Opinion
No. HHB CV 08-5008200-S
June 29, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case is an action by David and Emily Magnano, minors orphaned by their father, Scott Magnano, who killed their mother, Jennifer Magnano, and then himself in a notoriousfn1 and violent divorce case that ended in the murder-suicide on August 23, 2007. Plaintiffs inherited the family home. Plaintiffs allege that they have put the house up for sale, and have a buyer, and that the Probate Court has approved the sale and authorized the estate to distribute the proceeds, but the distribution is being delayed due to a dispute with their grandmother, the defendant Mary Lou Magnano. The defendant claims a one-third interest in the property by reason of a quitclaim deed recorded on the land records after the divorce proceedings were started, and shortly before the deaths. Plaintiffs' complaint is in two counts seeking a declaratory ruling invalidating the deed to the grandmother, and seeking to quiet title to the property in their favor. Pending before the court is the defendant's Motion for Summary Judgment seeking a contrary ruling from the court upholding the validity of her deed. For the following reasons, the court denies the defendant's motion because there are material facts remaining in dispute that require resolution by the trier of fact.
In fact, the property was sold on May 7, 2008, and the proceeds have been held in escrow, pursuant to an agreement, pending the resolution of the instant case.
I
The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § 17-49 requires that 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. A material fact is a fact that will make a difference in the result of the case. See Rockwell v. Quintner, 96 Conn.App. 221, 227-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006); see also Vitale v. Kowal, 101 Conn.App. 691, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
Nevertheless, in deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that she is entitled, under principles of substantive law, to a judgment as a matter of law. Id.
In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts. Miller v. United Tecbnologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
II
In support of her Motion for Summary Judgment, defendant supplies the court with an affidavit with exhibits attesting that on January 8, 1993, she gave her son, Scott Magnano, a check in the amount of $35,781.00 toward the purchase of parcel of land in Plymouth, CT, on which he was to construct a residence for himself and his wife, Jennifer. According to the defendant, the residence was to include an in-law apartment for the defendant, and she would hold a one-third interest in the property. A copy of the check is attached, but the check does not indicate the defendant as the source of the funds. A copy of the deed is attached, dated and recorded January 8, 1993, but the only grantee is Scott Magnano. By deed dated August 11, 1993, and recorded August 12, 1993, Scott conveyed the property to himself and Jennifer by quitclaim deed with rights of survivorship.
On June 28, 2007, another deed was recorded on the land records. This was a quitclaim deed, also dated August 11, 1993, from Scott and Jennifer Magnano to the defendant purportedly giving the defendant a one-third undivided interest in the property. The defendant contends that she received this deed 14 years earlier, and intended to record it, but neglected to do so at the time due to health problems. When her son and daughter-in-law had a falling out and decided to divorce years later, defendant claims she then took action and recorded the deed. She supplies a copy of her check, payable to the Town Clerk, used to pay the recording fee in 2007.
The defendant argues that these facts establish her right to a one-third interest in the property as a matter of law, and that the long delay in recording is of no consequence. Indeed, a quitclaim deed is effective as to the grantors and their heirs even if it is unrecorded. General Statutes § 47-10(a); Connecticut Standards of Title, No. 2.7. Delivery is required, however. "Without delivery and acceptance no conveyance of real estate is valid." (Citations omitted.) City Nat'l Bank v. Morrissey, 97 Conn. 480, 483, 117 A. 493 (1922).
General Statutes § 47-10(a) provides, in pertinent part, as follows: No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies.
Plaintiffs, on the other hand, contend that the deed was not given to the grandmother, but was recorded by Scott on June 28, 2007, and returned to the grandmother after recording; or that it was delivered to the grandmother by Scott on or about June 28, 2007 and she recorded it. In any case, they argue that it could not be effective until it was recorded on June 28, 2007. They claim it could not be effective before it was recorded because recording is required to change any joint tenancy under General Statutes § 47-14j. They further contend that by June 28, 2007, any delivery or change was invalid because, by then, Scott had started divorce proceedings. They claim that the divorce proceedings triggered the automatic restraining orders of Practice Book § 25-5 that prohibit such delivery or changes. That Practice Book rule provides, in pertinent part, as follows:
General Statutes § 47-14j provides:
Any change in the nature of the interests held by joint tenants which could be effected by a conveyance or conveyances to a stranger may be effected by an instrument executed with the formalities required for deeds by the joint tenant or tenants whose interests are involved. That instrument shall not be effective until it has been recorded on the land records of the town in which the real estate is located.
Neither party shall sell, transfer, encumber (except for the filing of a lis pendens), conceal, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorneys fees in connection with this action.
Practice Book § 25-5(a)(1).
Indeed, those restraining orders are effective upon the signing of an application for custody or complaint for divorce in family court. Practice Book § 25-5(a). In the instant case, court records document that Scott signed an application for custody on April 27, 2007, and his complaint for divorce was signed on June 12, 2007. See Magnano v. Magnano, Superior Court, judicial district of New Britain, Docket No. HHB FA 07-4013759 (Custody Application); Magnano v. Magnano, Superior Court, judicial district of New Britain, Docket No. HHB FA 07-4014527 (Divorce). Thus, the family court proceedings were commenced before the recording of the defendant's deed. The critical issues for court resolution, therefore, are, when and how was the defendant's deed delivered to her? If it was properly delivered before the automatic restraining orders became effective, then it is valid. If it was not properly delivered, or delivered by Scott after the automatic restraining orders became effective, then it is not valid.
Plaintiffs also contend that, as a matter of law, even if the deed was delivered in 1993, or otherwise before the family court proceedings were commenced on April 27 and June 12, 2007, it is the recording date that is the determinative date, not the delivery date, because defendant's deed cannot be effective before it was recorded under General Statutes § 47-14j. That statute requires that deeds changing joint tenancies are not effective until they are recorded. See General Statutes § 47-14j, supra. Therefore, they contend that the recording date is the critical date, not the delivery date. However, General Statutes § 47-10(a), which predates § 47-14j, provides that deeds to grantees are effective even if not recorded, albeit only as to the grantors and their heirs. That statute provides that "[n]o conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies." General Statutes § 47-10(a) (emphasis added). Thus, the two statutes appear to require conflicting outcomes under the facts of this case. To give precedence to § 47-14j over § 47-10(a), as plaintiffs request, would require the court to conclude that § 47-14j repealed § 47-10(a) by implication. Such constructions are not favored in the law. "Repeals by implication are not favored and will never be presumed where the old and new statute may well stand together . . ." (Citation omitted; internal quotation marks omitted.) Downey v. Retirement Board, 22 Conn.App. 172, 180, 576 A.2d 582, cert denied, 216 Conn. 811, 580 A.2d 56 (1990). "[W]hen two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes . . . [and] where there is a reasonable field for each statute which does not impinge on the domain of the other, it is the court's duty to give them concurrent effect." (Citation omitted; internal quotation marks omitted.) Winham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988). In the instant case, there can be no repeal by implication because both statutes were amended and simultaneously re-enacted in 1979 Conn. Public Acts No. 79-602, Secs. 35 and 33 respectively, restating the provisions with grammatical changes but with no substantive changes. Clearly, the legislature intended that both statutes be effective. Moreover, the court can give effect to both statutes by treating the rule in § 47-10(a) — giving effect to unrecorded deeds as to the grantors and their heirs?as a narrow exception to the broader general rule of § 47-14j that generally requires the recording of changes in joint tenancy deeds for them to be effective. This accords with the rule of construction that "specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling." (Citations omitted; internal quotation marks omitted.) State v. State Employees' Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997). Of course, delivery is still a prerequisite to the validity of a conveyance in the purview of § 47-10(a). City Nat'l Bank v. Morrissey, supra, 97 Conn. 483. Therefore, the date of delivery remains the critical issue.
On these points, the parties are in dispute. The defendant is aided by a legal presumption. Possession of a deed with an attestation clause is prima facie proof of delivery. Bell v. Bloom, 146 Conn. 307, 308, 150 A.2d 300 (1959); Sweeney v. Sweeney, 126 Conn. 391, 394, 11 A.2d 806 (1940); New Haven Trust Co. v. Camp, 81 Conn. 539, 542, 71 A. 788 (1909). In this case, the defendant's deed attests that it was "Signed, Sealed and Delivered . . ." on August 11, 1993. That is prima facie proof of delivery. "It is not, however, conclusive, and evidence can be received under appropriate pleadings to show that there was no delivery." (Citations omitted.) Bell v. Bloom, supra 146 Conn. 309. "Delivery of a deed coupled with intent by the grantor to pass title is necessary for a valid conveyance . . . The delivery of a deed includes not only an act by which the grantor parts with the possession of it, but also a concurring intent on the part of the grantor that it shall vest the title in the grantee. Both elements involve questions of fact for the trier of fact." (Citations omitted; internal quotation marks omitted.) McCook v. Coutu, 31 Conn.App. 696, 701, 626 A.2d 1321, cert. denied, 227 Conn. 911, 632 A.2d 692 (1993).
Plaintiffs dispute defendant's proof with affidavits by Scott and Jennifer Magnano, dated August 1, 2007 and August 2, 2007, respectively, and filed in unrelated litigation, attesting that in 1993, the property was owned by them only, contrary to the defendant's purported interest created by the 1993 deed. They also offer an affidavit of David Magnano, who testifies that he overheard his parents say, on more than one occasion, that they had a quitclaim deed with their grandmother's name on it and they would use it if they lost a lawsuit with a builder over the construction of their house. This information suggests that the grandmother's deed was prepared, but not delivered, and held in secret to be used in case of emergency only as an asset protection strategy. The further suggestion is that Scott filed it to prevent Jennifer from getting the house in the divorce. On this critical point, and on the derivative issues, the court finds that the material facts are in dispute. Considering the suspicious timing of the events, the credibility of the witnesses will play a key role for the trier of fact. In such circumstances, the matter must be resolved at trial, not on motion. See, e.g., Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198-99, 319 A.2d 403 (1972).
Defendant, at oral argument, verbally asked the court to strike this information as inadmissible hearsay, and both sides subsequently filed supplemental briefs on the topic. In summary judgment proceedings, "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Citations omitted; internal quotation marks omitted.) Gianetti v. Anthem Blue Cross and Blue Shield of Connecticut, 111 Conn.App. 68, 72, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009). Hearsay is 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 statements proffered by plaintiffs are out-of-court statements offered for proof of the matters asserted. They are, therefore, hearsay. However, plaintiffs contend that the statements are admissible as an exception to the hearsay rule pursuant to the Dead Man's Statute, General Statutes § 52-172. That statute allows statements of a deceased to be used by heirs in disputes involving the heirs. Dinan v. Marchand, 279 Conn. 558, 576, 903 A.2d 201 (2006). But, for the statute to apply, the heirs must sue or be sued in a representative capacity. Lockwood v. Lockwood, 56 Conn. 106, 109-10, 14 A. 293 (1887). Here, the heirs are protecting their own interests, not those of their parents' estate. Accordingly, that statute is not applicable. Id. However, a similar statute extends the exception to "any person claiming title under or from the decedent." General Statutes § 52-173. That statute applies to the instant case. Defendant also contends the statements are inadmissible as legal conclusions. The court, however, only considers the information as relevant to the factual issues concerning the circumstances of the delivery of the quitclaim deed in question. Therefore, the defendant's motion to strike is denied.
Defendant also orally moved to strike this information as inadmissible hearsay, and both sides filed supplemental briefs on the topic. Here, the statements of the declarants are not being offered to prove the truth of the matters asserted. Rather, they are offered to prove lack of delivery of the deed and intent. Statements offered for a purpose other than to establish the truth of the matters asserted are not hearsay. Code of Evidence, § 8-1, comment (3). Defendant also contends that the statements are not relevant and not based on personal knowledge. However, in context the witness states that he was present during the discussion of the grandmother's deed in issue. Relevancy and personal knowledge are established. Therefore, the defendant's motion to strike is denied as to this point as well.
Derivative issues, as framed by the plaintiffs, include: (1) Whether Scott and Jennifer intended to deliver to the defendant a one-third interest in the property then owned by then as joint tenants with right of survivorship? (2) Whether Scott and Jennifer did deliver to the defendant a one-third interest in the subject property? (3) If Scott and Jennifer intended to deliver such interest and did in fact do so, whether the conveyance was effective prior to recording? (4) Whether the recording of the subject deed, which occurred subsequent to Scott's commencement of the custody action, violated the automatic orders prohibiting a party to a marital dissolution action to transfer or convey property? (5) Whether the defendant contributed any monies to the purchase of the subject property? (6) If not, whether the one-third interest reflected in the second deed was intended by Scott and Jennifer as a gift?
Accordingly, there are material facts in dispute preventing the court from granting summary judgment favoring the defendant at this time.
III
For all of the foregoing reasons, the court denies the defendant's Motion for Summary Judgment because there are material facts remaining in dispute that require resolution by the trier of fact.