Lead Opinion
Opinion
The plaintiff, Carol Ann Nash, appeals from the summary judgment rendered in favor of the defendants, Betsey N. Stevens and Evelene N. Rabou.
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.
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 coexecu-tors 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.
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 folly 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 plaintiffs claims regarding intent. She further contended that the exhibit was inadmissible because it was not authenticated. The court denied the plaintiffs 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 plaintiffs 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,
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
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.
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
This court has stated that “[generally, 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 months from the date of the contract’s execution.” McNeil v. Riccio,
The plaintiff argues that Texaco Refining & Marketing, Inc. v. Samowitz, supra,
In Texaco, the named plaintiff and the defendants had entered into a long-term lease relationship. Texaco Refining & Marketing, Inc. v. Samowitz, supra, 213 Conn. 677-78. Under the lease agreement, the plaintiff had the exclusive opportunity to purchase the premises for $125,000 after the fourteenth year of the lease’s initial term. Id., 678. On August 14, 1987, the plaintiff provided notice of its exercise of the option to purchase. Id. The defendants refused to proceed with transfer of the property, and the plaintiff commenced an action for specific performance on December 30, 1987. Id., 678-79. The trial court found in favor of the plaintiff and rejected the defendants’ statutory and common-law defenses. Id., 679.
On appeal, the defendants argued that the eighteen month time period embodied in § 47-33a (a), which they construed as a statute of limitations, commenced either eighteen months after the lease had been executed or on the fourteen year anniversary of its execution. Id., 680. Our Supreme Court rejected the defendants’ broad interpretation of § 47-33a (a) in the context of an option to purchase real property in a commercial lease. Id., 681-82. Instead, it concluded that a more reasonable interpretation of the legislature’s intent was that it applied “more narrowly as a constraint only upon the performance of the option once the
This court applied the holding of Texaco in Battalino v. Van Patten, supra,
On appeal, the defendant argued that § 47-33a (a) precluded the plaintiffs claim for specific performance. Id., 160. The defendant contended that the right to specific performance terminated one year after the final lease renewal period had ended. Id., 161. Citing Texaco, we stated: “The statute does not apply to an option contained in a long-term lease until the option has been exercised.” Id. We rejected the defendant’s attempt to distinguish Texaco and determined that § 47-33a (a) did not bar the plaintiffs action for specific performance. Id., 162.
The present case, however, is distinguishable from both Texaco and Battalino. Those cases involved long-term leases. The facts here involve a 1977 contract between Chary Nash and H. Franklin Nash, Jr., for the sale of one parcel of land and an option to purchase two additional parcels. Moreover, in Texaco and Battal-ino, the contract between the parties contained a “waiting” period before the option to purchase could be exercised. In Texaco, the option to purchase did not ripen until fourteen years after the lease was executed. Texaco Refining & Marketing, Inc. v. Samowitz, supra,
We agree, therefore, with the trial court that Texaco and Battalino are inapposite to the present case. Instead, the general rule of McNeil v. Riccio, supra,
II
We now turn to the issue of 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 warranty deed and option contract as recorded on the land records. The plaintiff attached an affidavit to her opposition to the defendants’ motions for summary judgment. That affidavit contained the following: “The reason that the parcels identified as the second piece and the third piece were not conveyed outright when the first piece was conveyed in 1977 was to allow Chary D. Nash to continue to receive favorable tax status for those parcels .... My late husband, H. Franklin Nash, Jr., and I acquired the parcel identified as the first piece and the option to acquire the second piece and third piece upon the death of Chary D. Nash, with the understanding that said parcels would be conveyed to us upon the death of Chary D. Nash pursuant to the deed that she signed in 1977. It was always our understanding that my late husband and I would own the parcels subject to the option upon Chary D. Nash’s death.” The plaintiff subsequently submitted a supplemental affidavit that included the following: “I have personal knowledge of all facts stated in the affidavit dated April 26, 2011 . . . . My personal knowledge is from statements made by Chary D. Nash and her husband, Harold Nash to both me and my late husband, H. Franklin Nash Jr. The statements were made at the time of the real estate closing at the office of the Attorney who conducted the closing. ... At the time of the closing, both Chary D. Nash and Harold Nash told my late husband and me that they did not want us taking any action on owning the land until they had both passed away, and that this was due to tax reasons.”
In August, 2011, during the pendency of the motions for summary judgment, the plaintiff moved for permission to file a supplemental memorandum of law, stating that “she [had] obtained through discovery a document that is relevant to the issues pending before the [c]ourt, which document should be considered by the [c]ourt . . . .” Attached as an exhibit to the plaintiffs proposed supplemental memorandum of law was “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 relates directly to the date of the performance of the option.” This document provides in relevant part: “Also Franklin [H. Nash, Jr.] has option to buy for $1.00 a remaining 46V2 acres if house is sold or when both Harold & Chary [D. Nash] are dead.”
The court denied the plaintiffs motion for permission to file a supplemental memorandum of law in opposition to the defendants’ motions for summary judgment. Specifically, it stated: “The exhibit is a handwritten note purportedly bearing the signature of Chary D. Nash, who is now
The court also rejected the plaintiffs argument that it should consider the intent of the parties at the time that the option to purchase the second piece and third piece was granted. It noted that the statutory language of § 47-33a did not permit the court to consider the intent of the parties where the agreement is silent as to the date of performance of the option. The court further concluded that even if the parties’ intent were an issue, the option to purchase was clear and unambiguous and that a determination of the intent would be made by a fair and reasonable construction of the written words of the contract executed on May 16, 1977.
On appeal, the plaintiff argues that due to the absence of the date for performance of the option, the court should have considered the intent of the parties. She also claims that the court should have examined the signature of Chary D. Nash on the handwritten note and compared it with her signature on the deed to establish the note’s authenticity. We are not persuaded.
We begin with the plaintiffs claim that the court should have considered the handwritten note that purportedly bore the signature of Chary D. Nash. Procedurally, this matter was presented to the trial court by way of a motion for permission to file a supplemental memorandum of law in opposition to the defendants’ motions for summary judgment. The handwritten note at issue was attached to the plaintiffs proposed supplemental memorandum of law filed with her motion for permission to file the supplemental memorandum of law. The court concluded that in the absence of admissible supporting documentation attesting to the authenticity of the handwritten note, it could not consider it, and therefore denied the plaintiffs motion.
“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Taylor v. Barberino,
The plaintiff, citing New Milford Savings Bank v. Jajer, Superior Court, judicial district of Litchfield, Docket No. CV-92-0061073 (August 30, 2005), argues that the trial court could have compared the signature on the handwritten note with Chary D. Nash’s signature on the deed to determine the handwritten note’s authenticity. The defendants counter that (1) this argument is raised for the first time on appeal, (2) the plaintiff failed to seek an articulation as to whether the court could have made a finding regarding the signatures on the deed and handwritten note, (3) the plaintiff failed to provide authority that the court may authenticate a signature on a document in the context of a motion for summary judgment, and (4) the plaintiff failed to supply any foundational information such as who wrote the handwritten note, the note’s purpose or what property is referenced. We conclude that the court did not abuse its discretion in denying the plaintiff’s motion for permission to file a supplemental memorandum of law in opposition to the defendants’ motions for summary judgment.
We note that the plaintiff never specifically requested the trial court to compare the signature of Chary D. Nash from the deed with the signature on the handwritten note. Although the court may compare signatures to determine authorship, the plaintiff has not cited any case or treatise for the proposition that it must do so. See, e.g., C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 9.6.3, pp. 628-29. As observed by the trial court, the plaintiff failed to produce a certified copy or an affidavit, by a person with personal knowledge that the handwritten note was a true and accurate representation of what the plaintiff claimed it to be. Although there may have been other methods to establish authenticity of the note, we note that it was the plaintiffs burden to do so. The plaintiff elected to seek to file a supplemental memorandum of law in opposition to the motions for summary judgment. The plaintiffs motion for permission to file the supplemental memorandum of law stated that the note bore the signature of Chary D. Nash and was signed on the same date on which the warranty deed was executed. Notably, she failed to request the court to compare the signature on the note with the one on the warranty deed, provide an affidavit attesting to its authenticity, or in any way attempt to make a preliminary showing of its genuineness to the court. As a result, the court concluded that the plaintiff had failed to establish the authenticity of the handwritten note. This conclusion was not an abuse of the corut’s discretion. See, e.g., Wilderman v. Powers,
Finally, we address the plaintiffs claim that the court should have considered the intent of the parties. The plaintiff argues that the option contract was ambiguous, due to the absence of a date for performance, and that therefore the court was free to consider evidence outside of the four comers of the contract. The defendants counter that the court correctly determined that the parties’ intent was clearly and unambiguously expressed in the option contract and that the court therefore properly limited its analysis to the language contained in the option contract. They further contend that the court properly concluded that nothing in § 47-33a (a) permitted the use of extrinsic evidence to
“[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . [T]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face. . . . Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion.” (Citations omitted; internal quotation marks omitted.) Christian v. Gouldin,
We conclude that the option contract contained definitive language as to the parties’ commitments.
In closing, we acknowledge the nature of claims for specific performance. “[A]n action for specific performance of a contract to sell real estate is an equitable action and is to be determined by equitable principles. . . . The granting of specific performance of a contract to sell land is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity. ... If, under the circumstances, specific performance would be inequitable, the relief to be accorded rests in the trial court’s sound discretion, to be exercised in light of the equities of the case and using reason and sound judgment.” (Citations omitted; internal quotation marks omitted.) Webster Trust v. Roly,
Finally, we agree with following statement found in the trial court’s well reasoned memorandum of decision: “[T]he court notes that the legislative history of General Statutes § 47-33a reveals that the statute was designed to prevent unexercised interests in real property from remaining on title indefinitely and to render title to property encumbered by such interests marketable within a reasonable period of time.” See 8 H.R. Proc., Pt. 10,1959 Sess., pp. 4109-10 and 4112-13; Public Acts 1959, No. 59-550; Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 5, 1959 Sess., pp. 1966-69.
The judgment is affirmed.
In this opinion ALVORD, J., concurred.
Notes
The plaintiff commenced this action individually and in her capacity as the executrix of the estate of H. Franklin Nash, Jr., and as trustee of the Carol Ann T. Nash revocable trust. We refer to Carol Arm Nash in both capacities as the plaintiff. The plaintiff brought the action against the defendants as individuals and as coexecutors of the estate of Chary D. Nash.
“An option is a continuing offer to sell, irrevocable until the expiration of the time period fixed by agreement of the parties, which creates in the option holder the power to form a binding contract by accepting the offer.” Smith v. Hevro Realty Corp.,
Rabou filed her motion for summary judgment on March 2, 2011, and Stevens filed her motion two days later. Stevens, in her motion, expressly adopted the motion, memorandum of law and exhibits filed by Rabou.
The only remedy sought by the plaintiff is specific performance. We note that the time limitations set forth in § 47-33a apply only to actions for specific performance. Section 47-33a (c) provides: “Nothing in this section shall be construed to limit or deny any legal or equitable rights a party may have under the agreement except the right to have the agreement specifically enforced.”
“Our legislature has expressed a clear preference for recording real property conveyances.” Trumbull v. Palmer,
The May 16, 1977 warranty deed is the only agreement signed by Chary D. Nash, the grantor, and H. Franklin Nash, Jr., the grantee. We confine our analysis to this document. Contrary to the suggestion in the dissent, we do not read § 47-33a to require the date to exercise the option to be found in the recording deed. Under the facts of this case, the deed is simply where the agreement is located.
The dissent agrees with our conclusion that the terms of the deed are clear and unambiguous. It then turns to the issue of whether the deed was an integrated agreement. This claim, however was not raised in the plaintiffs brief to this court. The plaintiff, in passing, mentioned when the use of parol evidence is appropriate and cited to law for the general proposition that the intent of the parties is garnered in light of the parties’ situation.
Our Supreme Court recently stated: “We have long held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide [an appeal] before it on a basis that the parties never have raised or briefed. ... To do otherwise would deprive the parties of an opportunity to present arguments regarding those issues.” (Citations omitted.) Sabrowski v. Sabrowski,
The dissent takes the view that this concern is alleviated by General Statutes § 47-33f. We note that burdening the title to property for forty years runs contrary to the purpose of § 47-33a, which is, in part, to make property interests marketable in a reasonable amount of time.
Dissenting Opinion
dissenting. I respectfully dissent because I conclude that the trial court incorrectly interpreted both General Statutes § 47-33a and the law of contracts to bar admission of evidence outside of the recorded deed for the purpose of determining whether the deed constituted the complete and exclusive agreement of the parties. As a result, the trial court refused to consider evidence that the complete agreement contained a date for exercising the option referred to in the deed. Because neither § 47-33a nor contract law bars introduction of parol evidence to show a consistent additional term in an agreement to convey real estate, and because there was such evidence before the court, the defendants, Betsey N. Stevens and Evelene N. Rabou, did not meet their burden to make a showing “that it is quite clear what the truth is, and that excludes any real doubt as to the existence
I begin by providing an alternative statement of facts. The following facts, as viewed in the light most favorable to the plaintiff, are relevant to this appeal. On May 16, 1977, Chary D. Nash (Chary Nash) executed a warranty deed conveying to her son, H. Franklin Nash, Jr. (Franklin Nash), a parcel of property known as the “First Piece” together with “the option to purchase for One Dollar ($1.00) the following described pieces or parcels of land herein called the Second Piece and the Third Piece . . . .” During the real estate closing, Chary Nash explained to Franklin Nash and his wife, the plaintiff, and they accepted the conveyance with the understanding, that the option was not to be exercised until both Chary Nash and her husband, Harold Nash, had died, because Chary Nash and Harold Nash wanted to continue to take advantage of the tax benefits of owning the parcels. The deed, which contained the essential terms of the conveyance and the option, was recorded in the municipal land records. It was signed by Chary Nash, but not by Franklin Nash or the plaintiff. On the same day, Franklin Nash executed a warranty deed conveying to himself and to the plaintiff, as joint tenants, the first piece and the option to purchase the second and third piece. Also on the same day, Chary Nash memorialized in handwriting the essential terms of the conveyance and the option agreement, as well as the conditions under which the option could be exercised.
On November 22, 2009, Chary Nash died testate, leaving her entire estate to her three children: Franklin Nash and the defendants. All three children were appointed executors of her estate. On February
On July 16, 2010, the plaintiff commenced this action seeking specific performance of the option. The defendants subsequently moved for summary judgment on the plaintiffs complaint for specific performance, arguing that it was time barred by § 47-33a.
If ever a case illustrated the saying that “no good deed goes unpunished,” this is it. Viewing the facts in the light most favorable to the plaintiff, she and her late husband did what his mother asked, as expressed in their oral and written agreements, waiting until after her death to exercise the option to purchase the remaining part of her land. As a result of the forbearance of the plaintiff and her
I
I first address the majority’s conclusion that because the recorded deed did not contain the date for performance with respect to exercising the option, the agreement did not contain a date for performance. This case hinges on principles of statutory interpretation and contract interpretation, as well as the proper standard for deciding a motion for summary judgment.
“Our review of the decision to grant a motion for summary judgment is plenary. . . . We therefore must decide whether the court’s conclusions were legally and logically correct and find support in the record.” (Internal quotation marks omitted.) Moll v. Wal-Mart Stores East, LP,
Practice Book § 17-49 provides: “The judgment sought shall be rendered forthwith if the 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.” “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) D.H.R. Construction Co. v. Donnelly, supra,
To determine whether a genuine issue of material fact existed in this case, we first must determine whether § 47-33a bans evidence not contained in the recorded deed. We then must determine not, as the majority concludes, whether the deed in this case was ambiguous, but instead, what constitutes the agreement between the parties, and specifically, whether that agreement contained a date for exercising the option referred to in the deed. For the reasons discussed herein, I conclude that the trial court incorrectly determined that § 47-33a bans evidence outside the recorded deed, and that because the recorded deed did not contain a date for exercising the option, the agreement between the parties did not contain such a date.
“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the
By the plain and unambiguous terms of § 47-33a (a), no interest in real estate, including an option to buy real estate, “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 52-326.” General Statutes § 47-33a (a). Only if the date is not provided in the agreement does the statute impose a default deadline of eighteen months after the execution of the agreement. If the date is provided in the agreement, the plaintiff must commence action within one year of the date. General Statutes § 47-33a. The statute requires that the agreement provide a date. It does not require that the date be provided in the recorded deed, and it does not require recording the original agreement. Nor does the statute require recording the date for exercising the option—unless the interest is extended after the execution of the original agreement. General Statutes § 47-33a (b). To read § 47-33a to exclude terms that were included in the agreement because they were not included in the recorded deed would improperly impose a recording requirement that is not in the statute. The legislature, when it has wanted to impose a recording requirement, has done so explicitly, for example, in General Statutes § 47-10, which extinguishes the interests of some grantees in favor of subsequent grantees when the formers’ interests are not recorded, and even in subsection (b) of § 47-33a. Had it wanted to impose a recording requirement on original agreements, as it did on extensions and subsequent agreements in the same statute, the legislature would have done so explicitly.
For the purpose of applying § 47-33a, the death of the grantor may serve as the operative event for exercising an option. Funaro v. Baisley,
In this case, no written agreement was signed by all the parties. Evidence viewed in the light most favorable to the plaintiff indicates that the agreement constituted more than just the recorded deed, and that the complete agreement, which included the contemporaneous oral agreement, contained a date for exercising the option. The plaintiff alleged in the first of two affidavits opposing summary judgment that the date for exercising the option was provided by the grantor, Chary Nash, at the time the agreement was finalized and memorialized by the signing of the deed.
In this case, the plaintiff sought to exercise the option and filed a claim seeking specific performance, both within one year of the grantor’s death, thereby meeting the requirements of § 47-33a. The defendants argue that failure to record the date of the option would cloud title indefinitely, preventing the subsequent sale of the property and working to the prejudice of subsequent purchasers.
II
Having concluded that under § 47-33a, an unrecorded contemporaneous agreement may provide the date for exercising an option, I now turn to the court’s and the majority’s conclusion that evidence of such an agreement could not be considered because the recorded deed was unambiguous. I agree with the majority that the terms of the deed are clear and unambiguous, but that is not relevant in this case, because completely separate from—and prior to—any determination of whether terms in the agreement or the agreement itself are ambiguous, a court reviewing a contract first must determine what constitutes the complete agreement between the parties. “Whether there is an integrated agreement is to be determined by the court as a question preliminary to determination of a question of interpretation or to application of the parol
Section 210 (1) of the Restatement (Second) of Contracts provides: “A completely integrated agreement is an integrated agreement adopted by the parties as a complete and exclusive statement of the terms of the agreement.” “The definition in Subsection (1) is to be read with the definition of integrated agreement in § 209, to reject the assumption sometimes made that because a writing has been worked out which is final on some matters, it is to be taken as including all the matters agreed upon. Even though there is an integrated agreement, consistent additional terms not reduced to writing may be shown, unless the court finds that the writing was assented to by both parties as a complete and exclusive statement of all the terms.” Id., § 210, comment (a).
The majority does not address this question, and none of the cases it cites in upholding the trial court’s exclusion of parol evidence considered whether a contract could be supplemented by consistent additional terms. See, e.g., Paul Revere Life Ins. Co. v. Pastena,
Nothing in Connecticut case law prevents the consideration of evidence of consistent additional terms that supplement a deed or other agreement for the sale of an interest in real estate. “The parol evidence rule does not of itself . . . forbid the presentation of parol evidence, that is, evidence outside the four comers of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in [a] writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud. . . . These recognized exceptions are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract’s terms, or (2) may be considered because the contract has been shown not to be integrated or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud.” (Citation omitted; internal quotation marks omitted.) TIE Communications, Inc. v. Kopp,
A contract that appears to be complete on its face is an integrated agreement “unless it is established by other evidence that the writing did not constitute a final expression.” 2 Restatement (Second), supra, § 209 (3). The commentary to § 209, however, makes clear that basic principles of contract law require proof of integration as a determination of fact before excluding any relevant evidence. “Whether a writing has been adopted as an integrated agreement is a question of fact to be determined in accordance with all relevant evidence. The issue is distinct from the issues whether an agreement was made and whether the document is genuine, and also from the issue whether it was intended as a complete and exclusive statement of the agreement.” Id., § 209, comment (c). Commentary to § 210 also sheds light on why the court’s refusal to consider the affidavits and the handwritten note, especially in deciding a motion for summary judgment, was improper: “A document in the form of a written contract, signed by both parties and apparently complete on its face, may be decisive of the issue in the absence of credible contrary evidence. But a writing cannot of itself prove its own completeness, and wide latitude must be allowed for inquiry into circumstances bearing on the intention of the parties.” (Emphasis added.) Id., § 210, comment (b). “Incompleteness may also be shown by other writings, which may or may not become part of a completely or partially integrated agreement. Or it may be shown by any relevant evidence, oral or written, that an apparently complete writing never became fully effective, or that it was modified after initial adoption.” Id., § 210, comment (c).
Section 214 of the Restatement (Second) of Contracts provides: “Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish (a) that the writing is or is not an integrated agreement; (b) that the integrated agreement, if any, is completely or partially integrated; (c) the meaning of the writing, whether or not integrated; (d) illegality, fraúd, duress, mistake, lack of consideration, or other invalidating cause; [and] (e) ground for granting or denying rescission, reformation, specific performance, or other remedy.”
The issues listed in § 214 are to be “determined by the court preliminary to determination of a question of interpretation or to application of the parol evidence rule. . . . Writings do not prove themselves; ordinarily, if there is dispute, there must be testimony that there was a signature or other manifestation of assent. The preliminary determination is made in accordance with all relevant evidence, including the circumstances in which the writing was made or adopted.” (Citation omitted.) Id., comment (a). “Evidence of a consistent additional term is admissible to supplement an integrated agreement unless the court finds that the agreement was completely integrated.” Id., § 216 (1). “An agreement is not completely integrated if the writing omits a consistent additional term which is (a) agreed to for separate consideration, or (b) such a term as in the circumstances might naturally be omitted from the writing.” Id., § 216 (2). “In considering the expressed intent of a contract evidenced, as was this, by multiple writings, all of the writings should be considered and an endeavor made to ascertain the expressed intent of the contract as a whole.” Schubert v. Ivey,
“Only when an integrated contract exists and its meaning differs from extrinsic evidence offered by one of the parties does the parol evidence rule come into play.” 11 R. Lord, Williston on Contracts (4th Ed. 2012) § 33:14, p. 956.
Two things are clear from the deed. First, it contains no integration clause or any words expressing the parties’ intent to adopt it as the complete and exclusive agreement of the parties. Second, it contains no terms contradicted by the terms of the oral agreement, as described in the plaintiffs affidavits, or described in the handwritten note. Therefore, I conclude that the deed is not an integrated agreement and that a genuine issue of fact exists as to whether the consistent additional term specifying that the option was not to be exercised until after Chary Nash and Harold Nash had died was part of the agreement.
Ill
I now turn to the trial court’s conclusion that the handwritten note was not properly authenticated, and therefore, could not be considered. I disagree because I conclude that the note was properly authenticated for the purposes of summary judgment. To the extent its authenticity was at issue, the plaintiff made a prima facie showing that it was genuine, and therefore, the final determination of authenticity should
Practice Book § 17-45 provides in relevant part: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . .” The majority appears to conclude that the words “included but not limited to” are superfluous, and that documents may be authenticated only by those documents explicitly fisted. This conclusion is incorrect for three reasons. First, disclosures are specifically fisted as an acceptable form of documentation. Although no case law interprets the meaning of disclosures as used in Practice Book § 17-45, it is logical to conclude that documents produced by the opposing party, documents which would tend to hurt that party’s case and which are corroborated by the circumstances and affidavits in the record, are self-authenticating. Second, Practice Book § 1-8 provides for the rules to be “interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” It would be highly unjust for a case to die on summary judgment because the trial court, based on an excessively narrow reading of the authentication requirement, refused to consider evidence that, if true, showed that one party to a contract was deprived of the benefit of the bargain because she adhered to a condition of the contract. Third, Connecticut courts have a long-standing practice of accepting multiple methods of authentication, which, for the reasons discussed herein, were satisfied in this case.
“The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.” Conn. Code Evid. § 9-1 (a). “Authentication is ... a necessary preliminary to the introduction of most writings in evidence .... In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence. . . . Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege. . . . Rather, there need only be a prima facie showing of authenticity to the court. . . . Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which ultimately will determine its authenticity. . . . The requirement of authentication ... is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.” (Internal quotation marks omitted.) State v. Cooke,
“Under Connecticut law and the Connecticut Code of Evidence, a multitude of methods exist by which a party can demonstrate the authentication of a document, and no single method represents the exclusive means of proving authenticity.” State v. Howell,
In this case, the circumstantial evidence for the authenticity of the handwritten note had already been admitted when the plaintiff sought to introduce the note in her motion for permission to file a supplemental memorandum of law. The deed was in the record. The plaintiff had already filed affidavits before the disclosure of the handwritten note, whose contents corroborated the contents of the handwritten note. The handwritten note contained a signature purported to be that of Chary Nash, which could be compared to the signature on the deed. “It has long been the law . . . that the trier of fact, whether judge or jury, may compare a disputed writing with a specimen of known authorship to determine the identity of the person.” New Milford Savings Bank v. Jajer, Superior Court, judicial district of Litchfield, Docket No. CV-92-0061073 (August 30, 2005). “Comparisons may be made by the trier of fact, be it judge or jury, with or without the aid of expert testimony.” C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 9.6.3, p. 629. “The trier of fact or an expert witness can authenticate a contested item of evidence by comparing it with preauthenticated specimens.” Conn. Code Evid. § 9-1, commentary (a) (3). “It is undisputed that where an issue is raised regarding the authenticity of a writing, proof of authenticity may be made by a comparison of the disputed writing with another writing, an exemplar, the authenticity of which has been established. Shakro v. Haddad,
Neither Farrell v. Twenty-First Century Ins. Co.,
This case is notably different from those cited by the trial court and the majority. In her proposed supplemental memorandum of law, the plaintiff described the contents of the handwritten note, how the affidavits and the deed already in the record corroborated those contents, the existence of the grantor’s signature, the date on the document and why the document was relevant to the motions for summary judgment. Most significantly, the circumstances under which the document was obtained—through production by the opposing party in response to a discovery request from the nonmoving party—remove the concern about authenticity that comes when a party produces documents from its own files. Therefore, the circumstances here do not implicate the concerns expressed in Great Country Bank v. Pastore,
Furthermore, the court decided the motions for summary judgment at the same time as it denied the motion to submit the supplemental memorandum of law. As a result, despite making the required prima facie showing of authenticity, the plaintiff was denied the opportunity to submit whatever additional authentication the court might require during trial or prior to the decision on the motions for summary judgment.
IV
“A judge’s function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary
In this case, the plaintiff made a showing that there was real doubt about the facts relevant to a proper application of § 47-33a. Section 47-33a allows evidence of a date for exercising the option as long as it was contained in the original agreement—not only when it was recorded with the deed. Parol evidence is acceptable if it shows that such a date was a consistent additional term, whether agreed to orally or in writing, or in this case, by both methods. Finally, a document’s authenticity may be shown by many methods, not solely by affidavits. In this case, there was an agreement on the date for exercising the option, requested by the grantor and memorialized in writing. The plaintiff honored that agreement. The trial court had evidence of that agreement before it in the record. The trial court also had documentation of the authenticity of that evidence. Even without the handwritten note, evidence from the plaintiffs affidavits showed a genuine issue of material fact. Based on a plenary review of the record, I conclude that the trial court’s decision to render summary judgment was not legally or logically correct.
In this case, the defendants submitted a copy of the plaintiffs complaint and exhibits, including the original deed containing the option, in support of their motions for summary judgment, relying on their incorrect interpretation of § 47-33a to argue that because the deed did not include the date, the eighteen month time limit in the statute applied to extinguish the option. Because that conclusion was incorrect, the defendants did not meet their burden to establish that there was no genuine issue of material fact. Despite significant doubt about what the parties agreed to, the court prematurely pulled the plug on this case. I would, therefore, reverse the judgment and remand the case for trial.
The note states in relevant part: “Chary deeded 3V2 acres to Franklin for $1.00. Franklin & Carol Ann each to give Chary a gift of $3,000 (total $6,000) in appreciation. Also Franklin has option to buy for $1.00 a remaining 46V2 acres if house is sold or when both Harold and Chary are dead.”
General Statutes § 47-33a provides: “(a) 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.
“(b) The interest may be extended only by reexecution of the written agreement or by execution of a new written agreement, provided the agreement, whether reexecuted or newly executed, shall be recorded as directed by sections 47-10 and 47-17. The period provided by this section shall not otherwise be extended, whether because of death, disability or absence from the state or for any other reason. Upon the expiration of an interest the title to property affected by the interest shall not thereafter be considered unmarketable because of the expired interest.
“(c) Nothing in this section shall be construed to limit or deny any legal or equitable rights a party may have under the agreement except the right to have the agreement specifically enforced.”
Because I conclude that the agreement between the parties provided a date for exercising the option and the plaintiff acted both to exercise the option and to seek specific performance within one year of that date, the eighteen month time limit in § 47-33a did not apply. I agree, however, with the majority that the facts in Texaco Refining & Marketing, Inc. v. Samowitz,
I note also that the statute of frauds does not bar evidence that the parties agreed orally to a nonessential term as part of an agreement to convey real estate. SS-II, LLC v. Bridge Street Associates,
The majority cites the following quotation from Trumbull v. Palmer,
General Statutes § 47-31 (a) provides: “An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiffs claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.”
I disagree with the majority’s conclusion that the plaintiff did not raise this issue in her brief, and that therefore, this court may not consider it. First, the defendants’ brief discussed at length whether the fact that a contract is unambiguous on its face means that § 47-33a precludes the use of extrinsic evidence to supplement that contract and asserted that the plaintiffs position “belies . . . black letter contract law . ...” In her brief, the plaintiff addresses the role of the parties’ intent, citing case law that discusses the role of parol evidence in determining whether specific performance is appropriate. In her reply brief, the plaintiff explicitly addresses an issue raised in the defendants’ brief—that the plaintiff was “attempting to vary the clear terms of the 1977 option”—by citing to the same case law involving the application of § 47-33a, in which this court held that parol evidence is allowed to show consistent additional terms even when contracts are integrated, and that courts may consider such parol evidence in deciding whether awarding specific performance would be equitable under the circumstances. See Battalino v. Van Patten,
The majority concludes that the trial court’s decision to exclude evidence of consistent additional terms is subject to review for abuse of discretion. In Mott v. Wal-Mart Stores East, LP, supra,