T & M BUILDING CO., INC. v. WILLIAM HASTINGS
(AC 38614)
Connecticut Appellate Court
November 26, 2019
Alvord, Bright and Eveleigh, Js.
Argued September 17
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Syllabus
The plaintiff brought this action against the defendant seeking the specific performance of a contract for the sale of certain of the defendant‘s real property to the plaintiff. In 2010, T, the chief executive officer of the plaintiff, and the defendant created and signed a handwritten document reflecting their intention for the defendant to sell a parcel of certain real property to T for development into residential homes. The plaintiff hired L, an engineer, to develop plans and to obtain permits from the town and other governmental agencies. Thereafter, the defendant informed L that he was concerned with the drainage system in L‘s plans, which extended the drainage system into a portion of the defendant‘s property that he was not selling. A revised drainage plan required additional governmental approvals, and without fully approved plans the plaintiff refused to close. The plaintiff subsequently instituted this action seeking specific performance and alleged claims for breach of contract, unjust enrichment and promissory estoppel as a result of the defendant‘s failure to transfer the property to it. The trial court found in favor of the defendant on all counts of the complaint and rendered judgment thereon, from which the plaintiff appealed to this court. Held:
- The plaintiff could not prevail on its claim that the trial court erred in determining that the document executed by the parties violated the statute of frauds: that court found that the document did not identify the buyer or seller, describe the property with definiteness, or define boundaries for the property or the size of the parcel, nor did it reference maps or other documentation that would define and describe the property, and it found that a phrase indicating a “right to back out” was so lacking in context that it was itself evidence that the document did not satisfy the statute of frauds, and because the document lacked essential terms required to satisfy the statute of frauds, the court did not err in declining to utilize extrinsic evidence where, as here, such evidence was not introduced to aid in the interpretation of a valid contract, but was advanced to provide essential missing terms; moreover, the plaintiff‘s claim that the court improperly failed to consider its claim that part performance removed the agreement from the statute of frauds was unavailing, as the court, in finding for the defendant on the plaintiff‘s breach of contract claim on the ground that the document violated the statute of frauds, necessarily rejected that claim, and the court found that the plaintiff‘s actions could have been attributed to the risk it took in investing in L‘s services and, thus, did not unmistakably point to the formation of an enforceable contract, which precluded a conclusion that the plaintiff satisfied the requirements of part performance to defeat the statute of frauds.
- The trial court did not err in rendering judgment for the defendant on the plaintiff‘s unjust enrichment claim, and its finding that the plaintiff did not confer any benefit on the defendant was not clearly erroneous; that court found that the defendant was not unjustly enriched by the plaintiff‘s decisions, including its decision to invest in L‘s preparation of plans containing a drainage system that the defendant opposed, and that there was no credible evidence to support the claim that the defendant received the benefit of L‘s plans, and those findings were supported by the record.
- The plaintiff‘s claim that the trial court erred in rendering judgment for the defendant on its promissory estoppel claim was unavailing: the court did not err in concluding that the plaintiff did not suffer substantial financial injury even though it had incurred expenses, as the court found that it had incurred expenses not in reliance on a clear and definite promise that the defendant reasonably could have expected to induce reliance, but in furtherance of its choice to invest in L‘s services, and although the plaintiff claimed that the court erred, in its promissory estoppel analysis, in considering the ambiguity of the document executed by the parties, the court did not invoke the provisions of the document to bar the plaintiff‘s claim but, rather, considered the document in the context of whether a promise, which a promisor reasonably could have expected would have induced reliance, was made.
Argued September 17—officially released November 26, 2019
Procedural History
Action for specific performance of a contract for the sale of certain real property, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the matter was tried to the court, Elgo, J.; judgment in favor of the defendant, from which the plaintiff appealed to this court. Affirmed.
Kevin M. Deneen, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiff, T & M Building Co., Inc., appeals from the judgment of the trial court rendered in favor of the defendant, William Hastings. On appeal, the plaintiff claims that the court erred in (1) determining that the agreement between the plaintiff and the defendant violated the statute of frauds, (2) rendering judgment for the defendant on the plaintiff‘s unjust enrichment claim, and (3) rendering judgment for the defendant on the plaintiff‘s promissory estoppel claim. We affirm the judgment of the trial court.
The following facts, as found by the trial court or as undisputed by the parties, and procedural history are relevant to this appeal. The defendant is the owner of a 196-acre farm, on which he farms tobacco. He, along with his brother, Walter Hastings, and his sister, Marion Jellison, inherited the property in 2007. In 2009, Walter Hastings instituted a partition action. Following negotiations, the defendant purchased his brother‘s interest in the property, obtaining a mortgage, and also acquired his sister‘s portion of the property. The defendant engaged Edward Lally, a friend and engineer, to explore a possible subdivision
Prior to a formal meeting, Temkin drove out to look at the property. The defendant noticed an individual on his property and introduced himself. He then invited Temkin to look over the property. A meeting was held on July 26, 2010, at Lally‘s office, and Temkin and the defendant created and signed a handwritten document (Exhibit 1); see appendix to this opinion; reflecting their intention for the defendant to sell a parcel of his farmland to Temkin for development into residential homes. Exhibit 1 states: “1) Subject to environmental review—seller to remediate if necessary; 2) Based on forty-six lots 20,500 each Adjust up or down Right to Back out $943,000; 3) Free & Clear title; 4) No water & Sewer assessment due; 5) Closing Jan. 5 or sixty days after approvals whichever comes first; 5) No mortgage contingency.”
The plaintiff hired Lally to begin developing plans for the subdivision and to obtain permits from the town of Windsor and other governmental agencies. On September 7, 2010, shortly after Lally completed an initial draft of the plans, the defendant immediately informed Lally that he had a concern with the plans’ drainage system extending into the portion of his property that he was not selling. The defendant made clear that he found drainage extending into such property unacceptable and that he would not agree to drainage rights being extended over his remaining land. Lally immediately informed Temkin of the defendant‘s concerns. Lally continued to work on addressing the defendant‘s concerns by seeking permits to have drainage redirected to the Farmington River. Lally recommended to both parties that he continue to seek approval of the version of the plans containing the unacceptable drainage system from the Inland Wetlands and Watercourses Commission of the Town of Windsor and the Planning and Zoning Commission of the Town of Windsor, because if he was unsuccessful in obtaining the special use permits required for an open space subdivision, the drainage issue would be moot. Lally obtained such permits in October, 2010.
A revised drainage plan with drainage flowing into the Farmington River required approval from the Army Corps of Engineers and the Department of Environmental Protection. In January, 2011, the plaintiff paid the defendant a 10 percent deposit, in the amount of $94,300, which funds were held in escrow. The remaining approvals were not in place as of January, July, or December, 2011, the dates corresponding with the defendant‘s inquiries about closing the deal. Without fully approved plans, the plaintiff refused to close. The defendant had signed applications for extensions of the existing approval of the subdivision, the last of which he signed in December, 2011. Thereafter, he let the approval lapse and “returned the deposit . . . .”1
The plaintiff instituted this action against the defendant in February, 2013. In the operative complaint, it sought specific performance and alleged breach of contract arising out of the defendant‘s failure to transfer the property to the plaintiff.
In a memorandum of decision issued on October 5, 2015, the court found in favor of the defendant on all counts of the plaintiff‘s complaint. It first found that Exhibit 1 failed to satisfy the statute of frauds, on the basis that it failed to identify the buyer or seller, failed to describe the property with any degree of definiteness, and included the phrase “right to back out.” (Internal quotation marks omitted.) With respect to the plaintiff‘s unjust enrichment claim, the court found that there was no credible evidence to support the plaintiff‘s claim that the defendant had received the benefit of Lally‘s plans. It further found that despite the defendant‘s concerns with respect to drainage, Temkin assumed a business risk when the plaintiff continued to invest in Lally‘s services. Thus, the court rejected the unjust enrichment claim, finding that the defendant‘s conduct had not been inequitable or unconscionable such that he had been unjustly enriched by the plaintiff‘s actions. Turning to the plaintiff‘s promissory estoppel claim, the court again noted that the “the plaintiff chose to take the risk of investing in Lally‘s services and other expenses after the defendant made clear from the outset that he would not give drainage rights over his property, before any approvals were secured and well before the drawn out process of attempting to get approval for a revised drainage plan.” (Emphasis in original.) On the basis of the ambiguity of Exhibit 1‘s terms, including the “right to back out” and the lack of clarity as to the subject property, the court found that the plaintiff could not recover under a theory of promissory estoppel. (Internal quotation marks omitted.) The plaintiff thereafter filed a motion to reargue, which was denied summarily. This appeal followed.3
I
The plaintiff‘s first claim on appeal is that the court erred in finding Exhibit 1 unenforceable under the statute of frauds without considering both extrinsic evidence to resolve ambiguities contained therein and the doctrine of part performance. The defendant responds that the court correctly determined that Exhibit 1 failed to meet the requirements of the statute of frauds and, in the absence of an underlying agreement, the doctrine of part performance is not applicable. We agree with the defendant.
Acknowledging that Exhibit 1 contains ambiguities, the plaintiff asserts that the court “should have considered the substantial extrinsic evidence in the record that could have resolved those ambiguities.” We conclude that the court did not err in finding that Exhibit 1 lacked essential terms, such that it was unenforceable under the statute of frauds.
We first set forth applicable principles of law and our standard of review.
“Whether a contract exists is a question of fact for the court to determine. . . . It is not within the power of this court to find facts or draw conclusions from primary facts found by the trial court. As an appellate court, we review the trial court‘s factual findings to ensure that they could have been found legally, logically and reasonably. . . . Thus, the trial court‘s factual determination that a contract existed must stand unless we conclude that it was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Levesque Builders, Inc. v. Hoerle, 49 Conn. App. 751, 754–55, 717 A.2d 252 (1998). The determination of whether a contract is sufficiently definite to satisfy the statute of frauds also is a question of fact, and “the trial court‘s findings in this regard must stand unless they are clearly erroneous.” Id., 757.
“Appellate review under the clearly erroneous standard is a two-pronged inquiry: [W]e first determine whether there is evidence to support the finding. If not, the finding is clearly erroneous. Even if there is evidence to support it, however, a finding is clearly erroneous if in view of the evidence and pleadings in the whole record [this court] is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 755.
In order for a contract for the sale of land to satisfy the statute of frauds, it must set forth the essential terms of the contract—the purchase price, the parties, and the subject matter for sale. SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 294, 977 A.2d 189 (2009). In the present case, the court found that Exhibit 1 “does not identify the buyer or seller; it fails completely to describe the property with any degree of definiteness. It does not even identify the street, town, state or country in which the property is located. It does not define boundaries for the property, the size of the lots, the size of the parcel, nor does it reference maps or other documentation that would define and describe the property.” The court further found that the “right to back out” phrase “is so lacking in adequate context that it is itself evidence that the document does not
We conclude that the court‘s findings are not clearly erroneous. Although the court found that Exhibit 1 contains the signatures of both Temkin and the defendant, neither party is identified in the document, nor is Temkin identified in relation to the plaintiff. See DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 543–44, 391 A.2d 170 (1978) (holding that contract that mentioned only limited agent and not seller failed to satisfy statute of frauds). Moreover, evidence supported a finding that Exhibit 1 is deficient with respect to the subject matter for sale. See Mansour v. Clark, 5 Conn. Cir. Ct. 439, 440 n.1, 442, 256 A.2d 436 (1968) (writing failed to satisfy statute of frauds on basis that precise area of land was not ascertained, where writing described subject of sale as portion of land lying “generally southerly and westerly of your property“). Exhibit 1 alludes to forty-six lots, but wholly fails to identify the location or size of the lots, and it includes the phrases “adjust up or down” and “right to back out.” Thus, the court‘s finding that Exhibit 1 fails to satisfy the statute of frauds is not clearly erroneous.
Moreover, because Exhibit 1 lacks essential terms required to satisfy the statute of frauds, we cannot conclude that the court erred in declining to utilize extrinsic evidence to add to those terms. Our Supreme Court has stated that “[i]n order to be in compliance with the statute of frauds . . . an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof . . . . The statute of frauds is also satisfied [when] the contract or memorandum contains by reference some other writing or thing certain.” (Citation omitted; emphasis added; internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, supra, 293 Conn. 294; see also DeLuca v. C. W. Blakeslee & Sons, Inc., supra, 174 Conn. 543–44 (written memoranda were “not sufficient in themselves and made no reference to any other writing or thing certain to provide the missing essentials“); Gabriele v. Brino, 85 Conn. App. 503, 509, 858 A.2d 273 (2004) (“[a]lthough under certain circumstances, the court may read documents together to satisfy the statute of frauds . . . the multiple writings still must state the essential terms of the contract without the use of parol proof” [citation omitted]); cf. Lynch v. Davis, 181 Conn. 434, 441 n.5, 435 A.2d 977 (1980) (“[a] memorandum under the Statute of Frauds, because it serves a purpose different than that of an integrated writing invoking the parol evidence rule,4 does not exclude the introduction of consistent additional nonessential parol terms” [emphasis added; footnote added]). The court in the present case found Exhibit 1 deficient as to its essential terms, and found that it lacked reference to any other document. Thus, the court was not required to consider parol evidence to correct deficiencies in the essential terms of the agreement.
On appeal, the plaintiff relies on Foley v. Huntington Co., 42 Conn. App. 712, 735, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996), in support of its claim that Exhibit 1, when considered in light of extrinsic evidence, is sufficient to satisfy the statute of frauds. In Foley, the plaintiff entered into a contract with the defendants
On appeal, the plaintiff in Foley argued that the trial court improperly set aside the verdict because there was sufficient evidence to establish that the defendants had breached their promise to convey enough land to operate a nursing home. Id., 726. The parties’ arguments concerned whether the defendants were obligated to sell only 3.74 acres and the nursing home building or whether they were obligated to sell additional land to make the nursing home operable. Id., 729. This court concluded that the construction of the contract was a question of fact for the jury and that the jury could have concluded that the contract was “one for the sale of land on which a nursing home business could be conducted.” Id. In so concluding, the court looked to various contract terms that supported a jury finding that the parties intended to sell an operable nursing home, including that the contract provided for the sale of certain assets necessary for operating the business, including employee information and certain licenses, and that the seller agreed to “comply with all regulatory agencies’ requirements regarding change of ownership to allow the Buyer to obtain all necessary licenses, Medicaid and Medicare rates and other necessary requirements.” (Internal quotation marks omitted.) Id., 731–32. This court also looked to extrinsic evidence in the record of the parties’ intent, rejecting the defendants’ argument that the introduction of such evidence had violated the parol evidence rule.5 Id., 732–33. This court concluded that the challenged evidence was not used to vary the terms of the contract, but rather to aid in the interpretation of the contract and to determine the intent of the parties. Id., 734.
The defendant next argued that the additional obligation of “enough land to operate a nursing home” constituted an oral
B
The plaintiff next argues that the court failed to consider its claim that part performance removed the contract from the statute of frauds. In the alternative, it argues that “if this court holds that the trial court did conduct that analysis, then the plaintiff asserts that the trial court‘s silent finding that part performance did not apply was clearly erroneous.” The defendant responds that “there was no meeting of the minds in regards to essential contract terms between the parties here, and therefore, part performance cannot apply.” We agree with the defendant.
We first set forth general principles of law and our standard of review. “[W]hen estoppel is applied to bar a party from asserting the statute of frauds . . . we . . . require that the party seeking to avoid the statute must demonstrate acts that constitute part performance of the contract. . . . Specifically, [t]he acts of part performance . . . must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties. . . . The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence
“Thus . . . the elements required for part performance are: (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract; (2) knowledge or assent to the party‘s actions in reliance on the contract; and (3) acts that unmistakably point to the contract. . . . Under this test, two separate but related criteria are met that warrant precluding a party from asserting the statute of frauds. . . . First, part performance satisfies the evidentiary function of the statute of frauds by providing proof of the contract itself. . . . Second, the inducement of reliance on the oral agreement implicates the equitable principle under-lying estoppel because repudiation of the contract by the other party would amount to the perpetration of a fraud.” (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, supra, 293 Conn. 295–96. Our review of a court‘s determination as to whether a party has demonstrated part performance of a contract is governed by the clearly erroneous standard of review. Patrowicz v. Peloquin, 190 Conn. App. 124, 139, 209 A.3d 1233, cert. denied, 333 Conn. 915, A.3d (2019); Harley v. Indian Spring Land Co., 123 Conn. App. 800, 826, 3 A.3d 992 (2010).
As a preliminary matter, we note that although the court did not expressly reject the plaintiff‘s part performance argument, it found for the defendant on the plaintiff‘s breach of contract claim on the basis that Exhibit 1 failed to satisfy the statute of frauds. Thus, the court necessarily rejected the plaintiff‘s argument that part performance removed the agreement from the statute of frauds. Moreover, the court found that the plaintiff‘s actions could have been attributed to its choice to take a risk in investing in Lally‘s services, and, thus, its actions do not unmistakably point to a contract. This finding precludes a conclusion that the plaintiff satisfied the requirements of part performance to defeat the statute of frauds.
Our Supreme Court has stated the principle that, in the absence of a meeting of the minds, there can be no part performance that removes the agreement from the statute of frauds. SS-II, LLC v. Bridge Street Associates, supra, 293 Conn. 301; Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 487, 460 A.2d 1297 (1983). This is because “the doctrine of part performance requires conduct that is referable to and consistent with [an] oral agreement between the parties. In the absence of an underlying agreement, there is no basis for finding that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.” (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, supra, 298.
In SS-II, LLC, our Supreme Court concluded that part performance did not apply where there was no meeting of the minds as to the purchase price in an option to purchase, in part because “[a]lthough the option to purchase provides that the purchase price of the property shall be $1.2 million, subject to certain adjustments that are to be calculated by a formula pertaining to when the option is exercised, it also provides that the price will be further adjusted to take into account environmental conditions existing at the leased premises, which adjustment shall be mutually determined by Lessor and Lessee.” (Emphasis in original; internal quotation marks omitted.) Id., 299. The court reasoned that “[a] mere statement that the parties will mutually determine the future purchase prices does not mean that the parties will, in fact, agree,” and
In the present case, the court found the “right to back out” language, among other deficiencies, rendered Exhibit 1 insufficient to satisfy the statute of frauds. (Internal quotation marks omitted.) The court‘s finding that there was no enforceable contract, based partly on the “right to back out,” was supported by the testimony at trial. (Internal quotation marks omitted.) Temkin testified that the right to back out was there “in the event that, you know, we got two lots or something,” and he agreed that Exhibit 1 did not indicate that the right to back out was solely his right.7 The defendant testified that the “right to back out” meant that “at any time either party could cancel this contract . . . for any purpose.”8 As in SS-II, LLC, Exhibit 1 did not guarantee that the plaintiff would be able to purchase the
Moreover, the acts claimed by the plaintiff to constitute part performance are not of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of an enforceable contract. The court found that “the plaintiff chose to take the risk of investing in Lally‘s services and other expenses after the defendant made clear from the outset that he would not give drainage rights over his property, before any approvals were secured and well before the drawn out process of attempting to get approval for a revised drainage plan.” (Emphasis in original.)
This finding illustrates the risk that the plaintiff accepted in investing in Lally‘s services while continuing to seek approval of a drainage plan acceptable to both the governmental agencies and the defendant.9 Thus, we conclude that the plaintiff‘s acts do not “compel the inference that there was some contract by which these acts were required of the plaintiff[s] and therefore explainable upon no other theory“; (internal quotation marks omitted) Glazer v. Dress Barn, Inc., 274 Conn. 33, 67, 873 A.2d 929 (2005); and, thus, the court‘s rejection of the plaintiff‘s part performance argument was not improper.
Accordingly, the plaintiff failed to prove that it had an enforceable contract.10
II
The plaintiff‘s second claim on appeal is that “[t]he court erred when deciding the
We first set forth general principles of law and our standard of review. “Under well established Connecticut law, [p]laintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. . . . Furthermore, the determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Utzler v. Braca, 115 Conn. App. 261, 267–68, 972 A.2d 743 (2009).
The plaintiff relies primarily on Gardner v. Pilato, 68 Conn. App. 448, 449, 791 A.2d 707, cert. denied, 260 Conn. 908, 795 A.2d 544 (2002), to support its position. In that case, the plaintiff, a surveyor, surveyed the defendants’ property and made a topographical map at the direction of an engineer hired by the defendants to advise them on developing a piece of property. Id., 449. The defendants then refused to pay the plaintiff and, instead, hired another surveyor to do the same work. Id. The second surveyor used the plaintiff‘s work and an old survey that the defendants had in their possession. Id., 449–50. The trial court accepted the fact finder‘s11 finding that the defendants were unjustly enriched for the full amount of the plaintiff‘s bill. Id., 450–51. On appeal, this court affirmed, rejecting the defendants’ argument that the benefit was required to be measured only by an increase in value to the defendants’ property as a direct result of the plaintiff‘s work. Id., 453. The court stated that “[a]lthough the defendants are correct that the damages in an unjust enrichment case are ordinarily not the loss to the plaintiff but the benefit to the defendant, a fact finder may rely on the plaintiff‘s bill when the benefit is too difficult to determine otherwise.” (Emphasis in original; internal
Unlike Gardner, the present case does not involve a situation in which the court determined that the defendant received a benefit and that benefit was too difficult to determine. Rather, in this case, the court found that the defendant was not unjustly enriched by the plaintiff‘s decisions, including the plaintiff‘s decision to invest in Lally‘s preparation of plans containing a drainage system that the court found the defendant to have “vociferously and consistently opposed . . . .”12 Moreover, the court found that “[t]here is no credible evidence . . . to support the claim that the defendant has received the benefit of [Lally‘s] plans.” This finding is supported by testimony of the defendant that he has not attempted to sell the land to anyone other than the plaintiff, he does not intend to sell the land, and he has entered into a contract to lease a portion of the land for five years, with four, five-year options, for a total of twenty-five years, for a cell tower. Although Lally testified that the defendant told him in December, 2011, that he was “going to do the subdivision but not now and not with T & M,” the defendant testified that he made that statement “[o]ut of frustration.” On the basis of this evidence, we cannot conclude that the court‘s finding that the defendant was not benefited is clearly erroneous.
III
The plaintiff‘s final claim on appeal is that the court erred in ruling in favor of the defendant on the plaintiff‘s promissory estoppel claim. We disagree.13
The following legal principles govern our analysis of the plaintiff‘s claim. “[U]nder the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. . . . A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged
“Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future. . . . [A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance . . . and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion. . . . Finally, whether a representation rises to the level of a promise is generally a question of fact, to be determined in light of the circumstances under which the representation was made.” (Citations omitted; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104–106, 837 A.2d 736 (2003). “[A] promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all.” D‘Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987).
In support of its argument that the court improperly rejected its promissory estoppel claim, the plaintiff argues that the court erred in concluding that the plaintiff did not suffer substantial financial injury, even though it incurred over $250,000 in expenses related to its acquisition of the defendant‘s property. The court found, however, that the plaintiff did not suffer such injury “when the defendant allegedly ‘subsequently and unexpectedly’ reneged on his promises.” The court did not ignore the sums expended by the plaintiff. Rather, it found that the plaintiff had spent that money not in reliance on a clear and definite promise that the defendant reasonably could have expected to induce reliance, but in furtherance of its choice to “take the risk of investing in Lally‘s services . . . .” Specifically, the court stated: “Given the principles of equity underlying promissory estoppel, the ambiguity of the document‘s terms, including but not limited to the provision that there was a ‘right to back out’ as well as the indefiniteness of the subject property itself, this court cannot find that the plaintiff is entitled to specific performance and money damages based on the theory of promissory estoppel.”14
Applying the foregoing principles to the facts reasonably found by the court, we conclude that the court did not err when it rejected the plaintiff‘s promissory estoppel claim.
The judgment is affirmed.
In this opinion the other judges concurred.
Exhibit 1
Notes
“Q. So you would pay him more if there were more lots, less if there were less lots. Is that . . . correct?
“A. Yeah. And then in the event that, you know, we got two lots or something there‘s a clause, you know, they had—there was a right to back out.
“Ed Lally had done quite a bit of preliminary work, I believe, to lead both of us to think forty-six was a pretty good chance of getting close to that figure. You know it wasn‘t like a pig in a poke. It might be two. It might be six hundred or something like that.
“Q. Right. The right to back out had to do with if he only had two lots or three lots it wouldn‘t be fair—
* * *
“Q. Explain that to me, the—
“A. Seeing the way the clause is written in the number two paragraph about right to back out, I‘m thinking that that was—could have been what we meant. Just listen, Mr. Hastings, we‘re not looking to, you know, get one building lot from you and pay you [$20,500] and have all this acreage and build one house.”
On cross-examination, the following exchange occurred between Attorney Deneen and Temkin:
“Q. And so when you wrote, right to back out, does that indicate that it was solely your right to back out?
“A. I believe if the lot yield was like five lots and he thought—
“Q. Well, again—
“A. —it wasn‘t—
“Q. —again—
“A. —enough to make it—
“Q. —this is a—
“A. —worth it he could back out.
“Q. Again, let me ask the question. Does it—this piece indicate that the right to back out is solely your right?
“A. No.”
“Q. Right. And it says, Adjust up or down. Right?
“A. Yes.
“Q. And—and then it says, Right to back out.
“A. Right.
“Q. That relates to the forty-six lots, in other words, if you could only get ten lots out of there you weren‘t go[ing] to sell ten lots for [$20,500], were you?
“A. Correct.
“Q. All right. And—so it was a per lot price so that if the forty-six lots couldn‘t be accomplished either one of you had the right to back out. Right?
“A. Or any other number of lots we had the right to back out at any time.
“Q. Well, tell me how—why it says that—that occurs? I mean it‘s clear that that right to back out is in provision two—
“A. Yeah.
“Q. —and it has—and you have a $943,000 figure, and that the reason that provision was there, obviously, was if you didn‘t get—someone didn‘t get forty-six thousand lots or forty-six lots you, certainly, weren‘t going to sell it for ten times [$20,000].
* * *
“A. My—my interpretation would be . . . that as of this right to back out included at any time either party could cancel this contract.
“Q. For any purpose.
“A. For any purpose.
“Q. Okay. The fact that it was in that paragraph doesn‘t mean anything to you.
“A. No.”
We disagree that the court “found an initial promise” requiring application of the doctrine of promissory estoppel. The court noted that Exhibit 1 “was produced as a result of an initial discussion between the defendant and Temkin on July 27, 2010, reflecting their intention for [William] Hastings to sell a parcel of his farmland to Temkin for development into residential homes.” (Emphasis added.) The recognition of an intention for the defendant to sell a parcel of his land does not constitute a finding of a “clear and definite promise” for purposes of the doctrine of promissory estoppel. See Stewart v. Cendant Mobility Services Corp., supra, 267 Conn. 105–106 (“[t]he requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion“).