Marinos v. Poirot

• Decision Date: 04 June 2013
• Docket Number: No. 18924.,18924.
• Citation: 308 Conn. 706,66 A.3d 860
• Parties: Eloise MARINOS et al. v. David POIROT et al.
• Court: Connecticut Supreme Court

308 Conn. 706

66 A.3d 860

Eloise MARINOS et al.

v.David POIROT et al.

No. 18924.

Supreme Court of Connecticut.

Argued Jan. 8, 2013.

Decided June 4, 2013.

John R. Williams, New Haven, for the appellants (plaintiffs).

David M. Poirot, Hartford, and Gordon S. Johnson, Jr., the appellees (defendants).

ROGERS, C.J., and NORCOTT, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

In this certified appeal,¹ we clarify the requirement that a plaintiff alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., must make some showing of an “ascertainable loss of money or property” as required by General Statutes § 42–110g (a) in order to defeat a defendant's motion for summary judgment. The plaintiff, Eloise Marinos, individually and as administratrix of the estate of Steven F. Meo (Meo),² appeals from the judgment of the Appellate Court, affirming the trial court's summary judgment rendered in favor of the defendants, David M. Poirot and Gordon S. Johnson, Jr. ³Marinos v. Poirot, 132 Conn.App. 693, 709, 33 A.3d 282 (2011). On appeal, the plaintiff argues that the Appellate Court improperly affirmed the trial court's summary judgment rendered in favor of the defendants on the ground that the plaintiff's failure to produce an itemization of her claimed damages was fatal to her CUTPA claims. We agree with the plaintiff that a litigant need not produce “an itemization” of her claimed CUTPA damages in order to defeat a defendant's motion for summary judgment, and we reject that portion of the Appellate Court's reasoning that implies that an itemization is required. We conclude, however, that the Appellate Court nevertheless properly affirmed the summary judgment for the defendants in the present case because the trial court correctly determined that the plaintiff had failed to identify any evidence of ascertainable loss. Accordingly, we affirm the judgment of the Appellate Court on that basis.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The plaintiff and Meo were wife and husband. Meo was engaged in the practice of law as the sole proprietor of the Law Office of Steven F. Meo (Meo law office) and in 1992 employed Poirot as an associate. In October, 2005, Meo was hospitalized and remained hospitalized until his death on April 25, 2006. From the time Meo was hospitalized until his death, Poirot was the only attorney in the Meo law office, and he managed its clients and files. In December, 2005, Meo authorized Poirot to be added as a signatory to the Meo law office's operating checking account and its clients' funds [Interest on Lawyers Trust Account] so that Poirot could manage and facilitate settlement disbursements for clients. On April 28, 2006, Poirot left the Meo law office to open his own practice and was retained by approximately fifty-one of the fifty-three clients of the Meo law office to handle their legal matters to conclusion.”

“Johnson, an attorney licensed to practice law in Wisconsin, specializes in traumatic brain injury litigation. Beginning in 2002, Johnson, with Meo as local counsel, litigated certain traumatic brain injury cases in Connecticut. Following Meo's death, Johnson and Poirot litigated two traumatic brain injury cases that had originatedin the Meo law office.” Marinos v. Poirot, supra, 132 Conn.App. at 695–96, 33 A.3d 282.

The plaintiff filed a nineteen count complaint against the defendants, alleging, inter alia, breach of the duty of loyalty, conversion, civil theft, civil conspiracy, and the claimed CUTPA violations at issue in the present appeal. “In sum, the plaintiff alleges that in November, [308 Conn. 710]2005, Poirot began to plan the opening of his own law office and to appropriate business from the Meo law office. The plaintiff alleges that Poirot stole clients from the Meo law office, as well as supplies and the services of its employees. Moreover, the plaintiff alleges that Poirot and Johnson conspired to appropriate cases from the Meo law office to their benefit and to the detriment of the Meo law office. The plaintiff claims that, as Meo's widow and the administratrix of his estate, she is the successor to Meo's interest in the Meo law office and that she was harmed by the defendants' acts.” Id., at 696–67, 33 A.3d 282.

Both Poirot and Johnson filed a motion for summary judgment, which motions were granted in their entirety by the trial court. In their respective motions, the defendants advanced a number of arguments, including that summary judgment was warranted because the plaintiff failed to identify any evidence of damages resulting from her claimed CUTPA violations. In her opposition to the summary judgment motions, the plaintiff denied any obligation to furnish documentary evidence or other proof in support of her CUTPA claims, but nevertheless maintained that her written responses to the defendants' discovery requests were sufficient to identify an ascertainable loss and avoid summary judgment.

Citing our decision in Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217–18, 947 A.2d 320 (2008), the trial court held that although the plaintiff was “not required to provide proof of actual damages in the form of a specific dollar amount,” she was required to submit at least some proof of her alleged loss in order to defeat summary judgment. Because the plaintiff had failed to attach to her opposition any “supporting documentation, in the form of affidavits or other evidence of measurable damages,” the court concluded that the pleadings and proof, in toto, failed to establish a genuine issue of material fact as to whether the plaintiff, either in her personal or representative capacity, had suffered “any loss of money or property....”

In so concluding, the trial court rejected the plaintiff's argument that her responses to the defendants' discovery requests were sufficient to maintain her CUTPA claim, finding, to the contrary, that the plaintiff's opposition contained only “conclusory statements and a list of office supplies allegedly taken by Poirot.” Specifically, the court observed, in response to the defendants' discovery requests to state the amount of damages she had allegedly sustained, the plaintiff replied: “ ‘A complete account of financial damages and losses is ongoing, therefore no itemization can be listed herein. As soon as the cumulative value has been assessed we will forward a copy of the same.’ ” The court noted, however, that more than one year later, no such itemization had been produced.

The Appellate Court affirmed the judgment of the trial court, emphasizing that “the plaintiff had failed to produce an itemization of her claimed CUTPA damages” in response to Poirot's repeated requests that she “state the amount of damages [she had] allegedly sustained.” Marinos v. Poirot, supra, 132 Conn.App. at 708, 33 A.3d 282. This appeal followed.

We begin our analysis with the standard of review of a trial court's decision to grant a motion for summary judgment. 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.” A party moving for summary judgment is held to a “strict standard.” Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). “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.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Id.

The plaintiff contends that the Appellate Court improperly affirmed the trial court's judgment on the ground that the plaintiff's failure to produce an itemization of her damages was fatal to her CUTPA claims. The defendants disagree with the plaintiff's reading of the trial court's memorandum of decision, arguing that the trial court in fact rendered summary judgment in their favor because the plaintiff had failed to identify any evidence in her opposition that either she or Meo's estate had suffered any ascertainable loss. We agree with the defendants.

CUTPA is, on its face, a remedial statute ⁴ that broadly prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42–110b (a); see also Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 155, 645 A.2d 505 (1994). The act provides for more robust remedies than those available under analogous common-law causes of action, including punitive damages; General Statutes § 42–110g (a); and attorney's fees and costs, and, “in addition to damages or in lieu of damages, injunctive or other equitable relief.” General Statutes § 42–110g (d); see generally Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, at 148, 645 A.2d 505 (describing...