Red Buff Rita, Inc. v. Moutinho

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RED BUFF RITA, INC., ET AL. v. MANUEL
MOUTINHO ET AL.
(AC 35705)
DiPentima, C. J., and Alvord and Keller, Js.
Argued April 23—officially released July 15, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Complex Litigation Docket, Shaban, J.)
Jonathan J. Klein, with whom, on the brief, were
John R. Bryk and William J. Varese, for the appel-
lants (plaintiffs).
James R. Winkel, with whom, on the brief, was James
M. Nugent, for the appellees (defendants).
Opinion
DiPENTIMA, C. J. The dispositive issue in this case
is whether the trial court properly determined that the
complaint did not allege sufficient facts to overcome
the application of the statute of frauds. After reviewing
the complaint, we conclude that the court improperly
struck the counts of breach of contract and fraud and
misrepresentation.
The plaintiffs, Red Buff Rita, Inc., and Gus Curcio,
appeal from the judgment of the trial court granting
the motion to strike their three count complaint filed
against the defendant, Manuel Moutinho.1 On appeal,
the plaintiffs generally argue that the court did not
construe the operative complaint in the manner most
favorable to sustaining its sufficiency.2 Specifically, the
plaintiffs contend that the court failed to construe the
complaint in the manner most favorable to the pleader
with respect to their factual allegation of part perfor-
mance of an oral forbearance agreement to make inap-
plicable the statute of frauds, General Statutes § 52-550.
We agree with the plaintiffs and reverse in part the
judgment of the trial court.
Because of the procedural posture of this case, we
accept as true the facts alleged in the plaintiffs’ opera-
tive complaint. See Craig v. Driscoll, 64 Conn. App.
699, 702, 781 A.2d 440 (2001), aff’d, 262 Conn. 312, 813
A.2d 1003 (2003). The defendant, individually and as
trustee for the Mark IV Construction Company, Inc.,
401 (K) Savings Plan, claimed to be the owner and
holder of fourteen notes and related mortgages owed
by various entities. The defendant possessed the author-
ity to negotiate the terms of these notes and mortgages,
to decide which loans would be made and the terms
of each loan, to determine the source of funds that
would be used for each loan, to collect all the payments
made toward the notes and mortgages and determine
the allocation of payments, negotiate modifications of
these notes and mortgages, and to decide whether to
initiate collections actions or foreclosure proceedings.
On various dates prior to December 30, 2008, Curcio
had guaranteed some or all of the fourteen notes and
mortgages. Prior to December 30, 2008, the parties
entered into an oral agreement whereby the defendant
agreed to modify and extend the terms and payment
dates of these notes and mortgages (forbearance
agreement). The plaintiffs executed a promissory note
in favor of the defendant, secured by a mortgage, dated
December 30, 2008, on property known as 10 Fifth Ave-
nue in Stratford. Curcio signed a guarantee for this note
on the same date. The defendant failed to fulfill his
obligations under the forbearance agreement and com-
menced foreclosure actions against some of the four-
teen properties. The plaintiffs then instituted this action
with a three count complaint against the defendant for
breach of contract, fraud and misrepresentation, and a
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq.
Pursuant to Practice Book § 10-39, the defendant filed
a motion to strike the entirety of the plaintiffs’ com-
plaint. Specifically, he claimed that counts one and two
violated the statute of frauds and count three failed to
state a valid cause of action for a CUTPA violation
because no facts were pleaded to support the legal
conclusion contained therein. The plaintiffs filed an
objection, stating, inter alia, that counts one and two
were not barred by the statute of frauds because of the
doctrine of part performance.
On November 8, 2012, the court issued a written order
granting the defendant’s motion to strike. The court
concluded that the first two counts of the plaintiffs’
operative complaint were barred by the statute of
frauds. The court stated: ‘‘The allegations of the plain-
tiffs’ complaint clearly concern real property or an inter-
est in it. Each of the mortgages and notes referenced
. . . exceeded a value of [$50,000]. In Saunders v. Stig-
ers, [62 Conn. App. 138, 143, 773 A.2d 971 (2001)] the
Appellate Court approvingly noted the language used
by the trial court wherein it referenced that the statute
of frauds requires any modification to the note and
mortgage to be in writing. Here, the forbearance
agreement referred to in the plaintiffs’ complaint was
the modification of the note[s] and mortgage[s]. As
such, and given that the loan was in excess of [$50,000],
the statute of frauds was applicable.’’ (Internal quota-
tion marks omitted.) The court also struck the CUTPA
count.3 On February 7, 2013, the defendant moved for
judgment pursuant to Practice Book § 10-44, and noted
that the plaintiffs had not filed a substitute pleading.
On April 30, 2013, the court granted this motion. This
appeal followed.
We begin by setting forth the relevant legal principles
applicable to this appeal. ‘‘The standard of review in
an appeal challenging a trial court’s granting of a motion
to strike is well established. A motion to strike chal-
lenges the legal sufficiency of a pleading, and, conse-
quently, requires no factual findings by the trial court.
As a result, our review of the court’s ruling is plenary.
. . . We take the facts to be those alleged in the [plead-
ing] that has been stricken and we construe the [plead-
ing] in the manner most favorable to sustaining its legal
sufficiency.’’ (Internal quotation marks omitted.) Bern-
hard-Thomas Building Systems, LLC v. Dunican, 286
Conn. 548, 552–53, 944 A.2d 329 (2008); see also Giaca-
lone v. Housing Authority, 122 Conn. App. 120, 123,
998 A.2d 222 (2010), aff’d, 306 Conn. 399, 51 A.3d 352(2012); Tallman v. Gawel, 11 Conn. App. 801, 802, 526
A.2d 535 (1987) (trial court properly granted motion to
stike on basis that documents in question did not satisfy
statute of frauds); Kasper v. Anderson, 5 Conn. App.
358, 362, 498 A.2d 132 (same), cert. denied, 197 Conn.
818, 501 A.2d 388 (1985).
Under the doctrine of the statute of frauds, certain
contracts are not enforceable. Section 52-550 (a) pro-
vides: ‘‘No civil action may be maintained in the follow-
ing 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: (1) Upon
any agreement to charge any executor or administrator,
upon a special promise to answer damages out of his
own property; (2) against any person upon any special
promise to answer for the debt, default or miscarriage
of another; (3) upon any agreement made upon consid-
eration of marriage; (4) upon any agreement for the
sale of real property or any interest in or concerning
real property; (5) upon any agreement that is not to be
performed within one year from the making thereof; or
(6) upon any agreement for a loan in an amount which
exceeds fifty thousand dollars.’’ The purpose of this
statute is to provide reliable evidence of the existence
and the terms of the contract. Reid & Riege, P.C. v.
Bulakites, 132 Conn. App. 209, 217, 31 A.3d 406 (2011),
cert. denied, 303 Conn. 926, 35 A.3d 1076 (2012).
The doctrine of part performance, however, is an
exception to the statute of frauds. Milazzo v. Schwartz,
44 Conn. App. 402, 406, 690 A.2d 401, cert. denied, 240
Conn. 926, 692 A.2d 1282 (1997). This doctrine origi-
nated to prevent the statute of frauds from ‘‘becoming
an engine of fraud.’’ (Internal quotation marks omitted.)
Ubysz v. DiPietro, 185 Conn. 47, 54, 440 A.2d 830 (1981).
In Glazer v. Dress Barn, Inc., 274 Conn 33, 59–63, 873
A.2d 929 (2005), our Supreme Court clarified and
explained the circumstances in which a contract may
be enforced despite its noncompliance with the statute
of frauds. It also concluded that part performance and
equitable estoppel are not separate and independent
exceptions to the statute of frauds, but, rather, that part
performance is an essential element of the estoppel
exception to the statute of frauds. Id., 60–63; see also
SS-II, LLC v. Bridge Street Associates, 293 Conn. 287,
294–95, 977 A.2d 189 (2009). ‘‘[T]he elements required
for part performance are: (1) statements, acts or omis-
sions 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 war-
rant precluding a party from asserting the statute of
frauds. . . . First, part performance satisfies the evi-
dentiary function of the statute of frauds by providing
proof of the contract itself. . . . Second, the induce-
ment of reliance on the oral agreement implicates the
equitable principle underlying estoppel because repudi-
ation of the contract by the other party would amount to
the perpetration of a fraud.’’ (Citations omitted; internal
quotation marks omitted.) Glazer v. Dress Barn, Inc.,
supra, 62–63; Blackwell v. Mahmood, 120 Conn. App.
690, 696–97, 992 A.2d 1219 (2010); see also H. Pearce
Real Estate Co. v. Kaiser, 176 Conn. 442, 443, 408 A.2d
230 (1979).
In the present case, the plaintiffs alleged that they
fulfilled all of their obligations under the forbearance
agreement. Specifically, they assert that Red Buff Rita,
Inc., executed and delivered the note and mortgage on
10 Fifth Avenue in Stratford, and that Curcio executed a
guarantee for that note and mortgage. These allegations
support application of the doctrine of part performance,
which would remove the forbearance agreement from
the statute of frauds. See Glazer v. Dress Barn, Inc.,
supra, 274 Conn. 65–72; Blackwell v. Mahmood, supra,120 Conn. App. 695–99; see also Harley v. Indian
Spring Land Co., 123 Conn. App. 800, 829–30, 3 A.3d
992 (2010); cf. H. Pearce Real Estate Co. v. Kaiser,
supra, 176 Conn. 444–45 (plaintiff failed to allege basic
requirements of part performance where there were no
allegations of agreement to oral contract and assent by
defendant to be bound).
This result is consistent with our Supreme Court’s
decision in Breen v. Phelps, 186 Conn. 86, 439 A.2d
1066 (1982). In that case, the plaintiff filed a complaint
seeking specific performance of an agreement to sell
real estate. Id., 87. The defendant successfully moved
to strike this count on the basis that the writing memori-
alizing the agreement did not comply with the statute
of frauds and that the allegations in the complaint were
insufficient to support the application of the part perfor-
mance doctrine. Id. The issue for our Supreme Court
was ‘‘whether the facts provable within the framework
of the complaint, giving its allegations a construction
as favorable to the plaintiff as reasonable, would bring
his case within [the] principles [of the part performance
doctrine].’’ Id., 94. It concluded that the allegations in
the complaint, particularly that renovations in the
amount of $6300 had been done, sufficiently removed
the matter from the statute of frauds. Id., 94–97.
Similarly, here, the plaintiffs alleged that they fulfilled
their obligations under the forbearance agreement by
executing and delivering the note and mortgage and
executing the guarantee. These allegations were suffi-
cient to bring the case within the principles of the part
performance doctrine to preclude the application of the
statute of frauds. We conclude, therefore, that the court
improperly granted the motion to strike.
We briefly respond to two arguments raised by the
defendant. First, he argues that the first and second
counts in the complaint failed to set forth all of the
elements of the respective causes of actions pleaded
therein. The defendant did not present this argument
to the trial court and raised it for the first time on
appeal. Our Supreme Court has stated that ‘‘[o]nly in
[the] most exceptional circumstances can and will this
court consider a claim, constitutional or otherwise, that
has not been raised and decided in the trial court. . . .
This rule applies equally to alternate grounds for
affirmance.’’ (Citation omitted; internal quotation
marks omitted.) New Haven v. Bonner, 272 Conn. 489,
498, 863 A.2d 680 (2005); see also Vine v. Zoning Board
of Appeals, 281 Conn. 553, 568, 916 A.2d 5 (2007) (alter-
nate ground for affirmance ordinarily must be raised
in trial court in order to be considered on appeal).
Additionally, we note that the defendant failed to com-
ply with Practice Book § 63-4 (a) (1) (A).4 Thus, we
decline to consider this argument.
We now turn to the second argument raised by the
defendant. After filing his brief but prior to oral argu-
ment, the defendant notified this court that judgment
had been rendered in Moutinho v. Red Buff Rita, Inc.,
Superior Court, judicial district of Waterbury, Docket
No. CV-11-6013990-S (December 17, 2013). The defen-
dant stated that the plaintiffs’ claim in the present case
was the same as that rejected by the trial court in
Moutinho v. Red Buff Rita, Inc., supra. Therefore, the
defendant asserts that the doctrines of collateral estop-
pel and res judicata apply, and therefore this appeal is
moot. We disagree.
Conceptually, collateral estoppel and res judicata are
separate and distinct from mootness. Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 222–23, 982 A.2d 1053 (2009).
‘‘Collateral estoppel is an affirmative defense that may
be waived if not properly pleaded. E.g., Carnese v. Mid-
dleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992)
([c]ollateral estoppel, like res judicata, must be specifi-
cally pleaded by a defendant as an affirmative defense);
see also Sydoriak v. Zoning Board of Appeals, 90 Conn.
App. 649, 657, 879 A.2d 494 (2005) (collateral estoppel
claim deemed waived due to failure to plead it as special
defense); cf. Practice Book § 10-50 (res judicata must
be specially pleaded as defense). Mootness, on the other
hand, is a justiciability doctrine that implicates this
court’s subject matter jurisdiction; see, e.g., State v.
Preston, 286 Conn. [367, 373, 944 A.2d 276 (2008)]; and,
thus, cannot be waived and can be raised at any time.
See, e.g., Burton v. Commissioner of Environmental
Protection, [291 Conn. 789, 802, 970 A.2d 640 (2009)]
([t]he requirement of subject matter jurisdiction cannot
be waived . . . and can be raised at any stage of the
proceedings . . .). Unlike mootness, the doctrine of
collateral estoppel does not implicate a court’s subject
matter jurisdiction. . . . Even when applicable, there-
fore, collateral estoppel does not mandate dismissal of
a case.’’ (Internal quotation marks omitted.) Wilcox v.
Webster Ins., Inc., supra, 222–23.
Even if the claim regarding the forbearance
agreement is collaterally estopped,5 that does not man-
date a dismissal of this appeal. Id., 223. Further proceed-
ings before the trial court would be necessary for a
determination of the applicability of collateral estoppel
or res judicata. For these reasons, our decision affords
the plaintiff practical relief, and, therefore, the appeal
is not moot. See We The People of Connecticut, Inc. v.
Malloy, 150 Conn. App. 576, 581, A.3d (2014).
The judgment is reversed as to the breach of contract
and fraud and misrepresentation counts and the case
is remanded for the further proceedings on those counts
in accordance with this opinion. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
This action was brought against Manuel Moutinho in his individual capac-
ity and as trustee for Mark IV Construction Company, Inc., 401 (K) Savings
Plan. For convenience, we refer in this opinion to Manuel Moutinho in his
individual capacity as the defendant.
2
The second count of the plaintiffs’ complaint, which alleged fraud and
misrepresentation, incorporated nine of the ten paragraphs of count one,
which alleged breach of contract. It then alleged that the defendant made
a representation to modify and extend the payment dates of the notes and
mortgages with the intent to mislead and induce the plaintiffs to act to their
detriment. It further alleged that the note, mortgage and guarantee made
pursuant to the parties’ oral agreement were null and void due to fraud
and misrepresentation.
3
The plaintiffs do not challenge the striking of the CUTPA count in
this appeal.
4
Practice Book § 63-4 (a) (1) provides in relevant part: ‘‘If any appellee
wishes: to (A) present for review alternative grounds upon which the judg-
ment may be affirmed . . . that appellee shall file a preliminary statement
of issues within twenty days from the filing of the appellant’s preliminary
statement of the issues. . . .’’
5
An appeal has been filed in Moutinho v. Red Buff Rita, Inc, supra,Superior Court, Docket No. CV-11-6013990-S.