Kevin Lebovitz v. LLC (2013)

MEMORANDUM OF DECISION ON MOTION OF DEFENDANT JEAN CEDDIA, ADMINISTRATRIX OF THE ESTATE OF FRANCES FERRERI, FOR SUMMARY JUDGMENT (# 117)

The complaint of the plaintiff, Kevin Lebovitz, includes four counts, all pertaining to an allegedly dangerous and defective railing on the front steps of the plaintiff's home over which the plaintiff alleges he was caused to fall, to his injury and damages.   The first count alleges negligence of Jean H. Ceddia, administratrix of the estate of Frances Ferreri, from which estate the plaintiff purchased the home.   The second through fourth counts allege negligence of other defendants.   On April 5, 2013, defendant Jean H. Ceddia, Administratrix (movant), moved for summary judgment on the first count.   Accompanying the motion is an affidavit of the movant, a purchase and sale agreement concerning a home at 123 High Street in Mystic, Connecticut (the premises), a settlement statement concerning the conveyance of the premises from the movant to the plaintiff and Heather Lebovitz, and a copy of a $10,000 check from the movant to the plaintiff and, on the same page as the check copy, a “Release and Receipt” signed by the plaintiff.¹  The plaintiff filed an objection, memorandum of law and exhibits A through L in opposition to the motion.   The motion was argued July 1, 2013.

FACTS

The following undisputed facts are relevant to the present motion.   The plaintiff is, with Heather Lebovitz, the owner of the premises.   The movant, as administratrix of the estate of Frances Ferreri, was responsible tor the premises, including its maintenance and preparation for sale, until the plaintiff purchased the premises from that estate.   Sometime prior to June 28, 2010, the movant hired a contractor, co-defendant Smith McArdle and Company, LLC, to make repairs to the premises.   In November of 2010, that contractor completed work on the stairs and porch of the premises.   At that time, the height of the stair railing in question was less than the applicable building code would require.   Nonetheless, the defendant Town of Groton, by the defendant building inspector Kevin Quinn, issued a certificate of occupancy for the premises on November 16, 2010.

On November 20, 2010, the plaintiff and Heather Lebovitz signed the purchase and sale agreement for the premises.   On November 22, 2010, the movant accepted the purchase and sale agreement by signing it.   The purchase and sale agreement did not include any agreement by the seller—the movant—to do any more construction.   In paragraph 18 of the purchase and sale agreement, the plaintiff and the movant agreed as follows:  “Buyer represents that Buyer has examined said property ․ and is satisfied with the physical condition thereof, subject to any additional provisions and/or any inspections/tests made a part of this Agreement.   Buyer further agrees neither Seller nor Seller's agent have made any representations or promises, other than those expressly stated herein, upon which Buyer has relied in making the Agreement ․ Buyer has the right to make a final walk-through examination of the premises prior to the closing to verify that Seller has made any repairs required by this Agreement, that the property is in the same condition as it was at the signing of this agreement and that Seller has met all contractual obligations.   If Buyer fails to conduct this walk-through examination, Seller's repair and maintenance obligations will be deemed satisfied.”   The purchase and sale agreement also included an integration clause—a disclaimer of side agreements—at paragraph 20, which further states:  “This Agreement and attached addenda (if any), represents the entire Agreement between the parties.   It shall not be changed orally but only by a written instrument which is signed by all parties.”

On December 16, 2010, the plaintiff and Heather Lebovitz completed the purchase of the premises and, before long, they occupied it as their home.   See Pl.'s Ex. F (email from plaintiff to movant dated April 18, 2011 stating, “we have been in our new home four months now and it is fantastic”).   On January 21, 2011, the plaintiff was notified that the town's building inspector and Smith McArdle had corrected all code violations and that the building inspector had no issue with the hand/guard railings on the stairs or porch being below Connecticut Building Code minimum height.

On April 29, 2011, the movant paid the plaintiff $10,000 and the plaintiff signed a “Release and Receipt” (the release) stating:  “ ․ I, Kevin Lebovitz, Purchaser of the real property located at 123 High Street, Mystic (Groton), Connecticut, hereby acknowledge the sum of $10,000 paid to me by Jean Hendren Ceddia, Executor of the Estate of Frances T. Ferreri.   In consideration of such payment, I hereby release and forever discharge said Jean Hendren Ceddia, her attorney, Deborah J. Tedford and the Estate of Frances T. Ferreri, of and from all claims and demands which I now have or hereafter may have against the Estate of Frances T. Ferreri.”   There was consideration for the plaintiff's signing of the release by way of a check in the amount of $10,000, which the plaintiff acknowledges receiving.

On November 28, 2011, the plaintiff, while walking on the front steps of the premises, allegedly fell over the stair railing in question and was injured.   On that day, and since the closing on December 16, 2010, the plaintiff, together with Heather Lebovitz, was the owner, and was in possession and control, of the premises.   Additional facts will be noted as necessary.

DISCUSSION

Summary judgment is a method of resolving litigation when pleadings, affidavits, and other proper evidence 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.  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012);  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56, 68 A.3d 1162 (2013).   The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   Once the movant has met that burden, however, the opposing party may defeat the motion only by presenting evidence that reveals a material, factual dispute.   Id. The court views the evidence in the light most favorable to the non-moving party.  Patel v. Flexo Converters U.S.A., Inc., supra, 309 Conn. 57.   Statements that are merely conclusions are not considered evidence for present purposes.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

Summary 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.'  “ (Citations omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The movant's grounds for the present motion are, first, that the plaintiff was in sole and exclusive control of the premises at the time of his fall and, second, that suit against the movant is barred by the plaintiff's April 29, 2011 release.

The essence of the first ground is that, as a matter of law, the movant did not owe a duty to the plaintiff the breach of which could be a triable issue of fact in this case.   The court does find that the plaintiff was, with no one other than Heather Lebovitz, in exclusive control of the premises at the time of his fall.   The administrator of an estate can only be liable for negligence on a theory of premises liability if he or she had a right to possession and control of the property at the time of the injury;  otherwise, there is no inherent duty to the injured plaintiff.   See LaFlamme v. Dallessio, 261 Conn. 247, 251–52, 802 A.2d 63 (2002).   That fact, however, does not end the inquiry as to whether the movant had a duty to the plaintiff in this instance.   For example, if, after or as part of the conveyance of the premises to plaintiff, the movant had agreed to construct or repair the railing over which the plaintiff fell and the movant did not do so with the appropriate standard of care, the fact that the plaintiff owned and controlled the premises would not negate a duty to which the movant agreed.   However, the sum of the facts presented—most of which are the plaintiff's own allegations—is that the movant's work on the premises was done, and a certificate of occupancy was issued, before the plaintiff entered into the purchase and sale agreement, let alone closed on the purchase of the premises.   The court concludes, as a matter of law, that the movant did not have a duty to repair, rebuild or otherwise improve the stair railing in question—the railing over which the plaintiff alleges he fell—after the closing on December 16, 2010.

More fundamentally, the court finds that the plaintiff has not sufficiently alleged such a duty.   In essence, the first count alleges that there was, despite the purchase and sale agreement's provisions regarding the plaintiff's acceptance of the premises in their condition at the time and the absence of any warranties or tacit side agreements, a side agreement with the movant to make the premises comply “with the applicable building codes,” which created a duty that the movant breached.   Specifically, in paragraph 4 of count one, the plaintiff alleges:  “In signing the [purchase and sale agreement], it was understood and agreed by the parties that the Defendant [movant] would make necessary repairs to the property in accordance with the applicable building codes.”   To the contrary, the court finds that the plaintiff acknowledged in the purchase and sale agreement that there was no such side agreement.   The plaintiff agreed to purchase the premises “in their present condition,” as provided by paragraph 18 of the agreement.   Moreover, that provision specifically states that the plaintiff “agrees neither Seller nor Seller's agent have made any representations or promises, other than those expressly stated herein, upon which Buyer has relied in making the Agreement.”

The agreement also contains an integration clause, also known as a merger clause, at paragraph 20.   The language of paragraphs 18 and 20 of the agreement are emphasized here because, when parties have deliberately and clearly put their agreements in writing, in terms manifesting a legal obligation, it is conclusively presumed that the entire agreement is in that writing.   Where there is such a writing, “ ‘to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme.’  ․ Although there are exceptions to this rule, we continue to adhere to the general principle that the unambiguous terms of a written contract containing a merger clause may not be varied or contradicted by extrinsic evidence.”  (Citation omitted;  footnote omitted.)  Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 502–03, 746 A.2d 1277 (2000).   The parol evidence rule is a rule of substantive law rather than a rule of evidence.   See Damora v. Christ–Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981).   If a written contract is found to be the final repository of parties' agreements, evidence of a prior unwritten agreement would not be allowed to have any effect on the integrated, written agreement.   Id.

According to the plaintiff's complaint, the movant's alleged promise to repair the railing occurred not later than when the purchase and sale agreement was entered into.   Although the plaintiff has submitted e-mails in an attempt to prove the existence of an oral side agreement, he has not argued for any exception—such as ambiguity, mistake, or fraud—that would allow the court to consider this extrinsic evidence nor does this court find any such exception See Tallmadge Bros, Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 503 n.14. Furthermore, even if the court were to credit such evidence, the language of the purchase and sale agreement indicates that the plaintiff specifically disclaimed the alleged side agreement, based on paragraph 18 and the integration clause.   See id., 502–04.   The plaintiff also has not alleged in his complaint, nor provided any evidence to prove, that any new agreement to repair the railing was formed between the parties after they entered into the purchase and sale agreement.   Therefore, the plaintiff's attempt to assert a post-closing duty to alter—implicitly to reconstruct and raise—the railing in question fails and, without a proper allegation of duty, there can be no negligence claim.   See LaFlamme v. Dallessio, supra, 261 Conn. 251 (duty is an essential element of a negligence action).

The plaintiff's claim is also barred by the April 29, 2011 release.   The release is an agreement:  for consideration received, the plaintiff “release[d] and forever discharge[d] said Jean Hendren Ceddia, her attorney, Deborah J. Tedford and the Estate of Frances T. Ferreri, of and from all claims and demands which I now have or hereafter may have against the Estate of Frances T. Ferreri.”   A release is an agreement to give up or discharge a claim through a surrender of the rights stated in the release, and it is subject to the rules governing the construction of contracts.  Viera v. Cohen, 283 Conn. 412, 427–28, 927 A.2d 843 (2007).   A release is not suspect merely because its scope is sweeping.   See, e.g., In re AMR Corp., 491 B.R. 372, 378–79 (Bankr.S.D.N.Y.2013).   In our society, sweeping, general releases are used daily in many situations and are enforced unless grounds such as lack of consideration, incapacity, duress, mistake or fraud are shown.   See 1 Restatement (Second), Contracts § 7, comment (b) (1981);  id., § 17.

The plaintiff contends that the release, despite its broad terms releasing “all claims and demands which I now have or hereafter may have against the Estate,” was only intended to apply to claims regarding the movant's obligation to repair the porch roof.   He insists that the parties did not intend for it to apply to claims concerning the allegedly defective stair railing.   The court concludes, however, that the release language is clear and unambiguous.   Once a contract has been determined to be unambiguous, the proper interpretation and construction of the contract becomes a question of law for the court, and the court must give the contract effect according to its terms;  Gould v. Mellick & Sexton, 263 Conn. 140, 151, 819 A.2d 216 (2003);  see also Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008).   Any ambiguity in a contract must emanate from its language, not from one party's perception of its language.  Ramirez v. Health Net of the Northeast, Inc., supra, 13.   A court will not torture words to find ambiguity when their ordinary meaning leaves room for none.  Gould v. Mellick & Sexton, supra.   “Words do not become ambiguous simply because lawyers and laymen contend for different meanings.”  Marcolini v. Allstate Insurance Co., 160 Conn. 280, 284, 278 A.2d 796 (1971).   Absent fraud or incompetence, the circumstances surrounding the making of a contract, the purposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the contract language.   See DeCarlo & Doll, Inc. v. Dilozir, 45 Conn.App. 633, 639, 698 A.2d 318 (1997).   Therefore, the court cannot consider the plaintiff's personal interpretation of the release's scope.   As a result, the court shall determine the effect of the April 29, 2011 release based solely on its plain language, which expressly released all present and future claims against the estate.

In this case, the plaintiff acknowledges he signed the release and received money from the movant at that time.   The court finds that the money paid to the plaintiff on April 29, 2011, was not money equitably or conditionally owned by the plaintiff since the closing or under the purchase and sale agreement.²  It was, as the plaintiff stated when he signed and delivered the release, at least partly in consideration for the release.   It was adequate consideration for the release.   The release could not legally cover claims arising from conduct by the movant after the release was delivered.  Muldoon v. Homestead Insulation Co., 231 Conn. 469, 481–82, 650 A.2d 1240 (1994) (release language covering future claims is ordinarily construed to cover only extant claims not yet manifested).   However, the release does not purport to do so.   The release does cover claims and demands arising from conduct by the movant up to the time of the release.   Although the plaintiff's alleged injury occurred after his signing of the release, the negligent conduct that allegedly caused the injury—failing to repair the stair railing—occurred prior to the signing of the release.   Therefore, subsequent injuries and damages stemming from that allegedly negligent conduct were disclaimed by the anticipatory language of the release.   Since the plaintiff has not alleged conduct—acts or omissions—of the movant after delivery of the release which conduct supports his negligence claim in count one, the release provides an alternate ground for granting the present motion.

For the reasons stated, the motion of Jean H. Ceddia, administratrix of the estate of Frances Ferreri, for summary judgment is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The movant's affidavit does not verify the authenticity of the other four documents attached to the movant's brief, but the plaintiff does not dispute their authenticity..  FN1. The movant's affidavit does not verify the authenticity of the other four documents attached to the movant's brief, but the plaintiff does not dispute their authenticity.

FN2. The plaintiff refers to the money as an escrow.   That may be a correct description, but, if it is, there is no basis in the December 16, 2010, settlement statement for concluding it was an escrow of funds due to the plaintiff from the funds handled at the closing of his (and Heather Lebovitz's) purchase of the premises that day..  FN2. The plaintiff refers to the money as an escrow.   That may be a correct description, but, if it is, there is no basis in the December 16, 2010, settlement statement for concluding it was an escrow of funds due to the plaintiff from the funds handled at the closing of his (and Heather Lebovitz's) purchase of the premises that day.

Cole–Chu, Leeland J., J.