Summary
denying Countrywide's motion for summary judgment
Summary of this case from Braca v. EMC Mortg. Corp.Opinion
No. CV 05-4013527S
July 8, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendants filed Motion for Summary Judgment (motion #131) claiming that there are no questions of fact presented by the complaint or requiring adjudicating by the Court.
The plaintiff filed a brief in Opposition to Motion for Summary Judgment (dated May 30, 2008) claiming that there are genuine issues of material facts which cause summary judgment to be inappropriate for the just adjudication of the plaintiff's claims.
In their second amended complaint dated January 21, 2008, the plaintiff claims that the defendants (1) were negligent in that they (a) employed inexperienced people; (b) made representations that they would be able to provide funding when they were unable to do so; (c) failed to make a timely decision on the loan and (d) encouraged the plaintiff to accept one loan when they should have known that would disqualify the plaintiff from obtaining a construction loan on the property and (2) breach of contract.
BACKGROUND
The plaintiffs sought to purchase a piece of property in Westport. They intended to demolish the structure on that property and construct a new home for the plaintiff's family. The plaintiffs needed a construction mortgage. The plaintiffs were put in touch with Ross Mannuzza, of Countrywide Home Loans, Inc. The plaintiffs were told that the defendant had a one time closing program ("OTC") in which one could close on the loan for the property and obtain a construction loan at the same time. The plaintiffs provided information over the phone to Mr. Mannuzza requesting a loan in the amount of $ 2,600,000.00 for the purchase of the property ($ 930,000.00) and the balance ($ 1,670,000.00) for the construction of the new home.
The parties agree that there was never a written agreement between the plaintiffs and the defendant for this $ 2.6 million dollar loan. The terms, the amount of the interest rate and all the other details of the loan were never agreed upon. Negotiations were long and ongoing.
However, due to the time constraints of the purchase of the property in Westport, at the suggestion of Mr. Mannuzza, the plaintiffs agreed to a loan from the defendant for the purchase of the property in the amount of $ 930,000.00. Mr. Mannuzza represented that he would help the plaintiffs obtain the construction loan to build their home.
Various negotiations took place thereafter. The plaintiffs never received an approval or a denial in connection with their construction loan application.
They later obtained financing from another company.
SUMMARY JUDGMENT
Summary judgment is an appropriate remedy when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. The procedure of summary judgment is designed to expedite a litigation proceeding and eliminate delay and expense where there is no real issue to be tried. See Wilson v. New Haven, 213 Conn. 277 (1989). Both the moving party and the party in opposition may rely on pleadings, affidavits and discovery materials, and the moving party shall, and the opposing party may, file appropriate memoranda of law. See Practice Book §§ 11-19, 17-45 and 17-46. The party seeking summary judgment has the burden of showing that no issue of material fact exists, and the party opposing the motion must substantiate its claim that a material fact issue exists. See Home Insurance Co. v. Aetna Life Casualty, 235 Conn. 185 (1995).
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the courts function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). "The existence of the genuine issue of the genuine material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Id.
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing 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." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004). See also Hartford Accident v. Ace American Reinsurance Co., 284 Conn. 744, 755, 936 A.2d 226 (2007).
"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." Practice Book § 17-49. "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
DISCUSSION USE OF UNCERTIFIED COPIES OF PORTIONS OF DEPOSITIONS
The defendant raised the issue in its reply brief that the plaintiff had submitted an uncertified copy of selected portions of Ross Mannuzza's deposition.
"Practice Book § 17-45 provides in relevant part that "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ." That section does not mandate that those documents be attached in all cases, but we note that "[o]nly 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). In fact, we have held that "Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." United Services Automobile Ass'n. v. Marburg, 46 Conn.App. 99, 107-08, 698 A.2d 914 (1997). However, the plaintiff cured this defect by submitting a certified copy of the deposition at short calendar. There this issue is moot.
STATUTE OF FRAUDS AND PART PERFORMANCE
The defendants' argue that the plaintiffs' claim of breach of contract and negligence are barred by the statute of frauds as set forth in Connecticut General Statute section 52-550 which reads as follows:
Sec. 52-550. Statute of frauds; written agreement or memorandum.
(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.
There is no dispute between the parties that there was no written agreement and that the loan did exceed $ 50,000.00.
The plaintiffs rely on the doctrine of part performance as related to the Statute of Frauds.
In Glazer v. Dress Barn, Inc., 274 Conn. 33 (2005) 873 A.2d 929, our Supreme court set out the elements of part performance. "[T]he elements required for part performance are: (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract; (2) knowledge or assent to the party's actions in reliance on the contract; and (3) acts that unmistakably point to the contract . . . Under this test, two separate but related criteria are met that warrant precluding a party from asserting the statute of frauds . . . First, part performance satisfies the evidentiary function of the statute of frauds by providing proof of the contract itself . . . Second, the inducement of reliance on the oral agreement implicates the equitable principle underlying estoppel because repudiation of the contract by the other party would amount to the perpetration of a fraud." (Citations omitted; internal quotation marks omitted.) Glazer v. Dress Barn, Inc., supra, 274 Conn. 62-63 (2005).
"These two notions of course align with the Glazer explanations that we do not have two separate doctrines which are each an exception to the statute of frauds (equitable estoppel and part performance); rather part performance is a necessary showing for a proper use of an equitable estoppel barring one from defending via the statute of frauds." Colin Harley v. Indian Spring Land Company, Superior Court, judicial district of Stamford-Norwalk at Stamford Docket No. CV 05 4005372 (December 27, 2007, Nadeau, J.) 2007 Ct.Sup. 22121.
"This court has rejected the more stringent approach taken by many other jurisdictions that the acts of part performance actually must consist of those bargained for acts constituting the basis of the agreement . . . Although we have adopted a more liberal approach, we nonetheless are mindful of the evidentiary purpose underlying the part performance exception to the statute of frauds. Thus, we have required that the acts of part performance be such acts as alter the relations of the parties . . . [and] be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute . . . Thus, we have rejected acts offered as evidence of part performance when they do not compel the inference that there was some contract by which these acts were required of the plaintiff[s] and therefore explainable upon no other theory . . . If the acts are reasonably explicable on some other ground . . . they are not sufficient to take the case out of the statute [of frauds]." (Citations omitted; emphasis added; internal quotation marks omitted.) Glazer v. Dress Barn, Inc., supra., 274 Conn. 66-67."
"It would seem unlikely to this court that the law would deny the existence of this exception merely because actions of partial performance might later be of some benefit to the performer, either post-breach or after judicial recourse is denied. If that were to have been the law's goal, the rule would have stated that the partial performance under scrutiny must be explainable only by the purported oral contract and be a performance that would be useless and without any residual benefit to the performer." Harley v. Indian Spring Land Company, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05-4005372 (December 27, 2007, Nadeau, J.) 2007 Ct.Sup. 22121 at p. 22128.
In his affidavit submitted with his Objection to the Motion for Summary Judgment, the plaintiff claims the following acts are evidence of part performance: (1) the process of obtaining demolition permits which involved disconnection of the electrical power, water main, pumping and collapsing the septic tank, pumping out the oil tank and disconnecting the telephone and cable wires and asbestos inspection; (2) removal of asbestos; (3) removal of surrounding trees in the footprint of the new home. (Plaintiff Affidavit at paragraph 16.)
The defendant argues that none of these acts were taken in pursuance of the alleged contract or with the design of carrying the alleged contract into execution.
"[A]cts on the part of the promisee may be sufficient to take a contract out of the statute [of frauds] if they are such as clearly refer to some contract in relation to the matter in dispute . . . [T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties . . . The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute." (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 306, 912 A.2d 1117 (2007); see also Breen v. Phelps, 186 Conn. 86, 94, 439 A.2d 1066 (1982)." SS-II, LLC v. Bridge Street Assoc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 07-5003417S (April 18, 2008, Jones, J.) 2008 Ct.Sup. 6016 at p. 6019.
The defendant claims that they instructed the plaintiff not to do demolition on the property. The plaintiff admits this to be a fact, that they needed the defendant's assent to do the demolition and that they acted in direct contravention of the defendant's instructions.
By admitting this to be true, the plaintiff then fails to satisfy (by their own admission) a necessary element of part performance, namely "must also be done with the assent, express or implied."
There is one last issue which the plaintiff has raised. The question is: would the plaintiffs have obtained the original $ 930,000.00 mortgage from the defendant if they could not have obtained the balance of the monies for their construction loan? Was the obtaining of the first mortgage the part performance for the construction mortgage? The plaintiff argues this in their brief. The plaintiff claims that but for the representations of the defendant's agent, Mr. Mannuzza, that they would be able to satisfy his need to construct a new residence on the premises, that he could close on the purchase money mortgage and then modify the construction loan put the plaintiff in the position that by closing on the loan, he felt that the defendant would follow through on their representations and provide him with the necessary financing. Whether this is sufficient, true or accurate is a question for the trier of fact to decide.
The plaintiffs have established that there is a genuine issue of material fact. Accordingly, the motion for summary judgment is denied.