John R. DeMattia v. Patricia Mauro, et al.

John R. DeMattia appeals from the judgments
of the trial court rendered in favor of Patricia
Mauro1 ordering the return to her of all sums that she
paid to DeMattia in connection with a real estate contract.

2 On appeal, DeMattia claims that the court
improperly (1) found that as of July 31, 2000, Mauro
had obtained a mortgage commitment and was ready,
willing and able to complete the real estate closing,
(2) found that the period between June 15, 2000, the
contractually scheduled closing date, and October 24,
2000, was a reasonable time for Mauro to close and
(3) ordered all moneys paid to DeMattia, including the
second nonrefundable sum of $10,000, returned. We
affirm the judgments in part and reverse them in part.
DeMattia was the owner of certain real estate known
as 391 Boston Post Road in Orange. He entered into an
agreement, dated March 15, 2000, for the sale of the
subject property to Mauro. The contract contained a
mortgage contingency clause in which the buyer was
given a period of forty-five days within which to obtain
a mortgage for a term of at least twenty years. The
mortgage contingency clause did not specify the
amount of the mortgage.

Mauro paid a deposit in the amount of $20,000 at
the time the contract was signed, and later paid an
additional sum of $10,000 as consideration for the
fourth extension of the mortgage contingency. The
mortgage contingency clause provided that all sums
paid by way of deposit were to be refunded to the buyer
in the event that the mortgage contingency was not
satisfied and the buyer elected to terminate the
agreement. The closing was to have taken place on June
15, 2000, or on some other mutually agreed upon date.

Multiple extensions of the time for obtaining a mortgage
commitment were requested by Mauro and granted by
DeMattia. These parties subsequently agreed that the
date to obtain a mortgage commitment finally was
extended until July 31, 2000, with the condition that
Mauro was to pay an additional sum of $10,000 to
DeMattia that was to be nonrefundable, but applied
toward the purchase price at closing ‘‘[i]f the transaction
close[d] . . . .''

On August 31, 2000, DeMattia notified Mauro, through
his attorney, that he was ready, willing and able to sell
the property and to extend the closing date further as
long as multiple conditions were met, including the
payment of DeMattia's carrying costs. After further discussions,
DeMattia's counsel indicated that his client
believed that the contract had been breached and that
the deposits would be forfeited unless a closing took
place by October 20, 2000. Mauro declined DeMattia's
offer and indicated that DeMattia had refused to sign
a building permit, a requirement for Mauro to secure
financing. A demand then was made by Mauro's counsel
for the return of all moneys that had been previously
paid both by deposit and for the last extension to July
31, 2000, to obtain a mortgage.

DeMattia and Mauro each brought separate actions.
DeMattia brought an action against Mauro and other
defendants asking the court to declare that all payments
made under the agreement be forfeited to DeMattia and
a judgment that Mauro and the other defendants had
no right, title or interest in or to the land described in
the agreement, and seeking damages and such other
relief as the court deemed fair and equitable. Mauro
and another defendant counterclaimed and asked the
court for a return of the $30,000 paid, damages, punitive
damages, attorney's fees and interest. Mauro also
brought her own action against DeMattia, and although
she did not specifically state her prayer for relief, she
did state that the amount of legal interest or property
in demand was greater than $15,000, exclusive of interest
and costs. These actions were consolidated at trial
and heard together. The court found that Mauro had
been ready, willing and able to close the transaction as
of July 31, 2000, and that DeMattia had interfered with
the closing by refusing to sign the building permit. The
court ordered the return of all moneys paid by Mauro.

These appeals followed.

On appeal, DeMattia makes three claims attacking
the court's factual findings. He first contends that the
court's finding that Mauro was ready, willing and able
to complete the transaction as of July 31, 2000, is not
supported by the subordinate facts, but that even if it
were, Mauro was not prepared to close within a reasonable
time thereafter. He next contends that the period
between June 15, 2000, the contractually scheduled
closing date, and August 31, 2000, was a reasonable
time for Mauro to close the transaction contemplated
by the parties and that he was entitled to carrying
charges after that date. Finally, DeMattia contends that
the court's finding that Mauro was entitled to the return
of all sums paid, including the second nonrefundable
payment, was contrary to the evidence and the
agreement of the parties.

Our standard of review as to the court's factual findings
is whether those findings are clearly erroneous in
light of the evidence and pleadings or, if there is evidence
to support them, the reviewing court on the entire
evidence is left with the definite and firm conviction that
a mistake has been committed. See Allen v. Johnson, 79
Conn. App. 740, 746, 831 A.2d 282, cert. denied, 266
Conn. 929, 837 A.2d 802 (2003).

I

We first turn to DeMattia's claim that the court
improperly found that, as of July 31, 2000, Mauro had
obtained a mortgage commitment and was ready, will-
ing and able to complete the real estate closing. We
disagree with this claim.

The court found that Mauro was ready, willing and
able to complete the transaction as of July 31, 2000,
and that she had gained the necessary mortgage commitment
by this date. See Steiner v. Bran Park Associates,
216 Conn. 419, 423, 582 A.2d 173 (1990) (at time
of closings buyer must be ready, willing and able to
purchase property). The evidence that was presented
at trial supports these findings.

The record reveals that the contract contained a mortgage
contingency clause and that several extensions
were given until the date for Mauro to obtain the mortgage
finally was extended to July 31, 2000. On the basis
of the testimony of Mauro and the exhibit of the commitment
documentation from CIT Small Business Lending
Corporation (CIT), a financial corporation that made
the commitment to extend a loan in excess of the purchase
price, we conclude that the finding of the court
that the mortgage commitment was obtained from CIT
in a timely manner was not clearly erroneous. Although
Mauro's copy of the commitment letter in evidence was
not signed, the court was in the best position to determine
credibility issues regarding Mauro's testimony that
the original commitment letter was signed before July
31, 2000. Although certain requirements necessary to
obtain the funding of the mortgage had not yet been
fulfilled on July 31, 2000, the fact that the commitment
contained several customary contingencies did not
affect its validity, and Mauro still could have been found
to be a ready, willing and able purchaser. See
Romaniello v. Pensiero, 21 Conn. App. 57, 62, 571 A.2d
145 (1990). Therefore, all contingencies in the contract
had been completed and Mauro was a ready, willing
and able purchaser, who was entitled to a reasonable
amount of time in which to close the transaction.

II

DeMattia maintains that the time period between
June 15, 2000, the scheduled closing date, and August
31, 2000, DeMattia's alleged conditional closing date,3
constituted a reasonable time period in which Mauro
could have closed the transaction and that the court's
finding that October 24, 2000, was a reasonable date
for Mauro to close was improper. He therefore contends
that his imposition of carrying charges was reasonable
after that date. We disagree.

‘‘In real estate contracts, the fact that a specific time
is fixed for payment or for conveyance does not make
time of the essence - at least, it does not make performance
at the specified time of the essence. . . . When
the parties to a real estate contract want to fix a specific
date for performance, we generally have required them
to express specifically in the contract that time is of
the essence; otherwise, performance within a reason-
able time will satisfy the contract.'' (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Tulisano v. Schonberger, 74 Conn. App. 101, 106, 810
A.2d 806 (2002). ‘‘Ordinarily, what constitutes a reasonable
length of time is largely a question of fact to be
determined in the light of the particular circumstances
of each case. . . . In determining what is a reasonable
time, we must look to the act requested.'' (Citations
omitted; internal quotation marks omitted.) Brzezinek
v. Covenant Ins. Co., 74 Conn. App. 1, 5–6, 810 A.2d 306
(2002), cert. denied, 262 Conn. 946, 815 A.2d 674 (2003).

The court found that because several extensions had
been granted to allow Mauro time to obtain the required
financing, this necessarily extended the time of closing
beyond that which was set forth in the contract. We
agree with this conclusion. Although the June 15, 2000
closing date was never extended formally, the extension
of the mortgage contingency to July 31, 2000, necessitated
that the closing date would necessarily have
occurred at a date later than June 15, 2000.

DeMattia, subsequently, gave written notice on
August 31, 2000, to fix the closing date at September
8, 2000, with time being of the essence. As a part of
this first attempt to set a fixed closing date of September
8, 2000, DeMattia also demanded (1) that Mauro pay
the carrying costs of the property at $250 per day from
September 1, 2000, to the date of closing; (2) that the
September 8, 2000 date would be based on time being
of the essence and (3) that all of the $30,000 previously
paid, not just the $10,000, would be nonrefundable but
would be credited to the buyer at the time of the closing.

Either party to a real estate contract may make formal
demand that title be closed by a certain day when time
is not already of the essence, but the date demanded
for performance must be reasonable. See Bethlehem
Christian Fellowship, Inc. v. Planning & Zoning Commission,
58 Conn. App. 441, 446, 755 A.2d 249 (2000).
DeMattia does not refer us to any authority that permits
a seller, when setting such a fixed date where time
was not previously of the essence, to place conditions
changing the consideration payable by the other party
to the contract, nor are we aware of any. Because of
the unilateral change in payments by the buyer with
which DeMattia hobbled his attempt to fix a firm date,
we conclude that DeMattia's attempt to fix September
8, 2000, as a firm date for the closing of title was ineffective.

A seller in such a situation would have the right
to fix a time which was of the essence for conveyance,
as long as that date was reasonable. The seller does
not have the right to change the terms of payment
unilaterally as DeMattia so attempted. Paragraph eighteen
of the contract between the parties provided that
any amendments to the contract would not be effective
unless they were reduced to writing.4 Mauro never
agreed in writing to payment of DeMattia's carrying
costs, and therefore could not be bound to a September
8, 2000 closing date or to any of the other additional
conditions that DeMattia attempted to set, including
making all $30,000 previously paid nonrefundable.

DeMattia had the right to set a reasonable closing date.
However, his attempt to set September 8, 2000, was
ineffective because he had placed additional payment
conditions on his agreement to set such a date, to which
Mauro had not agreed. Therefore, the court properly
disregarded the September 8, 2000 date.

DeMattia never made a subsequent demand for a
fixed date. It was nearly three months after Mauro was,
as found by the trial court, a ready, able and willing
purchaser that DeMattia refused to sign the building
permit needed by Mauro to obtain her financing. During
the week of October 24, 2000, Mauro demanded the
return of all sums that she had previously paid because
of this alleged breach by DeMattia. The court was left
to determine if the time of DeMattia's alleged breach
was within the reasonable time period within which
Mauro had to close the transaction or, alternatively, if
Mauro breached the agreement by failing to close the
transaction within a reasonable time. See Brezezinek
v. Covenant Ins. Co., supra, 74 Conn. App. 5.
‘‘Ordinarily, what constitutes a reasonable length of
time is largely a question of fact to be determined in
the light of the particular circumstances of each case.''
(Internal quotation marks omitted.) Id. We look at the
record to determine whether the court's finding that
October 24, 2000, was a reasonable time was clearly
erroneous. The evidence in the record included, inter
alia, the following factors supporting the court's finding:

(1) the property had to be surveyed; (2) hazardous oil
needed to be removed from the ground; (3) there were
problems with the location of the parking lot at least
partly on the neighbor's land; (4) a bond was needed
before the parking lot could be paved; (5) a certificate
of occupancy needed to be obtained; and (6) a ninetyfour
item checklist had to be completed before the
mortgage lender would fund the commitment. With
these facts before it, we cannot conclude that the
court's determination that October 24, 2000, was a reasonable
time for conveyance was clearly erroneous.

III

DeMattia's final claim is that the court improperly
ordered him to return all moneys paid, including the
second nonrefundable $10,000 payment. We agree in
part and disagree in part.

The court found that DeMattia's failure to sign the
application for the building permit was the reason the
closing did not occur. Mauro could not obtain her
financing without the signature. Although the court specifically
found as a fact in its memorandum of decision
that the second payment was nonrefundable, it ordered
that the ‘‘deposits'' be returned to Mauro, including the
nonrefundable $10,000 payment. In doing so, the court
implicitly construed the contract between the parties
to require the seller to sign the building permit. Our
standard of review is plenary when we review a court's
construction of a contract and its legal effect. See Issler
v. Issler, 250 Conn. 226, 236, 737 A.2d 383 (1999).
Nothing in the written contract between the parties
bound DeMattia to sign a building permit, and the parties
specifically had agreed in their contract that only
written contractual language could bind them. Because
the court failed to find any damages specifically and
ordered only the return of the deposits, it appears that
the court simply ordered rescission and partial restitution.

‘‘Rescission and restitution are equitable remedies.

. . . The remedy of rescission and restitution is an
alternative to damages in an action for breach of contract.

. . . Rescission, simply stated, is the unmaking
of a contract. It is a renouncement of the contract and
any property obtained pursuant to the contract, and
places the parties, as nearly as possible, in the same
situation as existed just prior to the execution of the
contract. . . . Restitution is [a]n equitable remedy
under which a person is restored to his or her original
position prior to loss or injury, or placed in the position
he or she would have been, had the breach not
occurred.'' (Citations omitted; internal quotation marks
omitted.) Wallenta v. Moscowitz, 81 Conn. App. 213,
240–41, 839 A.2d 641, cert. denied, 268 Conn. 909, 845
A.2d 414 (2004).

We need not decide whether the court was correct
in finding that DeMattia breached the contract by failing
to sign the building permit. DeMattia consistently stated
that he would not hold the closing unless his carrying
costs were paid, something that he had no right to
demand unilaterally under the terms of the agreement.

‘‘If one party to a contract, either wilfully or by mistake,
demands of the other a performance to which he has
no right under the contract and states definitely that,
unless his demand is complied with, he will not render
his promised performance, an anticipatory breach has
been committed.'' 4 A. Corbin, Contracts (1951) § 973,
p. 910. Therefore, the court was correct in finding that
DeMattia had breached the contract. The court also
properly ordered the return of the original $20,000
deposit because the contract called for DeMattia to
retain the deposit only if Mauro was the one to breach
the agreement.

This is not true as to the second sum. The parties
made a separate and severable contract in regard to
the $10,000 payment. ‘‘[I]t is the general rule that a
severable contract is one in its nature and purpose
susceptible of division and apportionment. . . . The
determinative test is in ascertaining from the language
used, read in the light of the surrounding circumstances,
what was the intention of the parties. . . . In determining
the severability of the contract, the court looks to
whether the contract's parts and its consideration are
common to each other or independent of one another
. . . [See] Timely Products, Inc. v. Costanzo, 465 F.
Sup. 91, 97 n.6 (D. Conn. 1979) (singleness or apportionability
of the consideration rendered is a principal
test in judging severability).'' (Citations omitted; internal
quotation marks.) Venture Partners, Ltd. v. Synapse
Technologies, Inc., 42 Conn. App. 109, 118, 679 A.2d
372 (1996).

On June 28, 2000, Mauro's attorney, Ronald Bozelko,
sent the following letter to Morton Dimenstein, who
was then acting as DeMattia's attorney: ‘‘Dear Mort:
This letter will confirm our agreement that the mortgage
contingency date will be extended until July 31, 2000
at 5:00 p.m. In consideration of such extension, Mauro &
Company will pay your client, John R. DeMattia the sum
of $10,000.00, which is nonrefundable. If the transaction
closes, the $10,000.00 will be applied to the purchase
price of $525,000.00. Therefore, if this is agreeable with
your client, would you kindly sign a copy of this letter
consenting thereto.'' Dimenstein subsequently consented
in writing on behalf of DeMattia.

We note that this second payment was not a deposit.
Black's Law Dictionary defines ‘‘deposit'' as ‘‘[m]oney
lodged with a person as an earnest or security for the
performance of some contract, to be forfeited if the
depositor fails in his undertaking.'' Black's Law Dictionary
(5th Ed. 1979). The consideration for the additional
$10,000 nonrefundable payment was the extension of
the mortgage contingency to July 31, 2000, at 5 p.m.,
which DeMattia granted. This was the last in a long
series of extensions that DeMattia was required to
grant. By the plain language of the contract, this sum
would become a deposit only ‘‘[i]f the transaction
close[d] . . . .'' Both parties met their obligations as
required by this separate and severable agreement and,
therefore, the payment, as the court factually found,
was nonrefundable and DeMattia should have been
allowed to retain it. We therefore conclude that the
court improperly adjudged that the additional $10,000
payment should be returned because the parties had
agreed that the payment was nonrefundable and consideration
was exchanged by DeMattia for the payment.5

The judgments are reversed only as to the order to
refund the $10,000 payment and the cases are remanded
with direction to render judgments declaring that
DeMattia may retain the $10,000 payment made for the
extension of the mortgage contingency to July 31, 2000.