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Solairaj v. Mannarino Builders, Inc.

Court of Appeals of Connecticut

September 6, 2016

MANIVANNAN SOLAIRAJ ET AL.
v.
MANNARINO BUILDERS, INC.

          Argued May 19, 2016

         Appeal from Superior Court, judicial district of Hartford, Peck, J.

          Doris B. D'Ambrosio, for the appellants (plaintiffs).

          James H. Howard, for the appellee (defendant).

          DiPentima, C. J., and Beach and Pellegrino, Js. [*]

          OPINION

          DiPENTIMA, C. J.

         The plaintiffs, Manivannan Solairaj and Malini Manivannan, appeal from the judgment rendered after a trial to the court in favor of the defendant, Mannarino Builders, Inc. On appeal, the plaintiffs claim that the court's findings underlying its conclusions that (1) the plaintiffs breached the purchase agreement and (2) the defendant did not breach the agreement were clearly erroneous. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts, as found by the trial court in its memorandum of decision, and procedural history, are relevant to our determination of this appeal. On November 20, 2010, the parties entered into a purchase agreement for the construction of a new house located in the town of South Windsor (town). Pursuant to the purchase agreement, the defendant agreed to construct and sell the house to the plaintiffs, and the plaintiffs agreed to purchase the house. The purchase price of the house was $594, 000 to be paid in the following increments: $2500 at the time of signing the purchase agreement, $56, 800 additional deposit at the time of signing the final house plan, and $534, 700 at closing.[1]The purchase agreement provided for a closing date on or about March 6, 2011. During the construction, the plaintiffs notified the defendant of their concerns regarding the quality of the flooring and the water in the basement. A dispute as to the quality of the construction ensued and the parties' relationship deteriorated.

         On March 30, 2011, the plaintiffs filed a notice of lis pendens on the town land records and, shortly thereafter, commenced this action. The defendant filed an application to discharge the lis pendens, and a hearing was held on June 7, 2011. At the hearing on the lis pendens, the court, Aurigemma, J., determined that the plaintiffs were not ‘‘ready, willing and able to purchase the property as required in order to maintain an action for specific performance.'' Therefore, the court discharged the lis pendens. Shortly thereafter, the defendant sold the house to a third party.

         The plaintiffs' original complaint alleged the following causes of action: specific performance, breach of the purchase agreement, a violation of the Connecticut Unfair Trade Practices Act (CUTPA) General Statutes § 42-110b et seq., intentional infliction of emotional distress and negligent infliction of emotional distress. Thereafter, the defendant filed an answer, special defense and counterclaim alleging tortious interference ‘‘with prospective economic gain.'' The plaintiffs amended their complaint to delete the count alleging specific performance. The trial was held in October, 2013; a hearing on the posttrial briefs was held on December 8, 2014, at which time the plaintiffs withdrew their emotional distress claims.

         In its April 7, 2015 memorandum of decision, the court, Peck, J., made the following findings. In January, 2011, the plaintiffs notified the defendant of their concerns regarding the water in the basement and the vibration of the floor in the family room. On January 31, 2011, Robert Mannarino, the president of the defendant, sent an e-mail responding to the plaintiffs' concerns. Mannarino assured the plaintiffs that he had identified the issue concerning the water in the basement, which was leaking in from the water collected in the front stoop, and he would address it. Mannarino further stated that he did not find any issue with the flooring, but it could be inspected at the next site visit.

         On February 4, 2011, the site visit took place and soon after, on February 10, 2011, the plaintiffs e-mailed the defendant further expressing their concerns regarding the quality of the flooring and the water leaks in the basement. In the plaintiffs' e-mail, they demanded that the defendant meet a list of conditions including (1) a detailed explanation of the cause of the floor vibrations and a resolution through engineering means, (2) waterproofing of the basement to be done from the exterior of the house, (3) a certificate of inspection on the waterproofing of the basement walls, (4) a certificate from the engineering team as to the waterproofing done from the exterior, and (5) an additional ten year warranty on the structure of the house at no additional cost and warranting that the defendant will remedy any issues within one month. The plaintiffs further stated, in their e-mail, that they were not willing to close on the house until all their conditions were met and that they would terminate the purchase agreement and seek the return of their deposit if the defendant did not agree to satisfy their conditions.

         In an e-mail sent on February 14, 2011, Mannarino responded to each one of the plaintiffs' demands. In response to the plaintiffs' first demand, Mannarino stated that he had consulted with the defendant's structural engineer and confirmed that the floor joist system exceeded all of the requirements of the South Windsor Building Code. As to the plaintiffs' second demand, Mannarino explained that the defendant had installed the waterproofing product on the exterior walls. As to the plaintiffs' third demand, Mannarino explained that the waterproofing had passed inspection as required by the South Windsor Building Department and that he would not hire an outside source to verify their inspection. As to the plaintiffs' fourth demand, Man-narino explained that the defendant's structural engineer had confirmed that the basement walls were ‘‘wet due to the pouring of the basement floor [during the winter and] the wet propane heat . . . .'' In responding to the plaintiffs' fifth demand, that is, their request for an additional warranty, Mannarino explained that the waterproofing product came with ‘‘a ten year warranty and all other state warranties will apply.'' Mannarino suggested that the plaintiffs hire a structural engineer and/or legal counsel to verify these findings, as the defendant could not meet their demands, but could ‘‘provide documentation that verifies the basement and floor system [were] built correctly.''

         On February 17, 2011, Attorney Doris B. D'Ambrosio, the plaintiffs' counsel, wrote to Attorney Gerald W. Brady, the defendant's counsel, explaining that the plaintiffs would not be closing on March 7, 2011, because the plaintiffs needed additional time to retain an expert to verify the statements made by Mannarino.[2]D'Ambrosio's e-mail further stated that the plaintiffs would not be closing on the house until ‘‘they are satisfied that those conditions have been satisfactorily rectified.''

         On March 3, 2011, Brady replied to the plaintiffs' counsel and stated that the plaintiffs were in breach of the purchase agreement, and that unless the plaintiffs made final selections to the house prior to closing, the defendant would place the house on the market. The final selections the plaintiffs were requested to make in preparation of closing included selecting (1) the kitchen countertops, (2) the bathroom countertop, (3) the light fixtures, (4) the fireplace design finish, (5) the bathroom vanity, (6) the closet shelving and (7) the brick walkway selections.

         On April 13, 2011, Attorney James H. Howard, the defendant's new counsel, sent a letter that provided the plaintiffs the option to buy the house if they made ‘‘the necessary selections by the close of business Friday (April 15th)'' and the closing date would be ‘‘on or before May 6.'' The plaintiffs neither responded to Howard's letter nor did they make the necessary finishing selections requested by the defendant.

         Nearly two months later, on June 9, 2011, Howard and D'Ambrosio began a course of communications with the plaintiffs' offering to buy the house ‘‘as is.'' Howard responded by requesting that the plaintiffs make a ‘‘very specific proposal'' setting forth the closing date, purchase price and conditions. On June 15, 2011, D'Ambrosio e-mailed Howard not with a ‘‘very specific proposal'' of the plaintiffs offer, but rather, stating in general terms that ‘‘[i]t is urgent we complete this matter as soon as possible . . . my clients are interested in enforcing the contract.'' In response, Howard, for a second time, requested a ‘‘very specific proposal'' of the closing date, purchase price and the conditions of the plaintiffs' offer. The plaintiffs failed to respond to this second request.

         On June 28, 2011, however, D'Ambrosio corresponded with Howard asking him why she had not heard anything regarding the sale of the house. On July 1, 2011, Howard responded stating that because the plaintiffs ‘‘were not ready willing and able to buy the house, the defendant has decided to sell the house to another buyer.''

         Based on the preceding findings of fact, the court concluded that ‘‘the plaintiffs failed to demonstrate by a preponderance of the evidence that they performed the contract or that the defendant breached the contract.'' Accordingly, the court found that the additional conditions the plaintiffs demanded in February and March, 2011, ‘‘went well beyond the requirements of the contract.'' Therefore, bythe time the plaintiffs offered to purchase the house ‘‘as is, ...


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