Opinion
CV155035188S
01-29-2016
Timothy Bonner (Individually), Timothy Bonner, Administrator of the Estate v. John D'Auria
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (#132)
Robin L. Wilson, J.
FACTS
On February 9, 2015, the plaintiffs, Timothy Bonner and Mary Bonner, filed a seven-count complaint against the defendant, John D'Auria. In count six of his complaint, which alleges a claim for statutory theft under General Statutes § 52-564, the plaintiff alleges the following facts. In May 2010, the defendant entered into a fiduciary relationship with the plaintiff and became the investment adviser/broker for the plaintiff. From May 2010 through December 2014, the defendant maintained the fiduciary relationship with the plaintiff. The plaintiff tendered a total of $416,296.20 to the defendant with the expectation that the defendant would invest the funds in the plaintiff's account. The defendant had complete control over the plaintiff's funds for investment purposes. In December 2014, the plaintiff discovered that, in December 2011, the defendant ceased to be a licensed investment broker/adviser. Upon information and belief, the defendant used his control over the investment funds to commit fraud and misappropriate the plaintiff's funds. The defendant wrongfully retained the plaintiff's property when he knowingly and intentionally failed to make investments into the plaintiff's investment accounts and converted the funds to his own. The defendant retained the funds with the intent to deprive the plaintiff of the funds and with the intent to misappropriate the funds. The defendant breached his fiduciary obligations and, to date, has not tendered the funds into the plaintiff's investment account. As a result of the defendant's conduct, the plaintiff sustained injuries and seeks damages.
The only complaint filed with this court was a proposed writ, summons, and direction for attachment. Accordingly, this court will refer to the proposed writ as the operative complaint.
On June 10, 2015, the plaintiffs filed a motion to substitute a party plaintiff, which was granted by the court on November 2, 2015. The plaintiff, Mary Bonner, died on April 27, 2015, and as a result, the plaintiffs moved to substitute Timothy Bonner, administrator of the estate of Mary Bonner, as a party plaintiff. For purposes of this memorandum, Timothy Bonner, in his individual capacity and in the capacity as administrator of the estate of Mary Bonner, will be referred to collectively herein as the plaintiff.
On September 30, 2015, the plaintiff filed a motion for summary judgment as to count six of his complaint, on the ground that there is no genuine issue of material fact as to whether he is entitled to treble damages as a matter of law pursuant to § 52-564. In support of his motion, the plaintiff filed a memorandum of law; stipulated facts signed by the defendant; copies of the defendant's plea agreement and restitution order in connection with a criminal prosecution case, United States v. D'Auria, United States District Court, Docket No. 3:15CR00121 (MPS) (D.Conn. July 13, 2015); the plaintiffs own sworn affidavit; and a copy of the plaintiff's requests for admissions. On October 29, 2015, the defendant filed a memorandum of law in opposition supported by his own sworn affidavit. Oral argument was heard on the motion at short calendar on November 2, 2015.
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014); see also Practice Book § 17-49. " [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The 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 . . . When 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." (Emphasis added; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013).
" [I]t is only [o]nce [the] [moving party's] burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] [nonmoving party] to show that a genuine issue of fact exists justifying . . . Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case . . . Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment . . . [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings . . ." (Citations omitted; internal quotation marks omitted.) Id., 320-21.
The plaintiff argues that there is no genuine issue of material fact as to whether he is entitled to treble damages pursuant to § 52-564. Specifically, he argues that, on the basis of the defendant's admissions in the plea agreement and stipulated facts, there is no dispute that the defendant committed statutory theft by defrauding the plaintiff of $416,246.20 in investment funds. Accordingly, the plaintiff argues that he is entitled to treble damages as a matter of law under § 52-564.
Section 52-564 provides: " Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
In response, the defendant asserts that genuine issues of material fact render summary judgment inappropriate. First, the defendant asserts that there exists a genuine issue of material fact as to the amount of funds that the plaintiff transferred to him. Second, the defendant asserts that there is a genuine issue of material fact as to why the funds were not returned to the plaintiff. Finally, the defendant contends that there is insufficient proof that he stole the funds from the plaintiff.
Section 52-564 provides: " Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." Although the term " steal" is not defined in the statute, our Supreme Court has observed that " [s]tatutory theft pursuant to § 52-564 . . . is synonymous with larceny under General Statutes § 53a-119 . . ." Weiss v. Weiss, 297 Conn. 446, 470 n.18, 998 A.2d 766 (2010). " Pursuant to § 53a-119, [a] person commits larceny when, with 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 an owner." (Internal quotation marks omitted.) Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520-21, 705 A.2d 215 (1998). " [M]oney can be the subject of statutory theft . . . The plaintiffs must establish, however, legal ownership or right to possession of specifically identifiable moneys." (Citations omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771-72, 905 A.2d 623 (2006).
To prove the element of intent, within the context of larceny, there must be proof " that the defendant intended to deprive another person of property permanently . . . Intent may be inferred by the trier of fact from the conduct of the defendant." (Citations omitted.) State v. Kimber, 48 Conn.App. 234, 240, 709 A.2d 570, cert. denied, 245 Conn. 902, 719 A.2d 1164 (1998); see also Whitaker v. Taylor, 99 Conn.App. 719, 732, 916 A.2d 834 (2007) (plaintiff failed to sufficiently plead claim for statutory theft where plaintiff merely alleged that money was " stolen, " but not that defendants acted with intent to permanently deprive plaintiff). Accordingly, in Suarez-Negrete v. Trotta, supra, 47 Conn.App. 521-22, our Appellate Court concluded that evidence presented to the trial court was sufficient to establish the intent element of statutory theft in that " (1) the money held by the defendant belonged to the plaintiff, (2) the defendant intentionally deprived the plaintiff of his funds, and (3) the defendant's conduct was unauthorized." Similarly, in Masse v. Perez, 139 Conn.App. 794, 796, 58 A.3d 273 (2012), cert. denied, 308 Conn. 905, 61 A.3d 1098 (2013), the plaintiff alleged a claim of statutory theft because the defendant " expunged and/or removed and/or spent the funds for her personal use from the [t]rust without authorization or consent from the plaintiff." The trial court concluded that the plaintiff proved statutory theft because the defendant's withdrawal and use of the plaintiff's funds was unauthorized. Id. On appeal, the defendant argued that the trial court improperly awarded treble damages for statutory theft pursuant to § 52-564 because there was insufficient evidence that the defendant intended to permanently deprive the plaintiff of the funds. Id., 796-97. The Appellate Court affirmed, concluding that " there was sufficient evidence to conclude that the defendant's withdrawal of the plaintiff's funds was unauthorized and, therefore, constitutes an intentional deprivation of property for the purpose of establishing statutory theft. Because § 52-564 provides that any person committing statutory theft 'shall pay the owner treble his damages' the court's award of treble damages was not improper." Id., 802.
Similarly, in the present case, the plaintiff has submitted evidence sufficient to satisfy his burden of establishing that there is no genuine issue of factual dispute regarding whether the defendant committed statutory theft under § 52-564. First, in the stipulated facts, the defendant admits that he " has dominion and control over the plaintiffs investment portfolio valued at roughly $517,000, " and that " after being ordered to retrieve the same, the defendant failed to provide the account names, numbers and locations for the plaintiffs investment portfolio of roughly $517,000." Furthermore, in the defendant's plea agreement, he admitted to his participation in an investment fraud scheme to defraud victims from approximately 2010 through 2014, during which he made false statements and misrepresentations. In the Plea Agreement and Stipulation of Offense Conduct, the defendant admitted: " The defendant made false statements and misrepresentations to his investors regarding (a) the purported returns generated by their investments; (b) defendant's use of funds obtained from investors; and (c) the fact that defendant represented to investors that their funds were fully invested in separate accounts . . . but rather comingled the funds in his own personal bank accounts and his own trading account and used the majority of the funds for his personal use." Additionally, in his affidavit, the plaintiff states that he was one of the defrauded investors referred to in the plea agreement and that he is the victim identified in the restitution order as " TRB." Schedule A, attached to the restitution order, identifies " TRB" as a victim entitled to $410,738.96.
This court took judicial notice of the defendant's guilty plea and stipulation of conduct at the short calendar on November 2, 2015.
Finally, the defendant signed the Stipulation of Offense Conduct which states " defendant engaged in a scheme to defraud investors who had provided him with investment funds by failing to invest the funds as represented and by using the majority of the investment funds for his personal use without disclosing this fact to his investors . . . Defendant caused investors to send interstate wire communications in the form of bank transfers by falsely representing to the investors that these interstate bank transfers would be invested by the defendant on behalf of the investors in a separate account." This undisputed evidence is sufficient to establish statutory theft because the investment funds held by the defendant belonged to the plaintiff, the defendant intentionally deprived the plaintiff of his investment funds, and the defendant's conduct was unauthorized. See Suarez-Negrete v. Trotta, supra, 47 Conn.App. 521-22. Accordingly, the plaintiff has met his evidentiary burden for a motion for summary judgment. The burden, therefore, shifts to the defendant to submit evidence that establishes a genuine issue of material fact.
The defendant has not met his burden of proof to establish that a genuine issue of material fact exists as to whether the plaintiff is entitled to treble damages as a matter of law. The defendant provides the court with nothing more than conclusory statements and his own self-serving affidavit stating that: " The plaintiffs did not transfer to me their stated amount; and, I did not steal any money from them." It is worth noting that the defendant does not dispute any of the admissions he made in connection with his criminal prosecution. Rather, his argument appears to be that, notwithstanding those admissions, there still exists a genuine issue of material fact. Our Supreme Court has stated that " [a]lthough an affidavit . . . may be considered in opposition to a motion for summary judgment, conclusory affidavits . . . do not provide a basis on which to deny such motions." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 557, 791 A.2d 489 (2002); see also Walker v. Housing Authority, 148 Conn.App. 591, 597, 85 A.3d 1230 (2014) (" a nonmoving party's conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment"). While the defendant's affidavit is made on personal knowledge by a person competent to testify, the defendant offers legal conclusions without specific supporting facts of the sworn statements made. Without more, however, the defendant fails to meet his burden of establishing that he did not misappropriate the plaintiff's investment funds with the intent to permanently deprive the plaintiff of the investment funds. Accordingly, the defendant has not met his burden of establishing that a genuine issue of material fact exists as to whether the plaintiff is entitled to treble damages. Therefore, the motion for summary judgment is granted and the plaintiff is entitled to treble damages as a matter of law.
There is some discrepancy as to the precise amount of damages that the plaintiff is entitled to. The plaintiff alleges in his complaint that he transferred the defendant $416,296.20. In his motion for summary judgment, however, the plaintiff sought damages in the amount of $1,551,000, which appears to be based on the defendant's admissions in the stipulated facts that the value of the plaintiff's investment portfolio is worth $517,000. In addition, the restitution order states that the plaintiff is entitled to $410,738.96. On October 28, 2015, the plaintiff filed an affidavit with this court and sought treble damages in the amount of $1,232,216.88 based on the amount awarded in the restitution order. In his affidavit, the plaintiff also sought interest at a rate of ten percent per annum. Accordingly, while there is no genuine issue of material fact as to whether the plaintiff is entitled to treble damages, it is not clear which principle amount should be trebled.
CONCLUSION
For the foregoing reasons, plaintiff's motion for summary judgment as to count six is granted entitling the plaintiff to treble damages as a matter of law.