Summary
In Casey v. Edwards, 123 Wn. 661, 212 P. 1082, there was language used, which was not necessary to the decision in that case, to the effect that the purchaser of land under an executory contract which contained a forfeiture clause had only a personal property right prior to the time that the consideration had been fully paid.
Summary of this case from State ex rel. Oatey Orchard Co. v. Superior CourtOpinion
No. CV 07-5013568S
November 3, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#108) AND PLAINTIFF'S OBJECTION (#110)
Familiarity with the case law recited by the parties is presumed and need not be generally repeated. Summary Judgment is a matter of issue recognition not issue resolution. It is not a substitute for a court trial. The movant must show entitlement to summary judgment as a matter of law. The movant has not met its' burden of proof.
Primarily the movant has offered in support of its motion the conjecture and speculation of the Plaintiff himself in his deposition about the employment status of the tortfeasor. It is not enough for the movant to assert the absence of any disputed material fact. The movant must offer enough admissible evidence to show the absence of any material dispute. The movant has not done so. Surely the movant is uniquely in a position, vis-a-vis the plaintiff, to provide through its own records and employees evidence concerning the tortfeasor's status. Such failure is sufficient to deny this motion and the Court need go no further. Where the movant has not met its' burden of proof the opposing party is under no burden to produce any contravening evidence. Walker v. Lombardo, 2 Conn.App. 266, 269 (1984).
However, for the sake of Judicial completeness and efficiency, the Court further concludes that the movant's claim that the tortfeasor's status as a independent contractor is a question of law is incorrect. In the first instance such decision cannot be made in a factual vacuum. It is a mixed question of fact and law. The plaintiff presents a litany of factors including, but not limited to, special clothing, designated selling areas, exclusive New Haven Register sales, and termination of employment at will, all of which in the totality of the circumstances create predicate factual issues as to the tortfeasor's status. These issues are for the triers of fact and beyond the scope of this motion. Moreover the nomenclature in the agreement submitted by the movant is not controlling. The customary rule that agency is a question of fact is in play.
The Movant's reliance upon Darling v. Burrone Bros., Inc., 162 Conn. 187 (1972), is misplaced. That case did not involve a motion for Summary Judgment and the Court's ruling was premised on a jury verdict after a full trial.
Motion denied.