in which the court determined that the defen-
dant received a benefit and that benefit was too difficult
to determine. Rather, in this case, the court found that
the defendant was not unjustly enriched by the plain-
tiff’s decisions, including the plaintiff’s decision to
invest in Lally’s preparation of plans containing a drain-
age system that the court found the defendant to have
‘‘vociferously and consistently opposed . . . .’’12 More-
over, the court found that ‘‘[t]here is no credible evi-
dence . . . to support the claim that the defendant has
received the benefit of [Lally’s] plans.’’ This finding is
supported by testimony of the defendant that he has
not attempted to sell the land to anyone other than the
plaintiff, he does not intend to sell the land, and he has
entered into a contract to lease a portion of the land
for five years, with four, five-year options, for a total
of twenty-five years, for a cell tower. Although Lally
testified that the defendant told him in December, 2011,
that he was ‘‘going to do the subdivision but not now
and not with T & M,’’ the defendant testified that he
made that statement ‘‘[o]ut of frustration.’’ On the basis
of this evidence, we cannot conclude that the court’s
finding that the defendant was not benefited is
clearly erroneous.
III
The plaintiff’s final claim on appeal is that the court
erred in ruling in favor of the defendant on the plaintiff’s
promissory estoppel claim. We disagree.13
The following legal principles govern our analysis of
the plaintiff’s claim. ‘‘[U]nder the doctrine of promis-
sory estoppel [a] promise which the promisor should
reasonably expect to induce action or forbearance on
the part of the promisee or a third person and which
does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the
promise. . . . A fundamental element of promissory
estoppel, therefore, is the existence of a clear and defi-
nite promise which a promisor could reasonably have
expected to induce reliance. Thus, a promisor is not
liable to a promisee who has relied on a promise if,
judged by an objective standard, he had no reason to
expect any reliance at all. . . .
‘‘Additionally, the promise must reflect a present
intent to commit as distinguished from a mere state-
ment of intent to contract in the future. . . . [A] mere
expression of intention, hope, desire, or opinion, which
shows no real commitment, cannot be expected to
induce reliance . . . and, therefore, is not sufficiently
promissory. The requirements of clarity and definite-
ness are the determinative factors in deciding whether
the statements are indeed expressions of commitment
as opposed to expressions of intention, hope, desire or
opinion. . . . Finally, whether a representation rises
to the level of a promise is generally a question of fact,
to be determined in light of the circumstances under
which the representation was made.’’ (Citations omit-
ted; internal quotation marks omitted.) Stewart v. Cen-
dant Mobility Services Corp., 267 Conn. 96, 104–106,
837 A.2d 736 (2003). ‘‘[A] promisor is not liable to a
promisee who has relied on a promise if, judged by an
objective standard, he had no reason to expect any
reliance at all.’’ D’Ulisse-Cupo v. Board of Directors of
Notre Dame High School, 202 Conn. 206, 213, 520 A.2d
217 (1987).
In support of its argument that the court improperly
rejected its promissory estoppel claim, the plaintiff
argues that the court erred in concluding that the plain-
tiff did not suffer substantial financial injury, even
though it incurred over $250,000 in expenses related to
its acquisition of the defendant’s property. The court
found, however, that the plaintiff did not suffer such
injury ‘‘when the defendant allegedly ‘subsequently and
unexpectedly’ reneged on his promises.’’ The court did
not ignore the sums expended by the plaintiff. Rather,
it found that the plaintiff had spent that money not
in reliance on a clear and definite promise that the
defendant could reasonably have expected to induce
reliance, but in furtherance of its choice to ‘‘take the
risk of investing in Lally’s services . . . .’’ Specifically,
the court stated: ‘‘Given the principles of equity underly-
ing promissory estoppel, the ambiguity of the docu-
ment’s terms, including but not limited to the provision
that there was a ‘right to back out’ as well as the indefi-
niteness of the subject property itself, this court cannot
find that the plaintiff is entitled to specific performance
and money damages based on the theory of promis-
sory estoppel.’’14
The plaintiff argues that the court erred in consider-
ing the ambiguity of Exhibit 1’s terms in its promissory
estoppel analysis, maintaining that the purpose of the
doctrine of promissory estoppel is to permit recovery
where a promise is not enforceable under the law of
contract. In support of this argument, the plaintiff cites
Montanaro Bros. Builders, Inc. v. Snow, supra, 190
Conn. 483, 489, in which the defendant landowner
argued that the plaintiff’s claim for restitution was
barred by a provision of an unenforceable option con-
tract. Specifically, the defendants argued in Montanaro
Bros. Builders, Inc., that because the option contract
provided for the defendant to retain payments made by
the plaintiff if the option was not exercised, the plaintiff
could not recover those payments under a theory of
unjust enrichment. Id., 489. The court stated: ‘‘Having
previously relied upon the unenforceability of the
option agreement to defeat the plaintiffs’ claim for spe-
cific performance, the defendants cannot now invoke
the provisions of that unenforceable agreement as an
absolute bar to the plaintiffs’ claim of unjust enrich-
ment.’’ Id. In the present case, however, the provisions
of Exhibit 1 were not invoked to bar the plaintiff’s claim.
Rather, the court considered the provisions of Exhibit
1 in the context of whether a clear and definite promise,
which a promisor reasonably could have expected to
induce reliance, was made.
Applying the foregoing principles to the facts reason-
ably found by the court, we conclude that the court
did not err when it rejected the plaintiff’s promissory
estoppel claim.
The judgment is affirmed.
In this opinion the other judges concurred.
Exhibit 1
1
The plaintiff states in its appellate brief that any claims regarding the
deposit were resolved by the parties shortly after the court rendered judg-
ment and that the deposit is not at issue on appeal.
2
The plaintiff also alleged that the defendant violated the Connecticut
Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA). The
court rendered judgment in favor of the defendant on this count, and the
plaintiff does not challenge this ruling on appeal.
3
Thereafter, the plaintiff filed a motion for articulation, which was denied,
and a motion for review of that denial, which was granted in part. The court
issued an articulation on October 31, 2017, in which it stated that it ‘‘denies
the motion for reargument and reconsideration because it does not find
that the plaintiff asserts claims which this court did not sufficiently address
in the first instance in its memorandum of decision nor does it find that
the plaintiff has raised issues which would have controlling effect on this
court’s ultimate findings or conclusions of law.’’ The court also addressed
one issue regarding the return of the deposit, which is not at issue on appeal.
The plaintiff filed a motion for review of the articulation. This court granted
review, but denied the relief requested.
4
The parol evidence rule ‘‘prohibits the use of extrinsic evidence to vary
or contradict the terms of an integrated written contract.’’ (Internal quotation
marks omitted.) Leonetti v. MacDermid, Inc., 310 Conn. 195, 211, 76 A.3d
168 (2013).
5
There was evidence that the defendants had entered into the contract
to take advantage of a ‘‘soon to change’’ federal law, but later wanted to
avoid the contract because they began negotiating a new sale with a new
buyer within one week after signing the contract at issue; had experience
in the law of real estate and zoning; hired a surveyor and created a lot in
violation of the zoning regulations, which caused the nursing home to be
inoperable on the acreage of 3.74 acres; refused to remedy the nonconformity
by conveying more land sufficient for an operable nursing home; and had
delayed fulfilling their obligations to supply notice to the state of Connecticut
Department of Public Health and a list of the current employees to the
plaintiff, without which the plaintiff could not receive the necessary license
approval. Foley v. Huntington Co., supra, 42 Conn. App. 732–33.
6
The plaintiff also relies on Levesque Builders, Inc. v. Hoerle, supra, 49
Conn. App. 754–55. In that case, a written contract provided for the sale of
a thirty-six acre parcel and referenced a map indicating the location of the
property. Id., 752–53. The parties signed a second written contract, which
referenced a nonexistent map. Id., 753. The trial court found the contract
sufficient to satisfy the statute of frauds and stated that the description of
the thirty-six ‘‘plus or minus’’ acres was made sufficiently definite through
reference to the two written contracts, the map referenced in the first
contract, other maps and descriptions, and the testimony at trial. Id., 757.
This court concluded that the trial court’s finding that the contract satisfied
the statute of frauds was not clearly erroneous. Id.
Levesque Builders, Inc., is distinguishable from the present case. There,
the subject of the sale, an essential term, was contained in the two writings
and referenced map, such that the description of the land could be made
certain through reference to extrinsic evidence. Id. Here, the subject of the
sale cannot be known from the writing itself, which does not reference any
map, and the court did not err in refusing to consider extraneous evidence
to supply the details.
7
On direct examination, the following exchange occurred between Attor-
ney Budlong and Temkin:
‘‘Q. So you would pay him more if there were more lots, less if there
were less lots. Is that . . . correct?
‘‘A. Yeah. And then in the event that, you know, we got two lots or
something there’s a clause, you know, they had—there was a right to
back out.
‘‘Ed Lally had done quite a bit of preliminary work, I believe, to lead both
of us to think forty-six was a pretty good chance of getting close to that
figure. You know it wasn’t like a pig in a poke. It might be two. It might be
six hundred or something like that.
‘‘Q. Right. The right to back out had to do with if he only had two lots
or three lots it wouldn’t be fair—
***
‘‘Q. Explain that to me, the—
‘‘A. Seeing the way the clause is written in the number two paragraph
about right to back out, I’m thinking that that was—could have been what
we meant. Just listen, Mr. Hastings, we’re not looking to, you know, get
one building lot from you and pay you [$20,500] and have all this acreage
and build one house.’’
On cross-examination, the following exchange occurred between Attorney
Deneen and Temkin:
‘‘Q. And so when you wrote, right to back out, does that indicate that it
was solely your right to back out?
‘‘A. I believe if the lot yield was like five lots and he thought—
‘‘Q. Well, again—
‘‘A. —it wasn’t—
‘‘Q. —again—
‘‘A. —enough to make it—
‘‘Q. —this is a—
‘‘A. —worth it he could back out.
‘‘Q. Again, let me ask the question. Does it—this piece indicate that the
right to back out is solely your right?
‘‘A. No.’’
8
On direct examination, the following exchange occurred between Attor-
ney Budlong and the defendant:
‘‘Q. Right. And it says, Adjust up or down. Right?
‘‘A. Yes.
‘‘Q. And—and then it says, Right to back out.
‘‘A. Right.
‘‘Q. That relates to the forty-six lots, in other words, if you could only
get ten lots out of there you weren’t go[ing] to sell ten lots for [$20,500],
were you?
‘‘A. Correct.
‘‘Q. All right. And—so it was a per lot price so that if the forty-six lots
couldn’t be accomplished either one of you had the right to back out. Right?
‘‘A. Or any other number of lots we had the right to back out at any time.
‘‘Q. Well, tell me how—why it says that—that occurs? I mean it’s clear
that that right to back out is in provision two—
‘‘A. Yeah.
‘‘Q. —and it has—and you have a $943,000 figure, and that the reason
that provision was there, obviously, was if you didn’t get—someone didn’t
get forty-six thousand lots or forty-six lots you, certainly, weren’t going to
sell it for ten times [$20,000].
***
‘‘A. My—my interpretation would be . . . that as of this right to back
out included at any time either party could cancel this contract.
‘‘Q. For any purpose.
‘‘A. For any purpose.
‘‘Q. Okay. The fact that it was in that paragraph doesn’t mean anything
to you.
‘‘A. No.’’
9
The plaintiff claims on appeal that it was clearly erroneous for the court
to place emphasis and weight on the defendant’s drainage concerns. We
disagree that the court was not permitted to consider the drainage concerns
because they had been resolved at the time of the defendant’s alleged breach.
Although Lally’s plans had been revised to accommodate the defendant’s
drainage concerns, as of December, 2011, necessary permits from the Army
Corps of Engineers and the Department of Environmental Protection were
still outstanding. The defendant testified that he wanted to close the deal
but ‘‘[t]he same questions—the—the same idea was then presented that I
wanted to close this thing and that [Temkin] did not—[Temkin] told me he
did not have the Army Corps of Engineers permits or the [Department of
Environmental Protection] permits to do it. . . . At that point I—no other—
no other engineering had been done on the site, and I threw up my hands
and said this is never going to happen out of just plain frustration of having
gone through this for well over a year, and I had to get on with my crops
and—and figure out what crop I was going to put here, how I was going to
best utilize this plan because at this rate this project was never going
to happen.’’
10
In light of this conclusion, the plaintiff’s argument that ‘‘the court’s
suggestion that the plaintiff could have stopped the project at any time after
September 7, 2010, ignores the legal reality that the plaintiff would have
been in breach of the deal with the defendant if he did that,’’ is unavailing.
(Emphasis omitted.)
11
The plaintiff’s action was heard before an attorney fact finder. Gardner
v. Pilato, supra, 68 Conn. App. 450.
12
The court found that the defendant’s conduct was not inequitable or
unconscionable such that he had ‘‘been unjustly enriched by the plaintiff’s
decisions . . . .’’ Again, the court cited the defendant’s concerns with
respect to drainage, which it found ‘‘reasonable and not insignificant.’’ The
court stated: ‘‘Notwithstanding these concerns, Temkin, a highly successful
and sophisticated businessman, was clearly highly motivated to develop
and invest in this potentially lucrative parcel of property by investing in
Lally’s services. The fact that the plaintiff paid [Lally] to continue efforts
to acquire the variety of approvals needed, with no guarantee that those
approvals would be secured, was a business risk he willingly undertook.’’
13
We note that our Supreme Court has not addressed ‘‘whether promises
that otherwise would be subject to the requirements of the statute of frauds
may be enforced on promissory estoppel grounds in the absence of compli-
ance with the statute of frauds; see 1 Restatement (Second), supra, § 139
. . . .’’ See Glazer v. Dress Barn, Inc., supra, 274 Conn. 89–90 n.38 (declining
to address issue where neither party had raised or briefed issue); McClancy
v. Bank of America, N.A., 176 Conn. App. 408, 415, 168 A.3d 658 (holding
that even if promissory estoppel exception to statute of frauds exists, plaintiff
failed to provide evidence of promise claimed to have been made), cert.
denied, 327 Conn. 975, 174 A.3d 975 (2017). For purposes of our analysis,
we assume without deciding that a promise may be enforced on promissory
estoppel grounds in the absence of compliance with the statute of frauds.
14
The plaintiff argues that even if the court properly found that the plain-
tiff’s actions following the defendant’s raising his drainage concerns were
a risk taken by the plaintiff, it ‘‘still should be entitled to reimbursement
for the expenses incurred before the defendant raised the drainage issue
. . . . The court only addressed the ‘after’ period in its decision, even empha-
sizing the word. Since the court found an initial promise from July 26, 2010,
and that initial promise was never in dispute among the parties, the cutoff
date for the plaintiff’s right of recovery for damages incurred by reliance
on [the] promise could not have ceased any earlier than September 7, 2010.’’
(Emphasis in original.)
We disagree that the court ‘‘found an initial promise’’ requiring application
of the doctrine of promissory estoppel. The court noted that Exhibit 1 ‘‘was
produced as a result of an initial discussion between the defendant and
Temkin on July 27, 2010, reflecting their intention for [William] Hastings to
sell a parcel of his farmland to Temkin for development into residential
homes.’’ (Emphasis added.) The recognition of an intention for the defendant
to sell a parcel of his land does not constitute a finding of a ‘‘clear and
definite promise’’ for purposes of the doctrine of promissory estoppel. See
Stewart v. Cendant Mobility Services Corp., supra, 267 Conn. 105–106 (‘‘[t]he
requirements of clarity and definiteness are the determinative factors in
deciding whether the statements are indeed expressions of commitment as
opposed to expressions of intention, hope, desire or opinion’’).