Fernandez v. Estate of Fred Ayers

• Decision Date: 11 January 2000
• Court: Connecticut Court of Appeals
• Parties: (Conn. App. 2000) KIMBERLY FERNANDEZ V. ESTATE OF FRED AYERS ET AL. (AC 19093)

742 A.2d 836 (Conn. App. 2000)

KIMBERLY FERNANDEZ

V.

ESTATE OF FRED AYERS ET AL.

(AC 19093)

Connecticut Court of Appeals

Submitted on briefs November 3, 1999

January 11, 2000

Lorenzo J. Cicchiello filed a brief for the appellant (plaintiff).

Michael E. Driscoll and Robert G. Tukey filed a brief for the appellees (defendants).

Foti, Lavery and Hennessy, Js.

Foti, J.

OPINION

The plaintiff, Kimberly Fernandez, appeals from the summary judgment rendered in favor of the defendants.¹ On appeal, the plaintiff claims that the trial court improperly concluded that there existed no genuine issue of material fact. We affirm the judgment of the trial court.

The pleadings, accompanying affidavits and other documentary evidence presented to the trial court reveal the following facts. The plaintiff claims that she was injured on July 29, 1996, as a result of a fall while walking on a driveway at 64 Ayers Drive in Canterbury. At the time, the property was owned by the defendant Lora Ayers (Ayers), a resident of Florida. Ayers' husband, Fred Ayers, had died in 1995. Prior to his death, title to that property was held by the Ayerses in survivorship. At the time of the plaintiff's fall, the premises were occupied by a tenant, Shirley Baker. Baker occupied the premises for a number of years and, pursuant to an oral agreement with Ayers, was in possession and control on July 29, 1996, and for several years prior.

The plaintiff did not file a counteraffidavit or allege in her complaint that at the time of her fall Ayers was in possession and control of the premises.² The complaint alleged that the defendants were residents of Florida. As a result of a request for production, the plaintiff received and submitted to the court the declaration page of a homeowner's policy concerning 64 Ayers Drive in the name of Lora Ayers, insuring the premises at the time of the fall for fire, liability and medical payments. The plaintiff also claimed in her deposition that she observed Ayers on the property at some unknown time in the past. The trial court concluded that neither submission created an issue of fact as to possession and control, thereby entitling the defendants to judgment as a matter of law.

The standard of review for summary judgment is well established. "Practice Book §§ [17-49] mandates that 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.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn. App. 220, 222-23, 688 A.2d 349 (1997).

Our Supreme Court has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried. Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983); Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970); Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 228, 253 A.2d 22 (1968).

The plaintiff neither filed a counteraffidavit nor introduced facts showing that Ayers, although residing in Florida, retained control over the premises. The plaintiff failed to plead possession and control; she did not bring forth evidentiary facts or substantial evidence from outside the pleadings from which, even if pleaded, those allegations could be inferred. See Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 168-69, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992). "Mere statements of legal...