Opinion
No. CV 03 0194133 S
August 16, 2004
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
BACKGROUND
This is an action brought by William Jones against his brother John P. Jones, Jr. for partition of two pieces of real property deeded to the two brothers as equal tenants in common by their parents and their aunt in 1988 and 1990. Title to both of the properties remains in the names of the plaintiff and the defendant as tenants in common. Each of them owns an undivided one-half interest in each property. The property at 7 Martin Street, Stamford, Connecticut consists of a single-family residence on a building lot plus an additional undeveloped building lot. The property at 56 George Street, Stamford, Connecticut consists of a single-family residence on a single lot. The complaint of William Jones alleges that the properties do not lend themselves to a physical partition and that the parties have been unable to agree as to the disposition of the properties, and seeks a judgment of partition by sale of the properties with a division of the proceeds in accordance with their respective rights in the properties. The defendant John P. Jones, who lives on the property at 7 Martin Street, denies the foregoing allegations and has filed a Request for Leave to Amend Answer dated November 19, 2003 by adding a Counterclaim asking for a partition (in kind) of the property and the appointment of a committee to view and to partition the property. No objection to the request for leave to amend answer having been filed within fifteen days, the counterclaim is deemed to have been filed by consent of the patties. Practice Book Section 10-60(6)(3).
The plaintiff William Jones is moving for summary judgment on his complaint. His counsel's Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment makes it clear that he is actually asking for a partial summary judgment that the premises should be partitioned, without at this point ordering that the partition should be a physical partition or a partition by sale with a division of the proceeds:
While further proceedings may be required to determine whether a partition in kind or a partition by sale should be ordered, the plaintiff has demonstrated absence of any genuine issue of material fact and is entitled to summary judgment.
Plaintiff's Memorandum. pp 4-5.
The relief sought in the concluding paragraph of plaintiff's motion for summary judgment dated November 6, 2003 is to the same effect:
WHEREFORE, the plaintiff respectfully requests that Summary Judgment enter in his favor against the defendant, John P. Jones, Jr., and that the Court order a hearing at the plaintiff's request for an order of petition (sic) by sale.
The Court therefore is treating this motion as a motion for partial summary judgment under Practice Book Section 17-51, seeking only a summary judgment that there should be a partition of the properties in some form, and leave for further consideration and adjudication the issue whether the partition should be a partition by sale as requested by the plaintiff or a physical partition as requested by the defendant.
DISCUSSION
Under § 52-495 of the Connecticut General Statutes this Court, as a Court of equity, may "upon the Complaint of any person interested" order partition of any real property held in tenancy is common. Under § 52-500 of the Connecticut General Statutes this Court may "upon the complaint of any person interested order the sale of any property, real or personal, owned by two or more persons when, in the opinion of the Court, a sale will better promote the interest of the owners."
It has been said that Connecticut General Statutes § 52-495 confers an absolute right of partition upon any person holding real property as a tenant in common with others. This right derives from the principle that no person can be compelled to remain the owner of real property with another. Delfino v. Vealencis, 181 Conn. 533, 436 A.2d 27 (1980). If the Court finds that a sale of the property would better promote the interests of the owners, the Court may order a sale under Connecticut General Statutes § 52-500. The law of Connecticut has long presumed that a partition in kind would be in the best interests of the owners, and the burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners' interests. Delfino supra, 181 Conn. at 538. A partition by sale should only be ordered when two conditions are satisfied: (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable, and (2) upon a comparison of the consequences of each type of partition, the interests of the owners would be better promoted by a partition of sale. Delfino supra, 181 Conn. at 533. In ordering a partition the Court must examine all relevant circumstances and balance the equities. Kakalik v. Bernardo, 184 Conn. 386, 439 A.2d 1016 (1981). Inequities which may result initially from a partition in kind can be adjusted by the Court ordering a party or parties to make a cash payment to another party or parties:
The Court ordered the payment of money from the defendants to the plaintiffs to preserve the action as one of partition in kind, rather than converting it into a partition by sale. That was, in the Court's conclusion, the best way to partition the properties among the respective parties and yet reach the desired outcome of the respective parties having the same total ownership values that they had prior to the partition action.
Kubish v. Zega, 61 Conn.App. 608, 620, 767 A.2d 148 (2001).
The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts and that he is entitled to judgment as a matter of law. D.H.R. Construction Co. v. Donnoly, 180 Conn. 430, 434, 429 A.2d 908 (1980). In this case the parties are in agreement and there is no genuine issue of material fact that the two properties in question are owned by the parties as tenants in common, each brother owning an undivided one-half interest in each parcel; that the parcels are not of equal value; that one party — the defendant — lives in the single-family house on one of the properties in question and the other party — the plaintiff — does not live at either property; and that some form of partition should be ordered. But, the moving and opposition papers fail to present sufficient facts about the nature of the properties and the consequences of a partition by sale as compared to the consequences of a partition in kind for the Court to conclude that a partition by sale would best promote the interests of the parties. Under these circumstances, the plaintiff as the moving party would have failed to meet his burden of showing entitlement to summary judgment of partition by sale as a matter of law. O'Connor v. Higgins, 1996 WL 571458 (Koletsky, J., 1996); Butler Properties v. Butler, 2002 WL 237415 (Gilardi, J., 2002). The mere assertion in a conclusory fashion that the properties cannot be physically or financially divided equally does not entitle a party to summary judgment on this issue. Butler Properties, supra, at p. 4.
But since, as previously indicated, the Court treats the plaintiff's motion for summary judgment as a motion for partial summary judgment where the Court is being asked to order that a partition shall take place, and leave for further proceedings the determination whether and under what circumstances the partition shall be a partition in kind under Connecticut General Statutes § 52-495 or a partition by sale under Connecticut General Statutes § 52-500, and since both plaintiff in his complaint and the defendant in his counterclaim are seeking a partition of the properties in one form or another, the Court will grant the motion for Summary judgment but only to the extent indicated in the order set forth below.
ORDER
Wherefore, it is ordered: that the plaintiff's Motion for Summary Judgment dated November 6, 2003 is granted to this extent only: that there shall be a partition of the properties at 7 Martin Street, Stamford, Connecticut and 56 George Street, Stamford, Connecticut between the plaintiff and the defendant, and that such partition shall be a partition in kind pursuant to Section 52-495 of the Connecticut General Statutes on such terms as the Court shall order, unless, upon further hearing and consideration of the law and the evidence, this Court shall find that a partition by sale would better promote the interests of the parties, and decide to enter judgment of partition by sale pursuant to Section 52-500 of the Connecticut General Statutes.
BY THE COURT
ALFRED J. JENNINGS, JR. JUDGE