THOMAS F. UPSON, JUDGE.
On December 2, 2003, the Giannamores, the plaintiff buyers, purchased real estate from the Scopinos, the defendant sellers, located at 30 Harrison Drive, Wolcott, Connecticut. The plaintiffs had a home inspection report prepared for said property, however, it was not introduced at trial.
At the real estate closing, the plaintiffs and the defendants signed an agreement ". . . to ensure that certain items listed on the plaintiffs' home inspection report are in good working order . . ."
The items in controversy were the following:
1. Air conditioning system;
2. Three Florida heat pump systems;
3. Swimming pool system and equipment; and
4. Portions of the plumbing that were winterized and unable to be tested.
This written agreement set forth a procedure and time frame for the systems to be tested and repaired if they need be. The defendants purchased an AON home warranty plan if repairs were needed. Under the agreement, if the defects were not repaired the plaintiffs would obtain two written estimates and submit them to the defendants through their attorneys. The defendants would have the repairs performed within 15 days. If the defendants did not perform the repairs within the specified time ". . . then defendants will reimburse plaintiffs for the cost of such repairs." Further, the defendants would be responsible for additional costs for an action to enforce the agreement as well as attorneys fees.
CT Page 18461 At trial the plaintiffs admitted in essence that they did not follow the terms of the agreement and went ahead on their own. The defendants were never consulted or offered a chance to effectuate the agreement of December 2, 2003. Now the plaintiffs seek full reimbursement for all their expenditures.
The plaintiffs' complaint contained five counts. Pursuant to the plaintiffs' trial brief, they are only pursuing the first three counts.
BREACH OF CONTRACT/RELIANCE
"A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance . . . A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor . . . If the condition is not fulfilled, the right to enforce the contract does not come into existence." (Internal quotation marks omitted.) 716 Windsor Street Associates, LLC v. Catholic Charities/Catholic Family Services, Inc., 82 Conn.App. 133, 138, 842 A.2d 1162 (2004).
Courts of law must allow parties to make their own contracts, and can enforce only such as they actually make. Chase Brass Copper Co. v. Chase Brass Copper Workers Union, 139 Conn. 591, 595, 96 A.2d 209 (1953).
In 2002, Judge Arnold denied a prejudgment remedy in a contract case where there was a condition precedent. He cited a case dispositive to the issue in this case.
Even if the result of the fair and logical enforcement of those unambiguous agreements seems unduly to burden one of the parties, we decline to embark on a voyage into uncharted waters in which untrammeled and unrestrained judicial revisionism would depart significantly from an aspect of contract law upon which contracting parties reasonably can be assumed to have relied for many years.
Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 506, 746 A.2d 1277 (2000).
There is no evidence before this court to suggest that the agreement at issue is unclear, ambiguous or contains any hidden provisions. To the contrary, the court notes that agreement, a one-page document signed by CT Page 18462 all parties, clearly and concisely states the rights and obligations of all parties. Read in light of the circumstances surrounding the negotiation and execution of the agreement, the agreement unambiguously creates a mechanism whereby the plaintiffs are entitled to have repairs done at no cost to them, but also whereby the defendants are given an opportunity to mitigate their financial responsibility by first filing through the AON home warranty they had purchased, then by requiring written estimates. The plaintiffs failed to complete either of these steps. Because the plaintiffs have failed to fulfill the conditions precedent to the agreement negotiated by both parties, this court holds that the plaintiffs' right to collect from the defendants under the agreement does not come into existence. The conditions precedent were not fulfilled, and the agreement is unenforceable. The written contract contained all of the representations made by the defendants and, therefore, the plaintiffs cannot prevail in a separate count for Promissory Estoppel/Reliance.
UNJUST ENRICHMENT
The plaintiffs also seek damages for unjust enrichment. "Unjust enrichment applies whenever justice requires compensation to be given for . . . services rendered under a contract, and no remedy is available by an action on the contract." (Internal quotation marks omitted.) Paulsen v. Kronberg, 66 Conn.App. 876, 879, 786 A.2d 453 (2001). However, an "action for unjust enrichment cannot lie in the fact of an express contract." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 638, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). Here, there was an express contract, and remedy was available under the contract, had the plaintiffs followed the relevant provisions. While the defendants may have been enriched, as the agreement allowed them to convey the property, it does not appear that any enrichment was "unjust," as the failure to follow the agreement was the fault of the plaintiffs.
Judgment for the defendants.
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