Opinion
No. DBD CV 08 5004429S
June 15, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #123, 125.25 126
The issue presented in this action to quiet title to property is whether a grantor who has not retained a right of reverter in property he has conveyed by deed to a named grantee, may sometime thereafter release a restriction in that deed and thereby extinguish an interest of a conditional beneficiary of the property.
PROCEDURAL HISTORY
On September 30, 2008, Connecticut Yankee Council, Inc., Boy Scouts of America (the plaintiff), a Connecticut nonstock corporation, filed a two-count amended complaint against the town of Ridgefield (the defendant). In count one, the plaintiff seeks to quiet title to forty-two acres of real property located in Ridgefield, Connecticut (the Pine Mountain property) pursuant to General Statutes § 47-31. The second count is brought pursuant to General Statutes § 47-33j and alleges slander of title. On October 30, 2008, the court, Reynolds, J., granted the attorney general's motion to intervene pursuant to General Statutes § 3-125.
General Statutes § 47-31(a) provides in relevant part: "An action may be brought by any person claiming title to . . . real . . . property . . . against any person who may claim to own the property . . . or to have any estate in it, either in fee . . . or in reversion or remainder . . . adverse to the plaintiff . . . for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property."
The following facts are not in dispute. On or about November 28, 1972, Jerry Tuccio (Tuccio), the owner of a parcel commonly known as the Pine Mountain property, in Ridgefield, transferred the property by warranty deed to the "Boy Scouts of America, Inc." This deed was recorded in the Ridgefield land records (the 1972 deed). This deed contained a restriction which provided, inter alia, that in the event the plaintiff failed to use the property for scouting purposes, the parcel "shall be conveyed by the Grantee to the Town of Ridgefield . . ." On July 15, 2002, Tuccio executed a document entitled "Release of Restriction" which, as construed by the plaintiff, irrevocably released and discharged the 1972 deed restriction that, in the event the property ceased to be used for scouting purposes, it was to be transferred to the defendant. Thereafter, Tuccio filed an amended deed in the Ridgefield land records (the 2002 deed) which reflected that change. On January 11, 2008, the defendant filed a notice of title claim in the Ridgefield land records.
The deed incorrectly identifies the name of the grantee. It is undisputed by the parties and acknowledged by the attorney general's brief that Connecticut Yankee Council, Inc., Boy Scouts of America has held the property since 1972 and is the grantee.
The 2002 deed included the following language: "[Meaning and intending to correct certain errors in the 11/28/72 deed], which, following the execution of this deed, shall be deemed superseded, in its entirety, by this deed. This deed is given and accepted subject to the following restriction: Should the Connecticut Yankee Council, Inc., Boy Scouts of America, or its successor(s), sell all or part(s) of the premises, the net proceeds of such sale or sales shall be placed by the Grantee, or its successor(s), in the endowment fund of the Connecticut Yankee Council, Inc., Boy Scouts of America, or its successor(s), in memory of [Meria Cassone Tuccio], the Grantor's mother, but no purchaser from the Grantee, or its successor(s), shall have any obligation to enforce the restriction contained in this paragraph, or to see to its performance by the Grantee, or its successor(s), and, upon the sale of all or part(s) of the premises, any land conveyed to a third party or third parties shall be automatically released from the restriction contained in this paragraph."
The notice of title restriction stated in relevant part: "The legal condition under which title was transferred in a certain deed from [Tuccio] to [the plaintiff] dated November 28, 1972 . . . created a shifting executory interest in favor of the [defendant] which cannot be defeated or extinguished by subsequent action of any kind on the part of the Grantor . . ."
On January 8, 2009, the plaintiff filed a motion for partial summary judgment as to the first count asserting that as a matter of law, and on the undisputed record, the 2002 deed executed pursuant to Connecticut Uniform Management of Institutional Funds Act, General Statutes § 45a-526 et seq., released any claim or interest the defendant may have retained in the property. The plaintiff filed a memorandum of law in support of summary judgment as well as exhibits, including the defendant's response to a request for admissions, the affidavit of Louis Salute, scout executive for the plaintiff, a copy of General Assembly proceedings pertaining to the Uniform Management of Institutional Funds Act, and a copy of the Act itself.
On March 3, 2009, the defendant filed a cross motion for summary judgment as to both counts, arguing that the 2002 deed is void and of no force and effect. The defendant also filed multiple exhibits. The defendant asks this court to find, inter alia, that the plaintiff accepted title to the property pursuant to the 1972 deed subject to a use restriction which compelled the plaintiff to transfer title to the defendant. The defendant additionally seeks dismissal of the plaintiff's claim of slander of title.
On March 6, 2009, the attorney general filed a motion for summary judgment as to the entire complaint on the ground that the pleadings and submitted proof show there is no genuine issue of fact that the 1972 deed controls the ownership interest in the Pine Mountain property and that the 2002 deed was premised on a mistake of law.
LEGAL DISCUSSION
"A court shall render summary judgment 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. Practice Book § 17-49." (Internal quotation marks omitted.) Blinkoff v. OG Industries, Inc., 113 Conn.App. 1, 7-8, 965 A.2d 556, cert. denied, 291 Conn. 913, 969 A.2d 175 (2009). "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 a 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." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).
The first issue the court must resolve is what, if any, interest did the defendant receive in the property by way of the 1972 deed. The defendant and the Attorney General argue that the 1972 deed created a final and perfected shifting executory interest in favor of the defendant. They maintain that Tuccio, having transferred his entire interest without the right of reverter, became a stranger to the chain of title and may not thereafter alter the ownership interest regarding a property he no longer retains any rights or interest in. The plaintiff argues that the defendant did not acquire a perfected interest under the original deed and argues that the 1972 deed served merely to place certain restrictions regarding the plaintiff's use and transfer of the property. The plaintiff argues that Tuccio's intent remains determinative, and any question regarding his intent was clarified by the 2002 deed. In the alternative, the plaintiff asserts that should the court find that the 1972 deed did convey an otherwise perfected and irrevocable conditional interest, CUMIFA permits the release of the restriction in the original deed notwithstanding the fact that such release extinguishes any conditional interest of the defendant.
The Connecticut Uniform Management of Institutional Funds Act (CUMIFA), General Statutes § 45a-526 et seq., was adopted in 1973. It is this statute on which the plaintiff relies in its argument regarding the effectiveness of the 2002 deed. Although CUMIFA was repealed in April 2008, at which time it was replaced by the Uniform Prudent Management of Institutional Funds Act (UPMIFA). Nonetheless, all parties agree that CUMIFA is controlling in this instance as the relevant action taken in the present case encompasses the 2002 execution of a "release of restriction" and the filing of a purportedly "amended deed," during which time CUMIFA was the governing statute.
"[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law . . ." (Internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 699, 923 A.2d 737 (2007). "[I]t is a well established principle that [i]n construing a deed, a court must consider the language and terms of the instrument as a whole . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties." (Internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 108, 742 A.2d 799 (2000). "The meaning and effect of the [language in the deed] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances." (Internal quotation marks omitted.) Arnold v. Hoffer, 94 Conn.App. 53, 57-58, 891 A.2d 63 (2006).
The 1972 deed included the following language in relevant part:
[Tuccio] do[es] give, grant, bargain, sell and confirm unto the said [plaintiff] . . . all that certain piece or parcel of land . . . [Pine Mountain property described] . . . The Grantee . . . agree[s] by acceptance of this Deed that the above described property shall be used for the purpose of a [b]oy [s]cout [c]amp and shall be known as the [Meria Cassone Tuccio Boy Scout Camp] . . . In the event the name of the parcel herein conveyed is changed or that the Boy Scouts of America, Inc. fail to use the property for scouting purposes, then in that event the parcel shall be conveyed by the Grantee to the Town of Ridgefield, State of Connecticut . . . for park or recreational purposes.
When interpreting a deed, a court is bound to consider the donor's express intent as set out in the language of the gift instrument and to ascertain the donor's intent at the time of the conveyance. Notably, in this instance the language employed unequivocally evinces Tuccio's intention to divest himself of all interest in the property. Furthermore, the purposeful use of the term "shall" in the 1972 deed is unambiguous in its directive that the plaintiff must convey the property to the defendant upon the happening of a specified condition, the discontinued use of the property for boy scouting purposes. The court therefore finds that the defendant, in 1972, received a cognitive and recognizable interest in the property in that the defendant received a conditional interest which could become an absolute fee simple interest at some later date.
To escape this fate, the plaintiff argues that the donor had a right to release the restrictions on the property and did so by way of the 2002 deed. The plaintiff urges the court to consider Tuccio's intent as expressed in the 2002 deed as controlling and advocates that this court invoke its equitable powers to quiet title in conformity therewith. To this end the plaintiff cites Metropolitan Museum of Art v. Bank of Boston Connecticut, Superior Court, judicial district of Hartford, Docket No. CV 96 0556598 (May 21, 1997, Aurigemma, J.) which holds that charitable trusts should be construed in a manner that preserves and upholds the trust and gives effect to the donor's express intent as set out in the language of the gift instrument. See Carl J. Herzog Foundation Inc. v. University of Bridgeport, 243 Conn. 1, 7, 699 A.2d 995 (1997) ("[a] donor who attaches conditions to his gift has a right to have his intention enforced"). The plaintiff argues that the 2002 deed serves to illuminate that Tuccio's primary intent was to benefit the scouting program, and only secondarily was he concerned with the actual use of the property itself.
The plaintiff, in essence, is arguing that the court should apply the 2002 release of restriction as evidence of the donor's intent some thirty years prior. What the plaintiff overlooks is the unambiguous precision with which the 1972 deed conveyed the grantor's interest in the property. As such, this court need not resort to an exercise of interpretive analysis as the language was clear and unequivocal in its transfer of rights. As previously noted, "when interpreting the language of a deed the question is not what the parties may have meant to say, but the meaning of what they actually did say." Stefanoni v. Duncan, supra, 92 Conn.App. 192.
The plaintiff alternatively argues that the Pine Mountain property is an "institutional fund" within the meaning of CUMIFA and relies on the statute for the validity of the release of restriction effectuated by the 2002 deed. The Attorney General argues that the plaintiff's ownership interest in the property does not constitute an institutional find within the meaning of CUMIFA, because the plaintiff's retention of its interest in the property remains conditioned on its use of the property for scouting purposes.
Our Supreme Court has noted that General Statutes § 45a-527(2) requires that in order to qualify as an institutional fund, a fund must first be held by an institution for its exclusive use, benefit or purposes. Yale University v. Blumenthal, 225 Conn. 32, 37, 621 A.2d 1304 (1993). General Statues (Rev. to 2002) § 45a-527(2). "[An institutional] fund can include real estate and other tangible property . . ." Smith Memorial Home v. Riddle, Superior Court, judicial district of New London, Docket No. CV 90 5145063 (October 23, 1990, Austin, J.) ( 2 Conn. L. Rptr. 797). "[T]he placing of a restriction on the use of a gift or bequest to an institution does not mean that the gift or bequest is not for the `exclusive use, benefit or purposes' of the institution, provided the appointed use is one that is within the institution's lawful purposes." (Citation omitted; internal quotation marks omitted.) Yale University v. Blumenthal, supra, 225 Conn. 37. The defendant's conditional interest in the Pine Mountain property does not render the plaintiff's use any less exclusive. The plaintiff's interest in the property is therefore within the confines of CUMIFA.
The plaintiff maintains that pursuant to CUMIFA, a restriction on a gift to a charitable institution may be removed by the donor. The plaintiff argues that it is incumbent upon the court to interpret the 2002 deed in which Tuccio eliminated the original restriction in a manner that will effectuate his intent. The plaintiff urges this court to use its equitable powers to sanction the removal of the restriction in order to lift the restriction in the 1972 deed to "honor the donor's intent." The defendant and the Attorney General maintain that the defendant's executory interest in the property cannot be divested by a release of restriction as the grantor reserved no reversionary interest that enabled him to affect title to interests in the property thereafter. The defendant disputes that CUMIFA permits the grantor to extinguish any interest the town of Ridgefield may have had to the property in question.
The plaintiff relies on General Statutes § 45a-533(a) to circumvent the terms of the 1972 deed. CUMIFA provides, inter alia: "With the written consent of the donor, the governing board may release, in whole or in part, a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund." General Statutes (Rev. to 2002) § 45a-533(a). CUMIFA further provides, in relevant part: "If the written consent of the donor cannot be obtained by reason of his . . . unavailability . . . the governing board may apply, in the name of the institution, to the superior court . . . for a release of a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund . . . If the court finds that the restriction is obsolete, inappropriate or impracticable, it may by order release the restriction . . ." § 45a-533(b).
Our Supreme Court had occasion to consider a similar issue in Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 1 (1997). "Where the donor has effectually passed out of himself all interest in the fund devoted to a charity, neither he nor those claiming under him have any standing in a court of equity as to its disposition and control." (Internal quotation marks omitted.) Id., 8. In reversing the Appellate Court, the Supreme Court emphasized the common law rule that a donor had no standing to enforce the terms of a completed charitable gift unless the donor had expressly reserved a property interest in the gift. Id., 9. The Herzog Court then turned to the question of whether CUMIFA empowered a grantor with rights superior to those allowed by way of common law. "On the basis of our careful review of the statute itself, its legislative history, the circumstances surrounding its enactment, the policy it was intended to implement, and similar common law principles governing the same subject matter, we conclude that CUMIFA does not establish a new class of litigants, namely donors, who can enforce an unreserved restriction in a completed charitable gift. Nothing in our review supports the conclusion that the legislature, in enacting CUMIFA, implicitly intended to confer standing on donors." Id., 16.
While the plaintiff asserts that under CUMIFA the donor may release, in whole or in part, a restriction imposed by the applicable gift instrument, it overlooks three critical aspects of the original deed. First, the deed as written and executed in 1972 unambiguously defined the parameters of the gift and the applicable restrictions thereto. It additionally delineated the circumstances for transfer if the property were to be otherwise used. "If the donor has seen fit to spell out restrictions, then those restrictions govern. [CUMIFA] steps in only in the event that he has not spelled out the restrictions." (Internal quotation marks omitted.) Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 26.
Secondly, there is no indication that the use requirement in the deed cannot be fulfilled. If the court finds that a restriction is obsolete, unworkable, inappropriate or impracticable, it may by order release the restriction in whole or in part. Yale University v. Blumenthal, supra, 225 Conn. 40 (permitting release from restriction that donated funds be used for treatment of sick poor when hospital no longer maintained separate facilities for the sick poor); Hartford Hospital v. Blumenthal, Superior Court, judicial district of Hartford, Docket No. CV 95 0555462 (April 15, 1996, Hale, J.) (applying CUMIFA cypres in finding the use restriction placed on funds donated specifically to the school of nursing was impracticable when the hospital no longer operated that school). Such is not the case in this instance.
Finally, and most significantly, the donor decisively gifted the property in its entirety without the right of reverter. CUMIFA does not grant a donor who lacks a reversionary interest in property the right, some thirty years later, to revisit the terms of the restrictions imposed in a completed gift. CUMIFA, consistent with the common law, does not permit a donor to change the beneficiary of the gift itself absent an express reservation of that right by the donor. The purpose of the release of restriction language in the statute is meant to permit a release of the limitations that imperil efficient administration of an institutional fund. There has been no showing that the administration of the property for park and recreational purposes has been so imperiled. Rather, by removing the valid gift over to the defendant in the 1972 deed, Tuccio, who had reserved for himself no interest in the property nor rights under the deed, attempted to change an eleemosynary beneficiary described in the original gift instrument. To permit this change by the grantor almost thirty years after the grant was executed would be inconsistent with both the common law and CUMIFA.
Insofar as the plaintiff asks the court "in equity" and "consistent with CUMIFA" to "lift the restriction," there has been no showing that the putative restriction is in any way "obsolete, inappropriate, or impracticable," as required by CUMIFA. Furthermore, in its memoranda, the plaintiff declined to seek relief pursuant to the equitable doctrines of cypres or deviation.
For the foregoing reasons, the court finds that the 2002 deed is null and void and of no force and effect.
SLANDER OF TITLE
"Slander of title is a tort whereby the plaintiffs' claim of title [to] land or other property is disparaged by a letter, caveat, mortgage, lien or some other written instrument . . . A cause of action for slander of title consists of any false communication which results in harm to interests of another having pecuniary value . . . In other words, slander of title is a falsehood published to third parties that is not withdrawn after a demand by the titleholder, which impugns the basic integrity or creditworthiness of an individual or a business . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007). "It has elsewhere been stated that [a] cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties. The publication must be false and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim. Elm Street Builders, Inc. v. Enterprise Park Condominium Ass'n., Inc., 63 Conn.App. 657, 669-70, 778 A.2d 237 (2001)." (Internal quotation marks omitted.) Lawless v. Derosa, Superior Court, judicial district of Danbury, Docket No. CV 075002260 (January 23, 2009, Shaban, J.).
The basis for the plaintiff's slander of title claim, pursuant to General Statutes § 47-33j is the notice of title restriction which the defendant filed in the land records which stated in relevant part: "The legal condition under which title was transferred in a certain deed from [Tuccio] to [the plaintiff] dated November 28, 1972 . . . created a shifting executory interest in favor of the [defendant] which cannot be defeated or extinguished by subsequent action of any kind on the part of [Tuccio]." Because this court has concluded that the defendant does have such an interest, the plaintiff cannot prove the falsity of the notice, which is a material element of maintaining a slander of title claim. Accordingly, the defendant has met its burden of showing that there are no genuine issues as to any material fact and that it is entitled to judgment as a matter of law as to this count.
General Statutes § 47-33j provides: "No person may use the privilege of recording notices under [§§ ]47-33f and 47-33g for the purpose of slandering the title to land. In any action brought for the purpose of quieting title to land, if the court finds that any person has recorded a claim for that purpose only, the court shall award the plaintiff all the costs of the action, including such attorneys fees as the court may allow to the plaintiff, and in addition, shall decree that the defendant asserting the claim shall pay to the plaintiff all damages the plaintiff may have sustained as the result of such notice of claim having been so recorded."
CONCLUSION
For the foregoing reasons the plaintiff's motion for partial summary judgment is denied. The defendant's cross motion for summary judgment on the plaintiff's complaint is granted. The Attorney General's cross motion for summary judgment on the plaintiff's complaint is granted. It is hereby ordered that the 2002 document entitled "Release of Restriction" is null and void and of no effect. The 1972 deed is controlling in determining the right title and interests of the parties.