DocketNumber: No. CV99-0497776S
Citation Numbers: 2000 Conn. Super. Ct. 12108
Judges: KOCAY, JUDGE.
Filed Date: 9/18/2000
Status: Non-Precedential
Modified Date: 4/18/2021
The plaintiff, the estate of Egidio Baraglia, Jr., moves for summary judgment in accordance with the debt set out in its submitted affidavit together with treble damages per General Statutes §
On February 14, 2000, the plaintiff filed its motion for summary judgment (#106) together with a supporting memorandum, an affidavit of debt by James Fitzsimons, the executor of the estate and a copy of the promissory note. The defendant failed to file any opposing memorandum and to appear at short calendar on May 15, 2000. The court heard oral argument by the plaintiff at short calendar and now issues this decision.
The pleadings, affidavits and other documents reveal the following undisputed facts. The defendant borrowed $150,000 from the plaintiff's decedent, pursuant to the terms and conditions of a promissory note signed by the defendant on April 6, 1995. The terms of the note require the principal to be due and payable, without demand one year after the date of the note, and for interest to be paid at the rate of 10 percent per annum payable one year in advance together with all court costs and reasonable attorney's fees in the collection of the note. Despite written demand, the defendant has failed and refused to pay the principal balance due under said note and interest from April 6, 1998, to date. Presently there is due and owing on the note the principal sum of $138,050 together with interest from April 6, 1998, through April 6, 1999, in the sum of $13,805. Further, interest has continued to accrue from April 6, 1999, through the date of this judgment, the rate of 10 percent per annum, at the daily rate of $41.66. The defendant admits that as a result of his continued refusal to pay, for over three years after maturity of the note, he has converted the funds to his own use.
"When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by 380 [now § 17-45], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." Bartha v. Waterbury House Wrecking Co.,
A. Count One
The plaintiff moves for summary judgment on the first count of its complaint the ground that there is no genuine issue of material fact regarding the defendant's failure to pay the promissory note pursuant to the terms of the note.
"Recovery on a promissory note requires proof of a written promise to pay a certain sum of money at a certain time and signed by the maker." (Internal quotation marks omitted.) Ocwen Federal Bank v. Landock, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 056885 (December 12, 1997, Curran, J.) "[W]hen examination of the affidavit and exhibits accompanying the plaintiff's motion for summary judgment discloses the unchallenged existence of unpaid debts, summary judgment can be granted. . . . The court may grant a motion for summary judgment on liability only and hold hearing on damages at a later date." (Citations omitted; internal quotation marks omitted.) Id.
The affidavit and documentary evidence submitted along with the plaintiff's motion support the allegations in the plaintiffs complaint that the defendant executed a promissory note in the amount of $150,000 plus interest, that it made demands for payment upon the defendant and that the defendant has failed to pay the note as demanded. In addition, the defendant admits each of these allegations in his answer filed on January 5, 2000. Accordingly, the plaintiff is entitled to payment on the note in question unless the defendant alleges and proves a defense. SeeConnecticut Bank Trust Co. v. Dadi,
The defendant submitted no opposing affidavits or other evidence, nor did the defendant oppose the motion by oral argument or brief. The defendant fails to contradict the plaintiff's evidence of the existence of the debt, the amount of the debt, or his failure to pay the debt. CT Page 12111 Accordingly, since there exists no genuine issue of material fact regarding the existence of the debt, the amount of the debt or the defendant's failure to pay the debt, the plaintiff is entitled to judgment as a matter of law based on these facts.
There is, however, a genuine issue of material fact as to the amount of damages. In his answer to the plaintiff's complaint, the defendant claimed a set off of approximately $2,000 for legal work the defendant alleges he performed for the plaintiffs decedent. On February 14, 2000, the plaintiff filed a reply to the defendant's set off denying the allegations and by way of a special defense claimed that the defendant failed to obtain a written fee agreement from the plaintiff and, therefore, the defendant is precluded from seeking payment for same. The plaintiff acknowledges in its summary judgment motion that the defendant's set off is the only possible exception to no existing genuine issue of material facts.
The law of set off is governed by General Statutes §
The defendant's set off meets the requirements of §
B. Count Two
The plaintiff moves for summary judgment on the second count of its complaint alleging conversion of funds due on the note by the defendant.
Conversion is "an unauthorized assumption and exercise of the right of CT Page 12112 ownership over goods belonging to another, to the exclusion of the owner's rights. . . . In addition, conversion requires that the owner be harmed as a result of the unauthorized act." (Citations omitted; internal quotation marks omitted.) Suarez-Negrete v. Trotta,
There is no question that the defendant has refused to make payments due and requested and has thereby converted the funds. There is also no question that the defendant's continued refusal to repay the loan for three years past maturity of the promissory note has resulted in damage to the plaintiff. See, e.g., Discovery Leasing, Inc. v. Murphy,
BY THE COURT
Hon. Andre M. Kocay, J.