Joyce Hood Jelliff v. Heloisa Young (2014)

Memorandum of Decision on Motion for Summary Judgment (No. 104)

Procedural/Factual Background

This is an action sounding in tortious interference with plaintiff's contract to sell her home to a third party.   Plaintiff and defendant owned adjoining properties on Winfield Street in Norwalk.   Plaintiff's access to Winfield Street was by a 40–foot–wide shared driveway pursuant to an easement running southerly from Winfield Street over the westerly side of defendant's land.   On February 14, 2012 plaintiff listed her property for sale through the Coldwell Banker brokerage office, and a “for sale” sign was posted on the property shortly thereafter.   In the spring of 2012 plaintiff accepted an offer from Peter Small and Maui Jurman (buyers) which resulted in a written Residential Real Estate Sale Agreement (Sale Agreement) being entered into between the plaintiff and the buyers as of May 1, 2012.   The contract called for a closing on June 25, 2012 which was amended to July 13, 2012.   Coldwell Banker was the broker for both the plaintiff and the buyers pursuant to a Dual Agency Disclosure and Consent.

On May 29, 2012, three days after the Sale Agreement became non-contingent, Atty. David Erdos representing the defendant sent a letter to the plaintiff, Mrs. Joyce Hood Jelliff, saying in its entirety:

Please be advised that our firm represents Ms. Heloise Young.   As you are aware, Ms. Young is the owner of 156 Winfield St, Norwalk, Connecticut, which property is contiguous to your property.   Recently our client had her property surveyed by a licensed surveyor and several encroachments were found to exist near the driveway between your property and Ms. Young's property (see yellow highlighted portion of the enclosed copy of the survey showing those encroachments).   While Ms. Young has no immediate intention of asking you to remove these encroachments onto her property, she would like you to currently recognize these encroachments so as to negate any subsequent claims of adverse possession over the property in question.   Please let us know if this is acceptable to you and we will prepare an agreement to be signed by you and Ms. Young and recorded on the land records of the City of Norwalk.   If we do not hear from you on or before June 8, 2012, we will be forced to take other appropriate action to protect our client's interests.   We trust that this will not be necessary.

A copy of Atty. Erdos's letter went to Mr. Robert Wiederlight of Coldwell Banker.¹  The Erdos letter became known to the buyers.   On July 13, 2012, the buyer's lawyer Robert E. Murray, Jr. sent an e-mail letter to Atty. Simon Sumberg, advising that the buyers considered Erdos's letter to be a title defect under the terms of the Sale Agreement, and advised Atty. Sumberg that the plaintiff had thirty days from the contract closing date to cure the defect to avoid termination of the Agreement and refund the buyers' deposit.

The complaint alleges, and the defendant's Memorandum of Law in Support of Summary Judgment (No. 105) does not dispute for purposes of this motion that “the defendant's attorney and the third-party buyer's attorney entered into discussion for a possible new easement agreement, but no final agreement was agreed to or signed.”   On August 14, 2012 Atty. Murray wrote to Atty. Sumberg terminating the Sales Agreement.   The defendant does not dispute for purposes of this agreement the allegation that “The third party buyer failed to close on the purchase of the plaintiff's house in breach of the contract between the plaintiff and the third party buyer.”

The defendant's motion for summary judgment was argued before the undersigned at the short calendar of November 18, 2013.   With the court's permission the plaintiff filed a post-argument memorandum.   That final memorandum was filed on December 2, 2013.

Defendant's Claim of Lack of Standing and Lack of Subject Matter Jurisdiction

In her initial moving papers the defendant raised an issue of lack of subject matter jurisdiction going to plaintiff's standing to maintain this action.   The argument went to the stipulated fact that counsel for the plaintiff's buyer met with counsel for the defendant in an effort to negotiate a new easement agreement, but no agreement was reached.   To the extent that plaintiff may have been claiming against the defendant because the defendant failed to enter into a new agreement with the third-party buyers, defendant claimed that plaintiff lacked standing to complain because plaintiff would have been a total stranger to that agreement if it had been consummated, and “strangers to a transaction who suffer indirect or incidental harm do not have standing to sue.”   Paul S. Yoney, Inc. v. Hospital of St. Raphael, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV90–271006 (July 10, 1992, Katz, J.), 1992 CONN. SUPER.  LEXIS 2105.   7–8 [7 Conn. L. Rptr. 660].   But, at oral argument, counsel for the plaintiff clarified that plaintiff's claim in this case was not at all based on the defendant's failure to enter into a new easement agreement with the buyers, but rather was based on alleged tortious interference with the Sale Agreement between the plaintiff and her buyers.   With that, the defendant did not press the lack of standing issue further and the court considers it to have been abandoned.   The plaintiff clearly had and continues to have standing to sue for tortious interference with the Sale Agreement between herself and her buyers.

Discussion

Defendant's motion for summary judgment was filed on April 5, 2013 unaccompanied by any affidavit of the defendant or of any other person or any documentary evidence of any kind claiming that the complaint “fails to allege any legal duty which this defendant allegedly owes to the plaintiff, the breach of which might provide the bases for a cause of action,” and “Plaintiff fails to set forth a cause of action.”   In her supporting memorandum she repeats that theme:  “Next the plaintiff's action fails as a matter of law since the plaintiff has failed to allege any duty, the breach of which would constitute a cause of action under Connecticut law” (ninth page).  “The facts alleged in the complaint do not describe anything tortious done by the defendant.   There are no facts alleged which would rise to the level of being ‘fraud, misrepresentation, intimidation, or molestation.’  “ (Thirteenth page.)

Although dressed in the clothing of a motion for summary judgment, the defendant's motion is in fact a motion to strike the complaint as insufficient to state a cause of action.   Insufficiency of a complaint to state a claim upon which relief can be granted may be raised by a motion to strike.  Practice Book § 10–39(a)(1).  “The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial.”  Gulack v. Gulack, 30 Conn.App. 305, 309 (1993).  “[F]or the purpose of a motion to strike, the moving party admits all facts well-pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2 (1994).   A motion for summary Judgment, on the other hand, is not decided on the basis of pleaded facts assumed to be true.   It deals with actual facts established.   Summary judgment “shall be rendered forthwith if the pleadings, affidavits or 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.”  Practice Book § 17–49.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.”  Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006).   Defendant Young in this case could not possibly meet—and has not met—that burden for the simple reason that no “proof” was submitted.  “The ‘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 complaint can warrantly be inferred.”  (Emphasis added.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556 (2002).   But Defendant premised her argument on the allegations of the complaint focusing entirely on the claimed “insufficiency.”   Defendant borrowed from the rubric of a motion to strike by assuming for the purposes of this motion the truth of the allegations of the complaint relying on motion to strike precedent at the ninth page of her memorandum:  “To survive a motion to strike, the court must determine that the defendant owed a duty to the [plaintiff].”  (Emphasis added), citing Gordon v. Bridgeport Housing Authority, 208 Conn 161, 171 (1988) “If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant” citing RK Constructors Inc. v. Fusco Corp., supra.   But RK Fusco was not a summary judgment case.   The Supreme Court in that case affirmed the granting of a motion to strike.

The defendant's use of a motion for summary judgment to challenge the legal sufficiency of the plaintiff's complaint under the circumstances of this case is inappropriate.   Since 2005 our Supreme Court has recognized the unfairness to a plaintiff of allowing a motion for summary judgment to be used in lieu of a timely filed motion to strike.   In Larobina v. McDonald, 274 Conn. 394, 401 (2005), the Court said:

[T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the non-moving party.   Because the granting of a defendant's motion for summary judgment puts the plaintiff out of court ․ [while the] granting of a motion to strike allows the plaintiff to replead his or her case 2 ․ With these authorities in mind we conclude that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to support a cause of action and the defendant can establish that the defect could not be cured by repleading.  (Citations and internal quotation marks omitted;  emphasis added.)

The Larobina court did affirm the granting of summary judgment on the ground of legal insufficiency of both counts of the complaint, but only upon finding that the plaintiff had not objected in the Superior Court to use of a motion for summary judgment to challenge legal sufficiency, and finding from a review of the record that “it is clear that the plaintiff had no further facts to allege that would clear the legal defects identified in this complaint.”   Id. 402.

In this case the plaintiff has objected in this court to the use of this motion for summary judgment to challenge legal sufficiency (Supplemental Objection to Defendant's Motion for Summary Judgment, (No. 118) page 3), and at oral argument, and the defendant has not established that the claimed insufficiency could not be cured by repleading.   Accordingly, this motion for summary judgment has been made improperly under the rule of Larobino v. McDonald and consequently must be denied.

The defendant's Supplemental Memorandum and Affidavit in Support of Summary Judgment (No. 117) was filed six days before oral argument and more than seven months after the motion for summary judgment had been filed, accompanied by an affidavit of the defendant Heloisa Young dated November 12, 2013 (the first and only affidavit or other factual evidence submitted by the moving party defendant).   The Supplemental Memorandum reiterates defendant's challenge to the legal sufficiency of the complaint, but also makes two new arguments with reference to the defendant's newly filed affidavit, that (1) the Erdos letter was not signed by the defendant herself but rather was signed by her attorney, David C. Erdos, Esq., and (2) the defendant's affidavit “makes plain that the defendant had no knowledge at that time that the plaintiff knew of a prospective buyer for the plaintiff's house.”

The first argument is untenable.   It is axiomatic that a lawyer's client is bound by the law of agency by the acts and communications of her attorney acting within the scope of the attorney-client engagement.  “ ․ [O]ur adversarial system requires that the client be responsible for acts of the attorney-agent whom the client has freely chosen ․” Link v. Wabash R. Co., 370 U.S. 626, 633–34, 634 n.10, 82 S.Ct. 1386, 8 L.Ed.2d 734, reh.   Denied, 371 U.S. 873, as cited by the Connecticut Supreme Court in Gionfrido Wharf Realty, Inc., 193 Conn. 28, 33 (1984), and Thode v. Thode, 190 Conn. 694, 698 (1983).

The second argument based on the defendant's affidavit filed at the last minute must be disregarded by the court.  “It is a well established principle that arguments cannot be raised for the first time in a reply brief ․ Although the function of an appellant's reply brief is to respond to the arguments and authority presented in an appellee's brief, that function does not include raising an entirely new claim of error.  (Internal citation omitted.)  State v. Jose G., 102 Conn.App. 748, 755 (2007).   The same principle would apply here to motion practice in the Superior Court.

But, even if the Heloisa Young affidavit were to be considered by the court, far from supporting the defendant-moving party's burden to show the absence of any material issue of fact, that affidavit actually brings out an issue of material fact.   Heloisa Young states at ¶ 6 of her affidavit;  “[A]t the time the Erdos letter was written I did not even know that the plaintiff had a buyer interested in the property.”   But the plaintiff Joyce Hood's affidavit in opposition to this motion for summary judgment attests:  “That, the defendant had actual knowledge that I was in the process of selling the property and she was advised by my husband that we were progressing toward a closing.” ³  Construing those conflicting statements most favorably to the plaintiff as the non-moving party as I must, Provencher v. Enfield, 284 Conn. 772, 790–91 (2007), the court finds there is at least one issue of material fact presented—namely the extent of defendant's knowledge, if any, that plaintiff had a buyer for her property when the Erdos letter was sent as that fact goes to the issue of defendant's intent, if any, to interfere with the sale of the plaintiff's property to that buyer, which will have to be resolved by the trier of fact.  “Summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated ․” Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539 (2006).

Conclusion and Order

For the foregoing reasons the court finds that it has subject matter jurisdiction to decide this motion, and orders that the motion for summary judgment is denied.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. Under the Dual Agency Disclosure and Consent Robert Wiederlight was designated to solely represent the seller, the plaintiff herein, Janet Nalegynski was designated to solely represent the buyers..  FN1. Under the Dual Agency Disclosure and Consent Robert Wiederlight was designated to solely represent the seller, the plaintiff herein, Janet Nalegynski was designated to solely represent the buyers.

FN2. Practice Book § 10–44..  FN2. Practice Book § 10–44.

FN3. Practice Book § 17–46 requires that supporting and opposing affidavits shall be made on personal knowledge and “shall set forth such facts as would be admissible in evidence ․” Although the above quoted statement from the Joyce Hood affidavit states what she knew as to a statement made by her husband to the defendant, on close analysis that statement is not hearsay because it is not offered as to the truth of the undisputed asserted facts that the plaintiff had a buyer and was progressing toward a closing before the May 29, 2012 Erdos letter was sent, but rather is submitted to show that her husband had spoken those words to the defendant.  “The purpose for which the statement is offered is crucial;  if it is offered for a purpose other than to establish the truth of the matter asserted, the statement is not hearsay.”  Connecticut Code of Evidence, § 8–1 Commentary § 3, citing State v. Esposito, 223 Conn. 299, 315 (1992)..  FN3. Practice Book § 17–46 requires that supporting and opposing affidavits shall be made on personal knowledge and “shall set forth such facts as would be admissible in evidence ․” Although the above quoted statement from the Joyce Hood affidavit states what she knew as to a statement made by her husband to the defendant, on close analysis that statement is not hearsay because it is not offered as to the truth of the undisputed asserted facts that the plaintiff had a buyer and was progressing toward a closing before the May 29, 2012 Erdos letter was sent, but rather is submitted to show that her husband had spoken those words to the defendant.  “The purpose for which the statement is offered is crucial;  if it is offered for a purpose other than to establish the truth of the matter asserted, the statement is not hearsay.”  Connecticut Code of Evidence, § 8–1 Commentary § 3, citing State v. Esposito, 223 Conn. 299, 315 (1992).

Jennings, Alfred J., J.T.R.