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Young v. Fellows

Connecticut Superior Court, Judicial District of Fairfield at Bridgeport
Sep 24, 2004
2004 Ct. Sup. 14761 (Conn. Super. Ct. 2004)

Opinion

No. CV 04 0409091 S

September 24, 2004


MEMORANDUM OF DECISION ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT


STATEMENT OF THE CASE

The plaintiff, Ralph Young, brought this foreclosure action to foreclose a mortgage on property owned by the defendant Kathleen Fellows. In the complaint, the plaintiff alleges that on September 16, 1985, William Fellows, Kathleen's husband, executed a note promising to pay the plaintiff the sum of twenty-five thousand dollars. To secure the note, William Fellows executed a mortgage deed on the subject property in favor of the plaintiff. The property at that time was owned by William Fellows. The mortgage deed has a "due on sale clause" that provides that "in the event of a refinance . . . or sale of this property, the mortgage will be paid off." There is no dispute that on or about January 26, 1999, William Fellows executed a quitclaim deed conveying the property to Kathleen Fellows for "one dollar and other good and valuable consideration."

The note provided that "[t]his sum is due and payable upon the sale of the premises described in the mortgage . . ."

The plaintiff's position is that the transfer of title by William Fellows to his wife constituted a sale of the property under the terms of the note and mortgage, and as a result, William Fellows is required to pay the total amount owed. The plaintiff, therefore, has exercised his right to accelerate the entire balance due on the note.

Pending before the court are cross motions for summary judgment filed by the parties. The defendants did not file a memorandum of law in support of their motion for summary judgment, but did submit the affidavit of William Fellows along with copies of the mortgage deed and quitclaim deed. The plaintiff filed a motion for summary judgment as to liability only. In support of his motion and in opposition to the defendants' motion, the plaintiff filed a memorandum of law, the affidavit of Ralph Young, and copies of the note, the mortgage and the quitclaim deed.

DISCUSSION

Practice Book § 17-49 "provides that summary judgment 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 deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004).

"[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . 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 . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002).

The defendants did not file a memorandum of law in support of their motion for summary judgment, but did state on the face of the motion that the ground for summary judgment is that William Fellows' transfer of the property to his wife did not constitute a sale in either a legal or practical sense. The defendants request the court to take "judicial notice" that the phrase "for $1.00 and other good and valuable consideration" is a legal term of art that laymen understand to mean "free."

Practice Book § 11-10 provides that "[a] memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with . . . (e) motions for summary judgment. The use of the word `shall,' rather than `may,' in the phrase `shall be filed and served' indicates that this provision is mandatory, rather than permissive . . . The requirement of simultaneously filing and serving a supporting memorandum of law with the motion, therefore, is not merely directory, but must be followed where a seasonable objection to the failure of the movant to comply with the rule is raised by the opposing party. The trial court cannot waive this requirement over objection of the opposing party because the memorandum of law is directed to the opposing party as well as to the court." (Citation omitted; internal quotation marks omitted.) Executive Rental Leasing, Inc. v. Gershuny Agency, Inc., 36 Conn.Sup. 567, 568-69, 420 A.2d 1171 (1980). The plaintiff did not object to the defendants' failure to file a memorandum of law. Additionally, both parties filed motions for summary judgment and their submissions establish the existence of disputed, material facts precluding summary disposition. Therefore, the court has decided to reach the merits of the motions.

In opposition, the plaintiff argues that any consideration, no matter how slight, will bind a contract. The plaintiff further argues that the language of the mortgage note and the quitclaim deed are clear and unambiguous, and must be given effect according to their terms. The plaintiff contends that the defendants' argument that the transfer was not a sale for "valuable consideration" is an attempt to introduce evidence that would vary the terms of the quitclaim deed in violation of the parole evidence rule.

"A mortgage contract is a contract and [as] such is governed by contract law." Murphy v. Chase Mortgage Company, Superior Court, judicial district of New Haven, Docket No. CV 01-0450257 (Sep. 16, 2002, Arnold, J.). "Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly." (Internal quotation marks omitted.) Connecticut Housing Finance Authority v. John Fitch Court Associates Ltd. Partnership, 49 Conn.App. 142, 149, 713 A.2d 900, cert. denied, 247 Conn. 908, 719 A.2d 901 (1998).

"[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 circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its term . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous . . . By contrast, language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion." (Citations omitted; internal quotation marks omitted.) Poole v. Waterbury, 266 Conn. 68, 87-88, 831 A.2d 211 (2003). "When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract . . . Extrinsic evidence is always admissible, however, to explain an ambiguity appearing in the instrument." (Citation omitted; internal quotation marks omitted.) Id., 89.

The language used in the note and the mortgage is clear. Both documents provide that the sum due to the plaintiff must be paid in the event of a sale of the property. Black's Law Dictionary defines a sale as "[a] contract between two parties, called, respectively, the `seller' (or vendor) and the `buyer' (or purchaser), by which the former, in consideration of the payment or promise of payment of a certain price in money, transfers to the latter the title and the possession of property. Transfer of property for consideration either in money or its equivalent. Passing of title from seller to buyer for a price." Black's Law Dictionary (5th Ed. 1979). A sale of property means more than a mere conveyance of the property. "A sale of property is a transfer of the absolute title therein for a price . . . On the other hand, to convey real estate means simply to transfer the legal title to it from the present owner to another [by an appropriate instrument]." (Citation omitted; emphasis in original; internal quotation marks omitted.) Timber Trails Associates v. New Fairfield, 226 Conn. 407, 414, 627 A.2d 932 (1993). The term "sale" thus conveys a clear and definite meaning which is easily found in any law dictionary, to wit, to transfer the property for a sum of money or its equivalent.

On the other hand, the language used in the quitclaim deed to describe the consideration given for the sale is unclear and does not have a definite and precise meaning. According to the deed, William Fellows transferred the property to his wife for "$1.00 and other good and valuable consideration." This legal term of art is inherently and intrinsically ambiguous. The phrase is used by attorneys to mean many things. The phrase may mean that no real consideration was given, that the consideration was nominal, or that the consideration was substantial but was not disclosed. Since this phrase of the quitclaim deed is unclear, extrinsic or parol evidence may be introduced to explain the ambiguity.

William Fellows has filed an affidavit wherein he states: "When I transferred my interest in [the] property . . . to my wife . . . though that deed recited that I did so for $1.00, I did not actually receive any compensation. This transfer was to my spouse for no consideration and done to insulate the land from any personal liability that might have arisen as to me in connection with a legal dispute in New Jersey entirely unrelated to this land or this action." In addition, the face of the quitclaim deed also reflects a stamp of the town clerk noting that no city or state conveyance tax was collected, which further suggests that no consideration was given. On the other hand, the plaintiff relies on the express language of the deed itself which states that "valuable consideration" was given for the conveyance. The town clerk's tax stamp and William Fellow's affidavit, when contrasted with the language used in the quit claim deed, present a genuine issue of material fact concerning the nature of the conveyance between the defendants.

In the affidavit, William Fellows also reaffirms his obligations under the note and the mortgage.

Contrary to the defendants' position, the court cannot take "judicial notice" of any proposition that the phrase for "one dollar and other good and valuable consideration" is a legal term of art that invariably means "no consideration." Such a meaning is not so well-established or notorious to be a proper subject of judicial notice. At the same time, however, the court rejects the plaintiff's position that this language is so clear and unambiguous that it must be accepted at face value to establish the existence of consideration. As previously explained, this phrase may be used in varying circumstances and its meaning therefore is not plain on its face.

In summary, a factual dispute exists as to whether the transfer of the property between the defendants was a "sale" under the mortgage contract or whether the transfer was a conveyance for no consideration. Therefore, the motions for summary judgment filed by the parties are both denied because there is a genuine issue of this material fact and, as such, neither party has demonstrated an entitlement to judgment as a matter of law.

STEVENS, J.


Summaries of

Young v. Fellows

Connecticut Superior Court, Judicial District of Fairfield at Bridgeport
Sep 24, 2004
2004 Ct. Sup. 14761 (Conn. Super. Ct. 2004)
Case details for

Young v. Fellows

Case Details

Full title:RALPH YOUNG v. KATHLEEN FELLOWS ET AL

Court:Connecticut Superior Court, Judicial District of Fairfield at Bridgeport

Date published: Sep 24, 2004

Citations

2004 Ct. Sup. 14761 (Conn. Super. Ct. 2004)
37 CLR 918

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