LLC v. Alby, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 104)

FACTS

On August 12, 2011, the plaintiff, Bargain News, LLC, filed a one-count complaint against the defendant, Alby, Inc. In the complaint, the plaintiff alleged that on or about February 25, 2010, through March 31, 2011, the plaintiff provided advertising services to the defendant for the balance due of $6,791.   The plaintiff further alleged that the defendant owes this amount to the plaintiff and the defendant has refused and neglected to pay.

The plaintiff filed a motion for summary judgment, an affidavit of debt and a supporting memorandum of law on October 14, 2011.   The defendant filed its opposition to the plaintiff's motion for summary judgment, a supporting memorandum of law and a supporting affidavit on October 27, 2011.   The court took the papers on this matter on October 31, 2011.

DISCUSSION

“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).   “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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Service, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather determine whether any such issues exist.”  Nolan v. Barkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“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 596 (2008).   Averments contained in affidavits that are merely denials of the allegations in a complaint “are an insufficient basis for the rendition of summary judgment.”  Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995).   A party's conclusory statements, “in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

In its motion for summary judgment, the plaintiff argues that there is no genuine issue of material fact as alleged in the complaint.   In support of this argument, the plaintiff submits the affidavit of Daniel Rindos, the treasurer and an agent for the plaintiff company.   In the affidavit, Rindos attests to the veracity of the information contained in the account summary attached thereto, which states that the defendant owes the plaintiff $6,791.   In its opposition to the motion for summary judgment, the defendant argues that the plaintiff fails to provide properly authenticated documentation in support of the motion for summary judgment and that the plaintiff fails to provide evidence to demonstrate that there is no genuine issue of material fact that the defendant owes the plaintiff the amount stated.   Specifically, the defendant argues that the plaintiff fails to satisfy its burden of showing the nonexistence of any issue of material fact because the plaintiff provides no proof that a contractual relationship existed between the parties.   In support of its opposition, the defendant submits the affidavit of Thomas Alessi, the president of the defendant company.   In the affidavit, Alessi avers that he disputes the amount alleged to be owed by the defendant to the plaintiff and he disputes all allegations that the defendant owed any debt to the plaintiff.

In its memorandum of law in support of its motion for summary judgment, the plaintiff argues that summary judgment may be had in an action which claims an amount certain.   The plaintiff relies on Perri v. Cioffi, 141 Conn. 675, 677 n.1, 109 A.2d 355 (1954), for this proposition.   However, Perri v. Cioffi provides that:  “[S]ummary judgment may be entered ․ in any action to recover a debt or liquidated demand in money, with or without interest, arising (a) on a negotiable instrument, a contract under seal or a recognizance;  (b) on any other contract, express or implied, excepting quasi contracts;  (c) on a judgment for a stated sum;  (d) on a statute where the sum sought to be recovered is a fixed sum or in the nature of a debt;  [or] (e) on a guaranty, whether under seal or not, when the claim against the principal is in respect of a debt or liquidated demand only ․” Id. The plaintiff's characterization of the legal principle stated in Perri v. Cioffi fails to account for the limited circumstances in which summary judgment may be rendered to recover a debt or liquidated demand in money.   Upon reviewing the complaint in light of these limited circumstances, the court fails to see the applicability of subsections (a), (c), (d) and (e).   The complaint provides no facts that could reasonably be construed as referring to a negotiable instrument, a prior judgment, a statute which determines an underlying sum to be recovered, or a guaranty.   Therefore, the plaintiff's allegations can only be reasonably construed as referring to subsection (b), which requires either an express or an implied in fact contract.

“[A]n express contract is one in which parties arrive at their agreement and express it in words, either oral or written.”  (Internal quotation marks omitted.)  Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 738, 901 A.2d 1277 (2006).  “A contract implied in fact, like an express contract, depends on actual agreement.”  (Internal quotation marks omitted.)   Coelho v. Posi–Seal International, Inc., 208 Conn. 106, 111, 544 A.2d 170 (1988).  “A contract implied in fact depends on an actual agreement that there be an obligation created by law that imposes a duty to perform, and it may be inferred from words, actions or conduct ․ It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations.”  Homecare, Inc. v. Acquarulo, 38 Conn.App. 772, 775, 663 A.2d 412 (1995).¹

The plaintiff does not allege that it entered into a contract with the defendant, nor does the plaintiff allege that the parties entered into any form of an agreement regarding the advertising services.   Therefore, it cannot be warrantably be inferred from the factual allegations that there existed an express contract, either oral or written, between the plaintiff and the defendant for advertising services.   Also, the plaintiff does not allege any facts to show conduct between the parties which would demonstrate that the parties entered into an agreement for advertising services.   Thus, it cannot warrantably be inferred from the factual allegations that the conduct of the parties was such to demonstrate that the parties entered into an agreement which created an implied in fact contract.   The plaintiff provides the Rindos affidavit, which does not provide any evidentiary proof of the existence of an agreement between the parties.   In the affidavit, Rindos attests to the fact that the incorporated account summary shows a balance due and he attests to the fact that the amount is justly due to the plaintiff from the defendant.   However, the affidavit is not sufficient proof of an agreement because the account summary does not provide proof that the parties actually entered into an agreement for the plaintiff to provide advertising services to the defendant.   Also, the account summary does not indicate that the defendant agreed to be responsible for the itemized charges set forth in the account summary.   Therefore, the affidavit and the incorporated account summary are insufficient evidentiary proof to demonstrate the existence of a contractual relationship between the plaintiff and the defendant.

Additionally, the legal theory upon which the plaintiff bases this action is not readily discernible because the complaint is poorly drafted.   It is unclear whether the plaintiff attempts to set forth a breach of contract claim, an account stated claim, or some other claim.   Even if the court could reasonably infer from the allegations that the plaintiff is attempting to set forth an account stated claim, the plaintiff has provided insufficient evidence to carry its burden on that claim.   The evidence is insufficient to carry the burden on an account stated claim because the plaintiff has not provided a sufficient number of billing statements sent to the defendant to collect payment.   See Alarmax Distributors, Inc. v. New Canaan Alarm Co., Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 5012255 (January 11, 2011, Adams, J.) (51 Conn. L. Rptr. 287) (court denied plaintiff's motion for summary judgment because the record only showed one billing statement sent to the defendant).

For the foregoing reasons, the plaintiff fails to carry its burden of demonstrating that there are no genuine issues of material fact as to the defendant owing the plaintiff $6,791.   Therefore, the plaintiff is not entitled to judgment as a matter of law and the court denies the plaintiff's motion for summary judgment.

Wilson, J.

FOOTNOTES

FN1. Quasi contracts are implied in law contracts.   See Yale Diagnostic Radiology v. Estate of Fountain, 267 Conn. 351, 359, 838 A.2d 179 (2004).   Therefore, the court need not address the possibility that the plaintiff's allegations raise an implied in law contract because such contracts are excluded by subsection (b)..  FN1. Quasi contracts are implied in law contracts.   See Yale Diagnostic Radiology v. Estate of Fountain, 267 Conn. 351, 359, 838 A.2d 179 (2004).   Therefore, the court need not address the possibility that the plaintiff's allegations raise an implied in law contract because such contracts are excluded by subsection (b).

Wilson, Robin L., J.