Miceli v. Helyer

SCHALLER, J.,

dissenting. The majority concludes that the trial court did not improperly find that the plaintiffs’ failure to comply with a condition precedent to the contract caused the closing not to go forward. Because my review of the evidence leads me to conclude otherwise, I respectfully dissent. The evidence *347plainly demonstrates that the plaintiffs met all of their obligations under the contract, even as those obligations were extended beyond the terms of the written contract by virtue of the implied condition precedent that the plaintiffs produce a satisfactory water test at the closing, which the trial court found to exist on the basis of what “the parties both understood.”

Close scrutiny of the evidence reveals several additional facts, unlikely to be disputed, that cast a somewhat different light on the situation. After the parties mutually extended the date for completing the water test to September 23, 1988, the plaintiffs took remedial action, and by September 13,1988, the water had tested satisfactorily for purposes of the contract. A report was produced reflecting this testing. The defendant apparently did not see that report and was not given a copy. The defendant, however, did not terminate the contract on September 23, 1988, because of a failure to comply with the water contingency clause. Instead, he agreed to further extensions of the closing date, including an extension until the final date of December 9, 1988.1

Shortly after the parties assembled for the December 9,10 a.m. closing, Attorney Clement Pontillo, representing the bank, inquired whether the plaintiffs’ attorney had the latest water report.2 Attorney Edward Gasser, representing the plaintiffs, then spoke, not only with someone in his own office, but with a representative of the water testing company, to verify that a subsequent test had been performed and that the results were satisfactory. Moreover, Gasser handed the telephone to Pon-tillo so he could ascertain for himself from the water *348testing company that the tests were satisfactory. Indeed, the water situation was fully remedied prior to September 23, 1988, a fact that apparently was well understood prior to the parties’ assembling on December 9 for the closing.

Despite the general knowledge and specific assurances that the test results were satisfactory, and the tender of an executed deed by the plaintiffs’ attorney, the closing attorney and the buyer’s attorney declined to begin the process of closing on the transaction, preferring instead to await the arrival of the report, which was sure to reflect the successful water test. When asked why the defendant did not begin signing the mortgage documents, the defendant’s wife replied: “I don’t know. I don’t think that is something that we would be in charge of; we were not asked to start doing anything.”

In the meantime, while the parties waited, various issues pertaining to complaints about the square footage of the house as well as the appraised value were raised on behalf of the defendant. The defendant’s attorney indicated that his client was looking for a reduction in the purchase price because the square footage was not as represented. The defendant’s wife testified further that at 11:30 a.m., after one and one-half hours of waiting, rather than proceeding with the mechanics of closing, Pontillo stated that “he had other obligations; the bank could not do the closing at that time and nothing could go forward from that day, so everyone left.” Everyone left, except Gasser, who remained to receive the water test report, delivered ten minutes later. The test report, of course, reflected the complete correction of the water problem. Before leaving the bank building, in which Pontillo maintained his office, Gasser left a copy of the report with Pontillo’s secretary.

The trial court found “that after the failure of the first test, the parties both understood that if there was *349to be a closing it would be the obligation of the seller, not the buyer, to correct the problem, and pay for the test, and that if the test result was not produced at the closing, there would be no mortgage, no closing, and no sale.” The trial court later referred to the substance of that finding as a “condition” and found that because of the plaintiffs’ failure (actually, according to the trial court, it was the real estate broker’s failure) to produce an acceptable water report, “the mortgage contingency failed and the contract contingency failed.” Although the majority correctly points out that we are concerned only with the water contingency provision, not the mortgage contingency, the two are linked incorrectly in the trial court decision and, in my view, the plaintiffs are charged improperly with the defendant’s obligation to furnish a test report to qualify for financing.

“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.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 41, 632 A.2d 1134 (1993). Of course, we should not hesitate to act when a clearly erroneous finding is discovered. See, e.g., Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995); Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 638, 646 A.2d 772 (1994); Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Conn. 450, 458, 612 A.2d 1217 (1992); Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 545, 651 A.2d 1302 (1995); Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 440, 651 A.2d 281 (1994). I am convinced that clear error has occurred here that has resulted in a substantial injustice to the plaintiffs. See Jackson v. *350Jackson, 2 Conn. App. 179, 196, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984).

As the majority stated, “ ‘[a] condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . If the condition precedent is not fulfilled the contract is not enforceable.’ (Citations omitted; internal quotation marks omitted.) Luttinger v. Rosen, 164 Conn. 45, 47-48, 316 A.2d 757 (1972) . . . .” That statement of law does not, however, go quite far enough in this situation. Our Supreme Court has held, significantly, that “[i]n the absence of a specified time limit to comply with a condition precedent, the law implies a reasonable time. . . . What is a reasonable length of time is ordinarily a question of fact for the trier.” (Citations omitted; internal quotation marks omitted.) Christopher v. Blount, 216 Conn. 509, 513, 582 A.2d 460 (1990). Christopher is particularly applicable to this case.

I assume, arguendo, that the trial court’s finding of the implied contract modification was not clearly erroneous, even though to do so requires overlooking several inherent inconsistencies. I cannot agree, however, with the court’s finding that the plaintiffs’ failure to satisfy that condition caused the closing to fail. A review of the entire evidence leads me to a definite and firm conviction that a mistake has been committed. See Ros-ick v. Equipment Maintenance & Service, Inc., supra, 33 Conn. App. 41. Soon after the parties had assembled for the closing, if not well before, it was apparent that the plaintiffs had long since satisfied the water condition, that a report to that effect had been prepared and that the report would be delivered to the closing. In the face of that information, the bank’s attorney, for some unexplained reason, still refused to process the closing documents and, instead, elected to wait for the report. Then, at 11:30 a.m., he summarily decided that, given his schedule for the day, there would be insuffi*351cient time for the closing when the report arrived. Within ten minutes after he, the defendant and his attorney departed, the report arrived, as expected, indicating full compliance by the plaintiffs.

The plaintiffs’ tender of the executed deed was rejected despite the fact that they had satisfied, under any reasonable interpretation, the vital part of the contractual water contingency, even under the “modified” contract. The plaintiffs not only had satisfied the water condition well before the closing, but also produced a report evidencing compliance within a reasonable time—in ample time for the closing to be held that day. While it is unfortunate that the report was not brought to the closing earlier, under the applicable law, the plaintiffs were entitled to have the closing proceed or to be compensated for their damage. Although the trial court, ultimately, did not conclude that the real reason for the failure of the closing was the defendant’s dissatisfaction with the square footage and appraised value of the premises, despite the substantial evidence to that effect, that evidence may help to explain why the closing ended so abruptly.

Because the entire evidence indicates unmistakably that the plaintiffs satisfied their obligations under the contract, I would reverse and remand with direction to render judgment in favor of the plaintiffs.

For the foregoing reasons, I respectfully dissent.

It is clear that because the defendant failed to exercise any right to terminate based on the financing contingency, no claim can be asserted in that regard.

The evidence is plain that, by this time, everyone concerned with the matter was well aware that the plaintiffs had long since corrected the water situation.