2008 Ct. Sup. 6948
Nos. CV 08-5017162, CV 08-5016578Connecticut Superior Court Judicial District of Hartford at Hartford
May 1, 2008
MEMORANDUM OF DECISION
SAMUEL FREED, JUDGE TRIAL REFEREE.
These two actions arise out of a contract between Zimedil Realty, LLC (Zimedil), the plaintiff in the first named action (defendant in the second), and the defendants (Galarneaus) in the first named action (and the plaintiffs in the second named action).
The contract was for the purchase of a home being sold by Zimedil and to be purchased by the Galarneaus, which contract (Ex. A) was allegedly breached by the Galarneaus. Zimedil has invoked paragraph 4 of the contract claiming the second deposit of $31,500 which was not paid is due to Zimedil. Consequently, Zimedil seeks a prejudgment remedy in the first action.
The Galarneaus have brought the second action herein in which they seek a discharge of a lis pendens on their present home in Enfield, which lis pendens was filed by Zimedil in reference to its claim in this action.
This court held a hearing on the PJR application, and the lis pendens action and makes the following findings.
1. The Galarneaus cannot be held liable under the contract (Exhibits 1 and A) because they did not sign it.
2. Even if the Galarneaus had signed the contract, the second deposit was never paid and the contract (Par. 4b) contains no time limit for the second deposit payment.
3. Although paragraph 12 contains a liquidated provision as to default by the buyers requiring liquidated damages forfeiture of the deposits (of $1,000 and $31,500), the second deposit was never paid and consequently not subject to the liquidated damages provision because an unpaid deposit is not a deposit and therefore not subject to the CT Page 6949 liquidated damages provision. Fiorillo v. Moore, 151 Conn. 710 (1964).
4. The entire contract, if signed (Exhibit A) and consequently any liability of the Galarneaus, was “subject to the closing of buyers’ current residence at 30 Sidor Drive, Enfield,” (paragraph 9). The evidence was clear that the Galarneaus made every effort to sell their property, reducing the price several times to no avail.
5. Lastly, the evidence is clear that Zimedil’s managing member, Mr. Sebastian Mangiafico, permitted the selling agent, Mr. Arndt, to authorize a delay in the payment of the second deposit pending a bank commitment to the Galarneaus of a mortgage on the purchased house.
For the reasons assigned above, the court finds no probable cause to issue a prejudgment remedy and denies the application for same.
As to the second action by the Galareaus against Zimedil for discharge of the lis pendens, inasmuch as the court has found no probable cause for a prejudgment remedy there is no basis to sustain the lis pendens in the second action and it is ordered discharged.
CT Page 6950