Connecticut National Bank of Hartford v. Kommit
Connecticut National Bank of Hartford v. Kommit
Opinion of the Court
It is the law of Massachusetts (G. L. c. 137, § 3), Connecticut (Gen. Stat. § 52-553 [I960]), and New Jersey (Stat. Ann. § 2A:40-3 [West 1987]), that a contract
1. The choice of law. There are three States which have an interest in this action: Massachusetts, where the Kommits reside, Connecticut, the bank’s principal place of business, and New Jersey, where the money was withdrawn and used to gamble. The bank argues that, because Richard obtained the money in New Jersey for a purpose there legal, the substantive law of that forum controls under Massachusetts choice-of-law rules. As authority for that proposition, the bank has
In Dicker, the plaintiff sought to recover on a debt incurred in the Bahama Islands for purposes of casino gambling. Applying the lex loci rule, the court looked to the law of the Bahama Islands. As the debt was void under the substantive law of that forum, the court refused to enforce it. From this conclusion, the bank reasons that had the debt been valid under the law of the Bahama Islands, it would have been enforceable in Massachusetts.
We do not view Dicker as dispositive for two reasons. In the first instance, Massachusetts has abandoned the lex loci rule, see Choate, Hall & Stewart v. SCA Servs., Inc., 378 Mass. 535, 540-541 (1979), and we now “determine the choice-of-law question by assessing various choice-influencing considerations.” Bushkin Assocs. v. Raytheon Co., 393 Mass. 622, 631 (1985). Additionally, the question whether Massachusetts would enforce a debt legal where incurred but void under our substantive law was not present in Dicker v. Klein, because, as there noted, 360 Mass, at 737, the law of the Bahama Islands was “in accord with our own public policy.”
Turning to the “various choice-influencing considerations” discussed with Restatement (Second) of Conflict of Laws § 6, in Bushkin Assocs. v. Raytheon Co., 393 Mass, at 634, we consider the fact that this type of debt has been considered so offensive to the public policy of the bank’s principal place of business that Connecticut refused to enforce a gambling contract notwithstanding its validity in the State where the debt was incurred. See Ciampittiello v. Campitello, 134 Conn. 51 (1947). More recently, in Casanova Club v. Bisharat, 189 Conn. 591, 598 (1983), the Connecticut Supreme Court held that, although its Legislature had legalized
Although the bank may have thought itself in compliance with the laws of New Jersey, and even though Richard may have known that his debt would be void under the law of Connecticut, we must also consider the facts that the bank expressly intended Connecticut law to control the use of its credit cards and that the Kommits accepted that condition. See Restatement (Second) of Conflict of Laws § 6(2)(d) and comment g. The bank’s form credit contract conspicuously states: “This agreement and the use of your account is governed by Connecticut Law.”
Had this action been brought in New Jersey, that forum, under its choice-of-law rules, would have applied Connecticut law. Although the transaction occurred in New Jersey, that State would have looked to the law chosen by the parties in
There is no reason for us not to honor the parties’ choice of Connecticut law, especially in view of the fact that Connecticut (and Massachusetts) still provide the bank with ample protection: the debt is void only if the bank knew or should have known that the money was borrowed for gambling. See Casanova Club v. Bisharat, 189 Conn, at 595-597; Conn. Gen. Stat. §§ 52-553 and 52-554 (1960 & Supp. 1991). See also Kemp v. Hammond Hotels, 226 Mass. 409, 415-416 (1917); G. L. c. 137, § 3.
2. The material fact. In opposing summary judgment, the Kommits filed an affidavit from Richard claiming that the bank, by allowing ready access to credit from the automatic teller machine in the center of the casino’s gambling area, knew or should have known that the borrowed money would be used to gamble. Although the bank would have no burden on the issue of its knowledge at trial, it was incumbent upon
We think that the bank’s alleged and unrefuted deliberate allowance of access to credit from the machine in the gambling area of the casino is a circumstance from which the essential, element of the Kommits’ defense to the action, knowledge, could (but need not) be inferred. It makes no difference that at the time of the motion the Kommits did not cite Connecticut law. The point of the matter is that, if the judge decided the motion on the basis of Dicker v. Klein, 360 Mass. 735 (1972), and the substantive law of New Jersey, he was in error, and there is a question of fact open under the law of Connecticut.
Judgment reversed.
See Kemp v. Hammond Hotels, 226 Mass. 409 (1917);. Haller v. Workingmen’s Co-op. Bank, 263 Mass. 37 (1928); G. L. c. 137, § 3.
The bank argues that, because the Kommits did not raise the issue of the applicability of the substantive law of Connecticut in the Superior Court, they cannot assert the contract and its choice-of-law clause on appeal. See Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565 (1976). We consider the clause because the broader issue of choice-of-law was squarely raised. Moreover, the bank’s action rests on the contract, the terms of which it does not dispute. Additionally, the parties’ choice of law is not conclusive. See Morris v. Watsco, Inc., 385 Mass. 672 (1982); Bushkin Assocs. v. Raytheon Co., 393 Mass, at 634. There is the added fact that, in respect to gambling, the law of Connecticut tracks that of Massachusetts, which the Kommits did argue. Finally, the bank availed itself of the opportunity to argue this question of law on appeal. In sum, our consideration of the parties’ choice of law does no violence to the rule that an issue cannot be raised for the first time on appeal. Contrast Milton v. Civil Serv. Commn., 365 Mass. 368, 379 (1974).
Reference
- Full Case Name
- Connecticut National Bank of Hartford v. Richard Kommit & another
- Cited By
- 14 cases
- Status
- Published