Opinion
AANCV156019447S
10-24-2017
Charles Rosenay v. Evan Taback
UNPUBLISHED OPINION
RULING ON THE DEFENDANT'S MOTION TO REARGUE AND ARTICULATION OF RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Barry K. Stevens, J.
Pending before the court is the defendant's June 5, 2017 motion to reargue this court's order of May 18, 2007, denying the defendant's motion for summary judgment. The court concluded that the defendant's motion for summary judgment should be denied because material issues of disputed fact existed precluding summary judgment. The court ordered the plaintiff to file a response to the defendant's motion to reargue, which the plaintiff filed on June 16, 2017. As explained as follows, the court denies the motion to reargue and articulates the ruling on the motion for summary.
I
" [T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It may also be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court." (Citation omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001). It is " not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Internal quotation marks omitted.) Id., 693.
II
The defendant moved for summary judgment as to the entire complaint. The defendant argued that there were no genuine issues of material fact as to the following: (1) there are no contracts between the parties, but only between the plaintiff and Boppers Entertainment, LLC (Boppers); (2) the alleged 2007 contract is unenforceable because it is beyond the statute of limitations, does not contain the necessary elements of an enforceable contract, and violates the statute of frauds; (3) the alleged 2009 accord is unenforceable because it is " just an allegation and the defendant did not agree or assent" to it; (4) any verbal agreement between the plaintiff and Boppers was overcome by two independent contractor agreements; and (5) counts two through four of the complaint fail to state legally cognizable claims.
In his objection to the summary judgment motion, the plaintiff proffered the following information in his affidavit and deposition. The plaintiff claimed that he founded and owned 100% interest in Boppers. The defendant worked as an independent contractor for Boppers from the years 2002 to 2008. In 2007, the plaintiff sold Boppers to the defendant for $1.2 million. This $1.2 million was to be satisfied by the defendant making periodic payments. Both agreed that the defendant would continue to be a DJ/MC for Boppers and receive $1,000 per show, with a guarantee of at least twenty shows per year. The plaintiff claims that the defendant breached the agreement because he only made two payments on the contract. As a result of this breach, the parties agreed to an accord in May 2009. Under this accord agreement, the plaintiff accepted $6000,000 in satisfaction of the debt, and the defendant received a continued guarantee of twenty shows per year, but at $500 per show. The plaintiff claims that the defendant breached the accord agreement by only making payments totaling $275,000, and stopped making payments in January 2014.
In contrast, the defendant averred to the following in his affidavit. Instead of the plaintiff owning 100% of Boppers, the defendant and the plaintiff split the expenses and profits of the business equally. In 2007, the parties agreed that the defendant would sell his share (50%) of Boppers to the plaintiff, but this agreement was not put in writing. The defendant also states that he did not agree to the alleged 2007 contract, and did not authorize the signing and notarizing of this contract. According to the defendant, the plaintiff negotiated and sold his interest in the business to Boppers, and not to the defendant Taback individually. The defendant also states that in May 2014, the plaintiff informed him that he had only received $265,000 toward the buyout of the company and when he offered to make a lump sum payment of $35,000 to the plaintiff in satisfaction, the plaintiff rejected the offer.
The parties' submissions establish that the exact terms of the parties' transactions or agreements are unclear and in substantial dispute. For example, as to Taback's contention that the plaintiff sold the business to Boppers and not to him individually, the purported contract itself does not clearly or unambiguously support this construction. The contract reflects that Taback signed the document individually and in his personal capacity. The contract states that an insurance policy will be taken on Taback's life so if he dies before full satisfaction of the agreement, the insurance proceeds would " go to pay off the remaining balance owed to" the plaintiff. Def. Ex. N; Pl. Ex. A. The contract further states that " Taback will personally guarantee this agreement." Id. The court can only conclude that what the parties intended by this contract is neither clear nor unambiguous, and the ambiguity is further compounded by Taback's claims that none of his agreements with the plaintiff were reduced to writing and the he did not " assent" to the 2007 contract.
In regard to the defendant's statute of limitations claim, the plaintiff seeks damages based on the defendant's alleged breach of the accord agreement in January 2014. The limitation period for bringing a breach of contract action is six years after the right of action accrues or from the date of breach. General Statutes § 52-576. This action was instituted in May 2015, within six years from January 2014, the date of the alleged breach. To the extent the defendant argues that there was no accord agreement or that a breach of any agreement between the parties occurred long before January 2014, the defendant raises issues that are inappropriate for summary disposition and must await trial adjudication.
The defendant further argues that he is entitled to summary judgment because, as a matter of law, the plaintiff cannot establish the elements of an enforceable contract. As previously stated, the exact terms of the parties' transactions and agreements are unclear and in substantial dispute. The law is well established that in order to have an enforceable contract, " there must be an unequivocal acceptance of an offer, " assent, which is defined as a " meeting of the minds, " and consideration. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Sicaras v. Hartford, 44 Conn.App. 771, 784, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997); Summerhill, LLC v. Meriden, 162 Conn.App. 469, 475, 131 A.3d 1225 (2016). " Whether a meeting of the minds has occurred is a factual determination ." (Emphasis added.) Daly & Sons, Inc. v. West Haven, 66 Conn.App. 41, 48, 783 A.2d 1138, cert. denied, 258 Conn. 944, 786 A.2d 430 (2001). Based on the present record, the court cannot conclude that there are no issues of disputed fact as to whether the parties reached a legally enforceable " meeting of the minds" and that the defendant is entitled to summary judgment as a matter of law on this ground.
The defendant next contends that the accord is unenforceable as a matter of law under the statute of frauds. Again, the defendant asserts this argument by focusing entirely on his own presentation of the facts, and by requesting the court to discount or ignore the evidence advanced by the plaintiff in opposition.
The statute of frauds, General Statutes § 52-550(a), provides: " No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars."
" If no time is definitely fixed but full performance may occur within one year through the happening of a contingency upon which the contract depends, it is not within the statute." (Emphasis omitted; internal quotation marks omitted.) C.R. Klewin, Inc. v. Flagship Properties, Inc., 220 Conn. 569, 579, 600 A.2d 772 (1991). In C.R. Klewin, Inc., the certified question was " whether an oral contract is unenforceable when the method of performance called for by the contract contemplates performance to be completed over a period of time that exceeds one year, yet the contract itself does not explicitly negate the possibility of performance within one year." Id., 573. Our Supreme Court answered no to this question. The court held that " an oral contract that does not say, in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like a contract of indefinite duration, such a contract is enforceable because it is outside the proscriptive force of the statute regardless of how long completion of performance will actually take." Id., 583-84.
This case was appealed to the Connecticut District Court, and that decision was then appealed to the Second Circuit Court of Appeals, which reversed and remanded the case to the District Court. See 955 F.2d 5 (2d Cir. 1992). The Second Circuit held that the plaintiff's contract claim should not have been dismissed by the District Court for failure to satisfy the Statute of Frauds.
According to the plaintiff's affidavit and testimony, the oral accord simply modified the amount to be paid by the defendant in satisfaction of an existing debt reflected in a written document, and the accord provided that the defendant was to pay $5,000 per month until the full amount was paid, with a continued guarantee of twenty shows per year. The alleged oral accord does not say in express terms that " performance is to have a specific duration beyond one year, " and therefore, is outside the provisions of the statute of frauds and is enforceable " regardless of how long completion of performance will actually take." Id., 583-84.
The defendant also contends that the plaintiff and Boppers executed two independent contract agreements that operate to supersede the 2009 accord agreement. In February 2009, the plaintiff and Boppers executed an agreement in which the plaintiff would provide disc jockey services to Boppers as an independent contractor. This agreement included certain provisions precluding the plaintiff from competing with Boppers or soliciting Boppers customers. This agreement was effective for one year, and in 2010, a second agreement with the same terms was executed by the parties for another five-year term. Def. Ex. F and H (filing #175). Both these contracts contain a provision stating that " [t]his Agreement supersedes any and all prior agreements, verbal or written, between the parties, " and the defendant maintains that this provision operates to supersede the 2009 accord agreement. The defendant's argument not only insinuates that it was rational for the plaintiff to forego an approximate $325,000 claim on the basis of these independent contractor agreements, but the defendant also does not squarely or fully address the following, conflicting factual assertions: the first independent contractor agreement could not have " superseded" the accord agreement because it was executed in February 2009, whereas the accord agreement was allegedly executed later in May 2009; and payments totaling $275,000 were made on the accord agreement through 2014, years after the independent contractor agreements were executed.
Furthermore, in May 2014, years after the execution of the independent contractor agreements, the defendant acknowledges in his affidavit that he offered to make a lump sum payment of $35,000 to satisfy the amount owed under the accord agreement. Again, the circumstances of the parties' alleged transactions and the general nature of these independent contractor agreements fail to provide clear and unambiguous support for the defendant's position. Stated differently, the defendant has failed to establish that there exist no material issues of disputed facts on his position that the plaintiff's claim based on the accord agreement was superseded by the independent contractor agreements.
The defendant's final contentions require little discussion. The defendant makes the broad argument that counts two through four of the complaint alleging breach of implied covenant of good faith and fair dealing, unjust enrichment, and a violation of the Connecticut Unfair Trade Practices Act, respectively, fail to state legally cognizable claims because they are based on unenforceable contracts. This argument in support of the summary judgment obviously fails because, as previously discussed, material issues of fact exist as to what agreements the parties formed and the terms of any such agreements.
In the motion to reargue, the defendant contends that the court's decision is erroneous because the court " overlooked" settled law regarding contracts, the statute of limitations and the statute of frauds. The defendant also insists that the court failed to accept the defendant's position that he is not a proper party to this action because the business was sold to Boppers and not to him. The defendant further argues that " the facts found by the court to be in dispute are not material and have no effect on the outcome of this case, yet those facts which are material to the outcome of this case and raised by the defendant, the court does not mention, discuss, or weigh despite the defendant's submission of documentary evidence in proof thereof and the plaintiff's failure to submit counter evidence."
Defense counsel appears to misunderstand the purpose of summary judgment and the rules governing summary judgment motions. The defendant's arguments fail primarily because the defendant wants the court to rule on his motion for summary judgment by solely emphasizing and crediting the defendant's presentation of the facts. For example, defense counsel contends that the plaintiff " misquotes" the defendant numerous times, and because the court relies on such " misquotes, " the decision is founded on a " misapprehension of the facts." The purpose of summary judgment, however, is not for the court to weigh or credit the parties' evidence, but rather to evaluate whether there are any disputed factual issues precluding summary disposition and requiring jury determination. At the summary judgment stage, it is not for a court to determine the " weight" of evidence provided or to decide factual issues. The weight of any evidence is strictly a matter for the trier of fact. As discussed above, the evidence presented by the parties unquestionably shows that disputes exist about what the parties agreed to and what were the terms of such agreements. To reiterate, the court's task in evaluating a summary judgment motion is to determine whether factual disputes exist, but not to resolve them when they are identified. RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011) (" [i]n 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" [internal quotation marks omitted]).
Additionally, in his motion to reargue, the defendant contests the court's failure to address in detail the many factual and legal arguments made by the parties. In denying a motion for summary judgment, however, the court is not required to articulate its view on the arguments presented by the parties, especially if the motion is denied because disputed facts exist. Specifically, the rules of practice only require the court to provide an explanatory statement or memorandum when a motion for summary judgment is granted. See Practice Book § § 6-1, 64-1.
Therefore, the court denies the defendant's motion to reargue the court's order denying his motion for summary judgment.