Peter A. Litwin v. John Anderson (2013)

RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 139)

By motion filed October 17, 2012, the plaintiff, Peter Litwin, moved for summary judgment as to count four of his complaint and as to the defendant's counterclaim.   He also requests that the court enter a judgment rendering a purported “bill of sale” void because it fails to comply with General Statutes § 45a–251.   The defendant, John Anderson, objected to the motion on May 2, 2013.   This matter came before the court and was heard on May 6, 2013.   The motion for summary judgment is granted, in part, and denied, in part.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff's four-count amended complaint, filed on February 22, 2012, alleges that he is the executor of the estate of Joseph F. Kava, having been appointed to that responsibility by the Litchfield Probate Court on November 29, 2011.   The plaintiff claims that Joseph F. Kava (“Kava”) died on November 25, 2011, leaving a will dated January 17, 1996, which was accepted by the probate court.   The complaint alleges that the defendant has taken a significant amount of personal property from Kava's estate.

Counts one through four of the amended complaint allege conversion, unjust enrichment, statutory theft and an action to settle title to land, respectively.   The fourth count alleges that the defendant claims a life estate in 606 Milton Road, Litchfield, Connecticut (the “real property”).   The plaintiff claims that he is the absolute owner of that property by virtue of his appointment as executor.   Count four seeks a judgment “determining the rights of the parties in or to the land and settling the title thereto.”

The defendant filed a counterclaim on June 26, 2012, which the plaintiff answered on July 26, 2012.¹  Count one of the counterclaim alleges that, on November 12, 2011, Kava conveyed certain items of personalty and a life use in the real property to the defendant for the sum of ten thousand ($10,000) dollars.   In the second count, the defendant alleges that he had “irreplaceable family photographs and memorabilia,” as well as “personal papers and valuable furnishings” in Kava's residence, which the plaintiff discarded “over the defendant's objection or converted to his use.”

The plaintiff filed a motion for summary judgment on August 1, 2012.   He requested that summary judgment enter as to the fourth count of the complaint and as to the claim of a life estate, as set forth in the counterclaim.   On September 18, 2012, that motion was denied by the court, Pickard, J., without prejudice to another motion for summary judgment being filed.   The court denied the motion for summary judgment, in part, because the plaintiff did not support his motion with a sworn or certified copy of the document at issue, as is required by Practice Book § 17–46.   Second, the plaintiff did not present sufficient evidence that Kava had good title to the real property at the time of his death.

The plaintiff filed a renewed motion for summary judgment on October 17, 2012, seeking, essentially, the same relief that he sought in the first motion.   He supported the renewed motion with the documentary evidence identified by the court in its September 18, 2012 ruling.

II

PLAINTIFF'S POSITION

The plaintiff moves for summary judgment, arguing that there are no genuine issues as to any material fact with respect to the fourth count of the amended complaint and with respect to the defendant's counterclaim.   The plaintiff supports his motion with a certified copy of an alleged “bill of sale” which, the defendant claims, was the instrument by which Kava conveyed the personal property and a life estate in the real property to the defendant.   The plaintiff also supports his motion with an affidavit and a supplemental affidavit of the plaintiff, the plaintiff's appointment as executor;  a certified copy of the deed to the real property;  and a certified copy of the defendant's responses to the plaintiff's request for production of documents.

The plaintiff argues that the “bill of sale,” by its terms, is effective only after Kava's death, and, as such, makes the document subject to the requirements of the Statute of Wills, General Statutes § 45a–251.

III

DEFENDANT'S POSITION

The defendant opposes the motion for summary judgment, asserting that the “bill of sale” gives him an equitable interest of a life estate in the real property and that, with regard to the personalty listed in the “bill of sale,” “the parties' intent was not to defer the transfer until death, but to effect a present transfer.”   The defendant argues that the “bill of sale” “is not a will or a codicil, but rather a memorandum, stating consideration, and an unacknowledged deed granting the defendant a life estate in the property.”

The defendant supports his position with his affidavit in which he claims that he paid Kava $10,000, beginning in March 2010 and continuing through March 2011.²  The defendant claims that he drafted the bill of sale “[a]s the decedent's health deteriorated during the autumn of 2011,” and that he took possession of a majority of the items listed in the bill of sale prior to Kava's death.

IV

DISCUSSIONASummary Judgment Standard

Summary judgment is appropriate if the pleadings, affidavits, and other proof submitted show that there are no genuine issues as to material fact and that the moving party is entitled to judgment as a matter of law.  Practice Book § 17–49.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 595–96, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).  “[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.”  (Internal quotation marks omitted.)  Id., 596;  see DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115–16, 49 A.3d 951 (2012).

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue-determination, is the key to the 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.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557–58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

“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 ․ 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 under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).

B

Analysis

The “bill of sale” is dated November 12, 2011.   It is undisputed that Kava died on November 25, 2011.   Much of the handwritten “bill of sale” is indecipherable.   To the extent that it can be read, it appears to state as follows:

“November 12, 2011

Bill of Sale

1 Honda CRV (silver) 1 Echo [indecipherable] tractor + 1 riding leaf blower, Husqvarna chainsaw + 1 John Deere chain saw, [indecipherable] (All) 1 drill press + belt sander. 1 old red Honda car, 1 Massey Ferguson Model # 65 Tractor & bushhog [indecipherable] and 1 handmade wooden [indecipherable] Wisconsin 9 horse engine 1959 power [indecipherable], 11987 GMC pickup, + Fischer snow plow, all mechanical or automotive related items.   All this is sold to John Anderson in consideration of his check in the amount of $5,000 and cash in the amount of $5,000.   Mr. Anderson has given me his help.   And it is my wish that he receive life use of my property as he is more able to help his fellow man than I was.   His ownership is to take its' [sic] effect after my death.   Joseph F. Kava.”

The foregoing “bill of sale,” is neither witnessed nor notarized, and the defendant makes no claim to the contrary.   The Statute of Wills states in relevant part that “[a] will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator's presence ․” General Statutes § 45a–251.   It is clear that a purported transfer of property, with intent presently to transfer no interest but to defer the transfer until death, can be validly accomplished only by an instrument which complies with the requirements of the Statute of Wills.  Costello v. Costello, 136 Conn. 611, 614–15, 73 A.2d 333 (1950).

Notwithstanding the arguments set forth in his brief, at oral argument the defendant conceded that the purported creation of a life estate in the “bill of sale” is ineffective in that it was an interest not intended to exist until after Kava's death.   The defendant correctly conceded that an instrument attempting to convey such an interest could only be valid if it complied with the Statute of Wills.   There is no dispute about the fact that the bill of sale does not comply with the Statute of Wills.   The motion for summary judgment as to the fourth count of the amended complaint is granted.

The parties agree that the sole remaining issue is whether the apparent attempt to transfer personalty for consideration, as set forth in the “bill of sale,” is also subject to the Statute of Wills.   The defendant claims that he acquired some, but not all, of the items described in the “bill of sale” prior to Kava's death.

“One may transfer property in such a way that interests in it will arise only at his death, and he may transfer it in contemplation of his death, in lieu of making a will;  but to be valid such transfers must convey a present interest ․ One may not make a valid transfer of property where the intent is not to convey a present interest, but solely to create interests which will arise at death, except in compliance with the requirements of the Statute of Wills;  and any such attempted transfer is void ․ If this were not so it would lie in the power of any person at any time, by making conveyances of property, to circumvent the statute.   The intent of the transferor, whether to convey a present interest or to make a disposition of his property to take effect only at his death, is the controlling element in determining the validity of a transfer ․ That a transfer of property was executed and delivered with intent to make a testamentary disposition of it, may be shown by parol evidence;  this would not be to vary the terms of the instrument but to establish the underlying illegality of the transaction.”  (Citations omitted.)  Bowen v. Morgillo, 127 Conn. 161, 167, 14 A.2d 724 (1940).

It is not possible, in the context of a motion for summary judgment, to determine exactly what is intended by the “bill of sale” with regard to the items of personal property listed in that document.   The final sentence of the “bill of sale” is that “[the defendant's] ownership is to take its' [effect] after my death.”   The document fails to state whether the “ownership” refers merely to the purported life estate interest or whether it refers to everything purportedly conveyed by the “bill of sale.”   Thus, it is not clear if the “bill of sale” is intended to be a contract for the sale of goods that were previously conveyed, that were intended to be conveyed upon the execution of the bill of sale, or that were intended to be conveyed upon Kava's death.³

At oral argument, the defendant and the plaintiff appeared to agree, at least to some extent, that the last sentence of the document is arguably ambiguous.   To be sure, to the extent the instrument is intended to be a contract for the sale of goods, a basic principle of contract interpretation provides that “[w]hen there is ambiguity, [the court] must construe contractual terms against the drafter.”  (Internal quotation marks omitted.)  Cameron v. Avonridge, Inc., 3 Conn.App. 230, 233, 486 A.2d 661 (1985).   In this case, the defendant admits that he drafted the document.   However, on a motion for summary judgment the court's role is to identify, and not resolve, disputed facts.  Keller v. Beckenstein, supra, 117 Conn.App. 557–58.

There exist genuine issues of material fact with regard to, at least, the correct interpretation of the last sentence of the “bill of sale.”   It is anticipated that the apparent intent of the parties will be determined by a consideration of “not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish.”  Connecticut Co. v. Division 425, 147 Conn. 608, 616, 164 A.2d 413 (1960).   The latter task, in the context of this case, cannot be accomplished on a motion for summary judgment.

V

CONCLUSION

The motion for summary judgment is granted as to the fourth count of the amended complaint.   The motion for summary judgment is granted as to that aspect of the first count of the counterclaim that alleges that the defendant is entitled to a life use in the real property known as 606 Milton Road, Litchfield, Connecticut.   As to the balance of the first count of the counterclaim, the motion for summary judgment is denied.⁴  Finally, and for all of the foregoing reasons, the court grants the motion for summary judgment requesting “a judgment rendering the purported ‘bill of sale’ void” only insofar as the motion is directed at the purported creation of a life estate in the “bill of sale.”

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. On October 19, 2012, the defendant again filed a counterclaim.   The second counterclaim, which appears to be an amended counterclaim, was improperly filed in that the filing did not conform to the requirements of Practice Book § 10–60(a)(3).   Therefore, the original counterclaim must be treated as the operative counterclaim.   The improperly filed amended counterclaim cannot be considered..  FN1. On October 19, 2012, the defendant again filed a counterclaim.   The second counterclaim, which appears to be an amended counterclaim, was improperly filed in that the filing did not conform to the requirements of Practice Book § 10–60(a)(3).   Therefore, the original counterclaim must be treated as the operative counterclaim.   The improperly filed amended counterclaim cannot be considered.

FN2. The defendant does not explain why he began making payments to Kava in March 2010..  FN2. The defendant does not explain why he began making payments to Kava in March 2010.

FN3. The defendant, himself, complicates this issue by asserting in his affidavit that he “had possession of a majority of the items listed in the bill of sale prior to the decedent's death.”  (Emphasis added.)   This assertion gives rise to multiple questions, such as why the defendant allegedly paid for goods that he never received and/or whether he took items after signing the bill of sale but without Kava's permission and in derogation of Kava's arguably stated intent that the defendant have no “ownership” interest until Kava's death..  FN3. The defendant, himself, complicates this issue by asserting in his affidavit that he “had possession of a majority of the items listed in the bill of sale prior to the decedent's death.”  (Emphasis added.)   This assertion gives rise to multiple questions, such as why the defendant allegedly paid for goods that he never received and/or whether he took items after signing the bill of sale but without Kava's permission and in derogation of Kava's arguably stated intent that the defendant have no “ownership” interest until Kava's death.

FN4. Although the motion for summary judgment is purportedly addressed to “the counterclaim,” neither party made any presentation relative to the second count of the counterclaim.   To the extent that the motion for summary judgment was intended to apply to the second count of the counterclaim, as well as to the first count of the counterclaim, the motion is denied..  FN4. Although the motion for summary judgment is purportedly addressed to “the counterclaim,” neither party made any presentation relative to the second count of the counterclaim.   To the extent that the motion for summary judgment was intended to apply to the second count of the counterclaim, as well as to the first count of the counterclaim, the motion is denied.

Danaher, John A., J.