Opinion
No. CV 08 5018222
March 25, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #105
On February 22, 2008, the plaintiffs, Asnat Realty, LLC (Asnat) and Evergreen Power, LLC (Evergreen) filed a two-count complaint against the defendants, Joseph M. Regan, Inc. (JMR) and Brendan F. Regan (Regan). According to count one of the plaintiffs' complaint, directed at JMR, on or about March 26, 2004, JMR and Quinnipac Energy (QE) entered into an agreement in which JMR was to remove scrap metal and material and/or remove and sell equipment from buildings located at 510 Grand Avenue, New Haven. JMR and QE were to divide equally the profits from the sale of the scrap metal and material after deducting the costs of removal. JMR was to receive a 30% commission of the proceeds from removal and sale of the equipment and QE was to receive the balance. JMR was to send QE its share of the profits and proceeds from the activities pursuant to the agreement bi-weekly. The plaintiffs allege that JMR removed and sold the scrap metal and equipment, but failed to give any financial accounting and/or pay to QE its share of the profits and proceeds. On or about January 14, 2008, QE assigned its rights under the agreement to the plaintiffs.
Count two of the plaintiffs' complaint, directed at Regan, alleges that Regan "[purported] to act as agent for the principal, Joseph M. Regan Company, Inc. [(JMRC)]," which is a non-existent corporation, when he entered into the agreement with QE. Further, "[a]s agent for a non-existent principal, Regan is personally liable for any default in performance attributable to JMRC under the agreement." Attached to the complaint are: the agreement entered into between JMRC and QE; the assignment agreement between QE, Asnat and Evergreen. Regan filed a motion for summary judgment, as to count two of the complaint, with an attached affidavit and memorandum in support on April 11, 2008. The plaintiffs filed a memorandum in opposition on December 10, 2008.
"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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829(1989). "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.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on `personal knowledge; `(2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).
Regan argues that "there is no genuine dispute of fact that Mr. Regan signed the alleged contract on behalf of defendant, Joseph M. Regan, Inc. and not in his individual capacity." He contends that the misnomer of "Joseph M. Regan Company, Inc." is inconsequential and does not create individual liability. Regan attaches an affidavit in which he asserts: "At no time in any dealings with Quinnipiac Energy, LLC did I represent that I was acting in my personal or individual capacity I did not deal with Quinnipiac Energy, LLC in my individual capacity . . . My signature on the document attached to the Plaintiff's Complaint is made under the name of Joseph M. Regan Company, Inc."
The plaintiffs argue that Regan signed the contract on behalf of the JMRC, which is a non-existent corporation. Further, the plaintiffs contend that "there was no disclosure in the agreement of the representative capacity in which Brendan Regan was signing the document." Thus "[t]he question involved is one of agency, that is: whether or not Brendan Regan was acting as an agent for Joseph M. Regan, Inc., an actual corporation which was not named in the document. If he was acting as such an agent, he cannot be held personally liable on the contract. If his actions were insufficient to constitute valid agency, he may be held personally liable on the contract." The plaintiffs contend that whether Regan was an agent of JMR is a question of material fact and therefore, summary judgment is inappropriate.
The following principles of agency are relevant to the present case. "To avoid personal liability [on a contract], it is the duty of an agent to disclose both the fact that he is acting in a representative capacity and the identity of his principal, since the party with whom he deals [is] not required to discover or to make inquiries to discover these facts." New England Whalers Hockey Club v. Nair, 1 Conn.App. 680, 683, 474 A.2d 810 (1984). "Therefore, where the agent contracts as ostensible principal, regardless of his intention and notwithstanding his lack of personal interest in the consideration, he will be personally liable on the contract as if he were the principal." (Internal quotation marks omitted.) Id. "The existence of an agency relationship is a question of fact for the trier . . . The burden of proving agency is on the party asserting its existence." (Citation omitted.) Id.
Here, Regan signed the contract under the heading "Accepted by Joseph M. Regan Company, Inc.," when the registered name of the corporation is "Joseph M. Regan, Inc." In Seaboard Commercial Corp. v. Leventhal, 120 Conn. 52, 54-55, 178 A. 922 (1935), the Supreme Court of Connecticut stated: "It is the general rule that in case of a misnomer of a corporation in a grant, obligation or written contract, if there is enough expressed to show that there is such an artificial being and to distinguish it from all others, the corporation is sufficiently named although there is a variation of words and syllables." In a later decision, the Court stated: "The view that a minor deviation in the name of a corporation has little legal significance finds support in the holding of this court in Seaboard Commercial Corporation v. Leventhal, 120 Conn. 52, 54-55, 178 A. 922 (1935) . . . When applied to negotiable instruments generally . . . this holding would appear to require a common sense conclusion where a corporate name, deviating from that registered with the secretary of the state but clearly indicating the existence of a corporate principal, appears on the face of an instrument it at least creates an ambiguity in the instrument that raises a question as to the capacity in which the individual whose signature is affixed thereto signed." Wyandot, Inc. v. Gracey Street Popcorn Co., 208 Conn. 248, 255, 544 A.2d 180 (1988).
This court agrees with a Connecticut trial court decision. The Connecticut trial court stated: "The Court adopts the reasoning of the Supreme Court [in Seaboard Commercial Corporation v. Leventhal, supra, 120 Conn. 54-55 and Wyandot, Inc. v. Gracey Street Popcorn Co., supra, 208 Conn. 255] and finds them applicable to the facts in this case. It is therefore the conclusion of the Court that there was a sufficient identification of the principal to negate the plaintiff's argument that the defendant contracted for a nonexistent or fictitious principal or one without legal status or existence." SNET v. Arcangelo, Superior Court, judicial district of New Haven, Docket No. CV 92 0339504 (February 5, 1996, DeMayo, S.T.R.) (16 Conn. L. Rptr 161, 163).
The question of whether a corporation is sufficiently identified in a document, so as to relieve the signor of personal liability, is a question for the trier of fact. See SNET v. Arcangelo, supra, 16 Conn. L. Rptr. 163. The defendant's motion is hereby denied.