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SEAN SOLWAY ET AL. v. BRIDGET RAY
(AC 36655)
Beach, Alvord and Mullins, Js.
Argued January 5—officially released March 31, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Tyma, J.)
John R. Hall, for the appellants (defendants).
Anthony J. Musto, for the appellees (plaintiffs).
Opinion
ALVORD, J. The defendants, Bridget Ray and Rubin
Gabor Csoszor,1 appeal from the judgment of the trial
court ordering the partition by sale of real property
located in Westport and owned as tenants in common
by Ray and the plaintiffs, Sean Solway,2 David Solway,
and Eamonn Solway. The defendants claim on appeal
that the court erred in its determination that the plain-
tiffs had not waived their right to partition and, conse-
quently, the court’s grant of summary judgment was
erroneous. We affirm the judgment of the trial court.
The following facts were found by the court. The
parties own real property at 149 Riverside Avenue in
Westport. Ray, the mother of the three plaintiffs, owns
a one-half interest in the property, while each of the
three plaintiffs owns a one-sixth interest in the property.
Ray additionally holds a life use of the property. The
present ownership of the property was preceded by a
written agreement executed in 1988 among the plain-
tiffs, Robert Ray, now deceased, and Ray (1988
agreement).3 The 1988 agreement provided the Rays
with ‘‘exclusive occupancy of the residence . . . for
life and the life of the survivor of them.’’ Ownership of
the property was further affected by a 2008 stipulation,
entered into by Sean Solway, Eamonn Solway, and Ray,
in which Ray agreed to execute a quitclaim deed to
Sean and Eamonn conveying to each a one-sixth interest
in the property. The 2008 stipulation also included Sean
and Eamonn’s agreement to ‘‘allow . . . Csoszor to
maintain use and quiet enjoyment of the subject prop-
erty for no less than [180] days after the death of [Ray].’’
The following procedural history is relevant to the
appeal. In 2012, the plaintiffs commenced this action
in the trial court seeking, among other things, partition
by sale of the property. Ray, by way of special defenses,
alleged that (1) her possession of a life estate in the
property could not be terminated through partition, (2)
the 2008 stipulation recognizing her life estate and
granting a remainder interest to Csoszor constituted a
waiver of the plaintiffs’ right to seek partition, and (3)
a sale of the property would not better promote the
interests of the owners as required under General Stat-
utes § 52-500.4 The plaintiffs moved for summary judg-
ment, arguing that they were entitled to a judgment of
partition pursuant to § 52-500. Ray filed an objection,
making essentially the same arguments contained in
her special defenses.
The court issued its memorandum of decision on
September 13, 2013. The court rendered partial sum-
mary judgment in the plaintiffs’ favor, ruling that the
plaintiffs ‘‘have met their burden of showing that there
are no genuine issue[s] of material fact concerning their
right to a judgment for partition as a matter of law in
accordance with General Statutes § 52-495.’’5 The court
ordered a further hearing to address whether the parti-
tion would be in kind or by sale. The defendants filed a
motion for reargument, which was denied by the court.
The plaintiffs filed a motion for an order of partition
by sale, alleging that a sale of the property would better
promote the interests of the owners, and a hearing was
scheduled for February 24, 2014, on which date the
plaintiffs’ counsel appeared and filed an appraisal of
the property. The defendants’ counsel did not appear
and did not file an objection to the motion for order.
On February 28, 2014, the court issued an order. The
court found that the ‘‘physical attributes of the land
makes a partition in kind impractical or inequitable,’’
and that ‘‘the interests of those having an interest in
the property would be better promoted by a partition
[by] sale.’’ The court rendered a judgment of partition
by sale. The defendants appealed.
We first set forth the standard of review applicable
to partition actions. ‘‘A partition is equitable in nature,
and [t]he determination of what equity requires is a
matter for the discretion of the trial court. . . . In
determining whether the trial court has abused its dis-
cretion, we must make every reasonable presumption
in favor of the correctness of its action. . . . Our
review of a trial court’s exercise of the . . . discretion
vested in it is limited to the questions of whether the
trial court correctly applied the law and could reason-
ably have reached the conclusion that it did.’’ (Internal
quotation marks omitted.) Sclafani v. Dweck, 85 Conn.
App. 151, 155, 856 A.2d 487, cert. denied, 271 Conn. 944,
861 A.2d 1177 (2004).
We next set forth the law governing the right to parti-
tion. ‘‘[Section] 52-495 vests authority in courts having
jurisdiction of actions for equitable relief to order parti-
tion of any real property held in joint tenancy, tenancy
in common, coparcenary or by tenants in tail. . . . The
right to partition has long been regarded as an absolute
right, and the difficulty involved in partitioning property
and the inconvenience to other tenants are not grounds
for denying the remedy. No person can be compelled
to remain the owner with another of real estate, not
even if he become such by his own act; every owner
is entitled to the fullest enjoyment of his property, and
that can come only through an ownership free from
dictation by others as to the manner in which it may
be exercised. Therefore the law afforded to every owner
with another relief by way of partition . . . .’’ (Empha-
sis omitted; internal quotation marks omitted.) Geib v.
McKinney, 224 Conn. 219, 224, 617 A.2d 1377 (1992).
The defendants’ sole claim on appeal is that the court
erred in determining that the plaintiffs had not waived
their right to partition.6 This claim fails.
Our review concerns the court’s determination that
the 1988 agreement and the 2008 stipulation did not
constitute an implied waiver of the plaintiffs’ right to
partition. We regard this determination as a legal con-
clusion. See Rayhol Co. v. Holland, 110 Conn. 516, 524,
148 A. 358 (1930). ‘‘When reviewing the trial court’s
decision to grant a motion for summary judgment, we
must determine whether the legal conclusions reached
by the trial court are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision of the trial court. . . . Our
review of the trial court’s decision to grant [a] motion
for summary judgment is plenary.’’ (Internal quotation
marks omitted.) Karwowski v. Fardy, 118 Conn. App.
480, 485, 984 A.2d 776 (2009).7
The defendants acknowledge that ordinarily an
owner of property as a tenant in common is entitled to
partition of the property. They argue that the parties
in this case, however, entered into an agreement by
which the plaintiffs impliedly waived their right to parti-
tion. The defendants’ argument relies almost entirely
on Rayhol Co. v. Holland, supra, 110 Conn. 516, in
which our Supreme Court recognized that ‘‘parties may
enter into a reasonable agreement which will expressly
or impliedly debar them from seeking a partition. . . .
So a partition will not be granted where to do so would
involve the violation of a valid trust or the defeat of its
purposes.’’8 (Citations omitted.) Id., 526.
In Rayhol Co., our Supreme Court determined that
the parties, by way of provisions contained in a declara-
tion of trust, had ‘‘substituted for the method provided
by law a plan for dealing with their common interests
in the property complete in itself,’’ and concluded that
the court ‘‘would not be justified . . . to refuse to give
effect to that declaration.’’ Id., 524–25. In so concluding,
the court considered the main provisions of the declara-
tion of trust, including ‘‘that the parties . . . are to be
permitted to use and occupy the premises as a residence
for themselves and for any child . . . so long as they
continue to live together, and that the premises should
not be sold, except with the written consent of both
[parties] . . . .’’ Id., 525. The parties also had agreed
expressly that if the parties separated, the trustee
should sell the property. The court further explained
that a sale in partition could not be regarded as the
equivalent of the sale by the trustee contemplated in
the declaration of trust. Id.
The plaintiffs distinguish Rayhol Co. by arguing that
the agreement in that case concerned the disposition
of the property and was unlike the agreement in this
case, which simply created the interests in the property.
The plaintiffs argue that the present case is analogous
to Geib v. McKinney, supra, 224 Conn. 219, in which
our Supreme Court considered the claim that the trial
court had improperly ordered the partition of properties
that were held in joint tenancy with an express right
of survivorship. Id., 223–24. The defendants in Geib
argued that the right of survivorship created a contin-
gent remainder interest that could not be destroyed by
one of the joint tenants. Id., 224–25. The court in Geib
cited Rayhol Co. for the proposition that ‘‘[i]t is not
unprecedented that a separate agreement, such as a
trust, can protect certain survivorship interests against
a partition action.’’9 Id., 226. The court concluded, how-
ever, that there was nothing in the record in Geib ‘‘that
should have prompted the [fact finder] to disregard the
legislative intent manifested in §§ 52-495 and 47-14h
that a partition action will not be barred simply by the
creation of a joint tenancy with an express right of
survivorship.’’ Id., 226–27.
The trial court in the present case addressed the
defendants’ argument under Rayhol Co. and concluded
that that case was distinguishable. The court further
noted that the present action involved an agreement
and a stipulation that merely gave Ray a life use of
the property, and Csoszor the right to remain on the
property for 180 days following Ray’s death. Accord-
ingly, the court concluded that the 1988 agreement and
the 2008 stipulation did not constitute an agreement to
debar the plaintiffs from seeking partition of the
property.
Our review of the defendants’ claim requires an analy-
sis of the 1988 agreement and the 2008 stipulation,
which the defendants argue constituted an implied
waiver of the right to partition. The 1988 agreement,
as noted by the court, contained among other provi-
sions, the grant of a life use of the property to Ray. The
creation of the life estate alone, as conceded by the
defendants,10 is not sufficient to imply a waiver of the
right to partition. Section 52-500 (b) expressly contem-
plates the partition by sale of a property subject to a
life estate and provides that the sale ‘‘shall bind the
person entitled to the life estate.’’ The defendants point
to no other portion of the 1988 agreement that should
have prompted the court to disregard the express lan-
guage of the statute.
The defendants also rely on two provisions of the
2008 stipulation. First, they note the provision that
Csoszor would be allowed to remain on the property
for 180 days after Ray’s death. Second, they note the
provision stating that if Ray desired to sell the property,
the parties would cooperate in effectuating a sale. The
stipulation, including the grant of a 180 day interest to
Csoszor and the provision for cooperation if Ray desired
to sell the property, falls short of the agreement in
Rayhol Co., in which the court concluded that the defen-
dants had ‘‘voluntarily substituted for the method pro-
vided by law a plan for dealing with their common
interests in the property complete in itself . . . .’’ Ray-
hol Co. v. Holland, supra, 110 Conn. 525. In the absence
of authority that an incomplete agreement can operate
to impliedly waive an owner’s right to partition, the
2008 stipulation in this case cannot be construed as
having that effect.
Accordingly, our review of the 1988 agreement and
the 2008 stipulation leads us to conclude that the provi-
sions contained therein did not rise to the level of the
agreement in Rayhol Co. The trial court’s conclusion
that the plaintiffs had not waived their right to partition
was legally and logically correct, and the court did not
err in granting summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This action originally was commenced against Ray, but the record reveals
that an amended writ, summons, and complaint were filed and that Csoszor
was served. An appearance was not filed on Csoszor’s behalf until November
2, 2012. Accordingly, some of the pleadings in this action were filed solely
on behalf of Ray, and others were filed on behalf of both Ray and Csoszor.
The trial court’s decisions granting the plaintiffs’ motions for summary
judgment and for partition by sale were effective against both defendants,
and both defendants are parties to this appeal. We refer in this opinion
to Ray and Csoszor as the defendants and to them individually by name,
as appropriate.
2
Sean Solway is also known as John Solway.
3
Upon the death of Robert Ray, his one-third interest passed to Ray, who
currently holds a one-half interest.
4
General Statutes § 52-500 provides: ‘‘(a) Any court of equitable jurisdic-
tion may, upon the complaint of any person interested, order the sale of
any property, real or personal, owned by two or more persons, when, in
the opinion of the court, a sale will better promote the interests of the
owners. If the court determines that one or more of the persons owning
such real or personal property have only a minimal interest in such property
and a sale would not promote the interests of the owners, the court may
order such equitable distribution of such property, with payment of just
compensation to the owners of such minimal interest, as will better promote
the interests of the owners.
‘‘(b) The provisions of this section shall extend to and include land owned
by two or more persons, when the whole or a part of the land is vested in
any person for life with remainder to his heirs, general or special, or, on
failure of the heirs, to any other person, whether the land, or any part
thereof, is held in trust or otherwise. A conveyance made pursuant to a
decree ordering a sale of the land shall vest the title in the purchaser thereof,
and shall bind the person entitled to the life estate and his legal heirs and
any other person having a remainder interest in the lands. The court issuing
the decree shall make such order in relation to the investment of the proceeds
of the sale as it deems necessary for the security of all persons having any
interest in such land.’’
5
General Statutes § 52-495 provides: ‘‘Courts having jurisdiction of actions
for equitable relief may, upon the complaint of any person interested, order
partition of any real property held in joint tenancy, tenancy in common,
coparcenary or by tenants in tail. The court may appoint a committee to
partition any such property. Any decrees partitioning entailed estates shall
bind the parties and all persons who thereafter claim title to the property
as heirs of their bodies.’’
6
In their main brief to this court, the defendants also claimed that the
court erred in finding that the plaintiffs had met their burden of proof to
establish that the partition by sale would ‘‘better promote the interests of
the owners’’ as required under § 52-500. In their reply brief, however, the
defendants abandon this argument, conceding that a partition in kind was
not feasible and stating that ‘‘the defendants do not claim that the court
was in error for ordering a partition by sale, as opposed to a partition in kind.’’
7
The defendants argue that ‘‘any subtle distinctions, ambiguities or uncer-
tainty as to the meaning and import of the language used in our agreement
should have been resolved by the trial court against the plaintiff[s] in [their]
motion for summary judgment.’’ The defendants’ challenge, however, is not
to the trial court’s interpretation of the relevant terms of the agreements:
essentially, that Ray was granted a life estate and Csoszor the right to remain
on the property for 180 days after Ray’s death. The defendants’ challenge
is rather to the legal conclusion that those terms do not impliedly waive
the plaintiffs’ right to partition.
8
The plaintiffs additionally argue that the defendants have not shown or
argued that the alleged implied agreement was reasonable, as required under
Rayhol Co. Because we conclude that the court properly determined that
the parties had not impliedly waived their right to partition through the
1988 agreement or the stipulation, we need not address whether any such
agreement to waive the right to partition would be reasonable.
9
The defendants in the present case also cite to Geib, arguing that the
language ‘‘such as a trust’’; Geib v. McKinney, supra, 224 Conn. 226; consti-
tuted recognition that the decision in Rayhol Co. was not limited to trusts,
but also extended to ‘‘any collateral understanding that might have barred
the plaintiff from seeking partition.’’ Id. We assume without deciding that
the holding in Rayhol Co. is not limited to trusts and consider the substance
of the agreements at issue.
10
In the defendants’ reply brief, they state: ‘‘Presumably, the plaintiffs’
point is that, because the partition statute expressly includes joint tenancies
within its purview, so it also expressly includes life estates; and therefore
a life estate is subject to the statute. The defendants agree that this is
the case.’’