Coffey v. Fiorillo, CV156061976S

Decision Date01 May 2018
Docket NumberCV156061976S
CourtSuperior Court of Connecticut
PartiesBarbara Coffey v. John T. Fiorillo

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Peck, A. Susan, J.T.R.

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
PECK JTR

The plaintiff, Barbara Coffey, in an amended complaint, filed on April 4, 2016,[1] alleges the following facts: The plaintiff was a state marshal who entered into an oral contract with the defendant, John T. Fiorillo, on March 9 2007. The defendant, through a limited liability company created on the same date known as " John T. Fiorillo Connecticut State Marshal, LLC" (the LLC), and the plaintiff, agreed that the plaintiff would provide certain marshal services and the defendant would pay her personally or through the LLC, a base salary plus fifteen percent of all profits realized by services rendered to certain law firms. From March 9, 2007 to September 21, 2009, the plaintiff performed all the services required of her under the agreement and the defendant purported to pay her the agreed-upon base salary plus fifteen percent of all profits realized by services to the named client law firms. The plaintiff relied upon the defendant to determine the proper amount of profits to be paid to her. The profits paid to the plaintiff for each of the years 2007 through 2010 were as follows: $18,000 paid over four weeks in December 2007; $80,000 paid in a single payment on or about December 4, 2008; $88,000 paid in a single payment sometime in December 2009; and $74,000 paid in a single payment on or about October 4, 2010. For each of those years, the defendant, personally, or through the LLC, failed to pay her an amount equal to fifteen percent of the profits as promised. Although the defendant represented to the plaintiff that the amounts paid to her amounted to fifteen percent of the profits realized by her services, those representations were known by the defendant to be false and that the plaintiff relied on those representations to her detriment. The LLC was dissolved by the defendant on September 28, 2012. Upon dissolution, all of the assets of the LLC were distributed to the defendant.

In 2011, the defendant created Paralegal Assistance Services, LLC (Paralegal, LLC) to provide administrative and office services to the plaintiff and other marshals. Between October 2011 and November 2013, the plaintiff paid the sums represented by the defendant to be her share of the services provided to her by Paralegal, LLC. Nevertheless, the defendant misrepresented the amount the plaintiff owed for the services causing her to overpay. The defendant overcharged the plaintiff for the express purpose of diverting funds to a company that he controlled, known as Office Solutions of Connecticut, Inc.

The amended complaint alleges five counts: (1) breach of contract; (2) civil action to collect wages pursuant to General Statutes § 31-72; [2] (3) unjust enrichment; (4) fraudulent misrepresentation; and (5) fraudulent misrepresentation by the Paralegal, LLC. Pending before the court is the defendant’s motion for summary judgment filed on October 3, 2017, accompanied by a memorandum of law. In support of the motion, the defendant submitted a memorandum of decision on a motion for summary judgment in the substantially similar case of Bennett v. Fiorillo, Superior Court, judicial district of Hartford, Docket No. 16-6065144S (June 16, 2017, Scholl, J.); a transcript of the plaintiff’s December 13, 2016 deposition; an Attorney’s General Opinion concerning the illegality of contracts for marshal services; Opinions, Conn. Atty. Gen. No. 2009-009 (September 21, 2009); a court decision in the case of Stien v. Blau, United States District Court, Docket No. 3:16CV450 (AWT) (D.Conn. January 23, 2017); and the defendant’s affidavit. The plaintiff filed a memorandum of law in opposition to the defendant’s motion on December 8, 2017, including the plaintiff’s affidavit; a transcript of the deposition of Gina Clark, the defendant’s employee; a transcript of the plaintiff’s July 27, 2016 deposition; and, a transcript of the plaintiff’s December 13, 2016 deposition. On January 4, 2018, the defendant filed a reply to the plaintiff’s opposition memorandum, accompanied by portions of the transcripts of plaintiff’s July 27, 2016 and December 13, 2016 depositions and Clark’s deposition. Oral argument on the motion was held on January 8, 2018.

DISCUSSION

" Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " 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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " 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 ..." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " [O]nly [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [does] the burden [shift] to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of-America, 310 Conn. 304, 320, 77 A.3d 726 (2013).

" Summary judgment may be granted where the claim is barred by the statute of limitations." (Internal quotation marks omitted.) Id., 313. " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Citation omitted.) Id., 321.

The defendant moves for summary judgment on the following grounds: (1) counts one through three of the plaintiff’s complaint are time barred pursuant to General Statutes § 52-596; [3] count four of the plaintiff’s complaint is time barred pursuant to General Statutes § 52-577; [4] count five of the plaintiff’s complaint is partially time barred pursuant to § 52-577; (4) the defendant cannot be personally liable for counts one and three when he was neither a party to the contract nor unjustly enriched; and (5) count one fails as a matter of law because the contract was illegal, against public policy, and unenforceable.[5] The plaintiff responds by arguing the continuing course of conduct and fraudulent concealment doctrines toll the statutes of limitations for counts one through four; the defendant may be held personally liable because he was the sole member of the LLC; and, the contract was legal, not against public policy, and enforceable.

I.

The defendant first moves for summary judgment on counts one through three of the plaintiff’s complaint on the ground that those counts are time barred pursuant to the two-year statute of limitations set forth in § 52-596. The plaintiff argues there is a genuine issue of material fact as to when the contract in question was breached. Alternatively, she argues the continuing course of conduct and fraudulent concealment doctrines toll the statute of limitations for these counts.

" For purposes of section 52-596, a cause of action for payment of remuneration for employment accrues when an employer refuses to compensate an employee according to the terms of an express or implied employment contract." Warzecha v. Nutmeg Companies, Inc., 48 F.Supp.2d 151, 158 (D.Conn. 1999). " This statute, however, does not govern all payments by employer to employee. Connecticut courts have recognized that § 52-596 does not apply to certain agreements or forms of compensation." Duplissie v. Devino, 96 Conn.App. 673, 683, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). For instance, a bonus is not wages when the plaintiff is contractually entitled to it, but the actual amount is discretionary. Ziotas v. Reardon Law Firm, P.C., 296 Conn. 579, 588, 997 A.2d 453 (2010). Moreover, even when the plaintiff is contractually entitled to the bonus and the bonus amount is nondiscretionary, the bonus is only wages when it is dependent on the employee’s performance. Assn. Resources, Inc. v. Wall, 298 Conn. 145, 178-80, 2 A.3d 873 (2010).[6]

In the present case, although the plaintiff was allegedly contractually entitled to an annual fifteen percent payment; see Ziotas v. Reardon Law Firm, P.C., supra, 296 Conn. 588; and the amount was nondiscretionary; see Assn Resources, Inc. v. Wall, supra, 298 Conn. 178-80; there is no evidence that the fifteen percent was dependent on the plaintiff’s individual performance. Cf. id. Although the plaintiff alleges in paragraph 9 of count one of the amended complaint that the defendant failed to pay her " an amount equal to 15% of the profits that were realized from the client law firms by virtue of the work that the plaintiff performed," the affidavit she submitted in opposition to the motion for summary judgment states that she was entitled to fifteen percent of the profits " realized from ... [the] LLC’s providing of...

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