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ELEFTERIOS TSIROPOULOS v. MARGARET M.
RADIGAN
(AC 37176)
Lavine, Beach and Sheldon, Js.
Submitted on briefs December 15, 2015—officially released
February 16, 2016
(Appeal from Superior Court, judicial district of
Stamford, Hon David R. Tobin, judge trial referee.)
Peter V. Lathouris and Richard M. Breen filed a brief
for the appellant (plaintiff).
David Eric Ross filed a brief for the appellee
(defendant).
Opinion
LAVINE, J. This appeal concerns a seller’s right to
liquidated damages due to a would-be buyer’s breach
of a residential real estate sales agreement. The plaintiff,
Elefterios Tsiropoulos, appeals from the judgment of
the trial court rendered in favor of the defendant, Marga-
ret M. Radigan. On appeal, the plaintiff claims that the
court improperly (1) determined that the liquidated
damages clause in the agreement was enforceable and
(2) found that his failure to perform was wilful and that
the defendant was not unjustly enriched. We affirm the
judgment of the trial court.
The following facts are relevant to our resolution of
the plaintiff’s claims. On or about October 1, 2012, the
parties signed a written contract (agreement) whereby
the plaintiff agreed to purchase and the defendant
agreed to sell the premises located at 6 Cardinal Lane
in Westport (premises). The agreed upon sale price was
$716,000. The plaintiff made a $30,000 deposit and was
to pay the balance of $686,000 at the closing on Novem-
ber 16, 2012. Although the plaintiff needed to secure
financing to purchase the premises, he waived financing
as a contingency to his purchase of the premises1 to
secure the ability to purchase the premises over others
who wanted to purchase the premises, but for whom
financing was a contingency. The plaintiff, however,
was unable to obtain a mortgage acceptable to him. On
December 7, 2012, the plaintiff’s attorney informed the
defendant that he was unable to close2 and encouraged
the defendant to sell the premises to someone else. On
December 28, 2012, the defendant sold the premises
for $720,000. Thereafter, the plaintiff demanded that the
defendant return his $30,000 deposit, but the defendant
refused in reliance of paragraph 16 of the agreement.3
On or about January 14, 2013, the plaintiff com-
menced the present action, which sounds in breach of
contract and unjust enrichment, to recover the $30,000
deposit.4 The defendant denied the material allegations
of the complaint and, in an amended answer, asserted
three special defenses: the plaintiff terminated the
agreement wilfully, breached the covenant of good faith
and fair dealing, and had unclean hands. The defendant
also pleaded a counterclaim seeking to retain the
$30,000 deposit and to recover attorney’s fees.5 The
parties tried the case to the court in May, 2014, at which
time the plaintiff attempted to prove that his failure to
close was not wilful because he had relied on the advice
of mortgage brokers and lenders to waive a finance con-
tingency.
The court issued its ruling from the bench, stating in
part: ‘‘In the first instance, we have a presumptively
valid liquidated damages clause. It is for 4.2 percent as
opposed to the customary 10 percent that was the sub-
ject matter in Vines v. Orchard Hills[, Inc., 181 Conn.
501, 512, 435 A.2d 1022 (1980)]. And given the fact that
we had a $716,000 purchase price, $30,000 was a totally
reasonable number to set as a liquidated damages in
the event of the [plaintiff’s] breach.
‘‘The [plaintiff] knew that he was at risk. He knew
that he was taking a calculated gamble that he could
close. He did not think it was a gamble because he had
been assured that he could get financing. But neverthe-
less, in order to have his bid accepted in comparison
to others that were perhaps higher but contingent, he
decided to make his bid noncontingent. And by doing
so, he willingly entered into a contract. There’s no indi-
cation that this contract was procured by any fraud or
deception on the part of the [defendant]. The court
cannot find that breach was unwilful. . . .
‘‘[T]he plaintiff in this matter had every expectation
that he could obtain financing at a very high degree of
leverage: 97 percent. And he has had experience in the
past in leveraging properties. And he knew that he had
significant obligations under prior notes, under prior
mortgages he had taken advantage of the ability and
the willingness of banks to lend money so as to allow
him to build through his diligent efforts a substantial
amount of real estate holdings. He was not an unsophis-
ticated person in this regard. He decided to take advan-
tage in this case . . . of the perceived availability of
FHA funds, which would allow him to obtain ownership
of the [premises] with a very small . . . out-of-pocket
investment in case, using borrowed funds for the pur-
chase price.
‘‘When he signed the contract without a mortgage
contingency clause, he took the risk that he would be
able to fulfill his desires as he set out to. And unfortu-
nately, it took him some time before he knew or should
have known that proceeding in that fashion would prob-
ably lead to his inability to perform the contract in
accordance with his obligations. The first notice proba-
bly should have come when [the bank] indicated that
they could not fund the loan without him changing his
balance sheet to their liking. He, instead of recognizing
that this was a problem with FHA loans, he chose to
blame it on that particular lender, and to pursue financ-
ing through a mortgage broker that was recommended
to him, but there’s no evidence that he had previously
worked with that mortgage lender, only to find out that
despite the fact they were willing to finance at the
rate of 97 percent, they were only willing to finance
97 percent of a very, very conservative appraisal of
the [premises.]
‘‘[The plaintiff] decided or opted not to try to fulfill
his obligations by seeking more conventional financing.
And in that regard, he put himself in the state that he
found himself in, where he was unable to perform the
contract on November 16, as he was obligated to do.
He had three weeks within which he could have taken
steps to apply for different financing, and perhaps pur-
sue other goals. Instead, the only step apparently he
took was to try to appeal [an] appraisal on the basis of
comparables. [It d]oes not seem to the court that that
was an avenue that would normally yield a banker
changing its mind and agreeing to underwrite a loan
that they had rejected.
‘‘So, under those circumstances the court finds first
of all, that this was not an unavoidable, unwilful breach.
It was one that was part and parcel of the course that
the parties embarked on from the beginning. It was well
known to both of them. And it was a risk that the
plaintiff took.’’6 The court found for the defendant on
the plaintiff’s breach of contract and unjust enrichment
counts. The court found for the defendant on her coun-
terclaim and ordered that she retain the $30,000
deposit.7 After the parties stipulated to the amount of
attorney’s fees and judgment was rendered, the plain-
tiff appealed.
I
The plaintiff’s first claim is that the court improperly
enforced the liquidated damages clause because it con-
flicts with the ‘‘essential precepts of Connecticut con-
tract law.’’ We disagree.
The plaintiff argues that a contract provision that
fixes liquidated damages for breach of contract is
enforceable if it satisfies certain conditions; but that a
liquidated damages provision that imposes a penalty is
contrary to public policy, and therefore, is invalid. See
Berger v. Shanahan, 142 Conn. 726, 731, 118 A.2d 311
(1955). ‘‘A provision for liquidated damages . . . is one
the real purpose of which is to fix fair compensation
to the injured party for a breach of contract. In
determining whether any particular provision is for liq-
uidated damages or for a penalty, the courts are not
controlled by the fact that the phrase ‘liquidated dam-
ages’ or the word ‘penalty’ is used. Rather, that which
is determinative of the question is the intention of the
parties to the contract. Accordingly, such a provision
is ordinarily to be construed as one for liquidated dam-
ages if three conditions are satisfied: (1) The damage
which was to be expected as a result of the breach of
the contract was uncertain in amount or difficult to
prove; (2) there was an intent on the part of the parties
to liquidate damages in advance; and (3) the amount
stipulated was reasonable in the sense that it was not
greatly disproportionate to the amount of the damage
which, as the parties looked forward, seemed to be
the presumable loss which would be sustained by the
contractee in the event of a breach of the contract.’’
(Internal quotation marks omitted.) American Car
Rental, Inc. v. Commissioner of Consumer Protection,
273 Conn. 296, 306–307, 869 A.2d 1198 (2005), quoting
Berger v. Shanahan, supra, 142 Conn. 731–32.
The essence of the plaintiff’s claim is that the defen-
dant suffered no damages as a result of his breach, and
therefore, the court improperly permitted the defendant
to retain the $30,000 deposit. In rendering its decision,
the court stated: ‘‘With respect to the liquidated dam-
ages clause . . . the evidence that [the court] has seen
regarding actual damages is incomplete and inconclu-
sive. The burden was on the plaintiff to show that those
actual damages were so disproportionate or nonexis-
tent as to render the clause a penalty clause. The court
finds specifically that the plaintiff has failed to satisfy
that burden. So, the court finds that the liquidated dam-
ages clause is enforceable and valid.’’
In contract, where the purchaser is in default, as is
the plaintiff in the present case, the defaulting party
has the ‘‘burden of showing that the clause is invalid
and unenforceable.’’ Vines v. Orchard Hills, Inc., supra,
181 Conn. 512. We have reviewed the record and con-
clude that it supports the finding of the trial court.8
In support of his appellate claim, the plaintiff relies
on Norwalk Door Closer Co. v. Eagle Lock & Screw
Co., 153 Conn. 681, 220 A.2d 263 (1966), in which our
Supreme Court concluded that a $100,000 liquidated
damages clause of the parties’ contract was not enforce-
able where no damages were suffered by the non-
breaching party. Although the defendant breached its
contract with the plaintiff, the plaintiff’s business con-
tinued uninterrupted and as usual. Id., 690. The plaintiff
suffered no damages and, therefore, was not entitled
to liquidated damages. Id. ‘‘[N]o provision in a contract
for the payment of a fixed sum as damages, whether
stipulated for as a penalty or as liquidated damages,
will be enforced in a case where the court sees that
no damages has been sustained.’’ (Internal quotation
marks omitted.) Id., 688. The present case is distinguish-
able because the trial court found that the plaintiff
had failed to prove that the defendant did not suffer
actual damages.9
With regard to the breach of a contract for the sale
of real property, a ‘‘seller’s damages . . . include not
only his expectation damages suffered through loss of
his bargain, and his incidental damages such as broker’s
commissions, but also less quantifiable costs arising
out of retention of real property beyond the time of the
originally contemplated sale.’’ Vines v. Orchard Hills,
Inc., supra, 181 Conn. 512. ‘‘It is not unreasonable . . .
to presume that a liquidated damages clause that is
appropriately limited in amount bears a reasonable rela-
tionship to the damages that the seller has actually
suffered.’’ Id. ‘‘A liquidated damages clause allowing
the seller to retain 10 percent of the contract price as
earnest money is presumptively a reasonable allocation
of the risks associated with default.’’ Id. In the present
case, the $30,000 down payment was considerably less
than 10 percent of the offering price of $716,000, and
therefore presumptively reasonable.
As to the plaintiff’s claim that the defendant was able
to sell the premises for $4000 more than his offering
price, ‘‘[t]he relevant time at which to measure the sell-
er’s damages is the time of breach. . . . Benefits to the
seller that are attributable to a rising market subsequent
to breach rightfully accrue to the seller.’’ (Citations
omitted.) Id., 513. Although the court made no such
finding, there is evidence in the record that the person
who eventually purchased the premises originally had
offered to pay $5000 more for the premises during what
we presume was a bidding war.
For the foregoing reasons, we conclude that the court
properly determined that the liquidated damages clause
was valid and enforceable.10
II
The plaintiff’s second claim is that the trial court
improperly found that he had breached the agreement
wilfully and that the defendant was not unjustly
enriched. We disagree.
‘‘[A] purchaser whose breach is not willful has a resti-
tutionary claim to recover moneys paid that unjustly
enrich his seller.’’ Id., 509. The essence of the plaintiff’s
claims on appeal is the same as it was in the trial court,
that is, that he should be excused from having breached
the agreement because he could not secure financing
and the defendant suffered no damages because she
was able to sell the premises within weeks of his breach.
We are not persuaded.
‘‘Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
The trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . We
cannot retry the facts or pass on the credibility of the
witnesses. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) In re
Francisco R., 111 Conn. App. 529, 535–36, 959 A.2d
1079 (2008).
A
In the present case, the court found that the plaintiff’s
breach was ‘‘not unwilful.’’ ‘‘‘Willful’ as a term of art
requires more than a finding of deliberate action. The
contemporary view is that the court must consider not
only the deliberateness of the breach, but also other
factors in determining whether to apply the court’s equi-
table jurisdicition. . . . These factors include, among
others, the degree of innocence of the breach, the
amount of the detriment to the breaching party and the
amount of the benefit conferred upon the nonbreaching
party.’’ (Citation omitted.) Stabenau v. Cairelli, 22
Conn. App. 578, 581–82, 577 A.2d 1130 (1990).
On the basis of our review of the court’s oral decision
and the record, we conclude that the court did not err
when it found that the plaintiff’s breach of the contract
was wilful, in that there is evidence that he deliberately
took the risk of entering into the agreement without
the funds to consummate the sale and without reserving
a financing contingency. It appears from the record that
a number of persons were interested in purchasing the
premises. In order to foreclose others from winning
what may have become a bidding war, the plaintiff
waived any financing contingency to secure his bid. Not
only did the plaintiff place himself at risk by waiving
the finance contingency, he sought a highly leveraged
mortgage of 97 percent of the purchase price. When he
was unable to obtain such a mortgage from his preap-
proved conventional lender and the mortgage offered
to him by another lending institution was too little, he
failed to pursue other means of financing. The plaintiff
was not a novice in the real estate business. He took
a calculated risk in an effort to outbid his competition
for the premises. The plaintiff’s breach of the agreement
was not wilful because he could not obtain a mortgage,
but because he wilfully waived a financial contingency
that put not only him, but also the defendant, at financial
risk. The trial court, therefore, did not err when it found
that the plaintiff’s breach of the agreement was wilful.
On appeal the plaintiff argues that the trial court’s
decision is contrary to Connecticut law because it is
not consistent with our Supreme Court’s decision in
Vines v. Orchard Hills, Inc., supra, 181 Conn. 501. The
factual circumstance of the purchasers’ breach in Vines
is inapposite to the facts of the present case. In Vines,
the husband and wife would-be purchasers withdrew
their offer to buy a condominium in New Canaan from
the developer seller because the husband’s employer
transferred him to New Jersey. Id., 503. Our Supreme
Court stated that ‘‘a purchaser whose breach is not
willful has a restitutionary claim to recover moneys
paid that unjustly enrich his seller. In this case, no one
has alleged that the purchasers’ breach, arising out of
a transfer to a more distant place of employment, should
be deemed to have been willful.’’ Id., 509–10; see also
Stabenau v. Cairelli, supra, 22 Conn. App. 582 (breach
prompted by fear that named plaintiff would lose job
and not be able to make payments required for purchase
of property; named plaintiff did not deliberately place
job in jeopardy for purpose of avoiding contract). In
both Vines and Stabenau neither would-be purchasers
voluntarily put themselves in the position to breach the
contracts of sale. In the present case, however, the
plaintiff voluntarily waived the finance contingency that
put him at risk of not being able to close on the sale
of the premises.
B
The plaintiff also claims that the trial court erred
when it found that the defendant was not unjustly
enriched. It was the plaintiff’s burden to ‘‘demonstrate
that the property could, at the time of [his] breach, have
been resold at a price sufficiently higher than [the]
contract price to obviate any loss of profits and to
compensate the seller for any incidental and consequen-
tial damages.’’ (Internal quotation marks omitted.) Sta-
benau v. Cairelli, supra, 22 Conn. App. 583; see also
Vines v. Orchard Hills, Inc., supra, 181 Conn. 510 (plain-
tiff’s burden to establish defendant unjustly enriched).
The trial court found that the plaintiff failed to meet
his burden to demonstrate that the defendant would be
unjustly enriched by retaining the plaintiff’s $30,000
deposit. We review the trial court’s findings of fact by
a clearly erroneous standard. See Lynch v. Lynch, 13
Conn. App. 433, 436–37, 537 A.2d 503 (1988). On the
basis of our review of the record, the parties’ briefs,
and arguments before us, we cannot conclude that the
court’s finding was clearly erroneous.11 Moreover, the
plaintiff’s claim for restitution fails because his breach
of the agreement was wilful.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Paragraph 17 of the agreement states: ‘‘MORTGAGE CONTINGENCY.
This Agreement is not contingent upon BUYER obtaining financing for the
purchase of the subject premises.’’
2
When the plaintiff informed the defendant that he was unable to close
at the contract price, he offered to purchase the premises at a lower price.
3
Paragraph 16 of the agreement provides in part: ‘‘DEFAULT. If BUYER
is in default hereunder, or, on or before the date of closing as set forth
herein, indicates that BUYER is unable or unwilling to perform and SELLER
stands ready to perform SELLER’’S obligations, SELLER’s sole remedy shall
be the right to terminate this Agreement by written notice to BUYER or
BUYER’s attorney and retain the down payment as reasonable liquidated
damages for BUYER’s inability or unwillingness to perform. It is the intention
of the parties hereto freely to make advance provision on the date of the
Agreement for such event in order (a) to avoid controversy, delay and
expense, and (b) to specify now a reasonable amount agreeable to both for
compensation to the SELLER for losses which may not be readily ascertain-
able or quantifiable, such as any of the following which might be necessary
to place SELLER in the position SELLER would have been in had BUYER
made timely performance . . . .’’
4
The deposit was being held in escrow by Attorney W. Glenn Major.
5
Paragraph 37 of the agreement states: ‘‘COSTS OF ENFORCEMENT.
Except as otherwise expressly provided herein, in the event of any litigation
brought to enforce any material provision of this Agreement, the prevailing
party shall be entitled to recover its reasonable attorneys’ fees and court
costs from the other party.’’
6
The court did not reach the issue of unjust enrichment.
7
The parties were to appear before the court at a later time to present
evidence as to reasonable attorney’s fees. On August 20, 2014, the parties
filed a stipulation of attorney’s fees in the amount of $20,000.
8
The defendant presented evidence to prove that she sustained more than
$24,000 in damages as a result of the plaintiff’s breach.
9
In her brief, the defendant has identified the evidence of the expenses
she incurred as a result of the plaintiff’s having breached the agreement. A
summary of her alleged damages was marked as an exhibit and is included
in the appendix of her brief. The court, however, made no specific finding
with respect to that evidence, and the plaintiff failed to ask the court to
articulate its factual findings as to damages. See Practice Book §§ 60-5 and
61-10. We presume, therefore, that the court properly applied the law to the
facts of the case. See Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 9, 826
A.2d 1088 (2003).
10
See also Peterson v. McAndrew, 160 Conn. App. 180, 193–94, 125 A.3d
241 (2015) (enforcing liquidated damages clause pursuant to American
Car Rental, Inc., v. Commissioner of Consumer Protection, supra, 273
Conn. 306–307).
11
The defendant presented evidence that a second buyer offered $725,000
to purchase the premises but that she accepted the plaintiff’s noncontingency
offer of $716,000.