Opinion
No. CV 02-039 36 83 S
February 1, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (MOTION #107.00)
Before the court is the defendant's motion for summary judgment to the effect that she is not personally liable in this action and the plaintiff's only remedy, should it prove the allegations of the complaint, is in rem.
On June 18, 2002, the plaintiff, Fleet National Bank, filed a one-count complaint against the defendants, Beverly Carswell (Carswell) and her daughter, Kamili Bell (the defendant). The plaintiff alleges a fraudulent transfer of real property known as 321 Moose Hill Road, Monroe, Connecticut, from Carswell to the defendant, pursuant to Connecticut General Statutes 52-552e, because "[i]t was made with intent to hinder, delay and to defraud Fleet National Bank."
The co-defendant Beverly Carswell is not a party to this motion. In this memorandum, "defendant" refers to Kamili Bell.
In an earlier action between the plaintiff and Carswell, the plaintiff obtained a judgment against Carswell for $153,139.75. On October 15, 1998, the plaintiff caused a judgment lien to be placed on the property that is the subject of the current fraudulent transfer action. On September 21, 1998, prior to the attachment of the judgment lien, Carswell quit claimed the property to her daughter, the defendant. The plaintiff alleges that this transfer was fraudulent and is seeking to have the transfer voided.
In addition, on June 4, 2002, the plaintiff filed a lis pendens against the subject property in conjunction with bringing this action.
On October 20, 2004, the defendant filed this motion for summary judgment supported by a memorandum of law, her affidavit and exhibits. The defendant requests "that the court render judgment that the defendant Bell is not exposed to any personal damages." On November 15, 2004, the plaintiff filed a memorandum in opposition.
Practice Book § 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 . . . 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 . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Citation omitted, internal quotation marks omitted.) Vaillancourt v. Latifi, 81 Conn.App. 541, 545, 840 A.2d 1209 (2004). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
"In deciding whether it is appropriate to render summary judgment, a court is not necessarily entitled to assume the truth of a defendant's declarations concerning intent or a fact known only to a defendant simply because of the absence of an affidavit contradicting the declarations . . . Summary judgment is inappropriate where the inferences that the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. The failure to file an opposing affidavit or documentary evidence where motive, intent or subjective feelings and reactions are involved does not entitle the moving party to a favorable inference as to the truth of his affidavit or documentary evidence." (Internal citations omitted.) Tryon v. North Branford, 58 Conn.App. 702, 707, 755 A.2d 317 (2000).
The defendant moves for summary judgment on the ground that there is no genuine issue as to any material fact with respect to "her being an in rem necessary party only, not subject to any award of damages against her personally." The defendant argues that "the history of the property and particulars relating to the `property and proceeds' rule and [the defendant] being a necessary party but not liable for personal damages are not disputed." The defendant argues that, as a matter of law, she is an in rem necessary party defendant only.
In support of her motion, the defendant submits the following evidence: (1) the signed sworn affidavit of the defendant; (2) a certified copy of a deed filed in the Monroe land records on August 22, 1995, conveying the property in dispute from Carswell to the defendant; (3) a certified copy of a deed filed July 7, 1998, conveying the same property from the defendant back to Carswell; (4) a certified copy of a mortgage filed July 7, 1988, affecting the property; (5) a copy of a mortgage against two commercial properties owned by Carswell; (6) a certified copy of a deed filed September 21, 1998, conveying the property from Carswell back to the defendant; (7) a certified copy of a judgment lien against the property, filed on October 15, 1998 by the plaintiff; (8) a certified copy of Carswell's discharge in bankruptcy, which was effective December 2, 1999; and (9) a copy of a creditor listing related to Carswell's bankruptcy petition. In addition, the defendant refers to a lis pendens filed on June 4, 2002, affecting the subject property. No copy of the lis pendens accompanied her memorandum. A copy of the notice of lis pendens is, however, appended to the plaintiff's complaint.
The copy of the mortgage dated June 25, 1998 is neither sworn nor verified and, therefore, cannot be considered in support of this motion. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great County Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). Had the copy been a sworn or verified copy, it would still not affect the outcome of this motion.
The copy of the creditor listing appears to be from an electronic case manager. It is neither verified nor certified, thus, it cannot be considered in support of this motion. The outcome of this motion would not change upon verification of the authenticity of this list.
The defendant's affidavit includes statements as to her knowledge and intentions regarding the prior transfer of the property and her intentions as to future actions. The defendant states that: "I had no knowledge of any problems with Fleet as a creditor." "There was no intent to change my ownership of the property from the 1995 conveyance other than to comply with the condition of the financing and limited pledging of equity in the property for the sole purpose of paying creditors."; and "If Fleet proves its allegations and the court orders me to reconvey the property or any other related orders, I will comply with the court orders and Fleet will have its `in rem' remedies." The court finds that the defendant's affidavit is self-serving, and as such, it is insufficient to support a motion for summary judgment. "Self-serving affidavits of moving parties are insufficient to support a motion for summary judgment." (Internal quotation marks omitted.) Limitone v. Reilly, Superior Court, judicial district of New Haven, Docket No. CV 02 0459818 (July 24, 2003, Gilardi, J.)
The defendant relies on Robinson v. Coughlin, 266 Conn. 1, 830 A.2d 1114 (2003) for the proposition that the plaintiff's only possible remedy against the defendant, the transferee in the alleged fraudulent conveyance, is in rem. Her reliance is misplaced. In Robinson, the Supreme Court considered "whether a transferee of fraudulently transferred assets may be required to pay damages under the Uniform Fraudulent Transfer Act (UFTA), General Statutes § 52-552a et seq., when the transferee reconveys those assets to the transferor and there is no claim that the assets depreciated in value between the time of the fraudulent transfer and the time of the reconveyance." (Emphasis added.) Robinson v. Coughlin, supra, 266 Conn. 2. The court concluded "that a transferee may not be held liable for damages under such circumstances." (Emphasis added.) Id. Specifically, the court concluded "that because [the defendant transferee] reconveyed the assets to the debtor and the plaintiffs do not claim that the property depreciated in value between the time of the initial transfer and the time of the reconveyance, the trial court properly determined that the plaintiffs cannot recover damages from [the defendant] under UFTA." Id., 12. In the present case, the defendant transferee has not reconveyed the property to the transferor, but rather, continues to hold title.
Moreover, "General Statutes § 52-552i provides in relevant part: (b) . . . to the extent a transfer is voidable in an action by a creditor . . . the creditor may recover judgment for the value of the asset transferred . . . or the amount necessary to satisfy the creditor's claim, whichever is less . . . Thus, § 52-552i(b) also indicates that a creditor's remedies extend beyond the fraudulently conveyed property and the proceeds derived therefrom." (Emphasis in original; internal quotation marks omitted.) Id., 8-9.
The defendant also argues that the existence of the lis pendens creates the impossibility of depreciation of the value of the property. Specifically, she contends that: "The 321 Moose Hill Road family home is being well maintained, and has not depreciated in value. I have done nothing, and will do nothing to depreciate its value. That would be impossible in light of the lis pendens, in any case." Again, these kinds of bald assertions are self-serving and are insufficient to support the defendant's motion for summary judgment. "The notice of lis pendens puts potential buyers of real estate and creditors of its owners on notice that the real estate may be subject to pending adverse interests that may affect the title or right to the property . . . The defendant continues to maintain full possession and use of the property . . . While the notice may have an effect on the defendant's ability to alienate the property, the defendant is not prevented from doing so." (Citations omitted; internal quotation marks omitted.) Wallingford Staffordshire Commons Assn., Inc. v. Staffordshire Associates, 42 Conn.Sup. 241, 250, 615 A.2d 188 (1992) ( 6 Conn. L. Rptr. 304). Furthermore, "depreciation or dissipation of the subject property, i.e., waste while in the possession of the transferee, can provide a basis upon which to award damages." Robinson v. Coughlin, supra, 266 Conn. 10.
The defendant's supporting exhibits offer a clear picture of the history of recorded transfers relating to the property. The exhibits do nothing, however, to resolve the factual issue of whether the defendant is personally liable for any damages. The issue of whether the defendant is personally liable for any damages will arise only if it is found that the conveyance from Carswell to the defendant was a fraudulent conveyance pursuant to § 52-552e. "A court should not issue advisory opinions on issues that have not yet occurred, or may never occur." (Internal quotation marks omitted.) Reichhold Chemicals, Inc. v. Hartford Accident and Indemnity Co., Superior Court, complex litigation docket at Waterbury, Docket No. X0 CV 88 0160018 (October 5, 2000, Hodgson, J.).
For the foregoing reasons, the court finds that the defendant has not shown that there are no genuine issues of material fact regarding the defendant's exposure to personal damages. The issue of whether the defendant is liable for personal damages must be determined by the trier of fact, if and only if, it is found that the conveyance of property was fraudulent. The defendant's motion for summary judgment is denied.
SKOLNICK, J.