Fleet Bank, N.A. v. Galluzzo
Decision Date | 14 April 1994 |
Docket Number | No. 11895,11895 |
Citation | 33 Conn.App. 662,637 A.2d 803 |
Court | Connecticut Court of Appeals |
Parties | FLEET BANK, N.A. v. Gianfranco GALLUZZO et al. |
Richard P. Weinstein, West Hartford, for the appellant (defendant Richard S. Whitehouse).
David C. Bloomberg, with whom, on the brief, was Kirk D. Tavtigian, Jr., Hartford, for the appellee (plaintiff).
Before FOTI, LAVERY and LANDAU, JJ.
In this action in contract, the defendant Richard Whitehouse, 1 appeals from the judgment of the trial court (1) granting the plaintiff's motion for summary judgment, and (2) awarding interest pursuant to General Statutes § 52-192a, 2 the offer of judgment statute. The principal issue on appeal is whether Whitehouse produced sufficient evidence as to the existence of an agreement and such partial performance so as to survive the plaintiff's motion for summary judgment under General Statutes § 52-550. 3
The following facts are relevant to this appeal. On May 22, 1989, 44-52 Cedar Street Associates, a general partnership, executed a promissory note in favor of United Bank and Trust Company, the predecessor of the plaintiff, Fleet Bank, N.A., in the amount of $350,000. The note was secured by real property located in Hartford. The general partners, the named defendant, Gianfranco Galluzzo, and the defendant Richard Whitehouse signed guarantee agreements. Following the defendants' default, under the terms of the note, the plaintiff initiated this action to recover on the defendants' guarantees.
On October 17, 1991, the plaintiff filed an offer for judgment, pursuant to General Statutes § 52-192a, in the amount of $325,000 against Whitehouse. Whitehouse did not accept the offer of judgment.
On December 12, 1991, Whitehouse filed an answer, special defenses and a three count counterclaim. In his special defense, Whitehouse contended, inter alia, that the plaintiff breached an alleged agreement to accept the deed to property securing the note in full satisfaction of the debt. 4 On March 11, 1992, the plaintiff filed a motion for summary judgment claiming that the defendant, as a guarantor, was liable on a certain note and was in breach of his agreement of guaranty.
Addressing the significance of the parties' telephone conversations, the trial court found: (Citations omitted.)
(Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn.App. 569, 572-73, 626 A.2d 1306 (1993).
Sharp v. Wyatt, Inc., 31 Conn.App. 824, 844, 627 A.2d 1347 (1993). Cortes v. Cotton, supra, 31 Conn.App. at 575, 626 A.2d 1306.
(Citations omitted; internal quotation marks omitted.) Ubysz v. DiPietro, 185 Conn. 47, 54, 440 A.2d 830 (1981). The determination of whether any acts by Whitehouse occurred that amounted to part performance requires a...
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