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Restaurant Supply, LLC v. Giardi Limited Partnership

Supreme Court of Connecticut

February 12, 2019

RESTAURANT SUPPLY, LLC
v.
GIARDI LIMITED PARTNERSHIP

          Argued November 5, 2018

         Procedural History

         Action 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.

          Kerry 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).

          John F. Conway, with whom was James E. Ringold, for the appellee (defendant Hartford Auto Park, LLC).

          OPINION

          KAHN, J.

         The 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[1] 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 . . . ."[2] 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 (3).[3] 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.

         The 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.

         In 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.[4] 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.

         Despite 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.

         In 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.[5]

         The 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.[6] 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.[7] 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 followed.

         In 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 ...


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