Opinion
No. CV 07 5004549 S
November 5, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #221
Presently before the court is a motion for summary judgment brought by the defendants, Hillcrest Park Tax District and Hillcrest Park Association, Inc. In the operative pleading, which is the amended third revised complaint dated October 7, 2008, the plaintiffs, Tom Silberstein and Elizabeth Newman, allege the following facts relevant to the disposition of this motion. The plaintiffs, who own property located at 7 Ricky Beth Lane in Old Greenwich, reside in the Hillcrest Park Tax District and are members of Hillcrest Park Association, Inc. In the operative complaint, the plaintiffs allege that the two defendants are a tax district and association created pursuant to General Statutes § 7-324 et seq., "for the purpose of, among other things, constructing and maintaining drains, storm sewers, roads and other infrastructure in the Hillcrest Park neighborhood that includes the home of the plaintiff[s]." Prior to November 6, 2002, three families in the tax district indicated that they intended to purchase a piece of property known as 54 Hillcrest Park Road. The purpose of purchasing this property was to subdivide it into two lots and construct two new homes. Before commencing this construction project, the plan needed to be approved by a special vote of the members of the defendant tax district. At this special meeting, it was represented to the members of the tax district that: (1) the back house would not be visible from the road; (2) the line of trees on the property would be maintained; (3) the homes would be constructed in a manner consistent with the other homes in the neighborhood; (4) the ambiance of the neighborhood would be maintained and (5) the construction of the houses would not have any adverse environmental impact on the other houses in the neighborhood. Following the approval of the subdivision plan, the homes were constructed, but the plaintiffs allege that they were not built in accordance with the plan or conditions approved at the special meeting.
Although there are many additional defendants in this case, Hillcrest Park Tax District and Hillcrest Park Association, Inc. are the only defendants who are parties to the motion for summary judgment that is presently before the court. Accordingly, they alone will be referred to as "the defendants" in this memorandum of decision.
The plaintiffs allege that since the construction of the houses on the 54 Hillcrest Park Road property, they have experienced excessive water flow onto their property. This problem did not exist prior to the construction of the new houses. On numerous occasions since 2004, the plaintiffs have advised the defendants of this "severe and excessive flooding," but the defendants have failed to take any ameliorative measures. At the 2007 annual meeting, the members of the tax district approved a $15,000 expenditure to retain an engineer to conduct a watershed study, but the defendants have refused to hire an engineer. The plaintiffs allege that "[b]y virtue of their position as a tax district and a private association, the defendants owe a fiduciary duty to the plaintiffs because of, among other things, their collection of taxes and/or assessments for the maintenance, construction, and upkeep of drains, storm sewers, roads and other infrastructure in the Hillcrest Park neighborhood." According to the plaintiffs, the defendants have breached this duty because, inter alia, they failed to conduct a watershed study, failed to ensure that the homes were constructed in a manner consistent with the representations made at the special meeting and failed to take any corrective measures to fix the water flow onto the plaintiffs' property. Consequently, in count twenty of the operative complaint, the plaintiffs allege a breach of fiduciary duty claim against the defendants. Furthermore, counts twenty-one and twenty-two allege causes of action for negligence and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), respectively. In count twenty-two, the plaintiffs allege that the defendants violated CUTPA because they made statements that were "false, misleading and deceptive and omitted material facts" regarding whether they would adhere to defendants' bylaws when building the houses on the 54 Hillcrest Park Road property.
On February 26, 2010, the defendants filed a motion for summary judgment. Attached to the defendants' motion are: (1) the sworn affidavit of Alfred Heynen, who is an officer of the Hillcrest Park Tax District; (2) the sworn affidavit of Henry Lim, the Hillcrest Park Tax District secretary, which attaches authenticated copies of the Hillcrest Park Association's articles of association, a certificate filed on the Greenwich land records, a certificate regarding the formation of Hillcrest Park Tax District that is filed on the Greenwich land records and the Hillcrest Park Tax district bylaws; (3) certified excerpts of the deposition of Donald T. Ballou, P.E. from November 6, 2009 and February 23, 2010 and (4) certified excerpts of Elizabeth Newman's deposition conducted on April 27, 2009. The plaintiffs filed a memorandum of law in opposition on August 13, 2010, which attaches: (1) copies of the minutes and voting record from the November 6, 2002 special meeting; (2) certified excerpts from the April 27, 2009 deposition of Newman; (3) a copy of this court's April 1, 2010 memorandum of decision on another summary judgment motion in this case and (4) certified excerpts from the deposition of Ballou. Finally, on September 9, 2010, the defendants filed a reply memorandum.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o 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 . . . 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).
On the face of their motion, the defendants list seven grounds as to why they are entitled to judgment as a matter of law. They are as follows: (1) the plaintiffs cannot show that the defendants had any fiduciary duty with regard to flood control or development in the neighborhood; (2) as a governmental entity, the defendants did not have any fiduciary duties to the plaintiffs; (3) as the defendants did not have a duty to the plaintiffs, there was no breach of the duty upon which to find negligence; (4) because the allegations of the plaintiffs' complaint implicate discretionary acts, the defendants have governmental immunity; (5) since the plaintiffs would have experienced flooding without the construction of the homes, any actions by the defendants were not the cause in fact of the plaintiffs' injuries; (6) the claims against the defendants are barred by the statute of limitations and (7) CUTPA is inapplicable to the defendants' alleged conduct. The crux of the defendants' fifth argument is that the plaintiffs cannot demonstrate causation because their expert, Donald T. Ballou, has testified in his deposition that the construction project did not cause the flooding of the plaintiffs' residence. In their memorandum of law, the defendants expressly adopt the arguments made by their co-defendants as to this issue. This court has already addressed this matter as to co-defendant Rocco V. D'Andrea, Inc. and the court has determined that are genuine issues of material fact regarding causation. See Silberstein v. 54 Hillcrest Park Associates, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5004549 (April 1, 2010, Mintz, J.) (denying motion for summary judgment). As the defendants have offered no new arguments on this issue, it can be summarily rejected by the court. Consequently, the court will now address the other arguments raised by the defendants in support of their motion.
As a threshold matter, the court must determine the precise legal status of the defendants. In the operative complaint, the plaintiffs allege that the defendants are a tax district and association created pursuant to General Statutes § 7-324 et seq., which is the section of the General Statutes governing "fire, sewer and other districts." Legally created tax districts are "quasi-municipal corporation[s] . . . Quasi-municipal corporations are governed by the law applicable to municipal corporations." (Citations omitted.) Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987). "Tax districts are specifically authorized and sanctioned by General Statutes § 7-324 et seq. Unquestionably, a . . . tax district serves a traditional governmental function." Beaudette v. Amston Lake Tax District, Superior Court, judicial district of Tolland, Docket No. CV 07 5001240 (October 20, 2008, Sferrazza; J.) ( 46 Conn. L. Rptr. 506, 507). Consequently, as determined by at least one Superior Court judge, tax districts are "equivalent to a municipality for purposes of governmental immunity analysis." Id., 507, citing State ex rel. Maisano v. Mitchell, 155 Conn. 256, 264, 231 A.2d 539 (1967) (holding that "[t]he second taxing district of the city of Norwalk was and is a political subdivision of the state" for the purposes of General Statutes § 9-167a). Consequently, this court will treat the defendants as legally analogous to a municipality.
According to the undisputed evidence attached to the defendants' motion for summary judgment, Hillcrest Park Association, Inc. was created by residents on June 2, 1951. Thereafter, the Hillcrest Park Tax District was formed in 1985. In his affidavit, Heynen attests that "[s]ince the formation of the Hillcrest Park Tax District, the Hillcrest Park Tax Association has been moribund because the Tax District has assumed the maintenance activities which the Association previously exercised."
The defendants first move for summary judgment on count twenty, breach of fiduciary duty, on the grounds that: (1) the plaintiffs cannot demonstrate that the defendants had any fiduciary duty with regard to flood control or neighborhood development and (2) government entities do not have fiduciary duties to residents. In their memorandum of law, the defendants argue that there is nothing in the record indicating that the defendants had a duty to represent the interests of the plaintiffs or that the defendants had any superior knowledge, skill or expertise that could give rise to a fiduciary relationship. The defendants further point to the fact that there are no Connecticut cases imposing a fiduciary duty on governmental entities towards their citizens or taxpayers. In response, the plaintiffs cite to language in the defendants' bylaws that purportedly creates a duty to "construct and maintain . . . drains [and] storm sewers." The plaintiffs have also provided the court with appellate cases from other jurisdictions wherein the court determined that a municipality had a duty to maintain drainage systems in the proper manner. According to the plaintiffs, these cases are persuasive authority on the issue of whether the defendants had a fiduciary duty to the plaintiffs. In their reply memorandum, the defendants contend that these out-of-state cases are inapplicable. Moreover, the defendants argue that the language from the bylaws that is cited by the plaintiffs is conditional, and, therefore, it does not establish an affirmative fiduciary duty.
"It is well settled that a fiduciary or confidential 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 interests of the other." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). "In the seminal cases in which [our Supreme Court] has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another." Id. Conversely, "[i]n the cases in which [the Supreme Court] has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." Id., 39. Our Supreme Court has determined that it was appropriate for a trial court to direct a verdict in favor of the defendant when "[t]he plaintiff failed to produce evidence of a unique degree of trust and confidence between the parties such that the defendants undertook to act primarily for the benefit of the plaintiff." (Internal quotation marks omitted.) Id., 41.
Tellingly, the plaintiffs have failed to supply the court with any Connecticut case law holding that a governmental entity has a fiduciary relationship to its residents or taxpayers to maintain a sewer system or control neighborhood development. This result makes sense because the majority of activities conducted by a government are for the benefit of the public as a whole as opposed to certain individuals. Without a close relationship based on trust and a specific duty to act for another, there cannot be a fiduciary relationship. Indeed, under the law of this state, "[i]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed if at all in some form of public prosecution." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 166, 544 A.2d 1185 (1988). Moreover, there is no evidence that the plaintiffs were dependent on the defendants such that the defendants held a dominant position over the plaintiffs. Consequently, the court determines that under Connecticut law, government entities such as the defendants do not automatically have a fiduciary duty towards residents such as the plaintiffs.
Accordingly, the question then becomes whether the plaintiffs have raised a genuine issue of material fact regarding the defendants' alleged fiduciary duty by pointing to excerpts from the defendants' bylaws. In their memorandum of law, the plaintiffs only cite to the following section of the Hillcrest Park Tax District bylaws as creating a fiduciary duty on the part of the defendants: "ARTICLE 1. Purposes of the Tax District. The purposes to be accomplished by the formation of the Tax District may be to light the streets; to plant and care for shade and ornamental trees and shrubbery; to construct and maintain roads, sidewalks, crosswalks, gates, drains, storm sewers, sanitary sewers, underground utilities and to install and maintain fire hydrant and water lines required in connection therewith; to establish park security and safety procedures; and to collect garbage, ashes and other refuse matter in any portion of such district and provide for the disposal of such matter." (Emphasis added.) Although this section of the bylaws does reference maintaining drains and sewers, the bylaws are couched in conditional language. "The use of the word `may' . . . is in itself a clear indication that a discretionary power, rather than a mandatory duty, was intended." Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428, 226 A.2d 380 (1967). Moreover, as correctly noted by the defendants in their reply memorandum, the 1951 articles of association of the Hillcrest Park Association, Inc. states: "The purposes for which said corporation is formed are the following, to wit: To provide for the care and maintenance of certain roads approximately 9/10ths miles in length as measured from Palmer Hill Road and constituting that portion of said roads which are now paved, said roads being variously known as Hillcrest Terrace, Hillcrest Avenue and Knoll Avenue, being the roads presently maintained by the landowners of said Hillcrest Park . . ." The plaintiffs' residence is located on Ricky Beth Lane, so it is not clear that there was any affirmative duty placed on the defendants to maintain drains and sewers on their street. As a result, the court concludes that the plaintiffs have failed to raise a genuine issue of material fact as to whether the defendants had a fiduciary duty to them, and, accordingly, the court grants summary judgment as to count twenty.
The defendants next argue that they have governmental immunity for their discretionary acts. General Statutes § 52-557n(a)(2) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." In Connecticut, municipalities have immunity "for the misperformance of ministerial acts, but [have] a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010). In their memorandum of law, the plaintiffs do not dispute that the acts alleged in the operative complaint are discretionary in nature. Rather, the plaintiffs contend that one of the exceptions to governmental immunity applies. "There are three exceptions to discretionary act immunity . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006).
The plaintiffs first argue that the defendants acted with malice, wantonness and intent to injure. In their memorandum of law, the plaintiffs argue that the defendants were aware of the drainage problems experienced by the plaintiffs but "randomly decided to not meet their obligations concerning the structures on the plaintiffs' property despite using the structures to drain water off Hillcrest Park Road. Such conduct is clearly malicious." Furthermore, the plaintiffs point to the fact that the tax district membership approved an expenditure to pay for a watershed study, but no such study ever occurred. In response, the defendants argue in their reply memorandum that their alleged malfeasances clearly do not meet the standard of malice, wantonness or intent to injure. The defendants contend that there is no evidence that they made any misrepresentations to the plaintiffs or otherwise acted in a willful and wanton manner.
"In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] 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.) Elliot v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). According to our Supreme Court, "the use of the words `maliciously or wantonly' impliedly excludes conduct characterizable as negligent." Stiebitz v. Mahoney, 144 Conn. 443, 449, 134 A.2d 71 (1957).
Notably, the only causes of action alleged by the plaintiffs against these defendants are breach of fiduciary duty, negligence and CUTPA. There is no claim brought, or facts alleged, that the defendants acted with an extreme disregard for the rights or safety of the plaintiffs. Rather, the operative complaint mostly sounds in ordinary, or at the worst, gross negligence. An examination of the evidence attached to the plaintiffs' memorandum of law in opposition also fails to reveal any facts that could meet this standard. In their memorandum of law, the plaintiffs cite to the following conduct as being malicious: (1) that the defendants "randomly decided to not meet their obligations concerning the structures on the plaintiffs' property despite using the structures to drain water off Hillcrest Park Road" and (2) the defendants' failure to conduct a watershed study even though an expenditure for the same was approved by the defendants' membership. Neither of these activities rise to the level of willful or wanton misconduct. Instead, at the worst, this conduct demonstrates a failure to act in a reasonable or prudent manner, which is the essence of negligence. For these reasons, this court determines that there is no genuine issue of material fact that this exception to governmental immunity does not apply in the present case.
The plaintiffs also argue that they are identifiable victims subject to imminent harm. In their memorandum of law, the plaintiffs argue that they qualify for this exception because the defendants were aware that they had experienced flooding issues in the past and were at risk to have additional problems unless corrective action was taken. The plaintiffs contend that the defendants' failure to take steps to maintain properly the drainage systems subjected them to imminent harm. In response, the defendants argue that the plaintiffs cannot be considered identifiable victims subject to imminent harm because "[t]he class of possible victims of an unspecified flood that may occur at some unspecified time in the future cannot be narrowed to a group of identifiable persons, and the within plaintiffs are not subject to `imminent harm,' since a flood could possibly have occurred at any future time, or not at all." Consequently, the defendants contend that the identifiable person-imminent harm exception does not apply in this matter.
The identifiable person-imminent harm exception "applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm . . . [The Connecticut Supreme Court has] stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350, 984 A.2d 684 (2009). "With respect to the identifiable victim element . . . this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care." (Internal quotation marks omitted.) Id., 350-51. "[T]he only identifiable class of foreseeable victims that [our Supreme Court has] recognized for these purposes is that of schoolchildren attending public schools during school hours . . ." (Internal quotation marks omitted.) Id., 352. "Application of this rule has been similarly restrictive outside of the public school context because, in addition to not recognizing any additional classes of foreseeable victims, the decisions reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity. See Sestito v. Groton, [ 178 Conn. 520, 423 A.2d 165 (1979] . . . Sestito appears, however, to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because [a]n allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." (Internal quotation marks omitted.) Id., 353-54.
In Sestito, our Supreme Court determined that it was a jury question as to whether a town could be held liable when its police officer failed to act despite witnessing a brawl and subsequent shooting in a bar parking lot.
When applying the identifiable person-imminent harm exception to the present case, the court's decision in Ellis v. Stratford, Superior Court, judicial district of Fairfield, Docket No. CV 07 5009711 (April 8, 2010, Maiocco, J.T.R.) is instructive. In Ellis, the plaintiffs brought suit against, inter alia, the town of Stratford, and alleged that they suffered flooding on their property as the result of a faulty storm drain located in front of the plaintiffs' residence. After the defendant town raised the defense of governmental immunity, the plaintiffs argued that they fit within the identifiable person-imminent harm exception. When rejecting this argument, the court stated that "[t]he duty if any, on the part of the Town and its officers extends to every resident in the Town. Such would not fall in the category of an identifiable class for the purpose of satisfying the exception . . . [A]n unknown class of possible victims of a harm that may or may not occur sometime in the future is not enough to satisfy the exception." (Citation omitted.) Id. Like the plaintiffs in Ellis, the plaintiffs in the present matter were one of many residents of the defendant tax district, and the duty, if any, on the part of the defendants' employees extended equally to all of the defendants' residents and not just the plaintiffs. Moreover, the plaintiffs were not subjected to a specific imminent harm because it would have been nearly impossible for the defendants to predict precisely when the plaintiffs' property was going to flood. Accordingly, the court determines that there are no genuine issues of material fact that the identifiable person-imminent harm exception does not apply to the present case. Having found that none of the exceptions to discretionary act governmental immunity is applicable to these facts, the court grants summary judgment as to count twenty-one sounding in negligence.
Finally, the defendants move for summary judgment as to count twenty-two, CUTPA, on the ground that CUTPA is inapplicable to the conduct allegedly committed by the defendants. In their memorandum of law, the defendants first argue that there was no business relationship between the parties as required under CUTPA. The defendants also argue that they are "analogous to a condominium association" and that it "is settled law in Connecticut that the management and operation of condominium associations are not the exercise of trade or commerce for purposes of liability under CUTPA." Furthermore, the defendants contend that CUTPA does not apply to them because they are the legal equivalent of a governmental entity. The plaintiffs' memorandum of law raises no arguments in opposition to the positions taken by the defendants in support of their summary judgment motion as to this count.
CUTPA provides in relevant part: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). "Although our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Citation omitted; emphasis in original.) Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006). In his affidavit, Heynen attests that "[t]he Tax District does not conduct any commerce, does not engage in any business pursuits and all of its activities are done on a not for profit basis." The plaintiffs neither have alleged nor brought forth any evidence rebutting Heynen's attestations that the parties did not have a business relationship. At the summary judgment stage, "[o]nce the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Zielinski v. Kotsoris, supra, 279 Conn. 319. As the plaintiffs have failed to present any opposing evidence or arguments regarding whether the parties had a business relationship, the court determines that there are no genuine issues of material fact as to this count and grants summary judgment.
For all of the reasons stated above, the court grants the defendants' motion for summary judgment as to counts twenty, twenty-one and twenty-two.