Opinion
No. CV06-5000393 S
February 29, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #115
On January 10, 2006, the plaintiffs, Jerome Terracino and Guardian Systems, Inc., (Guardian), brought a legal malpractice action against their former attorney, A. Reynolds Gordon and his law firm of Gordon Hiller (the law firm), alleging that Gordon and the law firm were negligent in representing the plaintiffs in a previous lawsuit. In response, the defendants have filed a motion for summary judgment claiming that the plaintiffs have not established the existence of a genuine issue of material fact as to the defendants' professional negligence.
I FACTS AND PROCEDURAL BACKGROUND
The following undisputed facts are relevant to this motion. In July of 1991, Mutual Communications Associates (Mutual) borrowed $270,000 from Brookfield Bank pursuant to a mortgage, promissory note and commercial agreement of guaranty. Jerome Terracino, Robert Rossman and Richard DeMarsico, the corporate officers of Mutual, all signed as guarantors on the note. Terracino and Rossman also signed an additional guaranty as the principals and officers of Guardian Systems, Inc., an alarm company.
On May 8, 1992, the Federal Deposit Insurance Corporation (FDIC) took possession of the assets of Brookfield Bank, including the promissory note, mortgage and guarantees. Subsequently, Mutual defaulted on the loan and no further payments were made. The FDIC then foreclosed against Mutual, Guardian, Terracino, Rossman and DeMarsico, and a judgment of strict foreclosure entered in February of 1997. Thereafter, the FDIC sold the note to JLM Corporation, who filed a motion for deficiency judgment against the guarantors.
FDIC v. Mutual Communication Assoc., Superior Court, judicial district of Litchfield, Docket No. CV 95 0067158.
Although both Terracino and Rossman made several efforts to acquire the note directly from the FDIC and JLM between late 1996 and March of 1997, in the summer of 1997 JLM Corporation assigned the note, the guarantees and the deficiency claim to Andrew Buzzi Jr., as trustee, who then assigned them to Consolidated Asset Management LLC (Consolidated). In October of 1998, Consolidated assigned the note, guarantees and deficiency to an entity known as Fairway Asset Management, Inc. (Fairway). Following this assignment, Fairway was substituted as a party to JLM's motion for deficiency judgment.
Buzzi is the attorney for Rossman.
The defendants in the present case, Gordon and his law firm, represented Terracino and Guardian in the deficiency judgment proceeding that was pursued by Fairway. To defend against Fairway's claims, Gordon asserted that Rossman had successfully purchased the subject note from JLM and, as a result, the liability of all guarantors changed to joint and several liability, but only for the amount that Rossman had paid to purchase the note. The trial court, however, rejected this defense theory and Fairway was granted judgment against the guarantors, including Terracino and Guardian, in the amount of $324,631.08. Terracino and Guardian appealed the trial court's ruling granting the deficiency judgment, however, the Appellate Court rejected Gordon's defense theory and trial court's ruling was affirmed.
See Federal Deposit Insurance Corporation v. Mutual Communications Assoc., Inc., Superior Court, judicial district of Litchfield, Docket No. CV 95 0067158 (Oct. 20, 1999, DiPentima, J.).
See Federal Deposit Insurance Corporation v. Mutual Communications Assoc., Inc., 66 Conn.App. 397, 784 A.2d 970 (2001), appeal dismissed, 262 Conn. 358, 814 A.2d 377 (2003).
Thereafter, Terracino claimed to have obtained new evidence which allegedly showed that Rossman had in fact acquired the promissory note from JLM. Based on this new evidence, Terracino and Guardian filed a petition for new trial. During the hearing on this petition, the court first concluded that the newly offered evidence might have changed some of the prior factual findings, particularly as to whether Rossman ever owned the note, and, second, that this evidence had not been discovered prior to the first hearing due to Gordon's failure to exercise due diligence. The trial court, however, also opined that even if the newly discovered evidence had been presented in the first hearing, it would not have affected the outcome of the case. The plaintiffs then appealed to the Appellate Court, which affirmed the trial court's ruling that denied the petition for a new trial.
During these proceedings the plaintiffs were represented by the law firm of Morrison Mahoney LLP. The same law firm also represents Terracino and Guardian in the present action for professional negligence.
See Terracino v. Fairway Asset Management, Superior Court, judicial district of Litchfield, Docket No. CV 00 0082928 (March 8, 2001, DiPentima, J.)
In her decision, Judge DiPentima specifically stated: "As noted most recently by our Appellate Court, there is an equitable underlying principle furthered by the strict standards for granting a new trial. `Once a judgment is rendered it is to be considered final and should be left undisturbed by post trial motions except for a good and compelling reason.' State v. Weiner, 61 Conn.App. 738, 752[, 767 A.2d 1220] (2001). As to this defendant [Fairway Asset Management] there is no equitable or legal reason to disturb the judgment entered in its favor." Terracino v. Fairway Asset Management, supra, Superior Court, Docket No. CV 00 0082928.
See Terracino v. Fairway Asset Management, 75 Conn.App. 63, 815 A.2d 157 (2003).
In the case presently before this court, the plaintiffs, Terracino and Guardian, filed a two-count complaint against Gordon and his law firm, respectively, alleging that both defendants were negligent in not discovering the subsequently uncovered evidence prior to the initial trial. Specifically, the plaintiffs assert that Gordon and his law firm negligently failed to discover and obtain certain letters that they claim can prove that Rossman had successfully acquired the subject note from JLM and that, because of the defendants' negligence, Fairway eventually obtained the deficiency judgment against them.
In response to the plaintiffs' complaint, the defendants filed a motion for summary judgment on July 19, 2007, which was accompanied by a memorandum of law. On November 8, 2007, the plaintiffs filed a memorandum in opposition to the motion for summary judgment, to which the defendants filed a brief in reply on November 13, 2007. Oral argument was heard by the court on November 13, 2007.
II DISCUSSION
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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." Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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 moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material fact and that the party is, therefore, entitled to a judgment as a matter of law." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., supra, 284 Conn. 26-27.
"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]." Zielinski v. Kotoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006). The Connecticut courts have clearly stated that "[a] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005). Instead, "the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of a material fact." (Internal quotation marks omitted.) Laborina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005); see also Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 757, 905 A.2d 623 (2006).
In the present case, the defendants allege that, other than their mere assertions of fact, the plaintiffs have failed to offer any evidence to show that the failure to obtain the certain evidence prior to the first trial would have changed the outcome of the underlying action. The defendants argue that, as a matter of law, the subsequently discovered documents would not have altered the outcome of the prior deficiency suit, as the guaranty signed by the plaintiffs acted as a waiver of the very defenses that the plaintiffs claim this evidence would have supported.
To support their argument, the defendants have provided the following: A copy of the mortgage agreement, copies of the guaranty agreements that were signed by the corporate officers of Mutual, copies of the prior decisions that have previously been issued on this case, as well as various correspondence between Buzzi and Darcy Kochiss Ellis, the attorney for JLM Corporation. The defendants argue that, in light of the evidence provided, the plaintiffs cannot establish that the defendants were the proximate cause, or the cause in fact, of the plaintiffs being obligated to pay the full amount of the original note. Accordingly, the defendants assert that there are no remaining genuine issues of material fact and, therefore, as a matter of law, the plaintiffs' claim must fail. In effect, the defendants claim that the plaintiffs cannot, based on the evidence presented to the court and in reading the pleadings in the light most favorable to the nonmovant, establish all necessary elements of its claim of professional negligence.
Normally original documents are required for the court's consideration, but where neither side has objected to the submission of copies the court can, and in this case will, exercise its discretion to accept copies instead of original documents.
To determine if this is so, this court must confine itself to a reading of the pleadings and supporting documentation. The court, of course, cannot "weigh" the documentation; rather, it must simply see if it is sufficient to establish a genuine issue between the parties. To this end, the defendants point to the provision of the guarantees that were signed by the plaintiffs as foreclosing the very arguments that the plaintiffs have continuously made throughout this and prior proceedings. Specifically, the plain language of paragraphs 8 and 11 of the guaranty agreements provide that "[t]he liability of the Guarantor hereunder is direct, absolute and unconditional without regard to the liability of any other person" and, furthermore, "[the] obligations and liabilities hereunder shall in no way be released, lessened or impaired by reason of the release of, or the unenforceability of any agreement or undertaking by any other guarantor or other liable party." See Exhibits A, B, C D to the defendants' motion for summary judgment.
Furthermore, the defendants have also referenced several Superior and Appellate Court decisions in which the plaintiffs argue that the subsequently discovered evidence would have affected the outcome of the original trial and that such argument was rejected. In particular, the defendants refer to Judge DiPentima's decision on the plaintiffs' petition for a new trial. See Terracino v. Fairway Asset Management, Superior Court, judicial district of Litchfield, Docket No. CV 00 0082928 (March 8, 2001, DiPentima, J.) In that case, Judge DiPentima found that "[t]he language of the guaranty does not support the plaintiff's argument that, as coguarantors, Terracino and Guardian have contribution rights in this deficiency judgment action limiting their liability to the defendant." Id. Taking note of these previous decisions, which support the defendants' argument and the clear import that the outcome of such proceedings would not have been affected by any after-discovered evidence, this court concludes that the defendants have met their burden in showing the absence of a genuine issue of material fact regarding the plaintiffs' professional negligence claim.
Having determined that the defendants met their burden as the movants, in the present case, the court must next determine whether the plaintiffs have presented evidence that can rebut the defendants' argument by showing that a genuine issue of material fact does exist. The plaintiffs responded to the defendants' motion for summary judgment by asserting that the defendants were negligent because, had they not failed to obtain the new evidence (which allegedly shows that Rossman acquired the note in question) the outcome of the trial would have been different. Specifically, the plaintiffs argue that Rossman and Terracino owe fiduciary duties to each other and to Guardian, as coguarantors on the note, and because of this Rossman's ownership of the note extinguished Terracino's debt and obligations for the full amount due on the note.
This is the plaintiffs' third attempt at presenting this argument to a court of this state. The plaintiffs first attempted to make this argument in 1995, in the case captioned Federal Deposit Insurance Corporation v. Mutual Communications Assoc. Inc., Superior Court, judicial district of Litchfield, Docket No. CV 95 0067158 (Oct. 20, 1999, DiPentima, J.). The court, however, rejected their argument and the plaintiffs appealed to the Connecticut Appellate and then the Supreme Court, where certiorari was initially granted. After oral arguments were heard, however, the Court dismissed the appeal. See Federal Deposit Insurance Corporation v. Mutual Communications Assoc., Inc., 66 Conn.App. 397, 784 A.2d 970 (2001), appeal dismissed, 262 Conn. 358, 814 A.2d 377 (2003). The plaintiffs were given a second bite at the apple when they again argued this same issue in front of Judge DiPentima, during the hearing on their petition for a new trial. See Terracino v. Fairway Asset Management, Superior Court, judicial district of Litchfield, Docket No. CV 00 0082928 (March 8, 2001, DiPentima, J.) After Judge DiPentima rejected the plaintiffs' petition for a new trial, the plaintiffs again appealed to the Appellate Court, where their argument was dismissed. See Terracino v. Fairway Asset Management, 75 Conn.App. 63, 815 A.2d 157 (2003). Thus, in bringing this argument in the context of the instant claim, the plaintiffs are attempting to get a third bite at the same apple.
Other than mere assertions, however, the plaintiffs have not provided any affidavits or other documentary evidence, in accordance with the Practice Book §§ 17-45 through 17-49, to rebut the evidence that was provided by the defendants. Instead, the plaintiffs simply reassert the arguments they intend to argue during trial. In fact, this court finds that the plaintiffs' response to the motion for summary judgment, at both oral argument and within the body of the pleading, contains only unsupported allegations regarding the acquisition of the note and guaranty, as well as the liability of all the parties. These mere assertions of fact are found to be insufficient to rebut the defendants' argument and, while the pleadings and evidence must be viewed in the light most favorable to the plaintiffs, as the nonmoving party, this court finds that the plaintiffs have failed to present any evidence to demonstrate the existence of some disputed factual issue and, therefore, they have not refuted the evidence that the defendants have properly presented. See Laborina v. McDonald, supra, 274 Conn. 399-400; see also Anderson v. Schoenhorn, supra, 89 Conn.App. 670. In the present case, the only thing that the plaintiffs are disputing is information which is not new to this court, as this exact argument has previously been considered by both the Superior and Appellate Courts. Because of this, there are no remaining material facts to be decided by this court. See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 556.
As the plaintiffs are attempting to again argue issues that already have been dealt with, or, should have been dealt with, by the trial and appellate courts, the plaintiffs are essentially asking this court to sit as an appeals court over the rulings of both Judge DiPentima and the Appellate Court. In fact, the plaintiffs went so far as to argue before this court that "Judge DiPentima, [was] incorrect in stating that the guarantees give rise to independent obligations against each guarantor that cannot be extinguished by the acts of another guarantor." Judge DiPentima's ruling, however, has already been addressed and upheld by our Appellate Court in Terracino v. Fairway Asset Management, 75 Conn.App. 63, 815 A.2d 157 (2003), and this court will not act as an auxiliary appellate court Thus, because the arguments being raised by the plaintiffs have already been raised and ruled upon in prior proceedings, there is no reason for this court to distinguish those rulings in any way.
See the plaintiffs' memorandum in opposition, p. 13.
Lastly, at oral argument before this court, the plaintiffs extensively cited the dissenting opinion in Terracino v. Fairway Asset Management, supra, 75 Conn.App. 63, as a basis for issuing a decision in their favor in this matter. They argued that the dissent on the issue of a breach of fiduciary duty between coguarantors is likely to be followed by other Connecticut courts in the future. While this court respects the capable abilities of the author of that dissenting opinion, the plaintiffs' argument is nothing more than sheer speculation as to a future precedential ruling of law and, as such, it fails to address whether or not a genuine issue of material fact exists.
Thus, this court concludes that the plaintiffs have failed to provide sufficient evidence to rebut the defendants' assertion that no genuine issue of material fact exists with regard to their claims of professional negligence against the defendants.
III CONCLUSION
There are no facts cited or brought forth by the plaintiffs that would either make a difference in this case, on its own merits, or that would distinguish the present action from the history of the protracted litigation leading up to this case. Thus, based on the foregoing reasons, the defendants' motion for summary judgment is granted.