Opinion
No. CV 04-4004816 S
May 16, 2007
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#162)
In this action the Plaintiffs, John Alan Sakon and Expressway Associates IV, have filed a two-count amended complaint against the Defendants, Pearl Manager, individually and as executrix of the estate of Thomas Manager, Thomas Manager, Jr., Edward Manager, Mrs. Edward Manager (a.k.a. Joyce Manager), Jean Manager and Sandra Manager. The Plaintiffs claim that the Defendants have violated a release executed in 1992 which was part of a settlement agreement resolving previous litigation between some of the parties involving property owned by the Defendants, and the acquisition of that property by the Plaintiffs for a proposed development. The Plaintiffs claim that the Defendants violated the agreement in that they created certain controversies by opposing, at a public hearing in 2004, a zoning application of the Plaintiffs regarding the property, and soliciting, encouraging, and working with others to oppose the application. The Plaintiffs claim that the Defendants' violation of the settlement agreement resulted in a denial of the application. The Plaintiffs also claim that the Defendants' actions constitute an unfair trade and business practice.
The Defendants, Pearl Manager, Thomas Manager, Jr., Edward Manager, Jean Manager and Sandra Manager, have moved for summary judgment claiming that the release does not bar them from commenting on development of the Plaintiffs' property at a public hearing.
The standards for granting summary judgment are well settled. "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 . . . 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. The test is whether a party would be entitled to a directed verdict on the same facts." (Internal citation and quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31 (2006). "`In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . .' Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005)." Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47 (2005).
In support of their motion for summary judgment, the Defendants submitted the release and covenant not to sue dated December 31, 1992 signed by the Plaintiffs; the release signed by the Defendants dated November 2, 1992; portions of the Plaintiff Sakon's deposition testimony; portions of the Plaintiffs' responses to interrogatories; and correspondence to Sakon. In opposition to the motion, the Plaintiffs have submitted the affidavit of Sakon.
As an initial matter, the Defendants claim that the court should not consider the Plaintiffs' opposition papers since they were not filed until March 9th, the Friday before the hearing on the Defendants' motion at the short calendar on March 12th. The Defendants claim that the requirements of Practice Book § 17-45 are mandatory and, consequently, their motion should be granted on procedural grounds without considering the opposing papers.
Section 17-45 provides: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant such request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request. Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence . . ." The Defendants cite Barile v. Lenscrafters, Inc., 74 Conn.App. 283 (2002) in support of their position. There the trial court had granted the defendants' motion for summary judgment on the grounds that the plaintiff had failed to comply with the Practice Book in that he did not file an opposition within the time set forth in Section 17-45. The Appellate Court upheld the court's granting of the motion for summary judgment on this procedural ground. But as the Plaintiffs argue, later, in Martinez v. Zovich, 87 Conn.App. 766, cert. denied, 274 Conn. 908 (2005), the Appellate Court indicated that the late filing of papers in opposition to a motion for summary judgment does not require the granting of the motion. There the court stated: "In Barile, this court affirmed the judgment of the trial court granting the defendant's motion for summary judgment on the ground that the plaintiff failed to comply with Practice Book § 17-45. Id., 286. We recognized that § 17-45 provides in relevant part that `[t]he adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence . . .' (Emphasis in original; internal quotation marks omitted.) Id. In the present case, because the defendant did not demonstrate that the plaintiffs' delay in filing their memorandum of law in opposition to the motion for summary judgment was prejudicial to his defense of the matter, the court chose not to grant the defendant's motion on that procedural ground." Id., Footnote 3. Subsequent courts have relied on Martinez to allow them discretion whether to consider late filed papers in opposition to a motion for summary judgment where no clear prejudice has been shown. Chamberlain v. Irving, Superior Court, Judicial District of Tolland at Rockville, Docket No. 4001394 (Hurley, J.T.R., October 26, 2006); Tinian Trust Holdings v. International Paper Company, Inc. DBA Xpedx, Superior Court, Judicial District of Hartford at Hartford, Docket No. CV 05-4007049 S (Shapiro, J., August 12, 2005). Here the Defendants have not demonstrated prejudice from the late filing of the Plaintiffs' opposition papers such that the court should not consider them. Therefore the court will consider the motion for summary judgment on the merits.
The substantive issue on the motion for summary judgment is whether the release acts to prohibit the Defendants from raising further controversies in regard to the subject property. In this sense, the Plaintiffs are attempting to use the release as a sword to enforce a claim as opposed to the typical use of a release as a shield protecting one from claims. Whether such can be done rests on the wording of the release. "In Connecticut, a release represents a surrender of the plaintiff's cause of action against the settling tortfeasor." (Citation omitted.) Ramsay v. Camrac, Inc., 96 Conn.App. 190, 200 cert denied, 280 Conn. 910 (2006). "It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts . . . The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction . . ." (Internal quotation marks and citation omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 482 (1994).
The "Release" signed by the Defendants as to their claims against the Plaintiffs provides that the Defendants: "by these Presents does remise, release and forever discharge said Releasees and all of their affiliates, agents, attorneys, heirs, executors, administrators, successors or assigns (collectively, `Releasees'), of and from all debts, obligations, reckonings, promises, covenants, agreements, contracts, endorsements, bonds, specialties, controversies, suits, actions, causes of actions, trespasses, variances, judgments, extents, executions, damages, claims or demands, in law or equity, contingent or fixed, whether know or unknown, suspected or unsuspected, of whatever kind, nature and description, (collectively `Claims') which against the said Releasees, whether jointly or severally, the Releasors ever had, now has or hereafter can, shall, or may have, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these Presents. And including, but not limited to all matters set forth or relating to the action of Expressway Associates IV v. Loren Andreo, et al., Docket No. CV-92-0702838-S, pending in the Superior Court for the State of Connecticut, Judicial District of Hartford/New Britain at Hartford."
The Plaintiffs claim that the language of the release "did bar the Defendants from raising further controversies in regard to the subject properties." Memorandum of Law in Opposition to Motion for Summary Judgment, p. 8. Since the release is a contract, the rules regarding contract interpretation apply to its enforcement. "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . Our case law, however, does not set forth a test by which to determine whether contract language is sufficiently definite to warrant its review as a question of law rather than as a question of fact. It is noteworthy that, in the majority of the cases considering contract interpretation a matter of law, the disputed agreement was a commercial contract between sophisticated commercial parties with relatively equal bargaining power . . ." (Internal quotation marks and citations omitted.) Tallmadge Bros. v. Iroquois Gas Transmission System, 252 Conn. 479, 495-6 (2000). The Plaintiffs argue that a genuine issue of material facts exist regarding the extent to which the release restricted future conduct of the Defendants which can only be resolved through testimony. However the release relied upon here is a formal sworn document executed as part of a resolution of pending litigation. Mutual releases were executed by each side. The language is sufficiently clear that its import may be determined as matter of law and without an evidentiary hearing as to the parties' intent.
The Plaintiffs claim that the release, executed by the Defendants on November 2, 1992, bars the Defendants from raising further controversies regarding the subject property. Yet the language of the agreement is clear in that it releases each party from claims "from the beginning of the world to the day of the date of these Presents." Thus, in the release the parties release only those claims or possible claims in existence as of the date of execution and not any subsequent claims between the parties that may arise. "Except in very rare instances, the settlement and release of a claim does not cover claims based on events that have not yet occurred . . . The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given. But a dispute that had not emerged, or a question which had not arisen at all, cannot be considered as bound and concluded by the anticipatory words of a general release. The usual general release, then, is not ordinarily construed to include in its coverage claims based upon occurrences which have their beginning after the instrument is executed . . . 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 . . . It is similarly stated that a release, no matter how broad its terms, will not be construed to include claims not within the contemplation of the parties . . . and, where the language of the release is directed to claims then in existence, it will not be extended to cover claims that may arise in the future. This construction of the release [as limited to claims in existence at the time of the release] is further justified by considerations of public policy regarding the effect of the release on the parties' future relationship. As noted in legal commentary on the subject of releases, a release covering all claims that might later arise between the parties would constitute a consent to the [forgoing] of . . . legal protection for the future and would plainly be against public policy." (Emphasis in original.) (Internal quotation marks, parentheses and citations omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 481-2 (1994).
Here the Plaintiffs argue that the release executed by the Defendants in 1992 restrained their ability to voice opposition, twelve years later in 2004, to the Plaintiffs' development plans regarding the property which was the subject of the litigation which the release resolved. A plain reading of the release does not support such a prohibition on any future activity by the Defendants, or that the parties intended that the release operate as not only a release of past claims but of any future ones as well, even those not yet in existence. In addition, the release cannot be read to, in effect, restrain the Defendants from forever exercising their rights to voice opposition to any plan for the development of the land.
Therefore, for the reasons stated above, the Motion for Summary Judgment is granted.