W.B. Mason Co., Inc. v. Thermospas, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 103)

On June 30, 2011, the plaintiff, W.B. Mason Company, Inc., filed a one-count complaint against the defendant, Thermospas, Inc. d/b/a Thermospas.   In the complaint, the plaintiff alleged that on or about August 22, 2008 through December 2, 2008, the plaintiff sold and delivered merchandise to the defendant for the balance due of $8,980.36.   The plaintiff further alleged that the defendant owes this amount to the plaintiff and that the defendant has refused and neglected to pay.

On November 1, 2011 the plaintiff filed a motion for summary judgment, an affidavit of debt and an itemized statement of account representing unpaid invoices from August 22, 2008 through December 2, 2008 for the balance of $8,980.36 and a supporting memorandum of law.   The defendant filed its objection to the plaintiff's motion for summary judgment, and a supporting affidavit from Michael Corrigan, Treasurer of Thermospas, Inc. on November 18, 2011.   No memorandum of law in support of the defendant's objection was filed.   The court took the papers on November 21, 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 Emily Wallengren, the treasurer and an agent for the plaintiff company.   In the affidavit, Wallengren attests to the veracity of the information contained in the invoices attached thereto, which states that the defendant owes the plaintiff $8,980.36.   In its objection to the motion for summary judgment, the defendant states that “[t]he defendant received goods and services from the plaintiff” and that “the amount owed for said goods and services received is in dispute.”   The defendant does not submit a memorandum of law in support of its objection to the motion.   The defendant submits the affidavit of Michael Corrigan, the treasurer of Thermospas, Inc. In the affidavit, Corrigan avers that “the defendant received goods and services from the plaintiff” and that “the amount owed for said goods and services received is in dispute.”

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. PosiSeal 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 alleges in its complaint that it sold and delivered merchandise to the defendant on or about August 22, 2008 through December 2, 2008 for the balance due of $8,980.36.   The affidavit of debt submitted in support of the motion for summary judgment contains a sworn statement from the treasurer of W.B. Mason, Inc., Emily Wallengren, attesting to the amount of the debt as shown on the account which is attached to the affidavit of Wallengren.   The defendant acknowledges that it received goods and services from the plaintiff.   Thus, it can warrantably be inferred from the factual allegations and the defendant's acknowledgment, that the defendant received goods and services from the plaintiff, and that there was an express contract, either oral or written, between the plaintiff and the defendant for the sale of goods and services.   The plaintiff, therefore has met its burden that it had an agreement with the defendant for goods and services and the amount owed to the plaintiff is $8,980.36.

As previously mentioned the defendant states that the amount owed is in dispute.   Here, the defendant has merely asserted the existence of a disputed issue and done nothing more.   It has not presented any evidence to refute the plaintiff's evidence that goods and services were sold to the defendant and an outstanding balance for those goods and services sold is $8,980.36 and remains unpaid.  “[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a general issue of material fact together with the evidence disclosing the existence of such an 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 [in support of a motion for summary judgment].”  (Citations omitted;  internal quotation marks omitted.)  Cambridge Mutual Fire Ins. Co. v. Sakon, 132 Conn.App. 370, 374 (2011).   The defendant's statement in its objection and in its affidavit that the amount owed is in dispute is conclusory and “ ․ [does] 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).   The defendant has therefore failed to prove that a genuine issue of fact exists that goods and services were sold to it for which there remains an outstanding balance of $8,980.36 owed to the plaintiff.

Accordingly, for the foregoing reasons, the plaintiff has met its burden demonstrating that there are no genuine issues of material fact as to the defendant owing the plaintiff $8,980.36.   Therefore, the plaintiff is entitled to judgment as a matter of law and the court grants 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.