Starview Ventures v. Acadia Insurance Company (2011)

Ruling on Defendants' Motion For Summary Judgment

At issue is whether the court should grant the defendants' motion for summary judgment on counts six through ten of the operative version of the plaintiff's complaint.   The court denies the motion in its entirety.

I

FACTS

The plaintiff, Starview Ventures, commenced the present action by service of process against defendants Acadia Insurance Company (Acadia), Underwriters at Lloyd's of London (Lloyd's), Matthew Humphrey (Humphrey) and Geoffrey Lyn (Lyn) on April 5, 2006;  defendant Joseph Krar and Associates (Krar) on April 6, 2006;  defendant DNM Autocare, LLC (DNM) on April 11, 2006;  and defendant Dwight Fowlin (Fowlin) on April 12, 2006.   There have been changes in the identities of the defendants since the initiation of the action.   First, on March 28, 2007, the plaintiff moved to cite Wachovia Bank, N.A. into the action and amended the complaint to add two counts against Wachovia.   Second, the plaintiff withdrew the action against Acadia in exchange for $15,000 on April 8, 2009.   Finally, the plaintiff withdrew the action against Lloyd's and Krar in exchange for the assignment of Lloyd's and Krar's third-party causes of action against Webster Bank, N.A. (Webster) and United Adjusters, LLC (United), on May 7, 2009.   The plaintiff's motion to substitute itself as the third-party plaintiff in Lloyd's and Krar's third-party action was granted by the court, Blue, J., on February 9, 2009.   The only defendants involved in the present motion are DNM and Humphrey.   The court will therefore refer to them collectively hereinafter as the defendants.

The operative version of the plaintiff's complaint is the third amended version filed on March 28, 2007.   It alleges the following relevant facts.   On April 13, 2004, a fire damaged property located at 30 Orange Avenue in New Haven.   The property was owned by the plaintiff and leased to DNM. Humphrey, Lyn and Fowlin were DNM's principals at the time of the fire.   The plaintiff had a commercial property insurance policy with Acadia that was in effect at the time of the fire.   DNM also had an insurance policy for the property in effect at the time of the fire, with Lloyd's.   Krar acted as Lloyd's agent or representative.   Acadia refused to pay the plaintiff for its loss.   Lloyd's, however, accepted DNM's claim of loss.   Therefore, both the plaintiff and DNM hired public adjusting firms to assess the cost and extent of the damage.   Biller Associates TA–State, LLC was the plaintiff's public adjuster.   DNM's public adjuster was United.   After both firms' assessments, on or about November 22, 2004, Lloyd's issued a settlement check (check) payable to the plaintiff, DNM and United through Krar to United in the amount of $86,966.72.   The check was drawn from Krar's account with Webster.   On or about November 29, 2004, Humphrey endorsed the check on behalf of DNM, and a representative of United did likewise.   They presented the check to Wachovia on or about November 30, 2004.   Wachovia paid the check without the plaintiff's endorsement.   The plaintiff has yet to receive any amounts from the check, either directly or by virtue of repairs done to the subject property and funded by the check's proceeds.

Counts six, seven, eight, nine and ten of the complaint are against the defendants and sound in breach of contract, negligence, conversion, misappropriation of funds and civil theft under General Statutes § 52–564, respectively.   The defendants filed the present motion for summary judgment, a memorandum of law in support thereof and exhibits on January 7, 2008.   The plaintiff in turn filed an opposition to the motion, a memorandum of law in support thereof and exhibits on May 19, 2008.   The court heard the matter at short calendar on January 31, 2011.   On February 8, 2011, the defendants filed a supplemental memorandum to address the issue of whether a stipulated agreement supersedes a lease.

II

DISCUSSIONASummary Judgment Standard

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing 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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, 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 under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 465, 976 A.2d 23 (2009).  “[B]efore a document may be considered by the court [in connection with] 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 ․ Conn.Code of Evidence § 9–1(a), commentary.   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.”  (Internal quotation marks omitted.)  Id., 466–67;  accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).

In support of the motion, the defendants submit:  a copy of a stipulated agreement into which the parties entered in Housing Court on April 22, 2003 (Exhibit A);  a copy of the parties' lease (Exhibit B);  an uncertified copy of the New Haven police report for the fire (Exhibit C);  and a certified copy of transcript pages from the August 16, 2007 deposition of Gary Richetelli, one of the principals of the plaintiff (Exhibit D).  The plaintiff in turn submits in relevant part:  a copy of the parties' lease (Exhibit A);  a certified copy of transcript pages from the March 9, 2007 deposition of Richetelli (Exhibit C);  and a certified copy of transcript pages from the August 16, 2007 deposition of Richetelli (Exhibit D).

The plaintiff argues that the court should not consider the defendants' submission of the police report because it is not properly authenticated.   The court agrees;  the police report is neither accompanied by an affidavit by a person with personal knowledge of the document's authenticity nor certified.   It will therefore not consider the police report in deciding the present motion.

B

Count Six:  Breach of Contract

Count six alleges that the defendants breached the lease by failing to make repairs to the property and/or reimburse the plaintiff for damage and loss to the property.   The defendants move for summary judgment on count six for the reason that they are entitled to a judgment as a matter of law because there is no genuine issue of material fact about whether they were bound by the lease at the time of the fire.   Specifically, the defendants argue that the lease was superseded by a “stipulated agreement,” (Exhibit A, attached to the defendants' memorandum) which only required them to make payments for rental arrearage and use and occupancy.   The defendants move on the alternate ground that they are entitled to a judgment as a matter of law because there is no genuine issue of material fact about whether the lease required them to make the repairs requested by the plaintiff.   Specifically, the defendants argue that they were required by the lease to make the repairs only if they caused the fire, and the plaintiff cannot submit any evidence to establish that they caused the fire.   The plaintiff opposes the motion by arguing that the defendants' argument regarding the applicability of the lease lacks legal support and that the defendants have failed to meet their initial burden on summary judgment with respect to the cause of the fire.

There are several problems with the defendants' claims at this stage of the proceedings.   As pointed out by the plaintiff in its memorandum of law, the “stipulated agreement” submitted by the defendants is (1) lacking a signature by a Superior Court Judge;  (2) fails to reference the property at issue;  and (3) includes a provision that provides:  “Upon fulfillment of the above conditions the defendant shall be reinstated as tenants in good standing effective 7/1/03 under the terms of the new lease.”   As to this third provision, there is a line drawn through part of the language with initials to the right.   What the above represents, and what the parties intended, and, indeed, whether they even entered into a stipulated agreement is far from clear on the record before the court.   It is also clear that although the “stipulated agreement” provides for a “Final” stay of execution through “June 30, 2003,” that the defendants remained on the premises and continued payments to the plaintiff well after that date, up to and including the day of the fire, April 13, 2004.   The plaintiff also cites a provision of the lease which provides that “termination [of the lease] shall not relieve the Tenant of any obligations under the lease.”   Additionally, the plaintiff asserts that the parties continued, in any event, to continue their relationship under the terms of the lease even if it had been terminated.   It is apparent from all of the above, that questions of fact remain which cannot be resolved on a motion for summary judgment.

“Summary judgment is a matter of issue recognition, not issue resolution.   It is not a substitute for a court trial.   The movant must show entitlement to summary judgment as a matter of law.   The movant has not met its burden of proof ․ The movant must offer enough admissible evidence to show the absence of any material dispute.   The movant has not done so.”   Edwards v. New Haven Register, Superior Court, judicial district of New Haven, Docket No. CV 07 5013568 (November 3, 2009, Licari, J.).   In order for the defendants to invoke the propositions upon which they rely in moving for summary judgment on the plaintiff's breach of contract cause of action, they must provide a factual predicate to demonstrate the occurrence of a summary process action that was decided in favor of the plaintiff.   They have not done so.¹  The court therefore rejects their argument that the stipulated agreement superseded the lease.   It likewise rejects their argument regarding the inapplicability of the lease due to the plaintiff's inability to demonstrate that the defendants were the cause of the fire, for the reasons stated infra with respect to the plaintiff's negligence cause of action.   The court thus concludes that the defendants have not met their initial burden of establishing their entitlement to a judgment as a matter of law.   It accordingly denies their motion for summary judgment on count six of the complaint.

C

Count Seven:  Negligence

Count seven alleges that the defendants caused the fire because they were negligent in maintaining the property and using reasonable care when conducting their automotive repair business on the property.   The defendants move for summary judgment on count seven for the reason that they are entitled to a judgment as a matter of law because there is no genuine issue of material fact about whether evidence exists to establish that the defendants were negligent and that the plaintiff suffered the damages that it now seeks to recover from the defendants.   The plaintiff opposes the motion by arguing that evidence exists to establish at least a genuine issue of material fact about whether the defendants' conduct caused the fire and about whether the damages sought from the defendants are warranted.

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary matter.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).  “The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ [I]f there is room for a reasonable disagreement the question is one to be determined by a trier as a matter of fact ․ Finally ․ [t]he existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ․ This causal connection must be based upon more than conjecture and surmise.”  (Internal quotation marks omitted.)   DeOliveira v. PMG Land Associates, L.P, 105 Conn.App. 369, 378, 939 A.2d 2 (2008).

The defendants rely upon deposition statements made by Richetelli to demonstrate that the plaintiff was unaware of the property's condition several months before and at the time of the fire.   When asked whether he could specify facts to demonstrate that the defendants had not kept the property in good condition, Richetelli replied, “I had not been in the building prior to the fire in quite some time, so, I cannot say.”   Def.'s Ex. D at 26.   He further stated that he did not know whether the plaintiff's property manager had inspected the property three or four months before the fire or whether the property manager had reported any problems with the property at that time.   Def.'s Ex. D at 27–28.   On the issue of the basis for the plaintiff's claimed damages, the defendant directs the court's attention to Richetelli's statements that he neither knew how much money had been spent on repairs to the property nor could locate records that documented such amounts.   Def.'s Ex. D at 38–39.   The defendant argues that Richetelli's inability to specify the amount of money spent on repairs to the property demonstrates that the plaintiff cannot meet its evidentiary burden of proving its claimed damages with reasonable certainty.  Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 476, 590 A.2d 431 (1991).

The plaintiff also relies upon statements made by Richetelli to demonstrate that a genuine issue of material fact exists about whether the defendants were negligent in their conduct of their business and maintenance of the property.   When asked to provide facts to support the plaintiff's negligence cause of action, Richetelli stated that either Humphrey or one of his employees was working on a vehicle when that vehicle caught fire during the April 13, 2004 incident and that someone had been taking apart a fuel line on the property prior to the fire.   Pl.'s Ex. D at 23–24.   When asked about the basis for the repair costs claimed by the plaintiff, Richetelli stated that the plaintiff had relied upon estimates from its public adjuster and the contractor who was hired to make the repairs to the property.   Pl.'s Ex. C at 59.

The court concludes that the plaintiff's evidence, when viewed in the light most favorable to it, raises a genuine issue of material fact about whether the defendants exercised reasonable care in conducting their automotive repair business on the property before or during the time of the fire.   The court further concludes that the plaintiff's evidence raises a genuine issue of material fact about whether the plaintiff will be able to meet the standard articulated in Expressway Associates II. “Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nonetheless provide sufficient evidence for the trier to make a fair and reasonable estimate.”  Falco v. James Peter Associates, Inc., 165 Conn. 442, 445, 335 A.2d 301 (1973).   Contrary to the defendant's argument, Richetelli's inability to specify the amounts spent thus far on the repairs to the property does not render the plaintiff's claimed damages “speculative” and “problematic”;  Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35, 889 A.2d 785 (2006);  given that the plaintiff has specified the quantitative basis on which it relies.

For the foregoing reasons, the court denies the defendants' motion for summary judgment on count seven of the complaint.

D

Count Eight:  ConversionCount Nine:  MisappropriationCount Ten:  Civil Theft

Counts eight through ten allege that the defendants have converted, misappropriated and stolen, per General Statutes § 52–564, the check proceeds to which the plaintiff is entitled by failing to remit the same to the plaintiff.   The defendants move for summary judgment on all three counts for the reason that they are entitled to a judgment as a matter of law because there is no genuine issue of material fact about whether the plaintiff was entitled to the check proceeds at issue.   Specifically, the defendants argue that the basis for the plaintiff's right to the check proceeds is the lease, and the lease was superseded by the stipulated agreement before the time of the fire and therefore the issuance of the check.   The plaintiff objects to the motion by arguing that the defendants have not met their initial burden on summary judgment because their argument regarding the lease as the basis for the plaintiff's right to the check proceeds discounts how the plaintiff is named as a payee on the check and as a mortgagee in the defendants' insurance policy.

“The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights.”  (Emphasis in original;  internal quotation marks omitted.)   Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 43, 761 A.2d 1268 (2000).   In contrast, “[a]s used in this case[,] the term misappropriation means the act of applying another's property/money dishonestly or fraudulently to one's own use.   Black's Law Dictionary [ (8th Ed.2004) ].”  (Emphasis in original.)   Schwartz v. Schwartz, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412199 (December 7, 2007, Melville, J.T.R.).   Civil theft as defined by § 52–564 differs from conversion and misappropriation of funds in that it involves a “person who steals any property of another, or knowingly receives and conceals stolen property.”   A shared element among all three causes of action is the plaintiff's ownership of the property at issue.   In support of the present motion, the defendants direct the court's attention to Richetelli's statement that the plaintiff's right to the check proceeds was “based upon the covenants in the lease pertaining to a tenant's responsibility in maintaining the premises” and a “provision in the lease relative to insurance in the property.”   Def.'s Ex. D at 32.   The defendant thus argues that the plaintiff's right to the check proceeds was lost when the lease was terminated.

The court denies the defendants' motion for summary judgment with respect to counts eight through ten because the defendants have not demonstrated that the lease was terminated at the time of the fire and therefore have not met their initial burden of establishing with evidence that there is no genuine issue of material fact regarding the plaintiff's right to the check proceeds.   Even if the court accepted the defendants' argument regarding the lease, it would still deny the motion with respect to counts eight through ten.   The plaintiff alleges in the complaint that it seeks relief from the defendants on counts eight through ten by virtue of its status as the owner of the property, one of the three check payees and a mortgagee named in the defendants' insurance policy.  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).  “[T]he burden is on [the] defendant to negate each claim as framed by the complaint.”  (Emphasis added;  internal quotation marks omitted.)   Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).   In the present action, a fair and reasonable person could not conclude only one way based on the defendants' evidence, given that the defendants' evidence does not address the plaintiff's claimed right to the check proceeds as the owner of the property, one of three check payees and a mortgagee named in the defendants' insurance policy.   The defendants argue that the termination of the lease resulted in the termination of the plaintiff's mortgagee status under the defendants' insurance policy.   None of the defendants' evidentiary submissions with respect to the present motion, however, clearly establish that the plaintiff's rights under the insurance policy were necessarily based upon the continued existence of the lease.

Genuine issues of material fact thus remain with respect to the plaintiff's right to the check proceeds.   For the foregoing reasons, the defendants are not entitled to a judgment as a matter of law on counts eight through ten of the complaint.

IV

CONCLUSION

For the foregoing reasons, the court denies the defendants' motion for summary judgment in its entirety.

Frechette, J.

FOOTNOTES

FN1. The court comes to this conclusion even in light of the affidavit filed by Humphrey in support of the present motion on December 14, 2010.   Humphrey makes the following averments in the affidavit:  “My company's lease with the Plaintiff was terminated pursuant to a stipulated agreement on June 23, 2003 ․ Despite the absence of a lease agreement my company paid rent pursuant to the stipulated agreement of June 20, 2003 ․ At the time of the fire loss, there was no lease between the Plaintiff and DNM or Matthew Humphrey.”   None of these allegations provide factual specifics for the alleged summary process action, however.   Furthermore, the plaintiff has provided statements made by Richetelli that challenge these averments.   See Pl.'s Ex. C at 24 (“It looks like July of '05 was the last time that we received a rent check from him”);  Pl.'s Ex. C at 25 (answering yes in response to “So, would I be correct when I said that Mr. Humphrey continued to pay his rent after the fire of April 13, 2004 all the way until the end of July 2005?”).   The court also notes that the plaintiff has denied the defendants' special defense of eviction and lease termination to count six..  FN1. The court comes to this conclusion even in light of the affidavit filed by Humphrey in support of the present motion on December 14, 2010.   Humphrey makes the following averments in the affidavit:  “My company's lease with the Plaintiff was terminated pursuant to a stipulated agreement on June 23, 2003 ․ Despite the absence of a lease agreement my company paid rent pursuant to the stipulated agreement of June 20, 2003 ․ At the time of the fire loss, there was no lease between the Plaintiff and DNM or Matthew Humphrey.”   None of these allegations provide factual specifics for the alleged summary process action, however.   Furthermore, the plaintiff has provided statements made by Richetelli that challenge these averments.   See Pl.'s Ex. C at 24 (“It looks like July of '05 was the last time that we received a rent check from him”);  Pl.'s Ex. C at 25 (answering yes in response to “So, would I be correct when I said that Mr. Humphrey continued to pay his rent after the fire of April 13, 2004 all the way until the end of July 2005?”).   The court also notes that the plaintiff has denied the defendants' special defense of eviction and lease termination to count six.

Frechette, Matthew E., J.