Gilmore v. Public Storage, Inc.

Full title: BESS GILMORE ET AL. v. PUBLIC STORAGE, INC

Court: Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Feb 25, 2009

No. V04 040 96 78 S (Conn. Super. Ct. Feb. 25, 2009)

Opinion

No. V04 040 96 78 S

February 25, 2009

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #168

BELLIS, J.

FACTS

On February 10, 2004, the plaintiffs, Bess Gilmore and Keith Gilmore, commenced this action by service of process on the defendant, Public Storage, Inc. The plaintiffs' complaint alleges the following facts. In August 1995, Bess Gilmore entered into a "written adhesion form agreement" with an entity known as the Public Storage Income Fund 8¹ to lease storage space at its facility on a month-to-month basis for a monthly fee of $177. When inquiring about the type of storage areas that were available, Bess Gilmore indicated that she was interested in preserving and protecting her property and, due to the nature of this property, she desired the largest and best space, preferably a ground floor unit, specifically inquiring about the dampness of the unit because the "property to be stored could be damaged by dampness." She was informed that her concerns were not a problem and that space A088 would meet her requirements. Over a period of years, she made many trips to the facility to store and preserve her personal property, which consisted of "tens of thousands of valuable video tapes whose origin spanned a period of decades, and other personal items of [the] plaintiffs." In March 1997, Bess Gilmore received a letter from the defendant advising her that it had assumed ownership and operation of the facility, that her storage arrangement was now with the defendant, and that her rental fee would be increased to $192 per month. She "understood this to be a new agreement with a new party at a new term, and assented to this new arrangement by continued payment at the new rate." The defendant sent out letters increasing the rent for A088 in 1998 to $199, twice in 2000 (first to $209 and next to $230), in 2002 to $239 and in 2003 to $257.58.

1 According to the plaintiffs, Public Storage Income Fund 8 is a different legal entity from the defendant.

On March 1, 2000, the plaintiffs entered into a "written adhesion form agreement" with the defendant to lease a second storage space, number A179, with a monthly fee of $159, to provide extra space for their personal property. Subsequent to the rental of this second space, the defendant informed Bess Gilmore that the sprinkler system had broken and her unit had been "hit" with an indeterminate amount of water, that this was an isolated event, and that there was no need to move her property. In each of the years 2000, 2002 and 2003, the defendant sent a letter advising her of an increase in the rent of space A179 to $175, $189, and $206.70 respectively. Over a period of several years, the defendant charged her late fees, which she alleges were in violation of the rental agreements and the law. Since she was "threatened repeatedly through the United States mails with the auction, sale and/or disposition of her property, [she] was forced under duress to make these unlawful payments although objecting to their legality."

The defendants mailed the plaintiffs a document entitled "LIEN NOTICE AND NOTICE OF INTENTION TO SELL PROPERTY TO SATISFY LIEN," dated November 15, 2001, for space A088, indicating that the defendant would advertise the plaintiffs' property for sale and sell it at auction. The defendant sent out its next lien notices in letters dated February 13, 2002, and July 10, 2002, for space A088, stating that the plaintiffs owed certain fees. In addition, the first of these lien notices with identical language to those sent regarding space A088 was also sent out for space A179 in letters dated November 12, 2001 and July 10, 2002. Throughout this period, the plaintiffs paid some of these charges out of duress, even though they felt that the charges were not due and owing, were in breach of contract and unlawful. The plaintiffs allege that the defendant's conduct included "dispossession of the plaintiffs from their property, and constituted unlawful acts of conversion and additionally constituted violations of the provisions of the Connecticut General Statutes, Chapter 7[4]3, §§ 42-159 et seq.," the self-service storage facilities act. In fact, the plaintiffs allege that on August 16, 2002, Bess Gilmore had visited the facility and complained vehemently about the illegality, unfairness and oppression of these fees, but paid the defendant in cash for both spaces. She refused to pay late fees then in the amount of $119.34 for A088 and $116.93 for A179. The plaintiffs also received "late notice" letters dated September 16, 2002, two dated June 16, 2003 for space A088, and two dated June 16, 2003 for space A179, which contained demands for payment of purported "late fees," without any itemization of the fees or their explanation.

In two letters "[o]n August 1, 2003, [the] defendant sent Mrs. Gilmore a `Final Notice' regarding space A088 [and A179], demanding full payment including the disputed `Late Fees within five days of the date of the notice, otherwise `Owner will begin the legal process of selling your property at public auction.'" The defendant's notice further stated that "ONLY full payment" would be accepted and "you will be required to vacate the premises." The plaintiffs received another letter, dated August 8, 2003, purporting to give notice that the property in A088 and A179 would be auctioned off unless all past due balances were paid by August 25, 2003. Bess Gilmore continued to pay the rental fees but refused to pay the "Late Fees." At all times, Bess Gilmore "considered both the notice and these charges to be a breach of contract and unlawful" and that the statutory advertisements "for space A088 dated August 8, 2003 constituted flagrant violations of the Connecticut General Statutes § 42-164(a), § 42-164(a)(1), § 42-164(b), § 42-161(a) and § 42-163" of the self-storage facilities act. As to space A179, she alleges that the fees were unlawful and a breach of contract and that the notice "was in flagrant violation of Connecticut General Statutes § 42-162(a)(1)(2)(4) and (5)."²

2 The plaintiffs incorrectly refer to § 42-162 regarding the contents of the notice requirements as having a subsection (a), which it does not.

Sometime in September 2003, the plaintiff received "phone calls from the defendant that a severe water sprinkler break occurred at the facility." In a series of four letters all dated September 26, 2003 (two for unit A088 and two for A179), she was informed "that another sprinkler break in the facility caused water to enter the storage units." These letters to Bess Gilmore stated that "to protect your property as well as to facilitate necessary repair work to the building," she was advised "to inspect her property, specifically to check and potentially relocate your goods to another unit" and that the defendants would "attempt to facilitate any necessary cleaning and relocation to another storage unit." The plaintiffs allege that they relied on the telephonic and written representations. When Bess Gilmore inquired during a subsequent telephone conversation about the relocation of her property, a woman at the defendant's facility told her that the property from A088 had been put into a dumpster and thrown away. Subsequent to this revelation, the plaintiffs received a notice dated October 2, 2003, and again on October 9, 2003, that indicated that all of their property in A179 was subject to public auction if the plaintiffs did not pay their remaining balance by October 27, 2003. Finally, the complaint alleges that a similar letter was received on January 23, 2004, which notified the plaintiffs of the defendant's intent to proceed with a public auction on February 27, 2004.

In their complaint, the plaintiffs allege the following causes of actions: (1) violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a, (2) statutory theft, (3) conversion, (4) willful and wanton misconduct, (5) misrepresentation, (6) negligent misrepresentation, (7) trespass to chattels, (8) gross negligence, (9) breach of the implied covenant of good faith and fair dealing and (10) intentional infliction of emotional distress alleged by only Bess Gilmore. On July 24, 2008, the defendant filed a motion for summary judgment as to all counts and submitted a memorandum of law in support, an affidavit of Anthony Viglione, a manager of the defendant's, and numerous items of documentary evidence. The plaintiffs filed a memorandum in opposition on September 3, 2008, attaching multiple lien notices and an affidavit of Bess Gilmore. On September 17, 2008, the defendant filed a reply memorandum with a supplemental affidavit of Anthony Viglione. The motion was heard at short calendar on October 6, 2008. Pursuant to the request of the court at that time regarding the admissibility of the defendant's supplemental affidavit, the plaintiffs filed a supplemental memorandum of law in opposition to the affidavit on November 5, 2008.

DISCUSSION

"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

In its memorandum in support of the motion, the defendant argues that the court should grant the present motion for summary judgment without further review, based on the law of the case doctrine. The defendant's position is that Judge Owens granted the defendant's first motion for summary judgment filed on August 25, 2006, which raised all the same grounds as in the present motion, and, the Appellate Court subsequently reversed and remanded the case based on a procedural ground, Gilmore v. Public Storage, Inc., 108 Conn.App. 143, 947 A.2d 441 (2008), the defendant argues that the original decision granting the motion is the law of the case. The plaintiffs, on the other hand, posit that as a result of the Appellate Court's reversal of the decision³ the underlying ruling of the trial court was rendered incorrect and "it would be improper to again submit a second judgment on the Motion for Summary Judgment to the Appellate Court after reversal of judgment on the same Motion." The plaintiffs assert that this case now "requires a trial on the merits rather than a secondary interlocutory appeal on the same issues briefed and argued before the Appellate Court during a 20 month period."

3 Judge Owens' decision was reversed on the basis that the motion for summary judgment appeared on the short calendar prematurely, i.e., prior to thirty days after the plaintiff's request for an extension of time.

"Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Testa v. Geressy, 286 Conn. 291, 306-07, 943 A.2d 1075 (2008). Inasmuch as the Appellate Court ruled on the procedural violation only and did not "address the remaining claims,"⁴ there is no law of the case doctrine that applies to the current motion.

4 The court addressed the first claim on appeal only: "that the [trial] court improperly granted the defendant's motion for summary judgment after a hearing for that motion was scheduled on the short calendar in violation of the rules of practice." Gilmore v. Public Storage, Inc., supra, 108 Conn.App. 143. The order stated: "The judgment is reversed and the case is remanded for further proceedings in accordance with law." Id., 145.

In addition to addressing the substantive arguments raised by the defendant on each count of the complaint, the plaintiffs set out a number of arguments in opposition to the motion. The plaintiffs argue that the second motion for summary judgment is "materially different from the first," which is in violation of Practice Book § 17-44, ⁵ that second summary judgment motions are improper and not allowed in Connecticut, ⁶ that the affidavit of Anthony Viglione submitted with the motion is in violation of Practice Book §§ 17-45 and 17-46 on the grounds that it "does not establish that the exhibits referenced therein and attached to the Memorandum are based on personal knowledge, or that these exhibits referenced therein would be otherwise admissible, or establish that the affiant is competent to testify to the exhibits and allegations therein,"⁷ and that the defendant failed to refute the existence of every genuine issue of material fact alleged in the complaint and establish that there is no genuine issue of every material fact in the complaint.⁸

5 The plaintiffs maintain that because the first motion for summary judgment failed to include any supporting documentation as required, it should have been denied because it was in violation of Practice Book §§ 17-45 and 17-46. Therefore, the defendant's inclusion of an affidavit in this "second chance" motion for summary judgment "is not provided for by rule, and unfair, two years since the filing of the Motion for Summary Judgment, three years from the scheduled trial date." The plaintiffs, however fail to provide the court with any case law that interprets these rules as they do. The plaintiffs also argue that this motion was filed after the case was assigned for trial and that Practice Book § 17-44 only allows a summary judgment motion to be filed prior to assignment for trial. The record shows that the case was assigned for trial on November 10, 2005, but that the assignment was vacated. The case has not been reassigned. As a result, there is no violation of that section of the rules of practice.

6 The plaintiffs argue that a second motion for summary judgment should be denied because the Practice Book does not allow the filing of a second motion for summary judgment. "There is nothing in the rules of practice or in our case law . . . that specifically restricts a party to one summary judgment motion." Fiaschetti v. Nash Engineering Co., 47 Conn.App. 443, 445-46, 706 A.2d 476, cert. denied, 244 Conn. 906, 714 A.2d 1 (1998); see also Chada v. Charlotte H. Hospital Administration, Superior Court, judicial district of Litchfield, Docket No. CV 99 0079598 (August 19, 2005, Pickard, J.) (trial court has discretion to consider new motion for summary judgment that has previously been denied when supported by new or additional evidence); Biarelli v. Maple Grove Memorial Park, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 98 03584035 (September 12, 2002, Gallagher, J.), (second motion for summary judgment, premised almost exactly like the first, may proceed even though original motion could have been reargued). Presently, the second motion for summary judgment is similar to the first motion, and new evidence has been supplied to the court. The present motion is properly before the court.

7 This argument, in the plaintiffs' memorandum of law in opposition to the motion for summary judgment, was directed towards the first affidavit of Anthony Viglione; subsequently, after the defendants submitted a supplemental affidavit of Anthony Viglione, the same argument was made by the plaintiffs in their supplemental memorandum of law filed on November 5, 2008. These arguments will be addressed in the portion of the decision regarding the admissibility of the evidence submitted by the parties.

8 In their memorandum in opposition, the plaintiffs argue that "it is a legal and factual impossibility to find that there is no disputed issue of any material fact in the Complaint," because the defendant "has not lawfully responded to" certain paragraphs of the complaint, and therefore, the motion should fail. The plaintiffs appear to request a determination that every allegation in the complaint is, per se, a material issue, that the defendant did not rebut them, and therefore, "[the] failure of defendant to rebut a single allegation . . . is fatal to their summary judgment." Based on the standard of review, the defendant must provide evidence to show the absence of a genuine issue as to all of the material facts and, subsequently, the plaintiff then must show the existence of a genuine issue of material fact. The absence of a genuine of material fact will be discussed in each count by the court.

I ADMISSIBILITY OF THE EVIDENCE

"[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a) commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 879 (2005), "Practice Book § [17-45] although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) Id., 678.

A The Affidavits of Anthony Viglione

The plaintiffs argue that the initial affidavit of Anthony Viglione, "does not establish that the exhibits referenced therein and attached to the Memorandum are based on personal knowledge or that these exhibits . . . would be otherwise admissible, or establish that the affiant is competent to testify to the exhibits and allegations therein." The plaintiffs argue, more specifically, that the affidavit is "a desperate and repetitive litany to apparently secure admissibility of purported exhibits, . . . of which the affiant has no personal knowledge of, introducing copies of documents the creation of which are entirely unknown, by a computer process which is impossible to determine, or if affiant has any knowledge of or experience with, by a computer process to which there is no evidence of its reliability, where there is not evidence as to what source or person or persons the affiant secured the documents from, without plaintiffs even having the opportunity for voir dire." In its reply memorandum, the defendant counters that the affidavit is valid and clearly states "that it is made `under oath' and `under the penalties of perjury,'" that it is "based on personal knowledge by Mr. Viglione, the manager of the relevant . . . facility," and that the "referenced documents are `true and accurate cop[ies]' that are `unaltered from [their] original condition[s].'" In addition, it has submitted a supplemental affidavit of Anthony Viglione addressing "all requirements for authenticating computer data." The plaintiffs, in their supplemental memorandum filed on November 5, 2008, argue that "affidavits in support of a motion for summary judgment must be filed with the original motion" and, therefore, the defendant's supplemental affidavit should not be considered by the court. The plaintiffs further argue that the supplemental affidavit is "unlawful and as such void and should not be considered by the court," repeat all of their initial arguments that it is "improper, insufficient and unlawful on the merits," and expound on why the documents do not come within the business record exception to hearsay.

Practice Book § 17-46 provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." "The facts contained in the . . . `affidavits and exhibits, with inferences which could be reasonably and logically drawn from them,' could, if the trier credited the evidence supporting the facts, support a claim . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

In both affidavits, Anthony Viglione attests that under oath and penalty of perjury he is of legal age and states the following. In paragraph one of the first affidavit, he testifies: "I am a manager for Public Storage, Inc. and make this affidavit based on personal knowledge of the facts and information contained herein." In the supplemental affidavit, in paragraph one, Anthony Viglione attests that he is "a district manager for Public Storage, Inc." and he makes "this affidavit based on personal knowledge of the facts contained herein." In paragraph three, he states: "As a manager of [Public Storage], it is a part of my responsibility to be familiar with customer accounts at the storage facilities in my territory. The facility at which the Gilmore property is stored . . . is a part of my territory"; and in paragraph nine, he states: "I have personal knowledge of interactions with the Gilmore family by staff at [Public Storage] that have occurred in person, through correspondence and by telephone conversation."⁹ In addition, both affidavits are signed after declaring "under penalties of perjury that the foregoing is true and correct." A review of both affidavits reveal that they comport with the requirements of Practice Book § 17-46. Furthermore, while supplemental affidavits and sur-replies are not specifically defined by the Practice Book, neither are they forbidden.¹⁰ See Practice Book § 17-45. Viglione's affidavits have been properly filed and made with the requisite personal knowledge and competency, and the supplemental affidavit is properly before the court.

9 The plaintiffs refute this last statement by arguing that they "never had any interaction with [Anthony Viglione] during this period [referring to 1995 to 2003], and in fact defendant has judicially admitted in response to Plaintiffs' Interrogatories No. 1 that the District Managers during this period were Eric Laforge and James Grimaldi." The plaintiff's argument misconstrues the statement by Anthony Viglione. He does not state that he had the personal interaction with the plaintiffs but that he had knowledge of the interactions with the Gilmore family by the staff at the storage facility.

10 Practice Book § 1-8 states in relevant part that the rules of practice "will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."

B Hearsay

Next, the plaintiffs argue that all of the evidence affirmed through Viglione's affidavits is hearsay constituting "double, triple or quadruple hearsay," to which a hearsay exception must be applied at each level, and that the evidence submitted as a business records exception is in violation of that exception. The plaintiffs further maintain that "the affiant cannot testify to the use, knowledge and/or experience of others with the computer technology utilized to create the computer record," and, therefore, these records do not satisfy the requirements of admissibility for computer generated data set forth in American Oil Co. v. Valenti, 179 Conn. 349, 361, 426 A.2d 305 (1979) and Emigrant Mortgage Corp. v. D'Agostino, 94 Conn.App. 793, 809, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006).¹¹ The defendant counters that the affidavits properly authenticate the ten referenced exhibits as business records and, as a result, are not hearsay.

11 The plaintiffs' reference to Emigrant Mortgage Corp. v. D'Agostino, in volume 94 of Conn.Sup. is incorrect.

"To admit evidence under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that [1] the record was made in the regular course of business, that [2] it was in the regular course of such business to make such a record, and that [3] it was made at the time of the act described in the report, or within a reasonable time thereafter . . . To qualify a document as a business record, the party offering the evidence must present a witness who testifies that these three requirements have been met." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 696, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

"Section 52-180 is to be liberally construed [in favor of admissibility] . . . A liberal interpretation of § 52-180 is supported by its express terms, which provide that a record shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence, or event recorded or (2) the party's failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect the admissibility." (Citation omitted; internal quotation marks omitted.) Emigrant Mortgage Corp. v. D'Agostino, supra, 94 Conn.App. 808.

"When computer records are offered as evidence, the proponent must . . . [meet] the three requirements of the business records exception . . . [and] establish that the basic elements of the computer system are reliable." (Internal quotation marks omitted.) Id., 809. See also American Oil Co. v. Valenti, supra, 179 Conn. 357-58 (witness' personal knowledge goes to weight of the evidence, not to its admissibility). "While the circumstances of the making of [the records] may be shown to affect the weight of that evidence . . . there is no requirement that the accuracy of a business record be proved as a prerequisite to its admission." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Carobetto, 55 Conn.App. 369, 375, 739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999). Furthermore, "[r]outinely prepared records . . . are well recognized exceptions to the hearsay rule, because their regular use in the business of the company insures a high degree of accuracy. Proof of day-to-day business reliance upon computerized records should therefore make less onerous the burden of laying a proper foundation for their admission." (Internal quotation marks omitted.) State v. Swinton, 268 Conn. 781, 807, 847 A.2d 921 (2004).

In his affidavits, Viglione satisfies the three conditions set forth in § 52-180. He affirms that the computer documents were "made at the time and place indicated by a person authorized and with knowledge to make it," that the computer itself houses the customer accounts, and "these account ledgers are maintained by the facilities manager and staff." Since the documents averred to in the affidavit were made for the regular use in the business itself, and not only for litigation, the reliance and trustworthiness of these computerized records requires a less burdensome foundation for their admission. Thus, the affidavit establishes Viglione's familiarity with the company's computer systems sufficiently to satisfy the requirements of the business records exception. As a result, the evidence attested to in the affidavits falls within the business records exception to hearsay, and is properly admissible before the court pursuant to Practice Book § 17-45 and § 17-46.¹²

12 The plaintiffs also contend that the documents were not made at the time of the act or within a reasonable time thereafter, but instead were made at the time of the plaintiffs' delinquency or default. The plaintiffs, however, fail to submit evidence that preparation of documents upon the plaintiffs' delinquency or default is outside of "a reasonable time." The plaintiffs further argue that Viglione was not a manager at the time in question, because his name was not included in an answer to an interrogatory. This need not be considered since the interrogatory did not seek the names of all district managers, and the response did not purport to list such names.

II COUNT ONE BREACH OF THE CONNECTICUT UNFAIR TRADE PRACTICES ACT

In its memorandum of law, the defendant argues that it is undisputed that it neither breached the self-service storage facility statute nor any contract with the plaintiffs in such a way as to violate CUTPA. The defendant further asserts that "there is no causal connection with plaintiffs' harm and the alleged violation of the storage facilities statute," and that this lack of causation causes the CUTPA claim to fail. In support of the motion, the defendant submits, in addition to the affidavits of Anthony Viglione, the contract for storage spaces A088 and A179 and the company business records regarding the plaintiffs' rent payment history. In their memorandum in opposition, ¹³ the plaintiffs argue that there remain questions of material fact regarding the defendant's alleged violation of CUTPA through its breach of the contracts and multiple violations of the self-service storage facility statute. The plaintiffs claim that the contract was invalid, and, therefore, all the additional charges made by the defendant pursuant to the contract were unlawful. They also contend that the defendant's noncompliance with the procedures for the execution of a lien is a statutory violation and that its conduct in dumping their tapes was immoral, unethical and unscrupulous, especially when the value of their property is compared to the value of any alleged storage fees owed, all of which amount to a CUTPA violation. In support of this position, the plaintiffs submit (1) copies of several of the "LIEN NOTICE AND NOTICE OF INTENT TO SELL PROPERTY TO SATISFY LIEN" letters received from the defendant, (2) a copy of admissions by the defendant of a promise to relocate the plaintiff's property to new units, and (3) the affidavit of Bess Gilmore.

13 In their opposition the plaintiffs challenge the validity and admissibility of the affidavits of Anthony Viglione, that the defendant has "fail[ed] to refute a single material fact in the complaint" and that the defendant "has failed to establish there is no genuine issue of every material fact as alleged in the Complaint." The admissibility of the affidavits has been discussed previously herein. As to the latter issues, these will be discussed within the individual counts as they apply to the movant's burden of proof and the court's standard of review of a motion for summary judgment.

Breach of Contract

"To form a valid binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties." (Internal quotation marks omitted.) Cheverie v. Ashcraft Gerel, 65 Conn.App. 425, 439, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001). Furthermore, "[a] lease is a contract." (Internal quotation marks omitted.) Central New Haven Development Corp. v. La Crepe, Inc., 177 Conn. 212, 214, 413 A.2d 840 (1979).

As to the validity of an enforceable lease agreement between the parties in the present case, the plaintiffs allege in count one, paragraph five: "In August 1995, Mrs. Gilmore entered into a written adhesion form agreement with a Public Storage Income Fund 8, a purported California limited partnership, to lease storage space at the facility, said agreement to run on a month-to-month term, with a monthly rental fee of $177.00. Mrs. Gilmore's storage space was designated as A088." In paragraph eleven, the plaintiffs allege: "Defendant sent Mrs. Gilmore a letter dated March 25, 1997, in which defendant thanked Mrs. Gilmore for `choosing Public Storage as your self storage facility,' and advising Mrs. Gilmore that her monthly rental fee for space A088 would now be increased to $192.00 per month effective May 1, 1997 `to ensure that we continue to provide great service in a clean, convenient, professionally managed facility' and `in order to maintain our high standards and insure you the best possible customer service.' This was Mrs. Gilmore's first understanding that defendant had assumed ownership/operation of the facility, and that her storage arrangement was now with a new party and at a new term. Mrs. Gilmore understood this to be a new agreement with a new party at a new term, and assented to this new arrangement by continued payment at the new rate."¹⁴ In addition, throughout their complaint and in their memorandum submitted to the court, the plaintiffs refer to the contract as a "written adhesion form agreement." Regardless of what terms the plaintiffs use to refer to the lease agreement, it is a valid and enforceable contract that satisfies the elements of a contract.¹⁵

14 The plaintiffs alternatively argue that any written agreement was with Income Fund 8, allegedly a predecessor company to the defendant, and that the contract was rendered invalid when the defendant took over. As the defendant correctly points out it would be a successor-in-interest, which "refers to a corporation that by a process of amalgamation, consolidation or duly authorized legal succession, has become vested with the rights and has assumed the burdens of [another] corporation." (Internal quotation marks omitted.) CJ Builders Remodelers, LLC. v. Geisenheimer, 249 Conn. 415, 419, 733 A.2d 193 (1999).

15 The plaintiffs also dispute the validity of the contract on the ground that the handwriting of the initials on three lines entitled "authorized for access" is not Bess Gilmore's handwriting, and that the "information listed under the manager's signature," which includes the plaintiffs' names, addresses and a signature line, was filled out by someone else. The defendant counters in its reply memorandum that the "authorized for access field" is immaterial to the instant matter, that it would not be unusual for someone else to fill out these fields, that Bess Gilmore did initial several relevant paragraphs, including paragraphs that authorize late and lockout fees, and, finally, that the plaintiffs cannot challenge the validity of the signature on the contract because they admit in their complaint that they "entered into a written adhesion form agreement with, . . . [the defendant]." The plaintiffs also argue that the contract for space A179 contains blank fields for the fee values, and, therefore, the contract has no enforceable late and lockout fees. A review of the document shows that all of the information on the plaintiffs' contract for space A179 is skewed from its proper position, rendering it impossible to read.

The defendant has submitted the contract for space A088 that contains a clause for late fees valued initially at fifteen dollars per month, and a clause for a lock out fee that was valued initially at fifty dollars. Furthermore, the defendant has submitted the ledger of the plaintiffs' account and its attendant notes, which itemized the fees charged to the plaintiffs, listed the times the plaintiffs were contacted, and shows that the plaintiffs paid late fees on multiple prior occasions. There is no genuine issue of material fact regarding the validity of the contract, and, therefore, the late fees and lockout fees are equally valid.

Violations of the Self-Service Storage Facility Statute

The self-service storage facility statute allows the owner of such a facility to place "a lien upon all personal property located at such facility for the amount of any rent, labor or other valid charges incurred in relation to such personal property . . . Such lien attaches on the date of default by the occupant." Connecticut General Statutes § 42-160. "No owner may satisfy the lien provided for in section 42-160 unless he complies with the procedures set forth in this chapter." Connecticut General Statutes § 42-161(a). "The owner shall notify the occupant . . . of his intention to satisfy the lien with a written notice which shall be delivered in person or sent by registered or certified mail, return receipt requested, to the last known address of the occupant." Connecticut General Statues § 41-161(b). "The notice required by section 42-162 shall contain the following information: (1) An itemized statement of the owner's claim showing the amount due at the time of the notice and the date the amount became due; (2) a description of the personal property subject to the lien . . . (4) a demand for payment within a specified time not less than fourteen days after delivery of the notice; and (5) a conspicuous statement that unless the amount due is paid within the sixty days after default the owner will advertise the personal property for sale or disposition and will sell or otherwise dispose of such personal property, the time and place of such sale or disposition to be specified in the notice." Connecticut General Statutes § 42-162.

In determining the meaning of statutes, we look first at the text. "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statues. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Connecticut General Statues § 1-2z. "Definite words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004). "In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word shall and examined the statute's essential purpose . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) Kindl v. Dept. of Social Services, 69 Conn.App. 563, 568, 795 A.2d 622 (2002). At issue in the present case is § 42-162(1) through (5). It addresses the contents of the notice that must be complied with before the owner of a self-service storage facility is able to secure a lien on the personal property for the amount of charges incurred in relation to this property. The use of the word "shall" therein relates to a matter of substance, rather than merely a matter of convenience and, therefore, prescribes a mandatory procedure to be followed.

The defendant argues that if this court were to assume that any of the alleged defects in the lien notices sent to the plaintiffs occurred, these were technical defects so inconsequential that they were not violations of the self-service storage statute. Moreover, the defendant claims that no evidence was submitted showing that the defendant received an unfair advantage over the plaintiffs or that the plaintiffs' harm was caused by any of these alleged defects. In fact, the defendant maintains it took many steps to avoid having to sell the property even though the plaintiffs were in default on the fees many times. The defendant maintains that it followed the spirit of the law by providing the plaintiffs with notice through a series of letters and phone calls which "tracked their mounting balances." Lastly, the defendant contends that a violation of the storage statute does not automatically constitute a CUTPA violation.

In their complaint, the plaintiffs allege that the defendant violated four subsections of § 42-162 regarding the "form of notice" required to enforce the lien on the plaintiffs' property and, that, as a result of these violations, the defendant's liens on their property were invalid and the ultimate dispossession of their property was illegal. Specifically, the plaintiffs claim that § 42-162(1) was violated because the defendant failed to "provide an itemized statement of the owner's claim showing the amount due at the time of the notice and the date the amount became due." The plaintiffs next allege that § 42-162(2) was violated by failing "to describe the property subject to the lien to permit its identification." The plaintiffs' third allegation is that the defendant violated § 42-162(4), because the documents that the plaintiffs received did not make a "demand for payment less than the required fourteen days after delivery of the notice." Lastly, the plaintiffs claim that the defendant violated § 42-162(5) by not properly setting forth a "conspicuous statement that unless the amount due is paid within sixty days after default, the owner will advertise the personal property for sale or disposition and further failed to provide a lawful date for the time of sale or disposition."¹⁶ A violation of § 42-164 was also alleged, as to the failure to provide a lawful date for the time of sale or disposition.

16 It appears that in several paragraphs of count one of the complaint, the plaintiffs incorrectly refer to § 42-164(a)(4) for the requirement of a demand for payment in not less than fourteen days after delivery of the notice, instead of § 42-162(4). Research reveals that there is no § 42-164(a)(4).

"Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case . . . Before submitting the question to the jury, however, the trial court must first determine whether, as a matter or law, a purported notice patently meets or fails to meet the statutory requirement . . . [T]he court's role then is not to decide whether the [party] . . . complied with . . . [the statute], but whether an issue of material fact regarding compliance with the statute exists." (Internal quotation marks omitted.) Denzel v. Naugatuck Housing Authority, Superior Court, judicial district of Waterbury, Docket No. CV 07 5006843 (August 22, 2008, Roche, J.).

In the present case, there exists issues of material fact regarding the defendant's compliance with the notice provisions in order to have created a valid lien on the plaintiffs' property prior to the sale or auction of the property. Reasonable minds could differ as to what degree of specificity is needed to satisfy the itemization subsection of the contents of the notice, and whether prior notice of the due dates effectively establishes "the date the amount became due." As the letters sent by the defendant to the plaintiffs stated: "You have not paid rent and/or other charges for the use of storage space No. A088" and "[y]ou have not paid rent and/or other charges for the use of storage space No. A179," there remains a question as to whether the information provided by the defendant is sufficient to establish "a description of the personal property . . . to permit its identification," or if more information is required to permit identification.¹⁷ The notice describes the storage space itself, but does not describe the contents of the property found within. Given the nature of the plaintiffs' stored property of hundreds of sealed boxes, the description given may not be enough to permit identification. As to the minimum fourteen-day requirement, the defendant points out that only one letter could potentially have violated subsection (4) of § 42-162, but there were two payment dates given in the letter and the second date was well beyond fourteen days after delivery and, therefore, statutorily sufficient. The plaintiffs' evidence confirms that the letters each contained a second payment date, allowing for payment well beyond the fourteen days from the date delivered, which would satisfy § 42-162(4).¹⁸ In satisfaction of the conspicuous statement requirement in subsection (5) of § 42-162, a notice of default was given at the time of the actual default dating back over one year from the letter in question. The second page of the notices of lien sent to the plaintiffs establishes that the owner will advertise and sell the property and gives a specific time and place, but fails to establish the sixty-day time-frame from default. This is a requirement in § 42-164 as well. As a result, there remains a question, however, as to the date of default and whether the auction and sale date was scheduled before or after the sixty days of default.¹⁹

17 The defendant counters that only one letter could potentially have violated the statute, but that it did not because the letter listed two dates for payment and the second date fell within the time parameters of subsection (2) of § 42-162.

18 Only the January 22, 2004 notice is on a different form letter, and appears not to list the similar second date that the defendant alleges is the operative date. This notice pertains to space A179. None of the plaintiffs' property from that unit was sold or destroyed. A finding of a violation in the contents of that notice is immaterial to the allegations regarding the property in unit A088.

19 The defendant also argues that the plaintiffs made a statement to an employee of the defendant that even if the notice had been proper, Bess Gilmore would not have paid the amount due and, therefore, any violation pursuant to the notice cannot be a cause in fact of the loss. No evidence is submitted to substantiate the defendant's contention, and these statements go to the credibility of the witness, an issue that cannot be determined on a motion for summary judgment. In addition, not only do the plaintiffs deny making any such statement but they also contend that the lack of notice directly led to and caused the injury itself- the loss of their fifty thousand VHS tapes and forty thousand handwritten notes.

CT Page 4151

CUTPA Violations

In count one, the plaintiffs allege that the defendant violated CUTPA by repeatedly assessing fees in violation of their agreement²⁰ and by committing several acts of conversion and breaching the provisions of the self-service storage facilities statute, all of which establish unfair and deceptive trade practices. The defendant argues that any "violation of the storage facilities statute does not automatically constitute a CUTPA violation" and that any violation of the statute would have been so minor that it could not have risen to the level of unscrupulousness or immorality that a violation of CUTPA requires. Furthermore, the defendant maintains that the plaintiffs have failed to establish causation between the violations and the resultant loss of property. In response, the plaintiffs argue that the improper lien notices they received ultimately constitute conversion and form a valid basis for a CUTPA claim since the defendant's conduct has been a continuing course of action that violated public policy. As discussed in part II C, there are issues of fact regarding compliance with the statute, therefore, the court must determine if any of them raise a genuine issue as to a CUTPA violation.

"CUTPA was . . . enacted by the legislature to put Connecticut in the forefront of state consumer protection." (Internal quotation marks omitted.) Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 727 627 A.2d 374 (1993). Connecticut General Statutes § 42-110b 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." "Any person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages." Connecticut General Statutes § 42-110g. "Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, 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 (or competitors or other businessmen) . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . Whether a practice is unfair and thus violates CUTPA is an issue of fact . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court." (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433-34, 849 A.2d 392 (2004). As discussed previously, there are, at a minimum, issues of fact regarding the defendant's violation of the self-service storage facility statute such that this court denies the defendant's motion for summary judgment on count one.²¹

21 The defendant contends also that the plaintiffs do not properly allege proximate cause, a necessary element of a CUTPA claim. The defendant argues that the allegations in the complaint indicate that Bess Gilmore "had no intention of paying the charges, as she considered them a breach of contract and unlawful," and that her statements made on October 14, 2003 also indicated that the "loss would have occurred regardless of the notices and that she did not care about those `stupid' letters." In her affidavit, Bess Gilmore challenges that she ever stated that she "did not care about those stupid letters." Not only is this an issue of credibility, but also the court's earlier determination that material issues of fact remain regarding the defendant's compliance with § 42-162(1) as to the itemization of the notice statements create issues of material fact as to whether the alleged violations caused the harm to the plaintiff. These issues cannot be determined on a motion for summary judgment.

III COUNT TWO STATUTORY THEFT

The defendant argues that the plaintiffs cannot satisfy the elements of statutory theft, which are synonymous with larceny. The defendant maintains that its taking of the plaintiffs' personalty was authorized by the lease agreement and the self-service storage statute, the late fees were incurred pursuant to the contract, and the plaintiff has no evidence showing that payments were made to contradict the charges. In addition, the defendant contends it exercised good faith at all times in its attempt to enforce a valid lien. The plaintiffs counter that the defendant's acknowledgment of violating the self-service storage facility statute demonstrates that it knew what the procedures were to comply with the statute but intentionally chose not to do so, thus making the defendant's conduct both intentional and unauthorized. The parties have provided this court with boilerplate authority as to the elements of statutory theft but absolutely no authority or analysis of their specific arguments.

Statutory theft is defined in General Statutes § 52-564 as follows: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." The statute "is synonymous with larceny [as provided in] General Statutes § 53a-119." (Internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 129 n. 8, 851 A.2d 1142 (2004). "[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.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000), quoting General Statutes § 53a-119. "[S]tatutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 544, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005).

In count two, the plaintiffs allege that the defendant's "intentional conduct [was] without color of right or reasoned excuse," and that the conduct was "unauthorized" with the intent "to deprive the plaintiffs of their personal property" and "did so deprive plaintiffs of their personal property." The plaintiffs further allege that the defendant's "intentional conduct" was "in violation of defendant's own express word relied upon by plaintiffs, in bad faith and with deprivation by destructive conduct that is outrageous."²²

22 The plaintiffs also allege that they are entitled to treble damages "pursuant to General Statutes § 52-542." Research reveals there is no such statute; it appears that the correct one is § 52-564.

The defendant refers to paragraph nine of the contract as evidence that there are no material facts in existence that show the defendant was not authorized to remove the plaintiffs' property. Paragraph nine²³ sets forth the procedures that may be pursued to secure a lien and subsequently sell the property for nonpayment of rents and other charges, which the defendant maintains that it followed. Although the defendant may have followed the procedures set forth in paragraph nine, it argues that it was also authorized to sell the property pursuant to the statutory requirements of the self-service storage facility statute. A review of the legislative history shows that the statute protects the public welfare, as it was designed to protect both owners and operators of storage facilities from delinquent clients and client-consumers from the actions of the owners. This statute creates certain due process requirements that must be followed before a storage facility can sell, auction or destroy a renter's property. As a result, the defendant is bound by the statutory requirements of which there exist questions of fact as to its compliance. Therefore, the defendant has failed to establish a lack of material facts regarding its authorization to remove the plaintiffs' property pursuant to the contract. The defendant's motion for summary judgment as to count two is therefore denied.

23 Paragraph nine of the lease reads in relevant part: "ABANDONMENT AND GRANT OF LIEN: In the event rent shall be in default and due and unpaid for . . . thirty (30) consecutive days, and thereafter Occupant shall have failed to give Owner written notice of an intention not to abandon the Premises and the personal property located [therein] within fifteen (15) consecutive days after notice of nonpayment of rent has been given by Owner to Occupant, Owner may reasonably assume that Occupant has abandoned the Premises and any personal property located in . . . [it], and, at Owner's option, the Premises shall be deemed abandoned and this Lease terminated . . . To secure the payment of rent and other obligations . . . [upon] termination of the Lease or Occupant's right to possession of the Premises, or upon any default by Occupant under this lease, Owner may, in addition to any other remedies or rights available . . . under applicable law, deny Occupant access to the Premises and to Occupant's property stored [therein] without liability for trespass or conversion and may sell, destroy or otherwise dispose of any personal property thereafter remaining on the Premises . . ." (emphasis added).

IV COUNT THREE CONVERSION

The defendant argues that the plaintiffs cannot maintain a cause of action in conversion since the defendant was authorized by the lease agreement and by statute to enforce the lien. In their memorandum in opposition, the plaintiffs state that "they respectfully reallege [their] arguments as stated herein." Again, neither party has provided the court with any legal authority or analysis of their arguments, other than boilerplate law.

"Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights." Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309, 635 A.2d 843 (1993). To establish conversion, the plaintiffs must show that "(1) the [contents of Unit A088] belonged to [the plaintiffs]; (2) that the defendant deprived [the plaintiffs] [of the contents of Unit A088] for an indefinite period of time; (3) that the deprivation was unauthorized, and (4) that the defendant's conduct harmed [the plaintiffs]." Id.

In count three, the plaintiffs allege that the defendant "has engaged in numerous acts of conversion of plaintiffs' property," that it "has deprived the plaintiffs of its property for an indefinite period of time," that the defendant "exercised dominion and control over plaintiff's property to the exclusion of the plaintiffs' rights, and defendant's conduct was unauthorized"; and that the defendant's "conduct has substantially injured the plaintiffs' property and as such plaintiffs have sustained damages."

The court has previously discussed the language of paragraph nine of the lease agreement and determined that the defendant cannot rely solely on it for the authorization, sale and disposal of the plaintiffs' property. As to the defendant's second argument that its conduct vis-a-vis the plaintiffs' personalty was authorized by statute, § 42-160 allows a lien to be placed "for the amount of any rent, labor or other valid charges incurred in relation to such personal property . . ." and that "[s]uch lien attaches on the date of default by the occupant." Section 42-159 defines "default" as "the failure to perform any obligation or duty imposed by a rental agreement . . ." Therefore, the defendant's liens, pursuant to the plaintiffs' failure to pay its contractual fees, were authorized by statute. The defendant, however, fails to adequately address the plaintiffs' claim that the physical removal and destruction of their property was unauthorized. As previously discussed, issues of fact remain regarding the nature of the disposal of the plaintiffs' property. Evidence has been submitted by both parties as to whether the defendant, even if acting pursuant to valid liens, satisfied the remaining requirements of the self-service storage facility statute when, based on allegedly flawed notice, it removed and destroyed the plaintiff's property. Thus, defendant's motion on count three is denied.

V COUNT FOUR WILLFUL AND WANTON MISCONDUCT

The defendant argues that with respect to count four, the evidence reveals that it "extended courtesies and sought to avoid enforcing the lien by calling and writing to plaintiffs many times," that it "complied materially with the notice provision of the storage facilities statute," and that the plaintiffs "had actual notice of the sale, yet failed to act." The plaintiffs counter that the defendant did not provide the court with any admissible evidence to show that its conduct was proper, that the plaintiffs should not have to repeat their arguments, and that the disposal of "tens of thousands of valuable video tapes whose origin spans decades . . . after 8 years of storage, and some $20,000 in storage fees for a single storage bin alone . . . is certainly a reckless disregard of the rights of others."

"[W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 833, 836 A.2d 394 (2003). "It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . ." (Internal quotation marks omitted.) Amone v. Connecticut Light Power Co., 90 Conn.App. 188, 196, 878 A.2d 347 (2005).

In count four, the plaintiffs allege that the defendant "engaged in a course of conduct that was willful, wanton and malicious toward the property rights of the plaintiffs," that defendant's "conduct establishes a reckless disregard for the property rights of the plaintiffs, which conduct defendant knew or should have known would pose a substantial risk to the property rights of the plaintiffs, and that defendant consciously disregarded the risk to plaintiffs' property," and as "a result of the defendant's aforementioned conduct, plaintiffs have been grievously injured in their property rights as the proximate cause of defendant's willful and wanton misconduct, and as such have sustained damages."

The determination of what is "highly unreasonable conduct, involving an extreme departure from ordinary care" and whether the loss of the property in question is the type of situation in which "a high degree of danger is apparent" are questions of fact. As to these issues, there remain genuine issues of material fact and the motion for summary judgment as to count four is denied.

VI COUNT FIVE MISREPRESENTATION

The defendant argues that it did not make any misrepresentations as to which lawful charges were due and its lawful right to place a lien on the property and auction it. In addition, the defendant points out that the plaintiffs "fail to plead with particularity which charges [were] misstated." Furthermore, as to the allegation that the defendant stated that it would "provide great service in a clean, convenient, professionally managed facility," the defendant argues that this statement is not a misrepresentation but "is sales puffery." Moreover, the defendant maintains that there is no causal connection between any statements made and damages suffered by the plaintiffs. The plaintiffs make no arguments in response.

"Allegations such as misrepresentation and fraud present issues of fact." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 358, 783 A.2d 28 (2001). "The party claiming fraud . . . has the burden of proof." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 680, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). "The essential elements of a cause of action in [fraudulent misrepresentation] are: (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 the false representation to his injury." (Internal quotation marks omitted.) Phillips v. Phillips, 101-Conn.App. 65, 71, 922 A.2d 1100 (2007). "[T]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which . . . [this court] [has] described as clear and satisfactory or clear, precise and unequivocal." (Internal quotation marks omitted.) Duplissie v. Devino, supra, 681.

In the complaint, the plaintiffs allege that the defendant made misstatements as to (1) the lawful charges due, (2) the defendant's lawful right to place a lien on the property, to deny the plaintiffs access to their property, to advertise the property for sale at auction and its right to determine a date and time for such a sale, (3) the fact that the defendant is a leader in self-storage and provides "great service in a clean, convenient, professionally managed facility," which "indicated that the plaintiffs' property would not be subject to multiple water attacks or placed in a dumpster," (4) the water sprinkler system and the safety of property from dampness, and (5) the protection, relocation and preservation of the property. The plaintiffs further allege that the defendant "knew" that these statements "were untrue" or "should have known" that they were untrue and "were stated with a reckless disregard for the truth." The allegations also claim that "Mrs. Gilmore relied on these misstatements" and that this "reliance included forced payments which were not owed."

As to the truth or falsity of the statements made by the defendant regarding amounts charged to the plaintiffs' account, the defendant relies on the contract and the notices and ledger which show what payments were and were not credited to the plaintiffs. The plaintiffs provide no evidence to dispute these charges other than alleging that they were unlawful. As to the issue of causation, generally it "is [also] a question for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997). Even though the plaintiffs allege that the statements relating to the defendant's quality of service indicate that their property would not be subject to "multiple water attacks or placed in a dumpster," they do not support this argument in any of their memoranda. There is no fair and reasonable causal relationship between the phrase "[to] ensure that we continue to provide great service in a clean, convenient, professionally managed facility" and the ultimate deprivation of the plaintiffs' property. Thus, the plaintiffs have failed to establish a genuine issue of material fact as to causation. With respect to the plaintiffs' reliance on statements made by the defendant regarding the "protection, relocation and preservation" of their property in letters sent out Friday, September 26, 2003, the plaintiffs may or may not have received them prior to the auction and disposal of the property on Monday, September 29, 2003. The defendant does not establish when on Friday the letter was mailed, and, cannot establish the nonexistence of a genuine issue of material fact on the element of reliance. As a result the defendant's motion for summary judgment on this count is denied.

VII COUNT SIX NEGLIGENT MISREPRESENTATION

Next, the defendant argues that "there is no distinction applicable to this case that would make Count Six survive summary judgment, when Count Five [misrepresentation] does not. In short, there is no evidence showing that the . . . statements were false or that there is a causal connection between the statements and the disposal of plaintiffs' property." The plaintiffs respond that the defendant's "denial of facts and the unsubstantiated statement of other facts" fails to establish that there are no genuine issues of material fact. The plaintiffs, however, fail to provide this court with any legal authority or analysis on this issue.

"Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazimi v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).

In their complaint the plaintiffs allege that the defendants made representations that contained false information as to the following: "lawful charges due," the "defendant's lawful right to place a lien on plaintiffs' property," the defendant's "lawful right to deny plaintiffs' access to their property," the defendant's "lawful right to advertise for sale at auction plaintiffs' property" and the defendant's "lawful right to determine a date and time for such sale at auction of plaintiffs' property." They further allege that the defendant's representations contained false information that it is "the leader in self-storage industry" and "provide[s] great service in a clean, convenient, professionally managed facility," that the defendant "made representations that contained false information as to the water sprinkler system at the facility" and "safety from dampness and water of plaintiffs' property," that the defendant made misrepresentation as to the "protection, relocation and preservation of plaintiffs' property, and that it failed to exercise reasonable care or competence in obtaining and/or communicating the[se] representations," and as a result the plaintiffs "have been severely damaged and subjected to pecuniary loss caused by Mrs. Gilmore's reliance on these representations." For the same reasons as set forth in part VI, the motion for summary judgment as to count six is denied.

VIII COUNT SEVEN TRESPASS TO CHATTELS

The defendant argues that "[l]egal research does not reveal that `trespass to chattels' is a viable cause of action in Connecticut," and that even if it is, the facts pleaded by the plaintiff cannot support such a claim because the defendant "was authorized by contract and statute" to place a lien and "subsequently dispose of [the] plaintiffs' property for failure to pay rent." The defendant further argues that "the facts show that [a] valid contract existed [between them] and that the plaintiffs defaulted under that contract," and, therefore, the plaintiffs "abandoned" the property, which would result in no cause of action against the defendant in trespass or conversion for destroying such property. In response, the plaintiffs argue that the case of Simms v. Chiasson, 277 Conn. 319, 890 A.2d 548 (2006) reaffirms the viability of that cause of action in Connecticut, stating that it is a tort theory and defining it as "intentionally [a] dispossessing another of the chattel, or [b] using or intermeddling with a chattel in the possession of another." (Internal quotation marks omitted.) Id., 331. "One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest, 1 Restatement (Second), [Torts, § 218, p. 420 (1965)]." (Internal quotation marks omitted.) Iovene v. Shree Ram Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0273630 (May 9, 2001, Booth, J.).

In count seven, the plaintiff alleges that the "[d]efendant dispossessed [the] plaintiffs of their personal property . . . on numerous occasions" and that this "personal property . . . was impaired by [the] defendant as to [its] condition, quality or value" and that the plaintiffs "as possessors of the personal property at the [storage] facility . . . was deprived of the use of said personal property at the facility . . . for a substantial time. Plaintiffs have sustained substantial injury and damages as a result of defendant's conduct." There are issues of fact regarding the defendant's dispossession of the plaintiffs' personal property that preclude the granting of summary judgment as to this count.

IX GROSS NEGLIGENCE

The defendant argues that summary judgment should be granted on count eight as to gross negligence, since Connecticut does not recognize a classification of negligence into "slight, ordinary, and gross" negligence. Alternatively, the defendant argues that there is no issue of material fact as to the validity and enforcement of its lien on the plaintiff's property, except for some "technical irregularities" in the notice procedure to the plaintiffs that would reach the level of gross negligence and no issues of material fact causally link any of these "technical irregularities" to the sale of their property. The plaintiffs counter with three arguments: (1) that gross negligence is now a recognized cause of action in Connecticut; (2) that gross negligence is a heightened standard of ordinary care to be considered by the fact finder; and (3) that gross negligence is synonymous with ordinary negligence and that the heightened pleading covers the degree or amount of due care to he determined by the fact finder.

"[G]ross negligence is commonly defined as very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or slight diligence." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 338, 885 A.2d 734 (2005). The case law is unclear as to whether Connecticut recognizes gross negligence as a separate cause of action. In Hanks, our Supreme Court stated that "Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability." Id., 337. One trial court decision has stated, however, that "[a]bundant appellate authority supports the conclusion that gross negligence is recognized in Connecticut jurisprudence, even though there are few occasions for characterizing the level of negligence in stating a negligence claim. In Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002), the Supreme Court explained that wanton, wilful, reckless, intentional misconduct is `more than gross negligence.' . . . The court made the same comparison in Shay v. Rossi, 253 Conn. 134, 181, 749 A.2d 1147 (2000). Our Supreme Court can hardly be expected to have been using gross negligence as a point of comparison if gross negligence does not exist." Glorioso v. Police Dept. of the Town of Burlington, 48 Conn.Sup. 10, 16, 826 A.2d 271 (2003) [ 34 Conn. L. Rptr. 472]. "Our Appellate Court has likewise recognized the existence of a level of negligence that is `gross negligence' in Bolmer v. McKulsky, 74 Conn.App. 499, 503, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003), and Hultman v. Blumenthal, 67 Conn.App. 613, 624 n. 12, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002)." Id. "The court concludes that a cause of action for negligence of various degrees, including gross negligence, exists at common law . . ." Id., 17.

In count eight, the plaintiffs allege that the defendant's "conduct consisted of a heedless and palpable violation of its duty to the rights of plaintiffs, which resulted in injury to [them]." The complaint also alleges by incorporation allegations that the defendant violated a duty to the plaintiffs, referencing the alleged statutory violations, misrepresentations and the actions of the defendant's employees on the telephone and in person, and that these violations led directly to their injury. These allegations are sufficient to state a negligence claim. Although the plaintiffs technically attempted to plead gross negligence in count eight, they have sufficiently alleged the elements of common-law negligence. The court, however, is "not primarily concerned with pleading deficiencies which upon a proper motion addressed to them might have been corrected by amendment. Our concern is whether upon the whole record, including the affidavits or other documents filed in connection with the motion, there are undisputed facts clearly establishing that the particular claim is not viable." Cacace v. Morcaldi, 37 Conn.Sup. 735, 740, 435 A.2d 1035 (1981). There exist issues of fact as to whether the violations of the storage facility statute were "technical irregularities" which breached a standard of care owed to the plaintiffs. This is a question best left to a fact finder to determine, as a "[s]ummary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention . . . requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). As a result, the defendant's motion for summary judgment as to count eight is denied.

X BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

The defendant argues that there is no genuine issue of material fact that it had a "dishonest purpose" or "sinister motive" or the requisite "bad faith" to support the plaintiffs' claim of a breach of the implied covenant of good faith and fair dealing in count nine. The defendant further asserts that the plaintiffs themselves were in "breach of the contract for failure to pay rent and, therefore, should be estopped from claiming that [the defendant] subsequently breached the covenant of good faith and fair dealing."²⁴ The plaintiffs "[rely] on [their] arguments already made herein" and additionally assert that the defendant's conduct "does not result in a failure of any genuine issue of material fact as to this cause of action."

24 The defendants provide no legal authority or analysis on its estoppel argument.

"[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). "To constitute a breach of [the covenant], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Bad faith involves actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." (Citations omitted; internal quotation marks omitted.) Rice v. Tuchman, Superior Court, judicial district of Litchfield, Docket No. CV 05 4003351 (September 16, 2008, Roche, J.), citing New England Custom Concrete, LLC v. Carbone, 102 Conn.App. 652, 661, 927 A.2d 333 (2007). "It is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact." (Internal quotation marks omitted.) Kronberg Bros., Inc. v. Steele, 72 Conn.App. 53, 63, 804 A.2d 239, cert. denied, 262 Conn. 912, 810 A.2d 277 (2002).

Since the definition of bad faith encompasses fraud and constructive fraud and because there remains a material fact regarding whether the defendant committed fraud or constructive fraud as discussed in part VI and VII, there exists a genuine issue of material fact to be determined regarding whether the defendant violated the covenant of good faith and fair dealing. Thus, summary judgment as to count nine of the complaint is denied.

XI INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The defendant argues that "[e]ven viewed under the most tortured reading of the facts in [the] plaintiff's favor, [its] conduct does not remotely meet any of the requisite elements for intentional infliction of emotional distress." The defendant maintains that its conduct was not "outrageous" as required because the "undisputed facts show that [the] plaintiffs failed to pay rent and fees pursuant to the lease agreement, and that they ignored [the defendant's] repeated telephone calls and letters warning of an auction." The plaintiffs counter that the defendant's "intentional destruction of some 50,000 video tapes and 40,000 handwritten notes created over a four decade period simply thrown in the garbage in violation of statute and after the defendant permitted the property to be damaged by water and after which damage defendant promised to preserve and relocate such property, amounts to the kind of conduct defendant should have [foreseen] as causing emotional distress, is outrageous behavior which caused Mrs. Gilmore severe injury."

"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme or outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) CT Page 4163 Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). The extreme and outrageous element is only satisfied "where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (internal quotation marks omitted.) Id., 443.

The actions of the defendant as described in the pleadings, even viewed in a light most favorable to the plaintiff, do not raise a material issue of fact as to "outrageous" or extreme conduct as defined by the courts, nor do the plaintiffs provide evidence that supports a genuine issue regarding the defendant's intent to inflict emotional distress. Therefore, the motion for summary judgment is granted as to count ten.

CONCLUSION

For all the foregoing reasons, the motion for summary judgment is denied as to counts one through nine and granted as to count ten.