Opinion
No. CV06-5001145 S
October 5, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #138
I FACTS
On July 18, 2006, the plaintiff, Brian Lambeck, filed a three-count complaint against the defendants, Christina Calzolari, his ex-wife and her attorney, Patricia Berlin. Calzolari filed an answer to the original complaint on November 28, 2006. On January 19, 2007, Calzolari moved to strike all three counts of the complaint. The court, (Thim, J.), on May 31, 2007 denied the motion because Calzolari had already filed an answer.
The complaint alleges the following facts. On June 13, 2003, Lambeck and Calzolari entered into a divorce agreement, which required Calzolari to pay Lambeck $54,000 upon her refinancing the existing mortgage on property she owned. She further promised to make good faith efforts to refinance the mortgage within sixty days of the agreement and to provide Lambeck with a mortgage deed and note in the amount of $54,000 within seven days of the agreement. Ultimately, Calzolari failed to complete the refinance as called for.
A court hearing was held on May 5, 2004 on postjudgment motions for contempt filed by Lambeck and Caizolari. Berlin represented Calzolari at the contempt hearing and was her attorney during the divorce proceedings. Lambeck claims that Berlin made several alleged misrepresentations to the court in an effort to demonstrate that Calzolari was in compliance with the divorce agreement. These alleged misrepresentations included the following: first, Berlin told the court that parking tickets accrued by Lambeck appeared on Calzolari's credit report which prevented her from refinancing the property; second, Berlin and Calzolari stated that Lambeck was responsible for a medical copay for which he bore no responsibility; third, Berlin and Calzolari told the court that they filed a motion in the underlying divorce action requesting reimbursement for expenses for which Calzolari was responsible; and finally, they misrepresented to the court that Berlin had provided all requested documentation for a proposed real estate closing scheduled near the end of November 2004. As a result of these actions by Calzolari and Berlin, Lambeck further alleges that he did not receive the $54,000 promised to him in the divorce decree, which resulted in the forfeiture of his interest in the marital properties. In count one, Lambeck claims a breach of contract against Calzolari. In counts two and three, he alleges a claim of fraudulent misrepresentation and civil larceny respectively against both defendants.
Lambeck alleges that the hearing was held on May 4, 2004, while a copy of the transcript indicates that it was held on May 5, 2004. For purposes of clarity, the correct date will be used.
At the contempt hearing, the court (Axelrod, J.) found the following: Calzolari had made a good faith effort to refinance the property, Lambeck was not in compliance with the dissolution judgment and awarded attorneys fees to Calzolari, Lambeck was to pay the outstanding parking tickets from the proceeds of a life insurance policy, Lambeck was awarded two percent interest on the unpaid sum of $54,000 dating back to August 15, 2003, and Lambeck was to pay $327.16 and $169.50 for his share of insurance premiums and unreimbursed medical and dental expenses respectively.
On April 9, 2007, Calzolari moved for summary judgment on the following grounds: (1) Lambeck is collaterally estopped from raising issues that were resolved in the underlying divorce proceeding; (2) the second and third counts fail to state a claim upon which relief can be granted; and (3) the undisputed facts demonstrate that the allegations in the complaint dated June 7, 2006, are not true. Calzolari submitted a memorandum of law in support of the motion accompanied by a copy of a judgment of dissolution dated June 13, 2003, an uncertified copy of Lambeck's deposition, a certified copy of the transcript of the hearing on May 5, 2004, and copies of the contempt motions filed by Lambeck and Calzolari on May 5, 2004. Lambeck did not submit a memorandum of law or produce any affidavits or other documentary evidence in opposition. The matter was heard on the short calendar on June 18, 2007, at which time Lambeck, acting pro se, argued in opposition to the motion.
Lambeck subsequently filed a "revised" complaint (#123) and an "amended" complaint (#145) but both were specifically modified relative to the allegation against the defendant Berlin. The original complaint dated June 7, 2006 remained the operative complaint as to the defendant Calzolari.
The court in its discretion may consider an uncertified copy of a deposition, where as here, no objection to its admissibility has been made by the nonmoving party. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Subsequently, Berlin did file a signed certification page of the deposition testimony.
Lambeck filed a motion for extension of time on April 10, 2007, requesting an extension of fifteen days from the date of the court's decision on the motion to strike to respond to the motion for summary judgment. Oral argument on the motion for summary judgment was held eighteen days following the decision of the court, Thim, J, on the motion to strike; thus, rendering Lambeck's motion for extension of time moot. At oral argument on June 18, 2007, Lambeck requested another extension of time, which was denied. In addition, he argued that Calzolari's motion was not timely since it was filed on April 1, 2007, after a trial date had been set. It is within the trial court's discretion to hear the motion for summary judgment. Practice Book § 17-44.
II DISCUSSION
"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 a 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 . . . A material fact, . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Ins. Co. Of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). "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).
A. FIRST COUNT: BREACH OF CONTRACT 1. COLLATERAL ESTOPPEL
In her memorandum of law, Calzolari argues that Lambeck's claims are barred by collateral estoppel because the issues concerning the ownership and disposition of the property at 12 Old Mailcoach Road in Redding and the payment of $54,000 for Lambeck's interest in that property were previously litigated and decided in the underlying divorce proceeding on June 13, 2003, and at the contempt hearing on May 5, 2004. Calzolari maintains that Lambeck is attempting to relitigate these financial issues as a breach of contract action in count one. At oral argument, Lambeck countered that collateral estoppel does not apply to a civil action for breach of contract because the judgment rendered by the court in the dissolution proceeding does not apply to the settlement agreement that predated the judgment.
"Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum." (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007). "Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 596, 726 A.2d 502 (1999). "In order for collateral estoppel to apply . . . there must be an identity of issues, that is, the prior litigation must have resolved the same legal or factual issue that is present in the second litigation." Upjohn Co. v. Planning Zoning Commission, 224 Conn. 82, 93-94, 616 A.2d 786 (1992). "Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving [such] a claim . . ." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
The case of Bouchard v. Sundberg, 80 Conn.App. 180, 190, 834 A.2d 744 (2003), is helpful in determining whether collateral estoppel precludes Lambeck's breach of contract claims in the present case. In Bouchard, the Appellate Court held that Bouchard was not collaterally estopped from suing his ex-wife, Sundberg, for breach of a separation agreement. Bouchard had filed several motions after his marriage to Sundberg had been dissolved, seeking to enforce a provision within the separation agreement requiring her to bring their children to counseling sessions. Id., 184. The plaintiff's last motion to compel had been denied by the trial court after a hearing where the court concluded that continued counseling was not in the children's best interests. Id., 185. Thereafter, Bouchard brought an action against Sundberg alleging, inter alia, breach of contract for a violation of the separation agreement. Id.
In holding that Bouchard was not collaterally estopped from bringing the breach of contract action, the Appellate Court noted that "a dissolution action is to sever the marital relationship, to fix the rights of the parties with respect to alimony and child support . . . and to divide the marital estate . . . and to consider custody issues. By contrast, the key elements of a breach of contract action . . . are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Citation omitted; internal quotation marks omitted.) Id., 189. Moreover, the court further noted that dissolution proceedings were equitable in nature, which is significantly different from a breach of contract action. Id., 189. The court explained: "The finding by the [trial] court that it was in the best interests of the children no longer to attend counseling sessions, and, accordingly, that Janet Sundberg had no duty to comply with the prior postjudgment orders, does not require a determination of relevant issues as to whether she breached the parties' agreement, separate and apart from the orders, to support the plaintiff's attempt at reconciliation. We conclude, therefore, that the issues involved in a breach of contract action were neither actually litigated nor necessarily determined in the dissolution action and, therefore, that collateral estoppel was not a bar." Id., 189-90.
Similar to Bouchard v. Sundberg, supra, the allegations of a breach of contract as set forth in count one of Lambeck's complaint were neither actually litigated nor necessarily determined in the underlying litigation. Lambeck, therefore, is not collaterally estopped from bringing a breach of contract action.
B. SECOND COUNT: FRAUDULENT MISREPRESENTATION
Calzolari next moves for summary judgment on Lambeck's second count of fraudulent misrepresentation on the ground that he failed to sufficiently allege as a matter of law the proper elements thereof.
The Supreme Court has stated that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
"The essential elements of an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." (Internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004). "Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance." Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777-78, 802 A.2d 44 (2002).
Viewing the allegations in a light most favorable to Lambeck, the first two elements of fraudulent misrepresentation are sufficiently alleged in the complaint. Lambeck alleges four separate occasions where Calzolari, through her attorney Berlin, misrepresented facts to the court. Notably, paragraph four of the second count of Lambeck's complaint alleges that the "[d]efendants misrepresented to the court by filing a motion with the court requesting plaintiff pay expenses incurred by the defendant Calzolari, which defendant Berlin knew weren't colorable under any claim of law . . ."
Lambeck's claim fails, however, on the third and fourth element. Nowhere in the complaint does he allege that the statements were made to induce him into taking any action; nor does he allege that he indeed took any such action in reliance on the statements. The first alleged misrepresentation is that "Calzolari and Berlin fraudulently misrepresented to the court on May 4, 2004 [sic] that parking tickets incurred by the Plaintiff appeared on the credit report of Defendant Calzolari and prevented the Defendant refinancing thereby fraudulently inducing the court to enter an order finding [Calzolari] in compliance with the judgment of dissolution." (Emphasis added, Plaintiff's complaint, second count, paragraph 1.) The other allegations in paragraphs 2, 3, and 4 of plaintiff's complaint also claim misrepresentations made to the court, and not to Lambeck. Any statements made by the defendant Calzolari or her attorney were for the purpose of asking the court to take action on the contempt motions and to find Calzolari in compliance with the divorce decree. Moreover, while a review of the court deposition and transcripts submitted by Berlin are read in a light most favorable to the non-movant, the court finds little, if any, evidence relevant to the allegations. To the extent plaintiff relied on the transcripts submitted by the defendant Berlin, the court can find no material facts to support the allegations of plaintiff's complaint. 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 second count fails to allege that the representations were made to Lambeck or that he was induced to act in some way in reliance on those representations. Having failed to establish the necessary elements of fraudulent misrepresentation, the motion for summary judgment as to count two is granted as a matter of law.
C. THIRD COUNT: CIVIL LARCENY
Finally, Calzolari moves for summary judgment on Lambeck's third count for failure to properly allege civil larceny, otherwise referred to as statutory theft. As noted previously, a motion for summary judgment is properly granted if the complaint fails to set forth a cause of action and the plaintiff cannot cure the defect by repleading. See Larobina v. McDonald, supra, 274 Conn. 401-02.
Although the plaintiff has entitled his third count as "civil larceny," he has cited General Statutes § 52-564 as the basis of his 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.) News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 544, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005).
The heading of the count is not dispositive of what cause of action is alleged. See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) ("[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative"). It is the language of the complaint itself that must be analyzed. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) ("Because we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged").
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."
As to count three, Lambeck alleges that Calzolari fraudulently induced him to enter into an agreement on June 13, 2003, representing to him that she would comply with the terms of that agreement if he gave up his claims to the real property located in White Plains, NY. He further alleges that in exchange for him giving up his claim to that property, she knew that she would not be able to pay Lambeck the $54,000 because of her having previously refinanced the property. Further, that she proceeded to make additional numerous misrepresentations to the court to explain why she had not paid him the money by May 5, 2004. According to Lambeck, Calzolari, through her actions, wrongfully obtained and withheld his interest in the marital property. These allegations are insufficient to state a cause of action in civil larceny.
The defendant claims that the transcripts provided by her support her contention that there is no evidence to support plaintiff's allegations as set forth in the complaint. Plaintiff has provided no evidence in opposition to the defendant's motion; in fact, he filed no pleading in opposition at all and simply relied on oral argument. Plaintiff was free to respond to the motion for summary judgment and submit any affidavit or other documentation in opposition to defendant's motion but 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. Here, the plaintiff has failed to do so. The third count, in alleging a civil larceny, necessarily requires an element that the defendant Caizolari herself has taken 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." (Emphasis added.) In this instance the property at issue was determined to be that of the defendant's through a prior court proceeding at which the plaintiff made no allegation of fraud, theft, or misrepresentation. It was the court, not the defendant, which placed the property within her possession. By virtue of its decree as evidenced by the execution of the judgment file, the court gave the defendant the right to take, obtain and/or hold the property as the owner thereof. The evidence submitted to the court is devoid of any record or reference of the defendant having wrongfully taken, obtained or withheld any property of the plaintiff. There is no genuine issue of material fact as to whether the defendant Calzolari engaged in civil larceny. The motion for summary judgment as to the third count is granted.
The court takes judicial notice thereof.
CONCLUSION
A review of the pleadings and documentary proofs submitted to the court leads it to the conclusion that there are no genuine issues of material fact on counts two and three. Because there is a genuine issue of material fact as to count one, the motion is denied as to that count. The motion is granted as to counts two and three.
So ordered.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #137 I FACTS AND PROCEDURAL BACKGROUND
On July 18, 2006, the plaintiff, Brian Lambeck (Lambeck), filed a three-count complaint against the defendants, Christina Calzolari (Calzolari), his ex-wife, and her attorney, Patricia Berlin, (Berlin). On December 20, 2006, the plaintiff filed a revised complaint as to Berlin only. Berlin moved to strike the revised complaint on January 3, 2007. That motion was granted by the court, Thim, J., on May 31, 2007. On June 18, 2007, Lambeck filed a pleading (#145) entitled: "Amended Complaint as to Defendant Berlin" in response to Berlin's successful motion to strike. Pursuant to Practice Book § 10-44, after a motion to strike has been granted, the pleading filed is properly referred to as a substitute pleading. Because counts two and three of the revised complaint were stricken by the court one day after Berlin filed her motion for summary judgment, the operative complaint for purposes of her motion is the substitute pleading filed by Lambeck on June 18, 2007. That substitute complaint alleges the following facts. On June 13, 2003, Lambeck and Calzolari entered into a divorce agreement, which required Calzolari to pay Lambeck $54,000 upon her refinancing the existing mortgage on property she owned. Under the agreement, Calzolari was to make good faith efforts to refinance the mortgage within sixty days of the agreement. In addition, she was to provide Lambeck with a mortgage deed and note in the amount of $54,000 within seven days of the agreement. Ultimately, Calzolari failed to complete the refinance as called for.
Even if judicial immunity did not apply, the action brought by the plaintiff is inappropriate. A proper course of action would have been to appeal the trial court's ruling. Alternatively, the plaintiff could have pursued an abuse of process action, but did not do so. Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987). "An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed." (Citations omitted; internal quotation marks omitted.) Suffield Development Associates, Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772-73, 802 A.2d 44 (2002).
Subsequent to the entry of a dissolution decree which incorporated the agreement, postjudgment contempt motions were filed by both Lambeck and Calzolari. A court hearing was held on May 5, 2004. Berlin represented Calzolari at both that hearing and during the divorce proceedings. Lambeck claims that at the hearing on the contempt motions, Berlin made several misrepresentations to the court in an effort to demonstrate that Calzolari had complied with the terms of the divorce agreement. These alleged misrepresentations are included in count two of the substitute complaint: first, that Berlin told the court that parking tickets accrued by Lambeck appeared on Calzolari's credit report which prevented her from refinancing the property. Second, that Berlin represented that she had provided all requested documentation to plaintiff's former attorney prior to the May 5, 2004 hearing.
The relevant portion of Practice Book § 17-45 reads: "Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence."
In count three of the substitute complaint, Lambeck further alleges that Calzolari fraudulently induced Lambeck to enter into the dissolution agreement on June 13, 2003 by representing that she would comply with the terms of the agreement; that Berlin aided Calzolari by suborning her perjury at the deposition of Calzolari during the divorce proceedings and also assisted Calzolari by suborning her perjury at the contempt hearing on May 5, 2004. This conduct, as alleged by Lambeck, resulted in Calzolari wrongfully and intentionally misappropriating his interest in two real properties: 12 Old Mailcoach Road, Redding, Connecticut and Unit 21-B Lawrence Drive, White Plains, New York, as well as his interest in a Volvo automobile. Generally put, in counts two and three he alleges claims of fraudulent misrepresentation and civil larceny respectively against both defendants. Count one, in which Lambeck alleges breach of contract against Calzolari, is not at issue for purposes of the defendant Berlin's summary judgment motion.
As a result of this conclusion, the court need not address the other grounds set forth by the defendant Berlin in support of her motion.
On March 30, 2007, Berlin moved for summary judgment on counts two and three on the following grounds: (1) Lambeck is collaterally estopped from raising issues that were resolved in the underlying divorce; (2) judicial immunity exists for any statements made by her during the divorce and contempt proceedings; (3) the second and third counts fail to state a claim upon which relief can be granted; and (4) the undisputed facts demonstrate that the allegations in the complaint are not true. Berlin submitted a memorandum of law in support of the motion accompanied by a copy of the judgment of dissolution dated June 13, 2003, an uncertified copy of Lambeck's deposition, a certified copy of the transcript of the hearing on May 5, 2004, and copies of the motions for contempt relevant to the May 5, 2004 hearing. Lambeck did not file a memorandum of law or produce any affidavits or other documentary evidence in opposition. The matter was heard on the short calendar on June 18, 2007, at which time, Lambeck, acting pro se, argued in opposition to the motion.
The heading of the count is not dispositive of what cause of action is alleged. See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) ("[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative"). It is the language of the complaint itself that must be analyzed. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) ("Because we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged").
II DISCUSSION
"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 a judgment as a matter of law . . . and the patty opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Ins. Co. Of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). "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).
A. SECOND COUNT: MISREPRESENTATION CT Page 16642
Berlin argues that she is entitled to absolute judicial immunity for any statements made by her during the divorce and contempt proceedings as alleged in counts two and three of Lambeck's substitute complaint. At oral argument on the motion, Lambeck countered that there is no public policy that would allow immunity to apply to or warrant an extension of immunity to false statements made by a party's attorney."In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein; Field v. Kearns, 43 Conn.App. 265, 271, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 a.2d 711 (1996); and for the words used in the pleadings and documents . . . to prosecute the suit. DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991). Whether the statement is pertinent to the impending proceedings is the sole limit of the absolute immunity. Peyton v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986). The standard for pertinency is lower, however, than the relevancy standard for evidence . . .
"The absolute immunity defense grows out of a defense against defamation; Peyton v. Ellis, supra, 200 Conn. 245-46; however, the rule of absolute immunity has been applied to other causes of action, such as breach of a right to privacy and intentional and negligent emotional distress . . . A statement must be uttered or published in the court of judicial proceedings to gain immunity; Peyton v. Ellis, supra, 200 Conn. 245 . . . and the immunity extends to every step of the proceeding until final disposition." (Citations omitted; internal quotation marks omitted.) Martin v. McHugh, Superior Court, judicial district of New Haven, Docket No. CV 03 0474217 (March 30, 2004, Skolnick, J.).
In discussing the extent of this immunity to various causes of action, the court in Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (2007) reiterated that "we granted absolute immunity to attorneys who made allegedly defamatory comments in the course of a judicial proceeding. We noted that [b]ecause litigants cannot have such access without being assured of the unrestricted and undivided loyalty of their own attorneys, we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings . . . For other causes of action, however, the exigencies of the adversary system have not been deemed to require absolute immunity for attorneys. We have assumed, without discussion, that an attorney may be sued in an action for vexatious litigation, arguably because that cause of action has built-in restraints that minimize the risk of inappropriate litigation." (Internal quotation marks omitted.) Id., 348.
In the present case, Berlin relies on Martin v. McHugh, supra, for the proposition that any misrepresentations made during the divorce and contempt proceedings, including all statements relevant to those proceedings, are entitled to absolute immunity. At oral argument, Lambeck attempted to distinguish Martin v. McHugh on the basis that therein the court extended immunity only to misrepresentations contained within pleadings as opposed to statements made in response to questions posed by the court. Lambeck argues that judicial immunity does not apply to statements made outside the scope of judicial proceedings and that some of the statements alleged were not made in court.
In Martin v. McHugh, supra, the trial court addressed the issue of judicial immunity as a defense for statements allegedly made by the plaintiff's ex-wife and her attorney in the prior judicial proceedings in which three motions for contempt were before the court. Following a discussion of absolute judicial immunity for any statements made by parties and witnesses before judicial proceedings, the court examined whether it applied to causes of action based on "false and misleading testimony by an expert witness in a prior divorce proceeding." The court noted that "the testimony was entitled to immunity because it was made during the course of a judicial proceeding and recourse would have been for the opposing party to have raised this issue on appeal. Bieluch v. Dobensky, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 94 0138893 (January 17, 1997, Tobin, J.)." Martin v. McHugh, supra, Docket No. CV 03 0474217.
In determining whether judicial immunity applied, the court further pointed out our Supreme Court had acknowledged that "[t]he policy underlying the [judicial immunity] privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. (Internal quotation marks omitted.) Peyton v. Ellis, supra, 200 Conn. 246. Witnesses and parties to judicial proceedings must be permitted to speak freely, without subjecting their statements and intentions to later scrutiny by an indignant jury, if the judicial process is to function. DeLaurentis v. New Haven, supra, 220 Conn. 264." Martin v. McHugh, supra, Docket No. CV 03 0474217. The court in Martin v. McHugh concluded that the statements made during the judicial proceeding as well as those contained within the pleadings "should be afforded judicial immunity."
In the present case, there are four paragraphs in count two. The first identifies Berlin as an attorney and the last claims that the misrepresentations caused Lambeck pain and suffering as well as severe emotional distress. Paragraphs two and three refer to allegations that were made on May 5, 2004, during the contempt proceedings and include alleged statements made to the court in response to a question about the parking tickets and in response to a request regarding documentation provided to Lambeck's prior attorney. The statements claimed to have been made were relevant to and part of a judicial proceeding. Having reviewed the court and deposition transcripts, the court is of the belief that the public policy rationale underlying the grant of absolute immunity during judicial proceedings is applicable to the present case. Any statements alleged to have been uttered by Berlin as set forth in count two fall within the protection of absolute judicial immunity. Accordingly, the motion for summary judgment as to count two is granted.
It is permissible to apply the motion for summary judgment to the substitute complaint pursuant to Practice Book § 17-49 which provides: "The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." (Emphasis added.) Thus, a motion for summary judgment is not limited to any specific complaint. In addition, at oral argument, Berlin addressed the motion for summary judgment as to Lambeck's substitute complaint.
The court does note that even if judicial immunity were to be found not to be applicable, it is clear from the documentary evidence provided to the court that reading the allegations of the complaint in the light most favorable to the non-movant, there is no genuine issue as to any material fact presented relative to count two. As noted, the plaintiff has failed to submit any affidavits or other documentary proof to address Berlin's motion for summary judgment. Although mandated by Practice Book § 17-45 to file any such documents at least five days before the matter appeared on the June 18, 2007 calendar, the plaintiff elected not to do so. In fact, the plaintiff never even filed a memorandum of law in opposition. The plaintiff failed to avail himself of the opportunity to bring to the attention of the court any specific portions of those transcripts submitted by the defendant Berlin that he feels might support his position. In effect he has offered no evidence or legal citation to rebut that presented by the defendant Berlin. Anderson v. Schoenhorn, supra. As such, the defendant Berlin's motion is sustainable on those grounds alone.
Paragraphs 2 and 3 of the second count of the amended complaint (nee substitute complaint) read as follows:
2. Defendant Berlin, while acting as an attorney representing Christina Calzolari on May [5], 2004, represented to the court and plaintiff herein, in response to a question addressed directly to her by the court, that parking tickets incurred by the Plaintiff prevented the Defendant from refinancing. Both Plaintiff and the court reasonably relied on the representation of Patricia Berlin which were intended to induce said reliance. As a result of said reliance plaintiff was damaged.
3. Defendant Berlin also represented to the court and plaintiff during the May 5, 2004 hearing that she had previously provided all requested documentation to Plaintiff's former attorney prior to said hearing. Both Plaintiff and the court reasonably relied on the statements of attorney Berlin which were intended to induce such reliance. As a result of said reliance plaintiff was damaged
Paragraphs 3 and 6 of the third count read as follows:
3. Defendant Calzolari fraudulently induced the Plaintiff to enter into the agreement of June 13, 2003, thereby giving up claims to marital property located at Unit 21B White Plains, NY and the opportunity to question the values of real estate asserted by the Defendant Calzolari, by representing that she would comply with the terms of the agreement with respect to the refinance to buy out Plaintiff's interest in the marital property within sixty days inducing Plaintiff to agree to accept a significant discount of the value of Plaintiff's interest in the two pieces of marital real estate.
6. Defendant Berlin suborned the perjury of Defendant Calzolari both in the testimony of Calzolari at her deposition during the divorce, with respect to knowledge of the automatic orders, and during the hearing on May 5, 2004 both with the intent to aid Calzolari in appropriating the interest of the plaintiff in the property of the marital estate, attorneys fees, and other expenses awarded by the court on May 5, 2004.
B. THIRD COUNT: CIVIL LARCENY
Berlin next moves for summary judgment on Lambeck's third count for failure to properly allege civil larceny, otherwise referred to as statutory theft. Berlin argues that there are no allegations that she wrongfully took or obtained an interest in the marital property. Rather, Berlin asserts that the property referred to in the complaint was taken by the court and, thus, could not be considered wrongful. As a result, Berlin argues that the third count fails to properly allege the required elements of civil larceny, especially as to any actions taken by her, as opposed to actions allegedly taken by Calzolari. At oral argument, Lambeck appeared to claim that the additional language included in the substitute complaint sufficiently stated a cause of action in civil larceny.
The Supreme Court has stated that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
Although the plaintiff has entitled his third count as "civil larceny," he has cited General Statutes § 52-564fn5a as the basis of his 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.) News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 544, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005).
On June 20, 2007, Berlin filed a signed certification page of the deposition testimony. As such, the deposition is properly admissible. Barlow v. Palmer, 96 Conn.App. 88, 898 A.2d 835 (2006); P.B. § 1-8.fn6
Count three of the substitute complaint incorporates all of the paragraphs in count two, but also includes additional allegations beyond the alleged representations made by Berlin to the court during judicial proceedings or in the pleadings. Paragraph six of the third count alleges: "Defendant Berlin suborned the perjury of Defendant Calzolari both in the testimony of Calzolari at her deposition during the divorce, with respect to knowledge of the automatic orders, and during the hearing on May 5, 2004 both with the intent to aid Calzolari in appropriating the interest of the plaintiff in the property of the marital estate, attorneys fees, and other expenses awarded by the court on May 5, 2004." Paragraph seven claims that "[t]he acts set forth in paragraphs 1-6 were done with the intent of defendant Berlin to assist Defendant Calzolari wrongfully and intentionally misappropriating, as set forth in C.G.S. Sec. 52-564, plaintiff's interest in marital property, consisting in part of real estate located at 12 Old Mailcoach Rd., Redding CT; and Unit 21-B Lawrence Dr., White Plaints, NY and a Volvo automobile."
The defendant claims that the transcripts provided by her support her contention that there is no evidence to support plaintiff's allegations as set forth in the complaint. Plaintiff has provided no evidence in opposition to the defendant's motion; in fact, he filed no pleading in opposition at all and simply relied on oral argument. Plaintiff was free to respond to the motion for summary judgment and submit any affidavit or other documentation in opposition to defendant's motion but 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. Here, the plaintiff has failed to do so.
While a review of the court and deposition transcripts submitted by Berlin are read in a light most favorable to the non-movant, the court finds little, if any, evidence relevant to the allegations.
To the extent plaintiff relied on the transcripts submitted by the defendant Berlin, the court can find no material facts to support the allegations of plaintiff's complaint. 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 third count, in alleging a civil larceny, necessarily requires an element that the defendant Berlin herself has taken 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." (Emphasis added.) This element of possession is underscored in News America Marketing In-Store, Inc. v. Marquis, supra, 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 taken, obtained or withheld any property of the plaintiff, whether it be physically, personally or professionally.
There is no genuine issue of material fact as to whether the defendant Berlin engaged in civil larceny. The motion for summary judgment as to the third count is granted.
CONCLUSION
A review of the pleadings and documentary proofs submitted to the court leads it to the conclusion that there are no genuine issues of material fact as to counts two and three and that Berlin is entitled to judgment as a matter of law. Accordingly, the defendant's motion is granted.
So ordered.