Jeffrey Cormier v. Spring Lake Condominium Number Eight Association, Inc. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 117

In the present action, the plaintiff, Jeffrey Cormier, seeks damages and injunctive relief against the defendant, Spring Lake Condominium Number Eight Association, Inc.¹ In his revised complaint dated January 31, 2011, the plaintiff alleges that the defendant caused him injury by preventing him from renting his condominium unit, 891 Sweetheart Path in Southington (the unit).   Through pleadings filed on December 19, 2011, the defendant moves the court for summary judgment as to the plaintiff's revised complaint.   The defendant contends that there are no genuine issues of material fact and it is entitled to judgment as a matter of law.   The plaintiff filed a written objection on February 7, 2012.   The court heard oral argument on February 27, 2012.

DISCUSSION

The law concerning motions for summary judgment is well established.   “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.)  Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).  “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.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).

“The courts hold the [summary judgment] movant to a strict standard.   To satisfy his burden the movant must make a showing that 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.”  (Internal quotation marks omitted.)   Id., 318–19.

In support of its motion, the defendant submitted certified transcripts of depositions of the plaintiff and Wayne Johnson, a member of the defendant's executive board.   The defendant also submitted, among other documents, an affidavit from Israel Feld, the president of the defendant's executive board;  the declarations of Spring Lake Condominium Number Eight;  amendments to the declarations dated July 14 and September 29, 2008;  the plaintiff's father's probate file;  and uncertified correspondence between Johnson and the plaintiff.   In support of his objection, the plaintiff filed his own affidavit.

The following facts are not in dispute.   The plaintiff's father, who was the sole owner of the unit, passed away on or about November 21, 2007.   In his will, the plaintiff's father bequeathed to the plaintiff his ownership in the unit.   The defendant is an association whose membership includes the owners of condominium units in number eight.   Until July 14, 2008, the defendant's declarations allowed owners to rent their units to others, subject to an application process.   On July 14, 2008, the defendant's board approved an amendment to the defendant's declarations which significantly restricted the rental of units.   The board approved a second amendment on September 29, 2008 which contained similar restrictions on rental.   Starting July 14, 2008 and through the present, the parties agree that the amendments would have prohibited the plaintiff from renting his unit.

The parties dispute whether the defendant prevented the plaintiff from renting the unit before July 14, 2008.   The defendant's evidence includes an email from the plaintiff to Johnson, dated November 5, 2007.²  That email reads in relevant part:  “My intentions are to rent 891 Sweetheart Path to someone 55 years old and older.   Please inform my lawyers all that is necessary to stay compliant within the Spring Lake Village Association # 8 Code.” In his deposition, the plaintiff reaffirmed that he notified Johnson, by email, of his intent to rent the unit.   He also testified that the defendant ignored his email.   In his affidavit, the plaintiff also states that “[p]rior to November 21, 2007 I made it known to [the defendant] that upon the death of my father and my inheritance of the [unit], I intended to rent the unit.”

In his affidavit, Feld responds that “[a]t no time did Jeffrey Cormier submit to the Executive Board [of the defendant] the necessary information and request approval of the rental of [the] unit ․”

In his deposition, the plaintiff testified that in a phone call with Johnson, the plaintiff informed Johnson that he intended to rent, and “had somebody to rent,” but Johnson responded that the plaintiff “was not the unit owner and couldn't rent.”   The plaintiff affirms in his affidavit that “during the probation of [his father's] will I was advised by the Association through their agent Wayne Johnson and others that the Association would contest my right to rent the unit in either my personal capacity or in the capacity of administrator of my father's estate.”   In Johnson's deposition, Johnson denied that the phone call occurred.

Finally, the plaintiff swears in his affidavit dated January 26, 2012 that although he “was and remain[s] ready willing and able” to rent the unit since his father passed away, the defendant has “made it not practical to do so based upon the knowledge that the Association would contest the lease, and this fact would necessarily have to be disclosed to any potential party interested in leasing the unit.”   The plaintiff testified at his deposition that the defendant and its agents misled him to believe that he was not the unit owner and, in any event, would not recognize him as the owner, and he therefore could not rent the unit.

The court has reviewed the entire record presented and finds that there remains a genuine issue of material fact in the present case.   The issue is whether the defendant prevented the plaintiff from renting his unit before July 14, 2008.   The court cannot decide this disputed factual issue on a motion for summary judgment.   Accordingly, the defendant's motion is denied.

CONCLUSION

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

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE

FOOTNOTES

FN1. The plaintiff withdrew his claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a.   At oral argument on February 27, 2012, the plaintiff's attorney also withdrew his claim against Israel Feld, the defendant's president..  FN1. The plaintiff withdrew his claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a.   At oral argument on February 27, 2012, the plaintiff's attorney also withdrew his claim against Israel Feld, the defendant's president.

FN2. The defendant filed the emails in uncertified form.   Where uncertified documents are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   In the present case, neither party objected to the court's consideration of the emails..  FN2. The defendant filed the emails in uncertified form.   Where uncertified documents are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   In the present case, neither party objected to the court's consideration of the emails.

Wiese, Peter E., J.