Presnell v. Nemergut, No. Cv 00-0340511-S (May 14, 2001)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION The plaintiff brings this action both for damages and to quiet title in a parcel of land located in the town of Newtown. CT Page 6213

This Court notes that a default for failure to appear was entered against the Defendant, Vincent Nemergut, on November 3, 2000. Thereafter, the matter was claimed to a Hearing in Damages before the Court. The matter came before the Court for such Hearing in Damages on April 27, 2001 and May 11, 2001.

During said hearing in damages, the Plaintiff offered the testimony of Mark R. Presnell, one of the record owners of the subject premises, and Timothy Holian, an attorney at law engaged in a real estate practice in the town of Newtown.

The court finds the facts as follows: On or about December 23, 1999, the non-appearing defendant, Vincent Nemergut, entered into an "Offer to Purchase" (commonly referred to as a "binder") the subject real estate. Thereafter, the said Nemergut caused said "Offer to Purchase" to be recorded on the Land Records of the Town of Newtown on January 12, 2000 in Volume 630 at Page 330. The Plaintiffs and Nemergut never entered into a formal contrast for the sale of the subject real estate and never finalized the sale of the subject real estate. All deposit funds paid under the terms of the said "Offer to Purchase" have been fully refunded to Nemergut.

Despite repeated requests by the Plaintiffs, Nemergut has failed and refused to release said "Offer to Purchase" from the Land Records of the Town of Newtown. Said "Offer to Purchase" remains an encumbrance to the Plaintiffs' title and has prevented the Plaintiffs from marketing or otherwise disposing of the subject premises.

Based upon the testimony of the witness, Attorney Holian, the Court finds that title in the property is vested in the Plaintiffs, James R. Presnell and Mark D. Presnell as tenants in common, subject only to a pole permit to the Southern New England Telephone Company recorded in Volume 62 at page 342 of the Newtown Land Records; Zoning and Building regulations of the Town of Newtown; Real Estate taxes to the Town of Newtown; and the "Offer to Purchase" as recorded by the Defendant, Vincent Nemergut, in Volume 630 at Page 330 of the Newtown Land Records.

It is the judgment of the court that the plaintiffs, James R. Presnell and Mark D. Presnell, are the sole record owners of the real property known as 348 South Main Street, Newtown, Connecticut, as tenants in common, subject only to a pole permit to the Southern New England Telephone Company recorded in Volume 62 at page 342 of the Newtown Land Records; Zoning and Building regulations of the Town of Newtown; Real Estate taxes to the Town of Newtown. The Defendant, Vincent Nemergut, has no interest in or to the subject premises and any interest claimed therein by virtue of the "Offer to Purchase" as recorded by the CT Page 6214 Defendant, Vincent Nemergut, in Volume 630 at Page 330 of the Newtown Land Records, is, by virtue of this judgment, extinguished and discharged.

The Court further finds that as a result of the failure of Nemergut to release the said "Offer to Purchase" from the Land Records the Plaintiffs have sustained damages. The Court accordingly awards damages in the amount of $5,000.00.

The plaintiffs shall recover their statutory court costs.

BY THE COURT

______________________ CARROLL, JUDGE