Rigi Brothers v. Anthony Verderame et al (2010)

MEMORANDUM OF DECISION Re Motion for Summary Judgment # 219

PROCEDURAL HISTORY AND FACTS

By amended complaint filed August 12, 2009, the plaintiff, Rigi Brothers, seeks the recovery of monies claimed due for the rental of construction equipment used in the development of an elderly housing project in East Haven, Connecticut.   Specifically, the plaintiff has brought a claim for breach of contract against Anthony Melillo d/b/a Melillo and Sons (Melillo) (count one), unjust enrichment against the defendants Anthony Verderame (count two) and Frank Verderame Construction, Inc. (count three), and conversion as to Melillo (count four).   On January 14, 2010, the defendants Anthony Verderame and Frank Verderame Construction, Inc. filed a motion for summary judgment, memorandum of law, supporting affidavit and documentation as to the unjust enrichment claim in counts two and three (# 219 and 219.50).

On February 1, 2010, the plaintiff filed its objection to the motion along with its memorandum of law, supporting affidavit and documentation (# 222 and 222.50).   Oral argument was heard by the court on June 7, 2010.

As previously found by this court, the following facts are undisputed.   On or about December 17, 1996, Frank Verderame Construction, Inc., a general contractor, entered into a contract with Melillo as a subcontractor to perform site development work on a piece of property located in East Haven, Connecticut.   Melillo then entered into a contract with the plaintiff, a lessor of construction equipment, whereby the plaintiff agreed to rent to Melillo the construction equipment needed for the site development work.   Melillo agreed to pay the plaintiff a monthly fee of $15,000 for the equipment.   Between January 11, 1996 and March 1, 1998, Melillo utilized the equipment for site development work on the property but failed to make rental payments to the plaintiff in the amount of $140,500.¹  The plaintiff claims that by not receiving payment from Melillo for the rental of the construction equipment, and given that the defendants received the benefit of the use of that equipment, the defendants Anthony Verderame and Frank Verderame Construction, Inc. have been unjustly enriched.

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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law ․” (Citations omitted.)  Weiss v. Weiss, 297 Conn. 446 (2010).   The non-movant also “is given the benefit of all favorable inferences that can be drawn.”  (Internal citations omitted.)  Catz v. Rubenstein, 201 Conn. 39, 49, 513 A.2d 98 (1986).

“Once the moving party has presented evidence in support of the motion for summary judgment, 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 ․ “ Byrne v. Burke, 112 Conn.App. 262, 267-68, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).

Each party has submitted various documents in support of their position.   The defendant has submitted documents identified as Exhibits A-D and the plaintiff separate documents identified in its objection as Exhibits A and B. Collectively, these include an affidavit from the principals of the corporations, and/or copies of deposition transcripts, photos, letters, billing statements and checks.   Several of these exhibits are without certification or authentication.   As such, they are hearsay and lack “the necessary indicia of reliability required for a summary judgment determination.”   Torrenti v. Kancir, Superior Court, judicial district of New Haven, Docket No. CV 07 5012366 (December 19, 2007, Holden, J.).   Neither party, however, has objected to any of the evidence presented.   Thus, “any objection is deemed waived and all documents are admissible” within the court's discretion.²  Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. 03 0476708 (June 25, 2008, Cosgrove, J.).

In this case, the court has elected to consider all of the evidence presented by both parties and has done so within the context of a claim for unjust enrichment.   The elements for such a claim are well established.  “Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment.”  (Internal quotation marks omitted.)  Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 194, 880 A.2d 945 (2005).   “Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff.”  Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001).   In reviewing a claim under this theory, it is noted that “[t]he lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit.”  United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn.App. 506, 513, 802 A.2d 901 (2002);  see also David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 408-10, 927 A.2d 832 (2007).

In viewing the evidence most favorably to the plaintiff (non-movant), there remains a genuine issue of material fact as to whether the defendants have been unjustly enriched.   The affidavit submitted by the plaintiff demonstrates the existence of a disputed factual issue as to whether the bill was paid in full and whether the defendants unjustly received a benefit from the use of the equipment.   Although it is very possible the plaintiff's evidence at trial may not be sufficient to meet the preponderance of evidence standard necessary to prevail in that proceeding, for the purposes of the summary judgment motion before the court, it is sufficient to create a genuine issue of material fact and therefore “it becomes necessary ․ where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties ․” Vertex v. Waterbury, 278 Conn. 557, 898 A.2d 178 (2006).   This can best be done at trial.

CONCLUSION

For all the above reasons, viewing the matter in the light most favorable to the plaintiff, there still remains a genuine issue of material fact to be decided on the issue of unjust enrichment.   The defendants' motion for summary judgment is denied.

Shaban, J.

FOOTNOTES

FN1. See the facts as recited in the court's memorandum of decision (Booth, J.) dated October 25, 2001 (# 153) [30 Conn. L. Rptr. 553] relative to the defendants' motion to dismiss plaintiff's action to foreclose a mechanic's lien filed against the property.   That motion was treated by the court as a motion for summary judgment..  FN1. See the facts as recited in the court's memorandum of decision (Booth, J.) dated October 25, 2001 (# 153) [30 Conn. L. Rptr. 553] relative to the defendants' motion to dismiss plaintiff's action to foreclose a mechanic's lien filed against the property.   That motion was treated by the court as a motion for summary judgment.

FN2. “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citation omitted;  internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Uncertified documents may be “admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists ․” Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)..  FN2. “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citation omitted;  internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Uncertified documents may be “admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists ․” Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

Shaban, Dan, J.