DocketNumber: No. CV02-0080077S
Judges: ALANDER, JUDGE.
Filed Date: 1/15/2003
Status: Non-Precedential
Modified Date: 4/18/2021
Based on the evidence presented at the hearing on the plaintiffs application for a prejudgment remedy, I find that the plaintiffs have established probable cause that a judgment will be rendered in their favor. The plaintiffs provided sufficient evidence to establish that the Greens falsely stated, orally and in writing, that their residence never experienced flooding problems or water damage, that the Greens knew these statements to be false, that the statements were made to induce the plaintiffs to purchase the property and that the plaintiffs purchased the property in reliance upon the false statements.
The plaintiffs seek a prejudgment remedy in the amount of $450,000. They maintain that since they are seeking a rescission of the sale of the property they are entitled to a prejudgment remedy securing the return of the $295,000 they paid to the Greens for the property. The plaintiffs assert that they are also entitled to consequential damages of $6,428 which represents their closing costs and $25,000 which represents the cost of improvements they made to the house prior to learning of the misrepresentations. Finally, the plaintiffs ask for an additional $124,572 to cover a potential award of attorneys fees and punitive damages pursuant to their claim of a violation of the Connecticut Unfair Trade Practices Act(CUTPA).
The Greens contend that the issuance of a prejudgment remedy is not appropriate because the plaintiffs are seeking a rescission of the sale. The Greens assert that a party asking for a rescission of a contract may not claim monetary damages. The Greens also maintain that a prejudgment CT Page 747 remedy may not issue because the plaintiffs have failed to prove their monetary losses. They claim that the true measure of the plaintiffs' loss is the diminution in the fair market value of their property as a result of the flooding problem and the plaintiffs failed to offer any evidence of that diminution in value.
The remedy of rescission and restitution is an alternative to damages in an action for breach of contract. 12 Williston, Contracts (3d Ed. Jaeger) 1455, p. 14. See also Kavarco v. T.J.E., Inc.,
"Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract."Kavarco v. T.J.E., Inc., supra,
Rescission and restitution is an equitable remedy. Maruca v. Phillips,
Based on the evidence presented, I hereby determine that there is probable cause that a judgment in the amount of $325,428, taking into account any defenses, counterclaims or set-offs, will be rendered in this matter in favor of the plaintiffs. Accordingly, the plaintiffs' application for a prejudgment remedy in the amount of $325,428 is hereby granted.
BY THE COURT ___________________ Judge Jon M. Alander CT Page 748
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