Opinion
No. X08 CV-05 4006596S
January 8, 2009
Memorandum of Decision on Plaintiffs' Motion for Summary Judgment (No. 219)
Factual and Procedural Background
The plaintiffs in this action are Leonard and Tema Schrage, the Morris Schrage Individual Retirement Account (Schrage IRA), the Morris Schrage Trust (Schrage Trust), The Melvin N. and Marcia A. Grossman Family Trust (Grossman Trust), and Universal City Nissan, Inc. The defendants are Samuel Israel, III, James G. Marquez and Daniel Marino. Plaintiffs seek compensatory and punitive damages and other relief from the defendants arising out of alleged losses of several million dollars entrusted by the plaintiffs to an investment advisory group known as the Bayou Funds which was initially organized and managed by defendants Marquez and Samuel Israel, III, later joined by defendant Daniel Marino. All three defendants have pleaded guilty to federal criminal charges of investment fraud in the operation of the Bayou Funds and have been sentenced to prison.
The civil complaint sets forth claims of misrepresentation, fraud, breach of fiduciary duty, aiding and abetting, conversion, conspiracy and violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110a et seq. One of the broad allegations in the complaint is that the defendants did not inform the plaintiffs that their Bayou Funds were a massive fraud. Following an evidentiary hearing in January 2008 Judge Adams granted a prejudgment remedy in the form of an attachment/garnishment in the amount of Six Million ($6,000,000.00) Dollars against the assets, property or obligations held by or on behalf of the defendant James G. Marquez and issued a restraining order prohibiting him from dissipating, transferring, or hypothecating any of his assets except for expenditures not to exceed $5,000 per month for living expenses and attorneys fees. The defendants Samuel Israel III and Daniel Marino are reported to be in default status and are no longer actively defending. The only defendant presently contesting the allegations of the complaint is James Marquez. No trial date has yet been scheduled.
The operative Case Management Order (CMO No. 2 as amended on 11/18/08) permits the plaintiffs to file a motion for summary judgment by October 27, 2008, which motion has been timely filed and is now before the court, and the defendant Marquez to file his opposition to the plaintiffs' motion as well as his own cross motion for summary judgment by December 9, 2008. On that date (December 9) counsel for defendant Marquez wrote to the court advising that Mr. Marquez had instructed counsel not to oppose the plaintiffs' motion for summary judgment. The December 9 deadline has now passed and no opposition to the plaintiffs' motion for summary judgment has been filed, nor has defendant Marquez filed any cross motion for summary judgment. Since counsel's letter of December 9 stops short of consenting to the granting of plaintiff's motion, but indicates only that no opposition papers or memorandum would be filed, the court will rule on the motion based solely on the extensive materials submitted by the plaintiffs in support of their motion. For the reasons to be stated below, the plaintiffs' motion for summary judgment is granted as to liability only, pursuant to Practice Book § 17-50 as to Counts One, Two, Three, Five, Six and Seven, and denied as to Count Four.
The motion for summary judgment asks for a judgment in favor of each plaintiff on all seven counts of the complaint for compensatory damages equal to the amount each plaintiff's invested with the Bayou Funds (claimed to be the cumulative sum of $5,222,000), plus punitive damages equal to the amount of compensatory damages, plus attorneys fees and costs. But Case Management Order No. 2 provides at ¶ 5 that "[h]earings in damages against the defaulted defendants Samuel Israel and Daniel Marino ( and the defendant James Marquez if summary judgment is granted against him) will be scheduled by the court following a status conference after the court has ruled on the motions for summary judgment." (Emphasis added.) Presumably in reliance on that provision, counsel for defendant Marquez in his letter of December 9, 2008 specifically reserved the right to contest damages "in any damages inquest" and submitted no affidavits or other documentation regarding damages. Under these circumstances the court declines to enter summary judgment on damages, especially since punitive damages are claimed. Damages shall therefore be determined following a hearing in damages per Practice Book § 17-50. There is no judicial efficiency to be gained by deciding damages by summary judgment, since there will be a hearing in damages in any event to determine damages against the defaulted defendants.
Discussion Legal Standard for Summary Judgment
Summary Judgment shall be rendered when the moving party can show upon the pleadings, affidavits and other proof submitted, that there is no genuine issue of law as to any material fact and that the moving party is entitled to judgment as a matter of law. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1985), quoting Practice Book § 384, now § 17-49. Summary Judgment is designed to eliminate delay and expense incident to trial when there is no real issue to be tried; it is an attempt to dispose of cases in a manner which is speedier and less expensive for all concerned than a full-dress trial. Provencher v. Town of Enfield, 98 Conn.App. 271, 274, n. 3 (2006), reversed on other grounds 284 Conn. 772 (2007). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, (2006).
First Count: (Negligent Misrepresentation) and Second Count (Fraud)
In the first count plaintiffs claim that the defendants, including defendant Marquez represented that plaintiffs' investments in Bayou Funds would be for the benefit of the plaintiffs and that such would be properly managed by the defendants for the benefit of the plaintiffs; that Bayou Funds were subject to NASD and SEC audits; that Bayou had an independent accountant who audited Bayou's books and records, and that defendants provided plaintiffs with periodic statements which purported to reflect plaintiffs' account balances in the Bayou funds and showed substantial account balances and earnings. Plaintiffs further allege that they relied on the foregoing statements which were false and made negligently to induce plaintiffs to invest their funds with Bayou to their damage. These allegations adequately state a claim for negligent misrepresentation. See Updike, Kelly Spellacy v. Beckett, 269 Conn. 613, 643 (2004).The second count incorporates the allegations of the first count and adds allegations that defendants knew or should have known that their statements and representations were false and misleading and were made recklessly or intentionally, which adequately states a cause of action for intentional fraud. Updike, Kelly, supra.
The record submitted by plaintiffs shows that there is no genuine issue of any material fact as to these allegations and that plaintiffs are entitled to judgment on these counts as a matter of law. Mr. Marquez has testified in this court that he and the other defendants created false rates of return numbers, i.e. simply "made up" the numbers and put those false rates of return numbers in various Bayou Funds' documents with the knowledge that they would be disseminated, and in fact they were disseminated to investors to induce them to invest in the Bayou Funds. (Exhibit 2, pp. 26-27; 74; 77.) In fact, Mr. Marquez has admitted, and has pled criminally guilty to just "making the numbers up" in some cases. (Ex. 2, p. 26.) He has also admitted that the false rate of return numbers he and other defendants made up made it appear to investors that Bayou Funds had been earning very substantial profits when in fact they were losing substantial amounts of money, (Ex 2, p. 27.) and that the Bayou Funds were a "Ponzi scheme," continually requiring new investments to cover up the fraud. (Ex. 2, p. 68.) Mr. Marquez has admitted that in 1998 he and the other defendants created a phony accounting firm, Richmond Fairfield Associates, to pretend to audit the Bayou Funds and to certify the Bayou Funds' annual financial statements. (Ex. 2, p. 27.) Instead of the audits being conducted by an independent accounting firm, the "audits" were prepared by co-defendant Daniel Marino. ( Id.) Mr. Marquez has also admitted that he and the other defendants, starting in 1999, sent out these false financial statements to investors with the intent to defraud them to invest, and to remain as investors, in the Bayou Funds, (Ex. 2, p. 27.) and specifically that he was aware that the Bayou Funds prepared documents distributed to investors reflecting the false performance history of the Bayou Funds, the rates of return that he had made up. (Ex. 2, p. 75.)
Mr. Marquez testified at the hearing on application for prejudgment remedy in this case before Judge Adams on January 28, 2008, the transcript of which is Exhibit 2 to the Affidavit of Atty. Timothy F. Butler, dated October 27, 2008. All references to an "Exhibit" will be to the exhibits attached to the Butler affidavit.
On January 22, 2008 Mr. Marquez was sentenced in the United States District Court for the Southern District to New York upon his December 14, 2006 plea of guilty to one count of conspiracy to commit investment advisor fraud and mail fraud in violation of 18 United States Code § 371. He was sentenced by Judge McMahon to a prison term of 51 months, followed by a period of two years supervised release, and was ordered to liquidate assets and contribute $6,259,650 to the Bayou Victims Restitution Fund. (Ex. 7.)
The foregoing false numbers were represented to plaintiffs as being true, and plaintiffs relied on these numbers in making their respective investments in the Bayou Funds. (Ex. 9, p. 7; Ex 10, pp. 147-49 (Plaintiff Marcia Grossman); (Ex. 12, pp. 43-44 (Plaintiff Melvin Grossman); (Ex. 13, p. 6 (Plaintiff Leonard Schrage). In all, the plaintiffs cumulatively invested $5,222,000 in various Bayou Funds over a three-year period commencing May 2002, and have received no return or reimbursement of any of their invested funds. (Ex. 3, p. 2; Ex. 9, p. 11; Ex. 16; Ex. 11, pp. 6, 14; Ex. 13, pp. 6-9, 13, 17-18, 20-22; Ex. 17, p. 15.)
Third Count (Aiding and Abetting)
This count repeats the allegations of the Second Count (intentional fraud) and further alleges that "[t]he defendant James Marquez aided defendants Samuel Israel and Daniel Marino in the commission of a wrongful act." (Count 3, ¶ 44.) The forgoing admissions made by defendant Marquez in his January 28, 2008 testimony factually support this allegation such that there is no genuine issue of fact as to its validity. The three defendants were clearly aiding and abetting each other in the commission of wrongful acts. The elements of an aiding and abetting claim are (1) the party who was aided performed some wrongful act causing injury; (2) the defendant was generally aware of his role as part of an overall illegal or tortuous activity at the time of the assistance; and (3) the defendant knowingly and substantially assisted the principal violation. Estate of Axelrod v. Flannery, 476 S.Supp. 188, 195 (D.Conn. 2007), citing FDIC v. Romaniello, Docket No. CV92-0294248, Superior Court, Judicial District of Fairfield at Bridgeport (December 3, 1992, Leheny, J.) ( 1992 WL 369557; 8 Conn. L. Rptr. 30) (Bank that was defrauded by borrower to lend money to the borrower had valid claim for aiding and abetting fraud against the party that prepared false financial statements that bank relied upon when lending the money to the borrower.); Brunette v. Bristol Savings Bank, Docket No CV92-0453957S, Superior Court, Judicial District of Hartford/New Britain at New Britain (August 22, 1994, Berger, J.) [ 12 Conn. L. Rptr. 322] ( 1992 WL 369557 (Party that prepared false financial statements that were then used by others to further another party's scheme to defraud potential investors was not entitled to summary judgment dismissing claim for aiding and abetting the fraud asserted by investors who later relied on those false financial statements.)
The undisputed facts in the record submitted by plaintiffs establish as a matter of law the aiding and abetting liability of defendant Marquez.
Fourth Count (Breach of Fiduciary Duty)
In Count Four the plaintiffs also incorporate all the deliberate fraud allegations of Count 2 and further claim that: "Each of the defendants owed a fiduciary duty to the plaintiffs." (¶ 43); "Each of the defendants had an obligation to the plaintiffs of good faith, due care, loyalty, and full disclosure." (¶ 44), and "Each of the defendants breached their respective fiduciary duty to the plaintiffs by: (a) misrepresenting and omitting to state to, and concealing from, the plaintiffs material facts; (b) misappropriating the funds of the plaintiffs (¶ 45).
To assert a claim for breach of a fiduciary duty, the plaintiff must prove the existence of a fiduciary relationship. See Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998). "[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.) Biller Associates v. Peterken, 269 Conn. 716, 723, 849 A.2d 847 (2004). "[E]quity has carefully refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . Simply classifying a party as a fiduciary inadequately characterizes the nature of the relationship." (Citation omitted; internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn. 206, 222-23, 635 A.2d 798 (1994); see also Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982). "The law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 41.
"The Connecticut Supreme Court has specifically refused to define a fiduciary relationship in precise detail and in such a manner as to exclude new situations, choosing to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other . . . The Connecticut Supreme Court has also recognized that not all business relationships implicate the duty of a fiduciary." (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery, Superior Court, complex litigation docket at Waterbury, Docket No. UWY CV 04 0185580 (June 19, 2005, Eveleigh, J.). "[U]nder Connecticut law, a fiduciary or confidential relationship is broadly defined as a relationship that 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. The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." (Citations omitted; internal quotation marks omitted.) Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006).
"In the seminal cases in which this 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." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 41. In Hi-Ho Tower, Inc., "the Court noted that in cases in which the Court had, 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. The court did not find a fiduciary relationship where the parties were business entities that engaged in arm's length transaction, and there was no evidence that the plaintiff was unable to protect its interests . . . The fact that one business person trusts another and relies on [the person] to perform [its obligations] does not rise to the level of a confidential relationship for purposes of establishing a fiduciary duty." Id. Superior skill and knowledge alone do not create a fiduciary duty among parties involved in a business transaction. Id., 42. See, also, the recent case of Mystic Color Lab, Inc. v. Auctions Worldwide, Inc. LLC, 284 Conn. 408, 415-16 (2007).
It may well be that a full trial of this count would result in a finding that the defendants, including James Marquez, had a fiduciary relationship to the plaintiffs, especially given the high degree of control the defendants seem to have had over the plaintiffs' invested funds. But the plaintiffs in presenting this motion for summary judgment have done no analysis at all of the factors that go into the determination of a fiduciary relationship. For instance, there is no comparison of the relative degrees of sophistication between the defendants and the plaintiffs. This count is not separately briefed in plaintiffs' supporting memorandum of law, but is merged into plaintiffs arguments on misrepresentation. fraud, and conspiracy, with only two short sentences — devoid of any references to the record — devoted to the breach of fiduciary duty claim. There is no citation of any case in any jurisdiction where the owners/managers of any mutual fund or hedge fund or similar investment vehicle have found to be — or not to be — in a fiduciary relationship with investors. The plaintiffs as the moving parties asking for summary judgment have the initial burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle them to judgment as a matter of law. Allstate Ins. Co. v. Barron, 209 Conn. 394, 405 (2004). Here the moving plaintiffs by their cursory treatment of the fiduciary issue, have fallen short of that "strict standard" Id.
As the Appellate Court recently held in a comparable situation at the appellate level: "The plaintiff also claims that summary judgment should not have been rendered with regard to count four of his complaint, which alleged assault by Almada. The plaintiff, however, focused his argument on why summary judgment was improper on the malicious prosecution counts and provides only cursory mention of the assault count. This scant treatment without proper analysis constitutes inadequate briefing on this claim, and we therefore decline to afford it review. Lefebvre v. Zarka, 106 Conn.App. 30, 40 (2008), citing (at n. 5) Shore v. Haverson Architecture Design, P.C., 92 Conn.App. 469, 479 (2005), cert. denied, 277 Conn. 907 (2006).
Fifth Count (Conversion)
In this count plaintiffs incorporate all the allegations of Count Four (Breach of Fiduciary Duty) which in turn incorporates all the allegations of Count 2 (fraud), with the additional allegation that "Defendants have converted the plaintiffs' funds for their own personal use." (¶ 46.)
Conversion is the "unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 649, 804 A.2d 180 (2002). It is "some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006). Conversion may arise subsequent to an initial rightful possession. Maroun v. Tarro, 35 Conn.App. 391, 396, cert. denied, 231 Conn. 926 (1994).
The undisputed record shows the unauthorized exercise of powers of ownership by defendant Marquez over funds invested by the plaintiffs and others. Although Marquez physically left the offices of the Bayou Funds in 2001 and the plaintiffs did not start investing in the Bayou Funds until May 2002, he continued after his physical departure to conspire with the other defendants and to receive value and benefits from funds invested after his departure. In sentencing Mr. Marquez to jail, Judge McMahon noted that ". . . Mr. Marquez did not line his pockets with investor funds in the same manner and to the same extent that Israel and Marino did . . ." (Ex 7. p. 35), but she nonetheless found substantial personal benefit flowing to Mr. Marquez from the continuing fraudulent investment scheme:
It was during that period that Marquez had moved out of Bayou's offices and was starting his own business. And he was planning, in great detail, how to separate himself from Bayou because he knew full well that crimes were being committed there. It was during this period that he wrote the letters setting out a plan to enrich himself for serving as a consultant to "fix the problem" that he had helped create and conceal. It was during this period that Marquez made a conscious decision to place his own personal interest ahead of the interest of the investors in Bayou who were losing money but did not know it. And conceived a plan to extricate himselt but not them, from their difficulties.
As a result, Marquez, Marquez got a year's worth of consulting payments at $12,500 a month, conveniently, the same amount as his prior salary, he got financing for his business. He got car payments for his BMW . . . And indeed, at that time Mr. Marquez signed a consulting agreement with KFX and persuaded Bayou in that company. The decision that led to Marquez receiving upwards of $4 million. (Ex. 7. pp. 29-30.)
The letters (three) referred to by Judge McMahon are attached to the Butler affidavit as Exhibits 20, 21, and 22. Mr. Marquez' testimony about his continuing relationship with the Bayou Funds following his physical departure in 2001 appears at Exhibit 2 (PJR hearing) starting at page 34 and at Exhibit 8 (Marquez deposition in this case) starting at page 31. In addition to the benefits mentioned by Judge McMahon, Mr. Marquez has admitted that he took with him when he left Bayou the assets of the All Africa Fund, and the Energy Fund, LLC which were investment funds that he had set up while he was at Bayou. (Ex. 2, pp. 64-65.)
There is no genuine issue of material fact and the plaintiffs have shown entitlement to a judgment in their favor on this count for conversion.
CT Page 2179
Sixth Count (Conspiracy)
The key allegations of Count Six are that "On information and belief the defendants agreed among themselves and with others to participate in a conspiracy to breach their fiduciary duty owed by one or more defendants to the plaintiffs to defraud the plaintiffs and to convert the plaintiff's property to the defendants." (¶ 47); and "At least one of the defendants committed one or more overt acts pursuant to, and in furtherance of, the defendants' agreement to breach their fiduciary duty, defraud the plaintiffs, and convert the plaintiffs' property. (¶ 48.) This adequately states a claim for civil conspiracy. Williams v. Maislin, 116 Conn. 433, 437 (1933); Governor's Grove Condominium Association, Inc., v. Hill Development Corp., 36 Conn.Sup. 144, 152 (Conn.Super.Ct. 1980).The factual bases for the overt acts of fraud and conversion (if not the breach of fiduciary duty) have been set forth above. There is no issue of fact with respect thereto. Nor is there any issue of fact but that these acts were undertaken pursuant to an agreement between Messrs. Israel, Marino, and Marquez, and possibly others. Defendant Marquez has judicially admitted a conspiratorial agreement by his plea of guilty in federal court to one count of conspiracy to commit investment advisor fraud and mail fraud, And at the January 28, 2008 PJR hearing he specifically admitted involvement in a conspiracy:
Q. And it's true, is it not, that you entered into a conspiracy with Mr. Israel and Daniel Marino to perpetrate a fraud on investors and potential investors of the Bayou Funds? A. Yes. (Ex. 2, p. 25.)
Summary judgment for the plaintiffs is appropriate on this conspiracy count.
Seventh Count (CUTPA)
Count Seven re-alleges all the allegations of the previous counts and adds allegations that the defendants were at all times engaged in trade or commerce, and that defendants' acts as alleged in the previous counts were immoral, illegal, deceptive, and unscrupulous in violation of the Connecticut Unfair Trade Practice Act ("CUTPA") Conn. Gen. Stat. § 42a-110a, et seq., which violations caused the defendants an ascertainable loss. (¶¶ 49, 50, 51.) These allegations state a cognizable claim for an actionable CUTPA violation. Anderson v. Schoenhorn, 89 Conn.App. 666, 675 (2005).
§ 42110-b provides that "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or business."
The court has already found that the plaintiff is entitled to summary judgment on the Second Count (fraud). Fraudulent misrepresentation is a sufficient basis for a valid CUTPA claim. Fletcher v. Mead School for Human Development, Docket No. X05 CV96-0152138S, Superior Court, Complex Litigation Docket, Judicial District of Stamford/Norwalk at Stamford (June 4, 1999, Tierney, J.) ( 1999 WL 39158); Oat v. Whittle, Docket No. 093417, Superior Court, Judicial District of New London at Norwich (January 22, 1991, Austin, J.) ( 1991 WL 27992) ("Court may find that the conduct of misrepresenting satisfies the criteria for immoral, unethical, or unscrupulous behavior under CUTPA statutes.") And there is no genuine issue of fact as to plaintiffs' claims of ascertainable loss. Collectively they invested $5,222,000, no part of which has been restored. There is also no issue of fact but that the activities of the defendants acting in conjunction with the management and operation of the Bayou Funds were performed in the conduct of trade or business.
The plaintiffs have therefore met their burden of showing entitlement to judgment as a matter of law on their CUTPA claim.
Defenses
Defendant Marquez has filed no opposition to this motion. The court notes, however, that Marquez did raise three defenses to the plaintiff's application for prejudgment remedy before Judge Adams about a year ago. First, in response to the misrepresentation and fraud claims, he claimed that he, personally, never made any misrepresentations directly to the plaintiffs. (Ex 2, pp 49-50.) Second, he claims in response to the conspiracy claim that he never entered into an agreement to defraud these particular plaintiffs. (Ex 2, p. 57.) And third, he claims that he withdrew from the conspiracy in 2000 by physically leaving the offices of the Bayou Funds and writing several letters to Mr. Israel in the spring of 2001 (Ex. 18, 19, 20) and by starting new business initiatives before the plaintiffs started investing in the Bayou Funds in 2002. (Ex 2, p. 25.) Because these defenses have not been raised in opposition to this motion for summary judgment, they will not be specifically discussed. The court notes that Judge Adams did consider and reject all of these defenses for purposes of the PJR application, and this court incorporates his ruling and his reasoning in rejecting those defenses. Leonard and Tema Schrage, et al., v. Samuel Israel III, et al., Docket No. X05 CV05-40006596S, Superior Court, Complex Litigation Docket, Judicial District of Stamford/Norwalk at Stamford (March 7, 2008, Adams, J.) (Copy annexed to Butler affidavit as Exhibit 3.)
Order
For the foregoing reasons the plaintiff's Motion for Summary Judgment is granted as to liability only under Practice Book § 17-50 on Counts One, Two, Three, Five, Six, and Seven and denied as to Count Four. After motions for default have been filed against defendants Samuel Israel III and Daniel Marino, and have been ruled on by the court, the court will schedule a status conference to discuss and schedule the disposition of Count Four, any other outstanding liability issues, and the determination of damages.
So Ordered.