Li v. Yaggi , 185 Conn. App. 691 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
WINSTON Y. LI ET AL. v. HENRY
K. YAGGI III ET AL.
(AC 40683)
Alvord, Sheldon and Norcott, Js.
Syllabus
The plaintiffs, who had entered into an agreement to purchase a parcel of
residential property from the defendants, brought the present action
seeking, inter alia, the return of certain contractual deposits pursuant to
a mortgage contingency clause. Shortly before expiration of the relevant
contingency date, the plaintiffs sent the defendants an e-mail stating
that they had been unable to secure a mortgage and requesting an
extension. Although the defendants responded that they would be willing
to agree to an extension if the plaintiffs provided certain additional
information, that information was never provided. After the contingency
date passed, the plaintiffs received notices from two banks enumerating
certain problems with their mortgage applications. On the basis of these
notices, the plaintiffs requested termination of the agreement and a
return of their deposits. Following a trial to the court, the court issued
a memorandum of decision concluding that the plaintiffs’ failure to
diligently pursue financing and their failure to provide a timely written
notice of termination constituted a breach of the agreement, and that,
therefore, the defendants were entitled to retain the deposits as liqui-
dated damages. Specifically, the court concluded the plaintiffs’ e-mail
did not constitute a written notice of termination but, rather, merely
served as a request for an extension. The defendants subsequently filed
a motion seeking attorney’s fees pursuant to the agreement, which the
court granted. Thereafter, the court rendered judgment in favor of the
defendants in accordance with its decision, and the plaintiffs appealed
to this court. Held:
1. The trial court’s finding that the plaintiffs failed to diligently pursue
financing was clearly erroneous; in light of the terms of the agreement,
the question for the court was whether the plaintiffs used reasonable
diligence in their efforts to pursue a written mortgage commitment on
or before the commitment date, and the court, in reaching the conclusion
that the plaintiffs had failed to fulfill their obligation under the
agreement, improperly relied solely on the notices from the plaintiffs’
banks, which were ambiguous as to whether they reflected efforts of
the plaintiffs within the relevant time period and provided no suggestion
as to whether the plaintiffs had previously been notified, prior to the
commitment date, of any deficiencies in their applications, as the court
failed to properly focus on the diligence of the efforts made by the
plaintiffs up to the commitment date and made no finding that there
had been a lack of reasonable diligence in that earlier time period.
2. The trial court erred in interpreting the mortgage contingency clause in a
manner requiring the plaintiffs to provide a written notice of termination;
given that, under the clear language of the mortgage contingency, if the
plaintiffs provided the defendants with notice by the commitment date
of their inability to obtain a written commitment by the commitment
date, the agreement would have been null and void and the plaintiffs
would have been entitled to the return of their deposits, the only question
for the court was whether the plaintiffs’ e-mail, taken as a whole, con-
tained sufficient language to notify the defendants of the plaintiffs’
inability to obtain financing by the contingency date, and the court’s
error in interpreting the plaintiffs’ obligation under the contract as requir-
ing notice of termination of the agreement left that question unanswered.
3. This court declined to address the plaintiffs’ claim regarding the reason-
ableness of the trial court’s award of attorney’s fees, as this court’s
reversal of the trial court’s judgment in favor of the defendants also
required vacatur of the award of attorney’s fees.
4. The defendants could not prevail on their claim, raised as an alternative
ground for affirming the judgment, that the plaintiffs should be equitably
estopped from claiming that they intended their e-mail to terminate the
agreement because they continued to act as if the agreement remained
in effect; although the defendants were not precluded from raising an
equitable estoppel claim on remand, the record was inadequate to review
that claim in the present appeal, as the doctrine of equitable estoppel
was neither raised before, nor addressed by, the trial court.
Argued May 24—officially released October 30, 2018
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New Haven and tried to
the court Wilson, J.; judgment for the defendants, from
which the plaintiffs appealed to this court; thereafter,
the court, Wilson, J., denied the plaintiffs’ motion for
articulation and granted the plaintiffs’ motion for rectifi-
cation. Reversed; new trial.
Winston Y. Li, self-represented, and Liping Wang,
self-represented, the appellants (plaintiffs).
Philip G. Kent, with whom, on the brief, was Adam
D. Miller, for the appellees (defendants).
Opinion
ALVORD, J. The self-represented plaintiffs, Winston
Y. Li and Liping Wang, appeal from the judgment of the
trial court, rendered after a trial to the court, in favor
of the defendant, Valerie M. Yaggi, individually and as
administratrix of the estate of Henry Yaggi, on the plain-
tiffs’ two count complaint alleging breach of the parties’
purchase and sale agreement and breach of contract.1
On appeal, the plaintiffs claim that the court (1) errone-
ously found that the plaintiffs failed to diligently pursue
a written mortgage commitment, (2) erroneously found
that the plaintiffs failed to give notice of their inability
to obtain financing for the real estate purchase by the
agreed upon commitment date,2 and (3) erred in award-
ing the defendant attorney’s fees. The defendant raises
the doctrine of equitable estoppel as an alternative
ground for affirmance of the court’s decision. We
reverse the judgment of the trial court.
The record reveals the following facts and procedural
history. On October 26, 2012, the defendant entered
into a purchase and sale agreement (agreement) with
the plaintiffs with respect to a parcel of real property
located at 45 Wickford Place in the town of Madison
(property). The purchase price of the property was
$810,000, and the plaintiffs submitted deposits total-
ing $25,000.
The agreement contained a mortgage contingency
clause in paragraph 6, which stated: ‘‘Buyer’s obligation
is contingent upon Buyer obtaining financing as speci-
fied in this paragraph. Buyer agrees to apply for such
financing immediately and diligently pursue a written
mortgage commitment on or before the Commitment
Date. . . . If Buyer is unable to obtain a written com-
mitment and notifies Seller in writing by 5:00 p.m. on
said Commitment Date, this Agreement shall be null and
void and any Deposits shall be immediately returned
to Buyer. Otherwise, the Financing Contingency shall
be deemed satisfied and this Agreement shall continue
in full force and effect.’’ The agreement specified that
the commitment date was thirty days from the date of
the October 26 agreement, which was November 25.
Because November 25 was a Sunday, the commitment
date was November 26. The closing date was set for
December 3.
Paragraph 14 of the agreement provided: ‘‘If Buyer
fails to comply with any Terms of this Agreement by
the time set forth for compliance and Seller is not in
default, Seller shall be entitled to all initial and addi-
tional deposit funds provided for in section 4, whether
or not Buyer has paid the same, as liquidated damages
and both parties shall be relieved of further liability
under this Agreement. If legal action is brought to
enforce any provision of this Agreement, the prevailing
party shall be entitled to reasonable attorney’s fees.’’
On November 24, 2012, the plaintiffs sent an e-mail to
the defendant, stating: ‘‘Attached is a request of mort-
gage extension. Due to the Hurricane Sandy and
Thanksgiving holiday. We won’t be able to obtain a
mortgage commitment by 5 [p.m.] today. We request
your approval of extension. We expect a commitment
from a bank next week. Please sign and return to us
ASAP.’’ (November 24 e-mail) The plaintiffs attached to
their e-mail a change form, which proposed an amended
commitment date of December 3, 2012, and an amended
closing date of December 14, 2012. The change form
was signed by the plaintiffs.
The defendant forwarded the e-mail to her realtor,
Lorey Walz, on November 24. The same day, Walz
e-mailed Blake Ruchti, the plaintiffs’ realtor, stating:
‘‘We have received the request to extend the mortgage
commitment date and closing date. The sellers, Hank
and Val Yaggi, are willing to do so after receiving verifi-
cation from the bank that you have a mortgage approval
contingent upon a bank appraisal. . . . Hank and Val-
erie Yaggi would like to see you purchase the home
but have to be confident that a bank commitment will
be given.’’ The defendant did not sign the change form.
The plaintiffs submitted a second change form,
signed by the plaintiffs and dated November 30, 2012,
to the defendant. The second change form proposed
an amended commitment date of December 14, 2012,
and an amended closing date of December 21, 2012.
The defendant handwrote, next to the amended com-
mitment and closing dates, ‘‘[t]ime is of the essence,’’
and initialed next to those handwritten additions. The
defendant signed the second change form on December
4, 2012. The plaintiffs did not initial next to those hand-
written additions, but they subsequently executed a
third and a fourth change form, requesting further
extensions of the commitment and closing dates. Nei-
ther form was signed by the defendant. The fourth
change form proposed an amended commitment date
of January 18, 2013, and an amended closing date of
January 25, 2013.
On February 17, 2013, the plaintiffs e-mailed the
defendant’s counsel, James Segaloff, following up on a
conversation from February 6, 2013, in which they told
Segaloff that the first bank to which they applied for a
mortgage had denied their loan application, the second
such bank had requested an affidavit of repair for the
roof before issuing a commitment, and the third such
bank had not yet responded. In their e-mail, the plain-
tiffs stated: ‘‘We have requested for contract termina-
tion but no response from your clients. . . . Please
advise the status and their consideration of the termina-
tion of the contract.’’ The plaintiffs requested return of
their deposits and attached a notice of loan denial from
the first bank, United Wholesale Mortgage, dated
December 13, 2012, and a suspense notice from the
second bank, Mortgages Services III, LLC, dated Decem-
ber 6, 2012.3
On February 27, 2014, the plaintiffs commenced this
action, alleging in relevant part that the defendant had
breached the purchase and sale agreement by ‘‘not
timely releas[ing] the deposit[s] . . . .’’ Both parties
moved for summary judgment, those motions were
denied, and the matter was tried to the court on March
9, 2017. The parties submitted proposed findings of fact
and conclusions of law. On July 25, 2017, the court
issued a memorandum of decision, finding that the
plaintiffs had breached the purchase and sale
agreement by failing (1) to timely terminate the con-
tract, and (2) to diligently pursue financing as required
under the agreement. Specifically, the court concluded
that the November 24 e-mail sent by the plaintiffs did
not constitute written notice of termination of the
agreement, but rather served as a request for an exten-
sion of the commitment and closing dates. The court
further found that none of the change forms submitted
by the plaintiffs had been agreed upon by the parties
and, thus, that the original commitment date remained
operative. Because the plaintiffs did not provide written
notice of termination by 5 p.m. on the commitment date,
the court concluded that the defendant was entitled to
retain the deposits.
Regarding the requirement to diligently pursue
financing, the court relied on the two December, 2012
‘‘mortgage denial notifications,’’ provided by the plain-
tiffs to the defendant on February 17, 2013. The court
found that the notifications ‘‘indicated that the plaintiffs
did not fully complete their loan applications, and were
thus denied financing.’’ The court noted that the plain-
tiffs had submitted the third and fourth change forms
requesting extensions of the commitment date after the
issuance of the December denial notifications, at which
time they were ‘‘fully aware that they had been denied
a mortgage by two banks.’’ Thus, the court concluded
that the plaintiffs had breached the agreement by failing
to pursue financing in a diligent manner.
Finally, the court concluded that the plaintiffs had
defaulted on the agreement, triggering the liquidated
damages clause set forth in paragraph 14 of the
agreement. The court found that the amount of the
deposits, $25,000, was a reasonable amount for the
defendant to retain as liquidated damages because that
sum represented only three percent of the $810,000
purchase price of the property and the defendant had
testified that the delay occasioned by the plaintiffs had
ultimately caused the defendant to sell the property for
$135,000 less than the contract price to which the par-
ties had agreed. With respect to the defendant’s request
for attorney’s fees, the court ordered the defendant to
file a motion, together with a supporting affidavit, and
indicated that it would ‘‘determine whether reasonable
attorney’s fees shall be awarded’’ after a hearing on
the motion.
The plaintiffs filed this appeal on July 28, 2017. On
January 29, 2018, the court awarded the defendant attor-
ney’s fees in the amount of $38,000 and costs, after
which the plaintiffs filed an amended appeal. Additional
facts shall be set forth as necessary. We now turn to
the plaintiffs’ claims on appeal.
I
In the present case, the trial court determined that
the plaintiffs were not entitled to the return of their
deposits because they had not complied with the terms
of the mortgage contingency clause. Specifically, the
court found that the plaintiffs failed both to diligently
pursue a written mortgage commitment and to give the
notice to the defendant as described in the mortgage
contingency clause. We conclude that the court’s find-
ing as to diligence was clearly erroneous because it
was not specific to the relevant timeframe. We further
conclude that the court’s finding as to notice rested on
a misinterpretation of the language contained in the
mortgage contingency clause, in that the court con-
strued the clause as requiring notice of termination of
the agreement, rather than notice of an inability to
obtain a written commitment by the commitment date.
Consequently, the court’s findings did not properly
resolve the plaintiffs’ breach of contract claim seeking
to invoke the mortgage contingency clause’s provision
for the return of their deposits. The central questions
that should have been decided by the court were (1)
whether the plaintiffs diligently pursued a written mort-
gage commitment on or before the commitment date,4
and (2) whether, if they were unable to obtain a written
commitment by the commitment date, they so informed
the defendant in writing by 5 p.m. on that date.
We begin by setting forth the general law applicable to
mortgage contingency clauses. A mortgage contingency
clause contained in a contract for the sale of real prop-
erty generally allows a purchaser to recover his or her
deposit if the purchaser is unable to secure a mortgage
and has complied with the provisions of the contingency
clause. See generally 77 Am. Jur. 2d, Vendor and Pur-
chaser § 531 (2016) (‘‘The purchaser may be expressly
given the privilege or option to rescind the contract
and to recover any payments made by him or her where
the contract of sale provides for the cancellation of the
contract5 in the event that the purchaser is unable to
obtain a mortgage or loan within a specified time.
Accordingly, when a contract for the sale of real prop-
erty contains a mortgage contingency clause . . . they
are entitled to recover their down payment if the mort-
gage is not in fact approved through no fault of their
own. . . . On the other hand, where the purchaser dis-
regards the terms of a financing contingency contained
in a contract for sale . . . the purchaser would not
be entitled to invoke the contractual contingency and
recover his or her down payment.’’ [Footnotes added
and omitted.]). The condition is ‘‘meant to protect the
buyer. It is a condition of the buyer’s duty, not a condi-
tion of the seller’s duty under the contract. Upon the
nonoccurrence of the condition, i.e., the buyer’s
obtaining financing, the buyer is ipso facto excused
from performance.’’ (Footnotes omitted.) 92 C.J.S., Ven-
dor and Purchaser § 197 (2018); see also 2 Restatement
(Second), Contracts § 225, illustration (8) (1981); id.,
§ 226, illustration (4).
In the present case, the plain language of the provi-
sion in question, stating that the ‘‘Buyer’s obligation is
contingent upon Buyer obtaining financing,’’ evidences
the intent of the parties that the provision be a condition
precedent to the plaintiffs’ obligation to perform their
agreement to purchase. Our appellate courts have pre-
viously interpreted similar mortgage contingency
clauses and determined them to be conditions prece-
dent to the contract. See, e.g., Luttinger v. Rosen, 164
Conn. 45, 48, 316 A.2d 757 (1972);6 see also Barber v.
Jacobs, 58 Conn. App. 330, 335, 753 A.2d 430 (‘‘[t]he
primary issue in this appeal is whether the plaintiff
made a reasonable effort to obtain a mortgage which
was a condition precedent of the contract’’), cert.
denied, 254 Conn. 920, 759 A.2d 1023 (2000).7 The parties
do not dispute that the plaintiffs were ‘‘unable to obtain
a written commitment’’ by the commitment date. They
disagree, however, as to whether the plaintiffs diligently
pursued such a written commitment before that date
and whether they gave written notice of their inability
to obtain a commitment in such a way as to entitle
them to the return of their deposits.
A
The plaintiffs claim that the court erred in concluding
that the plaintiffs breached the purchase and sale
agreement by failing to diligently pursue financing.8 Spe-
cifically, the plaintiffs argue that they provided all docu-
ments to two banks to which they applied for financing,
and that the December, 2012, denial and suspense
notices presented to the court evidenced their diligent
pursuit of such financing. They contend that the court
‘‘failed to understand the mortgage process and didn’t
analyze the denial/suspense reasons, terms, and condi-
tions.’’9 The plaintiffs further argue that the agreement
did not require applications to multiple banks and, thus,
that their application to one bank was sufficient to
comply with the agreement. The defendant argues that
the trial court’s finding that the plaintiffs ‘‘did not fully
complete their loan applications’’ was supported by the
December, 2012 denial and suspense notices. We agree
with the plaintiffs that the court’s finding that they failed
to diligently pursue financing was clearly erroneous,
although we do so on the basis that the court errone-
ously relied upon the December, 2012 denial and sus-
pense notices. Those notices were ambiguous as to
whether they reflected the plaintiffs’ efforts up to the
commitment date and, therefore, shed light on the plain-
tiffs’ diligence in pursuing financing during the relevant
timeframe, or whether they reflected plaintiffs’ efforts
after the commitment date, i.e., after the deadline for
the plaintiffs’ use of diligence had passed.10
The mortgage contingency clause in the parties’
agreement required the plaintiffs to diligently pursue a
written mortgage commitment on or before the commit-
ment date. Similar provisions have been interpreted by
our appellate courts as ‘‘imply[ing] a promise by the
borrower that he or she will make reasonable efforts to
secure a suitable mortgage.’’ (Internal quotation marks
omitted.) Barber v. Jacobs, supra, 58 Conn. App. 335;
see also Phillipe v. Thomas, 3 Conn. App. 471, 473, 489
A.2d 1056 (1985).
In McCoy v. Brown, 130 Conn. App. 702, 705, 708, 24
A.3d 597, cert. denied, 302 Conn. 941, 29 A.3d 467 (2011),
this court explained that a mortgage contingency clause
expressly requiring the buyers to ‘‘make application
[for a loan] forthwith and pursue the same diligently,’’
obligated the buyers to ‘‘use reasonable diligence in
their efforts to obtain a mortgage commitment.’’ (Inter-
nal quotation marks omitted.) ‘‘Reasonableness . . . is
an objective standard, involving an analysis of what
a person with ordinary prudence would do given the
circumstances, without accounting for any particular
knowledge or skill. . . . Whether the plaintiff’s actions
constituted reasonable efforts to satisfy the contractual
condition is a factual determination for the trial court.’’
(Internal quotation marks omitted.) Id., 708.
The question for the court was whether the plaintiffs
had used reasonable diligence in their efforts to pursue
a written mortgage commitment on or before the com-
mitment date. By the express terms of the agreement,
that obligation terminated on the commitment date.
In reaching the conclusion that the plaintiffs failed to
diligently pursue a written mortgage commitment on
or before the commitment date, however, the court
relied solely on the December, 2012 denial and suspense
notices, which were ambiguous as to whether they
reflected efforts of the plaintiffs within the relevant
time period. Although the trial court found that the
two notices ‘‘indicated that the plaintiffs did not fully
complete their loan applications,’’ the notices them-
selves provide no suggestion as to whether the plaintiffs
were previously notified, prior to the commitment date,
of any deficiencies in their applications. The court, in
relying exclusively upon the denial and suspense
notices, failed to properly focus on the diligence of the
efforts made by the plaintiffs up to the commitment
date. The court made no specific finding that there had
been a lack of reasonable diligence in that earlier time
period. Accordingly, the court’s finding that the plain-
tiffs failed to diligently pursue financing is clearly
erroneous.
B
The plaintiffs next contend that the court erroneously
found that they failed to give written notice of their
inability to obtain financing for the real estate purchase
by the commitment date. They argue that they provided
such notice by way of their November 24 e-mail,
wherein they stated: ‘‘Attached is a request of mortgage
extension. Due to the Hurricane Sandy and Thanksgiv-
ing holiday. We won’t be able to obtain a mortgage
commitment by 5 [p.m.] today. We request your
approval of extension. We expect a commitment from
a bank next week. Please sign and return to us ASAP.’’
The plaintiffs argue that the November 24 e-mail satis-
fied their obligation under the agreement to provide
notice of their inability to obtain financing by the com-
mitment date, and that, contrary to the court’s finding,
the agreement did not require the plaintiffs to declare
the contract terminated. As support for their argument,
the plaintiffs identify a separate provision of the
agreement that expressly requires the buyer to notify
the seller of the ‘‘Buyer’s election to terminate this
Agreement.’’ The defendant responds that ‘‘the text of
the . . . e-mail alone is strong evidence in the record
that plaintiffs did not seek a termination at all, but
merely requested an extension.’’ The defendant further
emphasizes the plaintiffs’ attachment of a change form
to their e-mail as evidence that the plaintiffs sought
an extension, not a termination of the agreement. We
conclude that the court erred in interpreting the mort-
gage contingency clause to require notice of termina-
tion and consequently failed to make a factual
determination as to whether the November 24 e-mail
constituted notice of an inability to obtain a written
commitment.
We first set forth our standard of review. ‘‘[T]he ques-
tion of contract interpretation is a question of the par-
ties’ intent. . . . Ordinarily, that is a question of fact.
. . . If, however, the language of the contract is clear
and unambiguous, the court’s determination of what
the parties intended in using such language is a conclu-
sion of law. . . . In such a situation our scope of review
is plenary, and is not limited by the clearly erroneous
standard.’’ (Citations omitted; internal quotation marks
omitted.) CAS Construction Co. v. East Hartford, 82
Conn. App. 543, 552, 845 A.2d 466 (2004); see also South-
port Congregational Church—United Church of Christ
v. Hadley, 320 Conn. 103, 115, 128 A.3d 478 (2016) (‘‘The
proper interpretation of the [mortgage contingency]
clause requires us to determine the intent of the parties.
. . . The meaning properly to be ascribed to [a] mort-
gage commitment clause [is] to be determined, as a
matter of fact, from the language of the contract, the
circumstances attending its negotiation, and the con-
duct of the parties in relation thereto. . . . Like other
contracts, though, the meaning of unambiguous lan-
guage in a mortgage contingency clause is determined
as a matter of law.’’ [Citations omitted; internal quota-
tion marks omitted.]).
In general, ‘‘[a] mortgage contingency clause may
require that a purchaser give the vendor written notice
of inability to obtain financing and if the purchaser does
not adequately comply with such provision, he or she
is not entitled to a refund.’’ 92A C.J.S., Vendor and
Purchaser § 709 (2018). In determining whether the buy-
er’s notice is sufficient under the terms of the contract,
the court should consider the entire communication.
See Zullo v. Smith, 179 Conn. 596, 605, 427 A.2d 409
(1980) (concluding that ‘‘taken as a whole, the defen-
dant’s letter contains sufficient language to notify the
plaintiff of the defendant’s inability to obtain a building
permit’’ in accordance with building permit contin-
gency clause).
The provision at issue in the present case stated in
relevant part: ‘‘If Buyer is unable to obtain a written
commitment and notifies Seller in writing by 5:00 p.m.
on said Commitment Date, this Agreement shall be null
and void and any Deposits shall be immediately
returned to Buyer.’’ The clear meaning of this provision
is that if the plaintiffs were to give the defendant notice
by the commitment date of their inability to obtain
a written commitment by the commitment date, the
agreement would be null and void and the plaintiffs
would be entitled to the return of their deposits. The
trial court instead considered ‘‘whether the plaintiffs
complied with the terms of the agreement by providing
the [defendant] with notice of termination of the
agreement . . . .’’ (Emphasis added.) Because the pro-
vision at issue does not require the buyer to include in
the writing a notice of termination of the agreement,
the court addressed the wrong question.
Indeed, as the plaintiffs argue, an examination of the
agreement as a whole reveals that where the parties
intended to require a notice of termination, the
agreement expressly included language to that effect.
‘‘[W]hen interpreting a contract, we must look at the
contract as a whole, consider all relevant portions
together and, if possible, give operative effect to every
provision in order to reach a reasonable overall result.’’
(Internal quotation marks omitted.) Connecticut
National Bank v. Rehab Associates, 300 Conn. 314, 322,
12 A.3d 995 (2011). Specifically, the agreement’s inspec-
tion contingency clause permits the ‘‘Buyer [to] notify
Seller . . . of Buyer’s election to terminate this
Agreement.’’ In contrast, the provision at issue did not
contemplate that the buyers would give notice of an
election to terminate, but rather that they would give
notice of their inability to obtain financing by the com-
mitment date, which, in turn, would render the
agreement null and void. Any construction of the
agreement that disregards this distinction must be
rejected. See Recall Total Information Management,
Inc. v. Federal Ins. Co., 147 Conn. App. 450, 460, 83
A.3d 664 (2014) (rejecting broad construction of term
‘‘suit’’ where such construction would obliterate distinc-
tion between ‘‘suit’’ and ‘‘claim,’’ and would create inter-
nal inconsistency in insurance contract), aff’d, 317
Conn. 46, 115 A.3d 458 (2015). Accordingly, the court
should have determined whether the plaintiffs’ Novem-
ber 24 e-mail, taken as a whole, contained sufficient
language to notify the defendant of the plaintiffs’ inabil-
ity to obtain financing by the commitment date.
The court did find, and the parties agree, that the
commitment date was never extended. Although the
plaintiffs requested an extension of the commitment
and closing dates in their November 24 e-mail, Walz
replied that the Yaggis were only willing to agree to an
extension ‘‘after receiving verification from the bank
that you have a mortgage approval contingent upon a
bank appraisal.’’ Because the plaintiffs did not provide
such verification, and therefore the condition was not
fulfilled, the extension never became operative. See
Ziotas v. Reardon Law Firm, P.C., 111 Conn. App. 287,
304, 959 A.2d 1013 (2008) (‘‘[a] reply to an offer which
purports to accept it but is conditional on the offeror’s
assent to terms additional to or different from those
offered is not an acceptance but is a counteroffer’’
[internal quotation marks omitted]), aff’d in part and
rev’d in part on other grounds, 296 Conn. 579, 997 A.2d
453 (2010). Likewise, none of the change forms submit-
ted by the plaintiffs to the defendant effectively changed
the commitment and closing dates. The first change
form, attached to the plaintiffs’ November 24 e-mail,
was never signed by the defendant. The defendant, after
signing the second change form, indicated that ‘‘[t]ime
is of the essence’’ next to each of the amended commit-
ment and closing dates, which the plaintiffs never ini-
tialed. The third and fourth change forms were never
signed by the defendant. Accordingly, the original com-
mitment and closing dates were never extended.
The defendant argues that if the plaintiffs ‘‘really
believed that they were terminating the agreement on
November 24, 2012, when they sent the e-mail, there
would be no reason for plaintiffs to ask for multiple
extensions of the financing/commitment and closing
dates. The underlying contract would have ceased to
exist at that point and thus the financing/commitment
and closing dates would have been null and void and
would not need to be extended and plaintiffs would
have had no reason to further pursue financing for the
purchase.’’ The defendant’s argument relies heavily on
the plaintiffs’ intentions expressed within the Novem-
ber 24 e-mail and throughout their communications
thereafter. The defendant argues that ‘‘[r]ather than
expressing an inability to obtain financing as the plain-
tiffs’ contend the e-mail actually represents that plaintiff
can and will receive financing ‘next week.’ ’’ (Emphasis
in original.) Although the plaintiffs did seek an exten-
sion of the commitment and closing dates through their
November 24 e-mail and subsequent change forms, it
is undisputed that no agreement to an extension was
ever reached. Thus, the only question for the court was
whether the November 24 e-mail, taken as a whole, also
contained sufficient language to notify the defendant
of the plaintiffs’ inability to obtain financing by the
commitment date, as contemplated by the language
contained in the mortgage contingency clause. The trial
court’s error in interpreting the plaintiffs’ obligation
under the contract left that question unanswered.
Having concluded that the court incorrectly interpre-
ted the agreement’s notice requirement and erroneously
found that the plaintiffs had failed to diligently pursue
financing, we conclude that the judgment must be
reversed and that a remand to the trial court for a new
trial is necessary. See Phillipe v. Thomas, supra, 3 Conn.
App. 476–77 (remanding for new trial when there was
no factual determination of reasonableness of plaintiff’s
efforts to secure financing because trial court had
improperly applied a good faith standard).
II
The plaintiffs’ next claim is that the court erred in
awarding the defendant attorney’s fees. The plaintiffs
claim that the award is ‘‘patently unreasonable . . . .’’
The defendant responds that the plaintiffs’ claim fails
because: (1) the defendant met her burden to set forth
evidence that her attorney’s fees were reasonable; (2)
‘‘the trial court properly performed a lodestar calcula-
tion, and evaluated the reasonableness of the fees based
on the factors set forth in Rule 1.5 (a) of the Rules of
Professional Conduct’’; and (3) ‘‘the trial court did in
fact reduce the lodestar value based on factors in Rule
1.5 (a) to arrive at a reasonable value of attorney’s fees,
which was well within its discretion.’’ We need not
address the reasonableness of the award because we
conclude that our reversal of the court’s judgment also
requires that the award of attorney’s fees be vacated.
See Ford v. Blue Cross & Blue Shield of Connecticut,
Inc., 216 Conn. 40, 63, 578 A.2d 1054 (1990) (‘‘In view
of our reversal of the judgment in this case, it can no
longer be said that the plaintiff prevailed in this action;
she, therefore, has no claim for attorney’s fees based
on the judgment that we have reversed.’’ [Internal quota-
tion marks omitted.]).
III
On appeal, the defendant raises the doctrine of equita-
ble estoppel as an alternative ground for affirmance of
the court’s decision, claiming that the plaintiffs repre-
sented that they expected to receive a mortgage com-
mitment and acted as if the agreement was still in effect
after the commitment date. The defendant argues that
the plaintiffs ‘‘are estopped from claiming that they
intended to terminate the agreement on November 24,
2012, because they continued to act under the terms
of the agreement until at least January 11, 2013, even
though the mortgage commitment date had passed and
they had forfeited their right to any deposit monies
when they failed previously to notify the [defendant] of
any intent to terminate the agreement.’’ The defendant
claims that she relied on the plaintiffs’ representations
to her detriment, in that she kept the property off the
market for almost six months and ultimately sold the
property for $135,000 less than the contract price with
the plaintiffs. We conclude that the record is inadequate
to review this claim, which was not raised before the
trial court.
Our Supreme Court has held that ‘‘[o]nly in [the]
most exceptional circumstances can and will this court
consider a claim, constitutional or otherwise, that has
not been raised and decided in the trial court. . . . This
rule applies equally to alternate grounds for
affirmance.’’ (Internal quotation marks omitted.) Perez-
Dickson v. Bridgeport, 304 Conn. 483, 498–99, 43 A.3d
69 (2012); see also Samnard Associates, LLC v. New
Britain, 140 Conn. App. 290, 294 n.5, 58 A.3d 377 (2013)
(‘‘[a]bsent exceptional grounds, an appellate court
should not review an alternate ground for affirmance
that was not raised before, and decided by, the trial
court’’). Moreover, ‘‘[t]he appellee’s right to file a [Prac-
tice Book] § 63-4 (a) (1) statement has not eliminated
the duty to have raised the issue in the trial court.’’
(Internal quotation marks omitted.) Thomas v. West
Haven, 249 Conn. 385, 390 n.11, 734 A.2d 535 (1999),
cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed.
2d 99 (2000); see also Perez-Dickson v. Bridgeport,
supra, 499.
‘‘The party claiming estoppel . . . has the burden of
proof. . . . Whether that burden has been met is a
question of fact that will not be overturned unless it is
clearly erroneous.’’ (Internal quotation marks omitted.)
Celentano v. Oaks Condominium Assn., 265 Conn. 579,
614, 830 A.2d 164 (2003); see also St. Germain v. St.
Germain, 135 Conn. App. 329, 334, 41 A.3d 1126 (2012)
(‘‘[w]hether a party has met his burden of proving equi-
table estoppel is a question of fact’’). ‘‘Equitable estop-
pel is a doctrine that operates in many contexts to bar
a party from asserting a right that it otherwise would
have but for its own conduct. . . . In its general appli-
cation, we have recognized that [t]here are two essential
elements to an estoppel—the party must do or say
something that is intended or calculated to induce
another to believe in the existence of certain facts and
to act upon that belief, and the other party, influenced
thereby, must actually change his position or do some
act to his injury which he otherwise would not have
done.’’ (Internal quotation marks omitted.) St. Germain
v. St. Germain, supra, 334–35.
In the present case, the doctrine of equitable estoppel
was not raised before the trial court. The defendant
filed both a trial management report and a proposed
statement of facts and conclusions of law, neither of
which raised equitable estoppel as a defense.11 During
trial, the defendant’s counsel did not reference estoppel
in his opening or closing statements. Finally, in its mem-
orandum of decision, the court never addressed any
estoppel argument.
The defendant argues in her brief that the plaintiffs
‘‘intentionally concealed’’ the fact that they could not
obtain financing ‘‘for the purpose of inducing the Yaggis
to keep the property off the market.’’ There were no
findings made by the court as to intentional conceal-
ment or inducement to keep the property off the mar-
ket.12 Accordingly, we decline to review the defendant’s
equitable estoppel claim. See Kline v. Kline, 101 Conn.
App. 402, 404 n.3, 922 A.2d 261 (declining to review
defendant appellee’s alternate ground for affirmance
because court did not find requisite facts for her claim
of equitable estoppel), cert. denied, 284 Conn. 901, 931
A.2d 263 (2007); see also Conservation Commission v.
Red 11, LLC, 119 Conn. App. 377, 388, 987 A.2d 398
(record inadequate to review defendant’s claim of
municipal estoppel), cert. denied, 295 Conn. 924, 991
A.2d 566 (2010). We note, however, that the defendant
is not precluded from raising equitable estoppel on
remand.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
Henry K. Yaggi III, who was originally named as a defendant in this action,
died during the pendency of the action, and Valerie Yaggi was substituted
as the administratrix of Henry Yaggi’s estate. Accordingly, we refer to Valerie
Yaggi in both of her capacities as the defendant.
2
For ease of discussion, we address the plaintiffs’ claims in a different
order than that in which they appear in their brief. Because the plaintiffs’
first two claims are intertwined, we will address them together.
3
As detailed in the court’s memorandum of decision, the suspense notice
included eleven ‘‘suspense reasons (conditions needed prior to approval).’’
See footnote 10 of this opinion.
The plaintiffs’ e-mail also stated: ‘‘As we indicated in the termination
letter, we did not think we would be able to get a loan for the purchase of
the property. Per the mortgage contingency we wanted to terminate the
contract and requested return of the deposits. For your convenience attached
are the bank denial and suspension letters along with the termination letter
and signed form. Please encourage your clients to sign the termination form
and return to us. . . . We noticed your clients have reactivated the listing
in the market. Please note they are not entitled to sell the property to another
buyer(s) without terminate the contract with us.’’
The plaintiffs previously had executed a termination of purchase and sale
agreement dated January 11, 2013. The plaintiffs included as the reason for
termination ‘‘[t]he sellers did not sign or reject for extension of mortgage
contingency.’’ The defendant contends, and the trial court found, that there
was no evidence establishing that the January 11 termination form was ever
sent to the defendant.
4
We note that the mortgage contingency clause also required the plaintiffs
to ‘‘apply for . . . financing immediately . . . .’’ The court did not make
any express findings regarding immediate application for financing, and
neither party addresses this requirement in their briefs.
5
Note that mortgage contingency clauses must be considered according
to the language used therein. For example, some clauses contemplate cancel-
lation of the contract whereas others contemplate rendering the agreement
null and void. Compare McCoy v. Brown, 130 Conn. App. 702, 705, 24 A.3d
597 (clause provided in part that ‘‘[i]n the event Buyer shall fail to secure
said mortgage commitment . . . he shall have the option of terminating
this Contract’’ [internal quotation marks omitted]), cert. denied, 302 Conn.
941, 29 A.3d 467 (2011), with Aubin v. Miller, 64 Conn. App. 781, 784, 781
A.2d 396 (2001) (clause provided in part that ‘‘[i]f Purchaser is unable to
obtain a commitment for such loan . . . then this contract shall be null
and void’’).
6
The contract in Luttinger v. Rosen, supra, 164 Conn. 46, ‘‘was ‘subject
to and conditional upon the buyers obtaining first mortgage financing on
said premises from a bank or other lending institution in an amount of
$45,000 for a term of not less than twenty . . . years and at an interest rate
which does not exceed [8.5 percent] per annum.’ The plaintiffs agreed to
use due diligence in attempting to obtain such financing. The parties further
agreed that if the plaintiffs were unsuccessful in obtaining financing as
provided in the contract, and notified the seller within a specific time, all
sums paid on the contract would be refunded and the contract terminated
without further obligation of either party.’’
7
The contract in Barber v. Jacobs, supra, 58 Conn. App. 332–33, contained
a mortgage contingency clause, which provided that the ‘‘ ‘[a]greement [was]
contingent upon Purchaser obtaining a commitment for a loan, to be secured
by a first mortgage on the premises, in an amount not in excess of $1,300,000.
. . .’ The mortgage contingency required the plaintiff to ‘make prompt appli-
cation for such a loan’ and ‘to pursue said application with diligence.’ ’’
8
We note that the plaintiffs, in their principal brief to this court, reference
certain documents that they identify as ‘‘new evidence’’ and include in
their appendix. Their motion for articulation seeking to present the same
documents was denied on the basis that the new evidence the plaintiffs
sought to admit ‘‘consist[ed] of documents which the plaintiffs either had
at the time of trial, or were available to the plaintiffs at the time of trial.
The plaintiffs had every opportunity to introduce these documents into the
record at the time of trial, however they failed to so . . . .’’ In their reply
brief, the plaintiffs recognize that the documents were not presented before
the trial court. Accordingly, we do not rely on those documents in reviewing
the court’s decision. See Bank of America, N.A. v. Thomas, 151 Conn. App.
790, 798 n.4, 96 A.3d 624 (2014).
9
The plaintiffs also point to a typographical error in the court’s memoran-
dum of decision, which incorrectly referred to the Yaggis as the plaintiffs.
As the defendant notes, the plaintiffs’ motion for rectification was granted,
effectively correcting the scrivener’s error.
10
The December 6, 2012 suspense notice, issued by Mortgage Services
III, LLC, stated that the ‘‘LOAN IS SUSPENDED FOR INCOMPLETE FILE
FOR SUBMISSION.’’ The notice included the following eleven ‘‘SUSPENSE
REASONS (CONDITIONS NEEDED PRIOR TO APPROVAL)’’: (1) ‘‘RESPA
SUSPENSE DOCS MUST BE RECEIVED AND CLEARED PRIOR TO U/W’’;
(2) ‘‘PROVIDE TYPED 1003 & 1008 PER TERMS BEING SUBMITTED’’; (3)
‘‘BORROWER SIGNED ‘UNDISCLOSED DEBT DISCLOSURE’ IS
REQUIRED’’; (4) ‘‘4506T RESULTS MUST BE RECEIVED VERIFYING 2 YR
HISTORY’’; (5) ‘‘DOCUMENT REASON FOR OMISSION OF CHASE AUTO
LOAN DEBT AND PROVIDE PAPER TRAIL’’; (6) ‘‘DOCUMENT AND
SOURCE ANY FUNDS USED TO PAYOFF AUTO LOAN DEBT AND CREDIT
REPORT SUPPLEMENT VERIFYING PAID’’; (7) ‘‘2010 W2’S FOR BOR-
ROWER AND CO-BORROWER’’; (8) ‘‘2010 COMPLETE TAX RETURNS W/
ALL PAGES . . . SCH-C INCOME MUST BE AVERAGED & VERIFIED FOR
2 YRS’’; (9) ‘‘DOCUMENT EARNEST MONEY CHECKS PER CONTRACT
FOR $25,000 PER CONTRACT AND EVIDENCE CLEARED BORROWERS
ACCT’’; (10) ‘‘SALES CONTRACT IS MISSING PAGE 4 OF 4 OF WILLIAM
RAVEIS SALES CONTRACT’’; (11) ‘‘FYI . . . PER CONTRACT, IF PROP-
ERTY REQUIRES ROOF REPAIRS, MUST BE DONE PRIOR TO CLOSING
. . . MUST EVIDENCE INSPECTION OF ROOF AND MIN. LIFE OF 3 YRS.’’
The notice further stated that ‘‘ALL OF THE ABOVE REQUIRED ITEMS
ARE REQUIRED FOR END INVESTOR UNDERWRITING REVIEW FOR
CONSIDERATION.’’
The December 13, 2012 ‘‘Notice of Loan Denial,’’ issued by United Whole-
sale Mortgage, provided the following reasons for denial of a mortgage loan:
(1) ‘‘Credit History’’; (2) ‘‘Insufficient Credit File for Cb . . . Borrower does
not have installment tradeline reporting for 24 months opened and active
in the last 6 months’’; and (3) ‘‘We do not grant credit to any applicant on
the terms and conditions you have requested.’’
11
In the defendant’s pretrial management report, the defendant identified
as the sole issue in dispute ‘‘[w]hether plaintiffs breached a certain real
estate purchase and sale agreement resulting in the forfeiture of their deposit
monies pursuant to that agreement under the liquidated damages clause.’’
After trial, the defendant submitted proposed findings of fact and conclu-
sions of law, in which the defendant requested that the court conclude that
the plaintiffs breached the agreement.
12
The trial court did note: ‘‘Interestingly, both notices of denial are dated
December 6, 2012, and December 13, 2012, and the plaintiffs submitted the
third and fourth change forms in December, 2012, both of which are dated
December 14, 2012, and December 21, 2012, respectively, requesting an
extension of the financing deadlines, when they were fully aware that they
had been denied a mortgage by two banks.’’ This notation, made in the
context of whether the plaintiffs had diligently pursued financing, is insuffi-
cient to permit review of a newly asserted claim of equitable estoppel.