Export Development Canada v. LLC (2012)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 109)

FACTS

On November 24, 2009, Export Development Canada (plaintiff) filed a one-count complaint against T. Keefe and Son, LLC (defendant).   The plaintiff alleges the following facts.   The plaintiff is a Federal Crown Corporation of the government of Canada, doing business in Ottawa.   The defendant is a limited liability company located in Connecticut.   On January 31, 2007 and May 28, 2007, at the request of the defendant, Metal Perreault, Inc. (plaintiff's assignor) sold and delivered goods to the defendant, the value of which was $189,500.   On February 28, 2008, plaintiff's assignor assigned the defendant's debt of $189,500 to the plaintiff.   The assignment gave the plaintiff all rights to seek full recovery of the debt from the defendant.   After all offsets, credits and payments, there is now a debt due and owing from the defendant to the plaintiff by way of the assignment.   The defendant has failed, refused and neglected to pay the plaintiff this amount.   As a result, the plaintiff demands money damages and costs.

On September 21, 2011, the plaintiff filed a motion for summary judgment.   The plaintiff submitted a memorandum of law in support of the motion.   The defendant did not respond to the plaintiff's motion.   The matter was heard at short calendar on December 19, 2011.

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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “[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).

“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).

The plaintiff argues that the plaintiff's assignor rendered services and sold and delivered goods to the defendant.   It further argues that the defendant failed to pay for such services and goods.   After assignment of the debt to the plaintiff, the plaintiff unsuccessfully attempted to obtain payment for the debt.   As a result, the plaintiff argues that there is no genuine issue as to any material fact and that it is entitled to summary judgment against the defendant as a matter of law.   The plaintiff additionally demands pre-and post-judgment interest, costs and disbursements of this action.   In support of its motion for summary judgment, the plaintiff submits the following evidence:  1) an affidavit of Gerald Perreault;  2) an affidavit of Lauren Vandenberg;  3) a statement, invoices and packing slips between the plaintiff's assignor and the defendant;  and 4) the assignment agreement between the plaintiff's assignor and the plaintiff.   The defendant did not reply to the plaintiff's motion for summary judgment.

The first issue is whether the evidence submitted in support of the plaintiff's motion for summary judgment may be considered by the court.   “[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 the proponent claims it to be.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).

The genuineness of the plaintiff's evidence is supported by the affidavits of Lauren Vandenberg, the plaintiff's recovery services manager.   In her affidavit she avers that she is “familiar with the business records of the plaintiff and the record involved in the transaction.”  (Vandenberg Affidavit ¶ 2.)   She further avers that “[a]ll of the documents annexed as exhibits to [the] affidavit are business records of the plaintiff.”  (Vandenberg Affidavit ¶ 2.)   The exhibits annexed to the affidavit include one statement, three invoices and nine packing slips.   Vandenberg attests that the records were “made in the regular course of business” and that she “relied upon said business records of this account in making [the] affidavit.”  (Vandenberg Affidavit ¶¶ 3–5.)   Because there is a preliminary showing of the genuineness of the exhibits annexed to the affidavits and because there is no objection to the use of this evidence, the court will consider the documents in support of the plaintiff's motion for summary judgment.

In determining whether the plaintiff is entitled to judgment as a matter of law, the plaintiff has the burden of proving that no issue of material fact exists as to 1) the enforceability of the assignment agreement;  2) the defendant's breach of contract;  and 3) the amount of the debt.   In turning to the enforceability of the assignment, “[s]uccession by an assignee to exclusive ownership of all or part of the assignor's rights respecting the subject matter of the assignment, and a corresponding extinguishment of those rights in the assignor, is precisely the effect of a valid assignment.”  Bouchard v. People's Bank, 219 Conn. 465, 473, 594 A.2d 1 (1991).  “In other words, an ‘assignee steps in [the] shoes of [the] assignor and obtains all rights and obligations of [the] assignor ․’ DaimlerChrysler Services North America, LLC v. Commissioner, 274 Conn. 196, 212, 875 A.2d 28 (2005) ․ Moreover, ‘[t]he assignee's burden of proving the existence of the assignment is met by evidence that is satisfactory in character to protect the defendant from another action by the alleged assignor, and which shows that there was a full and complete assignment of the claim from an assignor who was the real party in interest with respect to the claim.’   6A C.J.S. Assignments § 147.”   Cuda & Associates, LLC v. Lumpkin, Superior Court, judicial district of New Haven, Docket No. CV 09 5031901 (November 29, 2011, Woods, J.) [52 Conn. L. Rptr. 916].

In the present case, the assignment protects the defendant from another action by the alleged assignor because the plaintiff's assignor unequivocally assigned its rights in the debt to the plaintiff.   The assignment agreement states:  “[t]he [plaintiff's assignor] hereby absolutely and unconditionally assigns, transfers, conveys and sets over unto [the plaintiff] the entire unencumbered right, title, benefit and ownership interest in the [defendant's debt] and unto [one or more sales contracts between the plaintiff's assignor and the defendant] with respect to the recovery of the [debt].”   This provision also shows a full and complete assignment of the claim from the plaintiff's assignor to the plaintiff.

While a valid assignment appears to exist, the plaintiff fails to allege the existence of a contract between the defendant and the plaintiff's assignor for the sale of goods and services.  “ ‘[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, CT Inc. v. Acquarulo, 38 Conn.App. 772, 775, 663 A.2d 412 (1995).”   Bargain News v. Alby, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. NNH CV 11 6022738 (November 23, 2011, Wilson, J.).

In the present case it cannot be warrantably inferred from the factual allegations in the complaint that there existed an express contract, either oral or written, between the plaintiff's assignor and the defendant for goods and services sold.   Furthermore, the plaintiff does not allege any facts to show conduct between the parties that would demonstrate that the parties entered into an agreement for the good and services allegedly sold.   The complaint merely alleges that 1) “at the request of defendant, plaintiff's assignor sold and delivered goods to defendant, the value of which was $189,500;” and 2) “[a]fter all offsets, credits, and payments, there is now due and owing from the defendant to the plaintiff, by way of the assignment, the sum of $189,500, which sum the defendant has failed, refused, and neglected to pay to the plaintiff.”   In this poorly drafted complaint, neither the legal theory upon which the plaintiff bases this action nor allegations of the existence of conduct between the parties demonstrating the existence of an agreement is alleged.

The plaintiff provides two affidavits, both of which attest to the debt due.   Neither attests to any conduct, however, among the parties which demonstrates the existence of an agreement.   Specifically, Gerald Perreault's affidavit states:  “[I]n 2007, the year in which the amount of $189,500 became due and owing from defendant T. Keefe and Son, LLC to Metal Perreault, which amount was thereafter assigned to plaintiff as aforementioned, Metal Perreault grossed approximately $13000000 across North America ․” Lauren Vandenberg's affidavit similarly avers that the “defendant had an amount due and owing to Metal Perreault, Inc. of $189,500 U.S. Dollars and defendant had failed to make payment of the same.”   The affidavits do not provide any evidentiary proof of the existence of an agreement with the defendant.

The assignment agreement provided by the plaintiff refers to an agreement with the defendant, but this is not sufficient to overcome the plaintiff's burden.   The assignment agreement between the plaintiff's assignor and the plaintiff mentions “one or more sales contracts between the [plaintiff's assignor] and the [defendant].”   There is no indication in the complaint, however, that an agreement was actually entered into with the defendant for the goods and services allegedly rendered.   In addition to the absence of allegations in the complaint of the existence of “one or more sales contracts,” the plaintiff furthermore does not include any evidence of these contracts.   While an existing agreement is mentioned in the assignment agreement, their absence in both the allegations of the complaint and in the evidence submitted by the plaintiff result in the plaintiff's failure to satisfy their burden demonstrating no issue of material fact.

The remaining evidence submitted by the plaintiff includes a statement, three invoices and nine packing slips as evidence of the debt due.   The statement dated October 30, 2007 is on the plaintiff's assignor's letterhead and is addressed to the defendant.   There is a stamp on the statement labeled “EDC,” which seemingly stands for “Export Development Canada,” and is dated January 15, 2008.   This statement lists, inter alia, an amount of $189,500.   There are also three invoices with various dates.   The three invoices are on a different letterhead from the October 30, 2007 statement, but are identifiable as the plaintiff's assignor's.   The invoices are also addressed to the defendant.   The invoices are in the amounts of $36,400, $24,225, $128,875, all totaling $189,500.   Lastly, there are nine packing slips from various dates ranging from February 18, 2007 through May 24, 2007.   These documents range from one to three pages each and are all signed by unknown individuals on a line preceded by the words “Received by.”

The statement, invoices and packing slips are also insufficient evidence to show the existence of a contract.   None of the allegations in the complaint indicate that the defendant agreed to be responsible for itemized goods or charges on these documents.   The affidavits furthermore do not support this proposition as well.   Furthermore, while the packing slips are signed by what appears to be a receiving party, there are no allegations in the complaint or averments in the submitted affidavits as to who signed the packing slips.   While this court has held that an accounts stated cause of action would allow summary judgment to be granted based on sufficient documentation of the amount owed by a debtor to a creditor;  see Oliver Painting v. Vassilowitch, judicial district of New Haven, Docket No. CV 11 6018911 (Oct. 27, 2011, Wilson, J.);   this court will not grant summary judgment with such a large amount of money allegedly owed based on the unsatisfactory allegations and lack thereof in the plaintiff's complaint.   The court will also not presume that the plaintiff intends to allege an accounts stated claim where the complaint does not allow the plaintiff to reasonably infer the existence of a contract.

In the present case, viewing the evidence in the light most favorable to the nonmoving party, the plaintiff has not met its burden of proof because it has not shown the existence of a contract with the defendant for debt allegedly due and owing.   Because the plaintiff has not satisfied its burden of showing there is no issue of material fact, the motion for summary judgment is denied.

CONCLUSION

For the foregoing reasons, the plaintiff's motion for summary judgment is denied.

Wilson, J.

Wilson, Robin L., J.