RBS v. Vincent Gloria et al. (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

On October 30, 2009, one of the defendants in this foreclosure action, Richard Farricelli, filed a cross complaint against one of the co-defendants, Vincent Gloria.   Gloria has now filed a motion for summary judgment.   For the following reasons, that motion is granted.

The following facts are not in dispute.   Gloria previously owned a parcel of property in Milford, Connecticut known as 198 East Rutland Road (“the property”).   On or about November 24, 2003, Gloria obtained a $150,000 home equity line of credit from the plaintiff, RBS Citizens National Association (RBS), which was secured by a mortgage on the property.   In or about April 2006, and by quitclaim deed, Gloria transferred the property to his daughter and her husband, Farricelli.   Thereafter, on May 4, 2009, RBS commenced this foreclosure action against Gloria and Farricelli,¹ alleging that Gloria failed to pay the installments of principal and interest when due, and that it was therefore entitled to declare the entire outstanding balance on the line of credit due and payable in full.

As previously indicated, Farricelli filed a cross complaint against Gloria on October 30, 2009.   In it, Farricelli alleges that when Gloria transferred the property to him, he “promised he would gradually pay off the line of credit,” but that he did not make payments when they became due, “and instead continued to draw upon the line, increasing the balance.”   Farricelli further alleges that “Gloria's failure to pay off and cause the home equity line to be released is a breach of the promise between Gloria and Farricelli.”

On February 11, 2010, Gloria filed the motion for summary judgment ² that is now before the court.   The motion is accompanied by Gloria's own affidavit and a memorandum of law.   Gloria argues there are no remaining genuine issues of material fact, and that he is entitled to judgment for three reasons.   First, although he denies having promised to pay the balance of the home equity line of credit, he argues that the evidence demonstrates that any promise to pay would be unenforceable for lack of consideration.   Second, he claims that his affidavit demonstrates that he did not continue to draw on the line of credit after transferring the property.   Finally, he argues that, even assuming the parties had a valid, enforceable agreement that Gloria breached by failing to pay off the balance of the line of credit, Farricelli's claim would have accrued on the date of the alleged agreement-sometime in April 2006-and that the cross claim is therefore barred by the three-year statute of limitations established for express oral contracts by General Statutes § 52-581.³

Farricelli filed an objection, a memorandum of law, and his own counteraffidavit on March 17, 2010.   He contends there are still genuine issues of material fact left unresolved.   Namely, he contends that there is an issue of fact regarding whether Gloria made a promise to pay off the balance of the line of credit.   Farricelli also argues that the six-year statute of limitations found at General Statues § 52-576 ⁴ is proper in the present action.   In the alternative, Farricelli argues that even if the shorter three-year statute of limitations is applicable, April 2006-the date of the alleged agreement is-not the proper date of accrual;  rather, he contends the date the foreclosure action was commenced, May 7, 2009, is the appropriate date.

On April 19, 2010, the parties appeared before the court and presented argument.   At that time, the parties agreed that neither of the statutes of limitations cited in their memoranda of law are applicable, because both apply to claims for breach of contract, and the alleged promise made by Gloria could not have created an enforceable contract because it was offered without consideration.   See Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104, 837 A.2d 736 (2003) (“Under the law of contract, a promise is generally not enforceable unless it is supported by consideration.”  (Internal quotation marks omitted.)).

It is because of this lack of consideration that the court now grants Gloria's motion for summary judgment.  “The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable.”  (Internal quotation marks omitted.)  Russell v. Russell, 91 Conn.App. 619, 640, 882 A.2d 98, cert. denied, 276 Conn. 924, 888 A.2d 92 (2005).   The court has reviewed all documents submitted by the parties and finds no evidence of valid consideration to support the alleged promise.   Furthermore, at short calendar, counsel for Farricelli admitted the promise to gradually pay off the line of credit was made without consideration and was therefore not enforceable as a contract.   He was unable to articulate any other theory upon which Farricelli may rely, and the court finds no such theory pleaded within the cross complaint.⁵  The court finds that there are no remaining genuine issues of material fact, and that Gloria is entitled to summary judgment because the promise to pay off the line of credit was made without consideration.

HILLER, J.

FOOTNOTES

FN1. One additional defendant, Hocon Gas of Guilford, LLC, is named as a subsequent encumbrancer..  FN1. One additional defendant, Hocon Gas of Guilford, LLC, is named as a subsequent encumbrancer.

FN2. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002)..  FN2. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

FN3. General Statutes § 52-581 provides in relevant part:  “(a) No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues ․”.  FN3. General Statutes § 52-581 provides in relevant part:  “(a) No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues ․”

FN4. General Statutes § 52-576 provides in relevant part:  “(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section ․”.  FN4. General Statutes § 52-576 provides in relevant part:  “(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section ․”

FN5. Farricelli's position seems to be that Gloria's alleged promise to pay off the line of credit was a gift, either part of or separate to the gift of the property, and that he is somehow entitled to enforce this gift by way of his cross complaint.  “A gift is the transfer of property without consideration ․ To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee ․ In other words, a valid inter vivos gift of personal property requires both delivery of possession of the property to the donee and an intent on the part of the donor that title shall pass immediately to the donee ․ The burden of proving intent and delivery rests upon the party claiming the gift.”  (Citations omitted;  internal quotation marks omitted.)   Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 103-04, 971 A.2d 8 (2009).   In the present case, Farricelli encounters three problems in arguing that the promise to gradually pay off the line of credit constituted a completed gift.   First, the property to be transferred-the funds necessary to pay off the balance of the line of credit-were to be transferred to RBS pursuant to a contract, not to Farricelli, the purported donee.   Second, the payments were apparently never made, meaning the gift could not have been completed.   Third, even if the payments had been tendered, Gloria apparently only promised Farricelli that he would “gradually” pay off the line of credit.   Therefore, it is clear Gloria did not intend to immediately transfer title of the funds, as is required for the completion of a valid inter-vivos gift..  FN5. Farricelli's position seems to be that Gloria's alleged promise to pay off the line of credit was a gift, either part of or separate to the gift of the property, and that he is somehow entitled to enforce this gift by way of his cross complaint.  “A gift is the transfer of property without consideration ․ To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee ․ In other words, a valid inter vivos gift of personal property requires both delivery of possession of the property to the donee and an intent on the part of the donor that title shall pass immediately to the donee ․ The burden of proving intent and delivery rests upon the party claiming the gift.”  (Citations omitted;  internal quotation marks omitted.)   Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 103-04, 971 A.2d 8 (2009).   In the present case, Farricelli encounters three problems in arguing that the promise to gradually pay off the line of credit constituted a completed gift.   First, the property to be transferred-the funds necessary to pay off the balance of the line of credit-were to be transferred to RBS pursuant to a contract, not to Farricelli, the purported donee.   Second, the payments were apparently never made, meaning the gift could not have been completed.   Third, even if the payments had been tendered, Gloria apparently only promised Farricelli that he would “gradually” pay off the line of credit.   Therefore, it is clear Gloria did not intend to immediately transfer title of the funds, as is required for the completion of a valid inter-vivos gift.

Hiller, Arthur A., J.