Opinion
No. CV 06 5000790
December 5, 2008
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT #114
This memorandum of decision addresses the issues raised through the defendants' joint motion for summary judgment as to counts two, four, and five of the plaintiff's amended complaint, and defendant Aubrey Newland's motion for summary judgment as to count six (#114); through the accompanying memorandum of law (#115); and through the plaintiff's objection thereto (#117). As the defendants have not established the absence of genuine issues of material fact with regard to the afore-referenced counts, they are not entitled to judgment as a matter of law. Accordingly, while the plaintiff's objection is SUSTAINED, the defendants' motion for summary judgment is hereby DENIED.
I PROCEDURAL HISTORY
On May 30, 2006, the plaintiff, Sentry Construction Corporation (Sentry), commenced this action by service of process on the defendants, Revolation Enterprise, LLC (Revolation) and Aubrey Newland. The six-count complaint asserted claims arising from a contract dispute regarding construction work the plaintiff, as the general contractor on the building project, and Revolation, as the subcontractor, had performed for the Hill Development Corporation (HDC). The six counts were: (1) breach of contract with regard to Phase 1 of the building project; (2) breach of contract with regard to Phase 2 of the building project; (3) unjust enrichment; (4) tortious interference with business expectancies; (5) fraud and collusion; and (6) unfair trade practices. On March 13, 2008, the plaintiff submitted an amended complaint presenting six corresponding counts (#109). It is this amended pleading (#109) which serves as the operative complaint in the present case.
The plaintiff is a Rhode Island corporation with a principal place of business in Cranston, Rhode Island. Revolation is a limited liability company with a principal place of business in New Haven, Connecticut. (Motion for Summary Judgment #114, Affidavit of Aubrey Newland, ¶ 1.) The court notes that, in its writ of summons, the plaintiff identified Revolation as "Revolation Enterprises, LLC." However, both parties have referred to this entity as "Revolation Enterprise, LLC" in the other documents filed in connection with this litigation.
Newland was sued in his capacity as the "owner and operator of Revolation . . ." (Motion for Summary Judgment #114, Affidavit of Aubrey Newland, ¶ 1.)
Count one of the amended complaint alleges the following specific relevant facts. On or about August 31, 2003, the plaintiff and the defendants entered into a contract whereby the plaintiff hired Revolation to perform subcontract work on a construction project involving eight houses in New Haven known as the Hill Housing Rehabilitation Project, Phase 1. On or about September 6, 2005, the parties entered into an agreement under which they would place the remaining contract funds in escrow to settle payment disputes. After discovering that the defendants had failed to properly perform their work under the subcontract, the plaintiff demanded that the defendants correct the work, but the defendants refused to do so. The plaintiff paid in excess of $39,000 to correct the work and requested $16,705.30 in escrow funds to offset these expenditures. Through count one, the plaintiff expressly seeks payment of "the retainage funds held by the escrow agent and the balance of the funds due to the plaintiff from Revolation." (Amended Complaint #109, Count 1, ¶ 9.)
Count two of the amended complaint alleges the following specific and relevant facts. On or about June 10, 2004, the plaintiff and the defendants entered into a contract whereby the plaintiff hired the defendants to perform subcontract work on a construction project involving eleven houses in New Haven known as the Hill Housing Rehabilitation Project, Phase 2. The Phase 2 contract was amended in September 2005 under the terms of an interim settlement agreement. On or about December 6, 2005, the plaintiff terminated the defendants' role in the construction process because they breached the contract in several ways including, among other things, failing to properly perform the work agreed to and failing to provide certified documents as required by state and federal laws. As a result of Revolation's breach of contract, the plaintiff asserted in count two that it had suffered damages and expended in excess of $150,000 to correct the defendants' work.
Count three alleges that the defendants were unjustly enriched when, from August 2005 to December 2005, they performed unauthorized work directly for HDC during Phase 2 of the project, but charged the plaintiff for these construction services. Count four alleges that the defendants tortiously interfered with the plaintiff's business expectancies during Phase 2 of the project. Count five alleges that the defendants committed fraud and collusion during Phase 2 of the project. Finally, count six alleges that the defendants violated the Connecticut Unfair Trade Practices Act (CUTPA) during Phase 2 of the project by committing "unfair, deceptive, intentional and/or malicious" acts while "engaged in trade or commerce within the State of Connecticut," all of which caused economic harm to the plaintiff. (Amended Complaint #109, Count 6, ¶ 16-17.)
It is uncontested that the plaintiff has engaged in other litigation involving itself and HDC or related entities. Those cases have been identified as follows: (1) Sentry Construction Corp. v. Hill Development Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000692 (application for prejudgment remedy filed by Sentry on May 19, 2006); (2) Sentry Construction Corp. v. Hill Development Corp., Superior Court, judicial district of New Haven, Docket No. CV 07 5011439 (four-count complaint filed by Sentry on May 24, 2007 alleging foreclosure on a mechanics lien, breach of contract, quantum meruit, and unjust enrichment); (3) Sentry Construction Corp. v. Hill Development Corp., Superior Court, judicial district of New Haven, Docket No. CV 075015420 (application for discharge or reduction of mechanic's lien filed by HDC on November 9, 2007); (4) Sentry Construction Corp. v. Rodriguez, Superior Court, judicial district of New Haven, Docket No. CV 08 5016995 (application for discharge or reduction of mechanic's lien filed by HDC on January 11, 2008); and (5) Sentry Construction Corp. v. Lopez, Superior Court, judicial district of New Haven, Docket No. CV 08 5016996 (application for discharge or reduction of mechanic's lien filed by HDC on January 11, 2008). Those five cases were withdrawn on April 15, 2008 and April 16, 2008.
At the short calendar hearing of the defendants' motion for summary judgment and the plaintiff's objection, the parties stipulated that the court could take judicial notice of those other matters.
The present contest arises, in large measure, from the parties' disagreement concerning the effect of the withdrawal of those other matters. The defendants' June 18, 2008 motion for summary judgment and accompanying memorandum of law (#114, #115) assert that counts two though six of the amended complaint are barred because the underlying claims were resolved though the plaintiff's prior agreement with HDC. As to counts three through six of the amended complaint, the defendants assert that the plaintiff's allegations are "unsupported by facts or law, or both." (Motion for Summary Judgment #114, pp. 1.) On June 22, 2008, the plaintiff filed its memorandum in opposition (#117), arguing that there are genuine issues of material fact as to counts two, four, five, and six, but agreeing to withdraw count three of the amended complaint.
Accordingly, the court has not further considered the motion for summary judgment as to count three of the amended complaint.
II THE MOTION FOR SUMMARY JUDGMENT
Under Practice Book § 17-49, 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." Practice Book § 17-49; see also Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). The moving party "has the burden of showing the absence of any genuine issue as to all the material facts," and "the evidence must be viewed in the light most favorable to the opponent." Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Id., 319. "A `material fact' is a fact that will make a difference in the result of a case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990)." River Dock Pile, Inc. v. Insurance Co., North America, 57 Conn.App. 227, 231, 747 A.2d 1060 (2000). In this matter, neither party disputes that the court has been provided with the type of supporting documentation anticipated by Practice Book § 17-45.
Practice Book § 17-45 provides, in pertinent part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
A EFFECT OF THE SETTLEMENT AGREEMENT
The defendants argue that judgment in their favor must be summarily entered as to counts two, four, five, and six of the complaint due to the effect of the agreement which settled the five other actions, described in Part I, which involved litigation between the plaintiff and HDC or related entities. In response, the plaintiff argues that "[t]he intent and understanding of Sentry and HDC as to [the] settlement is a question of fact that cannot be resolved by summary judgment." (Plaintiff's Opposition to Motion for Summary Judgment #117, pp. 7.)
In support of their summary judgment motion, the defendants have submitted a copy of the transcript of a hearing, held in open court on February 1, 2008, at which the plaintiff and HDC announced their settlement agreement. The transcript reveals that, at this hearing, both the plaintiff and HDC were represented by counsel: HDC was represented by Atty. Robert Solomon, and the plaintiff was represented by Atty. Lawrence Rosenthal. To further support their motion for summary judgment, the defendants have also provided an affidavit from the defendant Newland and an affidavit from Atty. Solomon. The plaintiffs attach the following documents to their memorandum in opposition: an affidavit from Atty. Rosenthal, an affidavit from Anthony Emma (the "President of Sentry Construction Corporation"), an excerpt from Newland's deposition, and copies of two Connecticut Superior Court decisions. (Plaintiff's Opposition to Defendant's Motion for Summary Judgment, Exhibits A-E.)
See similar reasoning applied in Moran v. Gallo, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0362969 (Aug. 13, 1999, Melville, J.) (25 Conn. L. Rptr. 263, 264) ("our courts have not applied the statute of frauds to settlement agreements").
The defendants also attach Newland's January 3, 2006 letter to the Department of Economic and Community Development in which he apparently claimed that the plaintiff breached its contracts with the defendants and acted in a racially discriminatory manner toward them.
Atty. Solomon states in his affidavit that, as part of the settlement agreement, HDC paid the plaintiff $275,000 in exchange for the plaintiff's agreement that it would not pursue its Phase 2 claims against HDC. The plaintiff has not contested this fact, but argues that the terms of the February 1, 2008 settlement agreement did not foreclose pursuit of the remaining claims against the defendants, extant in the present litigation.
Although it appears that the plaintiff and HDC did not reduce the settlement agreement to writing, neither the plaintiff nor the defendants have contested its enforceability as to the five other cases which were the subject of the withdrawals referenced in Part I. An oral settlement agreement is effective where there is mutual assent. See Millgard Corp. v. White Oak Corp., 224 F.Sup.2d 425, 432 (D.Conn. 2002) (applying Connecticut law); see also In re Dragone, 318 B.R. 33, 35 (Bankr.D.Conn. 2004) ("Parties who assent to an oral settlement made in open court are bound to that agreement"). A release or settlement agreement is a contract "subject to rules governing the construction of contracts"; therefore, the intent of the parties controls its "scope and effect." Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 42, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246(2007). "The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were." MD Drilling Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, 454 (2006).
The court has applied the foregoing principles of law when examining the documents provided in support of the motion for summary judgment. At first glance, the language used to frame the terms of the February 1, 2008 settlement agreement upon the record may appear to bar the present action. For instance, language in the transcript, reflecting Atty. Rosenthal's statements on behalf of the plaintiff, indicates that the agreement "settle[d] all matters between the plaintiff and HDC and its related parties concerning anything to do with what is called the Phase 2 HDC contract . . ." (Motion for Summary Judgment #114, Hearing Transcript, pp. 7.) In addition Atty. Solomon stated that the "release would also include outstanding claims against the firm of Revolation . . . from Phase 2" and that "those claims will have been paid by [HDC]." (Motion for Summary Judgment #114, Hearing Transcript, pp. 7.)
However, a close review of other portions of the transcript reveals the relatively inconclusive nature of these statements. For example, the transcript reflects that Atty. Rosenthal stated that the "action between Sentry and Revolation . . . will all be taken care of in that action with an agreement with Revolation . . . But that is not what we're on the record about today but we're going to make our very best efforts to get that taken care of." (Emphasis added.) (Motion for Summary Judgment #114, Hearing Transcript, pp. 7-8.) Additionally, earlier in the hearing, in response to Atty. Solomon's mention of Revolation's general involvement in the construction dispute, Atty. Rosenthal stated, on behalf of the plaintiff, "And that we acknowledge we're not doing as part of the settlement." (Emphasis added.) (Motion for Summary Judgment #114, Hearing Transcript, pp. 7.) Furthermore, while Atty. Rosenthal explained that the settlement agreement constituted a "five-for," ostensibly indicating a resolution of the five related cases described in Part I, he also stated, apparently referring to the present action, that "there may be six but that has a different lawsuit." (Emphasis added.) (Motion for Summary Judgment #114, Hearing Transcript, pp. 7.) Contrary to the defendants' proposed result, an objective analysis of these portions of the transcript leads to the conclusion that there was no meeting of the minds on February 1, 2008 as to the effect of the settlement agreement upon the litigation which is the subject of the pending summary judgment motion.
Taken as a whole, the statements of Atty. Rosenthal and Atty. Solomon are inherently contradictory. The proffered transcript thus leaves it unclear as to the scope of the plaintiff's and HDC's intentions with regard to the February 1, 2008 settlement agreement insofar as the plaintiff's present claims are concerned. Moreover, the affidavits of Atty. Solomon and Atty. Rosenthal leave the issue unresolved; while Atty. Solomon's affidavit asserts that the parties understood that, as part of the settlement agreement, the plaintiff would be barred from bringing claims relating to Phase Two of the construction project against the defendants in the present case, Atty. Rosenthal's affidavit contests this claim, asserting that the parties manifested no such intent on February 1, 2008. Based upon the documentation presented to the court in compliance with Practice Book § 17-45, the question of the plaintiff's intention with regard to settlement of the five other cases remains unresolved at this stage of the proceedings.
The court is thus constrained to conclude that "[d]espite the broad terms of the release [of February 1, 2008], it is unclear exactly what claims the release was intended to settle." Pudlo v. Allstate Insurance Co., Superior Court, judicial district of New London at Norwich, Docket No. CV 99 0117153 (Aug. 23, 2000, Martin, J.) (28 Conn. L. Rptr. 27, 29) (denying defendant's motion for summary judgment). As the defendants have not demonstrated that there are no genuine issues of material fact, they are not entitled to judgment as a matter of law in this matter based upon the effect of the February 1, 2008 settlement agreement. See Practice Book § 17-49. Accordingly, the court must deny this aspect of their motion for summary judgment as to counts two, four, five, and six of the plaintiff's complaint. See Tilley v. Anixter, Inc., 332 B.R. 501, 513-14 (Bank.D.Conn. 2005) (applying Connecticut law and denying plaintiff's motion for summary judgment on defendant's counterclaim due to ambiguity in release).
The court next examines the defendants' alternative arguments that they are entitled to summary judgment, independent of the settlement agreement, on counts four, five, and six.
B THE DEFENDANTS' ALLEGED TORTIOUS INTERFERENCE WITH THE PLAINTIFF'S BUSINESS EXPECTANCIES
As noted in Part I, through count four, the plaintiff specifically alleges that the defendants tortiously interfered with its business expectancies by making false statements to the plaintiff itself, to "government agencies," and to the plaintiff's subcontractors all in an attempt to harm the plaintiff's relationships with other contractual entities. (Amended Complaint #109, Count 4, ¶ 10.) The defendants argue that they are entitled to summary judgment on the tortious interference count because "[n]ot only is the prosecution" of this count barred by the settlement agreement, but also because "there are no facts to support it." (Defendants' Brief Supporting Motion for Summary Judgment #115, pp. 7.) Here again, using the applicable principles of law to assess the pending claims and "the evidence . . . in the light most favorable to the opponent," the court concludes that the defendants have failed to meet their burden of showing the absence of any genuine issue of material fact, so that they are not entitled to summary judgment on this count. See Zielinski v. Kotsoris, supra, 279 Conn. 318.
"[T]he elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000). The second element is met if the plaintiff proves that "the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously." Solomon v. Aberman, 196 Conn. 359, 365, 493 A.2d 193 (1985).
Viewed specifically, the plaintiff's tortious interference claim, presented through count four of the amended complaint, is comprised of three main allegations. First, the plaintiff alleges that the defendants falsely represented that they had paid vendors for dumpsters and lumber, when such payment had not occurred; furthermore, the plaintiff alleges that the defendants failed to advise HDC of these circumstances after HDC, as a result of the nonpayment of vendors, accused the plaintiff of "falsification of a lien waiver." (Amended Complaint #109, Count 4, ¶ 7.) Second, the plaintiff alleges that the defendants filed a defamatory racial discrimination claim with "governmental agencies," which claim was later determined to be false; the plaintiff further alleges that this discrimination claim had been filed in an attempt to damage its reputation and its contractual relationships with HDC and other subcontractors. (Amended Complaint #109, Count 4, ¶ 10.) Third, the plaintiff alleges that the defendants tortiously interfered with its business expectancies by stating to the plaintiff's subcontractors that the plaintiff had been terminated from the project and that Revolation was "in charge" of the project, even though the plaintiff had actually left the project due to nonpayment on or about May 6, 2006. (Amended Complaint #109, Count 4, ¶ 11.)
Despite the vigor of their arguments, as presented through their motion and memorandum in support of summary judgment, the defendants have presented neither a legal basis nor factual evidence to refute the first main allegation of count four. (#114, #115.) The defendant's conclusory assertions are insufficient to meet the obligations they assumed through their motion for summary judgment on count four, through the application of Practice Book § 17-49 and the abundant common law construing this provision. In matters such as this, "`[t]he 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.' (Internal quotation marks omitted.) Rock-well v. Quintner, 96 Conn.App. 221, 228, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006)." Baldwin v. Curtis, 105 Conn.App. 844, 848, 939 A.2d 1249 (2008). "`On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. Accordingly, [w]hen 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.' (Citations omitted; internal quotation marks omitted.) [ Rockwell v. Quintner, supra, 96 Conn.App.] 229-30." (Emphasis added.) Baldwin v. Curtis, supra, 105 Conn. 851.
Our courts have held that summary judgment must be denied where the defendant's evidence does not "eliminate all factual issues raised by the allegations of the complaint . . ." (Emphasis added.) Rockwell v. Quintner, supra, 96 Conn.App. 233. Here, the defendants have not demonstrated that there are no genuine issues of material fact on the plaintiff's first main allegation in count four. Moreover, as the defendants have failed to meet their burden on this aspect of their motion for summary judgment, the court need not address the defendants' arguments regarding the plaintiff's other allegations in this count. See Rockwell v. Quintner, supra, 96 Conn.App. 233. The lack of grounds for granting summary judgment as to the first main allegation of count four renders the remainder of this count unsusceptible to such judgment. The court must, therefore, deny the defendants' motion for summary judgment as to the allegations of tortious interference with business expectancies, as presented in count four.
Newland's January 3, 2006 letter to the Department of Economic and Community Development, which the defendants attach to their motion for summary judgment and which claims that the plaintiff breached its contracts with the defendants and acted in a racially discriminatory manner towards them, appears not to address the plaintiff's first tortious interference allegation, and the court nevertheless declines to consider it because it is unauthenticated. See New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005) ("before a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [its] genuineness' ").
C THE DEFENDANTS' ALLEGED FRAUD AND COLLUSION
The defendants have moved for summary judgment on count five of the amended complaint, asserting that there are no issues of material fact as to the plaintiff's claims presented therein. In count five, the plaintiff generally alleges that the defendants committed fraud and collusion during Phase 2 of the project. Specifically, the plaintiff alleges that the defendants engaged in such conduct by: signing "a non-collusion certificate stating that" it had "no affiliation with the owner, architect, or any other owner representative connected with the project"; being "affiliated" with HDC "in ways that transcended the normal owner/subcontractor relationship" and that showed a "monetary commonality"; and failing to advise Sentry that such relationship actually existed. (Amended Complaint #109, Count 5, ¶¶ 12-13.) In addition, the plaintiffs allege, in relevant part. fraudulent and collusive conduct in that HDC: recommended that Revolation be a subcontractor on the project;"used [Revolation] on numerous other projects"; "insisted on paying Revolation directly"; and "ensure[d] that" the defendants' interests "were always protected." (Amended Complaint #109, Count 5, ¶ 13.)
To support their motion for summary judgment on count five, the defendants essentially deny the foregoing allegations, contending that they "did not violate the non-collusion certificate" and that "the non-collusion certificate was not entered into for the benefit of the plaintiff." (Emphasis added.) (Defendants' Brief Supporting Motion for Summary Judgment #115, pp. 9.) The defendants also rely upon the affidavit which presents averments of the co-defendant Newland. (Motion for Summary Judgment #114, Affidavit of Aubrey Newland.) The defendants urge the court to find a basis for rendering summary judgment in the relevant paragraphs of this affidavit, submitted by a moving party, which state as follows: "Neither I nor Revolation Enterprise, LLC have ever been affiliated with [HDC] or its representatives in any respect"; "Revolation Enterprise LLC, to the best of my recollection, executed" a non-collusion certificate, but it "was for the benefit of the Hill Development Corporation and its funders, not the plaintiff"; and "[n]either Revolation Enterprises, LLC nor I have ever acted on a plan to ruin Sentry, nor was it ever our wish that the project not be completed." (Motion for Summary Judgment #114, Affidavit of Aubrey Newland, ¶¶ 5-6, 15.) The court finds Newland's affidavit insufficient to eliminate questions of material fact concerning the subject of fraud and collusion as raised in count five of the amended complaint.
Neither party has attached the non-collusion certificate to the documents they submitted to the court; neither party has otherwise made such a certificate available for the court's consideration in the context of the pending motion for summary judgment.
The element of fraud, upon which this aspect of the plaintiff's summary judgment motion is based, requires a showing 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." Weisman v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995). Collusion, a "species of fraud," is "defined as an agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law." Black v. Goodwin, Loomis and Britton, Inc., 239 Conn. 144, 163, 681 A.2d 293 (1996).
The court considers Newland's affidavit, representing an "affidavit submitted by a moving party," according to the applicable "stringent standard." New Haven v. Pantani, 89 Conn.App. 675, 680, 874 A.2d 849 (2005) ("It is especially appropriate to hold an affidavit [or supporting documentation] submitted by a moving party to a stringent standard"), quoting Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978). Upon such examination, the court is constrained to conclude that the affidavit presents his summary opinions as to the plaintiff's allegations; those opinions represent the position taken by a party with a clear interest in the outcome of the litigation, and the content of the self-serving affidavit must be weighed with recognition of the author's status in this case. See C. Tait J. LaPlante, Connecticut Evidence (4th Ed. 2008) §§ 6.30.3-6.30.5, p. 353-54. Newland's affidavit, alone or in association with the other submissions tendered in support of the summary judgment motion, thus provides an insufficient basis for eliminating genuine issues of material fact concerning whether or not the defendants engaged in fraudulent and/or collusive conduct, as alleged in count five. Using the appropriate measure, the court declines the defendants' invitation to find that Newland's affidavit warrants granting summary judgment on count five of the amended complaint.
The court adheres to the axiom that conclusory denials of the complaint's allegations contained in an affidavit such as Newland's "are an insufficient basis for the rendition of summary judgment." Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995), citing the venerable Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 488-89, 280 A.2d 359 (1971). Accordingly, Newland's conclusory statement the defendants were never "affiliated" with HDC (Motion for Summary Judgment #114, Affidavit of Aubrey Newland, ¶¶ 5) is insufficient to rebut the plaintiff's allegations that the defendants were "affiliat[ed]" with HDC "in ways that transcended the normal owner/subcontractor relationship"; that the defendants and HDC shared a "monetary commonality"; and that HDC "recommended" that Revolation be a subcontractor on the project, "used [Revolation] on numerous other projects," "insisted on paying Revolation directly," and "ensure[d] that the defendants' interests "were always protected" (Amended Complaint #109, Count 5, ¶¶ 12-13). See New Haven v. Pantani, supra, 89 Conn.App. 680; Gambardella v. Kaoud, supra, 38 Conn.App. 360.
In count five, the plaintiffs have alleged specific acts on the defendants' part with regard to the fraudulent and/or collusive conduct at issue. Despite the defendants' protestations to the contrary, Newland's affidavit fails to demonstrate that there are no genuine issues of material fact with regard to these allegations. Accordingly, the defendants are not entitled to judgment as a matter of law on count five, and the court must deny this aspect of their motion for summary judgment.
D THE DEFENDANTS' ALLEGED UNFAIR TRADE PRACTICES
Newland moves for summary judgment on count six of the amended complaint, in which the plaintiff alleges that the defendants violated the Connecticut Unfair Trade Practices Act during Phase 2 of the project by committing "unfair, deceptive, intentional and/or malicious" acts while "engaged in trade or commerce within the State of Connecticut" that caused economic harm to the plaintiff. (Amended Complaint #109, Count 6, ¶ 16-17.) Newland specifically argues that he is entitled to summary judgment on this count because he was not engaged in trade or commerce in connection with any of the events described in the complaint. For the following reasons, the court declines to grant summary judgment on count six of the amended complaint.
Revolation concedes that it was "engaged in trade or commerce" and does not move for summary judgment on this count. (Defendants' Brief Supporting Motion for Summary Judgment #115, pp. 11.)
General Statutes § 42-110a et seq., establishing CUTPA, prohibits "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). The legislature has defined the terms "`[t]rade' and `commerce'" as including, among other things, "the sale or rent or lease . . . of any services and any property . . ." (Emphasis added.) General Statutes § 42-110b(a)(4).
Newland cites neither evidence nor authority to support his argument that he was not engaged in trade or commerce. It appears that he is contending that he cannot be held personally liable under CUTPA for his actions that he took on behalf of Revolation, a limited liability company. However, the plaintiff alleges in its complaint that both Revolation and Newland violated CUTPA by committing unfair and deceptive acts, and "[i]t is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable." Kilduff v. Adams, Inc., 219 Conn. 314, 331-32, 593 A.2d 478 (1991). Our Supreme Court has explained that these principles of personal liability are equally applicable to "member[s] or manager[s] of a limited liability company' created under the Connecticut Limited Liability Company Act. Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 145-46, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d, 664 (2006). The limited liability statutes "do not shield" a member or manager of a limited liability company from personal liability under CUTPA. Mexico Construction v. Thompson, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 07 5002988 (July 9, 2008, Tyma, J.); see also Silber v. Carotenuto Sons General Contractors, Inc., Superior Court, judicial district of New Haven, Docket No. CV 98 0416562 (February 8, 2000, Devlin, J.) (holding defendant's "status as a corporate officer" does not insulate him from personal liability under CUTPA); 2 Ribstein and Keatinge on Limited Liability Companies § 12:4 ("[l]imited liability . . . does not protect the members or managers from direct individual liability for their own wrongs").
As stated in footnote 2, Newland was "the owner and operator of Revolation, a construction company." (Motion for Summary Judgment #114, Affidavit of Aubrey Newland, ¶ 1.)
Moreover, in the absence of authority to support this aspect of the defendants' motion for summary judgment, the court declines to further examine the issue of whether Newland was engaged in a business relationship with the plaintiff. State v. Colon, 272 Conn. 106, 153 n. 19, 864 A.2d 666 (2004). Simply put, the court is "not required to review issues that have been improperly presented . . . through an inadequate brief"; "[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." Id. Notwithstanding his unsupported assertion to the contrary, genuine issues of material fact exist as to whether Newland was engaged in trade or commerce. Under these circumstances, summary judgment cannot properly be rendered as to the issues related to CUTPA raised through count six of the amended complaint.
III CONCLUSION
For the foregoing reasons, the court has determined that the defendants have failed to meet their burden of proving that there are no genuine issues of material fact so as to render them entitled to judgment as a matter of law as to counts two, four, five, and six of the pending complaint. Under these circumstances, the plaintiff's objection #117 must be SUSTAINED, while the defendants' motion for summary judgment #114 on these counts must be DENIED.