ESPINOSA, J.
The principal issue in this certified appeal is whether a contract between the parties is ambiguous, requiring a trial to determine the parties' intent. The trial court found that the contract at issue unambiguously entitled the plaintiff, Anthony H. Salce, Sr., to judgment as a matter of law, rendered summary judgment in his favor, and awarded, among other relief,
The parties stipulated to the facts relevant to this appeal. The plaintiff and the defendant each owned 50 percent of Anwalt, LLC (Anwalt). Anwalt owned commercial real estate, an office park, in Trumbull (premises). In April, 2007, the plaintiff agreed to sell his 50 percent interest in Anwalt to the defendant. On April 13, 2007, the parties executed a buyout agreement that provided for a purchase price, due at closing, of $1.75 million. The agreement also contained a provision that required the defendant to pay the plaintiff an addition to the purchase price if specified conditions were met (contingency clause).
The contingency clause, in essence, required the defendant to pay to the plaintiff a contingent addition to the purchase price if, at any point within one year from the closing of the buyout agreement, the defendant transferred any ownership interest in the premises to a third party, for more than a certain amount of money. The clause provides as follows: "Contingent Addition to Purchase Price. If within one year of the closing hereunder any ownership interest in the [p]remises ... is transferred to a `Non-Wolczek Person' based on a whole property value of more than [$3.5 million], [the defendant] shall pay [the plaintiff] an additional purchase price equal to one half the excess at the same time as the transfer. The `excess' is the amount by which the whole property value for the transfer exceeds [$3.5 million]. The `whole value' for any sale is the 100 [percent] value on which any percentage interest being transferred is based. For example, a one quarter interest transferred for [$1 million] would equate to a whole property value of [$4 million]. A `Non-Wolczek Person' is someone other than [the defendant] or his immediate family member or lineal descendant."
The parties closed on the sale under the buyout agreement on May 31, 2007, starting the clock on the one year period in the contingency clause.
The plaintiff later moved for summary judgment on his breach of contract claim. He argued that the contingency clause unambiguously required the defendant to pay an addition to the purchase price because the Vaughn contract constituted a transfer of an ownership interest within the meaning of the contingency clause. The plaintiff argued that (1) the contingency clause required the defendant to pay an addition to the purchase price "[i]f within one year of [May 31, 2007] any ownership interest in the [p]remises ... is transferred to a `[n]on-Wolczek [p]erson'" for more than a specified amount; (2) the defendant executed a contract with Vaughn for the sale of the premises during the one year period prescribed in the contingency clause; (3) the value of the sale exceeded the amount specified in the contingency clause; (4) the defendant's execution of the contract with Vaughn transferred equitable ownership of the premises to Vaughn; and (5) the transfer of equitable ownership qualifies as a transfer of "any ownership interest" under the contingency clause.
The defendant objected, arguing that the contingency clause was ambiguous, making its interpretation a question of fact and requiring a trial. The defendant argued that the contingency clause was unclear as to whether it applied to a transfer of equitable ownership upon signing a contract for sale, or to only a transfer of legal title at closing. The defendant claimed that if the contingency clause applied only to the transfer of legal title at closing, then he did not owe an addition to the purchase price because he did not close on his contract with Vaughn until after the one year period in the contingency clause had expired.
The trial court granted the plaintiff's motion. The trial court determined that the expansive phrase "`any ownership interest'" used in the contingency clause included a transfer of equitable ownership through the doctrine of equitable conversion. Under that doctrine, equitable ownership passes to the purchaser of real estate at the time a contract for sale is executed; legal title is held in trust by the seller for the benefit of the buyer and legal title passes at the closing on the sale. See, e.g., Francis T. Zappone Co. v. Mark, 197 Conn. 264, 267, 497 A.2d 32 (1985). Relying on this doctrine, the trial court determined that the execution of the Vaughn contract, which occurred within the one year period of the contingency clause, conveyed equitable ownership to Vaughn, and thus qualified as a transfer of an ownership interest, triggering the contingency clause. The court rejected the defendant's argument that the contingency clause was ambiguous and could refer, instead, to only the closing of a sale. The trial court determined that the defendant's interpretation was "more restrictive" than the language used by the parties and thus was not a reasonable alternative interpretation.
The plaintiff withdrew the remaining counts of his complaint and moved for final judgment on the breach of contract count. The trial court granted the motion, rendered judgment for the plaintiff, and awarded the plaintiff his requested damages, attorney's fees, offer of compromise interest, costs, and postjudgment interest. The trial court declined to award prejudgment interest.
A divided Appellate Court panel affirmed the trial court's judgment. Salce v. Wolczek, supra, 141 Conn.App. at 530, 61 A.3d 1177. The defendant principally
The defendant then petitioned this court for certification. We granted the petition for certification, limited to the following questions: "(1) Did the Appellate Court properly determine that the contract language unambiguously established that the mere execution of a contract for sale, and not the actual closing on the sale, was intended to trigger the defendant's payment obligation? (2) If the answer to the first question is in the [affirmative], did the Appellate Court properly affirm the trial court's postjudgment interest award?"
The defendant chiefly claims that the language of the contract is ambiguous. Consequently, he contends that the trial court improperly concluded that the contingency clause unambiguously required the defendant to pay the plaintiff an addition to the purchase price. We disagree.
At the outset, we note that the scope of our review under the first certified question in this case is narrow and requires us to determine only whether the language of the contingency clause is ambiguous. We do not decide which party has the better interpretation, only whether there is more than one reasonable interpretation of the contract language at issue. If we conclude that the language allows for more than one reasonable interpretation, the contract is ambiguous and the trial court's decision to render summary judgment, based on the conclusion that the contract is unambiguous, must be reversed and the matter remanded for a trial. Conversely, if the contract is unambiguous, its interpretation and application is a question of law for the court, permitting the court to resolve a breach of contract claim on summary judgment if there is no genuine dispute of material fact. Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). If the contract is unambiguous, therefore, our inquiry into its meaning ends, and we will affirm the judgment. The principles that guide our consideration of whether contract language is ambiguous are set forth in detail in Yellow Book Sales & Distribution Co. v.
Turning to the contract language at issue, the text of the contingency clause sets out four prerequisites for triggering an additional payment under that provision: (1) if "within one year of the closing" of the buyout agreement; (2) "any ownership interest in the [p]remises... is transferred" by the defendant; (3) "`to a [n]on-Wolczek [p]erson'"; (4) "based on a whole property value of more than [$3.5 million]"; then the defendant must pay the plaintiff an addition to the purchase price. The parties agree that the execution of the Vaughn contract satisfies the first, third, and fourth requirements — the parties executed the contract less than one year after the closing of the buyout agreement, Vaughn is a "`[n]on-Wolczek [p]erson,'" and the value of the Vaughn contract was $5.5 million.
The parties' dispute is limited to the second requirement. The trial court and the Appellate Court each determined that the broad phrase "any ownership interest... is transferred" unambiguously includes the conveyance of equitable ownership through the execution of a contract for sale. The defendant agrees that this interpretation is reasonable, but contends that the text also supports another reasonable interpretation, rendering the contingency clause ambiguous.
According to the defendant, the common understanding of the phrase "any ownership interest ... is transferred" could refer instead to only a transfer of legal title and exclude a transfer of equitable ownership. The defendant suggests that the average person would understand that phrase to refer to the sale of the property at a formal closing, not to the transfer of equitable ownership through the mere execution of a contract for sale. The defendant argues that the reason the parties chose the otherwise broad phrase "any ownership interest" was not that it would apply to a transfer of equitable ownership, but instead to address the possibility that the defendant might transfer only a portion of his ownership interest. Hence, the defendant interprets the phrase "any ownership interest ... is transferred" to mean any fraction of legal ownership interest is transferred. To support his interpretation, the defendant relies on the contingency clause's definition of "whole property value...." The contingency clause defines "whole value" (though it omits the term "property" in the definition) as "the 100 [percent] value on which any percentage interest being transferred is based. For example, a one quarter interest transferred for [$1 million] would equate to a whole property value of [$4 million]." (Emphasis added.) On the basis of this language, the defendant contends that the reference to a "percentage interest" transfer demonstrates that one might reasonably interpret the broad phrase "any ownership interest" to address, not a transfer of equitable ownership, but the possibility that the defendant might transfer only a fraction of his legal ownership interest. The defendant argues that "the most logical inference is that the purpose of the [phrase] `any ownership interest' in the first sentence was to include a fractional interest transferred as well as a whole interest."
In response, the plaintiff argues that the expansive phrase "any ownership interest... is transferred" is broad enough to be triggered by either a conveyance of equitable ownership or a transfer of legal title. The plaintiff contends that the defendant's argument restricts the meaning of the text and that, if the parties intended to give the contingency clause the more limited meaning offered by the defendant, they needed
The plain meaning of the phrase "any ownership interest ... is transferred" is broad and refers, as the text states, to the transfer of any ownership interest, regardless of the type or quantity of ownership interest transferred. The defendant treats this phrase as if it can refer only to either a transfer of equitable ownership or a transfer of legal title, but not both. But the broad language used by the parties does not support this restrictive interpretation. The parties' use of the word "any" to modify the phrase "ownership interest" in the first sentence of the contingency clause gives the resulting phrase an expansive meaning — one that we will not restrict in the absence of a clear limitation in the text. See, e.g., Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. at 14, 938 A.2d 576 (use of "`any'" in phrase "`any reason'" gives phrase broad and inclusive meaning [emphasis omitted]); see also AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 413, 908 A.2d 1033 (2006) (legislature's use of "`any'" in statute is "broad and all-inclusive" [emphasis omitted]); Manifold v. Ragaglia, 272 Conn. 410, 422, 862 A.2d 292 (2004) (court will not provide "exception or limitation" to language made broad by use of word "`[a]ny'" [emphasis omitted]); Gipson v. Commissioner of Correction, 257 Conn. 632, 640, 778 A.2d 121 (2001) ("`[t]he word any in statutes is generally used in the sense of all or every and its meaning is comprehensive in scope and inclusive in range'"); Fink v. Golenbock, 238 Conn. 183, 196, 680 A.2d 1243 (1996) (phrase "`[a]ny disputes'" is "all-embracing, all-encompassing and broad" [emphasis omitted]); New York, New Haven & Hartford Railroad Co. v. Stevens, 81 Conn. 16, 21, 69 A. 1052 (1908) ("[t]he word `any' is too comprehensive to receive so narrow a construction"); New Haven Young Men's Institute v. New Haven, 60 Conn. 32, 39, 22 A. 447 (1891) ("[t]he word `any,' used as an adjective, means `one out of several or many'").
The Vaughn contract conveyed equitable ownership to Vaughn under the doctrine of equitable conversion. Although labeled "somewhat esoteric" by the trial court, equitable conversion is a "settled principle" under which "a contract for the sale of land vests equitable title in the [buyer]." (Internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 799, 17 A.3d 40 (2011); Lanna v. Greene, 175 Conn. 453, 461, 399 A.2d 837 (1978); see also Bayer v. Showmotion, Inc., 292 Conn. 381, 415, 973 A.2d 1229 (2009); Francis T. Zappone Co. v. Mark, supra, 197 Conn. at 267, 497 A.2d 32; see generally Connecticut College for Women v. Groton, 123 Conn. 196, 201, 193 A. 873 (1937). "Under the doctrine of equitable conversion ... the purchaser of land under an executory contract is regarded as the owner, subject to the vendor's lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser.... The vendor's interest thereafter in equity is in the unpaid purchase price, and is treated as personalty ... while the purchaser's interest is in the land and is treated as realty." (Citations omitted; internal quotation marks omitted.) Francis T. Zappone Co. v. Mark, supra, at 267, 497 A.2d 32. The doctrine is a legal fiction, rooted in the principle that equity views a transaction as being completed at the time the parties enter into the transaction, irrespective of whether a formal exchange of legal title has taken place. Id.; see also Emery v. Cooley, 83 Conn. 235, 238-39, 76 A. 529 (1910); 1 D. Dobbs, Law of Remedies: Damages-Equity-Restitution (2d Ed. 1993) § 4.3(8), pp. 620-21. In the context of real estate transactions, equitable ownership in property transfers to the buyer when the parties sign a contract for sale, even though the formal exchange of legal title may not occur until a later date. See Francis T. Zappone Co. v. Mark, supra, at 267, 497 A.2d 32. The seller of the land becomes a trustee, holding land in trust for the buyer; the buyer holds the purchase money in trust for the seller. See id.
As its name suggests, equitable ownership is a type of ownership interest. Although the conveyance of equitable ownership does not grant an immediate right to possession, it grants the purchaser other significant rights in the property. See id., at 267-68, 497 A.2d 32; 27A Am.Jur.2d 520-21, Equitable Conversion § 13 (2008). For instance, the purchaser obtains the right to specific performance to force a seller to convey legal title according to the contract for sale and to prevent the seller from conveying it to a third party. See Francis T. Zappone Co. v. Mark, supra, at 267-68, 497 A.2d 32 (equitable conversion gives purchaser equitable title to property); see also 1 D. Dobbs, supra, at § 4.3(8), p. 620. The purchaser also may mortgage his interest in the property, even in advance of a formal closing. 27A Am. Jur.2d, supra, § 13, at p. 520. And if the buyer dies before closing, the buyer's interest in the land, treated as a realty interest, becomes part of the buyer's estate. 1 D. Dobbs, supra, at pp. 623-24. Accordingly, by executing the Vaughn contract, the defendant conveyed an ownership interest in the premises to Vaughn.
Furthermore, the defendant's conveyance of equitable ownership meets the contingency clause's requirement that an ownership interest be "transferred." Transfer is defined as "to convey from one person, place, or situation to another" or "to cause to pass from one to another...." Merriam-Webster's Collegiate Dictionary
The defendant's alternative interpretation unreasonably restricts the language of the contingency clause. The text does not limit the meaning of the phrase "any ownership interest" to only transfers of legal ownership interests, whether whole or fractional, to the exclusion of all other types of ownership interests. If the parties intended to limit the scope of the language they chose for their agreement, they needed to state that limitation expressly. See, e.g., Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. at 496, 746 A.2d 1277; Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 759, 674 A.2d 1313 (1996); Hatcho Corp. v. Della Pietra, 195 Conn. 18, 22, 485 A.2d 1285 (1985). Furthermore, the use of an example to explain how a provision applies in a particular instance does not, itself, restrict the meaning of that provision, especially one intentionally made broad by the use of the word "any." See, e.g., United States v. National City Lines, Inc., 337 U.S. 78, 81, 69 S.Ct. 955, 93 L.Ed. 1226 (1949) ("Obviously, an example is not a complete catalogue. The use of an example implies no purpose to restrict the meaning of the statutory phrase `any civil action' precisely to the illustration selected.").
As further evidence that the parties intended to refer only to the passing of legal title at closing, the defendant cites to the portion of the contingency clause requiring the addition to the purchase price to be paid to the plaintiff at the same time as the transfer to a third party. The defendant posits that this provision ensures that he would have cash from the proceeds of the sale of his interest to pay the plaintiff any additional amount owed. The defendant claims it would be unreasonable to require him to pay the plaintiff when he has not yet received payment from the third party or if the sale to the third party falls apart before closing. According to the defendant, "[t]o require [him] to pay the plaintiff his proportionate share of a nonexistent profit seems highly unlikely." We disagree.
The defendant's receipt of funds from a third party is irrelevant to his obligations under the contingency clause. Nothing in the contingency clause makes the defendant's obligation to pay the plaintiff contingent on his receipt of payment from a third party at closing. Rather, the defendant must pay the plaintiff at the time he transfers any ownership interest to a third party, irrespective of whether he has been paid for that transfer. And the contingency clause allows for the possibility that the defendant might not have received sufficient cash from his transfer to a third party to cover the addition to the purchase price owed to the plaintiff. The contingency clause requires that the addition to the purchase price be calculated based on the "whole property value" of a transfer, as if the defendant had transferred his entire interest, even if the defendant transfers only a small fraction of his interest in the premises. This means that the defendant could receive only a small amount of money for his transfer, but still owe the plaintiff a much larger sum. The plaintiff's brief provides an example. The defendant could trigger the contingency clause by transferring only 1 percent of his interest. The contingency clause would, however, require the parties to determine the amount owed to the plaintiff by assuming that the defendant had transferred 100 percent of his interest. In that scenario, the amount the defendant receives for the 1 percent transfer would be only a small portion of what he owes to the plaintiff based on the "whole property value," requiring the defendant to use his own funds to pay the plaintiff the entire amount due under the contingency clause. Despite this possibility, the contingency clause does not make the defendant's additional payment obligation contingent on how much he receives for his transfer to a third party or when he receives that payment, contradicting the defendant's interpretation.
In addition, the defendant's interpretation that the contingency clause is a profit
The parties chose broad language that unambiguously includes a conveyance of equitable ownership. We presume that they were aware of existing legal doctrine and the legal consequences of the language they chose for their contract. See, e.g., Hatcho Corp. v. Della Pietra, supra, 195 Conn. at 21, 485 A.2d 1285; LMK Enterprises, Inc. v. Sun Oil Co., 86 Conn.App. 302, 307, 860 A.2d 1229 (2004). The defendant's attempts to restrict the meaning of that language simply are not supported by the text. We will not trammel the sweeping language chosen by the parties to arrive at a more limited meaning. See generally Yellow Book Sales & Distribution Co. v. Valle, supra, 311 Conn. at 119, 84 A.3d 1196; Cruz v. Visual Perceptions, LLC, supra, 311 Conn. at 102-103, 84 A.3d 828; Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. at 506, 746 A.2d 1277.
Accordingly, the Appellate Court properly determined that the unambiguous contract language entitled the plaintiff to summary judgment on his breach of contract claim.
The defendant also claims that the trial court improperly awarded the plaintiff postjudgment interest even though the trial court had already decided that prejudgment interest was unwarranted. In support of this claim, the defendant asserts that because "there was no substantive difference" between the "factors and evidence" considered by the court with respect to its prejudgment and postjudgment interest decisions, the court could not properly award one type of interest after refusing to award the other. We disagree.
The defendant's argument is flatly contradicted by the trial court's decision. The trial court declined to award prejudgment interest after concluding that the defendant pursued his defense of the plaintiff's claims in good faith. The court
The judgment of the Appellate Court is affirmed.
In this opinion ZARELLA, EVELEIGH and McDONALD, Js., concurred.
VERTEFEUILLE, J., with whom PALMER and ROBINSON, Js., join, dissenting.
I respectfully disagree with the majority that the Appellate Court properly affirmed the trial court's summary judgment rendered in favor of the plaintiff, Anthony H. Salce, Sr., on the ground that the contingency clause of the buyout agreement between the plaintiff and the defendant, Walter Wolczek, is unambiguous and susceptible to one, and only one, reasonable interpretation. In so concluding, the majority determines that the parties necessarily intended to engraft the doctrine of equitable conversion
It is important to underscore that "[a] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." (Internal quotation marks omitted.) Murtha v. Hartford, 303 Conn. 1, 7, 35 A.3d 177 (2011). Intent usually is a question of fact. 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 622, 987 A.2d 1009 (2010). It is only when the contract on its face reveals such a clear and definite expression of intent that we preclude the parties from proffering extrinsic evidence that might bear on that question. See Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 106, 84 A.3d 828 (2014); 19 Perry Street, LLC v. Unionville Water Co., supra, at 623, 987 A.2d 1009. No such definite expression exists, however, if the contract is "reasonably susceptible to more than one reading." (Internal quotation marks omitted.) Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, 38, 84 A.3d 1167 (2014). Although we may presume that sophisticated commercial parties represented by counsel intend to provide sufficient definiteness to their commercial contractual arrangements so as to avoid such ambiguity; Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 496-97, 746 A.2d 1277 (2000); that presumption is rebutted when those intentions have manifestly failed. See, e.g., United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 674-75, 791 A.2d 546 (2002).
In the present case, the stated purpose of the buyout agreement is the sale of the plaintiff's 50 percent ownership interest in a limited liability company, which holds title to certain real property in Trumbull, to the defendant, the owner of the other 50 percent interest in the company. This purpose sheds some light on "the situation of the parties and the circumstances connected with the transaction"; (internal quotation marks omitted) Murtha v. Hartford, supra, 303 Conn. at 7, 35 A.3d 177; as we interpret the terms of the contingency clause at issue. That clause, entitled "Contingent Addition to Purchase Price," provides in relevant part as follows: "If within one year of the closing hereunder any ownership interest in the [p]remises... is transferred ... based on a whole property value of more than [$3.5 million], [the defendant] shall pay [the plaintiff] an additional purchase price equal to one half the excess at the same time as the transfer. The `excess' is the amount by which the whole property value for the transfer
The defendant contends that the contingency clause is triggered upon the transfer of legal title to any percentage interest in the property. Because he did not transfer title to the subject property until the closing, he contends that he is not liable under that clause. The plaintiff contends that the contingency is triggered by the transfer of a legal or equitable interest, as well as any fractional interest thereof. More specifically, the plaintiff contends that the parties unambiguously intended to include an equitable interest created by application of the doctrine of equitable conversion when providing that the transfer of "any ownership interest" would trigger the contingency. The plaintiff contends that such an interest was created upon the execution of the Vaughn agreement, and therefore, the defendant is liable as a matter of law. For the reasons that follow, I would conclude that the defendant's construction is reasonable, the contingency clause is therefore ambiguous, and summary judgment was improper.
I first turn to the meaning of the key terms in the contingency clause, beginning with the phrase "any ownership interest...." One definition of ownership provides: "Collection of rights to use and enjoy property, including the right to transmit it to others.... The complete dominion, title, or proprietary right in a thing or claim. The entirety of the powers of use and disposal...." Black's Law Dictionary (6th Ed.1990).
Unlike the majority, I am not persuaded that any such ambiguity is dispelled by the mere fact that the contingency clause refers to "any ownership interest...." (Emphasis added.) Although the majority determines that "any" is an unambiguous term that must be afforded the most expansive reading possible, this court previously has acknowledged that the meaning and scope of "any" is informed by the context in which it is used. See Location Realty, Inc. v. Colaccino, 287 Conn. 706, 724-25, 949 A.2d 1189 (2008) (concluding that because "`any action'" was used in conjunction with phrase "`no person,'" it should be afforded broadest possible formulation); Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 14-15, 938 A.2d 576 (2008) (reading "`any'" in conjunction with words "`without limitation'" in contract dispute to have expansive meaning); AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 414, 908 A.2d 1033 (2006) (noting that meaning of "`any'" is context dependent but concluding, with regard to General Statutes § 22a-19, that "the repeated use... of the word `any' ... indicates an intention to allow the broadest possible range of parties to intervene in an expansive spectrum of proceedings"); Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 531, 839 A.2d 1250 (2004) (noting that "any" is ambiguous term that, depending on "context" and "subject matter of the statute" may denote "all, every, some or one" [internal quotation marks omitted]).
When considering the broader context in which the term "any ownership interest" is used, I note that the contingency clause is replete with language expressly addressing fractional interests. The clause refers to "any percentage interest," "`whole value,'" and "100 [percent] value," and provides an example of the proper calculation of a whole value based on a transfer of a one-quarter interest. Moreover, an intention to address the specific concern of a sale of any partial legal interest in the property is consistent with the overarching purpose of the entire agreement, wherein a 50 percent share of ownership interest is being sold.
By contrast to the many references to fractional interests, there is no reference in the contingency clause at all to equitable interests. Had the parties wanted to manifest an unambiguous intent to encompass such an interest, the contingency clause easily could have referred to "legal or equitable" interests. Cf. General Statutes § 3-56a (11) (referring to "legal or equitable interest" in property); General Statutes § 12-392(b)(3)(E) (same); General Statutes § 33-1036(4) (same); General Statutes § 42-103dd (22) (same); General Statutes § 42a-9-318 (a) (same); General Statutes § 47-202(17) (same); General Statutes § 49-61(a) (same). Indeed, in the breach and remedy section of the agreement, the parties expressly referred to "any other remedy in law or equity available to [the] [s]eller," rather than simply "any remedy."
Other terms used in the contingency clause lend further support to the reasonableness of the defendant's construction. That clause refers to both a "transfer" and a "sale" in a manner suggesting that the
I fully agree with the majority that the use of the term "closing" throughout the buyout agreement and the use of the term "sale" in the contingency clause reflect a purposeful decision to distinguish the meaning of these terms. I disagree, however, that this distinction unambiguously evidences an intention inconsistent with the defendant's construction. Significantly, the term "closing" is used in the contingency clause, as well as other parts of the buyout agreement, to refer to a specific event — the transfer of legal title to, and ownership of, the plaintiff's 50 percent interest in Anwalt, LLC, to the defendant. In the contingency clause, that closing is the event that commences the period during which the defendant may be liable for an addition to the purchase price ("within one year of the closing hereunder"). By contrast, the "sale" or "transfer" of the defendant's ownership to a "`[n]on-Wolczek [p]erson,'" which is defined in the contingency clause of the parties' buyout agreement as someone other than the defendant or his immediate family member or lineal descendant, is the event that could trigger the defendant's liability within that period. Therefore, it is entirely plausible and rational that the parties could have chosen different terms simply
Finally, I note that the contingency clause also provides that the defendant "shall pay ... [the] additional purchase price ... at the same time as the transfer." The defendant construes this provision as requiring payment of the contingency sum when he transfers legal title to the property. By contrast, the plaintiff's interpretation imposes liability at the time that a purchase and sale agreement is executed, under the assumption that an equitable interest is transferred at that time under the doctrine of equitable conversion. Under settled law, however, that doctrine does not necessarily arise upon execution of such an agreement. If a sales contract includes conditions that must be satisfied before title to the property can be transferred to the purchaser, the doctrine generally does not apply until those conditions have been satisfied. See Francini v. Farmington, 557 F.Supp. 151, 155 (D.Conn.1982); 14 Powell on Real Property, supra, § 81.03[1], at pp. 81-85 through 81-86. Therefore, the transfer of an equitable interest, assuming application of the doctrine should apply, may occur at some point well after the execution of the sales agreement. Because the defendant's interpretation links liability to a specific event whereas the plaintiff's interpretation links liability to the particular terms of the purchase agreement and the parties' satisfaction of conditions therein, the defendant's construction not only is eminently reasonable but more consistent with a definite meaning that we presume is intended by sophisticated commercial parties. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. at 496-97, 746 A.2d 1277.
In addition to the aforementioned textual ambiguities, potential inequities arising under the plaintiff's construction but not the defendant's lend support to the latter's view of the clause. The contingency clause renders the defendant liable when the whole value of a sale within the specified period exceeds $3.5 million, the presumptive value of the property under the buyout agreement. Under the defendant's construction, his liability would be assessed upon the transfer of title at closing, a point at which the purchase price paid in exchange for title presumably would reflect the property's fair market value. The plaintiff has conceded that under his construction, the defendant would be liable even if the sale never came to fruition, an onerous and unusual result. Although the plaintiff assumes that such a result would be warranted because the price in the purchase and sale agreement would reflect the fair market value of the property, that assumption will not always hold true. For example, an event subsequent to the execution of the sales agreement could reveal that the fair market value is substantially less than the stated purchase price (i.e., environmental contamination revealed upon inspection), causing the purchaser to renounce the sales agreement. Nonetheless, under the plaintiff's construction, the defendant still would be liable under the contingency clause to pay a percentage of the purchase price. One has to question whether a commercially sophisticated party would agree to assume such a risk.
It may well be that, after considering all of the evidence in the present case, including extrinsic evidence that the defendant contends proves that the parties intended for the contingency to apply upon the transfer of title at closing, the trial court will conclude that the parties intended for "any ownership interest" to encompass an
We disagree that this interpretation is tenable in light of the parties' failure to include this limitation in their contract. The dissent observes that "the contingency clause is replete with language expressly addressing fractional interests." (Emphasis in original.) This fact demonstrates that the parties were well aware of the notion of fractional interest transfers when drafting their contract, but nevertheless chose not to limit the scope of the phrase "any ownership interest" to only a transfer of any fraction of legal ownership interest. We presume that the omission of limiting language (and the parties' use of the broader phrase "any ownership interest") was intentional. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. at 497, 746 A.2d 1277; Bank of Boston Connecticut v. Schlesinger, supra, 220 Conn. at 159, 595 A.2d 872.
We do not share these concerns. The contingency clause leaves the defendant free to choose whether and under what conditions he will transfer an ownership interest in the premises to a third party. Nothing in the contingency clause requires the defendant to make such a transfer nor does it dictate the terms of a transfer. Thus, if the defendant, mindful of his contingency clause obligations, were concerned about a potential latent condition interfering with a transfer, he could protect himself by evaluating the premises before entering into a sales contract. The defendant could also negotiate for protections from the buyer in the event a latent condition is discovered. The defendant could avoid any such risk altogether by simply choosing not to transfer any ownership interest in the premises within the one year period of the contingency clause. Either way, the contingency clause does not prevent the defendant, a sophisticated business person represented by counsel, from protecting himself from an inequitable result.
In any event, this issue is largely academic in light of the facts of this case. The defendant's contract with Vaughn closed as anticipated. The defendant has not claimed that he did not receive full consideration under the Vaughn contract.
We note, however, that inequities to the plaintiff would arise under the defendant's alternative interpretation. Interpreting the contingency clause to apply only to the transfer of legal title at closing would allow the defendant to enter into a contract to sell the premises for a value sufficient to trigger the contingency clause, but to avoid having to pay the plaintiff anything simply by choosing a closing date after the expiration of the one year period in the contingency clause.