40 Conn. App. 616 | Conn. App. Ct. | 1996
The defendants appeal from the judgment of the trial court rendered after the court granted the plaintiffs motion for summary judgment. The defendants claim that the trial court improperly found that no issue of material fact existed as to the defendants’ special defenses and counterclaim. The defendants argue that issues of material fact existed as to whether (1) the plaintiff failed in its duty to notify the defendants of foreclosure proceedings affecting a collaterally assigned mortgage, (2) such alleged failure constituted a breach of the implied covenant of good faith and fair dealing that existed between the parties, (3) such alleged failure should result in the plaintiffs being equitably estopped from collecting the debt owed by the defendants, and (4) the plaintiff made an election of remedies under General Statutes § 42a-9-505 (2).
The following facts are relevant to a resolution of this appeal. On January 13, 1987, Bank of Boston Connecticut (BBC) loaned $650,000 to Scott Real Estate, Inc. (SRE), pursuant to a demand promissory note (BBC note). The guarantors of the BBC note were James
Between December, 1987, and August, 1988, the prior encumbrancers of the Danbury properties commenced foreclosure proceedings (Danbury foreclosures), and BBC was named as a defendant in those actions because of the outright assignment of the Dana mortgage to BBC. BBC did not notify SRE or the guarantors of the Danbury foreclosures at that time. In September, 1988, SRE and Dana entered into a business venture that resulted in a profit to Dana of approximately $757,000. The profit due Dana was initially received by SRE, and SRE subsequently released the money to Dana on December 1, 1988, despite Dana’s obligations to SRE under the Dana note and SRE’s obligations to BBC under the BBC note. Subsequent to December 1, 1988, SRE learned of the Danbury foreclosures and defaulted on the BBC note. BBC demanded payment on March 4, 1991.
BBC, the original plaintiff in this case,
The defendants claim that the trial court improperly granted the plaintiffs motion for summary judgment because several issues of material fact existed as to the defendants’ special defenses and counterclaim. We do not agree.
“The standard for appellate review of a trial court’s decision to grant a summary judgment motion is well established. Practice Book § 384 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. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Don-nelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its
I
The cornerstone of the defendants’ first and second special defenses and their counterclaim is that the plaintiff had a duty to notify the defendants of the Danbury foreclosures. The defendants posited that if the plaintiff had given notice to the defendants of the foreclosures, then the defendants would not have released the $757,000 profit to Dana, but instead would have remitted that money to the plaintiff in satisfaction of the BBC note. In their first argument on appeal, the defendants assert that a genuine issue of material fact existed as to the plaintiffs duty to notify the defendants of the Danbury foreclosures. The existence of this alleged duty selves as the basis of the defendants’ second and third arguments on appeal that the plaintiff breached its implied covenant of good faith and fair dealing, and that the plaintiff should be equitably estopped from
The defendants claim that the plaintiffs obligation to notify the defendants of the Danbury foreclosures is clearly evidenced in the collateral assignment of the Dana note and mortgage to the plaintiff, and that, therefore, an issue of fact was created as to the duty of notice. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact; Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); [w] here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987). . . . Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994). We regard this case to present such definitive contract language.
“It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties. Id.; Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990); Powel v. Burke, 178 Conn. 384, 387, 423 A.2d 97 (1979). When the intention conveyed by the terms of an agreement is clear and unambiguous, there is no room for construction. Gino’s Pizza, of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984). [A] court cannot import into [an] agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms. Hatcho Corp. v. Della
In ruling on the plaintiffs motion for summary judgment, the trial court determined as a matter of law that the BBC loan documents did not create an obligation on the part of the plaintiff to notify the defendants of foreclosure proceedings relating to the Danbury properties.
Thus, because the documents constituting the loan agreement between the parties did not create an obligation on the part of the plaintiff to give notice to the defendants of foreclosure proceedings affecting the Danbuiy properties, we conclude that the trial court properly determined that the plaintiff was entitled to judgment as a matter of law. Consequently, the defendants’ first three arguments on appeal, which are based on the claimed existence of a material issue of fact as to whether the plaintiff had the obligation to give notice, are without merit because the plaintiff had no such obligation.
II
In their third special defense, the defendants claimed that the plaintiff should be deemed to have elected to proceed exclusively against the obligors of the Dana note and mortgage, thereby releasing the defendants from their obligations to the plaintiff under the BBC note. The defendants’ final argument on appeal is that such a defense may be raised pursuant to § 42a-9-505 (2),
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 42a-9-505 (2) provides: “In any other case involving consumer goods or any other collateral a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor if he has not signed after default a statement renouncing or modifying his rights under this subsection. In the case of consumer goods no other notice need be given. In other cases notice shall be sent to any other secured party from whom the secured party has received, before sending his notice to the debtor or before the debtor’s renunciation of his rights, written notice of a claim of an interest in the collateral. If the secured party receives objection in writing from a person entitled to receive notification within twenty-one days after the notice was sent, the secured party must dispose of the collateral under section 42a-9-504. In the absence of such written objection the secured party may retain the collateral in satisfaction of the debtor’s obligation.”
Subsequent to the filing of the appeal, WHBB Real Estate Limited Partnership purchased the BBC note, and is now the substituted plaintiff and the appellee in this action.
The trial court stated: “If [the defendants] wanted notice of any foreclosure, [they] should have negotiated that right with the [plaintiff] at the time of the assignment. Lacking that agreement, there was no legal requirement that the [plaintiff] notify the defendant of the foreclosure of the [Dan-bury] properties.”
The collateral assignment contains the following pertinent language: “That upon default by Scott or any guarantor of the note described in Schedule ‘A’, [the BBC note] Lubus and Scott agree that the [BBC] shall be and become the absolute owner of the collateral, upon ten (10) days’ written notice to their attorney ... or to either of them and that the [BBC] may, upon said default and at the same time as said notice is given to Lubus and Scott or thereafter at the [BBC’s] option, give notice to the makers of said note described in Schedule ‘B’, [the Dana note] that the [BBC] has become the absolute owner of the collateral, and that the [BBC] may take such other action as it may deem necessary or desirable to protect its interest in the collateral.”
See footnote 1.
See footnote 4.