Town Bank and Trust Co. v. Benson

• Court: Supreme Court of Connecticut
• Writing for the Court: Before COTTER; COTTER
• Citation: 407 A.2d 971,176 Conn. 304
• Parties: TOWN BANK AND TRUST COMPANY v. Lucie D. BENSON et al.
• Decision Date: 12 December 1978

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407 A.2d 971 176 Conn. 304 TOWN BANK AND TRUST COMPANY
v.
Lucie D. BENSON et al. Supreme Court of Connecticut. Argued Oct. 18, 1978.
Decided Dec. 12, 1978.

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[176 Conn. 305] H. William Shure, New Haven, with whom, on the brief, were John J. Kennedy, Jr., New Haven, and Michael P. Farrell, West Haven, for appellants (defendants).

Richard P. Weinstein, Manchester, for appellee (plaintiff).

Before [176 Conn. 304] COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

[176 Conn. 305] COTTER, Chief Justice.

The defendants Daniel A. Benson and his wife, Lucie D. Benson, executed a promissory note on May 1, 1974, in favor of the plaintiff bank in the original principal amount of $15,500. Thereafter, on November 5, 1975, Lucie D. Benson conveyed her interest in a parcel of land together with the improvements thereon, of which she was the sole owner, to her son, defendant Daniel A. Benson, Jr., for the recited consideration of $150,000. Subsequently, upon Mr. and Mrs. Benson's default on the note, the plaintiff instituted the present action claiming damages of $20,000 and requesting that the conveyance be set aside and declared null and void as to the plaintiff. The plaintiff alleged, inter alia, that the conveyance was made with the intent to avoid the payment of Mrs. Benson's debt to her creditors, particularly her debt to the plaintiff, and to place the real estate beyond the reach of process for the collection of the plaintiff's claim. The plaintiff also alleged that the defendant Daniel A. Benson, Jr., knowingly aided, abetted and conspired with Mrs. Benson to accomplish that purpose. The plaintiff filed a motion for summary judgment together with affidavits and supporting documents. The defendant Daniel A. Benson, Jr., objected to the motion for summary judgment and filed a counter affidavit and supporting exhibit. The court granted the motion for summary judgment as to liability only, proceeded with a hearing as to damages, and rendered judgment setting aside the conveyance and awarding[176 Conn. 306] the plaintiff damages of $22,854.44, including fees and costs. From that judgment, the defendants took this appeal.

The sole issue presented in this appeal is whether the trial court erred in granting the plaintiff's motion for a summary judgment.

Since we do not have a finding or memorandum of decision in the record before us, we are at a disadvantage in attempting to determine the precise basis of the trial court's decision to grant the motion for summary judgment. The relevant

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portion of the judgment simply recites: "The Court further found that there was no issue as to any material fact with respect to liability." "Under these circumstances, in deciding the merits of the appeal, we are confined to an examination of the pleadings and affidavits to determine whether they '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.' Practice Book § 303; Pine Point Corporation v. Westport Bank & Trust Co., 164 Conn. 54, 55, 316 A.2d 765; Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596." Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 197, 319 A.2d 403, 404. The function of the trial court in ruling on a motion for summary judgment is to determine whether there is a genuine issue as to any material fact, but not to decide that issue if it does exist until the parties are afforded a full hearing. Practice Book, 1963, §...