Barasso v. Rear Still Hill Road, LLC

• Decision Date: 09 March 2004
• Docket Number: (AC 23632)
• Citation: 842 A.2d 1134,81 Conn. App. 798
• Court: Connecticut Court of Appeals
• Parties: ANTHONY BARASSO v. REAR STILL HILL ROAD, LLC, ET AL.

81 Conn. App. 798

842 A.2d 1134

ANTHONY BARASSO v. REAR STILL HILL ROAD, LLC, ET AL.

(AC 23632)

Appellate Court of Connecticut

Argued December 3, 2003

Officially released March 9, 2004

Dranginis, Bishop and McLachlan, Js.

Sabato P. Fiano, with whom, on the brief, was Jonathan D. Elliott, for the appellants (defendants).

Leonard A. Fasano, for the appellee (plaintiff).

Opinion

McLACHLAN, J.

The defendants in this foreclosure action, Rear Still Hill Road, LLC, and Emerald Realty, Inc. (Emerald), appeal from the judgment of the trial court rendered in favor of the plaintiff, Anthony Barasso. The defendants claim that the court (1) improperly granted the plaintiff's motion for summary judgment and (2) failed to appoint a disinterested appraiser for the foreclosure sale. We agree with the defendants' first claim and, therefore, reverse the judgment of the trial court.¹

The relevant facts are as follows. The plaintiff holds a note, now in default, dated November 7, 1994, for $250,000 from Emerald, secured by a second mortgage on certain property in Hamden. Frank Verderame holds the first mortgage on that property. Emerald subsequently conveyed the property by quitclaim deed to Rear Still Hill Road, LLC, the present owner of the fee interest.

Previously, the court granted the plaintiff's motion to strike the defendants' special defenses, and the defendants appealed. We reversed that judgment and remanded the case with direction to deny the plaintiff's motion to strike. Barasso v. Rear Still Hill Road, LLC, 64 Conn. App. 9, 14, 779 A.2d 198 (2001). The plaintiff subsequently filed the motion for summary judgment giving rise to this appeal. The defendants filed an objection, accompanied by the sworn affidavit of James R. McMahon III, the vice president of Emerald (McMahon affidavit). After oral argument, the court granted the plaintiff's motion for summary judgment. The parties thereafter stipulated to a judgment of foreclosure by sale, which the court ordered on September 23, 2002, and this appeal followed. Additional facts will be provided as necessary.

I

As a threshold matter, the plaintiff claims that this appeal should be dismissed on the ground that the defendants are not aggrieved by the stipulated judgment. "Aggrievement, in essence, is appellate standing." Marine Midland Bank v. Ahern, 51 Conn. App. 790, 797, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000). In Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 773 A.2d 300 (2001), our Supreme Court explained that "[a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. . . . We traditionally have applied the following two part test to determine whether aggrievement exists: (1) does the allegedly aggrieved party have a specific, personal and legal interest in the subject matter of a decision; and (2) has this interest been specially and injuriously affected by the decision." (Citations omitted; internal quotation marks omitted.) Id., 255-56.

That test is satisfied in the present case. Although the defendants later stipulated to certain terms and the method of the inevitable foreclosure judgment, they filed special defenses to the action and objected to the plaintiff's motion for summary judgment as to the liability of the defendants.

Relying on our decision in Hunt v. Guimond, 69 Conn. App. 711, 796 A.2d 588 (2002), the plaintiff argues that the defendants cannot challenge the granting of the motion for summary judgment as to liability after they stipulated to the judgment of foreclosure by sale. In Hunt, we dismissed the defendant's appeal from the trial court's award of attorney's fees and interest for lack of aggrievement where the defendant, subsequent to the award, had paid the fees and interest to the plaintiffs pursuant to a private stipulation between the parties. We held that the defendant's interest was not injuriously affected because he voluntarily paid the fees and interest to the plaintiffs when the parties agreed to settle the dispute privately and canceled the scheduled sale of the property. Id., 715-16.

The facts of this case are distinguishable from those in Hunt. In Hunt, the defendant stipulated to pay and paid the attorney's fees after the trial court issued the award. In the present case, the defendants never stipulated to the granting of the motion for summary judgment as to liability. Rather, they stipulated to the judgment simply to protect their interests in the event they were unsuccessful on appeal as to the issue of liability. Accordingly, we conclude that the defendants are aggrieved and, thus, possess the requisite standing to pursue this appeal.

II

The defendants claim that the court improperly granted the plaintiff's motion for summary judgment because there exist genuine issues of material fact. We agree.

Summary judgment is appropriate where "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." (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995); Practice Book § 17-49. Because the court's decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Faigel v. Fairfield University, 75 Conn. App. 37, 40, 815 A.2d 140 (2003).

Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. "[H]e 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.) Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978). A material fact is a fact that will make a difference in the result of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). "[T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute." (Emphasis in original; citation omitted; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn. App. 427, 430, 755 A.2d 219 (2000). The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate.

The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion. Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985). "[I]ssue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 433, 362 A.2d 857 (1975). "[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.) Kroll v. Sebastian, 58 Conn. App. 262, 265, 753 A.2d 384 (2000).

The defendants claim that the McMahon affidavit, submitted in opposition to the plaintiff's motion for summary judgment, raised genuine issues of material fact. "[A]ffidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testify to all matters stated in the affidavit. . . . Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue." (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). Our review of the record persuades us that the McMahon affidavit satisfies that standard.

The affidavit alleged that Ralph Barasso, the plaintiff's brother, repeatedly had represented to the defendants that he was an authorized agent of both the plaintiff and Verderame, an alleged business partner of the plaintiff. Several times, McMahon met with Ralph Barasso and Verderame to discuss and to negotiate potential real estate deals and financing. As part of those negotiations and at the request of Ralph Barasso, McMahon provided detailed information concerning his family's corporate entities, finances and properties to Ralph Barasso, who represented that the information would be shared in confidence with the plaintiff and Verderame.

Prior to executing the note and mortgage at issue in this appeal, Ralph Barasso and Verderame represented to McMahon that they would provide all necessary financing for a planned elderly housing project. On September 2, 1994, Verderame loaned Trinity Estates Development Corporation (corporation), of which McMahon serves as president, $400,000, and on October 14, 1994, the plaintiff loaned the corporation $50,000. The defendants claim they relied on that representation and those financial dealings when they executed the note and mortgage on November 7, 1994, for the property at issue. Following execution of the note, the plaintiff and Verderame failed to provide the financing as promised. In August, 1997, Verderame obtained the first mortgage on the parcel. One year later, the plaintiff commenced foreclosure proceedings against the defendants.

Viewed in the light most favorable to ...