New Milford Sav. Bank v. Roina

• Decision Date: 20 June 1995
• Docket Number: No. 12342,12342
• Citation: 659 A.2d 1226,38 Conn.App. 240
• Court: Connecticut Court of Appeals
• Parties: NEW MILFORD SAVINGS BANK v. R. Richard ROINA, Trustee, et al.

Page 1226

659 A.2d 1226

38 Conn.App. 240

NEW MILFORD SAVINGS BANK v. R. Richard ROINA, Trustee, et al.

No. 12342.

Appellate Court of Connecticut.

Argued March 21, 1995.

Decided June 20, 1995.

Peter J. Ottomano, Westport, for appellants (defendants).

Vincent P. McCarthy, with whom, on the brief, was Joseph P. Secola, New Milford, for appellee (plaintiff).

Before LANDAU, SCHALLER and SPEAR, JJ.

LANDAU, Judge.

In this foreclosure action, the defendants R. Richard Roina as trustee, John R. Fiore, Charles A. Fiore and Pat J. Cutrone (defendants) appeal from the judgments of the trial court granting the plaintiff's motion for summary judgment on the defendants' counterclaim and granting the plaintiff's motion for a deficiency judgment and supplemental judgment. The defendants claim that the trial court improperly granted summary judgment on their counterclaim. They also claim that General Statutes § 49-28, ¹ pursuant to which the trial court rendered the deficiency judgment, violates the due process clause of the federal and state constitutions. We affirm the judgments.

In 1987, the defendants sought land acquisition and road construction financing from the plaintiff for the purpose of purchasing a tract of land in Southbury and developing subdivisions thereon. A representative of the plaintiff informed the defendant that its procedure for financing the development of subdivisions was to provide financing for the land acquisition first and, in a second phase, to accept an application for refinancing to provide funds for road construction. On November 2, 1987, the plaintiff issued a revised commitment letter to the defendants for a land acquisition loan in the amount of $2,340,000. In 1989, the plaintiff denied the defendants' refinance application. The defendants thereafter defaulted on the first mortgage and the plaintiff commenced an action seeking to foreclose the defendants' interest in the Southbury parcel of land.

I

The defendants first claim that the trial court improperly granted the plaintiff's motion for summary judgment as to their counterclaim. Following the filing of the plaintiff's complaint, the defendants filed a counterclaim alleging breach of an oral agreement, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. After the trial court severed the actions, the foreclosure action proceeded to judgment of foreclosure by sale. The court thereafter granted the plaintiff's motion for summary judgment on the defendants' counterclaim.

In support of their claim that summary judgment was improper, the defendants argue that a genuine issue of material fact existed concerning the bank's good faith and fair dealing with respect to their refinancing application. The defendants assert that their application was denied in bad faith in that the plaintiff's officers manipulated the appraisal of the property. The plaintiff responds that the defendants pleaded a breach of an oral agreement, not a bad faith denial. The plaintiff asserts that because no issue of material fact regarding the breach of an oral agreement existed, it was entitled to summary judgment. At the hearing on the summary judgment motion, the defendants changed the tenor of their argument and claimed for the first time a bad faith denial of their refinancing application. In the course of that hearing, the defendants admitted that no oral agreement existed. The plaintiff now argues that because the defendants never moved to amend their counterclaim to include allegations supporting a bad faith denial claim, they were compelled to litigate the breach of an oral agreement claim. Further, because the defendants admitted that no oral agreement existed, the trial court correctly granted summary judgment on the counterclaim. ² We agree with the plaintiff.

"The standard for appellate review of a trial court's decision to grant a summary judgment motion 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.' Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). ' " 'Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); 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. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984) ]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978).' Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). 'The test is whether a party would be entitled to a directed verdict on the same facts.' Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982)." ' Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, at 781, 595 A.2d 334, citing Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990)." Trotta v. Branford, 26 Conn.App. 407, 409-10, 601 A.2d 1036 (1992).

"The purpose of a complaint [or counterclaim] is to limit the issues at trial, and it is calculated to prevent surprise. Farrell v. St. Vincent's Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987). It must provide adequate notice of the facts claimed and the issues to be tried. Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990). In order to surmount a motion for summary judgment, a party must demonstrate that there exists a genuine issue of material fact. Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, [at] [219 Conn. 781, 595 A.2d 334], citing Connell v. Colwell, [supra, at 214 Conn. 246-47, 571 A.2d 116]. Demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). A material fact is one that will make a difference in the result of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986); Lopez v. United Nurseries, Inc., 3 Conn.App. 602, 606, 490 A.2d 1027 (1985). Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983). Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment. Paine Webber Jackson & Curtis v. Winters, 13 Conn.App. 712, 721, 539 A.2d 595, cert. denied, 208 Conn. 803, 545 A.2d 1101 (1988). 'The issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.' Shuster v. Buckley, 5 Conn.App. 473, 477, 500 A.2d 240 (1985)."...