Nash v. Stevens

NASH v. STEVENS—DISSENT

AC33958

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Dated: July 8, 2013

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DISSENT

LAVERY, J., 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 of any genuine issue of material fact.'' (Internal quotation marks omitted.) D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Additionally, I disagree with the majority's conclusion that the handwritten note the plaintiff, Carol Ann Nash, sought to have the trial court consider, was not properly authenticated and therefore, not admissible at the summary judgment stage. Accordingly, I would reverse the summary judgment rendered in favor of the defendants and remand the case for trial with direction to consider all relevant evidence, including the plaintiff's affidavits and the handwritten note, in determining what constitutes the complete agreement of the parties.

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 taxbenefits 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 thesecond 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.¹ The handwritten note accurately reflected all of the terms in the deed as well as the consistent additional term agreed to at the time of closing, specifying that the option was not to be exercised until after Chary Nash and Harold Nash had sold their house or until both of them had died. Chary Nash included the date on the note and signed it. This handwritten note was not recorded with the deed. The note also contained an annotation dated June 6, 1977, and signed by Chary Nash, indicating that Chary Nash had received the agreed $6000 in consideration from Franklin Nash and the plaintiff. On September 22, 2009, Franklin Nash and the plaintiff executed a quitclaim deed conveying the first piece and the option to the plaintiff as trustee of the Carol Ann T. Nash revocable trust. As a result of the mutually agreed condition precedent to exercising the option, requested by the grantor, neither Franklin Nash nor the plaintiff sought to exercise the option while Harold Nash and Chary Nash were alive.

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 6, 2010, Franklin Nash died testate, leaving his entire estate to the plaintiff. On April 27, 2010, the plaintiff notified the defendants that she was exercising the option to purchase the second and third piece referred to in the deed and in Chary Nash's handwritten note. The defendants refused to honor the option and, subsequently, the plaintiff submitted a notice of claim for specific performance against the estate of Chary Nash. The claim was denied.

On July 15, 2010, the plaintiff commenced this action seeking specific performance of the option. The defendants subsequently moved for summary judgment on the plaintiff's complaint for specific performance, arguing that it was time barred by § 47-33a.² In opposing summary judgment, the plaintiff submitted two affidavits describing Franklin Nash's and Chary Nash's oral agreement to Chary Nash's condition that they not exercise the option until Chary Nash and Harold Nash had died. Sometime after the plaintiff filed her affidavits, the defendants responded to a discovery request from the plaintiff. Among the documents produced by the defendants was the handwritten note, which corroborated the facts in the affidavits, including the condition for exercising the option. The plaintiff's attorney then filed a motion seeking permission to file a supplemental memorandum of law. The accompanying memorandum described the note, its contents and the circumstances under which it was obtained. On October 4, 2011, the trial court denied the motion for permission to submit the supplemental memorandum of law, ruling thatbecause the plaintiff had not submitted any supporting documentation attesting to the note's authenticity, the note could not be considered. On the same date, the trial court rendered summary judgment in favor of the defendants. In its memorandum of decision rendering summary judgment, the trial court ruled that because the recorded deed did not contain a date for exercising the option, and because no extension of the contract had been executed pursuant to § 47-33a (b), the exercise of the option was time barred by § 47-33a (a).

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 late husband, which honored the complete agreement between the parties, the plaintiff has been deprived of the benefit of the bargain and of her day in court.

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.) Mott v. Wal-Mart Stores East, LP, 139 Conn. App. 618, 625, 57 A.3d 391 (2012).

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 partyis 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...