Oronoque Village Condominium Association, Inc. v. Chris Bargas et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Before the court are two separate motions for summary judgment (# 106 & # 134) filed by all of the defendants.   The first motion (# 106) moves for summary judgment as to count one of the plaintiff's five-count amended complaint of November 21, 2012, on the ground that the statutory basis for count one is inapplicable to this case.   The second motion (# 134) moves for summary judgment as to all five counts on the two independent grounds that (1) each count is barred by the terms of a general release of liability that was executed between the parties in 1985, and (2) the plaintiffs are barred from asserting their claims either because they ratified the lease agreements and/or are estopped from challenging them based upon a renegotiation of the lease agreements during 1977 and 1978.   The defendants have requested that the court address (# 134) first and only reach (# 106) in the event that judgment is not granted on the basis of the grounds stated in (# 134).

BACKGROUND

On November 21, 2012, the plaintiff, Oronoque Village Condominium Association, Inc., filed its five-count amended complaint against the defendants.¹  The following facts, which are relevant to the present motions, are not disputed.   The plaintiff is the successor to twenty-five condominium associations that were created following the construction of Oronoque Village, a residential condominium development located in Stratford, Connecticut.   In the 1970s, nonparties Oronoque Development Corp. and Bargas, Inc. created a joint venture to develop Oronoque Village (the developer).   The new construction consisted of more than 900 units and 1,500 residents, and was accompanied by various amenities, including the “north community building” and “south community building” (collectively, the recreation facilities).   The developer retained legal title to the recreation facilities.

Between 1971 and 1976, during the course of the creation of Oronoque Village, the developer declared the twenty-five separate condominium associations that are the plaintiff's predecessors, following which the developer entered into a separate community facilities lease (the leases) with each condominium association.   These leases provide that the plaintiff must pay rent to the developer for the use of the recreation facilities, and each runs for a period of ninety-nine years, at the end of which possession reverts back to the developer.   Originally, the leases provided that the amount of rent due, $27.00 per month for the south community building and $30.00 per month for the north community building, would be connected to the consumer price index causing the rent to increase over time, beginning in 1980.

Sometime prior to 1978, the plaintiff attempted to purchase the recreation facilities from the developer, but the developer was unable to sell due to various tax issues.   Accordingly, instead, the plaintiff and the developer renegotiated the leases between 1977 and 1978.   The new lease agreements no longer called for an increase in rent as per the consumer price index, thus leaving the rent fixed at $27.00 per month and $30.00 per month for the entirety of the lease term for each lease.   In addition, as part of the renegotiation, the developer transferred legal title to four pieces of real property to the plaintiff.   Thereafter, on December 10, 1985, the plaintiff and the defendants executed a “release and indemnification agreement” (the release) that carves out certain claims not germane to the present dispute and otherwise purports to be a general release of all claims between the parties.

The plaintiffs seek through the present action to challenge the leases in a number of ways.   Count one alleges a cause of action for a violation of General Statutes § 47–74c ² of the Condominium Act, which provides, in broad terms, that a condominium developer may not retain an ownership interest in recreation facilities that are part of a condominium development.   In count two, the plaintiffs allege a cause of action for a violation of General Statutes § 47–210 ³ of the Common Interest Ownership Act, which in broad terms designates certain types of leases executed in relation to common interest communities as unconscionable.   Count three alleges that the leases are unconscionable as per the common law.   Count four alleges a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) pursuant to General Statutes § 42–110b(a).⁴  Count five seeks a judicial declaration that the leases are invalid and unenforceable.   In its prayer for relief, the plaintiff seeks, among other things, a declaration that the leases are invalid and are terminated, a declaration releasing the plaintiff from any and all liability pursuant to the leases, an order conveying title of the recreation facilities to the plaintiff, an order refunding the plaintiff all amounts paid pursuant to the leases with interest, punitive damages, fees, and costs.

On November 29, 2012, the defendants filed their first motion for summary judgment (# 106) as to count one of the complaint on the ground that § 47–74c is inapplicable to this case because each of the leases was entered into prior to January 1, 1977, and the Condominium Act explicitly provides, in § 47–90c,⁵ that § 47–74c is applicable only to leases entered into after that date.   The motion is accompanied by a supporting memorandum of law and two exhibits:  each a certified copy of one of the twenty-five declarations issued at the time Oronoque Village was originally constructed.   The plaintiff filed a memorandum in opposition on January 28, 2013 that is not accompanied by exhibits.   On February 7, 2013, the defendants filed a memorandum in reply.

On May 30, 2013, the defendants filed their amended answer and special defenses.   The first special defense alleged that the plaintiff's claims were barred by a general release executed by the plaintiff in favor of the defendants on December 10, 1985 (the release).   On June 18, 2013, the defendants filed their second motion for summary judgment (# 134) as to each count of the plaintiff's amended complaint on the two independent grounds that (1) each count is barred by the terms of the release, and (2) each count of the complaint is barred by the doctrines of ratification and/or estoppel in relation to the 1977–1978 renegotiation of the leases.   The motion is accompanied by a supporting memorandum of law, four affidavits, and various authenticated exhibits numbered 1–14.   On July 26, 2013, the plaintiff filed a memorandum in opposition that is not accompanied by exhibits.   The defendants filed a memorandum in reply on August 15, 2013.   It is accompanied by one affidavit and authenticated exhibits number 15–30.   On August 21, 2013, the plaintiff filed the affidavit of Arnold J. Grant, its expert witness, in objection to the defendants' June 18, 2013 motion for summary judgment.   With the permission of the court, the defendants filed an additional affidavit responding to the Grant affidavit on August 28, 2013.

The court heard oral argument on the two motions on August 28, 2013.   Thereafter, on August 29, 2013, the plaintiff filed a motion for permission to file an additional affidavit for the purpose of authenticating the purported 1992 release agreement between the parties that the plaintiff contends supersedes the 1985 release.   The defendants filed an objection on September 5, 2013, and the plaintiff filed a memorandum in reply on September 11, 2013.   The court heard oral argument on the motion for permission on October 9, 2013, at which it denied the motion on the record after finding that allowing the additional affidavit would prejudice the defendants.⁶

Further facts will be recited as necessary.

DISCUSSION

AStandard on Summary Judgment

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

“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 ․ 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

B

June 18, 2013 Motion for Summary Judgment

In accordance with the defendants' request, the court will first address the June 18, 2013 motion (# 134) by examining whether the scope of the release includes the present claim, followed by whether the enforcement of the release in the present context violates public policy.

1

Construction of the Language of the Release

“A release is an agreement to give up or discharge a claim ․ It terminates litigation or a dispute and [is] meant to be a final expression of settlement ․ A release acts like a contract and, as with any contract, requires consideration, voluntariness and contractual capacity.”  (Citations omitted;  internal quotation marks omitted.)  Viera v. Cohen, 283 Conn. 412, 427–28, 927 A.2d 843 (2007).  “Although the intention of the parties typically is a question of fact, if their intention is set forth clearly and unambiguously, it is a question of law.”  (Internal quotation marks omitted.)   State v. Philip Morris, Inc., 289 Conn. 633, 643, 959 A.2d 997 (2008).   “[A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms ․ When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 13.  “Similarly, [w]e accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract ․ Where the language is unambiguous, we must give the contract effect according to its terms ․ Where the language is ambiguous, however, we must construe those ambiguities against the drafter.”  Id., at 13–14.  “[T]he question is not what intention existed in the minds of the parties but what intention is expressed in the language used ․ In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words ․” (Emphasis omitted;  internal quotation marks omitted.)  Cruz v. Visual Perceptions, LLC, 136 Conn.App. 330, 336 n.3, 46 A.3d 209, cert. granted on other grounds, 306 Conn. 903, 52 A.3d 730 (2012).   A “compromise agreement ․ if free from fraud, mistake or undue influence ․ is conclusive between the parties.”  (Internal quotation marks omitted.)  Gengaro v. New Haven, 118 Conn.App. 642, 649, 984 A.2d 1133 (2009).

In Tallmadge Bro., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 499, 746 A.2d 1277 (2000), the court concluded that the language of a release was sufficiently broad to include the claims asserted by the plaintiff.   There, the defendant constructed an underwater pipeline across the plaintiff's oyster fishing beds.   Prior to doing so, the plaintiff and the defendant, both sophisticated corporate entities, negotiated and executed a release, which provided by its terms that it settled all claims “by reason of any matter, cause or thing whatsoever, incident to the construction of the [p]ipeline, and any acts in connection therewith ․” Id. (Emphasis omitted;  internal quotation marks omitted.)

After the pipeline had been completed, the plaintiff brought suit, alleging that the defendant had represented during negotiations that the pipeline would only require a two-hundred-foot-wide channel, but in actuality constructed a three-hundred-foot-wide channel.   The court interpreted the above language to be broad enough to include the plaintiff's claim, observing “[i]t is well-nigh impossible to imagine a more all encompassing release.”  Tallmadge Brothers, Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 499.

Finally, the court is aware that the language of the 1985 release at issue in this case was previously interpreted in a different case before the Superior Court:  Oronoque Village Condominium Association, Inc. v. Bargas, Superior Court, judicial district of Fairfield, Docket No. CV–247651–S (April 20, 1990, Jones, J.).   There, the court interpreted the language of the same release that is as issue in this case and concluded that it precluded this plaintiff's claims, which this court construes as persuasive in the present context.⁷

Here, the release provides, in pertinent part:  “ORONOQUE VILLAGE CONDOMINIUM ASSOCIATION, INC ․ referred to herein as the RELEASOR ․ in consideration of One Dollar ($1.00) ․ in hand paid by ORONOQUE HILLS (a joint venture,) BARGAS, INC., ORONOQUE DEVELOPMENT CORP., CHRIS B. BARGAS, NORMAN HAFLICH, THOMAS WHITE, PETER B. O'CONNELL, LUCY D. SALATA, JOYCE ALBER, DAVID O. CHITTICK, JAMES BARGAS (individually, and as custodian for ELKE BARGAS, STEPHANIE BARGAS AND CHRIS BARGAS), THOMAS BARGAS (individually and as custodian for JAMIE B. BARGAS, JILL BARGAS AND LISA BARGAS), JOHN BARGAS, HARRY AGAHIGIAN, LESTER CRABB, GENE (EUGENE F.) ALEXANDER, JOHN WEIDMAN, GEORGE A. KREGLING, JR., JOHN TIANI, ARTHUR BURGER, NELSON DOWNS, FRANK FRAMPTON, WILLIAM GAYGAN, WILLIAM E. MIKOLASY, HURL S. WESCOTT, THOMAS J. DOLAN, HOWARD INDUSTRIES, INC., FAIRFIELD LUMBER & SUPPLY CO. AND WIN–DOR PRODUCTS, INC., individually and collectively referred to herein as the RELEASEES ․ does hereby, for itself, its members, administrators, successors and assigns remise, release, acquit and forever discharge the RELEASEES and their respective agents, servants, successors, heirs, executors, administrators, assigns and all other persons, firms and corporations of and from any and all accountings, actions, agreements, bonds, causes of action, claims, compensation, consortium, contracts, controversies, conveyances, costs, damages, debts, demands, endorsements, executions, expenses, extents, judgments, losses, obligations, promises, reckonings, rights, services, specialties, suits, trespasses and variances, in law or in equity, which the RELEASOR ever had, now has or can, shall or may have, for, upon or by reason of any matter, cause or things, of any kind whatsoever, against the RELEASEES, from the beginning of the world to the day of the date of these presents.”

The release continues:  “The RELEASOR further acknowledges and agrees that the intention of this Release is a full and complete discharge of all claims, of any kind whatsoever, which RELEASOR may have against RELEASEES in order to resolve all disputes between and among RELEASOR and RELEASEES, whether foreseen or unforeseen, in their entirety ․” The release then proceeds to reserve to the releasor the right to seek declaratory judgments as to certain claims that were pending at the time in an action captioned Brotman v. Bargas, Superior Court, judicial district of Fairfield, Docket No. CV–82–0201812–S.   Finally, the release contains a merger clause that provides:  “The RELEASOR further declares and represents that no promise, inducement or agreement, not herein expressed, has been made to the RELEASOR, and that this Release contains the entire agreement between the RELEASOR and RELEASEES, and that the terms of this Release and Indemnification Agreement are contractual and not a mere recital.”

The above language is clear and unambiguous.   Of particular significance to the present case, the release provides that the plaintiff:  “does hereby ․ release, acquit and forever discharge the RELEASEES ․ from any and all ․ causes of action [and] claims ․ in law or in equity, which the RELEASOR ever had, now has or can, shall or may have, for, upon or by reason of any matter, cause or things, of any kind whatsoever, against the RELEASEES, from the beginning of the world to the day of the date of these presents”;  and:  “The RELEASOR further acknowledges and agrees that the intention of this Release is a full and complete discharge of all claims, of any kind whatsoever, which RELEASOR may have against RELEASEES in order to resolve all disputes between and among RELEASOR and RELEASEES, whether foreseen or unforeseen, in their entirety ․” (Emphasis added.).   This language plainly provides that the defendants are absolved of liability from any causes of action which are in existence at the time of execution whether or not the plaintiff knew of such claims.   It is also significant that the parties saw fit to carve out certain claims in the release, thereby indicating that had they intended to exclude the present claim from the scope of the release, they knew how to do so.   Thus, when read in the context of the release as a whole, the above language makes clear that the release was intended to cover all claims between the parties that then existed, including claims that may have been unforeseen.   Based on the foregoing, the court finds that the terms of the release are broad enough to include the present claim.

Accordingly, the defendants have met their burden of demonstrating the absence of a genuine dispute of material fact such that they are entitled to judgment as a matter of law.   It therefore becomes incumbent upon the plaintiff to present evidence or argument rebutting the defendants' entitlement to judgment.

2

Whether the Present Claim Existed at the Time the Release Was Executed

The plaintiff first argues that the present claim is based upon statutory language from § 47–210 that did not exist at the time the release was executed, and as a matter of public policy a party cannot release a claim that does not yet exist.  “The usual general release ․ is not ordinarily construed to include in its coverage claims based upon occurrences which have their beginning after the instrument is executed.”  (Internal quotation marks omitted.)  Sakon v. Manager, 113 Conn.App. 802, 805, 969 A.2d 781 (2009) (release did not apply to conduct occurring seven years after release signed).  “Except in very rare instances, the settlement and release of a claim does not cover claims based on events that have not yet occurred.”  Muldoon v. Homestead Insulation Co., 231 Conn. 469, 481, 650 A.2d 1240 (1994).  “For that reason, language covering future claims and unknown claims in releases is ordinarily construed to cover only inchoate claims that are in being at the time of release but which have not yet manifested themselves.”  (Internal quotation marks omitted.)  Id., 481–82.

In the present context, the plaintiff is incorrect that its claims did not exist at the time of the execution of the release because the plaintiff misconstrues the meaning of “events that have not yet occurred.”  Muldoon v. Homestead Insulation Co., supra, 231 Conn. 481.   Although the plaintiff is correct the statute underlying the plaintiff's claims did not exist at the time the parties executed the release, the facts underlying the claims—the execution of the leases—did.   This is significant because it is the facts underlying the plaintiff's claim that form the basis of that claim, not the passing of the statute, a conclusion confirmed by the text of the statute itself, § 47–210(a), which provides, in relevant part:  “It is the intent of the General Assembly that this section is remedial and does not create any new cause of action ․ “ (Emphasis added.)   Thus, the events that give rise to the plaintiff's claim are not the General Assembly's passing of the statute but, rather, the signing of the leases.   The court therefore finds this argument unpersuasive.

3

Whether Enforcement of the Release Violates Public Policy Enunciated in § 47–210 or § 47–74c

The plaintiff next argues that the release violates public policy as enunciated in § 47–210 or § 47–74c.   Respecting § 47–210, the plaintiff contends that this section expressly provides that leases such as the lease in this case are presumptively unconscionable and, accordingly, it would violate public policy for the court to enforce the release because the result would be to, in effect, enforce an unconscionable lease.

Contracts that violate public policy are unenforceable.  Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 326–27, 885 A.2d 734 (2005).   The parties agree that it is the General Assembly that determines the public policy of Connecticut.   See, e.g., Laurel Bank & Trust Co. v. Mark Ford, Inc., 182 Conn. 442, 438 A.2d 705 (1980);  General Motors Corp. v. Mulquin, 134 Conn. 118, 132, 55 A.2d 732 (1947).   Generally, however, courts have approached the prospect of invalidating a contract on the ground that it violated public policy with great caution.   See, e.g., Smith v. Connecticut Racquetball Club, Superior Court, judicial district of Fairfield, Docket No. CV–97–342983–S (June 3, 2002, Rush, J.) (32 Conn. L. Rptr. 283, 285 n.1) ( “Connecticut courts are reluctant to hold waivers and releases as unenforceable for violating public policy, and have held that [t]he principal that agreements contrary to public policy are void should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.”  [Internal quotation marks omitted] );  Mattei v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV–99–0265897–S (June 19, 2001, Booth, J.) (29 Conn. L. Rptr. 748, 749) (same);  Howroyd v. Clifford, Superior Court, judicial district of New Britain, Docket No. CV–96–565331–S (August 6, 1997, Sullivan, J.) (20 Conn. L. Rptr. 214, 215) (same).

Courts that have evaluated whether a contract violated public policy as contained in statute have evaluated whether the contract violated a clear and definitive mandate of that statute.   See, e.g., New Fairfield Board of Education v. Cortese, Superior Court, judicial district of Danbury, Docket No. CV–03–0349701–S (January 24, 2005, Mintz, J.) (38 Conn. L. Rptr. 616) (invalidating settlement of claim and release agreement when agreement violated express statutory mandate).   The same is true in other contexts where the issue has arisen, such as when courts evaluate whether an arbitration award violate public policy.   For example, in Marlborough v. AFSCME, Council 4, Local 818–052, 309 Conn. 790, 803 (2013), the court stated, “[i]t is well-understood that courts will not enforce an arbitration award if the award itself violates established law or seeks to compel some unlawful action.   However, this rule, which is sometimes referred to as a public policy exception, is extremely narrow ․ [I]t is plain ․ that an arbitration award may not be enforced if it transgresses well defined and dominant laws and legal precedents.   It is also clear ․ that judges have no license to impose their own brand of justice in determining applicable public policy;  thus, the exception applies only when the public policy emanates from clear statutory or case law ․” (Emphasis omitted;  internal quotation marks omitted).   See also, New Haven v. AFSCME, Council 15, Local 530, AFL–CIO, 208 Conn. 411, 419, 544 A.2d 1856 (1988) (“In the absence of a clear arbitral misreading of statutory mandates or other egregious arbitral violation of public policy, the city has failed to prove that the arbitral award should be vacated”).

Thus, in the present case, the court must interpret § 47–210 to determine whether it provides any statutory mandates that may be violated by the enforcement of the general release.  “The process of statutory interpretation involves a reasoned search for the intention of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply.   In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.”  Celentano v. Oaks Condominium Assn., 265 Conn. 579, 588, 830 A.2d 164 (2003) (interpreting other aspects of § 47–210).

Section 47–210(a) provides, in relevant part:  “The General Assembly expressly finds that many leases involving the use of land or recreational or other common facilities by residents of a residential common interest community were entered into by parties wholly representative of the interests of a residential common interest developer at a time when the residential common interest community unit owners not only did not control the administration of their residential common interest community, but also had little or no voice in such administration ․ Such lease may or may not be unconscionable in any given case.   Nevertheless, the General Assembly finds that a combination of certain onerous obligations and circumstances warrants the establishment of a rebuttable presumption of unconscionability of certain leases, as specified in subsection (d) of this section.   The presumption may be rebutted by a lessor upon the showing of additional facts and circumstances to justify and validate what otherwise appears to be an unconscionable lease under this section.”   Subsection (d) of § 47–210 goes on to provide that, for leases entered into prior to January 1, 1984, a rebuttable presumption of unconscionability is raised if the lease requires rent that exceeds fifteen percent of the appraised value of the leased property during the twelve months immediately preceding the commencement of the plaintiff's cause of action, and seven of eight factors exist.

Section 47–210 does not provide a statutory mandate that would be violated by the enforcement of the release.   The statute does not provide, for example, that leases falling within the scope of the statute are automatically null and void.   To the contrary, the statute provides that “such leases may or may not be unconscionable in any given case.”  General Statutes § 47–201(a).   Further, to achieve its purpose, the statute does no more than create a presumption of unconscionability that may be rebutted upon a proper showing by the lessor.   See General Statute § 47–210(e) (“The presumption set forth in subsection (d) of this section may be rebutted by a lessor upon the showing of additional facts and circumstances to justify and validate what otherwise appears to be an unconscionable lease under this section”).   That section does not, therefore, provide a well defined and dominant law;  Marlborough v. AFSCME, Council 4, Local 818–052, supra, 309 Conn. 803;  nor does it provide a clear statutory mandate;  New Haven v. AFSCME, Council 15, Local 530, AFL–CIO, supra, 208 Conn. 419;  that would be violated by enforcement of the release.⁸

The plaintiff also argues, however, that the release violates public policy because the release violates the strictures of § 47–74c.   The plaintiff contends that because the enforcement of the release would lead to the enforcement of the leases, and because § 47–74c provides that the leases are invalid, the enforcement of the release would violate public policy.   At oral argument, the defendant responded that § 47–74c is inapplicable to this case in accordance with the provisions of § 47–90c(a), which sets the effective date for § 47–74c.

Section 47–74c provides, in relevant part:  “The declarant shall not retain ownership of, and lease or otherwise require payment for the use of the recreation facilities nor shall the declarant convey such recreation facilities to any person other than to the unit owners of the condominium served by such recreation facilities, which shall be common elements of the condominium within which they are located or which they serve ․” Section 47–90c(a), in turn, provides:  “Sections 47–68a to 47–81, inclusive, ․ shall take effect January 1, 1977, and shall apply to all condominiums declared on and after said date ․” In the present case, there is no dispute that all of the twenty-five condominium associations that were predecessors to the plaintiff were declared prior to January 1, 1977.   Accordingly, § 47–74c is inapplicable to this case.

4

Whether the Present Claim is Within the Scope of the Release

The plaintiff's final argument in opposition to the enforcement of the release is that the present claim is not within the scope of the release because the release was executed in response to specific litigation, which was explicitly referenced by the release, and the present claim has no relation to that litigation.   In addition, the plaintiff argues that the present claim is not within the scope of the release because the release does not specifically identify the present claim as within its scope.   In support of its second argument, the plaintiff relies upon Hyson v. White Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003).   In response, the defendants argue that the language of the release is sufficiently broad to include the present claim.   The defendants also argue that Hyson is inapposite because that case concerned a negligence claim in the context of an exculpation clause executed by an unsophisticated consumer prior to snow tubing at a resort, and this case involves a contract dispute following the execution of a general release after extensive negotiations between sophisticated parties.   The court agrees with the defendants.

The court has already concluded, above, that the language of the release is sufficiently broad to include the present claim.   The fact that the release does not specifically reference this claim, or that the release does specifically carve out an exception relating to a different claim, while relevant, is not dispositive.   Instead, as with all contracts, the court must interpret the contract in accordance with the plain meaning of the language contained therein.   Here, the effect of that language is to create a general release of liability that includes the present claim.

Nor does the court find Hyson v. White Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 636 persuasive in the present context.   That case concerned an exculpation clause executed by an unsophisticated consumer who did not have the opportunity to negotiate over the terms of the release in the context of a personal injury negligence claim, facts that are significant because courts in our state have been reluctant to enforce exculpation clauses in such contexts.   See, e.g., Smith v. Connecticut Racquetball Club, supra, 32 Conn. L. Rptr. 283;  Mattei v. New Haven, supra, 29 Conn. L. Rptr. 748;  Fedor v. Mauwehu Council, 21 Conn.Sup. 38, 143 A.2d 466 (1958).   The court therefore finds Hyson distinguishable from the present case.

For the foregoing reasons, the plaintiff has failed to rebut the defendants' showing that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law for the reasons stated in the defendants' June 18, 2013 motion for summary judgment (# 134).

C

Other Arguments

Because the court has already concluded that the defendants are entitled to judgment as a matter of law, the court does not address the defendants' second ground for their motion, that the plaintiff is precluded by the doctrine of equitable estoppel or the doctrine of ratification from disputing the validity of the lease agreements.   Similarly, the court will not address the defendants' November 29, 2012 motion for summary judgment (# 106).

III

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment (# 134) is GRANTED.

HARTMERE,J.

FOOTNOTES

FN1. The complaint states five counts collectively against twenty defendants in total.   The defendants are:  Chris Bargas, Oronoque Community Clubhouses, LLC, the estate of John Bargas, David M. Bargas, Susan B. Griffin, Nancy Jankowsky, Rose Bargas, Jamie Bargas, Lisa B. Fitzmaurice, Chris B. Bargas, Elke Bargas, James Bargas, Thomas Bargas, Jill Bargas, Stephanie Bargas, Barbara Green as the trustee of the Norman Haflich Trust, Eric M. Gross as the trustee of the Norman Haflich Trust, the estate of Norman Haflich, the estate of Thomas J. White, and Thomas R. White.   The plaintiff's claims in its complaint and each of the arguments in the two motions for summary judgment are the same with respect to all the defendants.   Accordingly, they will be referred to as “the defendants” throughout the remainder of this memorandum..  FN1. The complaint states five counts collectively against twenty defendants in total.   The defendants are:  Chris Bargas, Oronoque Community Clubhouses, LLC, the estate of John Bargas, David M. Bargas, Susan B. Griffin, Nancy Jankowsky, Rose Bargas, Jamie Bargas, Lisa B. Fitzmaurice, Chris B. Bargas, Elke Bargas, James Bargas, Thomas Bargas, Jill Bargas, Stephanie Bargas, Barbara Green as the trustee of the Norman Haflich Trust, Eric M. Gross as the trustee of the Norman Haflich Trust, the estate of Norman Haflich, the estate of Thomas J. White, and Thomas R. White.   The plaintiff's claims in its complaint and each of the arguments in the two motions for summary judgment are the same with respect to all the defendants.   Accordingly, they will be referred to as “the defendants” throughout the remainder of this memorandum.

FN2. Section 47–74c provides, in relevant part:  “The declarant shall not retain ownership of, and lease or otherwise require payment for the use of the recreation facilities nor shall the declarant convey such recreation facilities to any person other than to the unit owners of the condominium served by such recreation facilities, which shall be common elements of the condominium within which they are located or which they serve;  provided any condominium may provide by its condominium instruments that by affirmative vote of the unit owners at any time after the unit owners other than the declarant have assumed or have the right to assume control of the unit owners' association under section 47–74b, all or part of the recreational facilities serving such condominium shall be conveyed to a nonstock corporation organized under chapter 602, the board of directors of which shall be composed exclusively of unit owners of the condominium served by such recreational facilities.”.  FN2. Section 47–74c provides, in relevant part:  “The declarant shall not retain ownership of, and lease or otherwise require payment for the use of the recreation facilities nor shall the declarant convey such recreation facilities to any person other than to the unit owners of the condominium served by such recreation facilities, which shall be common elements of the condominium within which they are located or which they serve;  provided any condominium may provide by its condominium instruments that by affirmative vote of the unit owners at any time after the unit owners other than the declarant have assumed or have the right to assume control of the unit owners' association under section 47–74b, all or part of the recreational facilities serving such condominium shall be conveyed to a nonstock corporation organized under chapter 602, the board of directors of which shall be composed exclusively of unit owners of the condominium served by such recreational facilities.”

FN3. Section 47–210(a) provides, in relevant part:  “The General Assembly expressly finds that many leases involving the use of land or recreational or other common facilities by residents of a residential common interest community were entered into by parties wholly representative of the interests of a residential common interest developer at a time when the residential common interest community unit owners not only did not control the administration of their residential common interest community, but also had little or no voice in such administration.   Such leases often contain numerous obligations on the part of either or both a residential common interest community association and residential common interest community unit owners with relatively few obligations on the part of the lessor.   Such lease may or may not be unconscionable in any given case.   Nevertheless, the General Assembly finds that a combination of certain onerous obligations and circumstances warrants the establishment of a rebuttable presumption of unconscionability of certain leases, as specified in subsection (d) of this section.   The presumption may be rebutted by a lessor upon the showing of additional facts and circumstances to justify and validate what otherwise appears to be an unconscionable lease under this section.   Failure of a lease to contain the required number of specified elements shall not preclude a determination of unconscionability of the lease.   It is the intent of the General Assembly that this section is remedial and does not create any new cause of action to invalidate any residential common interest community lease, but shall operate as a statutory prescription on procedural matters in actions brought on one or more causes of action existing at the time of the execution of such lease.”.  FN3. Section 47–210(a) provides, in relevant part:  “The General Assembly expressly finds that many leases involving the use of land or recreational or other common facilities by residents of a residential common interest community were entered into by parties wholly representative of the interests of a residential common interest developer at a time when the residential common interest community unit owners not only did not control the administration of their residential common interest community, but also had little or no voice in such administration.   Such leases often contain numerous obligations on the part of either or both a residential common interest community association and residential common interest community unit owners with relatively few obligations on the part of the lessor.   Such lease may or may not be unconscionable in any given case.   Nevertheless, the General Assembly finds that a combination of certain onerous obligations and circumstances warrants the establishment of a rebuttable presumption of unconscionability of certain leases, as specified in subsection (d) of this section.   The presumption may be rebutted by a lessor upon the showing of additional facts and circumstances to justify and validate what otherwise appears to be an unconscionable lease under this section.   Failure of a lease to contain the required number of specified elements shall not preclude a determination of unconscionability of the lease.   It is the intent of the General Assembly that this section is remedial and does not create any new cause of action to invalidate any residential common interest community lease, but shall operate as a statutory prescription on procedural matters in actions brought on one or more causes of action existing at the time of the execution of such lease.”

FN4. Section 42–110b(a) provides:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”.  FN4. Section 42–110b(a) provides:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

FN5. Section 47–90c(a) provides, in relevant part:  “Sections 47–68a to 47–81, inclusive, ․ shall take effect January 1, 1977, and shall apply to all condominiums declared on and after said date ․”.  FN5. Section 47–90c(a) provides, in relevant part:  “Sections 47–68a to 47–81, inclusive, ․ shall take effect January 1, 1977, and shall apply to all condominiums declared on and after said date ․”

FN6. Also at the October 9, 2013 hearing, the court agreed to take the plaintiff's request to amend its complaint (# 165) on the papers..  FN6. Also at the October 9, 2013 hearing, the court agreed to take the plaintiff's request to amend its complaint (# 165) on the papers.

FN7. As pointed out by counsel for the defendants at oral argument, this court also recently had the opportunity to address the language of a release agreement in Wood v. Commercial Risk Re–Insurance Corporation, Superior Court, judicial district of Fairfield, Docket No. CV–06–5003610–S (March 15, 2013, Hartmere, J.).   This court concluded that the language of a release, which included words indicating that it had future effect, was broad enough to preclude the plaintiff's claims in that case..  FN7. As pointed out by counsel for the defendants at oral argument, this court also recently had the opportunity to address the language of a release agreement in Wood v. Commercial Risk Re–Insurance Corporation, Superior Court, judicial district of Fairfield, Docket No. CV–06–5003610–S (March 15, 2013, Hartmere, J.).   This court concluded that the language of a release, which included words indicating that it had future effect, was broad enough to preclude the plaintiff's claims in that case.

FN8. At oral argument, the defendants objected, on the ground of a lack of personal knowledge, to the admission of the affidavit of the plaintiff's expert, Arnold J. Grant, which the plaintiff had submitted to show that the annual rental under the lease exceeded fifteen percent of the value of the property.   Because the court has concluded that § 47–210 does not contain a sufficiently definite statement of public policy so as to make the release unenforceable, the court does not address whether the Grant affidavit is admissible..  FN8. At oral argument, the defendants objected, on the ground of a lack of personal knowledge, to the admission of the affidavit of the plaintiff's expert, Arnold J. Grant, which the plaintiff had submitted to show that the annual rental under the lease exceeded fifteen percent of the value of the property.   Because the court has concluded that § 47–210 does not contain a sufficiently definite statement of public policy so as to make the release unenforceable, the court does not address whether the Grant affidavit is admissible.

Hartmere, Michael, J.