Farrell v. Farrell

Decision Date05 August 1980
Citation182 Conn. 34,438 A.2d 415
PartiesDorothy H. FARRELL v. Alva G. FARRELL.
CourtConnecticut Supreme Court

Richard H. G. Cunningham, Stamford, for appellant (defendant).

Frank H. D'Andrea, Jr., Stamford, for appellee (plaintiff).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and ASPELL, JJ.

BOGDANSKI, Associate Justice.

The issue dispositive of this appeal is whether the trial court erred in granting the plaintiff's motion for summary judgment on the ground that the defendant's counter-affidavit failed to present any triable issue of fact.

The plaintiff's complaint, which sought to foreclose a judgment lien, alleged that on April 27, 1973, the plaintiff obtained a judgment against the defendant in the sum of $25,000, and to secure said sum she caused to be filed a judgment lien against the defendant's real estate situated in Darien. The defendant filed an answer denying the allegations of the complaint, and by way of special defense, alleged that because the judgment of April 27, 1973, was procured by fraud the judgment lien was invalid.

The plaintiff thereupon moved for summary judgment asserting that there was no genuine issue as to any material fact and filed an affidavit with other documentary proof in support of her motion setting forth the following facts: On April 27, 1973, she obtained a judgment against the defendant in the Superior Court at Stamford in the amount of $25,000. On July 24, 1973, she caused to be filed a judgment lien against the defendant's real estate; that judgment lien remains unsatisfied, and the plaintiff is in possession of the said premises. Schedule A attached to the affidavit recited that on March 9, 1973, the plaintiff had filed a motion in the Superior Court for a judgment after default resulting in the following order: "ORDER Granted-$11,200 on First Count; $14,505.98 on the Second and Third Count. Zarrilli, J. 4/27/73." Schedule B of the affidavit recited that on June 22, 1973, in the case of Dorothy H. Farrell v. Alva Gene Farrell, Superior Court, Judicial District of Fairfield at Stamford, No. 16973, a judgment lien was duly recorded on property located in Darien. Schedule C shows a recording of a quitclaim deed from the plaintiff to one William Selsberg, Trustee, on April 18, 1977, and Schedule D shows that the said William Selsberg, Trustee, quitclaimed the same premises to the plaintiff on the same day.

The defendant filed a counter-affidavit 1 signed by Richard H. G. Cunningham, his attorney. In examining that affidavit the trial court observed that some of the allegations of the counter-affidavit appeared to be an attack upon the underlying judgment because of purported fraud in securing the judgment. Even granting that such an attack may be made on the judgment, the trial court held that our summary judgment rules require the affidavit to "set forth such facts as would be admissible in evidence." Practice Book 1978 § 381. 2 The court then found that paragraphs three, four, five and seven in the counter-affidavit were conclusory setting forth no facts from which the court could infer the conclusions asserted. The court also found that paragraphs six and eight reasserted allegations of defenses previously ordered expunged by the court. It thereupon granted the summary judgment from which the defendant appealed to this court.

When a motion for summary judgment 3 is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by § 380 of the 1978 Practice Book, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him. Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). Such affidavits, documents and pleadings will be considered in determining whether there is a genuine issue as to any material fact. 10 Wright & Miller, Federal Practice & Procedure § 2722; 73 Am.Jur.2d Summary Judgment § 32.

Until 1963, our summary judgment procedure in Connecticut was narrowly restricted. The 1963 Practice Book, however, greatly expanded the scope of the procedure with the adoption of new rules substantially similar to the procedure provided in the federal rules. Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 487, 280 A.2d 359 (1971); Fed.R.Civ.P. 56(c). 4 The presence, therefore, of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. A party must substantiate his adverse claim by specifically showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. 5 United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).

Since an evidentiary showing is indispensable, general averments will not suffice to show a triable issue of fact. Moreover, mere conclusions are insufficient as is evidence which would be inadmissible upon the trial, such as hearsay. Indeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue exists.

In sum, to oppose a motion for summary judgment successfully, the defendant must recite specific facts in accordance with Practice Book, 1978, §§ 380 and 381 which contradict those stated in the plaintiff's affidavits and documents. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971); Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 229, 253 A.2d 22 (1968). The record reveals that the defendant failed to comply with the provisions of Practice Book 1978 § 381.

We thus affirm the action of the trial court in concluding that the defendant's counter-affidavit failed to meet the requirements of law.

There is no error.

In this opinion the other Judges concurred.

I, Richard H. G. Cunningham, being duly sworn, hereby depose and say:

1. I make this statement of my own personal knowledge.

2. I am the attorney for the Defendant in the above-entitled matter.

3. I have deposed the plaintiff in the above-entitled matter and her answers are not consistent with the "Affidavit of Debt" attached hereto which was signed in the action on which the Judgment Lien is...

To continue reading

Request your trial
62 cases
  • Rainbow Hous. Corp. v. Town of Cromwell
    • United States
    • Connecticut Supreme Court
    • September 1, 2021
    ...Valor Home is temporary.12 In the absence of such evidence, no disputed issues of material fact existed. See, e.g., Farrell v. Farrell , 182 Conn. 34, 39, 438 A.2d 415 (1980) ("[G]eneral averments will not suffice to show a triable issue of fact. ... Indeed, the whole summary judgment proce......
  • Jaiguay v. Vasquez
    • United States
    • Connecticut Supreme Court
    • June 17, 2008
    ...motion for summary judgment; see, e.g., Great Country Bank v. Pastore, 241 Conn. 423, 436-37, 696 A.2d 1254 (1997); Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980); the plaintiff has failed to provide evidence that raises a genuine issue of material fact with respect to whether, a......
  • Levine v. Advest, Inc.
    • United States
    • Connecticut Supreme Court
    • May 26, 1998
    ...claim will not in itself defeat the motion. Wadia Enterprises, Inc. v. Hirschfeld, supra, at 247, 618 A.2d 506; Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980). The defendant did not furnish any affidavits or documents establishing a factual dispute concerning the ownership of the......
  • Weiss v. Weiss
    • United States
    • Connecticut Supreme Court
    • July 20, 2010
    ...for the sole purpose of forcing the case to trial.” (Internal quotation marks omitted.) Id., at 678, 966 A.2d 684; Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980) (“the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT