Opinion
No. CV 03 0519983 S
January 7, 2004
MEMORANDUM OF DECISION RE MOTION #116A MOTION FOR SUMMARY JUDGMENT
The first count of the plaintiffs' complaint provides that on or about June 15, 2002, the plaintiffs and the defendants negotiated an agreement for the purchase of certain real property known as 37-39 Harrison Street, New Britain, CT. The plaintiffs further allege that in order to induce them to purchase the property the defendants represented that the subject premises was a three-family dwelling.
On August 14, 2002 the plaintiffs purchased the subject premises for the sum of one hundred seventy thousand dollars ($170,000.00).
The plaintiffs allege that the representations of the defendants were false and that the subject property was actually a two-family unit that had been illegally converted by the sellers.
The second count of the complaint is also directed at the Zoviches. This count sounds in negligent misrepresentation and or the failure to disclose material facts.
The third count is directed at the defendant Connecticut Attorney's Title Insurance Company. The plaintiffs allege that when the property was purchased they also purchased "an expanded owner's title insurance policy with the defendant, Connecticut Attorney's Title Insurance Company" (hereinafter CATIC) and that the policy provides coverage for the losses incurred by the plaintiffs. The plaintiffs further allege that CATIC is legally liable to pay the plaintiffs' claims pursuant to the policy.
On December 4, 2003, the defendant Amedeo Zovich filed a motion for summary judgment asserting that "the clear and unambiguous disclaimer provisions set forth in the contract executed by the Plaintiffs for the purchase of the subject parcel or real property known as 37-39 Harrison Street, New Britain, Connecticut, preclude the Plaintiffs' claims against Zovich."
On January 2, 2004, the plaintiffs filed a memorandum of law in opposition to the motion for summary judgment. This matter was scheduled to be heard at short calendar on January 5, 2004. The plaintiffs' opposition was therefore not filed until three days before the calendar call. The court notes that although the aforementioned memorandum had six exhibits attached, the plaintiffs did not file any affidavits, transcripts or transcript excerpts with its memorandum.
On January 5, 2004, the defendant Amedeo Zovich filed an objection to the plaintiffs' memorandum of law in opposition to defendant's motion for summary judgment and a reply to plaintiffs' memorandum of law in opposition to defendant's motion for summary judgment.
In its objection to the plaintiffs' memorandum, the defendant citing Barile v. Lenscrafters, Inc., 74 Conn. App. 283, 285-86 (2002), asserts that "The court may not consider the plaintiff's `memorandum of law in opposition to the motion for summary judgment' because the plaintiffs have failed to comply with Conn. P.B. § 17-45." In Barile our Appellate Court said:
The plaintiff claims that the court abused its discretion by granting the defendants' motions for summary judgment on procedural grounds rather than addressing the merits of his claims. The court, citing Inwood Condominium Assn. v. Winer, 49 Conn. App. 694, 697-98, 716 A.2d 139 (1998), granted the defendants' motions on the ground that the "plaintiff failed to file [opposing] affidavits [as] mandated by [Practice Book] § 17-45." Section 17-45 provides in relevant part that "[t]he adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence . . ." (Emphasis added.) Moreover, in its memorandum of decision on the plaintiff's motion to reargue, the court stated that the "plaintiff failed to file opposition papers in a timely manner." We agree with the court. See Practice Book § 17-45; Inwood Condominium Assn. v. Winer, supra, 697-98. CT Page 574
Barile v. Lenscrafters, Inc., 74 Conn. App. 283, 286 (2002).
While this court notes that it has the power in the instant action to grant the motion for summary judgment on the procedural grounds, in light of the fact that the defendant has not demonstrated that the plaintiffs' delay was prejudicial to his defense of this matter, this court chooses not to exercise that option and therefore will consider the motion for summary judgment on its merits.
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the defendant's motion, a brief review of the standards for the granting of a Motion for Summary Judgment is necessary:
"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." (Internal quotation marks omitted.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
The first count of the operative complaint in the instant action is directed to the defendants Amedeo and Mary Zovich. This count provides in pertinent part that:
2. In order to induce the plaintiffs to purchase the property the defendants represented to the plaintiffs that the property was a legal three-family dwelling.
3. Relying on these representations the plaintiffs purchased the property for the sum of $170,000.00
4. The representations of the defendants were false and the defendants knew or should have known them to be false and they were made by the defendants to induce the plaintiffs to purchase the property at a price in excess of its value.
5. Relying on these representations the plaintiffs purchased the property and relied on rental income that was being received by the defendants from the third-floor tenant at the property.
6. The property was not as represented by the defendants, but in fact was a two-family house with illegally converted attic into a third-floor apartment making it appear to as a legal three-family house.
. . .
8. As a direct result of the defendants' (sic) (Zovich) fraud in the inducement the Plaintiffs suffered emotionally and mentally, and have suffered and will continue to suffer money damages.
The defendant Amedeo Zovich asserts that summary judgment should be granted for reason that the express language of the subject contract bars the plaintiffs' claims. The contract provides in pertinent part that:
6. INSPECTION OF PREMISES The Buyer represents that the Buyer has examined the Property, including fixtures and personal property included in this transaction, and is satisfied with the physical condition thereof, subject to the provisions of any inspections made a part of this Contract, if Buyer has elected to make a less than through inspection, Buyer waives any right to object to any defects in the Property that would have been disclosed by a full and complete inspection, Buyer further agrees that neither the Seller nor any agent of the Seller have made any representations or promises other than those expressly stated herein upon which the Buyer has relied in making this Contract. The property and improvements are to be conveyed in their Present condition, subject to ordinary wear and use, as they are on the date of this Contract, except as may otherwise by agreed by the parties hereto, and free of all tenants and occupants. The Buyer may make a final inspection of the Property for compliance with this Contract within 24 hours prior to the closing, upon reasonable notice to Seller. Seller agrees to deliver the Property to Buyer in broom-clean condition . . .
13. COMPLETE AGREEMENT This Contract contains the entire agreement between the Buyer and Seller concerning this transaction, and supersedes any and all previous written or oral agreements concerning the Property. Buyer has made this Contract without relying upon any representations, information or promises made by Seller or any agent of the Seller that are not contained in this Contract as to the character, quality, use, zoning, value, condition, occupancy or other matters relating to the property . . .
21. OTHER/SPECIAL CONDITIONS
When signed by Buyer and seller, this is intended to be a legally binding Contract. If either party has any questions about any aspect of this transaction, he/she should consult with an attorney before signing this Contract.
It is undisputed that on June 15, 2002 after discussions between the plaintiffs and the defendants Zovich, the parties entered into an agreement for the purchase of the subject premises. Paragraph 13 of the subject contract provides that the contract is the entire agreement between the parties and that the written contract supersedes "any and all previous written or oral agreements concerning the Property."
The aforementioned "zipper clause" of the contract is clear and unambiguous. The court further notes that there is nothing in the contract concerning the issue as to how many living units, either legal or illegal were in existence in the property.
"It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability. See 1 Restatement (Second), Contracts §§ 154, 159, and vol. 2, § 208 (1981); cf. Warner v. Pandolfo, 143 Conn. 728, 122 A.2d 738 (1956)." Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993).
Gibson v. Capano, 241 Conn. 725, 730 (1997).
This court notes that the plaintiffs do not allege that the subject contract is voidable or allege in any way that the contract is defective or was entered into under duress.
"[P]arties are free to contract for whatever terms on which they may agree [and] . . . a court must enforce the contract as drafted by the parties . . . unless the contract is voidable on grounds such as mistake, fraud or unconscionability." Gibson v. Capano, 241 Conn. 725, 730-51, 699 A.2d 68 (1997). "Whether the parties to a contract intended to modify the contract is a question of fact." Herbert S. Newman Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 762, 674 A.2d 1313 (1996). However, "[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments of law . . . Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994)." (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).
ALCA Const. Co. v. Waterbury Housing Auth., 49 Conn. App. 78, 86 (1998).
The plaintiffs in the instant action were free to amend or attempt to amend the subject contract as they saw fit, however this was not done. The contract further more gave an explicit warning that if either party to it had any questions they should consult with an attorney before executing the document.
The definitive language of the contract is clear and unambiguous. The June 15, 2002, contract superseded any and all previous written or oral agreements concerning the property and the buyers explicitly agreed that they executed the contract without relying upon any representations, information or promises made by sellers or their agents that were not contained in the contract as to the character, quality, use, zoning, value, condition, occupancy or other matters relating to the subject property
For all of the foregoing reasons, the defendant Amedeo D. Zovich's motion for summary judgment is granted.
RICHARD ALLAN ROBINSON, JUDGE.