LaSalle National Bank v. Freshfield Meadows, LLC

• Decision Date: 21 May 2002
• Citation: 69 Conn. App. 824,798 A.2d 445
• Court: Connecticut Court of Appeals
• Parties: LASALLE NATIONAL BANK v. FRESHFIELD MEADOWS, LLC, ET AL.

69 Conn. App. 824

798 A.2d 445

LASALLE NATIONAL BANK v. FRESHFIELD MEADOWS, LLC, ET AL.

(AC 21690), (AC 21691)

Appellate Court of Connecticut.

Argued January 23, 2002.

Officially released May 21, 2002.

Dranginis, Flynn and Daly, Js. Joseph A. Kubic, with whom, on the brief, was James M. Nugent, for the appellant (named defendant).

David F. Borrino, for the appellee (plaintiff).

Opinion

DALY, J.

In this consolidated appeal, the defendant Freshfield Meadows, LLC (Freshfield),¹ appeals from the judgments of the trial court ordering foreclosure by sale of two properties. On appeal, the defendant claims that the court should not have granted the plaintiffs motions for summary judgment as to the defendants' liability because it improperly (1) relied on transcript testimony as a judicial admission, (2) considered an uncertified transcript, (3) relied on an affidavit that had been withdrawn, (4) failed to consider the special defenses of breach of the implied covenant of good faith and fair dealing, unclean hands, breach of the common-law duty of good faith and fair dealing, unconscionability, equitable estoppel, and (5) considered the defendant's failure to answer as a ground for granting the motion. We affirm the judgments of the trial court.

The pleadings, affidavits and other documentary information presented to the court reveal the following facts. On September 29, 1998, to secure two promissory notes, the defendant mortgaged to Alliance Funding, a division of Superior Bank, FSB (Alliance), properties at 3315-3327 Main Street, now known as 3333 Main Street, and 3060 Main Street, both in Stratford. Nicholas E. Owen II, the owner of Freshfield, guaranteed payment of the notes, entering into guarantee agreements in favor of Alliance. The defendant granted, transferred and assigned to Alliance its right and title to and interest in all of the rents generated from 3333 Main Street.

Under the terms of the mortgages and their accompanying notes, the defendant promised to pay to Alliance the principal sums of $340,000 and $240,000. Payment was to begin on November 1, 1998. Failure to make a required payment within fifteen days after it was due would result in a default, giving Alliance the right to "accelerate the indebtedness to become immediately due and payable and to sue on the Note."

In a pooling and servicing agreement dated November 1, 1998, by an assignment dated October 7, 1998, Alliance assigned the defendant's mortgages to the plaintiff as trustee. The plaintiff, as the holder of the notes, then was entitled to enforce their provisions. The defendant defaulted on payment of the notes and, on July 12, 1999, the plaintiff commenced the present foreclosure actions. On August 7, 2000, the plaintiff filed motions for summary judgment as to liability. The court granted the plaintiff's motion as to the 3333 Main Street property on November 1, 2000, and as to the 3060 Main Street property on January 16, 2001. A sale date was set by the court for each property. This appeal followed. Additional facts will be set forth as necessary.

"The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides 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." (Internal quotation marks omitted.) LoRicco v. Pantani, 67 Conn. App. 681, 683-84, 789 A.2d 514 (2002).

"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... Further, the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Because the court rendered judgment for the plaintiffs as a matter of law, our review is plenary and we must decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record.... On appeal, however, the burden is on the opposing party to demonstrate that the trial court's decision to grant the movant's summary judgment motion was clearly erroneous." (Internal quotation marks omitted.) LaSalle National Bank v. Shook, 67 Conn. App. 93, 95-96, 787 A.2d 32 (2001).

I

The defendant's first claim on appeal is that the court improperly relied on transcript testimony as a judicial admission. We disagree.

The following additional facts are necessary for our resolution of the defendant's claim. Prior to filing its motions for summary judgment, the plaintiff filed a motion for the appointment of a receiver of rents. Before deciding that motion, the court held a hearing during which testimony was given. As part of the documentary evidence submitted for the court to consider in deciding the motions for summary judgment, the plaintiff included a transcript of the testimony provided by Owen during the hearing on the motion for the appointment of a receiver of rents. The following colloquy took place between Owen and the plaintiffs attorney during the hearing:

"[Plaintiff's Counsel]: So, is it a fair assumption for the court that the reason why you weren't making mortgage payments was because you were using the income flow from the property plus whatever moneys that you obtained out of the mortgage due to a better and bigger deal or at least another real estate deal?

"Owen: Yes, that's true.

* * *

"[Plaintiffs Counsel]: And you are aware that you did sign documents including an assignment of rents to the bank if you didn't pay the mortgage; is that right?

"Owen: Yes, that's true."

It is the defendant's contention that the court's reliance on Owen's testimony was improper.

In its appellate brief, the defendant refers to case law that relates to whether a court can consider deposition testimony in deciding a motion for summary judgment. The court, however, was not presented with deposition testimony, but rather a transcript of a witness' testimony during a judicial proceeding. As the court stated in its memorandum of decision: "That testimony is not deposition testimony because it was not taken for the purpose of discovery, but for a definite evidentiary purpose directly related to the plaintiffs application for the appointment of a receiver of rents. Moreover, the court has had the unique opportunity to observe the witness firsthand and assess his credibility in contrast to a deposition proceeding where no such opportunity is offered."

The defendant essentially contends that the court improperly treated Owen's testimony from the rent receiver proceeding as a judicial admission and, therefore, incorrectly found that his testimony should be regarded as conclusive. See Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 695 n.7, 651 A.2d 1286 (1995). "Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings." Jones v. Forst, 41 Conn. App. 341, 346, 675 A.2d 922 (1996). The determination of whether a party's statement is a judicial admission or an evidentiary admission is a question of fact for the trial court. Tianti v. William Raveis Real Estate, Inc., supra, 694-95. "The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage.... While both types are admissible, their legal effect is markedly different; judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier." (Internal quotation marks omitted.) Id., 695 n.6.

In considering Owen's testimony, the trial court noted that "[a]ll of the statements Nicholas Owen made ... at the hearing on the application for appointment of rent receiver ... constitute admissions, which are unequivocal and unmistakable." The court proceeded to distinguish Owen's testimony from deposition testimony, which is not conclusive as a judicial admission. See Collum v. Chapin, 40 Conn. App. 449, 450 n.2, 671 A.2d 1329 (1996). Although the court did not expressly characterize Owen's testimony as a judicial admission, it indicated that it regarded Owen's testimony as such by carefully distinguishing deposition testimony from the testimony given by Owen in the earlier proceeding. Given that the court had the opportunity to observe Owen and to assess his credibility at the rent receiver proceeding, we conclude that the court correctly determined that Owen's testimony at that proceeding should be treated as a judicial admission.

II

The defendant next claims that the court improperly considered the uncertified transcript of Owen's testimony when it decided the motions for summary judgment. We disagree.

"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like...." (Emphasis added.) Practice Book § 17-45. The inclusion of the phrase "but not limited to" indicates that the list that follows is nonexclusive. Nowhere in the language of Practice Book § 17-45 does it state that the transcripts must be certified for them to be considered by the court.

In its brief to this court, the defendant correctly points to language in the author's comments to an annotated version of Practice Book ...