Opinion
No. CV08 501 79 54 S
May 4, 2010
MEMORANDUM OF DECISION
In this foreclosure action, the plaintiff, CitiMortgage, Inc., has brought suit against the defendants, Gary Ceraso, Thomas Ceraso (the defendants), Ann Desisto Ceraso, Citibank, National Association and Universal Underwriters Insurance Services, Inc. The plaintiff's amended complaint alleges that on July 26, 2005, the defendants obtained a $1 million mortgage from the plaintiff for property located at 30 High Meadow Road in Easton. The defendants are currently in default on their payments under the terms of the mortgage note, and, as a result, the plaintiff, as the holder of the note, had elected to accelerate the balance due and foreclose the mortgage.
As the plaintiff has only filed the present motion for summary judgment against Gary Ceraso and Thomas Ceraso, they will be known as "the defendants" throughout this memorandum.
On February 3, 2009, the defendants filed an answer, along with one special defense and four counterclaims. The special defense alleges that "[t]he Defendants Gary Ceraso and Thomas Ceraso were fraudulently induced into executing and delivering a Note and Mortgage to the Plaintiff." In their counterclaim complaint, the defendants allege the following. On July 19, 2005, the plaintiff recorded the subject mortgage on the Easton land records. Additionally, "[o]n August 12, 2005, an unauthorized additional mortgage in the amount of $1,000,000.00 was recorded at Volume 556 at Page 97 of the Easton Land Records . . . by [the plaintiff], its agent or employees." Neither of the defendants authorized the plaintiff or its agents to file this additional mortgage on the Easton land records, and the defendants have received no monetary or equitable benefit for it. "On various occassion [sic] prior to November 2007 and specifically on September 24, 2008, October 28, 2008 and again on November 25, 2008," the defendants made demands on the plaintiff to withdraw the additional mortgage. The defendants allege that all of these demands have been ignored. As a result of the recording of this second mortgage, the defendants allege that their property has become "improperly over encumbered . . . in the amount of $1,000,000.00," and that their "basic integrity and creditworthiness" has been impugned.
By notice dated September 11, 2009, the defendants withdrew their second counterclaim that alleged that the plaintiff violated General Statutes § 49-8.
The defendants further allege that agents or employees of the plaintiff prepared and recorded a warranty deed for the subject premises that omitted Thomas Ceraso as an owner of the property. Thomas Ceraso was not included on the warranty deed despite the fact that the plaintiff had represented that he would be included on the warranty deed as a joint tenant. Consequently, Gary Ceraso was left with a 100 percent ownership interest in the 30 High Meadow Road property. Gary Ceraso's wife, Ann Desisto Ceraso, subsequently filed for divorce, and Gary Ceraso's 100 percent ownership interest in the property increased the value of his assets to be divided during the divorce proceedings. As a result of this alleged conduct, the defendants state counterclaims against the plaintiff for: (1) slander of title; (2) negligence and (3) fraud. On June 16, 2009, the plaintiff filed a motion to strike all of the defendants' counterclaims. This motion was denied in its entirety by the court, Hartmere, J., on November 5, 2009.
On December 24, 2009, the plaintiff filed a motion for summary judgment and a memorandum of law in support. The plaintiff moves for summary judgment for liability only on the ground that there is no genuine issue of material fact that the plaintiff is entitled to judgment on its complaint. Attached to the plaintiff's motion are: (1) the notarized affidavit of Jennifer Oakes, who is a legal support specialist in the plaintiff's Missouri office; (2) a copy of the defendants' answer, special defense and counterclaims; (3) a copy of the mortgage note for the subject premises dated July 26, 2005; (4) a copy of an open ended mortgage deed dated July 26, 2005; (5) a copy of letters from the plaintiff to Gary Ceraso and Thomas Ceraso dated June 2, 2008 and June 17, 2008; (6) a copy of a "certificate of discharge/release of mortgage" dated October 24, 2008; (7) a copy of a warranty deed dated May 15, 1995 that conveys the subject property from George Bartulevicz and Laverue Bartulevicz to Gary Ceraso and (8) a copy of the settlement statement from the United States Department of Housing and Urban Development dated July 26, 2005. In response, the defendants filed a memorandum of law in opposition on March 4, 2010. Attached to the defendants' opposition are: (1) an unsigned copy of a uniform residential loan application for the subject property; (2) a copy of the plaintiff's standard closing requirements and (3) a copy of a letter from the plaintiff to the defendant approving their mortgage application that is dated May 20, 2005.
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). Pursuant to our rules of practice, "any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." Practice Book § 17-44.
I MOTION FOR SUMMARY JUDGMENT ON THE COMPLAINT
First, the plaintiff moves for summary judgment on its complaint on the ground that there are no genuine issues of material fact as to the defendants' liability. In its memorandum of law, the plaintiff argues that its attached evidence demonstrates that it is the owner of the subject note and the defendants have defaulted under the terms of the note. The defendants' memorandum of law makes no argument to rebut the plaintiff's contention that the plaintiff has satisfied the elements of its prima facie case. Nevertheless, the defendants have raised a special defense alleging that they were fraudulently induced into executing and delivering the mortgage note to the plaintiff.
"In a mortgage foreclosure action, [t]o make out its prima facie case, [the foreclosing party] ha[s] to prove by a preponderance of the evidence that it was the owner of the note and mortgage and that [the mortgagee] had defaulted on the note." (Internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 163 (2003). "Furthermore, the foreclosing party must demonstrate that all conditions precedent to foreclosure, as mandated by the note and mortgage, have been satisfied." Bank of New York v. Conway, 50 Conn.Sup. 189, 194, 916 A.2d 130 (2006), citing Bank of America, FSB v. Hanlon, 65 Conn.App. 577, 581, 783 A.2d 88 (2001). "When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether [a] special defense is legally sufficient before granting summary judgment." LaSalle National Bank v. Shook, Superior Court, judicial district of New London, Docket No. 549266 (July 13, 2000, Martin, J.), aff'd, 67 Conn.App. 93, 787 A.2d 32 (2001). Nevertheless, the opposing party only needs to demonstrate the applicability of one legally sufficient special defense in order to defeat a motion for summary judgment. See, e.g., FV-1, Inc. v. Forgey, Superior Court, judicial district of New London, Docket No. CV 07 5002447 (May 22, 2008, Martin, J.).
Accordingly, the dispositive issue in the present case is whether the defendants allege a legally valid special defense. The plaintiff argues that the defendants' fraudulent inducement special defense is legally insufficient because "[t]he defense fails to recite any . . . factual support or claim as to how [the defendants] were purportedly fraudulently induced into executing the Note and Mortgage. The pleading of specific facts to support a claimed defense is required not only by our appellate courts and case-law but also by the rules of practice themselves." In response, the defendants argue that the plaintiff's argument is inappropriate on a motion for summary judgment and that it should have been raised on a motion to strike or a request to revise.
The entirety of the defendants' special defense is as follows: "The Defendants Gary Ceraso and Thomas Ceraso were fraudulently induced into executing and delivering a Note and Mortgage to the plaintiff." Practice Book § 10-1 provides that: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." Furthermore, Practice Book § 10-50 provides that: " Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." (Emphasis added.) With this special defense, the defendants have only pleaded a legal conclusion that they were fraudulently induced into entering the subject mortgage transaction. In a fact pleading state such as Connecticut, it is insufficient to allege a legal conclusion as a special defense. Nevertheless, the proper motion to challenge the legal sufficiency of a special defense is a motion to strike. See Practice Book § 10-39. As noted by the defendants, the plaintiff has already filed a motion to strike in the present case that was denied by the court, Hartmere, J. That motion only moved to strike the defendants' counterclaims; it made no mention of the defendants' special defense. As neither party has provided any evidence supporting the viability of this special defense, the sole issue before the court is whether the special defense has been properly pleaded.
"[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005). In Larobina, our Supreme Court further stated that "we will not reverse the trial court's ruling on a motion for summary judgment that was used to challenge the legal sufficiency of the complaint when it is clear that the motion was being used for that purpose and the nonmoving party, by failing to object to the procedure before the trial court, cannot demonstrate prejudice. A plaintiff should not be allowed to argue to the trial court that his complaint is legally sufficient and then argue on appeal that the trial court should have allowed him to amend his pleading to render it legally sufficient." Id., 402.
Recently, our Supreme Court applied Larobina in the context of a motion for summary judgment on a defendants' counterclaims. In this case, the Supreme Court determined that "the plaintiff, as the moving party, did not demonstrate, in accordance with Larobina, that, if the defendants had been permitted to replead . . . the legal deficiency underlying the plaintiff's motion for summary judgment would not have been cured . . . Although we would agree with the plaintiff that we did not intend to suggest in Larobina that the moving party is required to speculate as to any hypothetical facts or theories that might save the opposing party's pleading, in the present case, the plaintiff was made aware of the defendants' theory as to the tort and CUTPA claims. Thus, the trial court should have treated the motion for summary judgment as a motion to strike, under which the defendants would have been afforded the opportunity to replead upon the granting of the motion." (Citation omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 124-25, 971 A.2d 17 (2009). When reaching this conclusion, the Supreme Court quoted the following language from the Appellate Court: "[I]n the absence of a waiver . . . the person pursuing summary judgment also must demonstrate that the plaintiff is unable to remedy this defect through repleading." Carrasquillo v. Carlson, 90 Conn.App. 705, 714, 880 A.2d 904 (2005).
In the present case, the defendants argue that this motion for summary judgment is inappropriate because the legal sufficiency of their special defense should have been addressed on a motion to strike. Accordingly, the defendants have not waived this procedural irregularity. Furthermore, the plaintiff has not demonstrated that the defects in the special defense could not be cured by repleading. This court treats this portion of the motion for summary judgment as a motion to strike the defendants' special defense. See, e.g, Artie's Auto Body, Inc. v. The Hartford Ins. Co., Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X08 CV 03 0196141 (September 22, 2009, Jennings, J.T.R.) (holding that because the moving party "has failed to demonstrate that a repleading could not cure that defect . . . the court treats the portion of the defendant's motion for summary judgment directed to Count II as a motion to strike Count II which is granted because the plaintiff has totally failed to `allege a plain and concise statement of the material facts on which the pleader relies . . .' as required by Practice Book § 10-1"). The defendants will have fifteen days to replead their special defense as provided by Practice Book § 10-44.
The plaintiff's motion for summary judgment on the complaint is denied.
II PROCEDURAL MATTERS REGARDING THE MOTION FOR SUMMARY JUDGMENT ON THE COUNTERCLAIMS
Before addressing the substantive issues in the plaintiff's motion for summary judgment as to the defendants' counterclaims, there are a number of procedural issues that this court must first address. In its memorandum of law, the plaintiff argues that it is entitled to summary judgment on each of the defendants' three remaining counterclaims. Initially, it must be noted that although the plaintiff's memorandum of law briefs the legal issues surrounding the counterclaims, the text of the plaintiff's motion does not specifically move for summary judgment on the counterclaims. Indeed, at the close of its motion, the plaintiff only states: "WHEREFORE, the Plaintiff respectfully requests that Summary Judgment as to liability only enter in its favor against the Defendants, Gary Ceraso and Thomas Ceraso, on the allegations of the Plaintiff's complaint." In Cummings Lockwood v. Gray, 26 Conn.App. 293, 299-300, 600 A.2d 1040 (1991), the Appellate Court stated that: "Because a counterclaim is a separate and distinct action . . . a party seeking summary judgment on both a complaint and a counterclaim must file an appropriate motion addressed to each . . . Here, the plaintiff moved for summary judgment on the complaint only. As a result, the trial court was without authority to render summary judgment on the counterclaim . . . We note that the defendants do not assert the absence of a separate motion for summary judgment on the counterclaim as the basis on which they seek reversal of the trial court's ruling. Nonetheless, the trial court's failure to follow this clearly applicable rule constituted plain error and requires reversal." (Citations omitted.) Id. The Appellate Court's holding in Cummings Lockwood suggests that a trial court is without jurisdiction to render summary judgment on a counterclaim when a plaintiff does not specifically move for summary judgment on the counterclaim, and that this infirmity can be raised by the court sua sponte.
Unlike Cummings Lockwood, both sides have fully briefed the issues regarding the counterclaims. Therefore, the defendants cannot argue that they were unaware that the counterclaims were at issue in this motion for summary judgment. The Appellate Court has recognized that notice is one of the main reasons for the rule that a court cannot grant summary judgment on counterclaims when the counterclaims are not included in the motion. See, e.g, Miller v. Bourgoin, 28 Conn.App. 491, 499-500, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992) (holding that because "[n]either party had filed a motion for summary judgment on the counterclaim [that] neither party had notice that the counterclaim was at issue"). To add to the confusion in the present case, although the text of the motion itself does not move for summary judgment on the counterclaims, the plaintiff's order page clearly requests that the court enter summary judgment as to the counterclaims. Given this discrepancy between the order page and the text of the motion, as well as the fact that both parties fully briefed the issues and therefore were on notice that the counterclaims were at issue, this court shall construe this motion as a "general motion for summary judgment." See, e.g., Dime Savings Bank of New York, F.S.B. v. Wu, 34 Conn.App. 901, 902, 640 A.2d 164, cert. denied, 229 Conn. 924, 642 A.2d 1213 (1994) (holding that "In Cummings Lockwood, the motion for summary judgment was specifically directed to the complaint while here, the plaintiff made a general motion for summary judgment which allowed the court also to resolve the issue of the counterclaim which it properly did").
Next, the court must determine whether it can consider the plaintiff's statute of limitations defense to the defendants' counterclaims. Throughout its memorandum of law, the plaintiff argues that it is entitled to summary judgment on each of the defendants' counterclaims because these causes of action are untimely pursuant to the relevant statutes of limitations, General Statutes § 52-577 and § 52-584. In response, the defendants argue that the statute of limitations has been tolled by the continuing course of conduct doctrine. It is not necessary for the court to resolve this dispute, however, because the plaintiff has not specially pleaded its statute of limitations defense as required by the rules of practice.
"[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense . . ." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006); see also Practice Book § 10-50. There are only two exceptions to this general rule. "The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations . . . The second is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Citation omitted; internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993). At the present time, the plaintiff has not filed a reply to the defendants' counterclaims, and, therefore, the plaintiff has not specially pleaded its statute of limitations defense. The plaintiff has violated Practice Book § 10-57, which provides in relevant part: "Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply."
When analyzing cases where a party has failed to plead specially a non-jurisdictional statute of limitations, Connecticut's appellate courts have determined that the court need not address the statute of limitations defense. For instance in Cue Associates, LLC v. Cast Iron Associates, LLC, 111 Conn.App. 107, 116-17, 958 A.2d 772 (2008), the court held that "the defendant here failed to plead specifically the applicable statute of limitations with regard to the plaintiff's trespass claim . . . The limitations period for tort actions found in § 52-577 is procedural rather than jurisdictional, thus making it subject to waiver . . . The defendant's failure to plead with specificity meant that it waived its defense of the statute of limitations as to the plaintiff's trespass claim. The court's judgment on the second count of the complaint in favor of the defendants, therefore, was improper." (Citation omitted.) Id.; see also Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 607, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007) ("We need not reach the merits of [the statute of limitations tolling] claim because the plaintiff did not raise it in her pleadings by way of a reply to the special defenses, but instead, asserted it for the first time in a pleading filed in opposition to the defendant's motion for summary judgment, in which the plaintiff made a cross motion for summary judgment"). Accordingly, in the present case, "[t]he plaintiff was, therefore, responsible for pleading the statute of limitations so as to apprise the court and opposing counsel of the issues to be tried." (Internal quotation marks omitted.) Martino v. Scalzo, 113 Conn.App. 240, 249, 967 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009).
The two statutes of limitations that the plaintiff raises are § 52-577 and § 52-584. Neither of these statutes of limitations are jurisdictional in nature. Furthermore, the defendants have argued that the statute of limitations has been tolled by the continuing course of conduct doctrine. Consequently, the parties have not agreed that all of the facts relevant to a determination of the applicability of the statute of limitations have been alleged in the defendants' counterclaim complaint. Connecticut law is clear that "when the right of action exists independently of the statute in which the limitations period is found, the statutory bar is considered personal and procedural and is deemed waived if not specially pleaded." (Emphasis in original; internal quotation marks omitted.) Id., 245. As the plaintiff has yet even to reply to the defendants' counterclaims, this court will not consider the plaintiff's statute of limitations arguments on this motion for summary judgment.
III SLANDER OF TITLE
The plaintiff argues that it is entitled to summary judgment on the defendants' first counterclaim for slander of title. In their counterclaim complaint, the defendants allege that the plaintiff recorded an unauthorized second mortgage for the subject premises on August 12, 2005. The defendants further allege that "[a] demand to withdraw the Additional Mortgage . . . was made on various occasion [sic] prior to November 2007 and specifically on September 24, 2008, October 28, 2008 and again on November 25, 2008, all of which have been ignored." In support of its motion, the plaintiff attaches a document dated October 28, 2008, that purportedly releases the second mortgage. The plaintiff argues that this document demonstrates that the facts alleged by the defendants are incorrect, and, therefore, there is no genuine issue of material fact that the defendants' slander of title counterclaim should fail. In response, the defendants argue that this document fails to remove all factual issues as to the alleged demands made on the plaintiff to remove the second mortgage prior to October 2008.
"Slander of title is a tort whereby the plaintiff's claim of title [to] land or other property is disparaged by a letter, caveat, mortgage, lien or some other written instrument . . . A cause of action for slander of title consists of any false communication which results in harm to interests of another having pecuniary value . . . In other words, slander of title is a falsehood published to third parties that is not withdrawn after a demand by the titleholder, which impugns the basic integrity or creditworthiness of an individual or a business . . . It follows, therefore, that A may bring an action for slander of title when B improperly records a mortgage against the deed to A's home and does not correct such an impropriety upon A's demand. Such an action lies in tort and is akin to an action for damages pursuant to [General Statutes] § 49-8." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007). Accordingly, Bellemare establishes that a party can bring a claim for slander of title when there is an unauthorized recording of a mortgage that is not removed from the land records upon demand.
While the plaintiff's evidence may establish that it removed the allegedly unauthorized second mortgage by October 28, 2008, the defendants' counterclaim complaint alleges that it made demands upon the plaintiff to remove the additional mortgage on various occasions prior to November 2007 and on September 24, 2008. The plaintiff's evidence does not remove all issues of fact as to the plaintiff's actions and intent following these alleged requests. There is a genuine issue of fact as to the defendants' slander of title counterclaim, and, therefore, the motion for summary judgment as to this counterclaim is denied.
IV NEGLIGENCE
Next, the plaintiff contends that it is entitled to summary judgment on the defendants' third counterclaim sounding in negligence. The plaintiff argues that it cannot be held liable for its alleged negligent failure to include Thomas Ceraso on a warranty deed that was to be recorded on the Easton land records. Specifically, the plaintiff argues that it "was not the party legally charged with the recording of any such deed. Absent evidence that the Plaintiff was the party to have prepared and recorded any such Warranty Deed . . . the Defendants third counterclaim must fail. Simply stated, the Plaintiff undertook no duty to prepare, record or otherwise assist with the transfer of title from Gary Ceraso to Gary and Thomas Ceraso." In support of this position, the plaintiff attaches a warranty deed dated May 15, 1995, indicating that Gary Ceraso had title to the subject premises and a settlement statement from the United States Department of Housing and Urban Development that fails to reflect that the plaintiff undertook a duty to prepare and record a warranty deed. In their memorandum of law in opposition, the defendants argue that the plaintiff "had a self imposed duty to assure title to the premises was taken as joint tenants" because the defendants' loan application reflected their desire to own this property as joint tenants.
A close examination of the allegations of the third counterclaim reveals that the defendants actually allege two different reasons as to why the plaintiff was negligent. First, the defendants allege that the plaintiff was negligent because its agents or employees failed to prepare and record properly loan documents for the property, as well as to include Thomas Ceraso on the warranty deed. Secondly, the defendants allege that the plaintiff was negligent for "[i]ts failure to release the unauthorized Mortgage upon notice of the negligent conduct . . ." While the plaintiff argues that it is entitled to summary judgment because it had no duty to prepare and record a warranty deed reflecting that the defendants owned the property as joint tenants, the plaintiff does not address the defendants' allegation that the plaintiff was negligent for its failure to release the allegedly unauthorized second mortgage in a timely manner. As previously discussed, there is a genuine issue of material fact as to the plaintiff's actions regarding this second mortgage before the plaintiff eventually removed it from the Easton land records on October 28, 2008. Because the plaintiff's argument fails entirely to address the defendants' allegation that the plaintiff was negligent for its failure to remove the second mortgage, the plaintiff is effectively moving for summary judgment as to part of the third counterclaim.
"[T]here is a division of authority in the trial courts as to whether . . . a court is limited to rendering summary judgment on an entire count in a complaint, rather than having the flexibility to render summary judgment on one or some of the multiple causes of action contained in a single count in that complaint." Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 809 n. 41, 967 A.2d 1 (2009). To date, Connecticut's appellate courts have yet to resolve this split of authority. "The better reasoned opinions, however, conclude that it is not possible to render summary judgment on part of a count of a complaint . . . [T]he majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment . . . [T]he majority rule . . . is that Connecticut procedure does not allow entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore, will not allow entry of judgment on that claim." (Citations omitted; internal quotation marks omitted.) Pfizer, Inc. v. Mine Safety Appliances Co., Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 04 4034705 (May 19, 2008, Shapiro, J.) ( 45 Conn. L. Rptr. 577, 578-79).
As the majority of Connecticut trial courts have ruled that it is inappropriate to render summary judgment on certain allegations within a count, the court denies the plaintiff's motion for summary judgment on the third counterclaim. The plaintiff has failed to meet its burden to demonstrate that it is entitled to judgment as a matter of law as to all of the facts alleged in the defendants' negligence counterclaim. Specifically, there is a genuine issue of material fact as to whether the plaintiff's agents or employees acted negligently in failing to remove the allegedly unauthorized second mortgage prior to October 28, 2008.
V FRAUD
Finally, the plaintiff contends that summary judgment should be rendered in its favor on the defendant's fourth counterclaim, fraud. The crux of the defendants' fourth counterclaim is that the plaintiff committed fraud when its agents or employees represented that Thomas Ceraso would be included on the warranty deed for the subject premises and that it failed to include Thomas Ceraso on this deed. In its memorandum of law, the plaintiff argues that there is no evidence that the plaintiff actually recorded such a warranty deed on the Easton land records. Furthermore, the plaintiff argues that "it was under no obligation nor in any position to prepare any such deed . . . No preparation fee or mention of any such deed is on the HUD-1 settlement statement, no such deed is recorded on the Easton Land Records, and the Plaintiff is not the party lawfully seized of an estate that can be conveyed by warranty deed." In response, the defendants argue that "the Plaintiff had a self imposed duty to assure title to the premises was taken as joint tenants and was negligent in their preparation of the Closing Instructions and/or Commitment Letter . . . The requirement to execute and prepare a deed which evidenced title in both Defendants was obvious in the Loan Application but was negligently omitted within the Closing Instructions and Commitment Letter."
The evidence offered in support of the plaintiff's position includes a copy of a warranty deed that reflects the subject property was conveyed from George Bartulevicz and Laverne Bartulevicz to Gary Ceraso on May 15, 1995. In its memorandum of law, the plaintiff contends that this is the only transfer of the 30 High Meadow Road property by warranty deed reflected on the Easton land records. While this evidence may demonstrate that Gary Ceraso obtained a warranty deed for the property in 1995, it does not necessarily prove that this is the only warranty deed on the land records. The plaintiff has not submitted any evidence, such as an affidavit from the keeper of the Easton land records, that conclusively demonstrates that the alleged warranty deed does not exist. Furthermore, the plaintiff argues that no preparation fee or other mention of the alleged warranty deed is reflected on the settlement statement as is required by federal law. Although it is true that no warranty deed is reflected on this form, this fact does not conclusively prove that no such warranty deed existed. The plaintiff has only proved that the deed is not listed on the settlement statement. Moreover, the defendants have presented a loan application form indicating that Gary Ceraso and Thomas Ceraso were to hold title on the property as joint tenants. If construed in a manner most favorable to non-moving party, this evidence could demonstrate that the plaintiff had knowledge that the defendants wanted to own the property as joint tenants, which could suggest that the plaintiff would draft a warranty deed to reflect this desire. The plaintiff has failed to demonstrate the absence of genuine issue of material fact in regard the existence of this alleged warranty deed.
The plaintiff's other argument in favor of summary judgment on the fourth counterclaim is that it had no duty to prepare and record a warranty deed. Although a duty analysis would be relevant for a negligence cause of action, it is not an element of a fraud claim. "Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 729-30, 916 A.2d 834 (2007). "In order to plead a cause of action for fraud, a plaintiff must allege that: (1) a false representation was made [by the defendant] as a statement of fact; (2) the statement was untrue and known to be so by [the defendant]; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 628, 910 A.2d 209 (2006). In their counterclaim complaint, the defendants allege that the plaintiff made a false representation regarding Thomas Ceraso being named on a warranty deed in order to induce the defendants to enter into a loan with the plaintiff. Furthermore, the defendants allege that the plaintiff's agents or employees knew that this representation was false and that the defendants acted in reliance on these false representations. The plaintiff has offered no evidence to contradict any of these allegations in its motion for summary judgment. The plaintiff has failed to demonstrate the absence of a genuine issue of material fact, and, as a result, the court denies the plaintiff's motion for summary judgment on the fourth counterclaim.
The court has treated the plaintiff's motion for summary judgment on the complaint as a motion to strike the defendants' fraudulent inducement special defense. The court grants this motion to strike and allows the defendants to re-plead their special defense. The court denies the plaintiff's motion for summary judgment as to each of the defendants' three counterclaims for the reasons herein set forth.