Opinion
No. CV106005852
March 10, 2011
MEMORANDUM OF DECISION
On December 31, 2009, the plaintiff, Rajiv Sethi, commenced this action in the form of a two-count complaint against the defendant, Bruhan Yagildere. In count one, the plaintiff alleged the following. The defendant presented himself as the owner and operator of Bereket Deli (the deli), a business located at 4031 Main Street in Bridgeport. In around April 2004, the defendant agreed orally to sell the deli, after which the plaintiff's father gave $70,000 to the defendant as a "deposit" and took over operation of the deli, with the "balance" to be paid in November 2004. The plaintiff's father was "wrongfully evicted" from the deli in September 2004, and the defendant sold half the deli to another party. An October 13, 2009 court judgment ( Sethi I) found that the $70,000 that the defendant received from the plaintiff's father was "paid by his son to the Defendant," and furthermore, the complaint alleges that this "son" is the same person as the plaintiff in this action. The defendant has "wrongfully retained" the $70,000 from 2004 to the date of this action, during which time the defendant "knew he was holding money he claimed to be from [the plaintiff] and for which he provided [the plaintiff] with no consideration." Peculiarly, count one of the original complaint does not specify a cause of action.
The summons and return of service identify the defendant as Bruhan Yagildere. The defendant's own moving papers spell his name as Burhan Yaglidere, and the defendant's signed and notarized affidavit in support of his motion for summary judgment contains the following first sentence: "My name is Burhan Yaglidere."
The judgment in Sethi I was issued on August 24, 2009 and not on October 13, 2009. Sethi v. Yagildere, Superior Court, judicial district of Fairfield, Docket No. CV 04 4003034 (August 24, 2009, Arnold, J.), aff'd, 125 Conn.App. 902, 10 A.3d 52 (2010) (per curiam), cert. denied, 299 Conn. 929 (2011).
Count two of the complaint is a claim for violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a, et seq. (CUTPA). This count incorporates the whole of count one and alleges that the defendant was a "person" within the meaning of General Statutes § 42-110a(3), was engaged in commerce within the meaning of General Statutes § 42-110a(4) and engaged in conduct that constitutes a violation of CUTPA. Count two alleges that this conduct resulted in financial damages for the plaintiff.
On March 4, 2010, the plaintiff moved for default for failure to plead and requested disclosure of defenses. The motion for default was granted, and the defendant filed a disclosure of defenses on the same day. On the following day, the defendant filed an answer and six special defenses. On March 11, 2010, the plaintiff requested that the defendant revise four of the six special defenses. On March 26, 2010, the defendant requested to amend his answer and special defenses, but after the plaintiff filed an objection on April 1, the defendant withdrew his request and filed another request to amend his answer and special defenses on April 9. The amendment became effective since no objection was filed. Practice Book § 10-60(a)(3).
In his April 9 amended answer, the defendant admits that he presented himself to the plaintiff as the owner and operator of businesses at 4031 Main Street but denies that the deli was among those businesses. The defendant pleads that he has insufficient knowledge to admit or deny whether he agreed orally to sell the deli because this allegation is "vague and unintelligible." The defendant further denies that the plaintiff's father gave him $70,000 as a "deposit" for the deli and took over the operation of the deli with the "balance" to be paid in November 2004. The defendant denies that there was a wrongful eviction of the plaintiff's father from the deli in September 2004 and that the defendant sold half the deli to another party. The defendant pleads that he has insufficient knowledge to admit or deny whether a court judgment found that he received and retained $70,000 from the plaintiff's father, and that this money was "paid by his son to the defendant." The defendant argues that this allegation is "vague and unintelligible." The defendant claims that he has insufficient knowledge to admit or deny whether the plaintiff is the "son" that the judgment referred to. Furthermore, the defendant denies allegations that he has wrongfully retained and continues to wrongfully retain the $70,000, and that he knew that he was holding money he claimed to be from the plaintiff for which he provided the plaintiff with no consideration. As to count two, which states a cause of action in CUTPA, the defendant denies each of the material allegations.
The defendant also filed three special defenses with his April 9 amended answer. The first special defense is that count one is barred by the statute of limitations in General Statutes § 52-581. The second special defense is that both counts are barred by the statute of limitations in General Statutes § 52-577. The third special defense is that the claims are barred by the doctrine of laches because "the plaintiff had unreasonably delayed in filing this action to the prejudice of the defendant." Furthermore, the third special defense claims that the plaintiff and his father participated in a previous action "wherein the parties took the position that the money was given to the defendant and which the plaintiff seeks to recover was his father's money and not his." In the third special defense of laches, the defendant argues that he "was forced to defend this action at great expense and cost and should not be required to defend this case which was commenced over five years later." On April 26, 2010, the plaintiff filed a reply to the defendant's special defenses, denying each of the allegations contained in those filings.
On May 26, 2010, the plaintiff filed an amended complaint, which is the operative complaint for the purposes of this motion for summary judgment. The first count of the amended complaint is identical to the first count of the December 31, 2009 complaint, with the exception of a new paragraph at the end of the count that states, "The defendant has been unjustly enriched by wrongfully retaining the $70,000." The second count of the amended complaint is identical to its corollary in the original complaint, except the paragraphs are numbered differently.
On July 1, 2010, the defendant moved for summary judgment on the grounds of statute of limitations, laches and that "the plaintiff makes no claim that the funds he is seeking were provided by him and as such he lacks standing . . ." The motion is accompanied by a memorandum, an affidavit signed by the defendant and a numerical summary of the amount of money alleged to be owed by the plaintiff and Balram Sethi to the defendant. On July 2, 2010, the plaintiff filed a memorandum in opposition. On July 27, 2010, the defendant filed a reply to the objection to the motion. In late August 2010, the plaintiff submitted his own affidavit in opposition to the motion. The matter was heard on the short calendar on August 30, 2010. On October 14, 2010, this court granted the motion for summary judgment. On October 20, 2010, the plaintiff filed a request for a memorandum of decision. This is the decision.
I
To better understand the parties' arguments, it is necessary to discuss an earlier action arising out of the same events, which resulted in a decision in August 2009. Sethi v. Yagildere, Superior Court, judicial district of Fairfield, Docket No. CV 04 4003034 (August 24, 2009, Arnold, J.), aff'd, 125 Conn.App. 902, 10 A.3d 52 (2010) (per curiam), cert. denied, 299 Conn. 929, A.3d (2011). The plaintiff in Sethi I, Balram Sethi, is the present plaintiff's father, and the defendant in the two actions is the same individual. Balram Sethi alleged that in April 2004, he and the defendant entered an agreement by which the defendant would sell him the deli for $200,000, with the first $70,000 paid via installments over the following two months and the balance through monthly installments beginning in November 2004. Balram Sethi then "paid the sum of $20,000 to the defendant in April 2004, . . . paid the defendant $35,000 by check and $10,000 in cash on May 14, 2004" and "paid the sum of $5,000 in cash, in June 2004, as agreed." Balram Sethi then began operating the deli, but after some time, the defendant accused him of misappropriating funds and ordered him to leave the deli. Balram Sethi alleged that despite his demands, the defendant did not return his $70,000 in deposit funds. Balram Sethi's complaint contained allegations of breach of contract, wrongful eviction, unjust enrichment, negligent infliction of emotional distress, intentional infliction of emotional distress and a violation of CUTPA.
In his special defenses to Sethi I, the defendant claimed "that [Balram Sethi] has admitted under oath he was not the purchaser of the deli," "that [Balram Sethi] agrees that his son, Rajiv Sethi, was the purchaser and the agreement to sell the deli was with his son, Rajiv Sethi," and therefore, "[Balram Sethi] was not a party to the agreement and therefore cannot bring an action to enforce its terms or claim damages for its breach." The defendant also filed a counterclaim against Balram Sethi, alleging that he misappropriated the deli receipts for his own use, failed to pay utility companies, failed to accurately account for proceeds from lottery sales, depleted the inventory and did not account to the defendant for missing funds.
Judge Arnold found the following facts in Sethi I. In early 2004, the defendant approached Balram Sethi to discuss selling the deli, but because Balram Sethi had creditworthiness problems that prohibited him from being assigned certain deli-related agreements, Balram Sethi "proposed that he purchase the defendant's business in the name of his son, Rajiv Sethi." The defendant and Balram Sethi proceeded to "[negotiate] for the purchase and sale of the deli with the understanding that the business would be in the name of . . . Rajiv Sethi" and, "[d]espite the lack of any written agreement, contract, lease or promissory note, the parties proceeded to enter into a landlord and tenant business relationship . . ."
The defendant traveled to Turkey for vacation in September 2004, during which his daughter, who remained in the United States, informed him that Balram Sethi was not making required deposits for certain deli transactions and that the deposit money was missing. The defendant returned to Connecticut, told Balram Sethi to leave the deli, threatened to have him arrested and alleged that due to the defendant's actions $128,000 was missing and unaccounted for. The defendant claimed he used the $70,000 from the sale of the deli to make up for part of the missing funds.
Judge Arnold found that an agreement to purchase the deli did not exist between the defendant and Balram Sethi and that Balram Sethi rather became "a tenant with a right to run the deli business." In footnote seven of the opinion, the court wrote: "The court also has found that the $70,000 deposit funds belonged to the plaintiff's son and not the plaintiff." The court wrote that it "[did] not consider the retention and expenditure of the $70,000 by the defendant when addressing the merits of the plaintiff's claim for unjust enrichment." Judge Arnold awarded Balram Sethi $7,890 as follows: $1,000 for unjust enrichment arising out of the defendant's seizure of the deli's inventory and plaintiff's belongings, $5,890 for lost profits and $1,000 as punitive damages for the CUTPA violations.
II
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Brown Brown, Inc. v. Blumenthal, 297 Conn. 710, 721, 1 A.3d 21 (2010). "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the 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 and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010).
A.
The defendant has moved for summary judgment on the plaintiff's unjust enrichment claim on the grounds of statute of limitations, laches and standing. The defendant argues that since this action does not arise out of a written contract, the court should apply the three-year tort statute of limitations pursuant to General Statutes § 52-577, or in the alternative, a six-year contract statute of limitations pursuant to General Statutes § 52-576. The defendant implies that the limitations period began running in April 2004, when the defendant received the money that the plaintiff alleges he paid him, and that this action was commenced on January 8, 2010. Furthermore, the defendant claims that the unjust enrichment count was added only on May 26, 2010, when the plaintiff filed his amended complaint, taking the action outside both the three-year and six-year limitations periods.
In his June 22, 2010 affidavit, the defendant attests to the following. He "never made an agreement with the plaintiff for the sale of [the deli]" but did "[negotiate] a possible sale with the plaintiff and his father . . ." He "conditionally turned over the operations of the deli, including turning over the only key to the deli's safe, to the plaintiff's father" on May 15, 2004. In mid-September 2004, the defendant "became aware that the daily deposits were not being made" to certain vendors and after reconciling the deli accounts, he discovered that about $128,000 became missing during the time "in which the plaintiff and his father had exclusive control of the operations of the deli." The defendant used the $70,000 that he received from the plaintiff's father in April 2004 to pay the vendors. The plaintiff's father then demanded that the defendant return the $70,000 to him "in the fall of 2004" and proceeded to sue him in Sethi I. The defendant also attached a sheet to his moving papers entitled "Summary of Amounts Owed to Burhan Yagildere by Balram Rajiv Sethi" showing a total of $128,006.55 owed as of September 18, 2004.
The plaintiff advances several theories in his memorandum in opposition to the motion for summary judgment. The plaintiff claims that he has not alleged the existence of a contract with the defendant, arguing that this action is akin to a transaction between a seller and someone who lends money to a buyer and that "[t]here is no privity between a lender and the seller of property although the purchaser of the property used the lender's money to purchase it." The plaintiff further alleges that the judgment in Sethi I created his right to recover money from the defendant and that the contract statute of limitations does not apply, although the plaintiff does not argue which statute of limitations is relevant to this action. The plaintiff also states that the defendant's actions constitute a "continuing tort" that continues as long as the defendant wrongfully withholds the money and that the continuing course of conduct principle therefore applies.
In his August 31, 2010 affidavit, the plaintiff attests that he "borrowed a substantial portion of the $70,000 for [his] father which he needed to pay the defendant as a deposit for him to take over the defendant's deli business" and that he "never had any contract with the defendant and never paid anything to the defendant." The plaintiff also attests to the following: "I did not bring a law suit against the defendant for restitution of the money I borrowed for my father because I was only a borrower from the bank and a lender to my father until the Court, in August 2009, accepted the defendant's position that the $70,000.00 was only mine to [collect] from the defendant."
The plaintiff's affidavit in opposition to the motion for summary judgment was registered in the courthouse records on August 31, 2010. The first page of the affidavit has a handwritten note that states, "Filed 8/30/2010 9:31 am." The affidavit was thus filed after the motion was scheduled to be heard on short calendar. "Our rules of practice require affidavits in support of or in opposition to summary judgment motions to be filed before the motion is to be heard; see Practice Book § 17-45; and where an affidavit is not timely filed under the rules, the trial court does not abuse its discretion in refusing to consider it . . ." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006). Because there is no objection to the untimely filing of this affidavit, this court has considered it in reaching its decision.
In his reply memorandum to the plaintiff's objection, the defendant argues that the plaintiff never pleaded that he provided the $70,000 and that the Sethi I court did not find that the money belonged to the plaintiff. In response to the plaintiff's analogy to a property transaction, the defendant argues that if the plaintiff in fact lent the $70,000 to his father, an action lies against the plaintiff's father for return of the money and not against the defendant. The defendant also argues that the continuing course of conduct doctrine does not apply to this action as a matter of law.
"Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 8, 965 A.2d 556, cert. denied, 291 Conn. 913, 969 A.2d 175 (2009).
"A right of recovery under the doctrine of unjust enrichment is essentially equitable . . ." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451, 970 A.2d 592 (2009). "[I]n an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the period of the statute . . . Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations." (Internal quotation marks omitted.) Rossman v. Morasco, 115 Conn.App. 234, 256, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009). "[T]here is no Connecticut appellate authority that squarely addresses which is the appropriate statute of limitations" for claims of unjust enrichment. Corbett v. Petrillo, Superior Court, judicial district of New Haven, Docket No. CV 06 5005440 S (February 29, 2008, Skolnick, J.T.R.) "A cause of action for unjust enrichment is generally viewed as sounding in quasi-contract, and the statute of limitations for unjust enrichment is generally held to be six years . . . although some courts have held that under a court's equitable powers, a court may provide a remedy (in unjust enrichment) even though the governing statute of limitations has expired . . . Thus, at a minimum, the time limitation for claims of unjust enrichment is six years." (Citation omitted; internal quotation marks omitted.) Id.
As a preliminary matter, and contrary to the defendant's assertion, this action was commenced on December 31, 2009, the date of the marshal's return of service, and not January 8, 2010. See Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996) ("an action is brought once the writ, summons and complaint have been served upon a defendant."). The defendant asserts that the statute of limitations began running in April 2004. The defendant in his affidavit attests that the plaintiff's father asked for the return of the money "in the fall of 2004." The plaintiff claims that the defendant's refusal to return the money constitutes unjust enrichment. Thus, the statute of limitations began running in December 2004, the end of fall.
At least one court has suggested that General Statutes § 52-581(a), the statute of limitations for actions on oral contracts, may apply to claims of unjust enrichment. In Clark Builders, Inc. v. Freeman, Superior Court judicial district of Stamford-Norwalk at Stamford Docket No. CV 08 5008443 (October 30, 2009, Adams, J.), the plaintiff alleged that the defendant was unjustly enriched because the defendant did not return a down payment that the plaintiff gave to the defendant for millwork that the defendant never performed. The court disagreed with the plaintiff that its unjust enrichment claim cannot be subject to Section 52-581(a) because it does not sound in contract, noting that "unjust enrichment is an equitable doctrine, but statutes of limitation are often at least referred to in determining whether an equitable claim is untimely."
General Statutes § 52-581(a) provides: "No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues."
Because the plaintiff alleges an oral agreement, the court by analogy applies the three-year limitations period of Section 52-581(a). Thus, the unjust enrichment count, whether deemed to be brought in December 2009 or May 2010, was not timely filed within the three-year period that commenced in December 2004. The plaintiff, in turn, argues that count one can be saved via the continuing course of conduct doctrine. "When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . . The continuing course of conduct doctrine is conspicuously fact-bound." (Internal quotation marks omitted.) Sinotte v. Waterbury, 121 Conn.App. 420, 440, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010).
Although the defendant argues that the unjust enrichment claim was commenced on May 26, 2010, the only relevant difference between the amended complaint filed on that date and the original complaint is that count one in the amended complaint contains the additional sentence, "The defendant has been unjustly enriched by wrongfully retaining the $70,000." Because the underlying facts of count one between the two complaints are the same, the unjust enrichment claim can be deemed to be commenced on December 31, 2009 via the relation back doctrine. The Connecticut "relation back doctrine is akin to rule 15(c) of the Federal Rules of Civil Procedure, which provides in pertinent part . . . [w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading . . . The policy behind rule 15(c) is that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 555-56, 985 A.2d 1042 (2010). "[I]n determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence." Id., 556. The facts between the original pleading and the amended pleading remained the same. Only the cause of action was added. In other words, "[t]he allegations of unjust enrichment did not inject different sets of circumstances and depend on different facts . . . but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability." (Internal quotation marks omitted.) Rossman v. Morasco, supra, 115 Conn.App. 257 n. 13. Thus, the claim of unjust enrichment was commenced on December 31, 2009.
"A review of the jurisprudence underlying the continuing course of conduct doctrine reveals that the doctrine originally arose in the context of a negligence action or similar derivation, claims that necessarily involved a breach of a duty in existence at the time of the original wrong . . . This interpretation of the doctrine is also supported by discussions of the policy underlying the doctrine. The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied . . . For example, the doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . ." (Citation omitted; internal quotation marks omitted.) Watts v. Chittenden, 115 Conn.App. 404, 411-12 n. 2, 972 A.2d 770, cert. granted, 293 Conn. 932, 981 A.2d 1077 (2009).
Here, it is not impossible to identify fall 2004 as the range of dates when the alleged unjust enrichment occurred. The plaintiff has neither alleged a special relationship that would give rise to a continuing duty or any later wrongful conduct on behalf of the defendant other than the continued withholding of the money. See Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198 n. 7, 931 A.2d 916 (2007) (where "the only subsequent act of the defendant that the plaintiff claims constituted a continuing course of conduct was the defendant's continued failure to execute and deliver the release [of mortgage]," the "failure to provide the appropriate release constituted a single omission and not an ongoing or recurring wrongful act."). Thus, the continuing course of conduct doctrine does not apply.
The defendant also argues that the plaintiff's claim is barred by the doctrine of laches. "The defense of laches, if proven, bars a plaintiff from seeking equitable relief . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The burden is on the party alleging laches to establish that defense . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] . . . as where, for example, the [opposing party] is led to change his position with respect to the matter in question." (Internal quotation marks omitted.) R.F. Daddario Sons, Inc. v. Shelansky, 123 Conn.App. 725, 737, 3 A.3d 957 (2010). The delay is immaterial if it does not result in prejudice. Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955). "[T]he generally accepted doctrine appears to be that laches is not like limitation a mere matter of time, but is principally a question of the inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition or relation of the property or the parties. Where no one has been misled to his harm in any legal sense by the delay, and the situation has not materially changed, the delay is not fatal." (Internal quotation marks omitted.) Miller v. McNamara, 15 Conn.Sup. 316, 320 (1948), aff'd, 135 Conn. 489, 66 A.2d 359 (1949).
The defendant argues the following in support of a finding of laches: "Presently, the plaintiff has waited over 5 years to institute this action and over 6 years to raise its claim for unjust enrichment. Moreover, the plaintiff participated with his father in [ Sethi I] wherein both the plaintiff and his father took the position that the money was given to the defendant by the plaintiff's father (just as the plaintiff alleges in the current action). The defendant was forced to defend that action at great expense and cost, and in fact is still incurring expenses related to the appeal of the decision in that case filed by Balram wherein he continues to maintain that the $70,000.00 was his. The defendant should not be required to defend this case in which the claims of the plaintiff could, and should, have been included in the previous action." In his memorandum in opposition to the motion, the plaintiff argues that the doctrine of laches does not bar his claim for unjust enrichment because "[w]hile the plaintiff participated in [ Sethi I] . . . the defendant was fully aware of the fact that a claim was being made for the return from the defendant of the $70,000."
The defendant has failed to show that the plaintiff's delay in bringing this action caused any prejudice to him. As the plaintiff argues, at all times beginning with the commencement of Sethi I the defendant has been aware that he is subject to defending a claim for $70,000. The facts of Sethi I and this action are substantially the same. The defendant has not offered any proof that he has been misled or that he has had to change his position with respect to this matter. Furthermore, the defendant has failed to bring forth any evidence to support his claim that he "was forced to defend [ Sethi I] at great expense and cost . . ." Thus, the defendant has failed to meet his burden on the second element of laches. Accordingly, the defendant is not entitled to summary judgment of the unjust enrichment claim on the ground of laches.
The defendant also argues that the plaintiff has no standing to bring an unjust enrichment claim because the plaintiff does not allege that he paid money to the defendant. The doctrine of unjust enrichment holds "that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment . . . This doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated . . . The question is: Did [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?" (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 451-52.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue." (Internal quotation marks omitted.) Wellswood Columbia, LLC v. Hebron, 295 Conn. 802, 809, 992 A.2d 1120 (2010). "Thus, to state these basic propositions another way, if the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. [When], for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them." (Internal quotation marks omitted.) Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 476-77, 863 A.2d 645 (2005). "[T]hree policy factors . . . guide courts in their application of the general principle that plaintiffs with indirect injuries lack standing to sue . . . First, the more indirect an injury is, the more difficult it becomes to determine the amount of . . . damages attributable to the wrongdoing as opposed to other, independent factors. Second, recognizing claims by the indirectly injured would require courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the violative acts, in order to avoid the risk of multiple recoveries. Third, struggling with the first two problems is unnecessary [when] there are directly injured parties who can remedy the harm without these attendant problems . . . The purpose of the test is to determine whether the harm allegedly suffered is indirect, remote and derivative with respect to the defendant's conduct, and, therefore, whether the plaintiff can allege an ascertainable loss and thus have standing." (Citation omitted; internal quotation marks omitted.) Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 664-65 n. 18, 986 A.2d 278 (2010).
In Connecticut, an indirect relationship between the plaintiff and the defendant is not an automatic bar to a claim for unjust enrichment. "Although unjust enrichment typically arises from a plaintiff's direct transfer of benefits to a defendant, it also may be indirect, involving, for example, a transfer of a benefit from a third party to a defendant when the plaintiff has a superior equitable entitlement to that benefit . . . If a payment to [a] defendant is an asset to which the claimant (as against defendant) has the paramount entitlement, the law of restitution and unjust enrichment supplies a claim to recover the amount in dispute." (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 468.
In determining whether the plaintiff has standing to bring his claim for unjust enrichment, the court examines the pleadings. In count one, paragraph four of his amended complaint, the plaintiff alleges the following: "My father gave BRUHAN the sum of $70,000 as a deposit for the business, took over the operation of the business, and the balance of to be paid in November 2004." In count one, paragraph six, the plaintiff alleges the following: "By its judgment on October 13, 2009 the Court found that the $70,000 the defendant received [from] my father and retained by the defendant was `paid by his son to the defendant.'" Thus, in his amended complaint, the plaintiff fails to make a direct allegation that he was the one who provided the money to the defendant.
In his memorandum in opposition to the motion, the plaintiff argues that he "gave his father, Balram Sethi, substantially all of the $70,000.00 which [Balram] needed to give, and personally gave, to the defendant as a deposit for the purchase of a deli." (Emphasis added.) This claim is repeated in the plaintiff's affidavit in opposition to the motion, where in paragraph two the plaintiff attests: "I borrowed a substantial portion of the $70,000 for my father which he needed to pay the defendant as a deposit for him to take over the defendant's deli business." In paragraph three of the affidavit, the plaintiff attests: "I never had any contract with the defendant and never paid anything to the defendant." (Emphasis added.)
"Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001). "A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it . . . It is axiomatic that the parties are bound by their pleadings." (Internal quotation marks omitted.) David M. Somers Associates, P.C. v. Kendall, 123 Conn.App. 31, 36, 1 A.3d 217 (2010). The plaintiff's statements that he gave money to his father and that he never paid any money to the defendant are judicial admissions. Viewed in the light most favorable to the plaintiff, these allegations show that by failing to return the $70,000, the defendant enriched himself at the expense of the plaintiff's father and not at the expense of the plaintiff. According to the plaintiff's pleadings, the plaintiff's father is the directly injured party who has standing to remedy the harm. There is no allegation that this was money that the plaintiff paid to the defendant with the plaintiff's father acting as the middleman or that the money was given to the defendant with the understanding that it needed to be returned to the plaintiff instead of the plaintiff's father in case the sale of the deli did not go through. No economic transaction occurred between the two parties. For the reasons stated above, the plaintiff cannot establish that he has a superior equitable entitlement to the money that his father allegedly supplied to the defendant.
B.
The defendant seeks summary judgment on count two of the amended complaint, which alleges a violation of CUTPA. General Statutes § 42-110g(a) provides in relevant part: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . ." "[General Statutes §] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness." (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010). "Despite CUTPA's broad remedial nature, [t]he plain language of § 42-110g(a) provides one limitation by requiring that the plaintiff suffer an ascertainable loss that was caused by the alleged unfair trade practice." (Internal quotation marks omitted.) Calandro v. Allstate Ins. Co., 63 Conn.App. 602, 612, 778 A.2d 212 (2001).
As explained above, any alleged injury to the plaintiff arising out of the attempted sale of the deli is not a result of the defendant's conduct because the plaintiff has not alleged that he paid any money to the defendant. Connecticut courts have denied CUTPA standing to parties in similar situations. See, e.g., Vacco v. Microsoft Corp., 260 Conn. 59, 92, 793 A.2d 1048 (2002) ("the plaintiff's injuries are too remote in relation to the defendant's conduct, and, consequently, the plaintiff lacks standing to assert a CUTPA claim against the defendant on the basis of the defendant's allegedly anticompetitive conduct"). Because of the plaintiff's judicial admission that he did not pay the defendant, there is no genuine issue as to any material fact regarding the lack of a transaction between the parties. Accordingly, the plaintiff lacks standing to bring the CUTPA claim.
The defendant also seeks summary judgment on the CUTPA claim on statute of limitations grounds. "[W]here two distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 469, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). General Statutes § 42-110g(f) provides: "An action under this section may not be brought more than three years after the occurrence of a violation of [CUTPA]." The alleged failure to return the money to the plaintiff occurred in 2004. The plaintiff brought this action on December 31, 2009, five years after the alleged violation of CUTPA. In his memorandum in opposition to the motion for summary judgment, the plaintiff has not responded to the defendant's claim that he ran afoul of the CUTPA statute of limitations. The plaintiff has thus failed to show that there is a genuine issue of material fact as to when the alleged CUTPA violation occurred and how the statute of limitations affects the CUTPA claim. Accordingly, summary judgment is granted on count two on both standing and statute of limitations grounds.
The defendant's motion for summary judgment is granted as to both counts.