November 5, 2018
for, inter alia, specific performance of an alleged agreement
to purchase certain of the named defendant's real
property, and for other relief, brought to the Superior Court
in the judicial district of Hartford, where the court,
Noble, J., granted the plaintiffs motion to add
Hartford Auto Park, LLC, as a defendant; thereafter, the
plaintiff filed an amended complaint; subsequently, the
court, Noble, J., granted the defendants'
motions to strike and rendered judgment thereon, from which
the plaintiff appealed. Affirmed.
M. Wisser, with whom, on the brief, was Sarah Black
Lingenheld, for the appellant (plaintiff).
Johanna S. Katz, with whom was Richard C. Robinson, for the
appellee (named defendant).
F. Conway, with whom was James E. Ringold, for the appellee
(defendant Hartford Auto Park, LLC).
present appeal requires us to consider whether a plaintiff
has sufficiently pleaded that a transaction was an auction
without reserve by simply alleging that the owner of the real
property for sale sought highest and best offers from
potential buyers and the plaintiff submitted the highest and
best offer, and, if so, whether an auction without reserve
for the sale of real property creates an enforceable
agreement constituting an exception to the statute of frauds.
The plaintiff, Restaurant Supply, LLC, appeals from the trial
court's judgment rendered after it had granted motions to
strike by the defendants, Giardi Limited Partnership (Giardi)
and Hartford Auto Park, LLC (Hartford Auto Park). The court
determined that the plaintiff failed to allege that
Giardi's request that potential buyers of its property,
19 and 43 West Service Road, Hartford (property), submit
their highest and best offers constituted an auction without
reserve and, thus, created an exception to the requirement
under the statute of frauds that there be a "writing . .
. signed by the party ... to be charged . . .
." General Statutes § 52-550 (a). The
parties disagree as to whether the plaintiffs allegation that
Giardi's request for" '[h]ighest and [b]esf
offers" constitutes "explicit terms" that
Giardi was putting the property up for auction without
reserve for purposes of General Statutes § 42a-2-328
We conclude that, under the facts of this case, the
plaintiffs allegations are insufficient to allege an auction
without reserve, and, as such, we do not resolve the issue of
whether an exception to the statute of frauds should be
created for auctions without reserve.
amended complaint alleges the following facts. Giardi sought
to sell its property at an original listing price of $450,
000. In response to this listing, the plaintiff offered to
buy the property for $425, 000, with no contingencies, by
providing Giardi with a purchase agreement and a $50, 000
deposit check. In response to this and other offers, Giardi
directed all prospective buyers to resubmit their highest and
best offers. In response to Giardi's request, the
plaintiff submitted a cash offer of $460, 000, with no
contingencies, by providing a purchase agreement signed by
the plaintiff and redirecting the prior $50, 000 deposit
check, which it claims was the highest and best offer. Giardi
did not accept that offer, however, and instead accepted a
purportedly lower offer presented by Hartford Auto Park.
December, 2016, the plaintiff filed a one count complaint,
seeking an order requiring Giardi, which at that time still
owned the property, to convey title to the property to the
plaintiff. The plaintiff claimed that, by requesting highest
and best offers, Giardi was bound to accept the highest offer
and, therefore, entered into an enforceable contract with the
plaintiff for the sale of the property. The plaintiff
also requested an injunction, restraining Giardi from
"conveying, encumbering or in any manner disposing of
the [p]roperty." In addition, the plaintiff recorded a
lis pendens on the land records, notifying interested parties
of the pending action.
the plaintiffs actions, in March, 2017, Giardi sold the
property to Hartford Auto Park and executed a special
warranty deed, which conveyed the property subject to the lis
pendens, and Hartford Auto Park recorded the deed.
Thereafter, the plaintiff amended its complaint, adding
Hartford Auto Park as a defendant and asserting a second
count against it.
response, Hartford Auto Park moved to strike count two of the
amended complaint pursuant to Practice Book § 10-39,
contending that the statute of frauds barred the plaintiffs
claim because the purchase agreement given to Giardi by the
plaintiff was not signed by the party to be charged, namely,
Giardi. The plaintiff opposed the motion, claiming that, by
alleging that Giardi requested "[h]ighest and [b]est
offers," it sufficiently pleaded the existence of an
auction without reserve, which contractually binds the seller
to the highest bidder and, therefore, according to the
plaintiff, does not require a writing signed by the party to
be charged in order to be enforceable.
trial court granted Hartford Auto Park's motion to
strike, concluding that the statute of frauds barred the
plaintiffs claim, and rendered judgment on count two in favor
of Hartford Auto Park. In its memorandum of decision, the trial
court rejected the plaintiffs argument that Giardi's
request for highest and best offers constituted an auction
without reserve and, as such, created an exception to the
requirement that it produce a writing signed by the party to
be charged, and noted that none of the cases cited by the
plaintiff provided persuasive authority because they did take
into consideration the statute of frauds. Thereafter,
Giardi moved to strike count one of the amended complaint.
Applying the same rationale it had used in ruling on Hartford
Auto Park's motion, the trial court granted Giardi's
motion and rendered judgment in its favor. This appeal
resolving whether the trial court properly granted the
motions to strike filed by Hartford Auto Park and Giardi, we
begin with the general principles that guide our review of a
trial court's decision to grant a motion to strike.
"A motion to strike challenges the legal sufficiency of
a pleading . . . and, consequently, requires no factual
findings by the trial court. As a result, our review of the
[trial] court's ruling is plenary. . . . We take the
facts to be those alleged in the complaint that has been
stricken and we construe the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . [I]f
facts provable in the complaint would support a cause of
action, the motion to strike must be denied. . . .Thus, we
assume the truth of both the specific factual allegations and
any facts fairly provable thereunder. In doing so, moreover,
we read the allegations broadly . . . rather than
narrowly." (Internal quotation marks omitted.)
Giacalone v. Housing Authority,306 Conn. 399,
403-404, 51 A.3d 352 (2012). It is well ...