Opinion
No. CV 06 4006048 S
March 4, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #125
FACTS AND PROCEDURAL HISTORY
On May 29, 2005, Zacarias DaCosta, Jr., murdered Francesca Benedetto, then died from a self-inflicted gun shot. The plaintiff, Eugenia Martino, in her capacity as the administratrix of the estate of Francesca M. Benedetto, made a claim against the estate of Zacarias DaCosta, Jr., for $5,000,000 for the wrongful death of Francesca Benedetto. Zacarias DaCosta, Sr., the defendant, also made a claim against the estate of Zacarias DaCosta, Jr., of a mortgage in the amount of $118,000 plus interest. The plaintiff filed a petition to contest the validity of the defendant's claim in Probate Court, alleging the illegality of the mortgage and the promissory note. The Probate Court found that the defendant could not recall the particulars but that a debt existed in favor of the defendant in the amount of $51,000.
Zacarias DaCosta, Sr., is the only remaining defendant. The named defendant, Amanda Scalzo, executrix of the estate of Zacarias DaCosta, Jr., filed an appeal from the August 28, 2007 judgment of the Superior Court, and Zacarias DaCosta, Sr., filed a cross-appeal. The named defendant subsequently withdrew her appeal. Antoinette DaCosta, the mother of Zacarias DaCosta, Jr., was also a defendant at trial, but did not appeal the judgment. Martino v. Scalzo, 113 Conn.App. 240, 241 n. 1, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009).
Zacarias DaCosta, Sr., made this claim on August 8, 2005, as indicated by the Appellate Court. See Martino v. Scalzo, 113 Conn.App. 240, 242, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009).
"The defendant's claim in the Probate Court and on appeal in the Superior Court was asserted as a mortgage." Martino v. Scalzo, 113 Conn.App. 240, 244 n. 6, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009).
"The $51,000 debt consisted of the defendant's loan to Zacarias DaCosta, Jr., of $35,000 cash and the defendant's purchase of a $16,000 truck for Zacarias DaCosta, Jr." Martino v. Scalzo, 113 Conn.App. 240, 243 n. 5, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009).
The plaintiff appealed from the judgment of the Probate Court, alleging in her probate appeal complaint that the defendant claimed there was a mortgage in the sum of $118,000 at the time of Zacarias DaCosta, Jr.'s death recorded on the real estate of Zacarias DaCosta, Jr., located at 7 Bullet Hill Road in Danbury, Connecticut. The plaintiff further alleged that the defendant had no copy of the promissory note, nor had any recollection of the terms and conditions of the note. Finally, the plaintiff alleged that the court erred in deciding that a portion of the mortgage should be paid from the assets of the estate of Zacarias DaCosta, Jr.
Following a trial de novo before the Superior Court, Frankel, J., on June 26, 2007, the court issued a memorandum of decision on August 28, 2007. In that decision, the court denied the defendant's claim. The court found that "there was a mortgage recorded on the land records of the town of Danbury . . . It was dated November 30, 1994 and recorded on December 1, 1994. It was in the amount of $118,000 and states that `the debt was evidenced by the borrower's note dated the same date as this Security Instrument which provides for monthly payments, with the full debt, if not paid earlier, due and payable on DEMAND.' The borrower was [Zacarias J. DaCosta, Jr.,] and the lenders were [the defendant] and Antoinette [DaCosta]." Martino v. Scalzo ( Martino I), Superior Court, judicial district of Danbury, Docket No. CV 06 4006048 (August 28, 2007, Frankel, J.). The court also stated that although the defendant claimed a mortgage was recorded on the land records of the town of Danbury and that the note was lost or stolen, and that although the plaintiff further claimed there was no promissory note, "the lost note in this case [was] rather irrelevant." Martino I, supra, Superior Court, Docket No. CV 06 4006048. In addition, the court stated that "[t]he mortgage note was `on demand.' In the last 11 years that mortgage and note were in place, the lenders never once made demand on the note. The father never asked his son to repay any monies . . . All credible evidence is that no payments were ever made on the note . . ." Id. The court also found that General Statutes § 42a-3-118(b) applied to this situation, stating that "[t]he defendant's claim for the payment on the mortgage given to his son arose on November 30, 1994. The defendant, however, did not make a demand for payment on the note for nearly eleven years. It was not until after the decedent's death on May 29, 2005, at the time the executrix began to administer the estate, that the first demand for payment was made. Therefore, under § 42a-3-118(b), the defendant's claim to recoup the amount owed to him on the note is invalid because more than ten years had transpired." Id.
The defendant appealed from the judgment of the Superior Court, alleging that the court improperly raised the statute of limitations in § 42a-3-118(b) sua sponte. The Appellate Court agreed, reversing the decision of the Superior Court and remanding the case "for further proceedings according to law." Martino v. Scalzo, 113 Conn.App. 240, 250, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009) ( Martino II). The Appellate Court rejected the plaintiff's argument that she raised the statute of limitations contained in § 42a-3-118(b) by discussing the applicability of General Statutes § 49-13(a)(1)(C) in her posttrial brief Id., 248-49. The court found that "the § 42a-3-118 statute of limitations [was] not jurisdictional . . . [Section] 42a-3-118 contains a statute of limitations that is procedural, not substantive, and does not implicate the subject matter jurisdiction of the court. As such, it may be waived . . . The 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 . . . The plaintiff neither pleaded the statute of limitations nor apprised the defendant that it was at issue. Because of the court's sua sponte application of the statute of limitations, the defendant was not afforded the opportunity to plead and present evidence in avoidance of the statute of limitations . . . [T]he plaintiff's inclusion of § 49-13 in her posttrial reply brief, filed on the last day on which reply briefs could be filed, cannot possibly be said to apprise the defendant of the issue to be tried. Accordingly, we conclude that the plaintiff waived the application of § 42a-3-118(b) to the defendant's claim and the court's application of it was improper." (Citations omitted; internal quotation marks omitted.) Id., 249-50. Because "[t]he defendant claimed on appeal that General Statutes § 42a-3-118(b) is not applicable to its claim on the estate of DaCosta, Jr.," the Appellate Court "expect[ed] that the court will address the validity of the claim" on remand. Id., 241-42 n. 2.
On May 5, 2009, the plaintiff filed a request for leave to file an amendment and an amended probate appeal complaint with the court, alleging that the defendant made no claim for payment against Zacarias DaCosta, Jr., on the alleged note or mortgage for more than ten years from the alleged date of execution of the note and mortgage. The plaintiff also alleged that Zacarias DaCosta, Jr., made no payment on the alleged note or the mortgage for more than ten years from the alleged date of execution. Additionally, the plaintiff alleged that the Probate Court erred in failing to find that the claims of the defendant were barred by the statute of limitations provisions of § 42-a-3-118(b) and/or § 49-13(a)(1)(C). On May 6, 2009, the defendant filed an objection to the request for leave to file an amendment. On October 29, 2009, the court, Agati, J., granted the plaintiff's request.
On November 4, 2009, the plaintiff filed the present motion for summary judgment, accompanied by a memorandum of law and two exhibits in support of this motion. On November 24, 2009, the defendant filed a memorandum of law in opposition to this motion. The matter was heard at short calendar on November 30, 2009.
The plaintiff filed a motion for summary judgment on September 8, 2009 that is identical to the November 4, 2009 motion. However, the September 8, 2009 motion, which was a motion for summary judgment as to the plaintiff's amended probate appeal complaint, was filed before the court granted the plaintiff's request for leave to file an amendment to the probate appeal complaint on October 29, 2009.
DISCUSSION
"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." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 354-55, 963 A.2d 640 (2009).
"As the party moving for summary judgment, the plaintiff is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). "It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Lefebvre v. Zarka, 106 Conn.App. 30, 38, 940 A.2d 911 (2008).
The plaintiff moves for summary judgment on the ground that any claim by the defendant is barred by the statute of limitations provisions of § 42a-3-118(b) and/or § 49-13(a)(1). Specifically, in her memorandum in support of the motion, the plaintiff argues that the defendant's claim under the alleged promissory note is barred by § 42a-3-118(b). In addition, the plaintiff argues that the alleged mortgage is subject to the discharge provisions of §§ 49-13(a)(1)(C) and (E), and that this alleged mortgage is invalid and unenforceable since it does not comply with the requirements and criteria for an open-ended mortgage. The plaintiff has submitted the following evidence in support of her motion for summary judgment: (1) a copy of Martino I, the August 28, 2007 memorandum of decision from the Superior Court (Frankel, J.); (2) a copy of Martino II the 2009 Appellate Court decision; and (3) copies of selected pages from the June 26, 2007 trial transcript.
In his memorandum of law in opposition, the defendant counters that "this matter after remanded [from] the Appellate Court . . . is again a trial de novo with no finding of facts." The defendant argues that "the [p]laintiff is attempting to use transcripts from the earlier trial proceeding for which upon remand no findings based on those facts have been made;" that he "is entitled to a trial on the merits and a determination of the factual basis in this case" and that "[a]t trial [he] can [and] will present his evidence on the disputed issues."
General Statutes § 42a-3-118(b) provides in relevant part that "[i]f no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten years." See also Ziniewicz v. Poleszczuk, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 02 077015 (February 27, 2002, Moran, J.) (holding that a demand for payment eighteen years after issuance of note was barred under § 42a-3-118(b)). In Ziniewicz, the court, Moran, J., stated the following: "The Uniform Commercial Code Comment to the statute provides that, [t]he second sentence of subsection (b) bars an action to enforce a demand note if no demand has been made on the note and no payment of interest or principal has been made for a continuous period of 10 years. This covers the case of a note that does not bear interest or a case in which interest due on the note has not been paid. This kind of case is likely to be a family transaction in which a failure to demand payment may indicate that the holder did not intend to enforce the obligation but neglected to destroy the note. A limitations period that bars stale claims in this kind of case is appropriate if the period is relatively long." (Internal quotation marks omitted.) Ziniewicz v. Poleszczuk, supra, Superior Court, Docket No. CV 02 077015 n. 2.
In the present case, the plaintiff has submitted a copy of the court's Martino I decision, as well as copies of selected pages from the transcript of the June 26, 2007 trial, which show that the court determined, based on the evidence introduced at trial, that the note was on demand, that the defendant failed to make a demand on the note for nearly eleven years, and that no payments were ever made on the note. See Martino I, supra, Superior Court, Docket No. CV. 06 4006048. The defendant has submitted no evidence to demonstrate that there is a genuine issue of material fact as to any of these facts. Additionally, the defendant has made no argument nor cited to any legal authority indicating that § 42a-3-118(b) is not applicable to its claim on the estate of Zacarias DaCosta, Jr. Thus, the plaintiff has met her burden showing the absence of any genuine issue of material fact as to whether the defendant's claim is barred by the ten-year statute of limitations provision of § 42a-3-118(b).
The defendant argues that "the [p]laintiff is attempting to use transcripts from the earlier trial proceeding for which upon remand no findings based on those facts have been made." Nevertheless, "a trial court may take judicial notice of the court file in the same case . . . Such notice, however, only excuses the party having the burden of establishing a fact from the necessity of producing formal proof . . . it does not eliminate the need for a separate determination of whether such facts judicially noticed are relevant and therefore admissible." (Citations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 746 n. 6, 638 A.2d 1060 (1994). "[I]t is understood that matter[s] which it is claimed the court should judicially notice should ordinarily be called to its attention by a party seeking to take advantage of it in the course of presenting evidence in the case so that, if there is ground upon which it may be contradicted or explained, the adverse party will be afforded an opportunity to do so . . . Nichols v. Nichols, 126 Conn. 614, 622, 13 A.2d 591 (1940). Caccavale v. Hospital of St. Raphael, 14 Conn.App. 504, 509, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d 1107 (1988). Judicial notice may, however, be taken at any stage of the proceedings including on appeal. State v. Allen, 205 Conn. 370, 382, 533 A.2d 559 (1987) . . . In re David M., 29 Conn.App. 499, 507, 615 A.2d 1082 (1992)." (Internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995). Accordingly, the court takes judicial notice of the transcripts in the present case.
See Martino II, supra, 113 Conn.App. 241-42 n. 2 ("The defendant claimed on appeal that General Statutes § 42a-3-118(b) is not applicable to its claim on the estate of DaCosta, Jr. . . . On remand, we expect that the court will address the validity of the claim").
Additionally, the plaintiff argues that the alleged mortgage is subject to the discharge provisions of §§ 49-13(a)(1)(C) and (E), and that the alleged mortgage is invalid and unenforceable since it does not comply with the requirements and criteria for an open-ended mortgage. Because there is no genuine issue of material fact as to whether the defendant's claim is barred by the ten-year statute of limitations provision of § 42a-3-118(b), the court need not address the plaintiff's other arguments.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for summary judgment is granted.