III v. Efrain Socarras (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 107)

FACTS

The plaintiff, Joseph B. Connelly, III, commenced the present action by writ, summons and complaint on October 10, 2012, against the defendant, Efrain Socarras.   The plaintiff, in his three-count complaint, alleges breach of contract in count one, misrepresentation in count two and unjust enrichment in count three.   The action arises out of an alleged breach of a promissory note dated May 15, 2009, pursuant to which the defendant promised to pay to the order of the plaintiff the sum of $63,000.   The promissory note is signed by the defendant.   The plaintiff alleges that the defendant breached the terms of the promissory note by failing to make payment pursuant to the terms of the note.   Based on the court's review of the plaintiff's motion and memorandum of law and submissions in support of the motion, the plaintiff seeks judgment as a matter of law as to liability only with respect to the breach of contract claim set forth in count one of the plaintiff's complaint.

The defendant did not file an objection to the motion.   The court heard oral argument on the matter on September 16, 2013.

DISCUSSION

The plaintiff argues that there are no genuine issues of material fact as to count one of the complaint because the evidence clearly demonstrates that the defendant is liable on the note and in breach thereof for failing to pay pursuant to the terms of the note.   The plaintiff further argues that because of the defendant's failure to pay in accordance with the terms of the note, there is no question that he has defaulted on the note and the plaintiff therefore has exercised his option to declare the balance due and payable under the note.   In support of the motion, the plaintiff has submitted a copy of the promissory note, Ex. A;  Defendant's February 15, 2013 responses to plaintiff's Request for Admissions, Ex. C;  Plaintiff's April 17, 2013 Notice of Serving Second Request to Admit, Ex. D, to which the defendant failed to respond;  and July 17, 2013 Affidavit of Plaintiff, Ex. E.

“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ In order for a motion for summary judgment to be granted properly, the moving party must demonstrate that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ [A] summary disposition [must] ․ be on evidence which a jury would not be at liberty to disbelieve and ․ where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the [summary judgment].”  (Citation omitted;  internal quotation marks omitted.)  Farrell v. Twenty–First Century Ins. Co., 301 Conn. 657, 661–62, 21 A.3d 816 (2011).

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ It is not enough ․ 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 [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 596, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).   “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).  “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.”  (Internal quotation marks omitted.)   Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998).

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557–58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

A promissory note between the original parties to the note is interpreted under the fundamental principles of contract law.  Appliances, Inc. v. Yost, 181 Conn. 207, 210–11, 435 A.2d 1 (1980).   The general rule of contracts is “that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”  (Internal quotation marks omitted.)  Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 137–38, 425 A.2d 581 (1979), quoting Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S.Ct. 476, 75 L.Ed. 1112 (1931).  “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms ․ [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ․ [In] construing contracts, we give effect to all the language included therein, as the law of contract interpretation ․ militates against interpreting a contract in a way that renders a provision superfluous ․ If a contract is unambiguous within its four corners, intent of the parties is a question of law ․ When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” (Internal quotation marks omitted.)  McCarthy v. Chromium Process Co., 127 Conn.App. 324, 330, 13 A.3d 715 (2011).   When a party issues a promissory note, he agrees to pay the instrument according to its terms.  General Statutes §§ 42a–3–103(5), 42a–3–412.

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).

Here, the promissory note in question reads in relevant part:  “For value received, Efrain Socarras, D.D.S. (“Payor”) ․ promises to pay to the order of Joseph B. Connelly III, D.D.S. (“Payee”) the sum of SIXTY–THREE THOUSAND AND—NO/100 DOLLARS ($63,000.00), together with interest before maturity and/or default on the outstanding principal balance hereof at the rate of six percent (6%) per annum.   Payor agrees to pay all costs of collection (including reasonable attorneys fees) incurred by Payee in the event of a default by Payor in the payment of the principal hereof or interest thereon when due, by acceleration or otherwise.

“Principal hereof and all accrued and unpaid interest thereon shall [sic] payable in sixty (60) equal monthly payments of principal and interest, each in the amount and on the dates set forth on Schedule A attached hereto and made a part hereof ․

“Any one of the following events shall be deemed a default under this Note (each an ‘Event of Default’):  (i) the failure by Payor to fully pay any amount due under this Note within (10) days of the due date thereof or (ii) the bankruptcy or insolvency (voluntary or involuntary and however evidenced) of Payor, or the taking of any action by Payor for the purposes of facilitating any of the same.

“At all times after maturity and/or default, interest shall accrue on the unpaid principal balance hereof at the rate of ten (10%) per annum.

“Following the occurrence of an Event of Default, Payee may, by written notice to Payor, (i) declare the entire outstanding balance under this Note to be immediately due and payable and/or (ii) exercise any other rights and/or remedies available to Payee at law, in equity or under this Note ․”

On January 22, 2013, the plaintiff filed Plaintiff's Notice of Serving Request to Admit upon the defendant pursuant to Practice Book § 13–22 ¹ et seq.  (No. 103), a copy of which was mailed postage prepaid to defendant's counsel on January 22, 2013.   The defendant filed his responses on February 19, 2013.   The defendant denied that on May 15, 2009, the plaintiff loaned him $63,000, however he admitted that a promissory note dated May 15, 2009, was executed by him and that he promised to pay the plaintiff $63,000.   The defendant admitted that the “loan agreement was put into writing” and that the written agreement between the parties contains the entire agreement.   The defendant further admitted that the promissory note called for the running of interest on the outstanding principal balance in the amount of 6% per annum.   The defendant admitted that pursuant to the promissory note, he agreed to make monthly payments of principal and interest.   The defendant admitted that the under the promissory note, upon default, interest accrues on the unpaid principal balance at the rate often percent per annum and that plaintiff has made demand upon the defendant, as borrower for the immediate payment in full pursuant to the promissory note.   The defendant admitted that plaintiff has made demand upon him for the immediate payment in full pursuant to the promissory note and that despite plaintiff's demand he has failed to pay the indebtedness due and owing the plaintiff in accordance with the terms of the note.   The defendant denied that he failed to make his monthly payment for the month of June 2012, and he denied that he was in default on the note as defined by the terms of the note.  Id. (Ex. C.)

On April 17, 2013, plaintiff filed Plaintiff's Notice of Serving Second Requests to Admit (No. 105), a copy of which was mailed postage prepaid to defendant's counsel on April 17, 2013.  (Ex. D.) The defendant failed to file an answer or objection to the Second Request for Admissions within thirty days or at any time thereafter.  Practice Book § 13–23(a) in relevant part provides:  “(a) Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13–22 ․ the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.”  Practice Book § 13–24 provides in relevant part:  “(a) Any matter admitted under this section is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission.”   The defendant has not filed permission with the court to withdraw his April 17, 2013, admissions or to amend them.

Under Practice Book § 13–23(a), then, the defendant is deemed to have admitted that he failed and/or has not made his monthly payment on the note for the months of June 2012 through December 2012, and January 2013 through April 2013.   The defendant further admits that pursuant to the promissory note he is the “Payor” and the plaintiff is “Payee.”   The defendant further admits that the failure by the Payor to fully pay any amount due under the note within ten days of the due date is deemed a default under the note.   The defendant admits that the nonpayment of the monthly payment obligations by the Payor would be an “Event of Default.”   The defendant admits that “following the occurrence of an Event of Default, Payee may, by written notice to Payor ․ declare the entire outstanding balance under [the] note to be immediately due and payable.”  (Exs. A and D.) The defendant admits that the payor agrees to pay all costs of collection including reasonable attorneys fees incurred by payee in the event of a default by the payor in the payment of principal or interest when due, by acceleration or otherwise.

In this case because the defendant failed to timely answer plaintiff's Second Set of Requests to Admit served April 17, 2013, the truth of those allegations are conclusively established against the defendant.   Based on these admissions, it is quite clear that the defendant agreed to repay the plaintiff $63,000 on the promissory note in sixty equal monthly installments plus interest at six percent.   It is also quite clear that the defendant failed to make payment as required under the note and is in default.   Consequently, defendant has breached the terms of the promissory note and is therefore liable to the plaintiff pursuant to the terms set forth in the note.   Accordingly, the plaintiff is entitled to judgment as a matter of law as to liability only on count one of the plaintiff's complaint, and summary judgment in plaintiff's favor must enter as to liability on count one of the complaint.  Practice Book § 13–22;  see, W. Moller & W. Horton, Connecticut Practice (3d Ed.) § 240;  Orenstien v. Old Buckingham Corp., 205 Conn. 572, 575–77 (1987).

CONCLUSION

For the foregoing reasons, plaintiff's motion for summary judgment is granted as to count one as to liability only.

Wilson, J.

FOOTNOTES

FN1. Practice Book § 13–22 provides in relevant part:  “(a) A party may serve in accordance with Sections 10–12 through 10–17 upon any other party a written request ․ for the admission ․ of the truth of any matters relevant to the subject matter of the pending action set forth in the request that relate to statements or opinions of fact ․ (b) The party serving such request shall not file it with the court but shall instead file a notice with the court which states that the party has served a request for admission on another party ․”.  FN1. Practice Book § 13–22 provides in relevant part:  “(a) A party may serve in accordance with Sections 10–12 through 10–17 upon any other party a written request ․ for the admission ․ of the truth of any matters relevant to the subject matter of the pending action set forth in the request that relate to statements or opinions of fact ․ (b) The party serving such request shall not file it with the court but shall instead file a notice with the court which states that the party has served a request for admission on another party ․”

Wilson, Robin L., J.