DeCarlo & Doll, Inc. v. Dilozir

HEIMAN, J.,

dissenting. The majority concludes that the contract and its amendments are not ambiguous, and the clause at issue was not a condition precedent, but rather an agreed upon time of payment. Thus, the majority concludes that payment should have been made by the defendant at a reasonable time. Accordingly, it reverses the judgment of the trial court and remands the case for a new trial. I believe that the result reached by the majority is incorrect, and, thus, I dissent.

In reaching its decision, the majority first concludes that the contract and its amendments are unambiguous, and thus the determination of what the parties intended by their contractual commitments is a question of law and subject to plenary review. The majority proceeds *645to substitute its interpretation of the contract and its amendments for the trial court’s interpretation, concluding that the handwritten clause at issue is not a condition precedent, but rather an agreed upon time of payment. I disagree.

Certain facts must be recited in order to make the issue clear. On July 10, 1989, the defendant signed and accepted a proposal submitted by the plaintiff “for engineering and technical services required to prepare a site plan and applications for development of proposed self storage and business services at the Nutec Property on Route 85 in Amston.” The parties executed an amendment to their initial agreement, that was signed by the plaintiff on July 6, 1989, and by the defendant on July 10, 1989.

Following the execution of the original agreement and its accompanying amendment, the plaintiff sent a letter to the defendant, dated February 8, 1990. That letter stated: “In our proposal dated June 16, 1989, we suggested a budget of $2,000 for the application preparation and meeting attendance .... Meetings with the abutters to your project and design changes due to Town Staff and DOT comments were not included in this budget. Because of this increase in scope, we suggest the budget for this item be increased to $8,000. Kindly sign and return one copy to this office.”

The defendant added a handwritten clause to the lower portion of the letter. That clause stated: “Subject to payment with all outstanding payments to be paid in full at time of financing of project.” The handwritten clause was initialed by both the plaintiff and the defendant. The defendant signed and dated this letter on August 2, 1990.

In a trial to the court, the plaintiffs head engineer, the defendant, and James Malloy, the real estate broker who sold the property at issue to the defendant, offered *646the following testimony. The plaintiffs head engineer, Michael Turner, had initially assured the defendant that, while there were no guarantees, his firm had much experience with the local zoning and planning commissions and he thought that there should be no problem in getting the construction project approved. Turner specifically told the defendant that he need not hire an attorney to get the project approved because Turner’s firm had plenty of expertise in this area.

Subsequent to the mailing of the February 8, 1990 letter, the parties met on August 2,1990. At this meeting, Turner explained that getting the project approved was costing the plaintiff much more time, energy and money than it originally anticipated, and thus it required $8000 for this portion of its services, rather than the original $2000. The defendant became upset and explained that his financing for the project by Glastonbury Bank and Trust was contingent upon the plaintiffs getting the project finally approved by the necessary commissions. Both the defendant and Malloy testified that the defendant then communicated to Turner that he would pay the plaintiff the outstanding payments under the contract only if and when the financing was approved. Turner testified that he understood the defendant’s statements to be an assurance that the defendant would pay the plaintiff as soon as he obtained financing. The defendant then added the handwritten provision to the bottom of the letter dated February 8, 1990, and both parties initialed it. At the conclusion of the trial, the trial court found for the defendant on his third special defense and rendered judgment in favor of the defendant on the complaint.

I believe that the handwritten clause found on the lower portion of the February 8, 1990 letter is neither crystal clear nor unambiguous. “ ‘Absent a statutory warranty or definitive contract language, the trial court’s interpretation of a contract, being a determina*647tion of the parties’ intent, is a question of fact that is subject to reversal on appeal only if it is clearly erroneous.’ ” 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 295, 685 A.2d 305 (1996). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. ” Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 437, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996). Rather, the trial court’s conclusion must stand “unless it is one that a trier [of fact] could not reasonably reach.” Foley v. Huntington Co., 42 Conn. App. 712, 731, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Therefore, as I believe that the handwritten provision at issue was ambiguous, its interpretation is a question of fact, reversible only if the trial court could not reasonably have arrived at the conclusion it did.

The trial court found that the handwritten provision at issue constituted a condition precedent that made the defendant’s payments to the plaintiff contingent upon the project’s being financed. The trial court further found that because the project was never financed, the defendant’s duty to pay never came into existence.1 On *648the basis of those determinations, the trial court found for the defendant on his third special defense2 and rendered judgment in favor of the defendant on the complaint.

“A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence. . . . Whether a provision in a contract is a condition the nonfulfilment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.) Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); see also Sicaras v. Hartford, 44 Conn. App. 771, 780, 692 A.2d 1290 (1997); J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 11-5, pp. 439-40.

“[T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., supra, 239 Conn. 295. The New World Dictionary defines *649“subject to” as “contingent or conditional upon,” while Black’s Law Dictionary defines “subject to” as “provided that.” New World Dictionary (2d Ed. 1974); Black’s Law Dictionary (6th Ed. 1990).

Moreover, the circumstances surrounding the execution of the contract and its amendments, as evidenced by a close examination of the record and transcripts, further support the reasonableness of the trial court’s determination. The plaintiffs head engineer, Turner, initially advised the defendant that obtaining all of the necessary local commission approvals for the project should not be a problem. At a meeting on August 2, 1990, Turner explained to the defendant that his firm was having trouble acquiring the requisite commission approvals, and would need a lot more money in order to get the project approved. The defendant became upset, explained to Turner that the financing for the project was contingent upon these approvals, and further stated that he would make all outstanding payments to the plaintiff only when he obtained financing. The defendant handwrote the provision at the bottom of the February 8, 1990 letter, and Turner initialed it.

Furthermore, in the context of a large development project, a developer’s conditioning his payment to an engineering company on the obtainment of financing for the project is a longstanding customary practice in the construction industry. See, e.g., Douglas v. Nowakowski, 141 Conn. 438, 440, 106 A.2d 468 (1954).

Therefore, I believe that the trial court’s determination that the handwritten provision constituted an unfulfilled condition precedent that excused the defendant’s performance was reasonable and, thus, should be affirmed.

Next, the majority, relying on a New Jersey case, an inapplicable Uniform Commercial Code section, and Dills v. Enfield, 210 Conn. 705, 720, 557 A.2d 517 (1989), *650concludes that because the obtaining of financing for the project was an event within the sole control of the defendant, the nonoccurrence of this event should not excuse his performance under the contract and the defendant should have paid the plaintiff within a reasonable time. I disagree.

The problem with the majority’s syllogism is that the act of obtaining financing for the project was not within the sole control of the defendant. Glastonbury Bank and Trust’s financing of the project was contingent on the approval of the project by the Hebron inland wetlands commission and the Hebron planning and zoning commission. The plaintiff specifically contracted, in its original contract with the defendant, to take all actions necessary to obtain the required commission approvals, including preparation and submission of all plans and applications to the two commissions, as well as attendance at all commission meetings and public hearings.3 The plaintiff was aware that the financing of the project was contingent on the plaintiffs obtaining the two commissions’ approval of the project.

Furthermore, the majority has failed to cite any precedent binding on this court that supports their position. The majority’s reliance on Dills v. Enfield, supra, 210 Conn. 705, is misplaced because Dills is distinguishable both factually and legally from this case. In Dills, the developer attempted to invoke a termination clause that allowed the developer to withdraw and to reclaim his deposit if, after the preparation of construction plans satisfactory to the agency, the developer could not obtain the necessary mortgage financing. Id., 707-708. The developer claimed that his inability to obtain mortgage financing for the project represented a superven*651ing impracticability that discharged his duty to provide construction plans by a certain date. Id., 709-10. The attorney trial referee agreed with the developer, but the trial court rejected the referee’s recommendation and instead held that the doctrine of impracticability and impossibility was not relevant to the case. Id., 710-11. Our Supreme Court agreed with the trial court that the doctrine of impracticability was inapplicable in Dills, and held instead that, “ ‘[i]f an event is foreseeable, a party who makes an unqualified promise to perform necessarily assumes an obligation to perform, even if the occurrence of the event makes performance impracticable.’ ” Id., 720.

Here, the defendant argued that his duty to pay all outstanding payments never came into existence because of the unfulfilled condition precedent. Neither party argues anywhere that the defendant’s duty to pay the plaintiff all outstanding payments was discharged under the doctrine of impracticability. The defendant in this case is arguing contractual interpretation, the enforcement of a bargained for contractual provision, not the application of the rarely used and exceptional doctrine of impracticability. Id., 717.

Moreover, in Dills, unlike here, the developer’s inability to obtain financing, the event on which the developer relied to excuse his performance, was an event that the parties foresaw at the time of the execution of the contract, an event solely within the control of the developer, as well as a risk that the developer had explicitly contracted to bear. Id., 719-20. “Section 702 (b) of the contract allowed the developer to withdraw and to reclaim his deposit if, after the preparation of construction plans satisfactoiy to the agency, the developer could not obtain the necessary mortgage financing.” Id., 708. This section of the contract “demonstrates that the parties expressly contemplated that [the developer] might encounter financial difficulties.” Id., 719-20. *652Nonetheless, despite this foreseeable problem, the developer specifically contracted to do everything necessary to obtain the mortgage financing. Id., 707-708 n.2, 719-20.

In the present case, the inability to obtain project financing, the event that excused the defendant’s performance, was not foreseen by either party at the time of contracting, and thus was not a risk bargained for at the time of contracting, nor a risk explicitly assigned to one party by the contract. Further, here, the inability to obtain financing was not an event within the sole control of the party seeking excuse from his performance.

The majority further relies on A. J. Wolfe Co. v. Baltimore Contractors, Inc., 355 Mass. 361, 364, 244 N.E.2d 717 (1969). First, a Massachusetts case is obviously not binding on this court. Second, the provision at issue in A. J. Wolfe Co., contains no contingency language such as the “subject to” language found in the handwritten provision at issue in this case. Id. Instead, the disputed provision in A. J. Wolfe Co. clearly establishes a certain agreed upon time of payment. Id.

Because the handwritten provision on the February 8,1990 letter was not so clear as to render its interpretation a matter of law, its interpretation is a question of fact, subject to the clearly erroneous standard of review. Further, the trial court’s determination that the handwritten provision constituted an unfulfilled condition precedent that excused the defendant’s performance was a reasonable determination and was not clearly erroneous. Thus, I conclude that the trial court properly found for the defendant on his third special defense and properly rendered judgment in favor of the defendant on the complaint. I would affirm the judgment of the trial court.

In court on September 5, 1995, the trial court, Levine, J., ruled, “I find that there was an ambiguity in the initial contract, exhibit 2, about whether the $2000 was an estimate or a maximum cap, and when the plaintiff sent the defendant exhibit 4, asking that the defendant agree to increase the budget for item 10 in exhibit 2, from $2000 to $8000, that that is a very strong indication, from which I draw the inference, that the intent of the parties was that the $2000 would be a cap and not merely an estimate. And therefore, the increase in that cap from $2000 to $8000 constituted a consideration flowing from the defendant to the plaintiff, which supported the other provisions contained in exhibit 4, in particular supported the newly negotiated provision that’s written in by hand, which says, ‘Subject to payment, with all outstanding payments to be paid in full at time of financing of project,’ which I find to mean that .... [wjhatever money became due after the execution of exhibit 4, and whatever money was due at the time of execution of exhibit 4, would all be contingent. The obligation to pay it would be contingent upon the project being financed, and the project *648never having been financed, then the obligation having been contingent is dissolved, and so I find for the defendant on the third special defense, and as a result, I enter judgment in favor of the defendant on the complaint, and in favor of the plaintiff on the counterclaim and no costs to either party.”

The defendant’s third special defense provides: “Said agreement as amended August 2, 1990 . . . conditioned any obligation on the part of the Defendant to make payments to the Plaintiff on the obtaining of financing for the project. Financing was never obtainable because the Plaintiff was unsuccessful in obtaining approval for the project.”

Item 10 of the original contract, dated June 16, 1989, provides as part of the plaintiffs services to the defendant, “Preparation and submission of plans and applications to and attendance of Inland Wetland Commission and Planning and Zoning Commission meetings and public hearings.”