Joseph Brennan v. David Shiling (2013)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 118)

On July 27, 2010, the plaintiff, Joseph W. Brennan, filed a six-count revised complaint (“complaint”) pursuant to a request to revise filed by the defendant, David J. Shiling, the sole member of both Hanks View, LLC and D and J Realty, LLC.¹ Before the court is the defendant's motion for summary judgment as to count one of the complaint.   In count one, the plaintiff alleges that he had an oral agreement with the defendant to provide the defendant personal, professional, and contracting services in connection with a construction project being performed by Hanks View, LLC, and that this contract ran from December 21, 2004 through April 2007.   The plaintiff also alleges that the defendant agreed to personally guarantee that contractual arrangement.   On August 9, 2010, the defendant filed his answer and special defenses, including his seventh special defense that, to the extent an oral agreement between the plaintiff and the defendant existed, it was barred by the statute of frauds, General Statutes § 52–550.

On June 21, 2013, the defendant moved for summary judgment as to count one of the plaintiff's complaint on the ground that count one is barred by the statute of frauds.   The motion is accompanied by a memorandum of law, which claims that it is undisputed that the defendant is being sued as a guarantor.   The motion is also accompanied by the defendant's affidavit.

On July 23, 2013, the plaintiff filed an opposing memorandum accompanied by excerpts from the April 27, 2011, deposition of the plaintiff and excerpts from the February 18, 2011 deposition of the defendant.   The defendant filed a memorandum in reply on July 26, 2013, which is accompanied by additional excerpts from the plaintiff's deposition.

The motion was argued on July 29, 2013.

FACTS

The court finds the following facts are material and undisputed.   The defendant, Shiling, was at all times pertinent to this case the sole member of Hawk's View, LLC. As the sole member of Hawk's View, LLC, Shiling was involved in a condominium project in Norwich, Connecticut.   At some point in time, the plaintiff, Brennan, began performing services in connection with that project.   The defendant never entered into any written agreement or contract with the plaintiff related to the project or any services performed by the plaintiff related to the project.

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).   In ruling on the present motion, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

“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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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, 11, 938 A.2d 576 (2008).  “Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”  (Internal quotation marks omitted.)  Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).

The present motion cannot be granted for several reasons.   First, apart from any of the plaintiff's arguments, it is insufficient on its face.   The motion seeks summary judgment as to count one only on the ground that it is barred by the statute of frauds, § 52–550.²  The defendant's brief in support of the motion and perfunctory affidavit—even taken as true—do not show that count one is barred by the statute of frauds.   That is because count one alleges, at paragraph 3, that the plaintiff and the defendant “entered into an oral contract, wherein the Plaintiff was to provide personal services, professional services and contractor services, commencing on or about December 21, 2004 through April 2007, to the Defendant ․” The next paragraph of the complaint, paragraph 4, alleges, “Defendant, DAVID SHILING, agreed to personally guarantee and undertake this contractual commitment, as set forth in Paragraph 3, with Plaintiff, on behalf of HAWK'S VIEW, LLC F/K/A COVE VIEW ASSOCIATES, LLC and D AND J REALTY, LLC.” The present motion appears to assume that paragraph 4 substantially modifies or limits paragraph 3;  that is, that paragraph 3 does not mean what it says.   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   Count one, considered in the light most favorable to the plaintiff,³ alleges an oral contract for work to be done by the plaintiff.   Count one does not allege an oral promise to answer for the debt, default or miscarriage of another.   The court finds nothing inconsistent between paragraphs 3 and 4 of count one.   Especially when viewed in the light most favorable to the plaintiff, paragraph 4 is no admission that the defendant was not the original debtor under the oral contract alleged in paragraph 3. Rather, paragraph 4 explains the context and purpose of the oral contract alleged in paragraph 3. The gist of paragraphs 3 and 4 is that the defendant entered into the oral contract described in paragraph 3 personally, on behalf of Hawk's View, LLC, of which he was sole member, and another company.   The court finds nothing inconsistent or unusual in a member of a company, with certain responsibilities to the company and interests in its survival and success, in hiring a third party to do certain things for the company on his behalf.

The second reason why the court must deny the present motion is that the court finds there is at least a material question of fact whether the oral contract alleged in count one amounts to a promise by the defendant only to answer for a debt of Hawk's View, LLC, and/or of D and J Realty, LLC, or for a default or miscarriage of one or both of those companies creating liability to the plaintiff.

Third, even if the oral contract alleged in count one were only a promise by the defendant to answer for a debt of Hawk's View, LLC, and/or of D and J Realty, LLC, or for a default or miscarriage of one or both of those companies creating liability to the plaintiff, there is a material question of fact as to whether that promise is a collateral promise barred by the statute of frauds or an original undertaking, which is not.   See, e.g., Kerin Agency, Inc. v. West Haven Painting & Decorating, Inc., 38 Conn.App. 329, 331–32, 660 A.2d 882 (1995) (Section 52–550 does not apply if the promise is an original undertaking, where the obligor undertakes to perform the contract, rather than a collateral one, where the performance by a third party is guaranteed);  Otto Contracting Co. v. S. Schinella & Son, Inc., 179 Conn. 704, 710, 427 A.2d 856 (1980) (a contract that a duty of a third person to the promisee shall be satisfied is not within the Statute of Frauds as a promise to answer for the duty of another if the consideration for the promise is desired by the promisor mainly for his own economic advantage).

CONCLUSION

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

Cole–Chu, J.

FOOTNOTES

FN1. Neither of these two corporate entities is a party to this action..  FN1. Neither of these two corporate entities is a party to this action.

FN2. Section 52–550 provides, in pertinent part:  “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:  ․ (2) against any person upon any special promise to answer for the debt, default or miscarriage of another ․”.  FN2. Section 52–550 provides, in pertinent part:  “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:  ․ (2) against any person upon any special promise to answer for the debt, default or miscarriage of another ․”

FN3. The allegations of count one are less than perfectly clear.   For example, it is not clear whether the actions alleged in paragraphs 5 (“․ SHILING'S, actions, violated Plaintiff's oral contract with the Defendant”) and 6 (“As a result of ․ SHILING'S, actions, Plaintiff suffered ․ damages”) refer to the defendant's actions alleged in paragraph 4 or to some other actions.   The answer to that question is immaterial to the present ruling..  FN3. The allegations of count one are less than perfectly clear.   For example, it is not clear whether the actions alleged in paragraphs 5 (“․ SHILING'S, actions, violated Plaintiff's oral contract with the Defendant”) and 6 (“As a result of ․ SHILING'S, actions, Plaintiff suffered ․ damages”) refer to the defendant's actions alleged in paragraph 4 or to some other actions.   The answer to that question is immaterial to the present ruling.

Cole–Chu, Leeland J., J.