Opinion
No. CV 01-0186717 S
December 20, 2004
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#121)
This is an action by plaintiff Norwalk Cove Marina, Inc. against defendant Mark A. Pesiri, a Connecticut Judicial Marshal who was a deputy sheriff for Fairfield County at the relevant times of the dispute between the parties. In 1999 the defendant was appointed as a proper officer in lieu of a United States Marshal to serve a writ of execution against Norwalk Cove Marina, Inc. which was a defendant in a civil action in the United States District Court for the District of Connecticut known as Chase Manhattan Bank v. Leon Zebrowski v. Norwalk Cove Marina, Inc., Docket No. 3:96 CV 2378 (AHN). In that capacity the defendant seized $200,274.57 from the bank accounts of Norwalk Cove Marina, Inc. pursuant to a federal court execution issued to collect on a $206,021.30 default judgment entered in that action in favor of the cross-complaining defendants Leon and Irene Zebrowski. Thereafter, before the defendant sheriff had disbursed the proceeds of the bank execution to any party the federal court (Judge Nevas) entered a Temporary Restraining Order prohibiting the defendant, deputy sheriff Mark Pesiri, from transferring, releasing, or distributing the seized funds and then vacated the default judgment against Norwalk Cove Marina, Inc. The defendant did thereafter return to counsel for Norwalk Cove Marina, Inc. the sum of $181,234.00 but retained for himself the sum of $19,040.57 which he claimed as his 10% statutory fee for serving the execution pursuant to § 52-261(a)(6) of the Connecticut General Statutes. Following a hearing in the federal court at which the defendant participated and, through counsel, submitted a brief claiming entitlement to retain his 10% fee, the court (Nevas, J.), on May 20, 2000 ordered defendant to turn over to Cove Marina, Inc. the sum of $19,040.57 which he had retained from the proceeds of the bank execution. Upon defendant's failure to return those funds to Norwalk Cove Marina, Inc. as ordered, Norwalk Cove Marina commenced this action in the Superior Court against defendant Mark Pesiri.
On November 29, 2000, upon the adoption of Article XXX of the Amendments to the Constitution of the State of Connecticut, the office of county sheriffs was abolished and the duties of the former sheriffs were assigned to the newly created office of Judicial Marshals under the control of the Judicial Branch.
§ 52-261(a)(6) provides: "The following fees shall be allowed and paid: . . . (6) for levying an execution, when the money is actually collected and paid over, or the debt secured by the officer to the acceptance of the creditor, ten percent on the amount of the execution, provided that the minimum fee for such execution shall be twenty dollars."
The complaint sounds in nine counts including conversion, violation of the federal Civil Rights Act and the U.S. Constitution, CUTPA, violation of § 6-35 of the Connecticut General Statutes, violation of the Connecticut Constitution, unjust enrichment, breach of fiduciary duty, action on a fidelity bond and negligence. The defendant has filed special defenses of qualified immunity (second count) contributory or comparative negligence (ninth count) and failure to state a claim upon which relief can be granted (all counts). The defendant has moved for summary judgment in his favor on all nine counts. In support of his Motion for Summary Judgment (#121) the defendant has submitted the affidavit of defendant Mark A. Pesiri dated February 13, 2004 and a memorandum of law. In opposition to the motion for summary judgment the plaintiff has submitted the affidavit of its attorney of record in this lawsuit, James Farrell, Esq., dated May 28, 2004 with attached Exhibits A through F, an affidavit of James Gardella dated March 22, 2004, and a memorandum of law. By his Motion to Strike Plaintiff's Exhibits Submitted in Opposition to Defendant's Motion for Summary Judgment (#108) the defendant challenged the propriety of the Farrell affidavit, Exhibits A B to the Farrell affidavit, and the Gardella affidavit under the requirement of Practice Book § 17-46 that supporting and opposing affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence. By Memorandum of Decision dated November 30, 2004 this court granted that motion to strike in part by striking certain paragraphs of the Farrell affidavit and the Gardella affidavit. None of the stricken parts of those affidavits will be considered in this decision on the Motion for Summary Judgment.
This count against defendant Hartford Fire Insurance Company has been withdrawn.
The plaintiff moved on June 7, 2004 to strike all the special defenses (Plaintiff's Motion to Strike, #126). That motion has not yet been heard.
Discussion
"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]." Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
After a thorough review of the pleadings and the affidavits and exhibits submitted by the parties in support of and in opposition to the instant motion for summary judgment, it is apparent to the court that there is no dispute between the parties as to the facts recited in the introductory paragraph of this memorandum. The only factual dispute at all between the parties seems to be the predicate facts relating to the defendant's claim that he "earned" the $19,040.57 at issue as a sheriff's fee pursuant to the provisions of Connecticut General Statutes § 52-261(a)(6) quoted at footnote 2 in that he allegedly caused the debt (the $206,021.30 default judgment against Norwalk Cove, later vacated) to be "secured by the officer to the acceptance of the creditor." To support that contention the defendant claims in his affidavit in support of this motion that "I notified the Zebroskis through their counsel, Philip French, that this sum [the $200,257.57 seized from the bank account of Norwalk Cove Marina] was secured. At that time Attorney French as the Zebroskis' agent, accepted that amount in payment for the judgment." (Pesiri Affidavit, para. 9) This statement contains obvious hearsay and will be disregarded by the court per Practice Book § 17-46. The plaintiff disputes the legal sufficiency of that factual claim to satisfy the quoted requirement of the statute, and also disputes the factual claim itself by submitting through the James Farrell affidavit certain circumstantial evidence to the contrary which has also been stricken by the court pursuant to Practice Book § 17-46. Neither party has submitted an affidavit of Attorney Philip French on this or any other point. The result is that there is no factual record available to the court on this issue as to which the parties are clearly in dispute from a reading of their briefs. The defendant, as the moving party, has therefore failed to meet his threshold obligation of demonstrating the nonexistence of an issue of fact. The court finds, however, that the briefed dispute between the parties as to whether or not the defendant earned the $19,040.57 in issue as a sheriff's fee would not in any event be a "material" issue. Materiality is framed by the pleadings. Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 570 (1995). There is no allegation in the complaint that the defendant did not earn the 10% sheriff's fee. The plaintiff clearly does not base any of its claims in this case on the failure of the defendant sheriff to have earned that fee. As stated in plaintiff's brief: "The plaintiff is not suing because money was improperly seized from an account. The plaintiff is suing because money seized was not returned when mistake was determined by a U.S. District Judge and money was ordered to be returned to its rightful owner." (Plaintiff's Brief, p. 6.) And, as stated by Judge Nevas in his May 31, 2000 ruling directing Deputy Sheriff Pesiri to return the $19,040.57 to Norwalk Cove Marina: "Assuming for purposes of this motion that he [Deputy Sheriff Pesiri] was entitled to poundage [the 10% statutory fee] for levying the execution, the issue the court must decide is whether he was entitled to retain that fee from the proceeds of Cove Marina's bank accounts once the judgment was declared null and void and was vacated. For the following reasons, the court concludes that he was not." Farrell Affidavit, Ex. A, 4, 5; and "Thus if the sheriff is entitled to the statutory fee, it is not due from Cove Marina." Id. 5.
Against this background and analysis it is apparent that, in the absence of any genuine issue of any material fact in dispute between the parties, the determination of this motion depends on whether or not the defendant as the moving party has satisfied his burden of showing that on the basis of the undisputed material facts he is, under applicable principles of substantive law, entitled to a judgment as a matter of law. The defendant himself has recognized this obligation: "Summary judgment in favor of defendant is properly granted if the defendant in [his] motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Citation omitted; internal quotation marks omitted.) Defendant's Brief, p. 3. It is therefore necessary to review defendant's legal defenses to each of the eight remaining counts of the complaint to determine if he has met that burden.
First Count: Conversion
Defendant's opposition to the conversion count is premised on a claim that that the plaintiff has lost no ownership rights in the $19,040.57 because that sum of money had become the property of the defendant when he "earned" it as his sheriff's fee for serving the bank execution. As previously indicated, the federal court found that he may have earned the fee from someone, but he did not earn it from the money seized from the bank accounts of Norwalk Cove Marina. Clearly, as the owner of the funds in its own bank accounts, the plaintiff has the requisite ownership interest in those funds to claim that they have been wrongfully converted by someone who was specifically ordered by a court of competent jurisdiction to return them but failed to do so. The issue of the defendant's obligation to return the $19,040.57 to Norwalk Cove Marina was fully litigated on a contested basis before Judge Nevas pursuant to Rule 71 of the Federal Rules of Civil Procedure. In his brief to Judge Nevas (Farrell Affidavit, Exhibit B) the defendant made no claim that the court lacked jurisdiction over the dispute or jurisdiction over his person. All his arguments were directed to the merits of the dispute — some of them being the very same arguments he is raising in support of this motion for summary judgment. Judge Nevas specifically found that: "He [Sheriff Pesiri] does not contest the court's power to issue an order directing him to return the funds to Cove Marina." Farrell Affidavit, Ex. A., p. 4. The defendant's obligation to return the funds is judicially established and binding upon him in this case under the doctrine of collateral estoppel. See Carnemolla v. Walsh, 75 Conn.App. 319, Cert. Denied, 63 Conn. 913 (2003). "Conversion occurs when one assumes and exercises the right of ownership over property belonging to another, without authorization and to the exclusion of the owner's rights.
The intent required for a conversion is merely an intent to exercise dominion or control over an item even if one reasonably believes that the item is one's own." (Internal citation omitted.) Plikus v. Plikus, 26 Conn.App. 174, 180 (1991). Having admittedly failed to return the plaintiff's funds as ordered by the District Court, nothing presented herein by the defendant amounts to a valid defense to the claim of conversion.
Second and Fifth Counts: Due Process Claims Under the federal Civil Rights Act and the due process clauses of the federal and state constitutions CT Page 19274Defendant repeats his assertion that the plaintiff cannot be deprived of property (the $19,040.57) without due process of law when those funds had become the property of the defendant when he took them as his sheriff's fee. As previously explained, however, the gist of this claim is the defendant's failure to return those funds to the plaintiff as ordered by the U.S. District Court — a court for whom the defendant had been appointed as a special officer. The funds in question had come from the plaintiff's own bank account which is clearly sufficient ownership interest to have standing to make these claims.
Defendant also raises the defense of qualified immunity to these claims under the doctrine that public officials performing discretionary functions are entitled to qualified immunity from liability for their official actions as set forth in, inter-alia, Anderson v. Creighton, 483 U.S. 635 (1987). The defendant's entire analysis of this point assumes wrongly that the defendant's actions in seizing the funds from Norwalk Cove Marina's bank accounts and retaining 10% thereof for his fee is the action challenged. For instance, he argues the "objective reasonableness" of those actions because Conn. Gen Stat. § 52-261 entitles him to that fee and is silent as to the process by which that fee may be collected. The fallacy of this approach is that those issues have already been litigated before Judge Nevas who ruled that the retention of the "fee" from the funds seized from plaintiff's bank account was wrongful as to Norwalk Cove Marina and ordered the funds returned to Norwalk Cove Marina as the rightful owner. The conduct challenged in these counts took place when the defendant admittedly failed to obey — and is still failing to obey — that court order. It can hardly be maintained in good faith that deliberate disobedience of a court order to restore funds to their lawful owner is a "discretionary" duty of an officer of that court. See Yale New Haven Hospital, Inc. v. Richardson, 2001 Ct.Sup. 10220, J.D. New Haven (Celotto, JTR, July 26, 2001). Defendant cites Weg v. Macchiarola, 995 F.2d 15, 18 (2 Cir. 1993) for the proposition that where reasonable officials could disagree, the official is entitled to qualified immunity. The court finds that no reasonable official in the position of the defendant could have believed that his action of direct and deliberate disobedience of a court order was lawful. The defendant has fallen far short of his burden of showing for purposes of this motion that these claims would be covered by the doctrine of qualified immunity.
Third Count — Connecticut Unfair Trade Practices Act ("CUTPA")
The plaintiff alleges that the actions of the defendant Pesiri in failing to comply with the federal court order were immoral, oppressive, and in violation of state statute, and have caused the plaintiff substantial injury and continue to cause the plaintiff injury, and therefore constitute a CUTPA violation. Complaint, para. 25. The trade or business involved is allegedly the defendant's "trade or business of either a deputy sheriff for the County of Fairfield or a State Marshall for the State of Connecticut." Complaint, para. 24. Defendant contends that CUTPA does not apply because of the statutory exemption contained within the CUTPA Act that: "[n]othing in this chapter shall apply to (1) transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the State or of the United States." Conn. Gen. Stat. § 42-110c(a)(1). Perhaps focusing on the words ". . . transactions or actions otherwise permitted under law . . ." the plaintiff's position on the claim of statutory exemption is that the defendant was not acting under any state authority when he retained the plaintiff funds in violation of federal court order.
The only CUTPA issue raised by the parties is the statutory exemption claim. Neither party has even mentioned the "cigarette rule" which defines the well-accepted parameters of CUTPA liability. The parties have briefed the exemption claim only minimally. Given that "The burden of proving exemption, as provided in this section, from the provisions of this chapter shall be upon the person claiming the exemption." Conn. Gen. Stat. § 42-110c(b), and given that the court in ruling on this motion for summary judgment is obliged to view the evidence in the light most favorable to the plaintiff, the court holds that the defendant has not met his threshold obligation of showing that he is entitled to judgment on the CUTPA claim as a matter of law on the undisputed facts. This claim should therefore be further litigated on a more complete record with more comprehensive legal argument before the trial court.
See, e.g. Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 368 (1999).
Each party has devoted only about one-half of one page of their lengthy briefs to the CUTPA count. The only case cited by the plaintiff is not a CUTPA case at all. The only case cited by the defendant ( Russell v. Dean Witter Reynolds, 200 Conn. 172) is cited for a proposition that the court has been unable to find within that opinion.
Fourth Count — Violation of Conn. Gen. Stat. § 6-35
The plaintiff alleges that the defendant, by not complying with the federal court order to return all of the seized funds to the plaintiff, has violated Conn. Gen. Stat. § 6-35, and therefore, under the provisions thereof is liable to the plaintiff for the $19,040.57 withheld plus statutory interest from January 1, 2000 to the present date. The defendant's position is that "the person authorized to receive it" [the $19,040.57] would have been, for purposes of this statute, the Zebroski co-defendants in the federal case who briefly held a cross-claim judgment against Norwalk Cove Marina before it was vacated, and on whose behalf Deputy Sheriff Pesiri originally served the bank execution and seized the funds. Therefore the defendant claims that the plaintiff has no standing to make a claim under § 6-35. There are no cases construing the term "person authorized to receive it" as used in § 6-35. Obviously such person would normally be the judgment creditor, such as the Zebroskis, who sent the sheriff out with the bank execution to collect on their judgment. There is no authority for the proposition that the term also encompasses someone in the plaintiff's position: the owner of the bank account from which the funds were seized before the judgment in question had been found to be in error and vacated. The short thirty-day time limit from the time of seizure would seem to indicate an intention not to include persons in the plaintiff's position within the term "person authorized to receive it." Although in this case Judge Nevas did act within days to vacate the erroneous judgment, there would be many cases where the judgment might be vacated months or, in the case of appeals, even years after the funds had been seized. In those cases, the thirty-day deadline would be totally unworkable.
Conn. Gen. Stat. § 6-35 provides: "Any state marshal shall pay over to the person authorized to receive it, any money collected by such marshal on behalf or on account of such person, within thirty calendar days from the date of collection of the money . . . provided any state marshal who fails to pay over to the person authorized to receive it, any money collected by such marshal on behalf of or for the account of such person within thirty calendar days from the date of collection of the money . . . shall be liable to such person for the payment of interest on the money at the rate of five percent per month from the date on which such state marshal received the money."
The plaintiff alleges (Complaint, para. 21) that it has an assignment from the Zebrosks of any claims against the defendant Pesiri arising out of this transaction, but no record of or reference to that assignment has been made part of the record for purposes of this motion for summary judgment.
In this particular case the undisputed facts are that the defendant seized funds from Norwalk Cove Marina's bank accounts from approximately November 24, 1999 to November 29, 1999. On December 2, 1999 the U.S. District Court issued a temporary restraining order (TRO) prohibiting disbursement of the seized funds. On December 13, 1999, Judge Nevas vacated the cross-claim judgment in favor of the Zebroskis. Thereafter the defendant returned $181,234.00 to counsel for Norwalk Cove Marina. On December 21, 1999 the plaintiff filed a motion for an order directing the defendant to turn over the remaining $19,040.57, which motion was heard on February 18, 2000 and was granted on May 31, 2000. Pesiri Affidavit, para. 7, 12, 13. Farrell Affidavit, Exhibit A, Exhibit B. The thirty-day deadline of § 6-35 for turning over the remaining $19,040.57 of the seized funds therefore would have expired sometime between December 24 to December 29, 1999 at a time subsequent to the issuance of a federal court TRO prohibiting disbursement of the seized funds, and at a time when the plaintiff's motion for an order directing the turnover of the $19,040.57 was pending in that court. Under those circumstances the court finds that the plaintiff's claim against the defendant for return of the $19,040.57 stems from the authority of the federal court order of May 31, 2000 which definitively established that the defendant had no right to continue to withhold the $19,040.57, and not from any obligation under § 6-35. The defendant has therefore made a showing on the undisputed facts that he is entitled to judgment on this Fourth Count claiming a violation of Conn. Gen. Stat. § 6-35.
Sixth Count — Unjust Enrichment
The plaintiff in this count claims that defendant Pesiri has been unjustly enriched by retaining the $19,040.57 of the seized funds which were ordered by the U.S. District Court on May 31, 2000 (Farrell Affidavit, Exhibit A) to be refunded to Norwalk Cove Marina, Inc. The only defense suggested by the defendant is that the $19,040.57 was earned by the defendant as his sheriff's fee under Conn. Gen. Stat. § 52-61 for serving the bank executions. But, as previously indicated under our discussion of the conversion Count (First Count, supra) that defense has been ruled by Judge Nevas, following contested litigation in the U.S. District Court, as irrelevant to the defendant's obligation to refund the $19,040.57 to Norwalk Cove Marina, and the federal court order obligating the defendant to refund that sum is binding on the defendant under the doctrine of collateral estoppel. The defendant has therefore not demonstrated that he is entitled to judgment as a matter of law on this count.
Seventh Count — Breach of Fiduciary Duty
The plaintiff alleges in the Seventh count that by the defendant's conduct in failing to refund the plaintiff's funds (the $19,040.57) after learning that the Zebroski judgment had been vacated, and after being ordered to refund those funds by Judge Nevas, the defendant Pesiri "breached his fiduciary duty." (Complaint, Seventh Count, para. 31) The defendant argues that there is no showing that a juduciary relationship existed between Norwalk Cove Marina and defendant Pesiri. In fact the plaintiff has not even alleged a fiduciary relationship between Norwalk Cove Marina and Deputy Sheriff Pesiri. The complaint, supra, only alleges breach of some unspecified "fiduciary duty."
Paragraph 17 of the First Count, incorporated into the Seventh Count, likewise alleges only in a general way that defendant Pesiri was acting "in a fiduciary capacity."
To assert a claim for breach of a fiduciary duty the plaintiff has the burden of proving the existence of a fiduciary relationship. See Murphy v. Wakelee, 247 Conn. 396, 400 (1998). A fiduciary relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the other. Id. At 400. The plaintiff herein has totally failed to allege such a relationship with the defendant or to present facts by affidavit which would support the finding of such a relationship. To the contrary, the uncontested record indicates that the defendant was in all likelihood hired by Attorney Philip French representing the Zebroski defendants to serve the bank executions. There is nothing to suggest that the plaintiff played any role in selecting Deputy Sheriff Pesiri and had any prior understanding of his knowledge, skill or expertise as a deputy sheriff. The defendant has therefore shown entitlement to judgment in his favor as a matter of law as to this count.
Eighth Count — Action on Fidelity Bond
Since this count has been withdrawn, the court makes no ruling on the motion for summary judgment as to the Eighth Count.
Ninth Count — Negligence
The defendant claims that he is immune from liability as to this count under the provisions of Conn. Gen. Stat. § 4-165. The plaintiff's position is that the defendant's deliberate failure to obey a federal court order to refund the seized funds to the plaintiff would not be within the protection of § 4-165 because such conduct would not be "in the discharge of his duties or within the scope of his employment" as those terms are used in the immunity statute, and that, in any event, the State has waived sovereign immunity for tortious acts of sheriffs by the enactment of Conn. Gen Stat. § 6-30 (effective until 12/1/00) and § 6-30a (effective as of 12/1/00).
§ 4-165 provides, in relevant part: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter."
§ 6-30 applied to sheriffs and deputy sheriffs; § 6-31 applies to judicial marshals. Otherwise the two statutes are identical.
As to the first point, there is Superior Court authority that "the failure to remit the funds collected cannot be found to be in furtherance of the work assigned to a deputy sheriff." Yale New Haven Hospital v. Richardson, supra, at p. 10225. The court adopts that reasoning as to the defendant's Pesiri's failure to comply with the May 31, 2000 order of the U.S. District Court to refund the final $19,049.57 of the seized funds to Norwalk Cove Marina. And, addressing the plaintiff's second point, even if the defendant's misconduct were assumed to be in the discharge of his duties or within the scope of his employment, then this negligence claim would be deemed to be a claim against the State, Fetterman v. University of Connecticut, 192 Conn. 539, 550-51 (1984), and the question of whether or not the state has waived sovereign immunity for this type of claim would become relevant. The court finds that the state has waived immunity for tortious acts of deputy sheriffs, including negligence and violation of property rights. Section 6-30 mandates that each deputy sheriff shall be required to carry personal liability insurance in certain amounts "for damages caused by reason of such sheriff's tortious acts." The statute defines "tortious act" to include "negligent acts" and "violation of property rights." Although Connecticut's appellate courts have yet to address the issue of whether §§ 6-30 and 6-30a operate to waive sovereign immunity, four Superior Courts have found that those statutes do operate as such a waiver as to the "tortious acts" of sheriffs and deputy sheriffs or marshals as specified in those statutes. Yale New Haven Hospital v. Richardson, supra; National Loan Investors v. McGuire, Superior Court, Judicial District of New London at New London. Docket No. 549085, (August 4, 1999, Martin, J.) ( 25 Conn. L. Rptr. 204, 206); Davis v. Mak, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. 329180 (March 7, 1997, Thim, J.) ( 19 Conn. L. Rptr. 275); Arbucci v. Farmers Mechanics Bank, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 458674 (June 28, 1994, Berger, J.) ( 12 Conn. L. Rptr. 60). This court agrees with the reasoning of those cases.
The defendant has therefore failed to make the required showing that the negligence claim as set forth in the Ninth Count is barred by sovereign immunity, and has failed to show that he is therefore entitled to judgment as a matter of law on that count.
Order
The defendant's motion for summary judgment (#121) is therefore:
Denied, as to the First Count of the Complaint;
Denied, as to Second Count of the Complaint;
Denied as to the Third Count of the Complaint;
Granted as to the Fourth Count of the Complaint;
Denied as to the Fifth Count of the Complaint;
Denied as to Sixth Count of the Complaint;
Granted as to the Seventh Count of the Complaint;
Denied as to the Ninth Count of the Complaint.
The Court makes no ruling as to the Eighth Count, which has been withdrawn.
BY THE COURT:
Alfred J. Jennings, Jr., Judge