Opinion
HHDCV166072874S
02-14-2018
Stacie Robinson v. Frances Clarke et al.
UNPUBLISHED OPINION
File Date: February 16, 2018
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Robaina, Antonio C., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Robaina, J.
The defendants in this action have moved for summary judgment with respect to the second count plaintiff’s complaint, which claims a fraudulent transfer of property. For the reasons stated herein, the motion is granted.
Factual Background
The first count of the complaint in this case dated October 31, 2016, alleges that the plaintiff, Stacie Robinson, slipped and fell on property owned by the defendant Francis Clark on November 20, 2014. The allegations with respect to the slip and fall sound in negligence and relate to the condition of premises at the defendants property leading to a basement. The motion for summary judgment does not address the first count of the complaint.
In the second count of the complaint the plaintiff alleges that " [o]n February 10, 2015, subsequent to learning of the Plaintiff’s claim, the defendant, Frances Clark, attempted to transfer the premises ... to the defendant, Kyla E. Dounouk." The motion for summary judgment is addressed to this second count, and implicitly assumes the second count sufficiently alleges fraudulent conveyance. The defendant claims, inter alia, that there is no factual basis upon which to maintain the action for fraudulent conveyance.
Legal Standard
" Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " 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 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 anevidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015); see also Practice Book § 17-49.
Since the second count of the complaint makes no reference to the Uniform Fraudulent Transfer Act (General Statutes § 52-552e), the court applies the law as it relates to a common-law allegation of fraudulent transfer which is that " A party alleging a fraudulent transfer or conveyance under the common law bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meeting his obligations or (2) that the conveyance was made with a fraudulent intent in which the grantee participated." (Internal quotation marks omitted.) Certain Underwriters at Lloyd’s, London v. Cooperman, supra, 289 Conn. 383 at 395. 957 A.2d 836 (2008). The court also notes that " [t]he elements of fraudulent conveyance, including whether the defendants acted with fraudulent intent, must be proven by " clear, precise and unequivocal evidence." (Internal quotation marks omitted.) Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990). Certain Underwriters at Lloyd’s, London v. Cooperman, Supra at 395-96.
Discussion
The plaintiff’s allegation suggests that on February 10, 2015 or at some time prior to that date, the defendant Clark knew of the plaintiff’s claim. However, the plaintiff offers no concrete evidence which supports that allegation. Though arguably self-serving, both defendants have provided affidavits which attest to the fact that they were unaware of the plaintiff’s claim until the time when they were served papers with respect to the instant lawsuit.
This factual scenario is not unlike the basis for a decision by the Connecticut Supreme Court in a case captioned Batick v. Seymour, 186 Conn. 632, 443 A.2d 471 (1982). In that case the defendant, responding to a claim of fraudulent conveyance following a motor vehicle accident, had provided an affidavit indicating that he had no knowledge of the claim and that he did not suspect a claim would be filed. The court, in reversing the granting of the defendant’s motion for summary judgment noted that even though the plaintiff had failed to file an affidavit opposing the motion, the issue of the defendant’s motives for the transfer were in question. This court is mindful of the Batick decision and also mindful of the admonition contained therein which indicates that summary judgment is inappropriate under circumstances in which " motive, intent and subjective feelings" are to be determined. (See also Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 906 A.2d 14 (2006) in which the court observes that " [s]ummary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated." Id. At 539.)
However, the situation here is different because in addition to the affidavits provided by the defendants, the plaintiff testified in her deposition that both Clarke and Dourouk first learned about the present action when they were served with the papers initiating this suit. In Batick the conveyance of the property took place within 90 days of the date of the accident; the defendant knew that the plaintiff was paralyzed as a result of the accident; there was no consideration for the transfer; and the defendant knew that his insurance policy only provided $25,000 in coverage.
In this case, the proximity in time for the conveyance is similar to that in Batick . However, the plaintiff is unable to provide any evidence that either defendant knew the plaintiff had fallen, had been injured, or intended to file a claim or lawsuit. The plaintiff here offers no evidence as to the defendants’ knowledge of these events. Further, the plaintiff suggests (in her memorandum) that there was consideration for the property transfer in the amount of $165,000. Finally, the defendant offers proof that the property was insured by a liability policy in the amount of $500,000 which would cover the loss alleged in Count one of the complaint. The plaintiff does not contest the insurance coverage declared by the defendant, nor does she suggest that it is inadequate to cover the loss she claims.
While the plaintiff claims that the price " ... seems to be below fair market value ...," the statement appears to be counsel’s opinion, the foundation of which is unknown, and there is no appraisal or expert opinion offered in the form of an affidavit or other acceptable evidence which the court could properly consider in support of the plaintiff’s argument.
Although the plaintiff asserts that there are genuine issues of material fact with respect to whether the subject premises was fraudulently conveyed, in the absence of any supporting documentary evidence from which to infer fraudulent intent, " [s]uch assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829, 92 A.3d 1025 (2014).
The plaintiff in the present case has not filed any documents- counter affidavit or otherwise- with her memorandum of law. Thus, it is the failure to file any documentary evidence, not the failure to file an opposing affidavit, that is at issue here. There is no direct or circumstantial evidence to support the allegation of a fraudulent transfer. " In order to agree with the plaintiff’s claim that Batick controls this case, we would be required to read it as holding that a summary judgment may never be rendered in a case involving intent. We decline to hold that the Batick decision cast such a wide net." Nolan v. Borkowski, 206 Conn. 495, 505, 538 A.2d 1031, 1035 (1988).
Upon these facts, no reasonable judge or jury could infer that a fraudulent transfer had occurred. Thus, the court would be obligated to directed a verdict against the plaintiff in this case. Accordingly, the court grants the defendant’s motion for summary judgment as to count two of the plaintiff’s complaint.