Opinion
CV156059037S
12-02-2016
Jennfer Slyman v. Matthew Cavanaugh et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#120)
Robin L. Wilson, J.
FACTS
The plaintiff, Jennifer Slyman, filed a two-count amended complaint on May 9, 2016. In count one of the complaint the plaintiff alleges the following facts. On September 6, 2013, the plaintiff acquired ownership of 18 Foxwood Road in Guilford, Connecticut (property) for the sum of $405,000. As part of the acquisition, the plaintiff obtained a $390,000 mortgage loan. On December 4, 2013, the plaintiff and the defendant, Matthew Cavanaugh, entered into an agreement, whereby the plaintiff would convey a one-half ownership interest in the property and the defendant would pay half of the mortgage debt and obtain a Veterans Administration (VA) refinance transaction in order to satisfy the mortgage debt and reduce the monthly payments. The plaintiff conveyed one-half of the property to the defendant through a quit claim deed on December 4, 2013. The defendant initially made payments in the amount of one-half of the mortgage to the plaintiff ($1,500), but then ceased to do so, and he did not obtain the VA refinance transaction.
The second count of the complaint pertains to a different defendant, and is not relevant to this motion.
On May 27, 2016, the defendant filed a motion for summary judgment on count one of the plaintiff's complaint. The motion was accompanied by a memorandum of law. On June 17, 2016, the plaintiff filed an objection to the motion for summary judgment, which was accompanied by a memorandum of law, the plaintiff's affidavit, copies of two deeds for the property, a copy of a " gift letter, " and copies of various e-mails. On August 1, 2016, the defendant filed a memorandum in opposition to the plaintiff's objection to the defendant's motion for summary judgment, accompanied by the defendant's affidavit and several other documents, including copies of e-mails. The matter was argued on the August 8, 2016 short calendar.
DISCUSSION
" Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
" [I]ssue-finding, rather than issue-determination, is the key to the [summary judgment] procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004).
" 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 . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
The defendant argues that there is no genuine issue of material fact, because there was no contract or written agreement that he would pay one-half of the monthly mortgage and obtain VA refinancing in exchange for a one-half interest in the property, in violation of the statute of frauds. The plaintiff counters this by arguing that the e-mail communications between the parties constitute a writing that satisfies the statute of frauds, and, in the alternative, that the plaintiff and defendant have partially performed the contract, which would exclude it from the statute of frauds. These alternative arguments will be addressed in turn.
I
Whether the Parties' E-mails Satisfy the Statute of Frauds
Our statute of frauds, General Statutes § 52-550, provides in relevant part: " (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property . . ." General Statutes § 52-550. " The statute of frauds applies to interests in land and requires a written instrument for transfers of land." Foley v. Huntington Co., 42 Conn.App. 712, 735, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). " The statute . . . requires that the essential terms and not every term of a contract be set forth therein . . . The essential provisions of a contract are the purchase price, the parties, and the subject matter for sale." (Citation omitted.) Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 38 Conn.App. 420, 426, 662 A.2d 129 (1995), aff'd, 237 Conn. 123, 676 A.2d 369 (1996).
" The primary purpose of the statute of frauds is to provide reliable evidence of the existence and the terms of the contract, [and] the requirements of the statute can be met either by a single document or . . . by a series of related writings which, taken together, describe the essential terms and conditions of the contract . . . The memorandum required by the statute is sufficient if it states the contract between the parties with such certainty that the essentials of the contract can be determined from the memorandum itself without the aid of parol proof, either by direct statement or by reference therein to some other writing or thing certain." (Emphasis added; internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 302, 912 A.2d 1117 (2007).
Accordingly, the court must examine the e-mails submitted by the plaintiff to determine whether they set forth a contract between the parties with such certainty that the essential terms can be determined without resort to parol proof. Specifically, because the statute requires that a writing be " signed by the party . . . to be charged, " the court will examine the e-mails sent by the defendant, and any other e-mails referenced therein, to determine whether they set forth with certainty the terms of the agreement alleged by the plaintiff in the complaint, i.e., an agreement that the plaintiff would convey a one-half interest in the property by quitclaim deed to the defendant, and that the defendant would pay one-half of the mortgage debt and obtain a refinance of the mortgage.
Neither party has addressed how the signature requirement of § 52-550 applies to e-mails. The court, viewing this matter in the light most favorable to the nonmoving party, will assume for the sake of argument that an e-mail bearing the defendant's name in the " FROM" header is " signed" for purposes of the statute. Because the e-mails fail to satisfy the statute of frauds for other reasons as set forth in this memorandum, the court need not resolve the signature issue.
Viewing the e-mails together, it is difficult to glean whether the parties arrived at an agreement and, if so, what the essential terms of that agreement were. In a September 15, 2013 e-mail to the plaintiff, the defendant stated: " We need to talk about the mortgage. Are you going to sign the Quit claim deed this week? I want to get that refi'ed to get rid of that $420/mo in PMI." Later on the same date, the defendant wrote in another e-mail to the plaintiff: " As for the Quit claim--it would be ridiculously unethical of you to renege on that. Also--if you want to be the sole owner then you get to own the whole mortgage payment too. If you take me back to court for more money then u can bet I'll be asking for that $40k back." In a December 2, 2013 e-mail, the defendant told the plaintiff: " Once I'm on the deed I'll call my guy to start digging into refi options--we can compare with TD Bank and maybe some others. I'm assuming you want to split the mortgage and renovations/repairs moving forward? I'll just deposit it into the joint." The latter message was in response to an e-mail from the plaintiff to the defendant, in which the plaintiff had stated: " We also need to discuss $ for the mortgage and home repairs."
There is also an undated e-mail in which the defendant states that, each month, he is paying the plaintiff $1,625 for child support, $325 for child care, $1,500 for mortgage payments, and $160 for electric service. The defendant goes on to state in that e-mail: " I can't continue with this--it's too much . . . We need to get that mortgage payment down--have you pursued refi through TD Bank? I spoke with my guy [and] I need your latest check stubs and all the other stuff you provided to Gladewater (tax returns, etc. . . .). I want to have this mortgage payment down to $2,500 by June, at which point my contribution will be $1,250." In an additional undated e-mail, the defendant informed the plaintiff that he would be reducing the total amount of money he provided each month for various items including the mortgage, insurance, child support, and child care.
These e-mails indicate that the parties discussed matters including mortgage payments, a quitclaim deed, and refinancing of the mortgage, as well as various other matters including child support and insurance. The e-mails also indicate that the defendant, at some point, was paying the plaintiff half of the monthly mortgage payment. What is not certain from the e-mails, however, is whether there was ever a definite agreement between the parties as to these matters and, if so, what the terms of that agreement were. While the e-mails might be read as suggesting the existence of a contract, they cannot be said to constitute a memorandum of a contract from which the essential terms of the contract can be clearly established without the aid of parol proof. Accordingly, the plaintiff has failed to present evidence from which the existence of a writing that satisfies the requirements of the statute of frauds could be found.
II
Part Performance/Full Performance
The plaintiff argues in the alternative that the plaintiff and defendant have partially performed their contract, thereby excluding it from the statute of frauds. " The doctrines of full performance by one party to a contract or part performance by the party seeking to enforce the contract for sale of real estate will take it out of the Statute of Frauds." Scribner v. O'Brien, Inc., 169 Conn. 389, 403, 363 A.2d 160 (1975). This principle has foundations in the earliest case law of this state. In Cady v. Cadwell, 5 Day (Conn.) 67 (1811), our Supreme Court stated: " Although parol contracts for the sale of lands, are void by the statute, yet, if such contract has been performed on one part, it has long been settled in chancery, that an equity arises from that source, independent of the statute, to compel a performance on the other: and it is no objection, that proof of the contract, and of its performance, rests in parol . . . But to entitle a petitioner to relief . . . he must necessarily show a contract . . ." Id., 71.
" The statute of frauds requires contracts for the conveyance of realty to be in writing . . . We have repeatedly recognized that a contract is enforceable, despite the statute, when, subsequent to the making of the contract, there has been conduct that amounts to part performance." (Citation omitted; internal quotation marks omitted.) McNeil v. Riccio, 45 Conn.App. 466, 470, 696 A.2d 1050 (1997). " [T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties . . . The acts must also be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute . . ." (Internal quotation marks omitted.) Id.
As indicated in Cady v. Cadwell, supra, 5 Day (Conn.) 71, in order for the plaintiff to prevail based on part or full performance, she must demonstrate the existence of a contract, but she may rely on parol evidence in order to do so. This is in contrast to the analysis in part I of this memorandum, in which the court was required to consider whether the purported memorandum of the parties' agreement clearly set forth the essential terms of the parties' agreement without the aid of parol proof.
" There must be preliminary proof establishing that there was some agreement in pursuance of which the plaintiff has acted in part performance before the court will accept oral testimony as to what the nature and terms of that agreement were. Verzier v. Convard, 75 Conn. 1, 7, 52 A. 255 (1902). This preliminary evidence generally is that of conduct. Id. 'Under the rule well established by the authorities, it must appear that these acts are of such a character that they can be reasonably and naturally accounted for in no other way than that they were performed in pursuance of a contract between the parties, and though they cannot indicate all the terms of the agreement, they must be in conformity with its provisions . . .' Santoro v. Mack, 108 Conn. 683, 691, 145 A. 273 (1929). 'Whenever acts of part performance are made out which thus point to a contract, the door is opened, and the plaintiff may introduce additional parol evidence directed immediately to the terms of the contract relied upon . . .' Andrew v. Babcock, 63 Conn. 109, 122, 26 A. 715 (1893)." Greene v. Scott, 3 Conn.App. 34, 37, 484 A.2d 474 (1984). Accordingly, the court must first examine whether there is evidence of conduct constituting part or full performance of a contract between the parties, and then, if such evidence exists, may proceed to examine evidence as to the nature and terms of the agreement.
A
Evidence of Performance by the Plaintiff
The plaintiff argues that her agreement with the defendant is exempt from the statute of frauds because she partially performed the contract by transferring a one-half interest in the property to the defendant. Although the plaintiff characterizes this as part performance, when a contract involves the sale of an interest in real property, the conveyance of that interest to the purchaser constitutes full performance by the vendor and thereby exempts the contract from the statute of frauds. Scribner v. O'Brien, Inc., supra, 169 Conn. 403; Saturno v. Saturno, Superior Court, judicial district of Stamford-Norwalk, Docket No-98-0169531-S, (March 27, 2001, Hickey, J.) (" There is no question . . . that the plaintiff fully performed under the contract by conveying the property to the defendant, at which time he took possession"); Kevalas v. Dezinno, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-90-034167, (June 28, 1991, Hodgson, J.). " When an oral contract for the sale of land has been executed by a conveyance to the purchaser, the mischief at which the Statute of Frauds is aimed no longer exists, and the remaining stipulations of the contract become enforceable. As a general rule, the vendor may . . . recover, in an action on the contract, the purchase price the purchaser orally agreed to pay." (Footnotes omitted.). 10 S. Williston, Contracts (4th Ed. 2011) § 27:20, pp. 279-80.
The plaintiff has submitted as evidence a copy of the quitclaim deed by which she conveyed a one-half interest in the property to the defendant, and the defendant has not contested the validity of the deed. In the affidavit submitted by the defendant, he acknowledges that the plaintiff conveyed an interest in the property to him in December of 2013. See Def.'s Aff., July 13, 2016. Therefore, the trier of fact could reasonably infer that the plaintiff fully performed the contract alleged in the complaint by executing the deed.
B
Nature and Terms of the Agreement
Having determined that there is evidence of full performance of a contract by the plaintiff, the court may now examine whether there is evidence establishing the nature and terms of that contract. See Greene v. Scott, supra, 3 Conn.App. 37. For the reasons set forth below, based on the documents submitted by the plaintiff, including her affidavit and the e-mails exchanged between the parties, there is sufficient evidence to create a genuine issue of material fact regarding the existence of a unilateral contract between the parties consistent with the allegations of the complaint.
" A unilateral contract is one in which the offeror invites acceptance of his promise not by a reciprocal promise, but by performance . . . [I]n such a contract, there is no mutuality of obligation between the parties." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13 n.4, 662 A.2d 89 (1995). In a unilateral contract, " an offeror . . . is not obligated to make an offer on any terms except his own . . . [A]n offer can be accepted by the rendering of a performance only if the offer invites such an acceptance . . . Further, [i]n order to accept the offer [by rendering performance], the offeree must give . . . that for which the offeror bargains. If it is in any material respect different, there is no contract." (Citations omitted; internal quotation marks omitted.) Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 227, 975 A.2d 1266 (2009).
In her affidavit, the plaintiff states: " On or about December 4, 2013, the Defendant . . . and I entered into an agreement . . . whereby I agreed to convey a one-half ownership interest in the Property to the Defendant . . . in consideration for, and upon the condition that (a) the Defendant . . . contribute one-half of the monthly mortgage debt service to Wells Fargo Bank during the term thereof (approximately $1,500.00 per month), and (b) the Defendant . . . procure and obtain a VA refinance transaction in order [to] satisfy the Wells Fargo Bank mortgage debt and reduce the monthly debt service payment encumbering the Property . . ." While this recitation is somewhat conclusory, when viewed in conjunction with the additional evidence submitted by the plaintiff as set forth below, it is sufficient to create a genuine issue of material fact regarding the particulars of the alleged contract. This additional evidence will be examined as it relates to the basic elements of contract formation, namely, offer, acceptance, and consideration.
i
Offer and Acceptance
" To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties." (Internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 411, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002). " Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact for the trier of facts." (Internal quotation marks omitted.) Id., 410. " [I]f the promise on one side of an agreement was too indefinite and vague for enforcement, such promise may be made definite by entire or partial performance by that side, and the agreement, even if originally unenforceable because too vague, then becomes binding." (Internal quotation marks omitted.) Augeri v. C.F. Wooding Co., 173 Conn. 426, 430, 378 A.2d 538 (1977). " Of course, it may appear at the trial that the contract was indeed too indefinite to be enforceable. That will be a question for the trier of fact." Id., 430-31.
In the present case, the trier of fact could infer that the defendant offered to pay one-half of the mortgage based both on the e-mails exchanged between the parties, and the partial-performance of the defendant in paying half of the mortgage at one point in time. As previously discussed, on September 15, 2013, the defendant sent an e-mail to the plaintiff which stated: " As for the Quit claim--it would be ridiculously unethical of you to renege on that. Also--if you want to be the sole owner then you get to own the whole mortgage payment too." On December 2, 2013, the plaintiff sent an email to the defendant that stated, " We need to discuss $ for the mortgage and home repairs, " to which the defendant replied: " Once I am on the deed I'll call my guy to start digging into refi options . . . I'm assuming you want to split the mortgage . . . moving forward? I'll just deposit it into the joint." This evidence could be viewed by a finder of fact as corroborative of the plaintiff's statement in her affidavit that the defendant agreed to pay one-half of the mortgage in exchange for one-half interest in the property.
The jury could further infer partial performance by the defendant based on an e-mail sent by the defendant where he listed his monthly expenses, including " $1,500 for mortgage payment (monthly)." Furthermore, because offers are accepted by performance in a unilateral contract, the jury could infer that the plaintiff accepted the defendant's offer by executing the deed. See Auto Glass Express, Inc. v. Hanover Ins. Co., supra, 293 Conn. 218, 227.
ii
Consideration
The plaintiff alleges two forms of consideration for the deed. First, the plaintiff alleges that the payment of half of the mortgage was consideration for the defendant receiving a one-half interest in the property. Second, the plaintiff alleges that the VA refinance transaction was in further consideration for the defendant receiving the one-half interest in the property.
" To be enforceable, a contract must be supported by valuable consideration . . . The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable." Connecticut National Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995).
In the present case, the deed .submitted by the plaintiff indicates that it was given for " no consideration." However, parol evidence is generally admissible in order to contradict the statement of consideration in a deed. See Collins v. Tillou, 26 Conn. 368, 374-75 (1857) (parol evidence admissible to show circumstances under which contract was made, and relation of plaintiff and defendant to it); Meeker v. Meeker, 16 Conn. 383, 387 (1844) (although consideration was expressed in deed, parol testimony was admissible for purpose of showing what real consideration was); Kevalas v. Dezinno, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV90-034167-S, (June 28, 1991, Hodgson, J.) (" Though the deed recites that the consideration for the transfer of the property was 'love and affection, ' that characterization of the agreement does not supersede the evidence, confirmed by the defendant, that she had in fact agreed to pay household expenses in return for title to her parents' home. The evidence did not support the defendant's claim that the transfer was a gift."). " The purpose for which a deed is made is not to state the contract between the parties in regard to the terms of the purchase, but to pass the title to the land. The deed is not, strictly speaking, an agreement between the grantor and grantee. It is executed by the grantor alone, and is a declaration by him, addressed to all mankind, informing them that he conveys thereby to the grantee the land therein described. The object is to pass the title, not to describe the terms upon which the land had been sold, and the mode in which payment was to be made." (Emphasis omitted; internal quotation marks omitted.) Collins v. Tillou, supra, 26 Conn. 374. " The consideration stated in the deed is not conclusive . . ." Id., 375. " The contract in dispute was made before the deed, and not in it or by it. The deed only follows up the contract by carrying it into execution, and is both subsequent to and in pursuance of it." (Emphasis omitted.) Id., 374.
This does not mean that the statement of consideration in a deed is always without consequence, nor does it mean that a party can submit parol evidence for any purpose. For example, " [a]n absolute quitclaim deed expressed to be upon a valuable consideration cannot be converted into a conveyance in trust for the grantor, by proof of an oral agreement to that effect." Reynolds v. Reynolds, 121 Conn. 153, 160, 183 A. 394 (1936). Stated more generally, " [t]he modern rule permitting the actual consideration to be inquired into notwithstanding the presence of a seal, cannot be carried so far as to permit proof of an entire absence of consideration for the purpose of nullifying the effect of a deed as a legal act; that is, of denying its legal effect as a conveyance of a specified title to the described premises." - (Internal quotation marks omitted.) Id., 159-60.
In the present case, the plaintiff's evidence showing that the payments for one-half of the monthly mortgage was consideration for the one-half interest in the property would be admissible because the plaintiff does not offer it to prove that the conveyance was a nullity. Rather, the plaintiff offers it instead to show the circumstances under which the transfer of the deed was made. Therefore, the trier of fact could infer from this evidence, as well as the plaintiff's affidavit, that the mortgage payments were consideration for the one-half interest in the property. The plaintiff's affidavit and the e-mails the plaintiff has submitted also contain references to refinancing the mortgage. Whether an obligation on the part of the defendant to obtain refinancing of the mortgage was an essential term of the agreement would be an issue of fact for the jury, particularly given that the defendant offered to pay half of the mortgage. " [T]here is no bright line rule describing the essential elements of any and all enforceable contracts." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 689, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). " The identification of the essential elements of a contract depends on the particular circumstances of each case . . . A question about the existence of a contract is a question that must be decided by the finder of facts." (Citation omitted; internal quotation marks omitted.) Coalition to Save Horsebarn Hill v. Freedom of Information Commission, 73 Conn.App. 89, 98, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003).
Based on the evidence presented by the parties, when viewed in the light most favorable to the plaintiff, there is a genuine issue of material fact as to whether there was an offer, acceptance, and consideration between the parties establishing a contract that is taken out of the statute of frauds by the plaintiff's full performance. Therefore, the present case is inappropriate for summary judgment, and the court must leave the question of whether a contract existed to a finder of fact.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is denied.