Opinion
CV165015844S
10-30-2017
Ridgefield Waterside Motors, LLC v. Alison Borg et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [#159]
Irene P. Jacobs, J.
FACTS
The events which form the basis of the allegations in the complaint and counterclaims of this action began on June 17, 2016 when, after receiving an airbag safety recall notice, the defendants contacted the plaintiff Ridgefield Motors to perform the recall repair on their car. Pursuant to a contract signed by the plaintiff and the defendant Allison Borg, the plaintiff gave the defendants a loaner vehicle while it performed the repair. After notifying the defendants that it had completed the recall repair on their car, the plaintiff attempted to retrieve the loaner vehicle from the defendants. The defendants refused to return the loaner vehicle to the plaintiff, and the plaintiff filed the current action.
In its August 16, 2016 complaint [#107], the plaintiff seeks replevin (count one) and alleges conversion (count 2), statutory theft, (count 3) as against defendants Alison Borg and John Borg and breach of contract against defendant Alison Borg (count 4). Each of the two defendants filed a seven-count counterclaim [#123, 129], alleging the plaintiff's anticipatory breach of contract, breach of contract, private nuisance, invasion of privacy, trespass, negligence, and intentional infliction of emotional distress.
On May 15, 2017, the plaintiff filed the current motion for summary judgment on all counts of the complaint and a memorandum of law [#159], affidavits [#160, #161] and exhibits in support of its motion. Responses to the plaintiff's motion were filed on May 18, 2017 by the defendant John Borg [#163] and on May 24, 2017 by the defendant Alison Borg [#167]. On May 26, 2017, the plaintiff filed a second memorandum of law in support of its motion for summary judgment [#168]. On June 30, 2016, the defendants filed affidavits [#197, #199] and exhibits [#198, #200] in support of their opposition to the plaintiff s motion for summary judgment. The motion was heard by the court at short calendar on July 3, 2017.
The following facts, supported by the sworn affidavits and evidence submitted by both parties, are found by the court. On June 17, 2016, the plaintiff picked up the defendants' automobile from property located at 5 Sterling Drive, Westport, Connecticut, to perform a recall repair for the vehicle's airbag. (Casey Affidavit, pp. 1-2, Ex. A; Defendants' Affidavits Ex. 11.) At the same time, the plaintiff loaned the defendants a vehicle (loaner vehicle) via a rental agreement (the Agreement) signed by defendant Alison. (Casey Affidavit, p. 2, Ex. B; Defendants' Affidavits Ex. 11.) When the plaintiff attempted to return the defendants' vehicle, the defendants refused to accept their vehicle and return the loaner vehicle. The defendants stated that the reason for their refusal was because there was a crack in a piece of the dashboard trim. (Casey Affidavit, Ex. D; Defendants' Affidavits, Ex. 12.) Between June 17 and July 1, the plaintiff attempted to find a suitable replacement for the trim, but could not find a perfect match. (Casey Affidavit, p. 3, Ex. D; Defendants' Affidavits, Ex. 12.) The defendants indicated that they would not accept their vehicle unless the trim was a perfect match. (Id. ) In a telephone conversation with the defendant John Borg on or around July 6, 2016, Daniel Casey, an employee of the plaintiff, offered to pay $100.00 as compensation for the imperfect match of the trim and requested that the defendants return the loaner vehicle. (Casey Affidavit, p. 3-4, Ex. D; Defendants' Ex. 12.) On July 7, 2016, Casey returned the defendants' vehicle to the 5 Sterling Drive property but retained the keys. (Casey Affidavit, p. 4; Defendants' Affidavits, Ex. 2.) Casey attempted to contact the defendants at least twice after returning their vehicle, but did not receive a response from the defendants. (Id. )
In a letter dated July 14, 2016, Casey requested the defendants contact him to discuss return of the loaner vehicle, the return of the defendants' keys, and informed the defendants that the plaintiff would report the loaner vehicle as stolen if the defendants did not immediately contact him. (Casey Affidavit, pp. 4-5, Ex. C; Defendants' Affidavits, Ex. 2.) On July 19, 2016, Casey went to the 5 Sterling Drive property to retrieve the loaner vehicle and also had in his possession the keys to the defendants' vehicle and a $100 check for the defendants. (Casey Affidavit, p. 5; Defendant's Affidavits, Ex. 2.) Casey saw the loaner vehicle parked in a rear driveway, and entered the loaner vehicle in an attempt to retrieve it. (Id. ) Defendant John saw Casey and asked him to the leave the property. (Id. ) Casey exited the vehicle, handed defendant John the keys to the defendants' vehicle, a $100 check, and left the property. (Id. ) Following this interaction, Casey sent defendant John an e-mail on July 19, 2016 (July 19 e-mail), and again requested the return of the loaner vehicle. (Casey Affidavit, p. 6, Ex. F; Defendants' Affidavits, Ex. 13.) On July 21, 2016, defendant John replied to Casey's July 19 e-mail. (Id. ) In his response, defendant John demanded payment of $500 and stated that " [he had] been advised to not touch the loaner until payment for damages has been received . . . and a sign off given by BMW of Ridgefield that there are no damages caused by [the defendants] and no debt due." (Id. ) On July 21, 2016, Casey texted, called, and left a voicemail on the defendants' phone in order to inform them that the plaintiff would provide a $500 cashier's check. (Casey Affidavit, p. 7, Ex. H; Defendants' Affidavits, Exs. 14-15.) On August 8, 2016, pursuant to the prejudgment remedy of replevin ordered by this court[#106], the plaintiff recovered the loaner vehicle.
DISCUSSION
Practice Book § 17-44 permits a party to file a motion for summary judgment as of right by the date specified in the operative case scheduling order for the filing of dispositive motions. In the current case, the February 1, 2017 scheduling order allowed dispositive motions to be filed up until May 17, 2017 [#148]. The plaintiff's current motion for summary judgment was filed on May 15, 2017. As such, the motion is in compliance with Practice Book § 17-44.
The primary purpose of a motion for summary judgment is to obtain judgment in a case where there are no material facts in dispute. The summary judgment procedure " is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 567 A.2d 829 (1989). A motion for summary judgment shall be granted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id., 279; Practice Book § 17-49. When determining whether a genuine issue as to any material fact exists, the evidence must be viewed in the light most favorable to the nonmoving party. Brooks v. Sweeney, 299 Conn. 196, 9 A.3d 347 (2010). The test is whether the moving party would be entitled to a directed verdict on the same facts. (Internal quotation marks omitted.) Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722, 924 A.2d 816 (2007).
" [T]he 'genuine issue' aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 260 A.2d 596 (1969). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 791 A.2d 489 (2002).
" We emphasize the important point, that [a]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with evidence disclosing the existence of such an 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 . . ." (Internal quotation marks omitted.) Id., 550. Furthermore, a nonmoving party's conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment. Id., 557. " We acknowledge that [o]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion . . . A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome . . . summary judgment." (Internal quotation marks omitted.) Walker v. Housing Authority, 148 Conn.App. 591, 85 A.3d 1230 (2014).
Count One: Replevin
" In Connecticut, replevin proceedings are governed by statute rather than by the rules that apply to common-law actions of replevin." Cornelio v. Stamford Hospital, 246 Conn. 45, 717 A.2d 140 (1998). General Statutes § 52-515 states: " The action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention." In order to prevail on a claim of replevin under § 52-515, the plaintiff must establish that (1) the property at issue is a good or chattel within the meaning of § 52-515; (2) the plaintiff has a property interest in the property; (3) the plaintiff has a right to immediate possession of the property; and (4) the defendant has wrongfully detained the property. See Cornelio v. Stamford Hospital, supra, 246 Conn. 49.
As to the first element of replevin, Connecticut courts have considered cars or vehicles a good or chattel under General Statutes § 52-515. See Staub v. Anderson, 152 Conn. 694, 211 A.2d 691 (1965); GMAC, Inc. v. Vogel, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-5029207-S, (June 17, 2010, Levin, J.). There is no dispute between the parties that the good or chattel at issue is a car or vehicle. The first element of statutory replevin is satisfied. Nor is there a dispute that the plaintiff is the owner of the loaner vehicle, satisfying the second statutory element of replevin.
To satisfy the third element of statutory replevin, the plaintiff must prove that it has a right to immediate possession of the property. The Agreement states: " I agree to return this loaner vehicle within 8 hrs. after my car is completed" and that " [The plaintiff] may repossess the Vehicle at Your expense without notice to You, if the Vehicle is abandoned or used in violation of law or this Agreement." (Casey Affidavit, Ex. B; Defendants' Affidavits, Ex. 11.) The work to be performed on the defendants' vehicle was the recall repair; there is no evidence that the plaintiff failed to perform the recall repair on the defendants' vehicle. In their separate counterclaims [#123, #129], the defendants allege that the plaintiff failed to perform the contract obligations of providing a no-cost repair within three hours (counterclaims, ¶ 10). There is no allegation that the plaintiff failed to repair the airbag. The court finds that, pursuant to the Agreement, the plaintiff had the right to possession of the loaner vehicle within 8 hours of its completion of the recall repair, satisfying the third element of statutory replevin.
Evidence submitted by the parties shows that the defendants refused to return the loaner vehicle because they noticed a crack on the trim of the dashboard in their vehicle. Evidence submitted by the parties shows that the defendants did not return the loaner vehicle within eight hours of the completion of the repairs, or within eight hours after Casey requested the return of the loaner vehicle. (Casey Affidavit, pp. 4-7, Exs. C, F; Defendants' Affidavits, Exs. 2, 14-15.) The evidence also demonstrates that the defendants avoided interacting with the defendant numerous times, despite repeated attempts by Casey to request the return of the loaner vehicle. (Id. ) The court finds that the defendants wrongfully detained the loaner car, property owned by the plaintiff, satisfying the fourth element of statutory replevin.
The defendants have submitted no affidavits or evidence that refutes any part of the prima facie case for replevin. In fact, evidence submitted by both parties undisputedly establishes that the defendants had possession of the loaner vehicle on their property after the plaintiff requested its return. Further, both defendants state in their individual affidavits: " The Plaintiff . . . did attempt on multiple instances to further direct its agents to trespass and retrieve the Loaner Vehicle from 5 Sterling Drive . . . [and] [t]he Plaintiff . . . repeatedly contacted the Westport and Ridgefield Police Departments . . . for alleged theft of the Loaner Vehicle." (Alison Affidavit #199, p. 9; John Affidavit #197, p. 9.) Nothing submitted by the defendants raises an issue of material fact about whether the plaintiff owned the vehicle, the plaintiff was entitled to immediate repossession of its property, or the defendants retained possession of the loaner vehicle contrary to repeated requests for its return. Summary judgment is granted with respect to count one.
Count Two: Conversion
" Conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another to the exclusion of the owner's rights." Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 905 A.2d 623 (2006). To prove conversion, a plaintiff must establish that: (1) the material at issue belonged to the plaintiff; (2) the defendant wrongfully deprived the plaintiff of that material for an indefinite period of time; (3) that the defendant's conduct was unauthorized; and (4) that the defendant's conduct harmed the plaintiff. See News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005).
As discussed above, there is no dispute of material fact that the plaintiff owned the loaner vehicle, and that the defendant wrongfully deprived the plaintiff of the loaner vehicle for an extended period of time. As such, the first element of the tort of conversion has been established.
On June 17, 2016, the plaintiff notified the defendants that the recall repair work had been completed, but the defendants did not return the loaner vehicle. Without admitting that it had cracked the defendants' vehicle's dashboard, the plaintiff attempted to repair it. On July 7, 2016, the plaintiff returned the defendants' vehicle to the 5 Sterling Drive property. (Casey Affidavit pp. 11-12; Defendants' Affidavits, Exs. 2, 12.) Casey then made at least two attempts to request return of the loaner vehicle from the defendants. (Casey Affidavit, p. 4; Defendants' Affidavits, Ex. 2.) The defendants stated that they would not surrender the vehicle until the trim perfectly matched, or until the defendants were adequately compensated. (Casey Affidavit, Ex. D, Defendants' Affidavits, Ex. 12.) In his July 21, 2016 e-mail (July 21 e-mail), defendant John indicated that the defendants required " $500 in cash, cashier check or money order" in order to resolve this matter. (Casey Affidavit, Ex. F; Defendants' Affidavit, Ex. 13.) Later that day, Casey offered the defendants a $500 cashier's check. (Casey Affidavit, p. 7, Ex. H; Defendants' Affidavits, Exs. 14-15.) However, the defendants did not respond to Casey, and the plaintiff did not recover the loaner vehicle until it obtained a court order on August 8, 2016. (Casey Affidavit, p. 7, Ex. H.; Defendants' Affidavits, Exs. 14-15; Order #106.) The court finds that, having shown that the defendants wrongfully deprived the plaintiff of its property until ordered by the court to relinquish it, the plaintiff has established the second element of conversion.
The court has already found that the evidence submitted by the parties indicates that the plaintiff had an immediate right to the loaner vehicle, and that the plaintiff did not authorize the defendants to maintain possession of the loaner vehicle after the return of the defendants' vehicle. The plaintiff made repeated requests for the loaner vehicle's return, and made one attempt to physically retrieve the loaner vehicle by entering the 5 Sterling Drive property. (Casey Affidavit, pp. 4-7, Exs. C, F, H; Defendants' Affidavits, Exs. 2, 13-15.) The defendants responded that " [the plaintiff's] request . . . to 'secure' [its] loaner is denied, particularly if it means [the defendants] need to touch the loaner car." (Casey Affidavit Ex. F; Defendants' Affidavits, Ex. 13.) The defendants have offered no evidence to show that their refusal to return the loaner vehicle was authorized by the Agreement. The court finds that the plaintiff has established the third element of conversion.
The Agreement, submitted as evidence by both parties, contains a section that provides for late fees of $52 per day for a late return of the loaner vehicle. (Casey Affidavit, Ex. B; Defendants' Affidavits, Ex. 11.) The defendants kept the loaner vehicle for approximately fifty days after the plaintiff notified them that the recall repair had been completed, which included thirty days after the plaintiff returned the defendants' vehicle to them. The plaintiff purchased a new set of keys for the loaner vehicle at a cost of $476.86. (Casey Affidavit, p. 7, Ex. I; Defendants' Affidavits, Ex. 24.) The court finds that there is no genuine issue of material fact that the plaintiff sustained monetary damages as a result of the defendants' actions. Summary judgment is granted as to Count Two.
Count Three: Statutory Theft
" Statutory theft under [General Statutes] § 52-564 is synonymous with larceny [as provided in] General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with the 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 [the] owner . . . Statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Citations omitted, internal quotation marks omitted.) Id., 544. " [T]he word intent . . . denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it." Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985).
In Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988), the Supreme Court analyzed whether the trial court had properly granted summary judgment when it established the defendant's intent as a matter of law. The Court restated that " [i]t is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences the parties seek to have drawn deal with questions of motive, intent, subjective feelings and reactions . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted, internal question marks omitted.) Id., 505. " A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion." (Internal quotation marks omitted.) Curran v. Kroll, 303 Conn. 845, 37 A.3d 700 (2012).
As the court has already determined that there are no genuine issues of material fact with regard to the issue of conversion, it now turns its attention to the question of the defendants' intent. Evidence submitted by both parties demonstrates that there is no genuine issue of material fact that the defendants intended to deprive the plaintiff of its property. Casey made at least two requests for the defendants to return the loaner vehicle after the defendants' vehicle was delivered to the 5 Sterling Drive property. (Casey Affidavit, p. 4; Defendants' Affidavits, Ex. 2.) Defendant John asked Casey to leave the property when Casey was inside the loaner vehicle and attempting to retrieve it. (Casey Affidavit p. 16-19; Defendants' Affidavits, Ex. 2.) On July 16, 2017, Officer DeFalco, the officer involved with the case, wrote in his report: " I have tried numerous times to make contact with [the defendants] regarding the return of the loaner vehicle, and the key for their personal vehicle. Mr. or Mrs. Borg have yet to make contact with Ridgefield BMW or the Ridgefield Police Department to make arrangements to settle the matter." (Defendants' Affidavits, Ex. 2.) Casey then states in his affidavit that he attempted to reach the defendants via telephone on July 19, 2016, and July 20, 2016. (Casey Affidavit, p. 7.) Also on July 19, 2016, Casey e-mailed and requested the return of the loaner vehicle. (Casey Affidavit, Ex. E, F; Defendants' Affidavits, Ex. 13.) In his July 21 e-mail, defendant John stated that " [he was] advised to not touch the loaner until payment for damages has been received by us and a sign off given by [the plaintiff] that there are no damages caused by us and no debt due." (Id. ) Further, defendant John requested " approximately $500 in cash, cashier check or money order only; the cost to make right the damage done to our vehicle by your 'repair' of our recalled airbag." (Id. ) Finally, the e-mail states that the defendants would call the Westport Police and " arrest anyone on [the defendants'] property without permission. Thus, your request to secure your loaner is denied, particularly if it means we need to touch the loaner car." (Id. ) Despite the repeated demands for the return of its property, the plaintiff did not retain possession of the loaner vehicle until the prejudgment remedy of replevin ordered on August 8, 2016 (#106).
The evidence submitted by both parties contains the July 21 e-mail, where the defendants plainly assert that they will maintain possession of the plaintiff's loaner vehicle as a means of resolving a separate dispute with the plaintiff, specifically the issue of the broken interior trim. The court concludes from the evidence submitted by both parties that the defendants did not have the intent to return the car as required by the Agreement signed by defendant Alison. Summary judgment is granted as to Count Three.
Count Four: Breach of Contract against Defendant Alison
" [I]f the contract is unambiguous, its interpretation and application is a question of law for the court, permitting the court to resolve a breach of contract claim on summary judgment if there is no genuine dispute of material fact . . . If the contract is unambiguous, therefore, our inquiry into its meaning ends . . ." (Citiation omitted.) Salce v. Wolczek, 314 Conn. 675, 104 A.3d 694 (2014). " The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Ibar v. Stratek Plastic Ltd., 145 Conn.App. 401, 76 A.3d 202, cert. denied, 310 Conn. 938, 79 A.3d 891 (2013).
Both parties submitted identical copies of the Agreement, an addendum to the Agreement, and copies of defendant Alison's driver's license. (Casey Affidavit, Ex. B; Defendants' Affidavits, Ex. 11.) Defendant Alison's signature is present on both the Agreement and addendum. (Id. ) Defendant Alison has submitted no evidence that raises an issue of material fact as to the ambiguity of the contract. The terms of the Agreement provide the following: " I agree to return this loaner vehicle within 8 hrs. after my car is completed" and " You must return this Vehicle to Our office or other location We specify, on the date and time specified in this Agreement, and in the same condition that You received it, except for ordinary wear." (Id. ) Evidence submitted by both parties shows that the defendants did not return the loaner vehicle after their vehicle was returned and the plaintiff stated that it would perform no further repairs. The evidence shows that the defendants asked Casey to leave their premises when he attempted to retrieve the loaner vehicle, and that they did not answer Casey's repeated attempts to contact them about returning the loaner vehicle. (Casey Affidavit, pp. 4-7, Exs. C, F, Defendants' Affidavits, Exs. 2, 13-15.) The court finds that there is no dispute of material fact that an agreement existed between the plaintiff and defendant Alison, that defendant Alison breached the Agreement, and as discussed above, that the plaintiff sustained monetary damages as a result. Summary judgment is granted as to Count Four.
CONCLUSION
For the aforementioned reasons, the plaintiff's motion for summary judgment is granted.