Martin Rudnick v. Andrew Piscitelle et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 136)

I

FACTS

The plaintiff, Martin Rudnick, filed a ten-count complaint against the defendants, Andrew Piscitelle (Andrew), Hinda Piscitelle (Hinda), Lauren Piscitelle (Lauren), and Perfect Trigger, LLC (Perfect Trigger), on August 29, 2011.   The plaintiff has now moved for summary judgment as to the causes of action pleaded in counts one, two, and seven as to the defendant Andrew Piscitelle.

In the first seventeen paragraphs of the complaint, the plaintiff alleges the following facts.

On or about January 2009, Andrew Piscitelle registered articles of organization to create a limited liability company, Perfect Trigger, for the purpose of operating a North Branford firearms-retail business.   Andrew approached the plaintiff in “the summer of 2009” and proposed that he become a member of Perfect Trigger by contributing capital and helping to operate the business.   The plaintiff agreed and contributed capital.   Andrew showed the plaintiff a copy of an interim notice of changes to members and managers, which listed the plaintiff as a new Perfect Trigger member, and stated his intent to file the notice with the Secretary of State.   The plaintiff believed Andrew filed the notice informing the state of Connecticut that the plaintiff was a Perfect Trigger member.   Over the course of time, until July 2011, the plaintiff contributed approximately $500,000 in capital and credit to Perfect Trigger.   In late June or early July of 2011, Andrew's license to sell pistols and revolvers was suspended or revoked following his emergency commitment for psychiatric care.   The plaintiff then obtained a license in his own name to allow Perfect Trigger to operate.   Around July 7, 2011, when the plaintiff attempted to enter the premises of Perfect Trigger, Andrew stated that the plaintiff was not a member and demanded that the plaintiff leave before he called the police to report the plaintiff as a trespasser.   Prior to this, the plaintiff had no actual or constructive notice that there was any vote or intent to remove him as a member, or that Andrew disputed his membership.   The plaintiff subsequently learned that he was not listed with the Secretary of State as a member or manager of Perfect Trigger, and that Hinda and Lauren were listed as members.   The plaintiff did not give his consent to disassociate himself from the company or admit Hinda or Lauren as members, and was never put on notice of such acts.   The plaintiff received no distribution or repayment of his membership interest or loans to Perfect Trigger, or any assurance or promissory note regarding such distribution or repayment.   Around July 18, 2011, the Day Publishing Company (Day) served the plaintiff with process, naming him as a defendant, in an action it was bringing to recover unpaid advertising charges it was owed by Perfect Trigger.   The Day did so because the plaintiff was listed a guarantor on a contract between Perfect Trigger and the Day. Andrew affixed the plaintiff's signature on the contract without the plaintiff's knowledge or permission.   The plaintiff has also received notices for other legal actions against Perfect Trigger and expects more legal actions for nonpayment to follow.

In count one, sounding in fraud, the plaintiff incorporates the above allegations and further alleges the following.   From September 2009 to early July 2011, Andrew continuously represented to the plaintiff that the plaintiff was a Perfect Trigger member.   This was materially false because Andrew either did not file an interim notice indicating the plaintiff's membership in Perfect Trigger, or he voted to remove the plaintiff as a member between September 2009 and early July 2011.   Andrew either knew the plaintiff was not a member or represented to him that he was a member with reckless disregard for the truth of the matter.   Andrew falsely represented to the plaintiff that he was a Perfect Trigger member in order to induce him to rely on those statements and to contribute capital, incur costs, and devote time to manage the retail store, all of which the plaintiff did.   As a result, the plaintiff has lost approximately $500,000 and contributed hundreds of hours of uncompensated time.

In count two, sounding in conversion and statutory theft under General Statutes § 52–564, the plaintiff incorporates all the facts alleged in count one and alleges the following additional facts.   Andrew and Perfect Trigger wrongfully took money, property, and services from the plaintiff with the intent to deprive the plaintiff of that property and value and appropriate those things for themselves.   The plaintiff is entitled to immediate possession of all money, property, and service value that Andrew and Perfect Trigger wrongfully detained, and they are liable to him for conversion and statutory theft, including treble damages.

In count seven, sounding in forgery under General Statutes § 52–565, the plaintiff incorporates the seventeen paragraphs alleged as background facts and further alleges that Andrew falsely made, completed, or altered a contract with the Day by forging the plaintiff's signature on it, knowing he did not have the plaintiff's permission to sign the contract on the plaintiff's behalf.   Andrew did so with the intent to defraud or injure the plaintiff, knowing the plaintiff would be liable for any balance under the contract should the signature be believed to be that of the plaintiff.   As a direct and proximate result of the forgery, the plaintiff has been served with a lawsuit by the Day, in which the Day seeks to collect approximately $2,850 from the plaintiff jointly and severally with Andrew and Perfect Trigger.   The plaintiff has also suffered damage to his credit as a result.   Andrew is liable for double damages to the plaintiff for any damages arising from the forgery.

On December 21, 2011, the defendants filed an answer.   Therein, the defendants admit that Perfect Trigger is a limited liability company organized under the laws of the state of Connecticut for which Andrew registered articles of incorporation on or about January 2009, that the plaintiff and other defendants are Connecticut residents over the age of majority, that Andrew told the police the plaintiff was trespassing, and that the plaintiff made investments on behalf of Perfect Trigger.   The defendants deny or claim insufficient knowledge with regard to the other background allegations and the other allegations in counts one, two, and seven.   On July 8, 2013, the plaintiff filed a Notice of Service of Requests for Admission Pursuant to Practice Book § 13–22.   Attached thereto are three certified mail receipts, including one addressed to Andrew Piscitelle bearing a receipt signature, and a United States Postal Service track and confirm receipt.

On October 7, 2013, the plaintiff filed a motion for partial summary judgment as to counts one, two, and seven as to Andrew Piscitelle.   The plaintiff filed an accompanying memorandum of law and an “affidavit of undisputed facts,” to which he attached the following:  (1) the plaintiff's May 28, 2013 request for admissions;  (2) a copy of the above-mentioned certified mail and tracking receipts;  (3) a copy of the above-mentioned Notice of Service of Requests for Admission Pursuant to Practice Book § 13–22;  (4) a certified copy of the interim notice of change of manager/member filed with the Secretary of State, on which the plaintiff is named as a member of Perfect Trigger;  and (5) a copy of a document, filed on July 7, 2011, with the Secretary of State, on which the plaintiff's name, address, and indication that he is a member of Perfect Trigger are stricken through.   Andrew did not file a response to the motion for summary judgment.   The motion was heard at short calendar on October 28, 2013.

II

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 ․ 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.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

“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).

A

Requested Admissions Deemed Admitted

As a preliminary matter, the plaintiff's motion for summary judgment relies in part on Andrew's failure to respond to the plaintiff's request for admissions.  Practice Book § 13–23(a) provides, in relevant part:  “Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13–22(b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.”  Practice Book § 13–22(b) provides:  “(b) The party serving [a request for admission] shall not file it with the court but shall instead file a notice with the court which states that the party has served a request for admission on another party, the name of the party to whom the request has been directed and the date upon which service in accordance with Sections 10–12 through 10–17 was made.”   Additionally, our Appellate Court has stated, “A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment ․ Similarly, a failure to respond timely to a request for admissions means that the matters sought to be answered were conclusively admitted.”  (Citations omitted;  internal quotation marks omitted.)  East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).

In the present case, the plaintiff filed a notice of service of requests for admission on July 8, 2013, indicating that requests for admission were sent to the defendants on May 29, 2013, and received by them on June 1, 2013, as indicated by the attached tracking and signed return receipt.   More than thirty days have passed since the filing of the plaintiff's notice of requests for admissions.   In addition, approximately ninety days have transpired between the filing of the notice of service of requests for admission and the plaintiff's filing of his motion for summary judgment on October 7, 2013.   This is significantly longer than the thirty days that must pass before admissions are deemed admitted under Practice Book § 13–23(a).   Therefore, in considering the plaintiff's motion for summary judgment, the court will deem that the defendants have admitted the matters sought to be answered in the requests for admissions.

In the requests for admission, the plaintiff asked the defendants to admit the following:  (1) “Beginning in or about January 2009 and lasting until July 2011, the plaintiff invested approximately $494,824.63 in Perfect Trigger LLC (the ‘Investment’)”;  (2) “the Investment was composed of capital contributions and loans”;  (3) “the defendant, Andrew Piscatelle, prepared an interim notice in accordance with Connecticut General Statutes § 34–106 indicating that the plaintiff was a member of Perfect Trigger LLC (the ‘Interim Notice’)”;  (4) “the defendant, Andrew Piscatelle, showed the plaintiff the Interim Notice”;  (5) “the defendant, Andrew Piscatelle, represented to the plaintiff that the Interim Notice had been filed with the Secretary of State's office”;  (6) “the defendant, Andrew Piscatelle, never filed the interim notice with the Secretary of State's office”;  (7) “the plaintiff, relying on the Interim Notice, believed that he was a member of Perfect Trigger LLC”;  (8) “the plaintiff made the Investment in Perfect Trigger relying on the representation of the defendant Andrew Piscatelle that the plaintiff was a member of Perfect Trigger LLC”;  (9) “the plaintiff worked without compensation at the Perfect Trigger LLC's retail location without compensation in reliance on the defendant Andrew Piscatelle's representation that the plaintiff was a member of Perfect Trigger LLC”;  (10) “but for the representation of the defendant Andrew Piscatelle that the plaintiff had been made a member of Perfect Trigger LLC, the plaintiff would not have continued to make capital contributions in and loan moneys to Perfect Trigger LLC”;  (11) “on July 7, 2011, the defendant Andrew Piscatelle refused to allow the plaintiff entry to the business premises of Perfect Trigger LLC on the basis that the plaintiff was not a member of Perfect Trigger LLC”;  (12) “the plaintiff was never informed by the defendants that the defendants Hilda Piscatelle or Lauren Piscatelle would be made members in Perfect Trigger LLC”;  (13) “the defendant Andrew Piscatelle signed the plaintiff's name without the permission or knowledge of the plaintiff on a contract with the Day Publishing Company for an advertisement on behalf of Perfect Trigger LLC”;  (14) “The defendant Andrew Piscatelle knowingly lied to the plaintiff when he represented that the plaintiff was a member of Perfect Trigger LLC (the ‘Misrepresentation’)”;  and (15) “as a result of the defendant Andrew Piscatelle's Misrepresentation to the plaintiff, the plaintiff continued to act as if he were a member of Perfect Trigger LLC by continuing to invest in Perfect Trigger LLC, work without compensation on behalf of Perfect Trigger LLC, and obtain a dealer license on behalf of Perfect Trigger LLC.” These fifteen requested admissions are deemed admitted for the purposes of the plaintiff's motion for summary judgment.

B

Fraud

The plaintiff argues that the requests for admission that are deemed admitted and the other evidence submitted with his motion for summary judgment are sufficient to show that there is no genuine issue of material fact that the defendant is liable to the plaintiff for fraud.   According to the plaintiff, Andrew misrepresented to him that he was made a member of Perfect Trigger, including by showing him an interim notice purporting to show that he was a member.   The plaintiff was induced into investing the $494,824.63 in loans and capital by these misrepresentations, and only invested the money in reliance on the defendant's representation that he was a member.   As a result the plaintiff lost $494,824.63.

“The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury ․ [T]he party to whom the false representation was made [must claim] to have relied on that representation and to have suffered harm as a result of the reliance.”  (Internal quotation marks omitted.)  Simms v. Seaman, 308 Conn. 523, 548, 69 A.3d 880 (2013).

In the present case, even if all of the plaintiff's request for admissions are deemed admitted, the plaintiff has failed to establish that there is no genuine issue of material fact regarding the first and third elements of fraud, i.e., that Andrew made a false representation of fact to the plaintiff, and that he did so to induce the plaintiff to act upon it.   As to the first element, the requests for admission that are deemed admitted show that, from 2009 until July 2011, the plaintiff invested approximately $494,824.63 in capital contributions and loans to Perfect Trigger in reliance on Andrew's representation that he was a member of Perfect Trigger;  that the defendant knowingly lied to the plaintiff in representing that he was a member of Perfect Trigger;  that the plaintiff would not have continued to make capital contributions and loans to Perfect Trigger but for Andrew's misrepresentation that he was a member;  and that Andrew, on July 7, 2011, refused to allow the plaintiff to enter Perfect Trigger's business premises on the basis that the plaintiff was not a member of Perfect Trigger.   Additionally, Andrew, in his answer, admits that the plaintiff made investments on behalf of Perfect Trigger.

The plaintiff, however, has also attached as an exhibit a document titled “Interim Notice of Change of Manager/Member,” which bears a stamp indicating it was filed with the Secretary of State on November 13, 2009, and provides evidence that Andrew filed it to provide notice that the plaintiff was added as a member of Perfect Trigger.   In addition, the plaintiff submitted a document filed with the Secretary of State on July 7, 2011 on which the plaintiff's name, member status, and address are stricken through.   Thus, although the admissions that are deemed admitted indicate that Andrew never filed the interim notice with the Secretary of State making the plaintiff a Perfect Trigger member and misrepresented to the plaintiff that he had done so, the other exhibits that the plaintiff submitted show that a material issue of fact exists as to whether the plaintiff was made a member of Perfect Trigger.   Namely, the document titled “Interim Notice of Change of Manager/Member,” which bears what is apparently Andrew's name or signature, indicates that the plaintiff is being added as a member of Perfect Trigger as of November 13, 2009 and that Andrew did file this notice with the Secretary of State making the plaintiff a Perfect Trigger member.   Therefore, the plaintiff has submitted evidence that creates a genuine issue of material fact as to whether Andrew made the misrepresentation of fact upon which the plaintiff relies for his claim of fraud.

Regarding the third element, nowhere in the requests for admission or in any of the other evidence submitted with the motion for summary judgment is there anything indicating what Andrew's purpose was in representing to the plaintiff that the plaintiff was a Perfect Trigger member.   As it is essential for recovery on a fraud claim that the misrepresentation be made to induce the other party to act upon it, and as such an intent has not been admitted or otherwise shown, a genuine issue of material fact remains as to whether Andrew made misrepresentations of fact to the plaintiff to induce him to act.   Therefore, the plaintiff's motion for summary judgment as to his fraud claim in count one as to Andrew is denied.

C

Conversion

The plaintiff argues that the requests for admission that are deemed admitted establish that there is no genuine issue of material fact that the defendant is liable for conversion.   According to the plaintiff, Andrew took control of the plaintiff's $494,824.63 investment by means of a misrepresentation and, therefore, was not authorized to use the plaintiff's investment, and that the plaintiff has lost $494,824.63 as a result of Andrew taking control of his investment.

“The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights ․ Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time;  some unauthorized assumption and exercise of the powers of the owner to his harm.   The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm ․ The term owner is one of general application and includes one having an interest other than the full legal and beneficial title ․ The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right ․ It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof.”   (Citation omitted;  internal quotation marks omitted.)  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770–71, 905 A.2d 623 (2006).

As previously stated in discussing the plaintiff's claim for fraud, there are genuine issues of material fact as to whether the plaintiff was a member of Perfect Trigger at the time he made his investments.   Thus, since a genuine issue of material fact remains regarding whether Andrew had the authority to exercise control over the plaintiff's investment, the court should deny the plaintiff's motion for summary judgment as to his conversion claim in count two against Andrew is denied.

D

Statutory Theft

The plaintiff argues that there is no genuine issue of material fact that Andrew is liable to him for treble damages for statutory theft based on the requests for admission that are deemed admitted.   According to the plaintiff, “it is clear that [Andrew] obtained the moneys of the plaintiff for his own use without any benefit to the plaintiff and with the intent to deprive the plaintiff of the use of his moneys.”   Specifically, “[Andrew] convinced the plaintiff that he was an equal partner in Perfect Trigger LLC, thereby convincing the plaintiff to invest close to half a million dollars in the business.   In return, [Andrew] removed the plaintiff from the business, kept his money for his own use, and never even paid the plaintiff for his labor in the store on behalf of the business.”

General Statutes § 52–564 provides:  “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”  “The elements that the plaintiffs must prove to obtain treble damages under the civil theft statute, § 52–564, are the same as the elements required to prove larceny, pursuant to General Statutes § 53a–119 ․ A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner ․ It must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner ․ The essential cause of action is a wrongful exercise of dominion over personal property of another.”  (Internal quotation marks omitted.)  Kosiorek v. Smigelski, 138 Conn.App. 695, 713, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013).

In the present case, the requests for admission demonstrate that “Andrew Piscatelle knowingly lied to the plaintiff when he represented that the plaintiff was a member of Perfect Trigger” and that “as a result of the defendant Andrew Piscatelle's Misrepresentation to the plaintiff, the plaintiff continued to act as if he were a member of Perfect Trigger LLC by continuing to invest in Perfect Trigger LLC.” As previously discussed, however, the plaintiff has also submitted evidence that raises genuine issues of material fact regarding the plaintiff's membership status.   Moreover, as to the first element, the plaintiff has not submitted any evidence that Andrew's intent in misrepresenting to the plaintiff that he was a Perfect Trigger member was to deprive him of his property or appropriate that property to himself or a third person.   Liability under § 52–564 requires the plaintiff to establish that the defendant intended to deprive another of property or to appropriate the same to himself or a third person.   Therefore, a genuine issue of material fact remains regarding whether Andrew is liable to the plaintiff for statutory theft.   Accordingly, plaintiff's motion for summary judgment as to his claim for statutory theft in count two as to Andrew is denied.

E

Forgery

The plaintiff argues that, in the request for admissions that have been deemed admitted, Andrew has admitted to signing the plaintiff's name on an advertising contract with the Day on behalf of Perfect Trigger without the plaintiff's knowledge or consent.   This, according to the plaintiff, is sufficient to entitle him to summary judgment on his claim for double damages for forgery.

General Statutes § 52–565 provides:  “Any person who falsely makes, alters, forges or counterfeits any document, or knowingly utters, as true, any document falsely made, altered, forged or counterfeited, shall pay double damages to any party injured thereby.”  “The statutory text expressly requires injury to the plaintiff.”  Criscuolo v. Shaheen, 46 Conn.Supp. 53, 60, 736 A.2d 947 (1999) (granting motion to strike forgery count because no actual injury pleaded).

In the requests for admissions that have been deemed admitted, Andrew admits that he “signed the plaintiff's name without the permission or knowledge of the plaintiff on a contract with the Day Publishing Company for an advertisement on behalf of Perfect Trigger LLC.” Although this may be sufficient to show that Andrew forged the plaintiff's name on the contract, it is not sufficient to show that the plaintiff was injured by the forgery.  Section 52–565 requires actual injury to the plaintiff.   The plaintiff alleges in the complaint that the Day seeks to collect approximately $2,850 from him jointly and severally with Andrew and Perfect Trigger and that he has also suffered damage to his credit as a result.   Nevertheless, the plaintiff has not submitted any evidence that demonstrates he has incurred an actual injury.   Thus, a genuine issue of material fact remains regarding Andrew's liability under § 52–565.   Therefore, the plaintiff's motion for summary judgment as to his claim for forgery in count seven against Andrew is denied.

III

CONCLUSION

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

Wilson, J.

Wilson, Robin L., J.