Nash v. Stevens

• Decision Date: 09 July 2013
• Docket Number: No. 33958.,33958.
• Court: Connecticut Court of Appeals
• Parties: Carol Ann NASH et al. v. Betsey N. STEVENS et al.

144 Conn.App. 1

71 A.3d 635

Carol Ann NASH et al.

v.Betsey N. STEVENS et al.

No. 33958.

Appellate Court of Connecticut.

Argued Oct. 10, 2012.

Decided July 9, 2013.

Sheila J. Hall, with whom, on the brief, was Lawrence C. Sgrignari, Hamden, for the appellants (plaintiffs).

Timothy W. Crowley, New Haven, for the appellee (named defendant).

Philip C. Pires, with whom was Barbara M. Schellenberg, Bridgeport, for the appellee (defendant Evelene N. Rabou).

DiPENTIMA, C.J., and ALVORD and LAVERY, Js.

DiPENTIMA, C.J.

The plaintiff, Carol Ann Nash, appeals from the summary judgment rendered in favor of the defendants, Betsey N. Stevens and Evelene N. Rabou. ¹ On appeal, the plaintiff claims that the trial court improperly granted the defendants' motions for summary judgment as a result of (1) its misapplication of General Statutes § 47–33a and (2) its failure to consider the intent of the parties in its analysis of § 47–33a. We are not persuaded, and, therefore, affirm the judgment of the trial court.

The following undisputed facts were set forth in the court's memorandum of decision and are relevant to this appeal. On May 16, 1977, Chary D. Nash executed a warranty deed conveying a parcel of property to her son, H. Franklin Nash, Jr. This parcel has been described by the parties and the trial court as the “first piece.” In that same transaction, Chary D. Nash also conveyed an option to purchase parcels of property referred to as the “second piece” and “third piece” for $1.² On the same day, H. Franklin Nash, Jr., executed a warranty deed conveying the first piece, and the option to purchase the second piece and third piece, to himself and his wife, the plaintiff. These transactions occurred at the office of an attorney who conducted the real estate closing. On September 22, 2009, H. Franklin Nash, Jr., and the plaintiff executed a quitclaim deed conveying their ownership of the first piece and the option to purchase the second piece and third piece to the plaintiff as trustee of the Carol Ann T. Nash revocable trust.

On November 22, 2009, Chary D. Nash died and left her estate to her children, H. Franklin Nash, Jr., and the defendants, all of whom were appointed as coexecutors of her estate. On February 6, 2010, H. Franklin Nash, Jr., died and left his entire estate to the plaintiff, who was appointed executrix of his estate. On or about April 27, 2010, the plaintiff informed the defendants of her intention to exercise the option to purchase the second piece and third piece. The defendants responded that they would not honor the attempt to exercise the option to purchase. The plaintiff submitted a notice of claim for specific performance against the estate of Chary D. Nash; that was denied.

On July 15, 2010, the plaintiff commenced this action with a complaint seeking specific performance of the option contract. In March, 2011, the defendants separately filed motions for summary judgment.³ The defendants argued that they were entitled to judgment as a matter of law pursuant to § 47–33a. On April 26, 2011, the plaintiff filed an opposition to the motions for summary judgment. The plaintiff attached a memorandum of law and her affidavit. Rabou filed a reply to the plaintiff's opposition.

On August 9 2011, the plaintiff filed a motion for permission to file a supplemental memorandum of law. The plaintiff stated that, during discovery, she had obtained a document that was relevant to the matters pending before the court: “Specifically, the [p]laintiff was provided a handwritten document which bears the signature of Chary D. Nash, the grantor of the option which is the subject of the complaint, which is dated the same day as the deed granting the option to her son, H. Franklin Nash, Jr., and which related directly to the date of the performance of the option.” The plaintiff further claimed that the court should consider this handwritten note in order to fully and fairly decide the motions for summary judgment. Rabou objected, arguing that the option contract was unambiguous and, therefore, it was not necessary for the court to consider the plaintiff's claims regarding intent. She further contended that the exhibit was inadmissible because it was not authenticated. The court denied the plaintiff's motion for permission to file a supplemental memorandum of law and sustained Rabou's objection. It stated: “The exhibit is a handwritten note purportedly bearing the signature of Chary D. Nash, who is now deceased. The plaintiff has not submitted to the court any documentation attesting to the authenticity of the exhibit. Absent admissible supporting documentation, the court cannot consider the exhibit.”

On October 4, 2011, the court issued a memorandum of decision granting the defendants' motions for summary judgment. It stated that there was no dispute that the option to purchase the second piece and third piece, executed on May 16, 1977, did not provide a date for the option's performance, nor were there any extensions of the option. Applying the language of § 47–33a (a), the court determined that the option to purchase expired on November 16,1978, eighteen months after the execution of the option contract. The court rejected the plaintiff's argument that the intent of the parties should be considered, stating that such an approach was not permitted by § 47–33a (a). The court ruled that even if it were free to consider the intent of the parties, there was no ambiguity in the language of the option to purchase the second piece and third piece. Finally, the court distinguished, both factually and legally, the two cases cited by the plaintiff, Texaco Refining & Marketing, Inc. v. Samowitz, 213 Conn. 676, 682–83, 570 A.2d 170 (1990) (Texaco ), and Battalino v. Van Patten, 100 Conn.App. 155, 917 A.2d 595, cert. denied, 282 Conn. 924, 925 A.2d 1102 (2007). The court concluded: “More than thirty-three years have passed since the date the contract to purchase the ‘[s]econd [p]iece’ and the ‘[t]hird [p]iece’ was granted. The court finds that the undisputed material facts establish that the plaintiff did not commence this action within the required statutory time period. This action for specific performance is therefore time barred by ... § 47–33a.” This appeal followed.

We begin our analysis by setting forth our standard of review and certain legal principles regarding summary judgment. “Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a [fact finder] ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment.” (Citation omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012); see also Practice Book § 17–49. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... Our review of the trial court's decision to grant [the defendants'] motion for summary judgment is plenary.... Issues of statutory construction ... are also matters of law subject to our plenary review.” (Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010). Guided by these principles, we turn to the issues raised by the plaintiff's appeal.

This appeal requires the resolution of two separate, yet related, matters. The first is a determination of the temporal limitations for commencing an action for specific performance as set forth in § 47–33a. ⁴ Second, we must decide, under the facts and circumstances of this case, whether the trial court properly refused to consider evidence of the intent of Chary D. Nash and H. Franklin Nash, Jr., that was not included in the deed and option contract as recorded on the land records.

I

The appropriate starting point for our analysis is the relevant language of § 47–33a (a), as this statute is at the core of the appeal and provides: “No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pendens is filed as directed by section 52–325.” (Emphasis added.)

We now set forth the relevant language from the May 16, 1977 deed. The first part of the deed recorded on the land records ⁵ detailed the transaction between Chary D. Nash and H. Franklin Nash, Jr., for the sale of the first piece. The deed then established the option contract: “Together with the option to purchase for One Dollar ($1.00) the following described pieces or parcels of land herein called Second Piece and Third Piece....” ⁶ No date was provided for the performance of the option contract, and the option contract was not extended pursuant to § 47–33a (b).

This court has stated that “[g]enerally, a claim for specific performance of a contract for the sale of realty must be brought within one year of the specified date of closing or no more than eighteen...