Fiske, Emery & Associates v. Ajello

Decision Date28 December 1989
Docket NumberNo. 26978S,26978S
Citation577 A.2d 1139,41 Conn.Supp. 376
PartiesFISKE, EMERY & ASSOCIATES v. William R. AJELLO et al. -Milford
CourtConnecticut Superior Court

Cohen, Sylvester & Micci, Derby, for plaintiff.

Keith A. Rubenstein, Bridgeport, for defendants.

FULLER, Judge.

The plaintiff in this action, a law firm, has moved for summary judgment on the second and third counts of a four count amended complaint. The first count claims the reasonable value of legal services rendered to the defendants, William R. Ajello and Beverly Scala. The amount claimed to be owed after credit for a retainer of $8,500 is $27,424. All of the amounts stated are in Canadian dollars, since the plaintiff is a Quebec law firm that rendered legal services to the defendants in that province. The second count of the complaint claims that the dispute concerning legal fees was submitted to arbitration, that the arbitrators determined that $18,544 was owed, and that a judgment of the Superior Court in Quebec was then rendered confirming the amount of the arbitration award. The third count claims that an arbitral award was made, which is entitled to enforcement under 9 U.S.C. §§ 201 through 208 (1988), the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The plaintiff has moved for summary judgment under those statutes, and under the Uniform Foreign Money-Judgments Recognition Act, General Statutes §§ 52-610 through 52-618. The motion pertains solely to the second and third counts. An affidavit attached to the motion indicates that the plaintiff performed legal services for the defendants at their request, and that the unpaid balance of the charges for those services, totaling $27,424, was submitted for arbitration to the arbitration committee of the Quebec bar.

The defendants retained an attorney who signed a submission to arbitration on their behalf. The arbitration committee reduced the amount of the charges and, on May 4, 1988, made a decision that the defendants were jointly and severally liable to the plaintiff for $18,544. On December 12, 1988, a judge of the Superior Court for the province of Quebec granted a motion to homologate (confirm) the arbitration decision.

The submission to the arbitration committee of the Quebec bar, and the judgment of the Quebec Superior Court were attached as exhibits to the motion for summary judgment. Each defendant filed an affidavit in opposition to the motion. Both affidavits questioned a finding of the arbitration committee; specifically, that the named defendant invested in a business transaction with and through the defendant Scala. Neither affidavit questions whether the plaintiff rendered legal services for both defendants. The named defendant's affidavit states that he was not aware that the arbitration hearing took place on April 20, 1988, and that he understood that the arbitration proceeding was withdrawn or revoked prior to that date. Scala's affidavit states that some of the plaintiff's services were performed after its service contract was cancelled, were beyond the plaintiff's authority and were of no value to her. The affidavit contains no facts supporting these conclusory allegations.

Opinions and conclusions in an affidavit should not be considered. Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980). Scala's affidavit also claims that she believed that the arbitration proceeding was to be withdrawn unless certain security was deposited with the arbitration commission, and that this security was not deposited.

Under Practice Book § 384, summary judgment can be granted if the pleadings, affidavits and other documentary proof 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. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979). To satisfy this burden, the moving party must make a showing that it is quite clear what the truth is, and that it excludes any real doubt as to the existence of any genuine issue of material fact. Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A.2d 582 (1984); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). A material fact is a fact that will make a difference in the result of the case. Yanow v. Teal Industries, Inc., supra, 178 Conn. at 268, 422 A.2d 311; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some material, disputed factual issue. Daily v. New Britain Machine Co., 200 Conn. 562, 568, 512 A.2d 893 (1986); Bartha v. Waterbury House Wrecking Co., supra, 190 Conn. at 11-12, 459 A.2d 115; Fairfield Lease Corporation v. Romano's Auto Service, 4 Conn.App. 495, 500, 495 A.2d 286 (1985). It is not enough for the opposing party merely to assert the existence of a disputed issue. Daily v. New Britain Machine Co., supra, 200 Conn. at 569, 512 A.2d 893.

General Statutes § 52-612 provides that the Uniform Foreign Money-Judgments Recognition Act applies to any foreign judgment that is final and conclusive and enforceable where rendered. A foreign judgment means any judgment of a foreign state granting a recovery of a sum of money. General Statutes § 52-611(2). A judgment of the Superior Court of the province of Quebec, Canada, is a judgment of a foreign state under General Statutes § 52-611(1). General Statutes § 52-613 provides: "Except as provided in section 52-614, a foreign judgment meeting the requirements of section 52-612 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit."

Besides showing that there is no genuine issue of material fact, the moving party must show that it is entitled to judgment as a matter of law. Practice Book § 384; Bartha v. Waterbury House Wrecking Co., supra, 190 Conn. at 11, 459 A.2d 115. "The test of the requirement for the granting of a summary judgment that the moving party be entitled to judgment as a matter of law is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts." United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. at 380, 260 A.2d 596; Desnoyers v. Wells, 4 Conn.App. 666, 668, 496 A.2d 237 (1985). The plaintiff is entitled to recognition and enforcement of the foreign judgment here unless the facts obtained from the pleadings, affidavits and other documentary proof establish one of the grounds for nonrecognition of the foreign judgment stated in § 52-614.

The defendants' brief claims four grounds for nonrecognition. Section 52-614(a)(1) provides that a foreign judgment is not conclusive if the judgment was rendered under a system that does not provide procedures compatible with the requirements of due process of law. A related claim, based on § 52-614(b)(1), is that a foreign judgment need not be recognized if the judgment debtor did not receive notice of the proceedings in sufficient time to enable him to defend. The requirements of procedural due process depend upon the nature of the case, and there is a failure of due process in an administrative proceeding where either the hearing itself or the notice of the hearing has been so defective that a party has neither been reasonably apprised nor had the opportunity to contest the matter before the administrative agency. Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 44-46, 327 A.2d 588 (1973).

It is clear from the summary of proceedings before the arbitration committee of the Quebec bar that the defendants were represented by counsel in the proceedings before that committee and that their counsel requested postponements on several occasions and informed them as to the date of the hearing. The nature of the claim to be decided was clear. Even if the defendants were not personally informed as to the date of the continued hearing by their attorney, the facts in the defendants' affidavits, even construed most favorably to them, do not support a claim of lack of due process or a claim that the procedures used by the arbitration committee of the Quebec bar are materially different from the arbitration procedures used in this state. Parties are also bound by actions taken by their attorney within his general authority to represent the client in connection with and for the purpose of controlling the matter committed to the attorney. Evans Products Co. v. Clinton Building Supply, Inc. 174 Conn. 512, 517, 391 A.2d 157 (1978).

Prior to the hearing, the committee had fixed $16,000 as security for the plaintiff's claim to be deposited by the defendants with the executive director of the Quebec bar. The...

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2 cases
  • Bank Melli Iran v. Pahlavi
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 29, 1995
    ...limits the defenses that may be raised in an action to enforce a foreign judgment."); Fiske, Emery & Assocs. v. Ajello, 577 A.2d 1139, 1141-43, 41 Conn.Sup. 376, 378-381 (Conn.Super.Ct.1989) (the court noted that under the Foreign Money-Judgments Act, a foreign judgment will be recognized u......
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1 books & journal articles
  • Breaking Bad: Fail-safes to the Hague Judgments Convention
    • United States
    • Georgetown Law Journal No. 109-4, April 2021
    • April 1, 2021
    ...Arabatzis & Smith, Inc. v. Prometco (Produce & Metals) Co., 470 F. Supp. 610, 615 (S.D.N.Y. 1979); Fiske, Emery & Assocs. v. Ajello, 577 A.2d 1139, 1143 (Conn. Super. Ct. 1989); Kam-Tech Sys. Ltd. v. Yardeni, 774 A.2d 644, 654 (N.J. Super. Ct. App. Div. 2001); Tonga Air Servs., Ltd. v. Fowl......

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