Carol Mitchell et al. v. Trevor Redvers et al. (2010)

MEMORANDUM OF DECISION

The plaintiffs commenced this action by service of process against the defendants on May 15, 17 and 18, 2009.   The plaintiffs are Carol Mitchell, Steve Zimnewicz, Irene Arabek, Lorraine Cieneva, David Specyalski, Marty Specyalski, Doreen Zawacki and Annette McMahon.   The defendants are Trevor Redvers, administrator of the estate of Valentine Specyalski;  Annmarie Cieneva, executrix of the estate of Edmund Specyalski;  Annette McMahon, administratrix of the estate of Frances Zimnewicz;  the representatives, creditors and heirs of Joseph Specyalski;  the representatives, creditors and heirs of Adolph Specyalski;  the representatives, creditors and heirs of Leon Specyalski;  the representatives, creditors and heirs of Lottie Rebot;  the representatives, creditors and heirs of Mary Koba;  Gene Specyalski;  Joanne Nolan;  Maryann Parker, who has filed a cross complaint against the other defendants (hereinafter the cross claim plaintiff);  Paul Rebot;  and Frank Koba, who brings the present motion for summary judgment (hereinafter the defendant).

The two-count complaint alleges the following facts.   Louis Specyalski died intestate on December 13, 1962.   His heirs were Edmund Specyalski, Joseph Specyalski, Teofil Specyalski, Valentine Specyalski, Lottie Rebot, Adolph Specyalski, Leon Specyalski, Mary Koba and Frances Zimnewicz.   The plaintiffs, the cross claim plaintiff and the defendant are the issue of Louis Specyalski's heirs.   At the time of his death, Louis Specyalski was the owner of a Farm located at 323 Boston Road in Middletown (hereinafter the “Farm”).   The Farm was distributed to Valentine Specyalski through an Agreement signed by all of Louis Specyalski's heirs on October 21, 1963 (hereinafter the “October 1963 Agreement”) and accepted by the Middletown Probate Court on November 5, 1963 (hereinafter the November 1963 probate proceedings).   The plaintiffs believe that the interest conveyed to Valentine Specyalski by the October 1963 agreement was only a life estate, not a fee estate.   All of Louis Specyalski's heirs are now dead.   Valentine Specyalski executed a will on October 8, 2002 and died on August 20, 2008.   The defendant claims that the will left the Farm to him only.¹  The plaintiffs in turn claim that the conveyance to the defendant has wrongfully harmed them.   They have thus brought the present action, seeking a constructive trust and a declaratory judgment that they are the equitable owners of the farm.

On December 28, 2009, the cross claim plaintiff filed her cross complaint against the other defendants in the plaintiffs' action.   The cross complaint is identical to the original complaint.   The defendant then filed the present motion for summary judgment, along with a memorandum of law in support thereof and exhibits, on March 29, 2010.   The plaintiffs in turn filed their opposition to the motion, along with a memorandum of law in support thereof and exhibits, on May 12, 2010.   The defendant filed a reply memorandum on May 17, 2010.   On the same day, the cross claim plaintiff filed an opposition to the motion, along with a memorandum of law in support thereof and exhibits.   The defendant filed a reply memorandum to the cross claim plaintiff's opposition on May 19, 2010.   The court heard the matters at short calendar on June 22, 2010.²

“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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the 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.   The courts hold the movant to a strict standard.   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 genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must 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 such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).  “[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on ‘personal knowledge;’ (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).   Hearsay evidence is inadmissible for the purpose of defeating a motion for summary judgment.  Great Country Bank v. Pastore, 241 Conn. 423, 437, 696 A.2d 1254 (1997).  “Hearsay statements are insufficient to contradict facts offered by the moving party ․ and if an affidavit contains inadmissible evidence it will be disregarded.”  (Citations omitted.)  2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, 636 A.2d 1377 (1994).

As a preliminary matter, the court considers the affidavits submitted by the plaintiffs in support of their opposition to the motion.   All four affidavits submitted by the original plaintiffs, which were given by David Specyalski, Annette McMahon, Stephen Zimnewicz and Carol Mitchell, respectively, contain averments about statements made to them by others, e.g., their parents, that Valentine Specyalski understood his interest in the Farm to be a life estate only and acted accordingly.   Similarly, the affidavit given by the cross claim plaintiff contains an averment of this nature.   These statements are hearsay.   “ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.”  Code of Evidence, § 8-1(3).

The averments at issue rely upon statements not made by the plaintiffs, and they are offered to establish the truth of these statements.   Furthermore, the averments are not based upon the plaintiffs' personal knowledge.  “[A]ffidavits must be made on the affiant's personal knowledge of the facts alleged in the petition.   The affidavit must in some way show that the affiant is personally familiar with the facts so that he could personally testify as a witness.”   (Internal quotation marks omitted.)  State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 571-72 (2010).   None of the plaintiffs was a party to the agreement made among Louis Specyalski's heirs, and therefore, none of them are personally familiar with the facts underlying the Agreement.   Because the statements to which the plaintiffs aver do not fall within any recognized hearsay exception, the portions of the plaintiffs' affidavits that reference them are inadmissible and will not be considered by the court in deciding the present motion.

The defendant moves for summary judgment on the original plaintiffs' complaint and the cross claim plaintiff's complaint for several reasons.   According to the defendant, the conveyance of the Farm to Valentine Specyalski in 1963 was clearly and unambiguously a conveyance of a fee estate, not a life estate, and the plaintiffs cannot submit evidence to establish otherwise because of the parol evidence rule and the statute of frauds.   The defendant also argues that the plaintiffs are not entitled to a constructive trust, based on the facts underlying the present action, and that the plaintiffs' action is barred by the laches doctrine, because almost fifty years have passed between the 1963 conveyance and the commencement of the present action.   Finally, the defendant argues that the plaintiffs' action is barred by the Marketable Record Title Act (hereinafter the “Act”), General Statutes § 47-33b et seq., because Valentine Specyalski held marketable record title in the Farm for more than forty years, and his fee interest is therefore unencumbered by the plaintiffs' alleged reversionary interest, which was never documented in his chain of title.   In support of his motion, the defendant submits an affidavit by him and an affidavit by his attorney, William O'Sullivan.   Attached to O'Sullivan's affidavit are copies of the October 1963 Agreement (Exhibit 4) and the documents attendant to the November 1963 probate proceedings, including the application for administration of estate (Exhibit 1), inventory (Exhibit 2), mutual distribution (Exhibit 5), administration account (Exhibit 6), allowance of account, ascertainment of heirs and order of distribution (Exhibit 7) and probate certificate (Exhibit 8).

The plaintiffs oppose the motion by arguing that there are genuine issues of material fact regarding the intent of Louis Specyalski's heirs in making the October 1963 Agreement.   The plaintiffs also argue that the facts underlying the present action entitle them to a constructive trust and a declaratory judgment in their favor.   They further argue that because they are entitled to a constructive trust, they can submit evidence in support of their position that would otherwise violate the parol evidence rule and the statute of frauds.   The plaintiffs further contend that the laches doctrine is inapplicable in the present action because there was no reason for them to question the existence of the life estate and therefore no inexcusable delay.   Finally, the original plaintiffs argue that the act is also inapplicable in the present action because they seek to challenge the defendant's interpretation of the October 1963 Agreement, not the October 1963 Agreement itself.   The cross claim plaintiff makes the additional argument that the act is inapplicable in the present action because the probate certificate, which implements the October 1963 Agreement, cannot serve as Valentine Specyalski's “root of title” under the act.   In support of their opposition to the motion, the original plaintiffs submit a copy of the October 1963 Agreement (Exhibit A) and four affidavits (Exhibits B-E), which are discussed in greater detail infra.   The cross claim plaintiff submits an affidavit given by her, also discussed infra, and a copy of the October 1963 Agreement (Cross Claim Plaintiff's Exhibit A).

“As used in [the Act]:  (a) ‘Marketable record title’ means a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title, as are stated in [General Statutes § ] 47-33e ․ (e) ‘Root of title’ means that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined.   The effective date of the root of title is the date on which it is recorded;  (f) ‘Title transaction’ means any transaction affecting title to any interest in land, including, but not limited to, title by will or descent, by public sale, by trustee's, referee's, guardian's, executor's administrator's, conservator's or committee deed, by warranty or quitclaim deed, by mortgage or by decree of any court.”  General Statutes § 47-33b.

“Any person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest, subject only to the matters stated in [General Statutes § ]47-33d.   A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction of record not less than forty years at the time the marketability is to be determined, which contains language sufficient to transfer the interest, either in (1) the person claiming that interest, or (2) some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest;  with nothing appearing of record, in either case, purporting to divest the claimant of the purported interest.”  General Statutes § 47-33c.

“Such marketable record title is subject to [inter alia ]:  (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed ․ (2) all interests preserved by the recording of proper notice ․ [or] (4) any interest arising out of a title transaction which has been recorded subsequent to the effective date of the root of title from which the unbroken chain of title of record is started;  provided such recording shall not revive or give validity to any interest which has been extinguished prior to the time of the recording by the operation of [§ ]47-33e ․” General Statutes § 47-33d.

“Subject to the matters stated in [§ ]47-33d, such marketable record title shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims or charges whatsoever;  the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title.   All such interests, claims or charges, however denominated, whether legal or equitable, present or future, whether those interests, claims or charges are asserted by a person sui juris or under a disability, whether that person is within or without the state, whether that person is natural or corporate, or is private or government, are hereby declared to be null and void.”  General Statutes § 47-33e.  “Any person claiming an interest of any kind in land may preserve and keep effective that interest by recording, during the forty-year period immediately following the effective date of the root of title of the person whose record title would otherwise be marketable, a notice in writing, duly verified by oath, setting forth the nature of the claim.”  General Statutes § 47-33f(a).

The court first addresses the plaintiffs' arguments that the act is inapplicable to the present action.   The original plaintiffs argue:  “The Plaintiffs are not seeking to undo the deed which transferred the Property in 1963 to Valentine Specyalski;  the Plaintiffs are instead seeking to uphold the part of the understanding and agreement made between the Agreement Heirs that Valentine Specyalski's interest was only to be a life use interest, and that after Valentine Specyalski's death, the Property would be shared by all the family.”   The court rejects their argument.   The basis for their constructive trust and declaratory judgment action is that they have a reversionary interest based on an oral agreement of Louis Specyalski's heirs made prior to the November 1963 probate proceedings that Valentine Specyalski would have only a life estate, not a fee estate, in the Farm. This is precisely the type of interest that the defendant seeks to extinguish through the act, because it is asserted with respect to property over which marketable record title is claimed to be held, and its “existence ․ depends upon [an] ․ event ․ that occurred prior to the effective date of the root of title,” which is claimed to be the probate certificate.

The court likewise rejects the cross claim plaintiffs argument.   The cross claim plaintiff argues:  “In order for the Defendant's claim to prevail, the Probate Certificate which was recorded on November 19, 1963, would have to be the root of title.   A probate court distribution is not a root of title, however.”   In support, the cross claim plaintiff cites only to the Connecticut Standards of Title, Standard 3.4, Comment 10 (1999), which is nonbinding authority and provides that a certificate of descent or distribution “is not a muniment of title, and, therefore, not the statutory root of title, but is merely a guide or pointer for the title searcher to an estate in probate which evidences transmission of title by descent [or distribution].”

The standard also provides in relevant part, however, that “[t]he statutory definition of a title transaction ․ permits a title by descent [or distribution] to be a root of title.   Again, as is true with all roots of title, the probate records on their face need only to purport to disclose that title descended [or was distributed] to the heir by operation of law.”  Id. Thus, according to the standard proffered by the cross claim plaintiff, the probate certificate, in conjunction with the other documents attendant to the November 1963 probate proceedings, is sufficient to establish Valentine Specyalski's root of title for the purpose of the present action.   The court's conclusion is consistent with an interpretation of § 47-33b(f) under General Statutes § 1-2z, the plain meaning rule.³  Section 47-33b(f) provides that a title transaction that may serve as a root of title may be “any transaction affecting title to any interest in land, including, but not limited to, title by will or descent, by public sale, by trustee's, referee's, guardian's, executor's, administrator's, conservator's or committee deed, by warranty or quitclaim deed, by mortgage or by decree of any court.”   This is a broad definition and one that can apply to the probate certificate, in conjunction with the other documents attendant to the November 1963 probate proceedings, because they constitute a transaction that affected Valentine Specyalski's interest in and title to the Farm.

The court now considers whether Valentine Specyalski held marketable record title when he devised the Farm to the defendant in his 2002 will.  “[T]he question of whether certain deeds and other written instruments establish record title in a party is a question of law for the court.”  Mizla v.Depalo, 183 Conn. 59, 64 n.8, 438 A.2d 820 (1981).   Again, a “root of title” is “that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined.”   Section 47-33b(e).   The interest claimed by the defendant is Valentine Specyalski's fee title in the Farm. Therefore, at issue is whether the October 1963 Agreement, implemented by the probate certificate and the other documents attendant to the November 1963 probate proceedings, conveyed a fee estate or a life estate to Valentine Specyalski.   The plaintiffs only challenge the documents attendant to the November 1963 probate proceedings on the ground that they do not accurately reflect the life estate conveyed by the October 1963 Agreement.

“[T]he intent of the parties [to a contract] is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms ․ [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ․ [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation ․ militates against interpreting a contract in a way that renders a provision superfluous ․ If a contract is unambiguous within its four corners, intent of the parties is a question of law ․” (Internal quotation marks omitted.)  Prymas v. New Britain, 122 Conn.App. 511, 517-18 (2010).

The October 1963 Agreement provides:  “[I]t is mutually agreed as follows ․ [t]hat all of the First Parties [Valentine Specyalski's siblings] will give to the Second Party [Valentine Specyalski] their respective shares in the real estate described in the inventory of the estate.” ⁴  Affidavit of William O'Sullivan, Exhibit 4;  Plaintiffs' Exhibit A;  Cross Claim Plaintiff's Exhibit A. The Agreement also provides for a right of first refusal in favor of Valentine Specyalski's siblings, in the event that he decides to sell the Farm, and an equal division among all nine Specyalski siblings of the difference between $10,000 and any proceeds from a sale of the Farm that amount to more than $10,000.   A clause upon which the plaintiffs rely in arguing that Valentine Specyalski received only a life estate provides:  “Whereas, all of the parties hereto are desirous of keeping the remainder of the Specyalski Farm in the family.”   Affidavit of William O'Sullivan, Exhibit 4;  Plaintiffs' Exhibit A;  Cross Claim Plaintiff's Exhibit A.

The Specyalski siblings notarized the October 1963 Agreement, and the notarization form, bearing all of their signatures, provides:  “To Have and to Hold, to each of the parties hereto, and his or her heirs and assigns forever, the property, real and personal, hereinbefore assigned to said parties respectively, so that neither one of us, nor any one claiming under either of us shall hereafter have any claim, right or title, in or to the premises or property or any party hereof hereinbefore assigned to the others, but each of us is from the premises so assigned to the others, forever barred and secluded.”   Affidavit of William O'Sullivan, Exhibit 5.

A fee estate “means ‘a whole or unlimited estate’ ․ It is the name given to ‘the largest estate in land.’  “ (Citation omitted.)  Rosenblum v. Eisenhauer, 29 Conn.Sup. 216, 222, 280 A.2d 537 (1971).   In contrast, “[a] life estate is an interest in real property, the duration of which is limited by the life of some person.   Such person may be the party creating the estate, the tenant himself, or some other person or persons.”  (Internal quotation marks omitted.)  Smith v. Planning and Zoning Board, 3 Conn.App. 550, 553, 490 A.2d 539 (1985).  “No particular words are required or are necessary to create a life estate.   The use of the term ‘life estate’ is not necessary, but the intention to create a life estate may be expressed in any equivalent or appropriate language.”  (Internal quotation marks omitted.)   Blouin v. Blouin, Superior Court, judicial district of New Haven, Docket No. CV 890295774 (January 17, 1992, Healey, J.T.R.).

Despite this standard, however, the court in the present action concludes that the October 1963 Agreement conveys a fee estate and not a life estate to Valentine Specyalski.   The language of the Agreement is clear and unambiguous insofar that it provides for Valentine Specyalski to receive title, not just possession and/or use, of the entirety of the Farm, conditioned only by the right of first refusal in his siblings and the equal division of any difference between sale proceeds over $10,000 and $10,000 among all nine Specyalski siblings.   The cross claim plaintiff argues that these conditions, combined with the expressed desire “of keeping the remainder of the Specyalski Farm in the family,” are sufficient to raise genuine issues of material fact regarding the intent underlying the Agreement.   This claimed ambiguity, however, arises from “one party's subjective perception of the terms,” not “from the language used in the contract.”  Prymas v. New Britain, supra, 122 Conn.App. 517.   A life estate is necessarily limited to a specific person's lifetime.   The October 1963 Agreement does not expressly or impliedly reference a person whose lifetime serves as the duration of Valentine Specyalski's interest or a person who holds the reversionary interest.   The cross claim plaintiff's interpretation of the Agreement also provides no such references.

Thus, the probate certificate, in conjunction with the other documents attendant to the November 1963 probate proceedings, all of which implement the October 1963 Agreement, is sufficient to serve as Valentine Specyalski's “root of title” under the act, because it creates the interest claimed by the defendant and serves as the conveyance closest in time to the forty-year time period provided by the act.⁵

This conclusion is unaffected by the plaintiffs' argument that they may submit evidence to contradict the express terms of the October 1963 Agreement and the documents attendant to the November 1963 probate proceedings, despite the parol evidence rule and the statute of frauds, because they are entitled to a constructive trust.  “As a general rule, parol evidence may not be used to contradict the unambiguous terms of a deed purporting to convey title to real property ․ There are situations, however, where equity, in order to work out justice between the parties, will itself raise a trust ․ and such trusts do not fall within the rule stated above ․ Within this category fall constructive trusts ․ Exceptions to the general rule prohibiting the consideration of parol evidence to contradict the terms of a deed have been recognized where an injustice, sufficient to raise an equitable trust, would otherwise result ․ In such cases, a trust does not arise so much by reason of the parol agreement of the parties but by operation of law.”  (Citations omitted;  internal quotation marks omitted.)  Jarvis v. Lieder, 117 Conn.App. 129, 142, 978 A.2d 106 (2009).   Similarly, “oral agreements concerning interests in land are unenforceable,” but “the law is established that the Statute of Frauds does not apply to trusts arising by operation of law.”  Hieble v. Hieble, 164 Conn. 56, 59, 316 A.2d 777 (1972).

The court rejects the plaintiffs' argument.   They argue that they may submit evidence in violation of the parol evidence rule and the statute of frauds because they are entitled to a constructive trust, but they have not demonstrated why they are entitled to a constructive trust.

The admissible portions of the original plaintiffs' affidavits establish the following relevant facts.   First, David Specyalski and his father Teofil Specyalski lived on the Farm until late 1964, when they were removed from the property by Joseph Specyalski and Valentine Specyalski.   Plaintiffs' Exhibit B, Affidavit of David Specyalski, ¶¶ 5, 6, 9. Second, Valentine Specyalski asked Annette McMahon before her first marriage if she wanted part of the Farm, and she declined.   Plaintiffs' Exhibit C, Affidavit of Annette McMahon, ¶ 7;  Plaintiffs' Exhibit D, Affidavit of Stephen Zimnewicz, ¶ 7.   Third, in 2000 or 2001, Carol Mitchell and the defendant, her brother, had an argument over the telephone when she was told that he alone would receive the Farm from Valentine Specyalski.   Plaintiffs' Exhibit E, Affidavit of Carol Mitchell, ¶ 8.   Finally, the affiants have always believed that Valentine Specyalski only had a life estate in the Farm, based on what they were told by their parents and conversations among family members.   Plaintiffs' Exhibit B, Affidavit of David Specyalski, ¶¶ 10-12;  Plaintiffs' Exhibit C, Affidavit of Annette McMahon, ¶¶ 5, 8;  Plaintiffs' Exhibit E, Affidavit of Stephen Zimnewicz, ¶¶ 5, 8;  Plaintiffs' Exhibit.   E, Affidavit of Carol Mitchell, ¶¶ 6-7.

The admissible portion of the cross claim plaintiff's affidavit establishes the following relevant facts.   First, the cross claim plaintiff's mother, Lottie Rebot, was “instrumental” in orchestrating the October 1963 Agreement and kept copies and originals of the Agreement and the documents attendant to the November 1963 probate proceedings, respectively.   Affidavit of Maryann Parker, ¶ 4, 6. Second, the cross claim plaintiff witnessed the signing of the October 1963 Agreement.   Affidavit of Maryann Parker, ¶ 5.   Third, the cross claim plaintiff was unaware that Valentine Specyalski had devised the Farm to the defendant until the transfer had occurred.   Affidavit of Maryann Parker, ¶ 7.   Finally, the cross claim plaintiff believes that “Valentine Specyalski did not act as if he was the owner of the property” because “[w]henever an issue came up in connection with the property,” such as a conveyance of part of the Farm to the defendant Paul Rebot, his nephew, “[he] did not unilaterally make decisions but consulted with his siblings in connection with any such decision.”   Affidavit of Maryann Parker, ¶ 9.

“[A] constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.”  Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980).  “Two elements must be demonstrated:  that the plaintiff was benefitted and that the benefit was unjust.”  Filosi v. Hawkins, 1 Conn.App. 634, 639, 474 A.2d 1261 (1984).   “[A] right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another.”  (Internal quotation marks omitted.)  Gagne v. Vaccaro, 255 Conn. 390, 408, 766 A.2d 416, 427 (2001).

The plaintiffs' admissible evidence provides no factual basis to determine that the plaintiffs have a reversionary interest in the Farm, such that the conveyance to the defendant occurred at their expense.   Unlike the evidence at issue in Jarvis, the evidence at issue in the present action does not cause the court to conclude that injustice sufficient to raise an equitable trust would result from its exclusion in deciding the present motion.   The court therefore concludes that the plaintiffs may not avail themselves of the exceptions to the parol evidence rule and the statute of frauds upon which they rely, and it will not consider their evidence for the purpose of contradicting the October 1963 Agreement and the documents attendant to the November 1963 probate proceedings.   Accordingly, there is no genuine issue of material fact regarding the nature of the conveyance made by the October 1963 Agreement and the documents attendant to the November 1963 probate proceedings.

Defense counsel avers:  “In the course of my title search, I ascertained that no instrument was recorded in the Middletown Land Records making any mention of the claim against the Farm Property asserted in this action until the plaintiffs' lis pendens, which was recorded on May 15, 2009.   I further ascertained that no instrument was recorded in the Middletown Land Records that purported to divest Valentine Specyalski of his fee interest in the property, except for the warranty deed ․ by which he granted a portion of the property to his nephew Paul Rebot and Paul's wife.”   Affidavit of William O'Sullivan, ¶ 6.   The plaintiffs do not challenge this averment.   The court therefore concludes that Valentine Specyalski's chain of title was not subject to any recorded notice of the reversionary interest allegedly held by first his siblings and then his nieces and nephews during the forty-year period provided by the Act, and the defendant may take fee title in the Farm via the devise in Valentine Specyalski's will, free of such interest.   Because the Act renders the plaintiffs' alleged reversionary interest null and void, and their action for a constructive trust and declaratory judgment is wholly based on the enforceability and validity of their alleged interest, the court concludes that the defendant is entitled to a judgment as a matter of law and grants his motion for summary judgment.⁶

Burgdorff, J.

FOOTNOTES

FN1. The plaintiffs brought a related probate appeal against the defendants, Mitchell v. Redvers, Superior Court, judicial district of Middlesex, Docket No. CV 09 4010266, which was dismissed by the court, Bear, J., on December 17, 2009 [49 Conn. L. Rptr. 41]..  FN1. The plaintiffs brought a related probate appeal against the defendants, Mitchell v. Redvers, Superior Court, judicial district of Middlesex, Docket No. CV 09 4010266, which was dismissed by the court, Bear, J., on December 17, 2009 [49 Conn. L. Rptr. 41].

FN2. For ease of reference, and because their respective actions are identical, the court will hereinafter refer to the plaintiffs and the cross-claim plaintiff collectively as the plaintiffs, except as otherwise noted..  FN2. For ease of reference, and because their respective actions are identical, the court will hereinafter refer to the plaintiffs and the cross-claim plaintiff collectively as the plaintiffs, except as otherwise noted.

FN3. General Statutes § 1-2z provides:  “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”.  FN3. General Statutes § 1-2z provides:  “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

FN4. The inventory of the estate describes the property at issue in the following manner:  “A certain piece or parcel of land with the buildings thereon situated in the Town of Middletown, County of Middlesex, and State of Connecticut, and bounded and described as follows:  NORTHERLY:  by land now or formerly of Dora Levy, and by land now or formerly of Jacob Kowal, in part by each;  EASTERLY:  by land now or formerly of Annie Nyjak;  SOUTHERLY:  by Boston Road, lands now or formerly of Evelyn Deren, Joseph Specyalski et ux, Peter Kowal et ux, Josephine Starr, Joseph S. Kmietek et ux, Mitchell J. Myjak et ux, Hans T. Braacker et ux, in part by each;  WESTERLY:  by George Street, lands now or formerly of Charles J. Pasieka et ux, Anthony S. Gioco et ux, Vincent J. Mozdziedz et ux, Anthony A. Gayeski et ux, Charles J. Pasieka, Joseph D. Nyjak et ux, Joseph Rebut et ux, and Henry Higson et ux, in part by each or however otherwise bounded and described as of record may appear.   Being the remaining portion of premises deeded to the decedent by Malvina H. Johnson by Warranty Deed dated May 22, 1914 and recorded in Volume 148, Page 104, of the Middletown land records.”   Affidavit of William O'Sullivan, Exhibit 2..  FN4. The inventory of the estate describes the property at issue in the following manner:  “A certain piece or parcel of land with the buildings thereon situated in the Town of Middletown, County of Middlesex, and State of Connecticut, and bounded and described as follows:  NORTHERLY:  by land now or formerly of Dora Levy, and by land now or formerly of Jacob Kowal, in part by each;  EASTERLY:  by land now or formerly of Annie Nyjak;  SOUTHERLY:  by Boston Road, lands now or formerly of Evelyn Deren, Joseph Specyalski et ux, Peter Kowal et ux, Josephine Starr, Joseph S. Kmietek et ux, Mitchell J. Myjak et ux, Hans T. Braacker et ux, in part by each;  WESTERLY:  by George Street, lands now or formerly of Charles J. Pasieka et ux, Anthony S. Gioco et ux, Vincent J. Mozdziedz et ux, Anthony A. Gayeski et ux, Charles J. Pasieka, Joseph D. Nyjak et ux, Joseph Rebut et ux, and Henry Higson et ux, in part by each or however otherwise bounded and described as of record may appear.   Being the remaining portion of premises deeded to the decedent by Malvina H. Johnson by Warranty Deed dated May 22, 1914 and recorded in Volume 148, Page 104, of the Middletown land records.”   Affidavit of William O'Sullivan, Exhibit 2.

FN5. The mutual distribution provides in relevant part:  “Valentine Specyalski shall take and have ․ the real estate listed in the inventory of the estate ․” Affidavit of William O'Sullivan, Exhibit 5. The allowance of account, ascertainment of heirs and order of distribution similarly provides in relevant part:  “Ordered ․ that a probate certificate, showing the title of the said Valentine Specyalski to the real property of said deceased be issued from this Court to the Land Records of the said Town of Middletown ․” Affidavit of William O'Sullivan, Exhibit 7. Finally, the probate certificate provides in relevant part:  “That in said Division, styled also a Mutual Distribution, the real estate of which said deceased died, seized and possessed, the same remaining intact upon the settlement, has been set forth to said Valentine Specyalski, son of said deceased, such real estate being declared in such division.”   Affidavit of William O'Sullivan, Exhibit 8..  FN5. The mutual distribution provides in relevant part:  “Valentine Specyalski shall take and have ․ the real estate listed in the inventory of the estate ․” Affidavit of William O'Sullivan, Exhibit 5. The allowance of account, ascertainment of heirs and order of distribution similarly provides in relevant part:  “Ordered ․ that a probate certificate, showing the title of the said Valentine Specyalski to the real property of said deceased be issued from this Court to the Land Records of the said Town of Middletown ․” Affidavit of William O'Sullivan, Exhibit 7. Finally, the probate certificate provides in relevant part:  “That in said Division, styled also a Mutual Distribution, the real estate of which said deceased died, seized and possessed, the same remaining intact upon the settlement, has been set forth to said Valentine Specyalski, son of said deceased, such real estate being declared in such division.”   Affidavit of William O'Sullivan, Exhibit 8.

FN6. Because the court grants the present motion based on the Act, it need not address the parties' arguments regarding the laches doctrine..  FN6. Because the court grants the present motion based on the Act, it need not address the parties' arguments regarding the laches doctrine.

Burgdorff, Mary-Margaret D., J.