Detroit Institute of Arts Founders Society v. Rose

RULING ON MOTIONS FOR SUMMARY JUDGMENT

I. Introduction and Factual Background

“The Howdy Doody Show” was a television program beloved by millions of children now known as “the baby boom generation.” It was produced and broadcast by the National Broadcasting Company, Inc. (“NBC”) from 1947 to 1960. Hosted by Robert “Buffalo Bob” Smith, the show’s main character was Howdy Doody, a puppet in the image of a freckled-faced boy in cowboy clothing. For most of its run, the show aired every afternoon after school. In that era, television programming — especially for children — was very limited, which contributed to the show’s immense popularity.

This lawsuit arises out of a dispute over the ownership of the revered and now valuable Howdy Doody puppet.

A. Background 1

The first Howdy Doody puppet that appeared on “The Howdy Doody Show” looked very different from the character that became so popular. The show’s production team thought this first Howdy Doody was unappealing and later referred to it as the “Ugly Howdy.” In 1948, NBC commissioned a well-known puppet maker, Velma Dawson, to build a new Howdy Doody to replace the Ugly Howdy. On June 3, 1948, NBC purchased the new puppet from Dawson, and this puppet became the Howdy Doody character on the show.

During the thirteen years and over two thousand shows that “The Howdy Doody Show” was on the air, several other Howdy Doody puppets were created. “Double Doody,” a puppet nearly identical to Howdy Doody, served as a stand-in on the show when repairs were made to Howdy Doody. “Photo Doody,” a puppet without strings, was used for public appearances and photo opportunities. 2 Finally, puppets referred to as. the “Canadian Howdys” were created for a version of “The Howdy Doody Show” that aired in Canada.

Most of these Howdy Doodys, like the many other puppets used in the show, were maintained and operated by several puppeteers, including Rufus C. Rose 3 and his wife, Margaret (“Margo”) Rose. Beginning in 1952, Rufus Rose served as the puppet master, puppeteer, and caretaker for many of the puppets that appeared on the American broadcast of the “The Howdy Doody Show.” He also created some puppets and made repairs at his workshop in Waterford, Connecticut. While the American show was on the air, Rufus Rose received $75.00 per week from NBC for “storing and servicing” the puppets at his workshop as part of his compensation. Like her husband, Margo Rose repaired puppets that appeared on the show; she also designed some of the show’s characters and modeled and painted their heads.

When “The Howdy Doody Show” went off the air in December 1960, Rufus Rose ended his employment by NBC but kept possession of many of the puppets used in the show, including Howdy Doody, Double Doody, and the Canadian Howdys. Pursuant to an informal agreement made at the end of the show’s run with Roger Muir, the show’s executive producer, Rufus Rose *121 continued to store the puppets in his Connecticut workshop until final arrangements were made for them. 4

On April 23, 1961, a fire occurred at Rufus Rose’s workshop and some of the puppets were damaged. Fortunately, Howdy Doody apparently escaped serious harm. NBC, with its insurance carrier, sued Rufus Rose in Connecticut state court for allowing the puppets to be damaged.

Shortly after the lawsuit with NBC concluded in late 1965 in favor of Rufus Rose, 5 he began a series of correspondence with NBC about payment for his maintenance and storage of the puppets since the end of the show in 1960, and about the future of the puppets, including Howdy Doody. 6 In a June 3, 1966 letter to NBC General Manager William J. Schmitt, Rufus Rose proposed that: (1) NBC pay him for the storage and upkeep of all the puppets since the end of the show; (2) NBC allow him to keep the minor puppets (but with the understanding that he would not use them as Howdy Doody show characters); and (3) the main puppets from the show, including Howdy Doody, be turned over to a museum known as the Detroit Institute of Arts (“DIA”). Rufus Rose indicated in his letter that the DIA “houses the recognized museum of Puppetry in America.” Schmitt turned Rose’s letter and the matter over to Howard Singer of NBC’s legal department.

On March 20, 1967, after some negotiations, Singer sent Rufus Rose a proposed general release and a cover letter which set forth an amount for the past storage and maintenance fees, agreed that Rose would send Howdy Doody to the DIA, and agreed that Rose could keep the “minor puppets.” 7 Rose returned the executed release with a cover letter on March 23, 1967. 8

For the next few years, Rufus Rose kept the Howdy Doody puppet at his Waterford workshop.

The next chapter in the travels of Howdy Doody began in 1970. In response to a request from his friend Buffalo Bob, who was then making public appearances throughout the country in his role from the show, Rufus Rose agreed in a letter to send Howdy Doody to Buffalo Bob. In that letter, dated September 11, 1970, Rufus Rose explained to Buffalo Bob that he had agreed with NBC that the puppet would “eventually” be placed in the DIA, and it never would be used in a commercial manner. Rufus Rose went on to say that he was sending the “one and only original HOWDY DOODY” to Buffalo Bob “with this mutual understanding and responsibility.” Rufus Rose died in 1975, while Howdy Doody was still in Buffalo Bob’s posses *122 sion. Through the next fifteen years or so, Buffalo Bob kept Howdy Doody and used him in his public appearances.

Beginning in 1992, Buffalo Bob’s attorney, Edward Burns, wrote to NBC, Margo Rose (Rufus Rose’s widow), and the DIA, requesting that they waive the requirement that Howdy Doody be placed in the DIA. Burns indicated that Buffalo Bob had fallen on difficult financial times, and now wished to sell the puppet and keep the proceeds. In a reply written on behalf of his mother, Margo Rose, Christopher Rose stated that it was his father’s intention that Buffalo Bob honor the “condition” that Howdy be given to the DIA. NBC wrote Buffalo Bob that it also refused to release Howdy Doody to him. The DIA also declined to allow Buffalo Bob to sell the puppet. As a result, in a July 24, 1995 letter, Buffalo Bob informed the DIA that he would transfer Howdy Doody to the museum when he no longer wished to keep the puppet.

Eventually, Buffalo Bob and Christopher Rose changed their minds about Howdy Doody. 9 On April 19, 1998, they executed an agreement to sell the puppet and split the profits. 10 Howdy Doody was turned over by Buffalo Bob to Christopher Rose at that time, with the understanding that if it were not sold by June 1, 1999, it would be returned to Buffalo Bob under the terms of his original agreement with Rufus Rose from 1970.

In May 1998, Christopher Rose and Buffalo Bob amended their earlier agreement to recite specifically that each then owned a fifty percent interest in the puppet, and they “certified” that Christopher Rose had received from Buffalo Bob the “original Howdy Doody puppet that was used on over 2300 Howdy Doody T.V. shows.” According to the DIA, on June 19, 1998, Christopher Rose entered into a consignment agreement with Leland’s Collectibles, Inc., an auction house, for the sale of the “original Howdy Doody” and other puppets from “The Howdy Doody Show.” A few days later, Buffalo Bob died. The DIA then brought this case to prevent the Rose family from selling the puppet and also to gain possession of it. 11

During the course of discovery in this action, this Court permitted an inspection of the Howdy Doody puppet that was transferred from Rufus Rose to Buffalo Bob and then to Christopher Rose. This inspection was conducted on December 14, 1999, and was overseen by Alan Semok, a maker and restorer of puppets who had repaired Howdy Doody while it was in Buffalo Bob’s possession. Velma Dawson, who created the Howdy Doody puppet that debuted in 1948, attended the inspection, but she could not identify the head of that puppet as the head that she had constructed for NBC in 1948. However, she later submitted an affidavit stating that her initial conclusion was mistaken and that she believed the head that she examined during the inspection to be her work.

B. The Lawsuit Here

The plaintiff in this case is the DIA. The defendants are Christopher Rose, both individually and as executor of his mother’s estate; his two brothers, James and Rufus R. Rose; and Mildred Smith, Buffalo Bob’s widow and the executrix of his estate. 12

*123 The DIA’s first amended complaint requests several forms of relief. 13 First, as to all the defendants, the plaintiff DIA seeks a declaration that it is the owner of the puppet and a grant of permanent possession (claim one), and damages for conversion (claim two), civil theft (claim three), violation of the Connecticut Unfair Trade Practices Act, (“CUTPA”), Conn. Gen.Stat. § 42-110b, et seq., (claim five), and breach of contract based on the 1998 agreement between Buffalo Bob and Christopher Rose to auction Howdy Doody (claim seven). As to the defendant Christopher Rose, the amended complaint also seeks damages for tortious interference with contract (claim four). Finally, as to the defendant Mildred Smith, the plaintiff also seeks damages for breach of contract based on the 1970 letter of Rufus Rose to Buffalo Bob (claim six).

Pending is the Rose defendants’ motion for summary judgment [Document # 71], defendant Mildred Smith’s motion for summary judgment [Document # 74], and the plaintiffs motion for partial summary judgment [Document # 77]. The arguments of each of these motions are first summarized below, then addressed in detail.

C. Plaintiffs Motion for Partial Summary Judgment

The DIA argues that it was a third party beneficiary of the 1966-1967 agreement between NBC and Rufus Rose and thus is entitled to ownership of Howdy Doody. It seeks summary judgment as to its first claim for possession and ownership of Howdy Doody. The DIA further contends that the affirmative defenses advanced by the defendants are unsupported by the evidence or law, and as a result, it is entitled to summary judgment on those as well. 14

D. Rose Defendants’ Motion for Summary Judgment

In their motion for summary judgment, the Rose defendants argue that the Howdy Doody puppet at issue in this case is not the original Howdy Doody, and consequently, that the DIA is not entitled to it. They contend that the “original” Howdy Doody should be defined as the puppet with the head made by Velma Dawson in 1948, and that the evidence does not conclusively establish at this juncture that Dawson created the head of the puppet at issue in this case. 15

The Rose defendants also argue: (1) the DIA is not entitled to Howdy Doody because the DIA was not a third party beneficiary of the 1966-1967 agreement be *124 tween Rufus Rose and NBC or the 1970 agreement between Rufus Rose and Buffalo Bob; (2) Rufus Rose did not make a gift of Howdy Doody to the DIA; and (3) Buffalo Bob was under no obligation to deliver Howdy Doody to the DIA. Based on these arguments, the Rose defendants further claim that Christopher Rose is entitled to summary judgment on the DIA’s claim of tortious interference with contract.

E. Defendant Mildred Smith’s Motion for Summary Judgment

In her motion for summary judgment, Mildred Smith, as executrix of the estate of Buffalo Bob, incorporates the arguments of the Rose defendants’ motion, and advances several of her own. First, she argues that Buffalo Bob returned Howdy Doody to Christopher Rose, and as a result, his estate cannot be liable for conversion or breach of any contract. She also asserts that she is entitled to summary judgment on the plaintiffs civil theft claim because Buffalo Bob believed that he had a valid claim of ownership to Howdy Doody. Further, she contends that Buffalo Bob’s estate cannot be liable under CUTPA, because Buffalo Bob never engaged in trade or commerce involving the Howdy Doody puppet in Connecticut.

II. Standard of Review

In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court must grant summary judgment “ ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact.’ ” Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir. 1993) (citation omitted). A dispute regarding a material fact is genuine “ ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). After discovery, if the non-moving party “has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof,” then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The Court resolves “all ambiguities and draw[s] all inferences in favor of the non-moving party in order to determine how a reasonable jury would decide.” Aldrich, 963 F.2d at 523. Thus, “[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992). Additionally “where ... the non-movant bears the burden of proof at trial, the movant can satisfy its burden of production by pointing out an absence of evidence to support an essential element of the non-movant’s case.” Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 270 (2d Cir.1999) (citing Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548 and Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir.1998)).

III. Discussion

A. Present Ownership of Howdy Doody

The DIA argues that there is no genuine issue of material fact that it is the owner of Howdy Doody under the 1966-1967 agreement between Rufus Rose and NBC, and as such, it is entitled to possession of the puppet. 16 The defendants make several arguments that dispute this claim in them *125 motion for summary judgment and their opposition memorandum. 17 First, they contend that there is a genuine issue of material fact that the Howdy Doody at issue in this case is the original Howdy Doody, and as a result, that the DIA is not entitled to the puppet. Second, they argue that the language of the 1966-1967 agreement between NBC and Rufus Rose is ambiguous and not enforceable, at least without a trial. Third, they contend that the 1966-1967 agreement did not require Rufus Rose to deliver Howdy Doody to the DIA as a third party beneficiary. Fourth, they contend that the 1970 agreement between Rufus Rose and Buffalo Bob was not binding on Buffalo Bob. Each argument will be discussed below.

1. What Is the “Original” Howdy Doody?

The defendants argue in their motions for summary judgment that the definition of the “original” Howdy Doody is critical. They contend that the DIA, if it has any claim, has one only to the Howdy Doody puppet with the head created by Velma Dawson in 1948. They argue that the puppet that is the subject of the plaintiffs claim, now in the Rhode Island bank vault, is not the original Howdy Doody under this definition, and thus the DIA is not entitled to possession of it. At the very least, the defendants argue, there is a genuine issue of material fact of whether the puppet now in the bank vault is the original Howdy Doody, and they believe that this issue should be left to a jury to decide. In contrast, the DIA argues that the Howdy Doody referred to in the 1966-1967 agreement is the one in the Rhode Island bank and the one understood to be the original by Rufus Rose and NBC at the time of that agreement.

a. The Materiality of Howdy Doody’s Present Condition

In its first amended complaint, the plaintiff refers to the Howdy Doody puppet at the center of this dispute as the “Original Howdy,” and defines “Original Howdy” as “what was commonly considered and/or known by Rufus C., Buffalo Bob, and others to be the original Howdy Doody puppet,” when the show went off the air in 1960. 18 The defendants maintain that this definition is not appropriate. They argue that the term “Original Howdy” should be defined as the puppet with the head created by Velma Dawson in 1948, not simply the one considered to be the original by Rufus Rose, Buffalo Bob and others after the show ended. The definition preferred by the defendants, however, is not warranted because the is *126 sue on which it is based — whether Howdy Doody has the head made by Velma Dawson in 1948 — while disputed, is not material to the outcome of this case.

Only disputes over material facts, or those that “might affect the outcome of the suit under the governing law,” will preclude the entry of summary judgment. Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 23 (2d Cir.1994) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Substantive law dictates which facts are material. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Consarc Corp. v. Marine Midland Bank, 996 F.2d 568, 572 (2d Cir.1993). Here, the fact that Howdy Doody’s head may have changed or been repaired since it was first created in 1948 to the time the show went off the air in 1960 is not a fact that will affect the outcome of this case, and thus is not material. Instead, it only matters that the Howdy Doody puppet at issue here is the same one that was the subject of the agreement between Rufus Rose and NBC in 1967, and the one that was passed on to Buffalo Bob and later to Christopher Rose. The plaintiff has produced evidence to establish these facts beyond doubt.

The chain of custody of the Howdy Doody puppet from the end of the show in 1960 when Rufus Rose stored it at his Waterford workshop, during the time of the Rose/NBC agreement in 1966 and 1967, when it was sent to Buffalo Bob in 1970, and then to Christopher Rose in 1998, and finally to the Rhode Island bank was unbroken. In other words, the Howdy Doody in the Rhode Island vault is the same puppet to which Rufus Rose, NBC, and Buffalo Bob referred from the end of the show forward. 19 The defendants have not produced sufficient evidence to raise a genuine issue of whether this puppet is not the one that Rufus Rose and NBC intended to be subject to the 1966-1967 agreement and the same one subsequently possessed by Rufus Rose, Buffalo Bob, and then Christopher Rose. 20

In addition, when Rufus Rose and Buffalo Bob referred to the Howdy Doody puppet, they never questioned its authenticity or that it was the one subject to the 1966-1967 agreement with NBC. In his 1970 letter to Buffalo Bob, Rufus Rose indicated that he was sending Buffalo Bob the puppet that was the subject of the 1966-1967 agreement and was promised to the DIA. He also refers to this puppet as the “the one and only original HOWDY DOODY.” It is clear from that letter and subsequent documents that both believed the Howdy Doody that Rufus Rose sent to Buffalo Bob in 1970 was the original puppet, however repaired or modified during the years of the show. From 1970 forward, the term “original” was used to designate this puppet, and many key individuals referred to it in this way.

For example, Buffalo Bob and his attorney, Edward Burns, acknowledged on a number of occasions that Buffalo Bob still had custody of that Howdy Doody puppet. In Burns’ 1993 letter to Margo Rose, he stated that “Rufus Rose transferred to *127 Bob ownership of the original Howdy Doody puppet.” Burns made similar representations in his letters to NBC and the DIA. In a 1980 letter to the Smithsonian Institution regarding her donation to it of Double Doody, Margo Rose indicated that she too believed that the puppet then in the possession of Buffalo Bob was the puppet that Rufus Rose considered to be the original. She also explained that Double Doody’s hands were taken from “the original Howdy made by Velma Dawson, now in possession of Bob Smith,” which confirms that some changes were made to the Velma Dawson puppet during the life of the show. Finally, in his 1993 letter to Buffalo Bob, Christopher Rose acknowledged that Buffalo Bob possessed the puppet his father considered the original.

This puppet — the one then in Buffalo Bob’s custody and understood by the parties to be the original — was passed to Christopher Rose in 1998, but only after Buffalo Bob and Christopher Rose certified that Buffalo Bob had given the “Original Howdy Doody” to Christopher Rose in anticipation of its sale at auction. Christopher Rose made a similar acknowledgment in his agreement with Leland’s Collectibles, Inc.

b. The Dawson Inspection

The defendants point to the Dawson inspection in this case in December 1999, as well as the fact that Alan Semok reported that the inside of Howdy’s head contained an inscription “Made by Scott Brinker,” 21 to show that a genuine issue of material fact exists as to whether the puppet here is the original Howdy Doody. They also point to the changing views of the plaintiff in this case as to whether the Howdy Doody here has the same head now as in 1948. At best, this indicates the surprise of the parties here that the Howdy Doody at issue in this case may not still have had the head built by Dawson in 1948 at the end of the show in 1960 and when Rufus Rose and NBC agreed to its future in 1966-1967, or perhaps that the head had been repaired by those other than Ms. Dawson during the show’s run. It also shows that memories may have faded as to how much repair work was done to Howdy Doody during the years 1948 to 1960. However, there is no evidence that the puppet at the center of this dispute is not the same puppet considered by Rufus Rose, Buffalo Bob, and others to be the original from 1960 forward, or that it was not the puppet promised to the DIA in the 1966-1967 agreement. 22

c. Conclusion

The puppet that is at the center of this controversy perhaps is not comprised of all the same parts that it had when Velma Dawson made it in 1948, and portions of its body may very well have been replaced or repaired during the thirteen years that the show was on the air. There also may be a question as to whether Howdy Doody had the same head in 1960 when the show closed as it had in 1948, or whether the original head had been repaired in those intervening years. However, there is no genuine issue of material fact that the Howdy Doody puppet which existed at the end of the show, and was intended to be the subject of the 1966-1967 agreement between Rufus Rose and NBC, is the same as the one now in the bank vault in Rhode Island. The defendants have not presented any significant evidence to the contrary. 23

*128 2. The Agreement between NBC and Rufus Rose in 1966-1967

The DIA argues that it is entitled to summary judgment on the issue of ownership of Howdy Doody because it is a third party beneficiary of the 1966-1967 agreement between NBC and Rufus Rose. In contrast, the Rose defendants argue that there was no binding agreement between NBC and Rufus Rose as to the future of Howdy Doody. They also contend that there are ambiguities and disputed facts regarding the interpretation of this agreement, including whether the DIA was a third party beneficiary and whether NBC required delivery of the puppet to the DIA. Further, the Rose defendants assert that Rufus Rose became the owner of Howdy Doody at the time of the 1966-1967 agreement. 24

At the outset of the discussion concerning the 1966-1967 agreement, it is important to set out certain basic principles of contract law and how they apply to third party beneficiaries of contracts. They will then be applied to this situation.

a. Contracts to Benefit a Third Party

i. General Contract Law

The existence of a contract, at least initially, is a question of fact. See Simmons v. Simmons, 244 Conn. 158, 708 A.2d 949, 963 (1998). To be enforceable, a contract must “be definite and certain as to its terms and requirements.” Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 749 (2d Cir.1998) (quotation omitted); Suffield Development Associates v. Society for Savings, 243 Conn. 832, 708. A.2d 1361, 1366 (Conn.1998). “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate- remedy.” Restatement (Second) of Contracts § 33 (1981); cf. Parks v. Baldwin Piano & Organ Co., 262 F.Supp. 515, 519 (D.Conn.); aff'd 386 F.2d 828 (2d Cir.1967) (holding that an agreement “devoid of the fundamental requisite of mutuality of obligation” was indefinite and did “not constitute a binding contract for breach of which an action for damages may be maintained”). Nevertheless, “[cjourts very reluctantly reject an agreement regularly and fairly made as unintelligible or insensible.” Augeri v. C.F. Wooding Co., 173 Conn. 426, 378 A.2d 538, 540 (1977) (quotation omitted). “[A]n agreement will not be rejected if the missing terms can be ascertained, either from its express terms or by fair implication.” See Presidential Capital Corp. v. Reale, 231 Conn. 500, 652 A.2d 489, 493 (1994) (citing Augeri, 378 A.2d at 540).

For instance, “[wjhere no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time.” Schlicher v. Schwartz, 58 Conn.App. 80, 752 A.2d 517, 521 (2000) (quotation omitted); see also Northeast Elec. Contractors v. Udolf 1 Conn.App. 169, 469 A.2d 419, 420 (1984). “What constitutes a reasonable time within which an act is to be performed where a contract is silent upon the subject depends upon the subject matter of the contract, the situation of the parties, their intention and what they contemplated at the time the contract was made, and the circumstances attending the performance.” Robinson v. Commercial Contractors, Inc., 6 Conn.Cir.Ct. 398, 274 A.2d 160, 162 (1970) (quoting 17 Am.Jur.2d Contracts § 330). The particular amount of time to be considered reasonable is a question of fact ordinarily determined by *129 the trier. See Christophersen v. Blount, 216 Conn. 509, 582 A.2d 460, 463 (1990) (applying this rule with respect to a condition precedent).

“In the fact of ambiguity, the court must defer to a jury to determine the intent of the parties.” Topf v. Warnaco, Inc., 942 F.Supp. 762, 767 (D.Conn.1996). “Contract language is ambiguous if it is reasonably susceptible of more than one interpretation, and a court makes this determination by reference to the contract alone.” Goodheart Clothing Co. v. Laura Goodman Enters., Inc., 962 F.2d 268, 272 (2d Cir.1992) (applying New York law). However, language is not ambiguous merely because the parties may offer interpretations that conflict. See Orange Improvements Partnership v. Cardo, Inc., 984 F.Supp. 85, 89 (D.Conn.1997) (citing Wards Co. v. Stamford Ridgeway Assocs., 761 F.2d 117, 120 (2d Cir.1985)). In contrast, “[cjontract language is unambiguous when it has a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.” Brunoli v. Fred Brunoli & Sons, 993 F.Supp. 66, 73 (D.Conn.1997) (quoting Care Travel Co. v. Pan Am. World Airways, 944 F.2d 983, 988 (2d Cir.1991)). Although contract interpretation involving issues of the parties’ intent presents questions of fact, when contract language is definite, the determination of the parties’ intent is a question of law. See Orange Improvements, 984 F.Supp. at 90 (citation and quotation omitted).

In contract actions involving the interpretation of contractual language, summary judgment is appropriate only when the language of a contract is wholly unambiguous when considered in light of the surrounding circumstances and undisputed evidence of intent. See id. at 89 (citing Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 230 (2d Cir.1995)). The moving party has the burden of establishing that the language of the contract is not susceptible to at least two fairly reasonable meanings. See id. If that party cannot establish unambiguous contract language, a material issue exists as to the parties’ intent and the non-moving party may introduce extrinsic evidence on that issue at trial. See id. (citing Wards Co., 761 F.2d at 120).

In addition to clear and definite terms, a contract also must be supported by valuable consideration to be enforceable. See Connecticut Nat’l Bank v. Voog, 233 Conn. 352, 659 A.2d 172, 179 (1995). However, a contract is not unenforceable merely because its consideration is inadequate or disproportionate. See Osborne v. Locke Steel Chain Co., 153 Conn. 527, 218 A.2d 526, 530 (1966). An exchange of promises is sufficient consideration to support a contract, see id. at 531, but these promises must be capable of performance and the performance must be possible. See Lebowitz v. McPike, 157 Conn. 235, 253 A.2d 1, 6 (1968).

ii Third-Party Beneficiary Contracts

Two parties may enter into a contract to benefit a third party beneficiary who is then entitled to enforce contractual obligations without being a party to the contract and thus may sue the obligor for breach. See Delacroix, v. Lublin Graphics, Inc., 993 F.Supp. 74, 83 (D.Conn.1997). To be valid, there need not be express language in the contract creating a direct obligation to the third party beneficiary. See Grigerik v. Sharpe, 247 Conn. 293, 721 A.2d 526, 536 (1998) (quoting Knapp v. Neto Haven Road Constr. Co., 150 Conn. 321, 189 A.2d 386, 389 (1963)). However, a contract can only result in an obligation to a third party if both parties to the contract intended to created a direct obligation from the promisor to the third party. See Grigerik, 721 A.2d at 536. In other words, the fact a third party may gain an incidental benefit is not enough to support third-party beneficiary status. See id. at 538 n. 16. The intent of the parties is to be “determined from the terms of the contract read in light of the circumstances attend *130 ing the making of the contract, including the motives and the purposes of the parties.” Delacroix, 993 F.Supp. at 83.

To recover on a contract made for his benefit, the third party beneficiary need not consent to the contract, as long as he or she knows of the contract and accepts it when he or she begins an action to enforce it. See Data Gen. Corp., Inc. v. Citizens Nat’l Bank, 502 F.Supp. 776, 785 (D.Conn.1980). Generally, a third party beneficiary is subject to the defenses that the promi-sor could raise in a suit by the promisee. See Benson v. Brower’s Moving & Storage, Inc., 907 F.2d 310, 313 (2d Cir.1990) (discussing the collective bargaining exception to this rule under New York law). The parties to a contract to benefit a third party may discharge or alter the promi-sor’s obligations under that contract if the terms of the original agreement do not prohibit such changes, the third party has not relied upon the contract, or the third party has not yet brought suit based on the contract. See Restatement (Second) of Contracts § 311. Any modification of such a contract must be accomplished by a subsequent agreement between the parties. Id.

b. The Agreement in this Case