Na-Mor, Inc. v. Roballey

• Decision Date: 12 March 1991
• Docket Number: NA-MO,No. 9129,INC,9129
• Citation: 587 A.2d 427,24 Conn.App. 215
• Court: Connecticut Court of Appeals
• Parties: v. Ralph ROBALLEY, et al.

Page 427

587 A.2d 427

24 Conn.App. 215

NA-MOR, INC. v. Ralph ROBALLEY, et al.

No. 9129.

Appellate Court of Connecticut.

Argued Jan. 7, 1991.

Decided March 12, 1991.

Thomas J. Rosati, Stratford, for appellants (defendants).

Brian McCormick, Torrington, for appellee (plaintiff).

Before DALY, EDWARD Y. O'CONNELL and FOTI, JJ.

FOTI, Judge.

The defendants ¹ appeal from the granting of the plaintiff's motion for summary judgment. The defendants claim that the court improperly found that no genuine issue of material fact existed to preclude the granting of the motion for summary judgment for the plaintiff on its complaint and against the defendants on their counterclaim. We affirm the judgment of the court.

The following facts are relevant to the disposition of this appeal. In September, 1989, the plaintiff, holder of a $200,000 purchase money second mortgage on real estate consisting of four residential apartment buildings, which it sold to the defendants on September 10, 1987, for $965,000, began foreclosure proceedings. The mortgage note signed by the defendants called for a maturity date of two years. The foreclosure complaint alleged that the defendants defaulted in failing to pay the mortgage upon maturity. The defendants filed a disclosure of defense and a counterclaim that alleged that the plaintiff had breached the terms of the original sale contract by reducing the term of the mortgage note from three to two years and then coerced the defendants into purchasing the property with that two year maturity date, and that the plaintiff had misrepresented the terms on which it would grant the defendants an extension of the purchase money mortgage note.

The pleadings were closed and, on April 5, 1990, the plaintiff filed its motion for summary judgment supported by an affidavit by the plaintiff's president and fifteen exhibits, along with its memorandum of law.

On the morning of the hearing, the defendants filed their counteraffidavit and memorandum of law. ² The court, without memorandum, granted the motion in the plaintiff's favor on both the complaint and counterclaim. Neither party requested an articulation.

" 'Our standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book § 384 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." ' " Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1990). "The test is whether a party would be entitled to a directed verdict on the same facts." Connelly v. Housing Authority, 213 Conn. 354, 364, 567 A.2d 1212 (1990); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969).

"A 'material' fact has been defined adequately and simply as a fact which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. at 379, 260 A.2d 596; Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990); Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986). "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 disputed factual issue." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). It is not enough, however, merely to assert the existence of such a disputed issue; id.; the genuine issue aspect requires the party " 'to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.' " (Emphasis added.) Sheridan v. Board of Education, 20 Conn.App. 231, 239, 565 A.2d 882 (1989), quoting United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. at 378-79, 260 A.2d 596; note, 48 Colum.L.Rev. 780, 781. "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." Connell v. Colwell, supra.

The defendants rely solely on their disclosure of defense and counterclaim, and on their affidavit to support their contentions. The relevant portion of their affidavit, signed by the named defendant, neither alleges nor shows coercion by the plaintiff in...