Opinion
No. WWM CV08-5003741S
August 4, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, #111
This matter is before the court with regard to the defendant's Motion for Summary Judgment (#111) and the plaintiff's objection thereto (#114). The underlying action stems from the alleged breach of a purchase agreement for real property by the defendants.
The plaintiff, Robert Neundorf, commenced this action on November 5, 2008, against the defendants, River Junction, LLC, River Junction Estates, LLC, Allan Rawson and Jeffery Rawson. A notice of lis pendens was filed on the same date. In count one of his two-count complaint, the plaintiff makes a breach of contract claim and alleges the following. Allan and Jeffery Rawson (the Rawsons) are owners and members of River Junction, LLC and/or River Junction Estates, LLC (River Junction). The Rawsons and/or River Junction own real property in Thompson, Connecticut. Such property includes certain parcels that abut property owned by Debra Neundorf, the plaintiff's wife (the parcels). In June 2002, Allan Rawson, on behalf of River Junction, entered into a property purchase agreement whereby River Junction agreed to sell the parcels and the plaintiff agreed to buy the parcels under the terms contained in the purchase agreement, which contains all of the essential terms of the sale and is a valid and binding agreement. The plaintiff has satisfied all applicable conditions precedent to River Junction's performance under the purchase agreement and has, on several occasions, informed River Junction that he is ready, willing and able to consummate the purchase of the parcels. He has demanded that River Junction sell the parcels, pursuant to the purchase agreement. Thus far, River Junction has refused to sell and convey the parcels. River Junction has subdivided some or all of the parcels in order to develop and/or sell such property to third parties. The plaintiff "is entitled to purchase and River Junction is required to sell" the parcels, pursuant to the terms of the purchase agreement. In count two, the plaintiff repeats the allegations contained in count one and further alleges that he has suffered damages, including but not limited to legal fees and costs, lost timber income and undue stress on his business due to River Junction's failure to perform under the purchase agreement. In his prayer for relief, the plaintiff seeks an order compelling the defendants to sell or transfer the parcels pursuant to the terms of the purchase agreement, damages and other relief that is just and proper.
On January 29, 2009, the defendants filed an answer and five special defenses. In the first special defense, the defendants allege that the plaintiff is time-barred from enforcing the purchase agreement, pursuant to Connecticut General Statutes § 47-33a(a). In the second special defense, the defendants allege that the plaintiff's right of action for specific performance did not accrue within eighteen months before the commencement of the action, pursuant to § 47-33a(a). The third special defense alleges that the plaintiff's right of action for damages did not accrue within six years before the plaintiff commenced the action, pursuant to § 47-33a(a). In their fourth special defense, the defendants allege that the plaintiff was never ready, willing or able to fulfill his part of the contract until after the statutory time for performance had expired, in violation of § 47-33a(a). The defendants' fifth special defense alleges that the plaintiff failed to fully perform his own obligations under the agreement, including payment of any consideration for the alleged agreement and therefore, is not entitled to specific performance or damages. On May 15, 2009, the plaintiff filed a general denial of the defendants' special defenses.
Thereafter, on July 6, 2009, the defendants filed a motion for summary judgment on the ground that the plaintiff's action is barred by the applicable statutes of limitations. That motion is accompanied by a memorandum of law. The plaintiff filed an objection to that motion on September 14, 2009. In his memorandum in opposition, the plaintiff argues that material issues of fact exist as to the time specified in the contract and when the relevant statute of limitation periods began to run. The defendants filed a reply brief on October 28, 2009.
"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." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual CT Page 16094 Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any issue of material fact." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). Once the movant has met his burden, the burden shifts to the opposing party to "present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of a disputed issue." (Internal quotation marks omitted.) Id., 319.
The defendants move for summary judgment on both counts of the plaintiff's complaint on statutes of limitations grounds. In support of their motion for summary judgment on the plaintiff's claim for specific performance of the contract, the defendants argue that the plaintiff's claim for specific performance is time barred, pursuant to General Statutes § 47-33a(a), because the alleged purchase agreement expired eighteen months after it was executed and the plaintiff commenced the present action more than six years after the execution of the purchase agreement. Regarding the plaintiff's claim for damages, the defendants argue that this claim is time barred as well, pursuant to General Statutes § 52-576, because the plaintiff commenced his action in October 2008, more than six years after the parties entered into the purchase agreement, in June 2002.
In opposition, the plaintiff argues that the defendants have miscalculated the statute of limitations period for his specific performance claim and that his claim for damages is timely.
"[A[n action for specific performance of a contract to sell real estate is an equitable action and is to be determined by equitable principles . . . The granting of specific performance of a contract to sell land is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity." (Internal quotation marks omitted.) Webster Trust v. Roly, 261 Conn. 278, 284, 802 A.2d 795 (2002). "It is settled law . . . that in an action for specific performance, the [party requesting such relief] has . . . the burden is primarily on him to show his right in equity and good conscience to the relief sought." Cutter Development Corp. v. Peluso, 212 Conn. 107, 114-15, 561 A.2d 926 (1989). Even in the case of an anticipatory breach, the non-breaching party must prove that he would have had the ability to complete the transaction if there had been no such breach. McKenna v. Woods, 21 Conn.App. 528, 534, 574 A.2d 836 (1990).
General Statutes § 47-33a(a) provides in relevant part: "No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed . . . unless action is commenced within the period to enforce the agreement and notice of lis pendens is filed . . ." "`Date' is defined as `the time at which an event occurs' and `a statement of the time of execution or making' . . ." Funaro v. Baisley, 57 Conn.App. 636, 639, 749 A.2d 1205, cert. denied, 254 Conn. 902, 755 A.2d 218 (2000). In Funaro, the Appellate Court looked to the option to purchase agreement between the parties and determined that "[w]hile a specific date was not provided in the option to purchase agreement, a specific event was provided." Id., 639. The court held, inter alia, that the limitations period provided by § 47-33a(a) did not apply to the option to purchase agreement until such event occurred. Id.
The defendants argue that the purchase agreement expired eighteen months after it was executed on June 23, 2002, and therefore, the plaintiff's claim for specific performance is time barred. The defendants submit the following in support of their motion: (1) an affidavit from Jeffrey A. Rawson; (2) a letter from the plaintiff and Debra Neundorf to OG Industries, dated October 5, 2004; and (3) a letter from the plaintiff and Debra Neundorf to Allan Rawson, dated November 22, 2004.
In opposition, the plaintiff asserts that the purchase agreement contains a time for performance of obligations under the purchase agreement. Specifically, he argues that the parties agreed that the property would not be sold until after a "gravel agreement" was completed, the site was reclaimed and the Town of Thompson (the town) approved the reclamation. The plaintiff asserts that this gravel agreement was entered into by Debra Neundorf and Rawson Materials, Inc. on or about June 21, 2002, and had a two-year term, commencing "when zoning approval is obtained." The plaintiff further asserts that the town has not approved reclamation of the property, "at the fault of the defendants." Therefore, the plaintiff argues, the time for performance of the purchase agreement has not commenced and his claim for specific performance is timely. In support of his memorandum in opposition, the plaintiff submits the following documents: (1) the purchase agreement; (2) the gravel agreement; (3) his own affidavit; (4) a letter from Jeffrey and Allan Rawson to the plaintiff, dated September 9, 2004; (5) a subdivision review application, signed December 5, 2007; (6) an excerpt of minutes from the meeting of the town's inland wetlands commission meeting on February 14, 2008; (7) an affidavit of Paul Mirrow; (8) an excerpt of deposition testimony of John Mahon; (9) an excerpt of minutes from the meeting of the town's planning and zoning commission meeting on February 24, 2003; (10) an email from Mahon to the plaintiff's prior attorney; and (11) an application for zoning review dated February 24, 2003.
In reply, the defendants argue that the plaintiff terminated the gravel agreement and denied the defendants access to the property from which gravel was to be removed. They assert that the plaintiff cannot rely on the performance of the gravel agreement as a condition precedent since he did not cooperate and terminated the agreement in 2004. They further assert that, because the express condition precedent in the purchase agreement was not fulfilled, the purchase agreement never became an enforceable contract.
The purchase agreement, which is not dated, does not provide for the sale of the property on a specific date. Rather, the purchase agreement states: "Before the property is sold, the gravel agreement between Rawson Materials, Inc. and Robert Neundorf must be completed and the reclamation must have met the town approval." Thus, while no date for performance is provided, the parties did agree to specific events, namely, the completion of the gravel agreement and town approval of the reclamation of the land. In fact, in his affidavit, Allan Rawson attests that "the agreement to sell property to the Plaintiff was conditioned on a future event . . . that future event was the completion of the gravel agreement." As a result, the eighteen-month limitation period provided by § 47-33a(a) does not apply to the plaintiff's claim for specific performance and the defendants are not entitled to summary judgment based upon that argument.
Moreover, the totality of the evidence demonstrates that there are genuine issues regarding the completion of the gravel agreement and thus, when the one-year limitation period provided by § 47-33a(a) began to run. While the evidence submitted by the defendant demonstrates that the gravel agreement was terminated and the evidence submitted by the plaintiff makes it clear that the town has not granted approval of the reclamation of the property, the parties failed to dispel material facts regarding the termination of the gravel agreement. Neither the defendants nor the plaintiff presented evidence sufficient for this court to determine the factual circumstances surrounding the termination of the gravel agreement. In particular, it is not clear from the evidence which party is responsible for the termination of the gravel agreement. Therefore, the defendant is not entitled to summary judgment on the plaintiff's first count.
Section 52-576(a) provides in relevant part: "No action . . . on any contract in writing, shall be brought but within six years after the right of action accrues . . ." "While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action. That is, an action cannot be maintained until a right of action is complete and, hence, the statute of limitations cannot run before that time . . . In an action for breach of contract, the cause of action is complete upon the occurrence of the breach, that is, when the injury has been inflicted." (Citations omitted; internal quotation marks omitted.) Gianetti v. Donahue, Superior Court, judicial district of Fairfield, Docket No. 319218 (September 27, 1996, Levin, J.) ( 18 Conn. L. Rptr. 14, 17).
The defendants argue that the plaintiff's second count is barred by General Statutes § 52-576 because the plaintiff commenced his action in October 2008, more than six years after the parties entered into the purchase agreement in June 2002. The plaintiff argues that his claim for damages for the defendants' breach of contract is timely because his action was filed within six years of the breach and that the limitations period does not begin to run on the date the contract was entered into. The plaintiff asserts that among the damages he claims are lost timber profits as a result of the defendants' logging of timber that they had agreed to allow the plaintiff to log, and such logging did not occur until 2004 and continued into 2007. In their reply, the defendants argue that, because the condition precedent in the purchase agreement was not fulfilled, the contract did not become enforceable. Therefore, the defendant argues, the plaintiff's claim for damages never came into existence.
The court finds that the defendants failed to meet their burden. The totality of the evidence indicates that there are genuine issues of material fact surrounding the alleged breach of the purchase agreement. Most significantly, it is unclear from the evidence submitted whether the purchase agreement ever became enforceable because of the non-occurrence of the condition precedent. Consequently, the court cannot determine, based upon the totality of the evidence before it, when the plaintiff's action accrued. Therefore, the defendants are not entitled to summary judgment based upon the limitations period provided for in § 52-576(a). In addition, as discussed in part I, supra, there are genuine issues of material fact surrounding the termination of the gravel agreement. Therefore, the defendant is not entitled to summary judgment on the second count of the plaintiff's complaint.
For the forgoing reasons, the defendant's motion for summary judgment is denied.