No. CV06-5000395 S
January 17, 2008
MEMORANDUM OF DECISION RE Motion for Summary Judgment #116
On February 24, 2006, the plaintiff, Tuccio Development, Inc., filed a two-count complaint alleging theft of plaintiff's property and a violation of the Connecticut Unfair Trade Practices Act (CUTPA) by the defendant, Harry Neumann, Jr. This action arises out of the defendant's alleged refusal to return to the plaintiff files and records requested concerning the sale of properties owned by the plaintiff and marketed by the defendant. On June 23, 2007, the defendant filed an answer denying the allegations. Thereafter, on October 26, 2007, the defendant filed a motion for summary judgment on the grounds that (1) as to the allegations of a statutory theft, there is no evidence that the defendant intended to deprive the plaintiff of his property, as required by General Statutes § 53a-119; (2) this action is barred as a matter of law under the applicable three-year statute of limitations, pursuant to General Statutes § 52-577; and (3) if summary judgment is entered on the statutory theft count, it must also enter on the CUTPA claim because that claim relies solely upon the allegations of theft. The plaintiff filed a memorandum in opposition to the defendant's motion for summary judgment on November 12, 2007. The motion was argued before the court at short calendar on December 3, 2007. The matter is assigned for trial on February 13, 2008.
General Statutes §§ 42-110a et seq.
General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
Pursuant to General Statutes § 53a-119, "[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). Section 53a-119(2) further provides: "Larceny includes, but is not limited to . . . (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property with intent to defraud him or any other person."
In its complaint, the plaintiff has alleged that during the years 2000, 2001 and 2002, the defendant was a licensed realtor who marketed for the plaintiff the sale of two residential properties in the town of Ridgefield. It alleges that the defendant created files and records concerning Lot #2, Teahouse Lane and Lot #5, North Street and that those files and records, although created by the defendant, were and remain the property of the plaintiff. It further alleges that in 2005 the plaintiff requested and demanded that the defendant surrender those files and records to the plaintiff, but that the defendant refused to do so. The defendant has moved for summary judgment as noted above.
Specifically, plaintiff's complaint alleges in part the following:
5. On numerous dates in 2005, the plaintiff requested and demanded that the defendant surrender to the plaintiff the files and records, belonging to the plaintiff, described in Paragraph 3.
6. The defendant has failed and refused to return to the plaintiff its aforesaid property.
7. As a result, the plaintiff has suffered the loss of its said property and attendant economic losses.
8. In the manner described above, the defendant has committed the theft of the plaintiff's property.
WHEREFORE the plaintiff claims judgment for compensatory damages, punitive damages and treble damages as provided by Section 52-564 of the General Statutes.
"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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005). In considering such a motion, the function of the court is "not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
In support of his motion the defendant has submitted his own affidavit, the affidavit of attorney Richard D. Zeisler who represented him at the time of the plaintiff's requests, copies of correspondence submitted by the plaintiff and/or his counsel to the defendant and/or his attorney as well as the responses thereto, and, a copy of the plaintiff's responses to interrogatories and requests for production. Plaintiff has submitted no documents in support of its memorandum in opposition and simply makes reference to the responses to interrogatories it has filed.
A. WHETHER THERE IS A GENUINE ISSUE OF MATERIAL FACT 1. Count One (Statutory Theft)
The plaintiff has cited General Statutes § 52-564 as the basis of its claim against the defendant. "Statutory theft under [General Statutes] § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). Section 53a-119(2) further provides: "Larceny includes, but is not limited to . . . (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person." "[S]tatutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 732, 916 A.2d 834 (2007).
The defendant claims that the documentary material provided by him shows that there is no evidence to support plaintiff's allegations as set forth in the complaint. As noted, plaintiff has provided no evidence in opposition to the defendant's motion other than making reference to its responses to the defendant's interrogatories. Plaintiff was free to respond by submitting any affidavit or other documentation in opposition to defendant's motion but has elected not to do so. "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Anderson v. Schoenhorn, supra, 89 Conn.App. 670. Where evidence is presented by the movant, it is not enough for the non-movant to simply disagree. The non-movant must present evidence to establish a genuine issue of material fact.
Assuming that the reference to the responses to the interrogatories is sufficient to consider it as the submission of documentation in opposition to the defendant's motion, the court will look at the materials presented in a light most favorable to the non-movant. In doing so, the court finds nothing that would constitute a genuine issue of material fact. From the defendant's affidavit, it is clear that the relationship between the plaintiff and the defendant ended on January 3, 2003 when the closing for the last property marketed for the plaintiff was completed. (Defendant's Exhibit A.) Although several of the letters submitted by the plaintiff in 2005 clearly constitute a request for the return of files and records, none of the responses from either the defendant or his attorney constitute a refusal of the request. The plaintiff's initial request of September 14, 2005 addressed to the defendant reads as follows: "This is a request for `any and all documents' related to the above captioned property to which you had listed between the years 2000 and 2001. We expect copies of everything, contemporaneous notes on conversations, offers, etc. Please send it to my attention at the address below in the next fifteen (15) days." (Defendant's Exhibit B.) The defendant's response of September 16, 2005 simply instructed the plaintiff to direct his request through the company's attorney, Zeisler and Zeisler. (Defendant's Exhibit C.) Thereafter, on September 20, 2005 plaintiff's counsel wrote to the defendant's counsel about Lot #2 Teahouse Lane in accordance with the plaintiff's instructions. (Defendant's Exhibit D.) On September 22, 2005, the plaintiff's counsel wrote to the defendant's counsel to request documents relative to Lot #5, North St. (Defendant's Exhibit F.) As to the September 20, 2005 letter, the defendant's counsel responded by letter of September 23, 2005 which said: "Thank you for your letter of September 20, 2005. We will see if in fact there is any file from this transaction which apparently is four or five years old. Can you please advise as to the reason for your request at this late date." (Defendant's Exhibit G.) As to the September 22, 2005 letter, the defendant's counsel responded by letter of September 27, 2005 which said: "We are looking for the documents requested in your September 22nd letter, but can you please tell me why at this late date you are asking for same." (Defendant's Exhibit H.) Following that letter, neither the defendant's counsel nor the defendant ever received a response from the plaintiff to the inquiry made in either of Attorney Zeisler's letters. The next act of the plaintiff was the filing of its complaint initiating this action.
I represent Tuccio Development, Inc., and am advised that you represent Neumann Real Estate, which acted as a realtor for my client for many years. One of the properties handled by Neumann was Lot #2 Teahouse Lane in the Town of Ridgefield. Neumann listed that property in 2000 and 2001.
Your client has notified my client that any requests for files must he handled through your office. Accordingly, please provide me on behalf of Tuccio Development, Inc., with any and all documents and records concerning the Teahouse Lane property for the years 2000 and 2001.
I look forward to hearing from you.
Please provide me on behalf of Tuccio Development, Inc. with any and all documents and records of Neumann Real Estate concerning Lot #5, North Street, Ridgefield, CT, for the years 2001 and 2002.
I look forward to hearing from you.
As to whatever evidence might exist, the question remains as to whether that evidence is sufficiently material to constitute a genuine issue of fact. "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.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). In this instance, the plaintiff has not submitted or brought to the attention of the court any facts which would fit that description. The responses of the defendant and his counsel cannot be said by a reasonable person to be a refusal of the plaintiff's request let alone evidence of the element of intent for a claim of statutory theft.
One of the necessary elements of statutory theft is that the defendant took possession of property belonging to another. As noted above in Deming v. Nationwide Mutual Ins., supra, "a person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." This element of possession is underscored in State v. Carcare, 75 Conn.App. 756, 776, 818 A.2d 53 (2003), where the court noted that "[a] person obtains property by false pretenses when . . . he obtains from another any property, with intent to defraud him or any other person." The evidence submitted to the court on the summary judgment motion is devoid of any record or reference of the defendant having intended to take, obtain or withhold any property of the plaintiff. In fact, the court can reasonably infer that many of the documents in the possession of the defendant were created by the defendant pursuant to the contractual obligation between the parties (as alleged in the complaint) and were therefore not obtained from the plaintiff.
In its opposition to the motion, plaintiff argues that "[a] question of intent raises an issue of material fact, which cannot be decided on a motion for summary judgment." Picataggio v. Romeo, 36 Conn.App. 791, 794, 654 A.2d 382 (1995). However, even if it could be said that there appeared to be some issue of material fact based on the documentation submitted relative to the motion, a plain reading of the complaint makes clear that the first count is devoid of any factual assertion that the defendant acted with any intent to deprive the plaintiff of its property. At best, plaintiff's complaint simply reads that the plaintiff requested the documents and the defendant refused to return them. As a result, the plaintiff has failed to state a legally sufficient cause of action for statutory theft under General Statutes § 52-564. Whitaker v. Taylor, supra, 99 Conn.App. 719. Accordingly, the motion for summary judgment as to the first count is granted.
Even following the filing of the complaint in this matter, the defendant continued to offer through his counsel's letter of March 13, 2006 to provide to the plaintiff "any documents that had been forwarded to Neumann Real Estate by the Plaintiff . . . provided the requested documents are identified." (Defendant's Exhibit E.)
2. Count Two (CUTPA)
The second count for a CUTPA violation is premised upon the occurrence of a statutory theft under the first count. Because of the lack of a genuine issue of material fact and the failure of the plaintiff to state a legally sufficient cause of action as described above, this count too must fail. Accordingly summary judgment is granted as to the second count as well.
B. STATUTE OF LIMITATIONS
Because the court has found the defendant's motion may be granted for the reasons cited above, it need not address the statute of limitations argument raised by the defendant as an alternate ground for the granting of the motion.
CT Page 882