Opinion
No. FST CV 04 0199214 S
August 14, 2006
MEMORANDUM OF DECISION
In this action, the plaintiff seeks a partition of real property known as 15 Quintard Avenue, Norwalk, Connecticut. The defendant is alleged to be a co-owner of the property.
The defendant, through her attorney, filed an answer, special defenses and counterclaim. In essence, the defendant denies that the plaintiff legally owns the property and seeks to have the deed by which the plaintiff purportedly took his interest declared null and void for the reason that the deed was allegedly procured by "fraud, misrepresentation and made under duress." The plaintiff filed a reply denying the defendant's special defenses and the allegations of the counterclaim.
The parties engaged in pretrial discovery, which included a Request for Admissions dated March 17, 2006 that the defendant served upon the plaintiff. Therein, the defendant sought to have the plaintiff admit, among other things, that the quitclaim deed at issue "was procured by misrepresentations you made to the defendant" and "was procured by fraud you perpetrated upon the defendant."
Presently before the court is the defendant's motion for summary judgment on her counterclaim alleging fraudulent misrepresentation. The defendant moves for summary judgment claiming that the plaintiff failed to timely respond to the admission requests and, therefore, the requests have been admitted under our rules of practice. The defendant asserts that, based on those admissions, there are no genuine issues of material fact relating to the defendant's counterclaim and that summary judgment in favor of the defendant should be granted thereon.
The plaintiff opposes the defendant's summary judgment motion. The plaintiff asserts that the motion should be denied because the case is scheduled for trial on a date certain and the defendant failed to obtain the judicial authority's permission before filing the motion as required by Practice Book § 17-44.
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." "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show 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." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "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 . . ." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an 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 [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003).
The plaintiff claims that the court should deny the defendant's summary judgment motion based on the dictates of Practice Book § 17-44, which provides in pertinent part that "the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial."
The defendant's motion for summary judgment is denied for the reason that the defendant failed to comply with Practice Book § CT Page 14405 17-44. The defendant claimed the case for the trial list by way of pleading filed on April 25, 2006. A pretrial conference was held on June 9th and the matter was scheduled at that time for trial on October 23, 2006. The defendant filed her motion for summary judgment on June 19th, which was subsequent to the trial being scheduled. Counsel for the defendant has filed an affidavit in support of the defendant's motion wherein he admits that the case was assigned for trial prior to the filing of the summary judgment motion. The attorney does not state in the affidavit, and it is not otherwise indicated, that the defendant sought and received permission of the court to file the summary judgment motion.
It is well established, as recently set forth in Vargas v. Doe, 96 Conn.App. 399, 412, 900 A.2d 525 (2006), that "[t]he rules of statutory construction apply with equal force to Practice Book rules." (Internal quotation marks omitted). See also State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992). Our Supreme Court "previously has recognized the significance of the [drafter's] choice in electing to choose `shall' or `may' in formulating a . . . directive." Cendant Corp. v. Commissioner of Labor, 276 Conn. 16, 31, 883 A.2d 789 (2005). "Absent an indication to the contrary, the [drafter's] choice of the mandatory term `shall' rather than the permissive term `may' indicates that the . . . directive is mandatory." (Internal quotation marks omitted.) Small v. Going Forward, Inc., 91 Conn.App. 39, 44, 879 A.2d 911, cert. granted on other grounds, 276 Conn. 910, 886 A.2d 423 (2005).
The court concludes that the use of the word shall in the section of the rules of practice at issue is a mandatory directive. The defendant failed to follow the applicable rule in filing her summary judgment motion. The matter is scheduled for trial in a few months. In view of the foregoing, the defendant's motion for summary judgment is denied.
Notwithstanding, the court further denies the defendant's summary judgment motion for the reason that the defendant has failed to meet her obligation to show the absence of any genuine issue of material fact such that she is entitled to judgment on her counterclaim as a matter of law. Although the defendant correctly asserts that the plaintiff's failure to timely respond to the defendant's admission requests cause those requests to be admitted, the relevant requests are of such a conclusory nature that the court cannot conclude that the defendant is entitled to judgment as a matter of law on her counterclaim.
As previously discussed, the defendant's counterclaim alleges that the deed by which the plaintiff claims his interest in the subject property was obtained by fraudulent misrepresentation, and he seeks to have the deed declared to be null and void. In furtherance thereof, the defendant requested that the plaintiff admit that the deed "was procured by misrepresentations you made to the defendant" and "was procured by fraud you perpetrated upon the defendant."
The plaintiff failed to timely file responses to the admission requests, and those requests have been conclusively established for purposes of decision on the present motion. See Practice Book § 13-24(a) in Orenstein v. Old Buckingham Corporation, 205 Conn. 572, 576, 534 A.2d 1172 (1987), the Connecticut Supreme Court cited to the foregoing rule of practice in stating that because the party failed to contest the statements set forth in the request for admissions the "requests were deemed to have been admitted." See also Allied Grocers Cooperative, Inc. v. Caplan, 30 Conn.App. 274, 279, 620 A.2d 165 (1993), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991).
The defendant's counterclaim alleges fraudulent misrepresentation. "The elements of fraudulent misrepresentation are as follows: (1) a false representation must be made as to a statement of fact; (2) the statement was untrue and known by the defendant to be untrue; (3) the statement was made to induce the [party] to act; and (4) the [party] acted on the false representation to [that party's] detriment." Dorsey v. Mancuso, 23 Conn.App. 629, 633, 583 A.2d 646 (1990).
The admission requests relevant to the defendant's counterclaim merely recited that the deed on which the plaintiff bases his claim was obtained by fraudulent misrepresentation. The requests do not seek the admission of any facts that constitute the elements of the defendant's counterclaim alleging fraudulent misrepresentation such that the court could consider whether or not the defendant sustained his burden of establishing the absence of a genuine issue of material fact relating to his counterclaim. The defendant has failed to show the absence of any material fact concerning his counterclaim such that he is entitled to a judgment as a matter of law. Therefore, the defendant's motion for summary judgment is denied for that reason.
In view of the foregoing, the defendant's motion for summary judgment (113.00) is denied.