Opinion
FSTCV186034686S
03-12-2019
Charles PARKHURST v. Carol VAUGHN
UNPUBLISHED OPINION
POVODATOR, JTR
Nature of the Proceeding
The essential facts are not in material dispute. Relying primarily on the defendant’s submission, the facts may be summarized as follows.
The defendant is the owner of the real property at the center of this dispute, located in Norwalk, Connecticut. She occupies the subject premises as her primary residence, along with her husband.
On or about October 3, 2017, the defendant entered into an auction marketing agreement with Concierge Auctions CT, LLC. She entered into the auction agreement after extensive discussions among herself, her husband and Concierge Vice President Frank Maturano. During these discussions, the Vaughns explained to Maturano that the premises had been on and off the market over the previous several years with a listing price in the $ 5-6 million range and their final objective was to have it sell in the mid-$ 4 million range.
According to the defendant, Maturano agreed that the Vaughns’ price was reasonable and is claimed to have expressed confidence that a Concierge auction would yield that price if not a substantially higher price. During these discussions Maturano and the Vaughns discussed having the auction go forward with a reserve to protect the Vaughns but Maturano allegedly argued against any reserve, stating that reserve prices act as ceilings and lead to failed auctions.
The night before the scheduled auction the defendant’s husband met with Maturano for dinner where he expressed concern about the Concierge bid sheet which only disclosed an opening $ 3, 000, 000 bid from Charles Parkhurst and one other bid of $ 2, 500, 000. At that time, Michael Vaughn claims that he stated that, based on the bid sheet and the conversations with Maturano, he wanted to cancel the auction. Maturano reportedly stated that the plaintiff had designated a proxy that could bid up to $ 4, 500, 000. Maturano reportedly further assured Michael Vaughn that the other bidder was a group of private investors and the principal investor was in love with the house as he wanted a beach house close to New York City. Maturano also reportedly explained how these two bidders would drive a bidding war which would yield a much higher than expected price, and he also reportedly referenced a potential third bidder who was an executive at JP Morgan which could lead to a surprisingly high final bid. Finally, Maturano reportedly explained that based on industry standards the correlation between the known opening bids and the expected final bid would yield a price in the mid-$ 4 million range or higher.
Based on Maturano’s reported representations about the outcome of a bidding war, the bidders’ price limits and the mathematical correlation between the opening bids and the final bid, the Vaughns allowed the auction to proceed.
The auction on the property went forward on November 15, 2017 and the high bid was the opening bid of the plaintiff at $ 3, 000, 000.
Immediately after the auction, the defendant attempted to revoke authority to consummate the transaction and attempted to withdraw her signature on the blank Fairfield County Bar Association Residential Real Estate Sales Agreement (what the defendant characterizes as the "Unauthorized Agreement") which she had executed in advance of the auction at the instruction of Concierge. Despite this attempted revocation and withdrawal, Concierge allowed the so-called Unauthorized Agreement to be executed by the plaintiff.
On something of a parallel track, in August 2017, People’s United Bank, N.A. commenced a foreclosure action against the Vaughns seeking to foreclose on the subject premises as a result of the Vaughn’s failure to make payment when due pursuant to the terms of a note and mortgage. The foreclosure complaint further alleges that there is a second mortgage executed by the Vaughns in favor of RBS Citizens, N.A. The claimed payoff on the first mortgage is $ 3, 152, 992.72 plus fees and costs. The claimed payoff on the second mortgage is $ 510, 797.42 plus fees and costs.
The referenced foreclosure action remains pending (and the court notes that the second mortgagee recently commenced a foreclosure action with respect to the second mortgage). The foreclosure action was commenced prior to the defendant executing the auction agreement.
The so-called Unauthorized Agreement contains language whereby the plaintiff represented that he had already completed all investigations of the premises, including but not limited to title. As a result, the defendant claims that the plaintiff knew, or is charged with knowledge, that the premises was the subject of the initial foreclosure action, that it had two mortgages that were in default and that the face amounts of those mortgages greatly exceeded his opening bid.
Based on the foregoing, the defendant contends that she’s entitled to summary judgment in her favor on two alternate bases. First, she relies on the doctrine of impossibility with respect to the plaintiff’s claim for specific performance— based on the circumstances, it would be impossible for her to provide the plaintiff, as buyer, with a clear title, as required under the so-called unauthorized agreement. Further, in the alternative, the defendant relies upon a provision that provides that in the event that the defendant is unable to provide clear title, and after expiration of a period of time in which she was given an opportunity to cure, the plaintiff’s options were to accept the title that the defendant was able to deliver, or cancel the obligation to deliver clear title.
Not surprisingly, the plaintiff disagrees with both prongs of the defendant’s arguments. Aside from challenging the admissibility of proffered evidence relating to what was said by the auctioneer (and pointing out certain conflicts between the defendant’s affidavit and her deposition testimony, particularly relating to her deposition denial of having had any personal discussions with the auctioneer), the defendant focuses on a number of aspects of the auction agreement.
The plaintiff emphasizes certain provisions in the auction agreement. The defendant agreed that the property would be sold without reserve, which obligated the defendant to "sell the property to the highest bidder, regardless of price." The agreement indicated that the auctioneer expected to receive pre-auction bids in the range of $ 1.5 million to $ 3 million but with a disclaimer as to any promises or guarantees about the ultimate outcome of the auction.
The agreement also provided that a 10 percent credit would be provided to the winning bidder if the winning bidder had submitted a pre-auction bid, which in fact was the case. The defendant had a right, under the agreement, to cancel the auction until noon on the day of the auction— which was not done. The defendant promised that she would execute a purchase and sale contract in favor of the highest bidder, after the cancellation deadline but prior to commencement of the auction, which apparently was done. This included an authorization to the auctioneer to complete the purchase and sale agreement by adding the purchaser’s name, purchase price and other pertinent details, after the auction had occurred.
With respect to the state of title, the agreement obligated the defendant to disclose any title defects or liens and obligated her to remove any liens not previously disclosed to the auctioneer (on the agreement form). The defendant failed to identify any such liens/mortgages on the agreement in the indicated space. Specifically, she failed to identify the first and second mortgage notes/liens that she now claims constitute the impossibility/impracticability of performance. In other words, while it is not clear that if she had disclosed those mortgages she would not have been obligated to clear them as part of her obligation to deliver good title, the failure to disclose those mortgages precludes any possible claim that she was entitled to deliver a deed subject to those mortgages.
Discussion
The generally-applicable standards for summary judgment are sufficiently well-established that they do not need to be recited in detail. See, e.g., Windsor Federal Savings & Loan Ass’n v. Reliable Mechanical Contractors, LLC, 175 Conn.App. 651, 658-59 (2017). At its most basic or simplified level, summary judgment may be granted if the moving party can establish "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." (Internal quotation marks and citation, omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015). Another simplified but helpful formulation— also from Ferri — is that the moving party has the burden of establishing "what the truth is," id.
I. Motion to Strike Affidavits
At the outset, the court must address a threshold issue— the plaintiff contends that substantial portions of the affidavits submitted in support of the motion for summary judgment should be stricken.
The court will start with its "stock" response to such a contention. With some regularity, the court is faced with allegations in affidavits (or deposition excerpts) that, for varying reasons, are or are likely to be inadmissible. The court routinely disregards or discounts (as appropriate) such allegations. For example, and not apparently noted by the plaintiff, ¶ 2 of each of the affidavits notes that some of the assertions in the affidavit may be based on "information and belief" rather than personal knowledge. While "upon information and belief" may be an appropriate "hedge" in a complaint or similar pleading (and on multiple occasions, the court has been faced with the contention that such allegations, themselves, are legally insufficient), they have no place in an affidavit which, essentially by definition, is supposed to be based upon personal knowledge. See, Practice Book § 17-46.
The plaintiff is correct in stating that many of the challenged factual assertions appear to be hearsay in nature. However, the court perceives them as being offered for purposes related to mental state— why the defendant made the choices she made (largely through her husband) including the decision to sell by way of auction, the decision to have no reserve, and the decision not to cancel the auction notwithstanding the apparent "low" pre-auction bids that had been received. From that perspective, the issue is not whether the statements are impermissible hearsay, but rather whether intent and mental state play any role in assessing applicability of impossibility/impracticability as a defense to contract enforcement. As discussed below, the issue is not why the defendant made certain decisions, but rather that she made the decisions that put her in her current predicament, that bars applicability of impossibility/impracticability as a defense, particularly to the extent that it is being claimed to be applicable as a matter of law.
Accordingly, the court declines to take any "formal" action with respect to striking portions of the affidavit, except to note that the defendant has failed to explain why her "bad" decisions and the reason she made them have any bearing on the applicability of impossibility/impracticability as a defense to contract enforcement (specific performance).
II. Impossibility
The plaintiff is claiming a right to specific performance of an obligation of the defendant to deliver clear marketable title to the subject property. Trying to redefine the issue in a manner that fits the paradigm of impossibility, the defendant frames the issue as whether the court can compel the first and second mortgagee to deliver releases of their mortgages/liens for less than the full amounts outstanding. ("[T]he requested relief is impossible as it would require the non-party holders of the First Mortgage and Second Mortgage to release their mortgage[s] for less than full consideration.") Quite simply, the requested relief is not impossible, especially in a vacuum, as the mortgagees can be compelled to release their liens, if full payment were to be made by the defendant (and her husband). See, General Statutes § § 49-8 and 49-8a. In effect, the defendant is attempting to shift the focus from her (and her husband’s) ability/obligation to pay off the loans underlying these mortgages/liens to the entities who loaned her/them the money in the first place.
The nature of the claimed impossibility/impracticability must be kept front and center: The cumulative indebtedness on the first and second mortgages is in excess of $ 3.5 million, and with various transactional costs and unknown fees, might approach $ 4 million. The defendant contends that that must be compared with the $ 3 million bid of the plaintiff, which due to a credit set forth in the auction terms, would result in a $ 2.7 million effective sale price to plaintiff, leaving a discrepancy of approximately $ 1 million between sale proceeds and aggregate payoff. The defendant claims that it would be impossible for her— even with her husband— to make up the discrepancy. The court notes that a conclusory statement that the defendant and her husband cannot afford to pay the full indebtedness (above the auction sale price) is not entitled to consideration as establishing that assertion as a factual matter for purposes of summary judgment, especially given its self-serving quality. There are no underlying facts to establish the highly subjective assertion that the defendant cannot afford to pay off the mortgages— no information as to assets such as investment accounts, bank accounts, retirement accounts, etc. A preference not to invade such assets is not the equivalent of an impossibility of utilizing such assets to pay off already-existing indebtedness.
As a matter of contract law, and focusing on the ability to protect herself from adverse events, the defendant had the option of a market sale, albeit at a lower asking price than had been the case with previous attempts to sell the property (at a much higher price than the claimed target for this auction sale). She claimed to be targeting mid-$ 4 million as an auction price, but apparently had never offered the property for sale in that range. Another option was to have established a reserve or minimum price— which was deemed to be potentially disadvantageous to maximizing the results at auction and therefore rejected. The defendant also could have cancelled the auction based on the limited pre-auction bids that had been submitted, but again, that was a strategy that the defendant chose to reject.
The court notes that the defendant’s husband’s affidavit seemingly contradictorily states that he was aware of the "low" initial bid submitted pre-auction (¶ 12) but also claims not to have been aware of that low opening bid (¶ 21)— which was that same bid.
Conversely, the plaintiff submitted a bid based on the ground-rules that had been established by the defendant with the assistance of the auctioneer. He submitted his bid without any input into safeguards or limitations, if any, that the defendant might have thought prudent. In other words, the conditions of the auction were established unilaterally by the defendant (with the assistance of the auctioneer) with no input from any potential bidder (such as the plaintiff). With 20-20 hindsight, the defendant now seeks to undo the consequences of her decisions, decisions made in what now appears to have been a misguided attempt to maximize the price received for sale of the subject property.
As will be discussed below; impossibility/impracticability is a general defense or avoidance of a contractual obligation, but the defendant has chosen to focus on the limited number of cases applying the defense to matters in which a party had sought specific performance.
The defendant initially cites J.E.M., Inc. v. Meriden Economic Resources Group, Inc., No. NNICV 990269962S, 2007 WL 4634038 (Conn.Super.Ct. Dec. 6, 2007) for the unremarkable proposition that a request for specific performance is entrusted to the sound discretion of the court.
Somewhat more narrowly, the defendant then cites the case for the proposition that
the Court specifically held that in an action for specific performance on a real estate contract, a plaintiff cannot prevail on a claim for specific performance with specific performance would require a third party to release its mortgage for less than full value. "Thus, the earnest money contract cannot be enforced as written and specific performance is rendered impossible as it would require the court to order the city, a nonparty to the earnest money contract ... to release its mortgage on the property for less than a full value."
The internal quoted portion of the quoted passage from the defendant’s brief, appears to be a quote from footnote 56 in the decision. Footnote 56, however, undercuts the applicability of the quoted language (and defendant’s explanation) to the case at hand. First of all, the primary thrust of the court’s decision to that point had been that the plaintiff was not a ready, willing and able buyer such that specific performance could not be ordered in favor of the plaintiff. The footnote provided the court with an alternate/subordinate basis for reaching the same conclusion as to the unavailability of specific performance. In that footnote, the court explained that there had been an agreement whereby the holder of a $ 3.3 million mortgage had agreed to accept $ 2.5 million in satisfaction, but that the mortgage had then been assigned to the city which was not a party to any agreement obligating it to accept a discount on the face value. In that sense, there was an impossibility— the existing agreement was explicitly contingent upon the holder of the obligation accepting a discounted amount, but the then-holder was under no obligation (and inferentially unwilling) to accept less than face value. In a sense (if simplistically), there was an irreconcilable conflict between independent contractual obligations.
The defendant also cites and relies upon Liu v. C. Pierce Enterprises, LLC, No. CV 0210898, 2004 WL 113568 (Conn.Super.Ct. Jan. 5, 2004). In that case, the court relied upon the failure to comply with a condition precedent relating to construction, which appears to have been solely within the control of the plaintiffs who were described as having suddenly stopped making any payments towards construction work. The "impossibility" was associated with the inability of the defendants to honor their contractual responsibility until such time as the construction attained a certain status— again, under the control of the plaintiffs.
(The court notes that both of the foregoing cases were determinations on the merits. Therefore, even if the cases were not distinguishable as discussed above, the fact that a judge, in each case, made a determination as to the merits of the claim would shed little or no light on the claim of the defendant that she is entitled to judgment, as a matter of law.)
The defendant also relies upon Meyers v. Trinity College, No. CV 95 553687, 1995 WL 684815 (Conn.Super.Ct. Nov. 8, 1995) in which the court held that specific performance was not available, as a matter of law (motion to strike). However, impossibility was not the issue— as stated by the court in that decision, "[i]t is well established that courts generally do not order specific performance of personal service contracts." Therefore, the only value of this decision is that it reflects that in appropriate circumstances, courts can and will rule on the availability of specific performance as a matter of law, but otherwise it has little or no bearing on this case.
The court has reviewed Chapter 11 of the Restatement (Second) of Contracts, and particularly the introductory note and § 261.
Introductory Note: Contract liability is strict liability. It is an accepted maxim that pacta sunt servanda, contracts are to be kept. The obligor is therefore liable in damages for breach of contract even if he is without fault and even if circumstances have made the contract more burdensome or less desirable than he had anticipated. (As to the effect of hardship on equitable remedies, see § 364(b).) The obligor who does not wish to undertake so extensive an obligation may contract for a lesser one by using one of a variety of common clauses: he may agree only to use his "best efforts"; he may restrict his obligation to his output or requirements; he may reserve a right to cancel the contract; he may use a flexible pricing arrangement such as a "cost plus" term; he may insert a force majeure clause; or he may limit his damages for breach.
The basic premise is set forth in § 261:
Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.
A portion of the official comments is especially relevant:
e. "Subjective" and "objective" impracticability . It is sometimes said that the rule stated in this Section applies only when the performance itself is made impracticable, without regard to the particular party who is to perform. The difference has been described as that between "the thing cannot be done" and "I cannot do it," and the former has been characterized as "objective" and the latter as "subjective." This Section recognizes that if the performance remains practicable and it is merely beyond the party’s capacity to render it, he is ordinarily not discharged, but it does not use the terms "objective" and "subjective" to express this. Instead, the rationale is that a party generally assumes the risk of his own inability to perform his duty. Even if a party contracts to render a performance that depends on some act by a third party, he is not ordinarily discharged because of a failure by that party because this is also a risk that is commonly understood to be on the obligor. See Comment c . But see Comment a to § 262.
In the annotations, there are references to Connecticut appellate decisions consistent with the Restatement’s approach. One case in particular is especially instructive, reflecting adoption of much of what is set forth in the Restatement.
In Dills v. Town of Enfield, 210 Conn. 705, 557 A.2d 517 (1989), the inability (claimed impossibility) to obtain financing was not deemed to excuse performance by the plaintiff so as to require a return of a deposit. While not explicitly seeking specific performance, the plaintiff had been seeking a judicial determination that it was excused from performance of its obligation due to impossibility/impracticability, the rationale sought to be invoked to preclude specific performance in this matter.
The impracticability doctrine represents an exception to the accepted maxim of pacta sunt servanda, in recognition of the fact that certain conditions cannot be met because of unforeseen occurrences. A party claiming that a supervening event or contingency has prevented, and thus excused, a promised performance must demonstrate that: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not assumed a greater obligation than the law imposes. We discuss only the first two prongs of this test in disposing of the plaintiff’s argument.
Although courts in recent years have liberalized the requirements for such an excuse, only in the most exceptional circumstances have courts concluded that a duty is discharged because additional financial burdens make performance less practical than initially contemplated. Thus, the fact that preparing the construction plans would have cost Dills a great deal of money (more than the deposit he sought to recover) did not excuse him from submitting them as the contract provided.
Furthermore, the event upon which the obligor relies to excuse his performance cannot be an event that the parties foresaw at the time of the contract. We have previously held that [t]he regular enforcement of conditions is ... subject to the competing but equally well established principle that the occurrence of a condition may be excused in the event of impracticability if the occurrence of the condition is not a material part of the agreed exchange and forfeiture would otherwise result. Thus, the "central inquiry" is whether the nonoccurrence of the alleged impracticable condition was a basic assumption on which the contract was made.
In this case the contingency upon which fulfilling the contract allegedly depended was Dills’ obtaining the requisite financing. We cannot conclude, however, that Dills’ failure to obtain financing was an event the non-occurrence of which was a basic assumption on which the contract was made. Indeed, section 702(b) of the contract of sale demonstrates that the parties expressly contemplated that Dills might encounter financial difficulties. The contract allowed Dills to terminate for this reason after preparation of Construction Plans satisfactory to the Agency. If an event is foreseeable, a party who makes an unqualified promise to perform necessarily assumes an obligation to perform, even if the occurrence of the event makes performance impracticable.
This case, like virtually every case involving discharge from an obligation to perform, concerns the issue of which party bears the loss resulting from an event that renders performance by one party uneconomical. Determining whether the non-occurrence of a particular event was or was not a basic assumption involves a judgment as to which party assumed the risk of its occurrence ... In making such determinations, a court will look at all circumstances, including the terms of the contract. 2 Restatement (Second), Contracts, c. 11, introductory note. Since impossibility and related doctrines are devices for shifting risk in accordance with the parties’ presumed intentions, which are to minimize the costs of contract performance, one of which is the disutility created by risk, they have no place when the contract explicitly assigns a particular risk to one party or the other. Where, as in this case, sophisticated contracting parties have negotiated termination provisions, courts should be slow to invent additional ways to excuse performance. We exercise such caution in this case. (Internal quotation marks, footnotes and citation, omitted; emphasis as in cited case.) Dills v. Town of Enfield, 210 Conn. 705, 717-21, 557 A.2d 517, 523-25 (1989).
See, also, West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 313-15 (1986) (municipality could not rely upon impossibility when voters, via referendum, precluded compliance with contractual obligation, as the referendum constituted municipal involvement in creation or contribution to existence of impracticability).
Here, the defendant had the option of a market sale, albeit at a lower asking price than had been the case with previous attempts to sell the property (the property having been offered for sale at a much higher price than the claimed target for this auction sale). Another option was to have established a reserve or minimum price— which was deemed to be potentially limiting and therefore rejected. The defendant also could have cancelled the auction based on the limited pre-auction bids that had been submitted, but again, that was a strategy that the defendant chose to reject. The claim that the auctioneer had led them astray does not suffice for impossibility/ impracticability— the defendant chose to accept the rosy prognostications of the auctioneer, as a matter of self-interest.
Conversely, the plaintiff submitted a bid based on the ground-rules that had been established by the defendant with the assistance of the auctioneer. He submitted his bid without any input into safeguards or limitations, if any, that the defendant might have thought prudent. In effect, the defendant is arguing for a "heads I win, tails you lose" approach, whereby if the auction generated a high-enough price, the defendant would go through with the transaction, with the alternative that if the auction were to generate an insufficient price, and despite having eschewed any protective mechanisms, the defendant could claim impossibility/impracticability.
The court must (again) note that this is not a trial on the merits, but rather summary judgment. Therefore, the issue is not whether this court, or some other fact finder, might agree with the defendant; the issue is whether, based on the record currently before the court, the defendant is entitled to the relief sought as a matter of law, without the existence of any material issue of fact. Therefore, the court need not concern itself with whether, as a matter of law, a court might rule that the defendant cannot invoke impossibility/impracticability due to her participation in creating the "problem" about which she now complains. Rather, her involvement in creating the problem, coupled with the conclusory (and self-serving) statement that she and her husband cannot afford to make up the mortgage deficiency, leave open material issues of fact that cannot be resolved in her favor, at this time. At page 17 of the objection, the plaintiff identifies deposition testimony as to certain assets that the defendant and/or her husband own that might provide an ability to pay off the balance of the outstanding mortgages, were the net purchase price (after credit and expenses) to be applied towards paying off those obligations.
At page 17 of the objection, the plaintiff identifies deposition testimony as to certain assets that the defendant and/or her husband own that might provide an ability to pay off the balance of the outstanding mortgages, were the net purchase price (after credit and expenses) to be applied towards paying off those obligations.
Accordingly, the defendant has not established impossibility of performance as a means of avoiding the required performance of contractual obligations, as a matter of law.
III. Contractual Provision
In the alternative, the defendant invokes a provision in the contract whereby she claims that if there is an inability to deliver good title, after the expiration of a period for curing the problem, the plaintiff is faced with the choice of accepting whatever quality deed she can convey, or otherwise cancel the transaction.
If, upon the date for the delivery of the deed, the SELLER shall be unable to deliver or cause to be delivered a deed or deeds conveying marketable title to the Premises as hereinafter provided, subject only to the items set forth in Schedule A and Paragraph 10(e) hereof, then the SELLER shall be allowed a reasonable postponement of closing not to exceed thirty (30) calendar days, within which to perfect title. If at the end of said time the SELLER is still unable to deliver or cause to be delivered a deed or deed conveying a marketable title to said Premises, subject as aforesaid, the BUYER (i) may elect to accept such title as the SELLER can convey without modification of the purchase price, or (ii) may reject such title. Upon such rejection, all sums paid on account hereof, together with any nonrefundable expenses actually incurred by the BUYER in the aggregate not to exceed the cost of an A.L.T.A. Homeowner’s Policy (or equivalent thereof) based on the amount of the contract purchase price shall be paid to the BUYER without interest thereon. Upon receipt of such payment, this Agreement shall terminate and the parties hereto shall be released and discharged from all further claims and obligations hereunder.
The defendant appears to be stating that this provision authorizes her to keep the full proceeds of the auction sale and offer to deliver to the plaintiff a deed subject to the un-reduced mortgage debt reflected by the first and second mortgages. In effect, the defendant would be claiming that the plaintiff had agreed, by submitting a bid for $ 3 million, to pay almost $ 7 million in consideration for the property— $ 3 million in cash plus assumption of almost $ 4 million in liability. Absurd as this may sound, that is precisely what the defendant has argued at page 12 of her brief. "The Plaintiff’s first option was to accept such title as the Defendant could have conveyed without a modification of the purchase price. In the present matter, this would mean that the Plaintiff would pay the $ 3 million purchase price and take title subject to the First Mortgage and Second Mortgage. Plaintiff’s second option would be to reject title." As may be inferred, the court has great difficulty in accepting this as a rational interpretation/application of the provision quoted by the defendant.
It might make slightly more sense to claim that any proceeds would be required to be applied against mortgage indebtedness, such that the "net" additional consideration paid by the plaintiff would "only" be the outstanding balances on the mortgages after application of his payment, but again, that would convert a $ 3 million bid into aggregate consideration of almost $ 4 million. Such an interpretation might be less irrational, but the defendant has not argued that this is the proper interpretation (instead opting for the more extreme interpretation in the previous paragraph), and the court is limited to consideration of the issues as presented by the moving party; Greene v. Keating, 156 Conn.App. 854 (2015).
Claimed inability to provide good title, under this provision, would seem to bear a strong resemblance to impossibility/impracticability as discussed above. At what point would the discrepancy between aggregate indebtedness and the net amount of a bid become an "inability" to deliver good title? Clearly, simply by paying an amount in excess of the bid (an amount she already is obligated to pay to the lenders), the defendant could deliver good title. The defendant has not argued, much less convinced the court, that there is some bright-line demarcation separating possible and impossible, based on the discrepancy between bid and existing mortgage-based indebtedness.
Again, the court must return to the fact that it is dealing with summary judgment. The issue is not whether a court might agree with the defendant’s interpretation of this provision, but rather whether, as a matter of law, the court must agree, in effect determining that the provision is unambiguous in a manner favoring the defendant.
Conclusion
Impossibility/impracticability is a recognized defense to an attempt to enforce a contract, whether by way of specific performance or otherwise. Based on her involvement in creating the "problem" about which she now complains, it is not clear whether the defendant can avail herself of the defense of impossibility/impracticability. She has not established her entitlement to that defense, as a matter of law, both based on her participation in the creation of the condition about which she now complains, as well as the inadequacy of evidence of an "inability" to pay the mortgage indebtedness from the proceeds of the sale plus other assets available to her and her husband (a co-obligor on the mortgage notes).
The same situation applies with respect to the applicability of the contract provision cited and relied upon by the defendant. The defendant has not presented a convincing argument that the unambiguous meaning of the contract provision upon which she relies, supports her position. As noted by the court, it leads to an unreasonable/absurd result, a result that can be avoided by rejecting the defendant’s interpretation of the scope of applicability of that provision. "Our courts refuse to construe a contract’s language in such a way that it would lead to an absurd result." (Internal quotation marks and citation, omitted.) Konover v. Kolakowski, 186 Conn.App. 706, 716 (2018). The court does not believe that it is compelled, at this juncture, to accept the notion that a partially if not wholly self-created inability to pay off prior mortgages constitutes an "inability" to deliver clear title within the meaning of the quoted contract provision (particularly when the "inability" itself has not been established by any factual predicate), and given the existence of the provision cited by the plaintiff relating to the explicit obligation to cure any liens not disclosed in the auction agreement.
The court need not address the plaintiff’s contention that it would be inequitable if the court were not to enforce the obligation of the defendant to deliver clear title to the plaintiff. Such a determination would require the court to weigh and evaluate evidence, something that is beyond the scope of this motion. At most, if the court had concluded— which it has not— that the defendant has established a prima facie case for excusing performance, then the existence of such a factual issue might preclude granting summary judgment in favor of the defendant. Here, however, both legally and factually, the defendant has not established a prima facie case of entitlement to summary judgment, such that the existence of an equitable overlay need not be discussed or addressed.
For all these reasons, then, the motion for summary judgment is denied.