Summary
setting aside summary judgment and ordering trial court to reconsider motion because properly filed affidavit had not been considered by court at time judgment was rendered
Summary of this case from Greene v. KeatingOpinion
(5572)
The plaintiff sought payment for certain agricultural products allegedly purchased on credit by the defendant. The trial court granted the plaintiff's motion for summary judgment in favor of the plaintiff, and the defendant appealed to this court claiming that the trial court erred in granting the plaintiff's motion without considering his timely filed affidavit in opposition to that motion. Because the defendant's counter-affidavit, although filed in accordance with the rules of practice (380), had not been made part of the file when the trial court granted the motion for summary judgment, the matter was remanded to that court for reconsideration of the motion.
Submitted on briefs September 28, 1987
Decision released November 10, 1987
Action to recover payment for goods sold on account, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, Noren, J., granted the plaintiff's motion for summary judgment and rendered judgment thereon, and the defendant appealed to this court. Error; further proceedings.
John Andrew Kissel filed a brief for the appellant (defendant).
Alan J. Barth filed a brief for the appellee (plaintiff).
This is an appeal from the trial court's granting of the plaintiff's motion for summary judgment in an action for collection of a commercial debt. We find error and remand the case to the trial court to reconsider the motion for summary judgment in light of an affidavit opposing the motion which was timely filed, but mistakenly excluded from the case file at the time the trial court rendered judgment on the motion.
The facts of the case are straightforward. The plaintiff, Asgrow Seed Company, filed suit against the defendant, Donald S. Wagner, alleging an unpaid balance of $9972.50 due on purchases by the defendant of certain seeds and related agricultural products. After the pleadings were closed, the plaintiff moved for summary judgment and filed an affidavit of the plaintiff's "credit specialist," an accompanying statement of the status of the defendant's account and a memorandum in support of his motion. In response, on Friday, October 3, 1986 the defendant filed a counter-affidavit opposing the motion.
Practice Book 380 provides in relevant part: "The adverse party prior to the day the case is set down/or short calendar shall file opposing affidavits and other available documentary evidence." (Emphasis added.
The motion was decided as a nonarguable matter on the short calendar docket on Monday, October 6, 1986. At that time, the counter-affidavit had not yet been added to the file.
Ordinarily, a moving party's motion for summary judgment may be granted whenever it appears that there is no genuine issue of material fact remaining between the parties and that as a matter of law the moving party is entitled to judgment. Practice Book 384; Lehto v. Sproul, 9 Conn. App. 441, 443, 519 A.2d 1214 (1987). Given the state of the file at the time the trial court reviewed it on Monday, October 6, the plaintiff appeared to be entitled to summary judgment. In addition, the absence of an opposing affidavit permitted the trial court to draw an inference that the defendant could not oppose the facts set forth in the plaintiff's affidavit. Maislin v. Lawton, 30 Conn. Sup. 593, 595, 314 A.2d 783 (1973).
Under the true status of the case at that time, however, the plaintiff was not entitled to judgment on the basis of the defendant's failure to file a counter-affidavit.
The trial court later took no action to modify its decision although it learned of the counter-affidavit before this appeal was perfected. In view of the chronology of this case, the timely filed counter-affidavit was never considered on its merits. It should have been considered.
The trial court's articulation dated January 9, 1987, recognized the existence of the counter-affidavit.