Credit Insurance Management Corp. v. Arthur Mastromatteo (2010)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON LIABILITY ONLY AGAINST ARTHUR MASTROMATTEO

FACTS AND PROCEDURE

This motion was originally filed on September 25, 2009, but it was denied for failure to submit an affidavit with the motion.   Plaintiff then filed a renewed motion for summary judgment dated February 1, 2010 which was subsequently denied.   The Court agreed to reargument, defendant filed a memorandum in opposition on April 28, 2010 and a hearing was held on June 28, 2010.   The Court believed that it had ruled on the motion since then, but the file does not reflect such a ruling.

Accordingly, the Court will now set forth its ruling.

ISSUES AND FINDINGS

Are there Issues of Fact Sufficient to Deny the Motion for Summary Judgment?

The short answer is Yes.

1. The plaintiff claims there was an oral agreement between the parties.   The defendant denies this and certainly the terms are not set forth.

2. The defendant in his affidavit dated April 14, 2010 states in paragraph ten “in addition, Credit Insurance Management Corporation was required to collect monthly sales of Trac Guard Vin Etch products and submit them to Terryco International which is apparently the manufacturer of the product.   However, in the written agreement which is dated May of 2000 in paragraph IX subparagraph I “the plaintiff is to render such reports and keep such records and business accounts as the defendant's business may reasonably request each and every month.”   This is far from definitive and is ambiguous.

Additionally, according to the affidavit the plaintiff is to contact dealerships, collect remittances and prepare monthly statements.   However, again there is a contradiction.   In paragraph VI labeled prohibitions subsection v the plaintiff is specifically prohibited from accepting any money on behalf of the defendant's company.

3. According to the defendant's affidavit the plaintiff did not perform the functions claimed by the defendant, and the defendant was forced to perform these functions himself.   Defendant says plaintiff was to render reports and keep records and says plaintiff did not do this and whether or not plaintiff did is an issue of fact.

4. An additional issue of fact is whether there was ever a meeting of the minds concerning the respective duties of each party.   There is an issue of fact as to who had the obligation to perform and who actually performed.   Plaintiff denies defendant asked plaintiff to do anything.   Defendant says plaintiff was to render reports and keep records and says plaintiff did not do this.   Whether or not plaintiff did anything is an issue of fact.

5. The defendant claims that the plaintiff was supposed to perform certain functions, and this is denied by the plaintiff.   This is an issue of fact and will probably require testimony.

6. The original written contract was executed by the owner of the plaintiff who subsequently died and his son took over.   Until proper discovery is done, does the son taking over mean that he owns 51% of the stock?   Otherwise, it would appear that upon the death of the father, the written agreement may have been terminated.

7. There is also an issue of fact as to who did the work and who is entitled to be paid a commission.

8. Was there an oral modification as claimed in 2005, and if so, what was it?

Some of the same issues of fact are prevalent in the claim for quantum meruit.

Finally, a breach of contract does not in itself result in a violation of the Connecticut Unfair Trade Practices Act. The plaintiff would have to show that the actions of the defendant go beyond a simple contract and would have to show that the defendant's actions were immoral, unscrupulous and in violation of common decency.   No such allegations have been made, and, further, even if they were made, testimony would be required which would mean issues of fact would have to be decided.

For the foregoing reasons, too many issues of fact, the motion for summary judgment as to liability only is denied.

Rittenband, JTR

Rittenband, Richard M., J.T.R.