Anthony Verderame, Executor v. Anderson Sunnyside Farm Association et al. (2010)

MEMORANDUM OF DECISION Re Motion for Summary Judgment, # 225

PROCEDURAL HISTORY AND FACTS

The plaintiff has filed a motion for summary judgment (# 225) claiming that there is no genuine issue of material fact as to both the plaintiff's complaint seeking a mortgage foreclosure and other relief, and, as to the defendants' counterclaim.   Although the wording in the body of plaintiff's motion does not limit its scope, the memorandum of law filed in support of the motion (# 225.50) expressly addresses only the issue of liability as to the plaintiff's complaint and the court will consider the motion to limit itself to such.   No such limitation is placed on the counterclaim.   On March 15, 2010, the defendants filed a memorandum of law in opposition to the motion (# 228).   Oral argument was heard by the court on June 7, 2010.

In order to address the motion, it is necessary to conduct a review of the procedural history of the file.   Notably, this matter has been on the court's docket for the same length of time that has elapsed since the Cleveland Indians won their last pennant.   On July 2, 1998, Frank Verderame filed a two-count amended complaint against the defendants Anderson Sunnyside Farm Associates (Anderson) and Trinity Estates Development Corporation (Trinity), seeking foreclosure of a mortgage, possession of the mortgage property, a deficiency judgment, the appointment of a receiver to collect rent and profits from the mortgaged property and an order for reasonable weekly payments by the defendants.   The amended complaint alleges that on or about June 9, 1995, Trinity mortgaged certain property to Frank Verderame to secure a note in the amount of $1.7 million.   In its answer, Trinity has admitted the allegation.   The note was payable to Frank Verderame on or before June 9, 1996.   On or about June 27, 1995, Trinity sold and transferred its right, title and interest in the property to Anderson by virtue of a quit-claim deed.   The amended complaint alleges that as of June 9, 1996, Frank Verderame still owned the note and mortgage and that Trinity was in default of its payment obligations.   The balance of the principal sum of the mortgage, together with all costs, expenses and attorneys fees was allegedly in excess of $1.8 million.   Frank Verderame exercised the option contained in the note and mortgage deed to accelerate and declare the balance of the principal sum to be due and payable.   On November 12, 1997, Frank Verderame commenced the present action by service of process to foreclose the mortgage executed by Trinity on the property owned and solely possessed by Anderson.

On April 24, 2000, Anthony Verderame, Frank Verderame's son, filed a motion to be substituted as the party plaintiff in his capacity as executor, in which he stated that Frank Verderame had died on May 1, 1999.   The court granted the motion on May 22, 2000.   Therefore, any reference herein to the plaintiff is solely as to Anthony Verderame.

On October 5, 2000, the defendants filed a revised answer, five special defenses and a three-count counterclaim.   On November 6, 2000, the plaintiff filed a motion to strike the defendants' revised special defenses.   On July 25, 2001, the defendants, seeking to add a sixth special defense, filed a request for leave to amend their revised answer, special defenses and counterclaim with the proposed amendments appended thereto.   The plaintiff did not object.   On August 31, 2001, the court (Celotto, J.) granted the motion to strike the first, second, fourth and fifth special defenses, but denied the motion as to the third special defense.   No issue was made of the sixth special defense.   In their third special defense, the defendants allege that “the note and mortgage are void, invalid and unenforceable because they are unconscionable in their terms in that the interest rate(s) imposed pursuant to the [n]ote are usurious.”

On February 14, 2002, the plaintiff filed a motion for summary judgment as to the defendants' third special defense (# 148).   The court (Arnold, J.) denied the plaintiff's motion on May 1, 2003.   Then, on July 14, 2003, the plaintiff filed another motion for summary judgment (# 163) seeking all of the relief requested in its amended two-count complaint on the grounds that there were no genuine issues of material fact in dispute and the plaintiff was entitled to judgment as a matter of law.   That motion, though applicable to the complaint as a whole, also included another attempt to include and address the defendants' third special defense.   The motion was denied by the court (Skolnick, J.) on March 22, 2004.

Thereafter, the defendants filed a revised counterclaim on October 31, 2005, setting forth allegations of usury relative to the advancement and repayment of funds, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. and reckless indifference to the rights of the defendants.   On August 29, 2008, the plaintiff filed a motion for partial summary judgment (# 214) attempting to excise paragraph nine of the first count of defendants' counterclaim.   That motion also was denied by the court (Shortall, J.) on December 23, 2008.

Subsequently, the plaintiff filed the present motion for summary judgment (# 225) as to its entire complaint and the defendants' counterclaim.   As noted above, the memorandum of law addresses only the issue of liability relative to the complaint.   However, a fair reading of the text of the motion and the memorandum makes clear that summary judgment is sought against all aspects of the counterclaim and is not limited to the issue of liability.¹  Also noteworthy is that in the motion, the plaintiff attempts for a third time to argue against the allegations of defendants' third special defense.

DISCUSSION

“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 ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law ․” (Citations omitted.)  Weiss v. Weiss, 297 Conn. 446, 458 A.2d (2010).   The non-movant also “is given the benefit of all favorable inferences that can be drawn.”   (Citations omitted.)  Catz v. Rubenstein, 201 Conn. 39, 49, 513 A.2d 98 (1986).

“Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ․” (Internal quotation marks omitted.)  Byrne v. Burke, 112 Conn.App. 262, 267-68, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).

Each party has submitted various documents in support of their position.   The plaintiff has submitted as Exhibits A-E, copies of an affidavit of Anthony Verderame, separate unanswered requests to admit propounded to the defendants Anderson and Trinity, interrogatories and requests for production, various warranty, quit-claim or mortgage deeds, various correspondence, the promissory note, invoices, checks, written summaries of advances, and deposition transcripts.   The defendants have submitted an affidavit from the president of Trinity along with copies of a mortgage deed, quit-claim deed and a November 20, 1992 letter from the assessor for the town of East Haven, Connecticut.   See Exhibits A, B and C. Virtually all of the exhibits submitted by both parties are without certification or authentication.   As such, they are hearsay and lack “the necessary indicia of reliability required for a summary judgment determination.”   Torrenti v. Kancir, Superior Court, judicial district of New Haven, Docket No. CV 07 5012366 (December 19, 2007, Holden, J.).   Neither party, however, has objected to any of the evidence presented.

Thus, “any objection is deemed waived and all documents are admissible” within the court's discretion.²  Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. 03 0476708 (June 25, 2008, Cosgrove, J.).

After a full review of the relevant pleadings and supporting materials, the court finds that the motion for summary judgment as to liability on the plaintiff's complaint should be denied.   The liability issue raised by the plaintiff as to its complaint, though narrowed from the broader claim for both liability and damages, nonetheless has already been addressed by the court in Judge Skolnick's March 22, 2004 ruling on plaintiff's prior motion for summary judgment (# 163).   That ruling is the law of the case on this issue.   In considering the arguments made by the plaintiff in support of its motion at that time, Judge Skolnick noted “[t]he plaintiff argues, therefore, that no genuine issues of material fact exist as to the complaint because the mortgage is exempt from the usury statute and the terms of the note and mortgage are not unconscionable, which were alleged by the defendants in their third special defense.”  (Emphasis added.)   His opinion makes clear that the plaintiff's motion, in attempting to obtain summary judgment as to the complaint, “makes precisely the same arguments as his memorandum of law in support of his motion for summary judgment as to the defendant's third special defense which was ․ decided by the court [Judge Arnold's decision on motion # 148] on May 1, 2003.” ³

“The law of the case [doctrine] ․ expresses the practice of judges generally to refuse to reopen what has been decided ․ Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case ․” Lewis v. Gaming Policy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993).   Such rulings are not to be lightly changed.  McCarthy v. McCarthy, 55 Conn.App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000).   The doctrine is a flexible one, but the reasons behind it are compelling.  “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”  (Internal quotation marks omitted.)  Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked.”  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).   “New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ․ But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause.”  (Emphasis added;  internal quotation marks omitted.)  Id. However, “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.”  Id.

While plaintiff may argue that the subsequent failure of the defendants to respond to the requests for admission propounded to them justify a ruling in its favor, the court does not consider this as a new or overriding circumstance.   The plaintiff chose to file a motion for summary judgment (# 163) as to the whole complaint on July 14, 2003, more than five years prior to the submission of those requests for admission.   Even though the subsequent acquisition of evidence or admissions might substantially impact the ultimate decision on a party's claim, a party must decide when it is in its interests to file a motion for summary judgment as it may not do so, absent permission of the court, each time new evidence is discovered on the same issue.   Because the issue of liability has in effect already been addressed, the law of the case is applicable and the motion is denied as to the plaintiff's complaint.

However, because the motion also addresses the defendant's counterclaims which have not previously been challenged by the plaintiff through a motion for summary judgment, the court is compelled to consider the motion as to the counterclaims.   Because the counterclaims deal with usury, CUTPA and a claim of reckless indifference to the defendants' rights, the motion is appropriate and, as noted above, is not limited to the issue of liability relative to those claims.   Accordingly, the court must look to see whether there exists a genuine issue of material fact as to each count.

In viewing the evidence most favorably to the defendants (non-movant), there remains a genuine issue of material fact as to the defendants' allegations.   The affidavit and accompanying exhibits submitted by the defendants demonstrates the existence of a disputed factual issue as to whether real property transferred from the defendants to the plaintiff was in satisfaction of the debt claimed.   The defendants aver that the debt was satisfied through a deed in lieu of foreclosure and that plaintiff's failure to consider it as such gives rise to defendants' claims of usury, a CUTPA violation and reckless indifference to defendants' rights.   The plaintiff avers that it has received only $200,000 from the defendants.   Determining the intent of the parties in a transaction, and making any inferences of fact surrounding that transaction, is something that is best left to a trier of fact.  Gaudio v. Griffin Hospital Services Corp., 249 Conn. 523, 533, 733 A.2d. 197 (1999).   It is not something well suited for a summary judgment motion.   For the purposes of the motion relative to the counterclaim, the proffered evidence is sufficient to create a genuine issue of material fact.   The court therefore believes it best to allow a full examination of the circumstances and the conduct of the parties relative to the allegations set forth in defendants' counterclaims.   This can best be done at trial.   The motion for summary judgment is denied as to the counterclaims.

CONCLUSION

For all the above reasons, viewing the matter in the light most favorable to the defendants, the court finds that the law of the case is applicable to the plaintiff's claim thereby precluding summary judgment as to the amended complaint.   As to the defendants' counterclaims, there still remains a genuine issue of material fact to be decided between the parties.   The plaintiff's motion for summary judgment is denied.

Shaban, J.

FOOTNOTES

FN1. The headings of pleadings are not dispositive.   See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) (“[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative”).   Although that case dealt with the reading of a complaint, the same principle is true for other pleadings..  FN1. The headings of pleadings are not dispositive.   See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) (“[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative”).   Although that case dealt with the reading of a complaint, the same principle is true for other pleadings.

FN2. “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citation omitted;  internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Uncertified documents may be “admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists ․” Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)..  FN2. “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citation omitted;  internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Uncertified documents may be “admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists ․” Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

FN3. See pleading # 173, Memorandum of Decision, pages 8-9..  FN3. See pleading # 173, Memorandum of Decision, pages 8-9.

Shaban, Dan, J.