Fusco v. Austin

141 Conn.App. 825

64 A.3d 794

Dean FUSCO

v.Robbin L. AUSTIN.

No. 33723.

Appellate Court of Connecticut.

Argued Dec. 12, 2012.

Decided April 9, 2013.

Richard F. Paladino, for the appellant (defendant).

Ann Grunbeck Monaghan, Miller & Shah, for the appellee (plaintiff).

DiPENTIMA, C.J., and BEACH and SHELDON, Js.

DiPENTIMA, C.J.

The defendant, Robbin L. Austin, appeals from the judgment of the trial court ordering the partition by sale of certain residential real property jointly owned by the defendant and the plaintiff, Dean Fusco. On appeal, the defendant argues that the court erred in concluding that it had no statutory authority, absent a finding of “minimal interest,” to allow the defendant the opportunity to buy out the plaintiff's interest in the property. We disagree and, accordingly, affirm the judgment of the trial court.

The plaintiff commenced this action seeking a partition of certain residential real property owned by the parties as well as the return of certain personal property. The plaintiff also sought recovery for breach of contract and unjust enrichment. The defendant filed an answer, special defenses and a counterclaim alleging breach of contract, statutory theft, breach of the covenant of good faith and fair dealing and breach of fiduciary relationship.

Following trial, the court found the following facts.¹ “The parties, who began dating in May, 1979, engaged in a long term romantic relationship but never married. On June 9, 1986, the parties purchased a single-family home located at 57 Nehantic Trail in Old Saybrook, Connecticut (hereinafter ‘the property’) as joint tenants with rights of survivorship.” The parties purchased the property for $113,000 subject to a $98,000 mortgage held by Northeast Savings. The plaintiff contributed $11,000 at the closing while the defendant contributed $5790.48. As part of the closing on the property, the parties entered an agreement dated June 6, 1986, that involved their relative rights and responsibilities relating to the property (hereinafter ‘the partnership agreement’).

“The partnership agreement was handwritten by the plaintiff ... who may have consulted the parties' closing attorney, Haiman Clein, in its preparation. The partnership agreement provides, inter alia, that if the property is sold, the defendant will receive 55 percent of the net proceeds and the plaintiff will receive 45 percent of the net proceeds, subject to either party's claim for verified costs for property improvements. The partnership agreement also provides that the parties would ‘agree to rewite a new partnership agreement after 12 months from the date of closing.... If at that time an agreement cannot be realized between [the parties] then the property and dwelling will be placed for sale....’ Over the course of the next twenty-three years, the parties never rewrote the partnership agreement, nor did they list the property for sale as required by the partnership agreement. The parties refinanced the property in 1994 and [at the time of trial, there remained] less than $18,750 due on the first mortgage.”

“During the course of the parties' cohabitation, the plaintiff procured several lines of credit on the property without the defendant's permission or knowledge. [At the time of trial], the only line of credit [that remained] outstanding [bore] a debt of $108,000, for which the plaintiff stipulate[d] he [was] wholly responsible. The plaintiff voluntarily vacated the property in April, 2009. He attempted to return in June, 2009, but the defendant stipulate [d] that she denied him access to the [property]. The parties are no longer involved in a romantic relationship and ... are currently incapable of cohabiting or maintaining a functional relationship.”

“During the course of the parties' cohabitation, the defendant was primarily responsible for satisfying the financial obligations involving the property while the plaintiff bore most of the responsibility for maintaining and improving the property. The plaintiff retained receipts over the course of the parties' cohabitation, which were introduced into evidence at trial, representing almost $96,000 in costs he claim[ed] he incurred related to improvements to the property. The evidence demonstrate[d] that during the period of the parties' cohabitation, their contributions ... to the property were relatively equal. The evidence demonstrate[d] that, with the exception of the line of credit for which the plaintiff ... stipulated he bears full responsibility, the parties operated in good faith in relation to each other and that neither party engaged in illegal or unethical behavior as it related to the property and its contents during the period of their cohabitation.” The court further found the fair market value of the property to be $378,000, on the basis of the testimony of the plaintiff's appraiser.

At trial, the defendant argued that the court should order an equitable distribution of the property rather than ordering a sale, essentially requiring the defendant to pay the plaintiff the fair market value of his interest in the property in exchange for the transfer of the plaintiff's interest in the property to the defendant.² The court found that this type of distribution is available only when the court finds that the party seeking partition holds a “minimal interest” in the property. Because this was not such a case, the court determined that a partition by sale was the only remedy that would suit the interests of the parties. Accordingly, the court ordered that the property be sold at auction, determined the priority of the sale proceeds and ordered that the remaining proceeds, if any, be divided equally between the parties.³ The defendant then filed the present appeal.

On appeal, the defendant argues that the court erred in concluding, as a matter of law, that it had no statutory authority, absent a finding of “minimal interest,” to allow the defendant the opportunity to buy out the plaintiff's interest in the property.⁴ The defendant essentially argues that General Statutes § 52–500 and Fernandes v. Rodriguez, 255 Conn. 47, 55, 761 A.2d 1283 (2000), do not preclude the court from allowing the defendant to buy out the plaintiff's interest in the property, within the realm of a partition by sale. We disagree.

We begin by setting forth our well settled standard of review regarding statutory interpretation. “Issues of statutory construction raise questions of law, over which we exercise plenary review....”

“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 facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkableresults, extratextual evidence of the meaning of the statute shall not be considered.... The test to determineambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citation omitted; internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008).

“The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he become[s] such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afford[s] to every owner with another relief by way of partition....” (Internal quotation marks omitted.) Fernandes v. Rodriguez, supra, 255 Conn. at 55, 761 A.2d 1283. “Historically, partition in kind has been the remedy of choice where owners of property do not want to be bound to each other through that ownership. Nonetheless, there [exist] circumstances in which physical partition is not feasible; therefore, [i]n Connecticut, an act extending the power of our courts to order a sale in partition proceedings was enacted in 1844.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn.App. 813, 852–53, 784 A.2d 905, certs. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

In Fernandes v. Rodriguez, supra, 255 Conn. at 54, 761 A.2d 1283, our Supreme Court considered whether, when terminating the ownership relationship between the parties in a partition action, a court is limited to rendering a judgment of partition in kind pursuant to General Statutes § 52–495⁵ or partition by sale pursuant to § 52–500.⁶ Specifically, the Supreme Court considered whether this court had properly determined that the trial court could order, as relief, the payment of money to the named defendant by the plaintiff, and an order that the defendant execute and deliver to the plaintiff a quitclaim deed to the subject property. Id., at 48–49, 761 A.2d 1283. The court concluded that “in a partition action, one joint tenant or tenant in common cannot dispossess another except by...