151 Conn.App. 549
Conn. App. Ct.2014Background
- Plaintiffs alleged an oral forbearance agreement modifying notes and mortgages on fourteen properties, including a 10 Fifth Avenue Stratford note secured by a mortgage and a Curcio guarantee.
- Defendant held authority over negotiation, modification, collection, and foreclosure actions related to those notes and mortgages.
- Plaintiffs performed the forbearance by delivering the note, mortgage, and guarantee as contemplated by the oral agreement.
- Defendant moved to strike contending Counts 1 and 2 (breach of contract; fraud and misrepresentation) were barred by the statute of frauds, and Count 3 (CUTPA) failed to plead a viable claim.
- Trial court granted the motion to strike, concluding the forbearance fell within the writing requirement of § 52-550 and that part performance did not save the contract.
- Court of appeals reverses in part, holding that part performance can remove the forbearance from the statute of frauds and that the complaint should not have been struck.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether part performance defeats the statute of frauds. | Moutinho and Red Buff Rita claim part performance removes forbearance from § 52-550. | Forbearance is a loan modification on real property; must be in writing under § 52-550. | Part performance defeats the statute of frauds; counts should not have been struck. |
| Whether the complaint adequately pleads breach of contract and fraud under the part performance doctrine. | Allegations of executing note, mortgage, and guarantee show performance and inducement of reliance. | The complaint fails to plead essential elements (raised too late for appellate review). | Complaint sufficiently pleaded breach and fraud under part performance; reversal of strike. |
| Whether the CUTPA count was properly struck or preserved. | CUTPA claim remains viable as pleaded. | CUTPA claim was properly struck for lack of factual support. | CUTPA count was stricken; court did not disturb that ruling on appeal. |
| If collateral estoppel or res judicata applies, does the appeal become moot. | Rule out mootness; case should proceed despite related judgment. | Mootness based on prior Moutinho decision bars this appeal. | Appeal not moot; collateral estoppel/res judicata would require further proceedings for applicability. |
Key Cases Cited
- Saunders v. Stigers, 62 Conn. App. 138 (2001) (statute of frauds modification requires writing)
- Glazer v. Dress Barn, Inc., 274 Conn. 33 (2005) (part performance is an element of estoppel to the statute of frauds)
- Breen v. Phelps, 186 Conn. 86 (1982) (specific performance and part performance analysis under statute of frauds)
- Reid & Riege, P.C. v. Bulakites, 132 Conn. App. 209 (2011) (statute of frauds application and part performance discussed)
- H. Pearce Real Estate Co. v. Kaiser, 176 Conn. 442 (1979) (part performance considerations in real estate context)