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NOROTON PROPERTIES, LLC v. SHERIF M.

LAWENDY

(AC 35827)

Alvord, Mullins and West, Js.

Argued September 24—officially released December 23, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Hon. Kevin Tierney, judge trial

referee.)

Edward Kanowitz, for the appellant (plaintiff).

Brenden P. Leydon, for the appellee (defendant).
Opinion

ALVORD, J. The plaintiff, Noroton Properties, LLC,

appeals from the judgment of the trial court, rendered

after a trial to the court, in favor of the defendant, Sherif

M. Lawendy, in this action to foreclose a commercial

mortgage. The court concluded that the plaintiff failed

to prove that the defendant was in default of the mortgage note and, accordingly, declined to award the plaintiff an appraisal fee, a title search fee, late fees, default

interest, or attorney’s fees. On appeal, the plaintiff

claims that the court improperly (1) found that the

parties mutually agreed to extend the maturity date of

the mortgage note, (2) determined that the mortgage

note provided a ten day grace period for the payment

of the final balloon payment, (3) concluded that the

defendant satisfied his obligations by being ‘‘ready, willing and able’’ to make the final payment in April, 2011,

rather than by making a ‘‘bona fide offer and tender’’

of payment as required by General Statutes § 49-13,

(4) found that the plaintiff would not have accepted

payment from the defendant in April, 2011, and (5)

determined that the plaintiff was not entitled to attorney’s fees because the remaining amount due under the

mortgage note was not collected in ‘‘court proceedings.’’ We agree with the plaintiff’s first claim and,

accordingly, reverse the judgment of the trial court.1

The court’s memoranda of decision2 and the record

reveal the following facts and procedural history. On

March 20, 2009, the defendant executed a mortgage in

favor of ‘‘The 1031 Exchange Experts, LLC, Qualified

Intermediary (or QI) for Noroton Properties, LLC,

Exchanger,’’ on commercial property he owned in Norwalk, to secure his payment of a mortgage note in the

amount of $75,000. The note and mortgage were

assigned to the plaintiff, and the assignment was duly

recorded in the Norwalk land records.

The terms of the mortgage note provided that the

defendant was to make monthly installments of principal and interest in the amount of $537.32, commencing

on April 20, 2009, and continuing on the twentieth day

of each succeeding calendar month. The defendant was

required to make one final balloon payment of

$71,409.22, which would be the outstanding principal

amount due under the note, plus all accrued interest,

on the ‘‘Maturity Date’’ of March 20, 2011. The note also

contained the following provision: ‘‘This Note may not

be changed orally, but only by an agreement in writing,

signed by the Lender and the Maker.’’

The defendant made all twenty-three monthly installment payments on time. Notwithstanding the terms of

the note, however, the defendant sent the plaintiff an

additional monthly installment payment in the amount

of $537.32 by check dated March 15, 2011. The plaintiff,

by e-mail dated March 17, 2011, acknowledged the
defendant’s ‘‘usual monthly mortgage payment,’’ but

reminded the defendant that the note was due and payable on March 20, 2011, and asked whether he wanted

the plaintiff to deposit the check or to return it to him

‘‘at payoff.’’ The defendant responded by e-mail that he

was ‘‘unprepared to close the note on 3/20/11’’ and asked

for a thirty day extension of time to make the final

balloon payment. On March 19, 2011, the plaintiff

e-mailed the defendant and stated that it would grant

the requested extension upon payment of a $5000 fee.

The defendant did not pay the fee or make the final

balloon payment on March 20, 2011. The plaintiff commenced the present foreclosure action on September

7, 2011.

Following a three day trial on the issue of liability, the

court issued its memorandum of decision on January 9,

2013. The court concluded that the defendant was not

in default for his failure to make the $71,409.22 balloon

payment on March 20, 2011. In reaching that conclusion,

the court made the following determinations: ‘‘The

court finds that the parties mutually agreed to extend

the March 20, 2011 maturity date to April 20, 2011 by

the tender and acceptance of the March 15, 2011 $537.32

check. The court finds that the Mortgage Note had a

ten day grace period. That ten day grace period gave

the defendant the right to tender full payment of the

principal and six (6.0%) percent interest to April 30,

2011. The defendant was ready, willing and able to

tender that full payment of principal and interest on

April 29, 2011. The court further finds that the plaintiff

would not have accepted that payment of $70,871.80

principal plus six (6.0%) percent interest therein from

March 20, 2011 to April 29, 2011, due to the plaintiff’s

insistence on the ten (10.0%) percent late charge, twelve

(12.0%) [percent] default interest and attorney fees.’’

Forthose reasons, the court concluded that the plaintiff had failed to prove that the defendant was in default

of the mortgage note. In the court’s January 9, 2013

decision, it found that the principal and interest due

under the note as of January 9, 2013 was $78,608.06,

with per diem interest of $11.81. By treasurer’s check

dated January 18, 2013, the defendant paid the plaintiff

the sum of $78,714.35.

Subsequently, the court held an additional two day

evidentiary hearing to consider the remaining issues

raised by the parties. The hearing concluded on March

14, 2013. No posthearing briefs were filed. By memorandum of decision issued June 17, 2013, the court confirmed its finding that the plaintiff had failed to prove

that the defendant was in default of the mortgage note.

For that reason, the court concluded that the plaintiff

was not entitled to late fees, default interest, an

appraisal fee, a title search fee, or attorney’s fees under

the provisions of either the note or mortgage. The court

rendered judgment in favor of the defendant. This
appeal followed.

We now consider the dispositive issue on appeal,

which is whether the court improperly determined that

the parties had mutually agreed to extend the maturity

date by the tender and acceptance of the defendant’s

March 15, 2011 check for $537.32. The March 15, 2011

check, having been sent by the defendant to the plaintiff

and having been retained by the plaintiff, was the sole

basis provided by the court for its finding of a mutual

agreement to extend the maturity date of the mortgage

note. No case law or other legal authority was cited by

the court to support this determination.

‘‘A promissory note is nothing more than a written

contract for the payment of money, and, as such, contract law applies. . . . The rules governing contract

formation are well settled. . . . [A]n offer imposes no

obligation upon either party, until it is accepted by the

offeree, according to the terms in which the offer was

made.’’ (Citation omitted; internal quotation marks

omitted.) TD Bank, N.A. v. M.J. Holdings, LLC, 143

Conn. App. 322, 331, 71 A.3d 541 (2013). ‘‘Likewise,

[f]or a valid modification to exist, there must be mutual

assent to the meaning and conditions of the modification and the parties must assent to the same thing in

the same sense. . . . Modification of a contract may

be inferred from the attendant circumstances and conduct of the parties. . . . A modification of an

agreement must be supported by valid consideration

and requires a party to do, or promise to do, something

further than, or different from, that which he is already

bound to do.’’ (Internal quotation marks omitted.) Id.,

332.

‘‘Whether the parties to a contract intended to modify

the contract is a question of fact. . . . The resolution

of conflicting factual claims falls within the province

of the trial court. . . . The trial court’s findings are

binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the

record as a whole. . . . We cannot retry the facts or

pass on the credibility of the witness. . . . A finding

of fact is clearly erroneous when there is no evidence

in the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.’’(Citation omitted; internal quotation marks omitted.) Torgerson v.

Kenny, 97 Conn. App. 609, 616, 905 A.2d 715 (2006),

cert. denied, 281 Conn. 913, 916 A.2d 54 (2007).

The following additional facts are necessary for our

resolution of the plaintiff’s claim. When the plaintiff

received the defendant’s March 15, 2011 check in the

amount of $537.32, the plaintiff made the following

inquiries of the defendant by an e-mail sent on March 17,

2011: ‘‘We are in receipt of your usual monthly mortgage

payment. Thank you.
‘‘The note is due and payable in full, $71,409.22 on

March 20, 2011. What are your plans for payment? Will

you have [your attorney] prepare release documents

for me to execute?

‘‘Do you prefer that I deposit the check or return it

to you at payoff?’’

In response to the plaintiff’s inquiries, the defendant

e-mailed the following message on March 19, 2011: ‘‘I

just got back into town and saw your e-mail. I have

been working with a bank to convert the remainder of

the note into a term loan. I thought I had a while longer

to get this done, as my first payment was made April,

2009. The documents do, however, say March 20, 2011.

I apologize for being unprepared to close the note on

3/20/2011. This was an oversight on my part. If you

would be so kind to give me a 30 day extension in

order to arrange my finances, I will be able to close

the note no later than May 1, 2011. My banker is back

from vacation this Tuesday, and I have a phone call in

to him to expedite the process. In the meantime, please

deposit the most recent check. If you are amenable to

this, I will send another check for the month of April

and close the note no later than May 1, 2011. My attorney will be happy to draft any paperwork you may need

regarding this matter.’’ (Emphasis added.)

Within one hour, the plaintiff responded: ‘‘We cannot

accept yourrequest to extend the loan. We are obligated

to repay our lender . . . with these monies. I cannot

allow your poor planning to damage my credit. . . .

Please arrange for payment on Monday.’’ Approximately twenty minutes later, the defendant replied: ‘‘I

cannot close on Mon[day].’’ The plaintiff’s responding

e-mail, sent fifteen minutes later, stated: ‘‘We will start

foreclosure proceedings Monday.’’ The plaintiff’s final

e-mail to the defendant that day, sent at approximately

3:30 p.m., extended the following offer: ‘‘If you wish

the forty day extension that you have requested we

will require an immediate fee of $5,000 to offset [the]

additional costs and processes to try to rearrange the

financing on our end.’’ The defendant did not make the

final balloon payment on March 20, 2011, nor did he

pay the plaintiff $5000 for an extension of time to make

the final payment.

At trial, the defendant testified that the plaintiff never

returned his March 15, 2011 check in the amount of

$537.32, nor did the plaintiff deposit that check into an

account. The defendant also testified that he wrote that

check because ‘‘it was an amount I thought that I still

owed.’’ He later clarified that testimony: ‘‘I thought I

was making an additional installment payment. I had

no idea that the—I didn’t realize that the term of the

loan was that month, my first payment was in April,

2009. I thought I had until April, 2011. It was an error

on my part.’’
When questioned about the maturity date set forth

in the mortgage note, the defendant testified that he

reviewed the note and realized that the final payment

was due on March 20, 2011, after he received the plaintiff’s e-mail. He agreed that the balance due on March

20, 2011, was $71,409.22 and that he did not make that

payment because he did not have available funds at

the time. The defendant further acknowledged that the

plaintiff offered to extend the time for payment only if

the defendant paid a $5000 fee. The defendant testified:

‘‘I believe [the extension] was granted based on the

caveat that if I were to pay [the plaintiff’s owner] $5000,

he would grant me the forty-five day extension.’’ When

asked if he agreed to pay the $5000 fee, the defendant

testified: ‘‘No, I didn’t agree to pay that because [the

plaintiff’s owner] couldn’t substantiate what that $5000

was for.’’ When asked whether he thought he had an

additional thirty days to pay the remaining amount due

underthe note,the defendantresponded: ‘‘I didn’tthink

I had an additional amount of time because there

were no more additional responses by [the plaintiff’s

owner], or demands after that period of time. He never

responded back saying, I don’t grant the thirty days,

or, here’s the payoff statement.’’ (Emphasis added.)

On appeal, the plaintiff claims that the court improperly found that the parties mutually agreed to extend

the maturity date of the mortgage note. The plaintiff

argues that the basis for the court’s determination was

‘‘inadequate to support the finding of any such

agreement when faced with the terms of the note3 and

the statute of frauds.’’ The plaintiff further argues that

‘‘[t]he finding of an agreement is clearly erroneous, and

it is not supported by the evidence.’’ The defendant

counters that the court’s factual determination that the

maturity date of the mortgage note had been modified

by the parties was supported by the plaintiff’s acceptance of the March 15, 2011 payment. Citing Borst v.

Ruff, 137 Conn. 359, 362, 77 A.2d 343 (1950), he argues

that the plaintiff’s retention of that check extended the

maturity date because ‘‘[a] long, unexplained retention

of a check tends to show its acceptance for the purpose

for which it was given.’’ The defendant also claims that

we should not consider the plaintiff’s argument regarding the statute of frauds because there is nothing in

the record that indicates the plaintiff raised that issue

before the trial court.

We agree with the defendant that the record before

this court is inadequate to considerthe plaintiff’s statute

of frauds claim. The partial trial transcripts provided

by the plaintiff forthis appeal include only the testimony

of the witnesses. Counsel’s arguments before the trial

court are not part of the record. Further, the court’s

memoranda of decision do not mention the statute of

frauds. Additionally, no posthearing briefs were filed

by the parties. In the absence of a more complete
record, we are unable to determine whether the issue

was properly preserved and decline to review this

claim.4

With respect to the terms of the mortgage note, the

plaintiff is correct that the express terms of the contract

preclude an oral modification of the maturity date.

Nonetheless, as argued by the defendant, it is well settled that the conduct of the parties may establish a

modification under certain circumstances. ‘‘Because

the conduct of the parties was sufficient to establish a

modification of the contract extending its performance

date, the fact that there was no explicit agreement to

extend the time for performance is of no import. . . .

[W]e reject the [plaintiff’s] claim that there could be no

modification because the contract specifically provided

for modifications to be in writing. . . . [D]espite the

presence of such a clause in a contract, a modification

by subsequent parol agreement will be given effect.

. . . We see no reason why this principle should not

also apply to a modification implied in fact from the

conduct of the parties.’’ (Citation omitted.) McKenna

v. Woods, 21 Conn. App. 528, 533, 574 A.2d 836 (1990).

Nevertheless, on the basis of ourreview of the record,

we conclude that the evidence does not support the

court’s finding that the parties mutually agreed to the

extension of the maturity date of the mortgage note.

Although the court correctly found that the defendant

tendered the March 15, 2011 check in the amount of

$537.32 and that the plaintiff neither returned it to the

defendant nor deposited it into an account, that fact

alone does not automatically extend the maturity date.

There is no case law to support such a conclusion under

the circumstances of this case.

The defendant admittedly sent the March 15, 2011

installment payment in error. He thought the final balloon payment was due the following month. Accordingly, the check was not sent with a request to extend

the maturity date. The question of an extension of that

date arose only after the plaintiff reminded the defendant that the final balloon payment was due on March

20, 2011, and the defendant indicated that he did not

have available funds to make the payment on the stated

maturity date. Consequently, the court could not have

reasonably found from the evidence that the installment

payment represented a request for an extension, which

the plaintiff assented to by failing to return the check.5

Further, the e-mail correspondence clearly shows

that the plaintiff did not agree to an extension when it

acknowledged receipt of the March 15, 2011 check.

After thanking the defendant for the check, the plaintiff

reminded him that the final balloon payment was due

on March 20, 2011, and inquired whether the defendant

wanted the check deposited or returned to the defendant ‘‘at payoff.’’ These e-mails do not demonstrate

‘‘mutual assent to the meaning and conditions of the
modification’’ or that the parties assented ‘‘to the same

thing in the same sense.’’ (Internal quotation marks

omitted.) TD Bank, N.A. v. M.J. Holdings, LLC, supra,

143 Conn. App. 332. Furthermore, the defendant testified at trial that he did not believe that the plaintiff

had granted his request for additional time because the

plaintiff demanded $5000 for a forty day extension and

the defendant would not pay it. Accordingly, we conclude that the evidence adduced at trial did not support

the factual finding of the court that the parties mutually

agreed to extend the maturity date of the mortgage

note. ‘‘A finding of fact is clearly erroneous when there

is no evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’’

(Internal quotation marks omitted.) Torgerson v.

Kenny, supra, 97 Conn. App. 616.

The judgment is reversed and the case is remanded

for a new trial.

In this opinion the other judges concurred.

1 Because the resolution of that issue is dispositive of the appeal, we do

not reach the plaintiff’s remaining claims.

2 The court bifurcated the proceedings into two phases, the first phase

addressing the issue of liability and the second phase resolving the plaintiff’s

claim for attorney’s fees and any remaining claims. The court issued a

separate memorandum of decision after each of the two phases.

3 As previously discussed, the mortgage note expressly provides: ‘‘This

Note may not be changed orally, but only by an agreement in writing, signed

by the Lender and the Maker.’’ The defendant does not claim that the parties

executed a written modification agreement.

4

‘‘[A]s a general matter, the [appellant] is not entitled to appellate review

of claims that were not raised in the trial court or on which there is an

inadequate record.’’ Flater v. Grace, 291 Conn. 410, 420, 969 A.2d 157 (2009).

5 For this reason, the case cited by the defendant, Borst v. Ruff, supra,

137 Conn. 362, is inapposite. In the present case, the check was not given

for the purpose of receiving an extension of the maturity date. The check

was sent in the mistaken belief that the next monthly installment was due.

Accordingly, its retention by the plaintiff did not represent a mutual

agreement with the defendant to modify the maturity date, particularly in

light of the continuing correspondence between the parties.