Opinion
No. CV 07 5010242
January 6, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, #116
Jean-Pierre Ibar, a self-represented defendant, filed a motion for summary judgment, #116, on April 17, 2009 arguing that he is entitled to judgment as a matter of law because there is no dispute that his conveyance of property to his wife, co-defendant Christine Ibar, was proper. The plaintiff, Stratek Plastic, Ltd., filed an objection to the motion for summary judgment along with a memorandum of law on May 15, 2009, arguing that the law of the case establishes that the defendant was a debtor of the plaintiff when he transferred property and therefore the transfer was improper. The defendant filed a reply on May 29, 2008. The plaintiff filed a surreply brief on June 17, 2009. Oral arguments were heard on September 21, 2009.
Notwithstanding the fact that the plaintiff has failed to raise the issue, this court notes that defendant Jean-Pierre Ibar has not filed a technical appearance in this matter. At the inception of the litigation, the law firm of Tobin and Melien filed an appearance on behalf of both defendants, Jean-Pierre Ibar and Christine Ibar. On October 10, 2008, the defendants' attorney filed a motion for permission to withdraw as counsel. This court (Thompson, J.) granted that motion, over the objection of Jean-Pierre Ibar on November 3, 2008. Defense Counsel then filed a second motion for permission to withdraw as counsel on October 30, 2008, which Judge Thompson granted on December 8, 2008 again over the objection of the defendants, directing both defendants to retain counsel or file an Appearance immediately. Christine Ibar filed an appearance in November 2008, prior to Judge Thompson's ruling. Jean-Pierre Ibar never filed a formal Appearance. Though, Mr. Ibar has not filed a formal appearance in this action, his conduct in vigorously defending this action and the lack of objection by the plaintiff has operated as a general appearance. See Beardsley v. Beardsley, 144 Conn. 725, 730, 137 A.2d 752 (1957) ("The entry of an appearance need not necessarily be made by filing a formal appearance form. The conduct of a party may operate as a general appearance . . . `A general appearance may arise by implication from the defendant's seeking, taking, or agreeing to, some step or proceeding in the cause, beneficial to himself or detrimental to the plaintiff . . .' 3 Am. Jur. 787, 10 . . ."); and Fontaine v. Thomas, 51 Conn.App. 77, 720 A.2d 264 (1998) ("The rule concerning appearances `is a rule of convenience and as such should be observed' Schoonmaker v. Albertson Douglass Machine Co., 51 Conn. 387, 393 (1884); however, `there may be an actual appearance for all the purposes of a defense without an entry on the docket.' Id. 393-94.").
In August 2009, along with his motion for summary judgment the plaintiff filed motions for sanctions against the plaintiff. The plaintiff filed an objection on September 18, 2009. Jean-Pierre Ibar filed an objection to the plaintiff's objection. Finally, the plaintiff filed a response to that objection on November 17, 2009. This Memorandum of Decision will not discuss the issues raised in the motions for sanctions.
In March 2007, the plaintiff filed a Notice of Lis Pendens on the Ibar property and brought this action, alleging that the defendants executed a fraudulent conveyance of real estate while defendant, Jean-Pierre Ibar, was a debtor of the plaintiff. Specifically, the plaintiff alleges that on September 19, 2006, Jean-Pierre Ibar conveyed his interest in property to Christine Ibar for no consideration, and "with the intent to hinder, delay or defraud the Plaintiff" in violation of the Uniform Fraudulent Transfer Act, General Statutes § 52-552a. The plaintiff alleges that at the time of the conveyance, the plaintiff had a claim against Jean-Pierre Ibar and that they were creditor and debtor respectively, pursuant to General Statutes § 52-522b. The plaintiff claims that it has been damaged by the fraudulent conveyance and seeks money damages as well as to have the transfer voided.
By way of procedural background, prior to the filing of the motion for summary judgment, the defendants filed a motion to dismiss this action which Judge Licari denied on June 19, 2007. In his ruling, Judge Licari stated, inter alia, that the parties were creditor and debtor, respectively, under § 52-552a(4) and (6). Thereafter, the defendants filed a motion to dissolve the lis pendens on the ground that there was no probable cause to sustain the lis pendens. The plaintiff filed an opposition brief, requesting an evidentiary hearing to establish the probable cause necessary to sustain the lis pendens. That motion to dissolve has been pending since its filing in August 2007.
This action, which stem from an alleged breach of a services agreement, is one of three lawsuits between the parties. The plaintiff is a company based in Ireland. It employed Jean-Pierre Ibar in Connecticut through Eknet Research Corporation (Eknet), a company that Ibar created and in which he owned a majority interest. The services agreement contained an arbitration clause pursuant to which the parties arbitrated their dispute with the American Arbitration Association (AAA) in 2007. That arbitration was pending at the time this action was filed. During the pendency of this action the AAA issued its opinion and award (arbitration award). That February 15, 2008 award contained a finding that defendant Jean-Pierre Ibar, personally, owes the plaintiff a sum of money for improperly "us[ing] Stratek funds to pay for the processing of the . . . patent, which was not part of [the plaintiff's] work with Stratek." The AAA concluded that these monies are" . . . owed by Mr. Ibar to Stratek." On March 28, 2008, the AAA denied the defendant's request to reconsider the arbitration award and on April 4, 2008, the plaintiff filed an application with this court to confirm the arbitration award. Stratex Plastics Ltd. v. Ibar, CV 084030647. This court (Silbert, J.) confirmed the arbitration award on May 13, 2008, rendering Jean-Pierre Ibar personally liable to the plaintiff for the amount of $139,800.93. Jean-Pierre Ibar appealed that decision. That appeal is pending.
The other two cases, which are both still pending, are: Stratex Plastics, Ltd. v. Ibar, CV084030647; and Ibar v. Stratek, CV 085023192.
The defendant made numerous mis-statements to this court about the AAA findings regarding his liability both in his written submissions and in oral argument. Specifically, he claimed that the AAA determined that he was not personally liable to Stratek; and that there was some dispute about the amounts due pursuant to the award. This court finds these statements to be both untrue and unfounded. Whether the defendant intended to mislead the court; or whether he was confused about the effect and meaning of the AAA ruling this court will not speculate. However, this court cautions that representations to the court by both legal professionals and lay people must be candid, honest and made in good faith.
The Appellate Court heard oral argument in Stratex Plastics, Ltd. v. Ibar, on December 2, 2009 (AC #30465).
The issue in dispute for this court to resolve is whether the defendant is entitled to judgment as a matter of law, because he was not a debtor when he transferred his interest in the property to his wife; and if he was a debtor, whether his transfer was proper because it was for sufficient consideration. For reasons more fully set forth herein, this court denies the defendant's motion for summary judgment.
It is unclear from the defendant's filings whether he is seeking summary judgment on the plaintiff's complaint or on his own motion for discharge of the notice of lis pendens. In accordance with "the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party," Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 861, 859 A.2d 932, (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005), this court reads the defendant's arguments as properly seeking summary judgment on the plaintiff's complaint.
"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.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition . . . On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint." (Citations omitted; internal quotations omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 228-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 528 (2006).
Regarding the definitions of debtor, creditor and claim, for the purposes of the Uniform Fraudulent Transfer Act, § 52-552a, et seq., a "[c]reditor means a person who has a claim." General Statutes § 52-552b(4). A "[c]laim means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured." General Statutes § 52-552b(3). A "[d]ebtor means a person who is liable on a claim." General Statutes § 52-552b(6).
"General Statutes § 52-552e provides that a transfer is fraudulent if the creditor's claim arose before the transfer was made or the obligation was incurred and the transferor made the transfer with an intent to hinder, delay or defraud any creditor of the debtor . . ." (Internal quotation marks omitted.) Davenport v. Quinn, 53 Conn.App. 282, 303-04, 730 A.2d 1184 (1999). "The legislature chose to adopt a very broad definition of the term claim. Where the language of a statute is plain and unambiguous, it should be given full effect." (Internal quotation marks omitted.) Id., 304 (holding that "the trial court properly determined that the plaintiff's claim arose on the date of the injury in the underlying action.").
Among the many arguments that the defendant makes, the primary one which he contends entitles him to judgment is that he is not and was not a debtor of the plaintiff. The plaintiff counters that the court (Licari, J.) has already decided this issue — that the defendant is a debtor — and that this decision is the law of the case which this court is bound to follow.
The defendant argues that he is actually a creditor of the plaintiff and not vice versa. He claims that he is owed money by the plaintiff for non-payment of salaries and royalties amounting to over $100,000.00. He also claims that he is entitled to indemnification by the plaintiff for expenses he incurred to defend himself in the arbitration proceeding. His claims for these money damages are alleged in Ibar v. Stratek Plastic, Ltd, CV 085023192. None of these claims, even if proven, effect the facts in this action regarding his position as debtor to the plaintiff.
Judge Licari, in his decision denying the defendants' motion to dismiss, stated, inter alia, that "[t]here can be no serious dispute that the plaintiff and Jean-Pierre Ibar are creditor and debtor respectively under § 52-552b(4) and (6)." Stratek Plastic, Ltd. v. Ibar, Superior Court, judicial district of New Haven, Docket No. CV 07 5010242 (June 19, 2007, Licari, J.). This court will now address whether or not that finding is the law of the case.
"The law of the case doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . (Internal quotation marks omitted.) General Electric Capital Corp. v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009). The law of the case doctrine is not applicable, however, when the previous ruling addressed "merely" the sufficiency of a pleading, rather than the merits of a complaint or a substantive legal issue. Fox v. Sharlow, 41 Conn.Sup. 391, 394, 579 A.2d 603 (1990); see Tseka v. Scher, 135 Conn. 400, 401, 65 A.2d 169 (1949) (trial judge not bound by previous ruling on demurrer by another judge).
At the time that Judge Licari entered his ruling he had before him the original complaint; the notice of lis pendens; the defendants' motion to dismiss and the defendants' memorandum in law in support of their motion to dismiss; a signed copy of the services agreement between Jean-Pierre Ibar and the plaintiff; the plaintiff's memorandum of law in opposition to the motion to dismiss; an affidavit from Alan Stall, the CEO of Stratek, attesting that the plaintiff had made claims against Jean-Pierre Ibar for fraudulent misrepresentations, unauthorized expenditure of funds and breach of contract which were in arbitration; a copy of the conveyance of property from Jean-Pierre Ibar to Christine Ibar; and information regarding the submission to AAA.
What Judge Licari did not have, were the documents and arguments that the defendant submitted in support of the pending motion, more particularly, the defendant's "affidavit" regarding the conveyance. Additionally, the defendant claims that at the time Judge Licari issued his rulings no official or formal claims had been made against him because the submissions were officially filed with the AAA in December 2007.
The self-titled document called an "affidavit" submitted by the defendant does not meet the criteria to be an affidavit. It contains no indication of an oath by the defendant or an attestation that he made the statements contained in the document under oath. See Willametz v. Susi Contracting Co., 9 Conn.App. 1, 6-7, 514 A.2d 383, cert. denied, 201 Conn. 814, 517 A.2d 631 (1986). However, the plaintiff does not object to the court's consideration of this so-called "affidavit," nor does the plaintiff request that this court disregard it as inadmissible. Instead, the plaintiff objects to the substance contained therein as "self-serving, unacknowledged" and "filled with assertions and claims that are unsupported and disputed." In Barlow v. Palmer, 96 Conn.App. 88, 898 A.2d 835 (2006), the Appellate Court held that a trial court judge has discretion to choose to consider or exclude uncertified depositions submitted as evidence in support of a motion for summary judgment when the party opposing that motion does not object to the admissibility of those depositions. Applying that principle, and the aforementioned policy of Connecticut courts to be solicitous of self-represented individuals, this court does, in its discretion, consider the contents of Jean-Pierre Ibar's affidavit.
In his October 13, 2009 objection, Jean-Pierre Ibar argues that Judge Licari's ruling regarding the creditor-debtor relationship between the two parties was made prior to the final AAA ruling and that, at that time, the plaintiff misrepresented the size of the debt owed by Jean-Pierre Ibar. However, based on the definition of a claim, quoted in the text above, a claim is not required to be reduced to a final judgment or in a particular dollar amount to be a valid claim.
The substance of all of this evidence/information and the claims were available to Judge Licari when he made his ruling. Thus, there are no new or overriding circumstances that contradict Judge Licari's determination that the parties were in a creditor-debtor relationship at the time of the conveyance. Therefore, Judge Licari's ruling may properly be considered the law of the case.
Because this court concludes that the defendant was a debtor of the plaintiff at the time of the transfer of his property interests, the defendant is not entitled to judgment as a matter of law. Therefore, the court need not reach the other issues raised by the motion and does not address the defendant's argument that the transfer was made for due consideration. Accordingly, the court denies the defendant's motion for summary judgment.