******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
SALCE v. WOLCZEK—DISSENT

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 conversion1 as an implicit term of their contract so that, if the

defendant entered into a purchase and sale agreement

within the period subject to the contingency clause, 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 subject to another reasonable

interpretation, under which the plaintiff would receive

a share of the whole value of a sale only upon the

defendant’s transfer of the full legal title to the property

or some portion thereof during the period of the 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,

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, 623. 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 Illu-
minating 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. 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 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 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 quarterinterest

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 defendant closed; on March 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

a third party (Vaughn agreement) for a stated purchase

price of $5.5 million; and on July, 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 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).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

the full bundle of property rights or certain fundamental

legal rights, such as legal title or possession. Even when

a purchaser is deemed to have an equitable interest in

property, the purchaser does not obtain full rights of

ownership until the transfer of absolute (or legal) title.

See 14 Powell on Real Property (M. Woolf ed., 2004),

§ 81.01 [3] [a], p. 81-15; see also Cavanaugh v. 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 of the 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

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 § 22a19, 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 terms

refer to the same event triggering the contingency. One

definition of ‘‘sale’’ provides: ‘‘A contract between two

parties, called, respectively, the ‘seller’ (or vendor) and

the ‘buyer’ (or purchaser), by which 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 give
rise 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]his reading ignores the meaning of the verb ‘transfer’

contained in the definition of ‘sale’ in both the fifth

and ninth editions of Black’s Law Dictionary. ‘Transfer’

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

or personal 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

that the 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 of the 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

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]onWolczek [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 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

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], 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. 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,

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.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 of the equities in the given case. See

FCM Group, Inc. v. Miller, 300 Conn. 774, 798–99, 17

A.3d 40 (2011)(noting ‘‘limited circumstances’’ in which

‘‘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’s lien statute’’ [internal quotation marks omitted]); Anderson v. Yaworski, supra, 120 Conn. 393

(declining to apply doctrine under facts of case because

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

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 equitable interest arising under equitable

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

equitable interests of any percentage, a trial is necessary

to hear all relevant evidence as to the parties’ intent. I

therefore disagree that the Appellate Court properly

affirmed the trial court’s summary judgment rendered

in the plaintiff’s favor, and, accordingly, I respectfully

dissent.

1 Where applicable, ‘‘[u]nder 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, 197 Conn. 264, 267, 497 A.2d 32 (1985).

2

I agree with the plaintiff and the majority that the 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 of the clause as providing a mechanism

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 similar
definitions 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 of right, title or interest in either real or personal property . . .

by sale gift or other process.’’

5

I recognize the possibility that, even if equitable conversion was assumed

to apply, the defendant might avoid payment under such circumstances by

asserting an equitable defense or claim, such as unjust 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.

6 Francis T. Zappone Co. v. Mark, 197 Conn. 264, 497 A.2d 32 (1985), and

its progeny, on which the plaintiff and 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, absent fraud or other improper

practice on the part of the real estate broker, a commission is fully earned

once the buyer and the seller execute a binding agreement. Id., 267–68; see

also Black’s Law Dictionary (6th Ed. 1990) (noting specific meaning of ‘‘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 of the contingency clause is belied by the facts

in this case. The plaintiff asserted several counts in his amended complaint

premised on precisely such allegations (breach of fiduciary 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 if he did not prevail on the breach

of contract claim at trial.