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******************************************************SALCE v

. WOLCZEK—DISSENT VERTEFEUILLE, J., with whom PALMER and ROBINSON, Js.,join, dissenting. I respectfully disagree with the majoritythat the Appellate Courtproperly 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 conversion1 as an implicit term oftheir contract so that, ifthe defendant entered into a purchase and sale agreement withinthe period subjectto the contingencyclause, the plaintiff would receive a share of the ‘‘ ‘whole value’ for any sale’’ in excess of $3.5 million, irrespective of whether legal title to the property was transferred within that period. I agree that such an interpretation is reasonable. I would further conclude, however, that the contingency clause is subjectto anotherreasonable interpretation, under which the plaintiffwould receive

a share of the whole value of a sale only upon the defendant’stransferofthe fulllegaltitle totheproperty
orsomeportionthereofduringtheperiod ofthe contingency, as the defendant claims. Therefore, I respectfully dissent.
It is important to underscore that ‘‘[a] contract must be construed to effectuate the intent of the parties, whichisdeterminedfromthelanguageusedinterpreted inthelightofthesituationofthepartiesandthe 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. 19Perry Street, LLCv. Unionville Water Co., 294 Conn. 611, 622, 987 A.2d 1009 (2010). It is only when the contract onits face reveals such aclearand 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); 19PerryStreet, LLC

v. Unionville Water Co., supra, 623. No such definite expression exists, however, if the contract is ‘‘reasonably susceptible to more than one reading.’’ (Internal quotationmarksomitted.)LexingtonIns. Co. v.Lexington Healthcare Group, Inc., 311 Conn. 29, 38, 84 A.3d 1167 (2014). Although we may presume that sophisticatedcommercialpartiesrepresentedbycounselintend 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., UnitedIllu-minating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 674–75, 791 A.2d 546 (2002).
In the present case, the stated purpose ofthe buyout agreementisthe sale oftheplaintiff’s 50percentownership interestin alimited liability company, whichholds 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. 7; 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 ofthe 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 halfthe excess at the same timeasthetransfer. The ‘excess’istheamountbywhich the whole propertyvalue for the transfer exceeds [$3.5 million]. The ‘whole value’ for any sale is the 100 [percent] value on which any percentage interest being transferredisbased. Forexample, aonequarterinterest transferred for [$1 million] would equate to a whole property value of [$4 million].

. . .’’2 The parties have stipulated that: on May 31, 2007, the plaintiff’s sale to the defendantclosed; onMarch 19, 2008, approximately six weeks prior to the expiration of the contingency clause, the defendant executed a purchase and sale agreement under which the property would be sold to
athird party (Vaughn agreement) for a statedpurchase price of$5.5million; andonJuly, 1, 2008, approximately four and one-half weeks after the contingency clause expired, the closing of the sale occurred.
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 ofthe 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 constructionis reasonable, the contingencyclause istherefore ambiguous, and summaryjudgmentwas improper.
I first turn to the meaning of the key terms in thecontingency 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).3 Another definition provides that ownership is the ‘‘[l]egal right to the possession of a thing.’’ American Heritage Dictionary of the English Language (3d Ed. 1992). Thus, the term ownership is ambiguous as applied to the question before us because it can mean thefullbundleofpropertyrightsorcertainfundamental legalrights, suchaslegaltitle orpossession. Evenwhen

a purchaser is deemed to have an equitable interest in property, the purchaser does not obtain full rights of ownership until the transfer ofabsolute (or legal) title. See 14 Powell on Real Property (M. Woolf ed., 2004), § 81.01 [3] [a], p. 81-15; see also Cavanaughv.Richichi, 100 Conn. App. 466, 469, 918 A.2d 290 (2007). Until such a transfer occurs, the seller retains many of the incidents of ownership. Principal among these is the right to possession ofthe property, as well as the right to collect profits or rents from the property and use them without restriction; see Anderson v. Yaworski, 120 Conn. 390, 393, 181 A. 205 (1935); 14 Powell on Real Property, supra, § 81.01 [3] [a], pp. 81-15 through 81-17; unless the contract specifies otherwise. See, e.g., Chomko v. Patmon, 19 Conn. App. 483, 484 n.1, 563 A.2d 311 (‘‘[a] [b]ond for [d]eed

. . . is an installment sale contract of real property where the buyer takes possession of the property but does not receive fee simple title of the property until a later date’’ [internal quotation marks omitted]), cert. denied, 212 Conn. 819, 565 A.2d 539 (1989).
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 affordedthemostexpansivereadingpossible, thiscourt 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 withphrase ‘‘ ‘noperson,’ ’’ itshouldbe affordedbroadest possible formulation); Ramirez v. HealthNet ofthe Northeast, Inc., 285 Conn. 1, 14–15, 938A.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 § 22a19, that ‘‘the repeated use

. . . of the word ‘any’

. . .indicates an intention to allow the broadest possible range ofparties 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,’’ andprovidesanexample oftheproper calculation of a whole value based on a transfer of a one-quarter interest. Moreover, an intention to address thespecificconcernofasaleofanypartiallegalinterest in the property is consistent with the overarching purpose of the entire agreement, wherein a 50 percent share of ownership interest is being sold. Bycontrasttothemanyreferencestofractionalinterests, 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 terms referto the same event triggering the contingency. One definition of ‘‘sale’’ provides: ‘‘A contract between two parties, called, respectively, the ‘seller’ (orvendor) and the ‘buyer’ (orpurchaser), bywhich the former, in consideration of the payment of promise of payment of a certain price in money, transfers to the latter the title and possession of property.

. . . A contract whereby property is transferred from one person to another for

a consideration of value, implying the passing of the general and absolute title, as distinguished from a special interest falling short of complete ownership.’’ Black’s Law Dictionary (6th Ed. 1990). Because this definition provides that the property ‘‘is’’ transferred by way of such a contract, it potentially excludes an executory sales contract that would potentially giverise to an equitable interest, because title is transferred at some later point in time. See also Guilford-Chester Water Co. v. Guilford, 107 Conn. 519, 527, 141 A. 880 (1928) (‘‘sale’’ of property is ‘‘transfer of the absolute title therein for a price’’); Ray Weiner, LLC v. Bridgeport, 150 Conn. App. 279, 286 n.7, 92 A.3d 258 (2014) (The court, when rejecting the plaintiff’s claim that a sale is not limited to situations in which title passes but also can include a contract for sale, stated that ‘‘[t]hisreadingignoresthemeaningoftheverb ‘transfer’ contained in the definition of ‘sale’ in both the fifth and ninth editions ofBlack’s Law Dictionary. ‘Transfer’

means ‘a conveyance of right, title, or interest in real

orpersonal property from one person to another.’ Merriam-Webster’s Collegiate Dictionary [11th Ed. 2012]. Therefore, the plaintiff cannot be a party to a sale because its contract remains executory and thus no transfer has occurred.’’).4 Accordingly, it is apparent thatthe contingency clause is ambiguous as to whether the ‘‘sale’’ of ‘‘any ownership interest’’ extends to a purchaser’s equitable interest because a purchaser of real property under an executory sales contract is not entitled to absolute title to, or possession of, the property until the delivery ofthe deed and payment, which typically occur at closing.
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 reflectapurposeful decisionto distinguishthe meaning oftheseterms. I disagree, however, thatthis 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]onWolczek [p]erson,’ ’’whichisdefinedinthecontingency clause of the parties’ buyout agreement as someone otherthan the defendant orhis immediate family member or lineal descendant, is the event that could trigger the defendant’s liability within that period. Therefore, itis entirelyplausible andrationalthattheparties could have chosen different terms simply to distinguish between two like events carrying different consequences. Moreover, by referring to a sale instead of a closing, the agreement makes clear that the defendant cannot avoid liability by transferring title without a formal closing. Finally, I note that the contingency clause also provides that the defendant ‘‘shall pay

. . . [the] addi-tional 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 atthattime underthe doctrine ofequitable conversion. Undersettledlaw, however, that doctrine does notnecessarilyarise upon execution ofsuch an agreement. Ifa salescontractincludesconditionsthatmustbesatisfied 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], pp. 81-85 through 81-86. Therefore, the transfer of an equitable interest, assuming application of the doctrine should apply, mayoccuratsomepointwell afterthe 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 ofthe purchase agreement and the parties’ satisfaction ofconditions 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. 496–97.
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, thepresumptivevalue ofthepropertyunderthe 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 fortitlepresumablywouldreflecttheproperty’s fair market value. The plaintiff has conceded that under his construction, the defendant would be liable

even ifthe sale never came to fruition, an onerous and unusualresult. Althoughtheplaintiffassumesthatsuch

a result would be warranted because the price in the purchase andsale agreementwouldreflectthefairmarket value of the property, that assumption will not always hold true. For example, an event subsequent to the execution ofthe sales agreement could reveal that thefairmarketvalueissubstantiallylessthanthestated 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 underthe contingency clause topayapercentage of the purchase price. One has to question whether acommercially sophisticated party would agree to
assume such a risk.5 Moreover, such a result seems in tension with case law indicating that equitable conversion does not arise by operation of law in every case, but rather in light ofthe equities in the given case. See FCM Group, Inc. v. Miller, 300 Conn. 774, 798–99, 17 A.3d40 (2011) (noting‘‘limitedcircumstances’’inwhich ‘‘a person who enters into a contract to purchase real property and is authorized by the seller or purchase agreement to make improvements to the property before the closing date, may, before legal title passes, acquire an equitable interest in the property sufficient to be considered an owner for purposes of

. . . the mechanic’slienstatute’’ [internalquotationmarksomitted]); Anderson v. Yaworski, supra, 120 Conn. 393 (decliningto applydoctrineunderfacts ofcasebecause result would be inequitable); see also R. Boyer, Survey of the Law of Property (3d Ed. 1981) p. 373 (equitable conversion ‘‘is limited in its application to cases where the intention of the parties [to the sales contract] will not produce an inequitable result, and where nothing has intervened which ought to prevent a performance’’).6 The possibility of such an inequitable result under the plaintiff’s construction lends further support to a conclusion that the contingency clause is ambiguous.7
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 intendedforthe contingencyto applyuponthe transfer of title at closing, the trial court will conclude that the parties intended for ‘‘any ownership interest’’ to encompassan equitableinterestarisingunderequitable conversion. Because, however, the contingency clause is ambiguous as to whether that phrase means legal title to any percentage interest in the property or also equitableinterestsofanypercentage, atrialisnecessary to hear all relevant evidence as to the parties’ intent. I therefore disagree that the Appellate Court properly affirmed the trial court’s summaryjudgment rendered in the plaintiff’s favor, and, accordingly, I respectfully dissent.

1 Where applicable, ‘‘[u]nder the doctrine of equitable conversion

. . . the purchaseroflandunder an executory contract is regarded asthe 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 thereafterin equityis inthe unpaidpurchaseprice, 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, 197 Conn. 264, 267, 497 A.2d 32 (1985).

2 I agree withthe plaintiffandthe majoritythatthe defendant’s interpretation of the contingency clause as a profit sharing provision cannot be sustained in light of the language and structure of the buyout agreement. I disagree, however, that the purpose ofthe clause as providing amechanism to adjust for the fair market value is dispositive of the question before us.
3 See also Black’s Law Dictionary (8th Ed. 2004) (‘‘The bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others.

. . . Ownership implies the right to possess a thing, regardless of any actual or constructive control.’’).

4 Webster’s Third New International Dictionary (2002) contains similardefinitions of ‘‘transfer’’ to the one cited by the Appellate Court in Ray Weiner, LLC v. Bridgeport, supra, 150 Conn. App. 286 n.7, which include ‘‘to make over or negotiate the possession or control of (a right, title, or property) by a legal process [usually] for a consideration: convey’’ and ‘‘the
conveyance ofright, title or interest in either real or personal property

. . . by sale gift or other process.’’

5 Irecognizethepossibilitythat, evenifequitable conversionwasassumed to apply, the defendant might avoid payment under such circumstances by asserting anequitable defense orclaim, suchasunjust enrichment. Nonetheless, the necessity of resort to such procedures in order to obtain a just result would seem to weigh in favor of the defendant’s ambiguity claim.

6Francis T. Zappone Co. v. Mark, 197 Conn. 264, 497 A.2d 32 (1985), and its progeny, on whichthe plaintiffand the majority rely, are distinguishable. In Francis T. Zappone Co., this court affirmed the trial court’s judgment determining that the plaintiff real estate broker was entitled to recover on
a promissory note executed to secure a real estate commission under a listing agreement, despite the fact that no transfer of title to the property occurred due to the purchasers’ failure to render full performance many months after taking possession of the property and making payments to the seller. Id., 267–69. The trial court had rendered judgment after a trial to the court, not on the basis of a motion for summary judgment. Id., 266. The court applied case law establishing that, absentfraud or otherimproper practice on the part ofthe real estate broker, a commission is fully earned

once the buyer and the seller execute a binding agreement. Id., 267–68; see also Black’sLawDictionary (6thEd. 1990) (notingspecificmeaningof‘‘sale’’ in context of relationship between landowner and real estate broker mean procuring ready, willing and able purchaser). The court cited the evidence in the record that established the plaintiff’s entitlement to the commission under that principle. Francis T. Zappone Co. v. Mark, supra, 268. The court then rejected the seller’s argument that the broker was not entitled to a commission because the listing agreement stated that the commission was due ‘‘ ‘upon the sale, exchange or transfer, or upon the exercise of any option to purchase,’ ’’ and, according to the seller, these conditions were not satisfied when there had been no transfer of legal title. Id. Although this court relied on the doctrine of equitable conversion in rejecting that claim, it did so in the face of: (1) a legal presumption that the broker was entitled to the commission upon execution of a binding sales agreement; and (2) terms in a listing agreement covering a broader range of conduct (sale, exchange, transfer, or exercise of option) than the language in the contingency clause in the present case. Id.

7 The majority’s view that the defendant’s interpretation also could yield

an inequitable result because the defendant could intentionally delay the closing to avoid application ofthe contingency clause is belied by the facts in this case. The plaintiffasserted several counts in his amended complaint premised on precisely such allegations (breach offiduciary duty, breach of implied covenant of good faith and fair dealing, unjust enrichment), but he chose to withdraw these counts to pursue the present appeal on the breach of contract issue. Thus, the plaintiff had alternative legal theories that he could have pursued to obtain relief even ifhe did not prevail on the breach of contract claim at trial.