Salce v. Wolczek ( 2014 )

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SALCE v. WOLCZEK—DISSENT
VERTEFEUILLE, J., with whom PALMER and ROB-
INSON, Js., join, dissenting. I respectfully disagree with
the majority that the Appellate Court properly affirmed
the trial court’s summary judgment rendered in favor
of the plaintiff, Anthony H. Salce, Sr., on the ground
that the contingency clause of the buyout agreement
between the plaintiff and the defendant, Walter Wolc-
zek, is unambiguous and susceptible to one, and only
one, reasonable interpretation. In so concluding, the
majority determines that the parties necessarily
intended to engraft the doctrine of equitable conver-
sion1 as an implicit term of their contract so that, if the
defendant entered into a purchase and sale agreement
within the period subject to the contingency clause, the
plaintiff would receive a share of the ‘‘ ‘whole value’
for any sale’’ in excess of $3.5 million, irrespective of
whether legal title to the property was transferred
within that period. I agree that such an interpretation
is reasonable. I would further conclude, however, that
the contingency clause is subject to another reasonable
interpretation, under which the plaintiff would receive
a share of the whole value of a sale only upon the
defendant’s transfer of the full legal title to the property
or some portion thereof during the period of the contin-
gency, as the defendant claims. Therefore, I respect-
fully dissent.
It is important to underscore that ‘‘[a] contract must
be construed to effectuate the intent of the parties,
which is determined from the language used interpreted
in the light of the situation of the parties and the circum-
stances connected with the transaction.’’ (Internal quo-
tation marks omitted.) Murtha v. Hartford, 303 Conn.
1, 7, 35 A.3d 177 (2011). Intent usually is a question of
fact. 19 Perry Street, LLC v. Unionville Water Co., 294
Conn. 611, 622, 987 A.2d 1009 (2010). It is only when
the contract on its face reveals such a clear and definite
expression of intent that we preclude the parties from
proffering extrinsic evidence that might bear on that
question. See Cruz v. Visual Perceptions, LLC, 311
Conn. 93, 106, 84 A.3d 828 (2014); 19 Perry Street, LLC
v. Unionville Water Co., supra, 623. No such definite
expression exists, however, if the contract is ‘‘reason-
ably susceptible to more than one reading.’’ (Internal
quotation marks omitted.) Lexington Ins. Co. v. Lexing-
ton Healthcare Group, Inc., 311 Conn. 29, 38, 84 A.3d
1167 (2014). Although we may presume that sophisti-
cated commercial parties represented by counsel intend
to provide sufficient definiteness to their commercial
contractual arrangements so as to avoid such ambigu-
ity; Tallmadge Bros., Inc. v. Iroquois Gas Transmis-
sion System, L.P., 252 Conn. 479, 496–97, 746 A.2d
1277 (2000); that presumption is rebutted when those
intentions have manifestly failed. See, e.g., United Illu-
minating Co. v. Wisvest-Connecticut, LLC, 259 Conn.
665, 674–75, 791 A.2d 546 (2002).
In the present case, the stated purpose of the buyout
agreement is the sale of the plaintiff’s 50 percent owner-
ship interest in a limited liability company, which holds
title to certain real property in Trumbull, to the defen-
dant, the owner of the other 50 percent interest in the
company. This purpose sheds some light on ‘‘the situa-
tion of the parties and the circumstances connected
with the transaction’’; (internal quotation marks omit-
ted) Murtha v. Hartford, supra, 303 Conn. 7; as we
interpret the terms of the contingency clause at issue.
That clause, entitled ‘‘Contingent Addition to Purchase
Price,’’ provides in relevant part as follows: ‘‘If within
one year of the closing hereunder any ownership inter-
est in the [p]remises . . . is transferred . . . based on
a whole property value of more than [$3.5 million],
[the defendant] shall pay [the plaintiff] an additional
purchase price equal to one half the excess at the same
time as the transfer. The ‘excess’ is the amount by which
the whole property value for the transfer exceeds [$3.5
million]. The ‘whole value’ for any sale is the 100 [per-
cent] value on which any percentage interest being
transferred is based. For example, a one quarter interest
transferred for [$1 million] would equate to a whole
property value of [$4 million]. . . .’’2 The parties have
stipulated that: on May 31, 2007, the plaintiff’s sale to
the defendant closed; on March 19, 2008, approximately
six weeks prior to the expiration of the contingency
clause, the defendant executed a purchase and sale
agreement under which the property would be sold to
a third party (Vaughn agreement) for a stated purchase
price of $5.5 million; and on July, 1, 2008, approximately
four and one-half weeks after the contingency clause
expired, the closing of the sale occurred.
The defendant contends that the contingency clause
is triggered upon the transfer of legal title to any per-
centage interest in the property. Because he did not
transfer title to the subject property until the closing,
he contends that he is not liable under that clause. The
plaintiff contends that the contingency is triggered by
the transfer of a legal or equitable interest, as well as
any fractional interest thereof. More specifically, the
plaintiff contends that the parties unambiguously
intended to include an equitable interest created by
application of the doctrine of equitable conversion
when providing that the transfer of ‘‘any ownership
interest’’ would trigger the contingency. The plaintiff
contends that such an interest was created upon the
execution of the Vaughn agreement, and therefore, the
defendant is liable as a matter of law. For the reasons
that follow, I would conclude that the defendant’s con-
struction is reasonable, the contingency clause is there-
fore ambiguous, and summary judgment was improper.
I first turn to the meaning of the key terms in the
contingency clause, beginning with the phrase ‘‘any
ownership interest . . . .’’ One definition of ownership
provides: ‘‘Collection of rights to use and enjoy prop-
erty, including the right to transmit it to others. . . .
The complete dominion, title, or proprietary right in a
thing or claim. The entirety of the powers of use and
disposal . . . .’’ Black’s Law Dictionary (6th Ed. 1990).3
Another definition provides that ownership is the
‘‘[l]egal right to the possession of a thing.’’ American
Heritage Dictionary of the English Language (3d Ed.
1992). Thus, the term ownership is ambiguous as
applied to the question before us because it can mean
the full bundle of property rights or certain fundamental
legal rights, such as legal title or possession. Even when
a purchaser is deemed to have an equitable interest in
property, the purchaser does not obtain full rights of
ownership until the transfer of absolute (or legal) title.
See 14 Powell on Real Property (M. Woolf ed., 2004),
§ 81.01 [3] [a], p. 81-15; see also Cavanaugh v. Richichi,
100 Conn. App. 466, 469, 918 A.2d 290 (2007). Until
such a transfer occurs, the seller retains many of the
incidents of ownership. Principal among these is the
right to possession of the property, as well as the right
to collect profits or rents from the property and use
them without restriction; see Anderson v. Yaworski,
120 Conn. 390, 393, 181 A. 205 (1935); 14 Powell on
Real Property, supra, § 81.01 [3] [a], pp. 81-15 through
81-17; unless the contract specifies otherwise. See, e.g.,
Chomko v. Patmon, 19 Conn. App. 483, 484 n.1, 563
A.2d 311 (‘‘[a] [b]ond for [d]eed . . . is an installment
sale contract of real property where the buyer takes
possession of the property but does not receive fee
simple title of the property until a later date’’ [internal
quotation marks omitted]), cert. denied, 212 Conn. 819,
565 A.2d 539 (1989).
Unlike the majority, I am not persuaded that any
such ambiguity is dispelled by the mere fact that the
contingency clause refers to ‘‘any ownership interest
. . . .’’ (Emphasis added.) Although the majority deter-
mines that ‘‘any’’ is an unambiguous term that must be
afforded the most expansive reading possible, this court
previously has acknowledged that the meaning and
scope of ‘‘any’’ is informed by the context in which it
is used. See Location Realty, Inc. v. Colaccino, 287
Conn. 706, 724–25, 949 A.2d 1189 (2008) (concluding
that because ‘‘ ‘any action’ ’’ was used in conjunction
with phrase ‘‘ ‘no person,’ ’’ it should be afforded broad-
est possible formulation); Ramirez v. Health Net of the
Northeast, Inc., 285 Conn. 1, 14–15, 938 A.2d 576 (2008)
(reading ‘‘ ‘any’ ’’ in conjunction with words ‘‘ ‘without
limitation’ ’’ in contract dispute to have expansive
meaning); AvalonBay Communities, Inc. v. Zoning
Commission, 280 Conn. 405, 414, 908 A.2d 1033 (2006)
(noting that meaning of ‘‘ ‘any’ ’’ is context dependent
but concluding, with regard to General Statutes § 22a-
19, that ‘‘the repeated use . . . of the word ‘any’ . . .
indicates an intention to allow the broadest possible
range of parties to intervene in an expansive spectrum
of proceedings’’); Ames v. Commissioner of Motor
Vehicles, 267 Conn. 524, 531, 839 A.2d 1250 (2004) (not-
ing that ‘‘any’’ is ambiguous term that, depending on
‘‘context’’ and ‘‘subject matter of the statute’’ may
denote ‘‘all, every, some or one’’ [internal quotation
marks omitted]).
When considering the broader context in which the
term ‘‘any ownership interest’’ is used, I note that the
contingency clause is replete with language expressly
addressing fractional interests. The clause refers to
‘‘any percentage interest,’’ ‘‘‘whole value,’ ’’ and ‘‘100
[percent] value,’’ and provides an example of the proper
calculation of a whole value based on a transfer of a
one-quarter interest. Moreover, an intention to address
the specific concern of a sale of any partial legal interest
in the property is consistent with the overarching pur-
pose of the entire agreement, wherein a 50 percent
share of ownership interest is being sold.
By contrast to the many references to fractional inter-
ests, there is no reference in the contingency clause at
all to equitable interests. Had the parties wanted to
manifest an unambiguous intent to encompass such
an interest, the contingency clause easily could have
referred to ‘‘legal or equitable’’ interests. Cf. General
Statutes § 3-56a (11) (referring to ‘‘legal or equitable
interest’’ in property); General Statutes § 12-392 (b) (3)
(E) (same); General Statutes § 33-1036 (4) (same); Gen-
eral Statutes § 42-103dd (22) (same); General Statutes
§ 42a-9-318 (a) (same); General Statutes § 47-202 (17)
(same); General Statutes § 49-61 (a) (same). Indeed, in
the breach and remedy section of the agreement, the
parties expressly referred to ‘‘any other remedy in law
or equity available to [the] [s]eller,’’ rather than simply
‘‘any remedy.’’
Other terms used in the contingency clause lend fur-
ther support to the reasonableness of the defendant’s
construction. That clause refers to both a ‘‘transfer’’
and a ‘‘sale’’ in a manner suggesting that the terms
refer to the same event triggering the contingency. One
definition of ‘‘sale’’ provides: ‘‘A contract between two
parties, called, respectively, the ‘seller’ (or vendor) and
the ‘buyer’ (or purchaser), by which the former, in con-
sideration of the payment of promise of payment of a
certain price in money, transfers to the latter the title
and possession of property. . . . A contract whereby
property is transferred from one person to another for
a consideration of value, implying the passing of the
general and absolute title, as distinguished from a spe-
cial interest falling short of complete ownership.’’
Black’s Law Dictionary (6th Ed. 1990). Because this
definition provides that the property ‘‘is’’ transferred
by way of such a contract, it potentially excludes an
executory sales contract that would potentially give
rise to an equitable interest, because title is transferred
at some later point in time. See also Guilford-Chester
Water Co. v. Guilford, 107 Conn. 519, 527, 141 A. 880
(1928) (‘‘sale’’ of property is ‘‘transfer of the absolute
title therein for a price’’); Ray Weiner, LLC v. Bridge-
port, 150 Conn. App. 279, 286 n.7, 92 A.3d 258 (2014)
(The court, when rejecting the plaintiff’s claim that a
sale is not limited to situations in which title passes
but also can include a contract for sale, stated that
‘‘[t]his reading ignores the meaning of the verb ‘transfer’
contained in the definition of ‘sale’ in both the fifth
and ninth editions of Black’s Law Dictionary. ‘Transfer’
means ‘a conveyance of right, title, or interest in real
or personal property from one person to another.’ Mer-
riam-Webster’s Collegiate Dictionary [11th Ed. 2012].
Therefore, the plaintiff cannot be a party to a sale
because its contract remains executory and thus no
transfer has occurred.’’).4 Accordingly, it is apparent
that the contingency clause is ambiguous as to whether
the ‘‘sale’’ of ‘‘any ownership interest’’ extends to a
purchaser’s equitable interest because a purchaser of
real property under an executory sales contract is not
entitled to absolute title to, or possession of, the prop-
erty until the delivery of the deed and payment, which
typically occur at closing.
I fully agree with the majority that the use of the
term ‘‘closing’’ throughout the buyout agreement and
the use of the term ‘‘sale’’ in the contingency clause
reflect a purposeful decision to distinguish the meaning
of these terms. I disagree, however, that this distinction
unambiguously evidences an intention inconsistent
with the defendant’s construction. Significantly, the
term ‘‘closing’’ is used in the contingency clause, as
well as other parts of the buyout agreement, to refer
to a specific event—the transfer of legal title to, and
ownership of, the plaintiff’s 50 percent interest in
Anwalt, LLC, to the defendant. In the contingency
clause, that closing is the event that commences the
period during which the defendant may be liable for
an addition to the purchase price (‘‘within one year
of the closing hereunder’’). By contrast, the ‘‘sale’’ or
‘‘transfer’’ of the defendant’s ownership to a ‘‘ ‘[n]on-
Wolczek [p]erson,’ ’’ which is defined in the contingency
clause of the parties’ buyout agreement as someone
other than the defendant or his immediate family mem-
ber or lineal descendant, is the event that could trigger
the defendant’s liability within that period. Therefore,
it is entirely plausible and rational that the parties could
have chosen different terms simply to distinguish
between two like events carrying different conse-
quences. Moreover, by referring to a sale instead of a
closing, the agreement makes clear that the defendant
cannot avoid liability by transferring title without a
formal closing.
Finally, I note that the contingency clause also pro-
vides that the defendant ‘‘shall pay . . . [the] addi-
tional purchase price . . . at the same time as the
transfer.’’ The defendant construes this provision as
requiring payment of the contingency sum when he
transfers legal title to the property. By contrast, the
plaintiff’s interpretation imposes liability at the time
that a purchase and sale agreement is executed, under
the assumption that an equitable interest is transferred
at that time under the doctrine of equitable conversion.
Under settled law, however, that doctrine does not nec-
essarily arise upon execution of such an agreement. If a
sales contract includes conditions that must be satisfied
before title to the property can be transferred to the
purchaser, the doctrine generally does not apply until
those conditions have been satisfied. See Francini v.
Farmington, 557 F. Supp. 151, 155 (D. Conn. 1982); 14
Powell on Real Property, supra, § 81.03 [1], pp. 81-85
through 81-86. Therefore, the transfer of an equitable
interest, assuming application of the doctrine should
apply, may occur at some point well after the execution
of the sales agreement. Because the defendant’s inter-
pretation links liability to a specific event whereas the
plaintiff’s interpretation links liability to the particular
terms of the purchase agreement and the parties’ satis-
faction of conditions therein, the defendant’s construc-
tion not only is eminently reasonable but more
consistent with a definite meaning that we presume
is intended by sophisticated commercial parties. See
Tallmadge Bros., Inc. v. Iroquois Gas Transmission
System, L.P., supra, 252 Conn. 496–97.
In addition to the aforementioned textual ambigu-
ities, potential inequities arising under the plaintiff’s
construction but not the defendant’s lend support to
the latter’s view of the clause. The contingency clause
renders the defendant liable when the whole value of
a sale within the specified period exceeds $3.5 million,
the presumptive value of the property under the buyout
agreement. Under the defendant’s construction, his lia-
bility would be assessed upon the transfer of title at
closing, a point at which the purchase price paid in
exchange for title presumably would reflect the proper-
ty’s fair market value. The plaintiff has conceded that
under his construction, the defendant would be liable
even if the sale never came to fruition, an onerous and
unusual result. Although the plaintiff assumes that such
a result would be warranted because the price in the
purchase and sale agreement would reflect the fair mar-
ket value of the property, that assumption will not
always hold true. For example, an event subsequent to
the execution of the sales agreement could reveal that
the fair market value is substantially less than the stated
purchase price (i.e., environmental contamination
revealed upon inspection), causing the purchaser to
renounce the sales agreement. Nonetheless, under the
plaintiff’s construction, the defendant still would be
liable under the contingency clause to pay a percentage
of the purchase price. One has to question whether a
commercially sophisticated party would agree to
assume such a risk.5 Moreover, such a result seems in
tension with case law indicating that equitable conver-
sion does not arise by operation of law in every case,
but rather in light of the equities in the given case. See
FCM Group, Inc. v. Miller, 300 Conn. 774, 798–99, 17
A.3d 40 (2011) (noting ‘‘limited circumstances’’ in which
‘‘a person who enters into a contract to purchase real
property and is authorized by the seller or purchase
agreement to make improvements to the property
before the closing date, may, before legal title passes,
acquire an equitable interest in the property sufficient
to be considered an owner for purposes of . . . the
mechanic’s lien statute’’ [internal quotation marks omit-
ted]); Anderson v. Yaworski, supra, 120 Conn. 393
(declining to apply doctrine under facts of case because
result would be inequitable); see also R. Boyer, Survey
of the Law of Property (3d Ed. 1981) p. 373 (equitable
conversion ‘‘is limited in its application to cases where
the intention of the parties [to the sales contract] will
not produce an inequitable result, and where nothing
has intervened which ought to prevent a perfor-
mance’’).6 The possibility of such an inequitable result
under the plaintiff’s construction lends further support
to a conclusion that the contingency clause is
ambiguous.7
It may well be that, after considering all of the evi-
dence in the present case, including extrinsic evidence
that the defendant contends proves that the parties
intended for the contingency to apply upon the transfer
of title at closing, the trial court will conclude that
the parties intended for ‘‘any ownership interest’’ to
encompass an equitable interest arising under equitable
conversion. Because, however, the contingency clause
is ambiguous as to whether that phrase means legal
title to any percentage interest in the property or also
equitable interests of any percentage, a trial is necessary
to hear all relevant evidence as to the parties’ intent. I
therefore disagree that the Appellate Court properly
affirmed the trial court’s summary judgment rendered
in the plaintiff’s favor, and, accordingly, I respectfully
dissent.
1
Where applicable, ‘‘[u]nder the doctrine of equitable conversion . . .
the purchaser of land under an executory contract is regarded as the owner,
subject to the vendor’s lien for the unpaid purchase price, and the vendor
holds the legal title in trust for the purchaser. . . . The vendor’s interest
thereafter in equity is in the unpaid purchase price, and is treated as person-
alty . . . while the purchaser’s interest is in the land and is treated as
realty.’’ (Citations omitted; internal quotation marks omitted.) Francis T.
Zappone Co. v. Mark, 197 Conn. 264, 267, 497 A.2d 32 (1985).
2
I agree with the plaintiff and the majority that the defendant’s interpreta-
tion of the contingency clause as a profit sharing provision cannot be sus-
tained in light of the language and structure of the buyout agreement. I
disagree, however, that the purpose of the clause as providing a mechanism
to adjust for the fair market value is dispositive of the question before us.
3
See also Black’s Law Dictionary (8th Ed. 2004) (‘‘The bundle of rights
allowing one to use, manage, and enjoy property, including the right to
convey it to others. . . . Ownership implies the right to possess a thing,
regardless of any actual or constructive control.’’).
4
Webster’s Third New International Dictionary (2002) contains similar
definitions of ‘‘transfer’’ to the one cited by the Appellate Court in Ray
Weiner, LLC v. Bridgeport, supra, 150 Conn. App. 286 n.7, which include
‘‘to make over or negotiate the possession or control of (a right, title, or
property) by a legal process [usually] for a consideration: convey’’ and ‘‘the
conveyance of right, title or interest in either real or personal property . . .
by sale gift or other process.’’
5
I recognize the possibility that, even if equitable conversion was assumed
to apply, the defendant might avoid payment under such circumstances by
asserting an equitable defense or claim, such as unjust enrichment. Nonethe-
less, the necessity of resort to such procedures in order to obtain a just
result would seem to weigh in favor of the defendant’s ambiguity claim.
6
Francis T. Zappone Co. v. Mark, 197 Conn. 264, 497 A.2d 32 (1985), and
its progeny, on which the plaintiff and the majority rely, are distinguishable.
In Francis T. Zappone Co., this court affirmed the trial court’s judgment
determining that the plaintiff real estate broker was entitled to recover on
a promissory note executed to secure a real estate commission under a
listing agreement, despite the fact that no transfer of title to the property
occurred due to the purchasers’ failure to render full performance many
months after taking possession of the property and making payments to
the seller. Id., 267–69. The trial court had rendered judgment after a trial
to the court, not on the basis of a motion for summary judgment. Id., 266.
The court applied case law establishing that, absent fraud or other improper
practice on the part of the real estate broker, a commission is fully earned
once the buyer and the seller execute a binding agreement. Id., 267–68; see
also Black’s Law Dictionary (6th Ed. 1990) (noting specific meaning of ‘‘sale’’
in context of relationship between landowner and real estate broker mean
procuring ready, willing and able purchaser). The court cited the evidence
in the record that established the plaintiff’s entitlement to the commission
under that principle. Francis T. Zappone Co. v. Mark, supra, 268. The court
then rejected the seller’s argument that the broker was not entitled to a
commission because the listing agreement stated that the commission was
due ‘‘ ‘upon the sale, exchange or transfer, or upon the exercise of any
option to purchase,’ ’’ and, according to the seller, these conditions were
not satisfied when there had been no transfer of legal title. Id. Although
this court relied on the doctrine of equitable conversion in rejecting that
claim, it did so in the face of: (1) a legal presumption that the broker was
entitled to the commission upon execution of a binding sales agreement;
and (2) terms in a listing agreement covering a broader range of conduct
(sale, exchange, transfer, or exercise of option) than the language in the
contingency clause in the present case. Id.
7
The majority’s view that the defendant’s interpretation also could yield
an inequitable result because the defendant could intentionally delay the
closing to avoid application of the contingency clause is belied by the facts
in this case. The plaintiff asserted several counts in his amended complaint
premised on precisely such allegations (breach of fiduciary duty, breach of
implied covenant of good faith and fair dealing, unjust enrichment), but he
chose to withdraw these counts to pursue the present appeal on the breach
of contract issue. Thus, the plaintiff had alternative legal theories that he
could have pursued to obtain relief even if he did not prevail on the breach
of contract claim at trial.