Tuccio Development, Inc. v. Neumann
Decision Date | 28 April 2009 |
Docket Number | No. 29598.,29598. |
Citation | 968 A.2d 956,114 Conn.App. 123 |
Parties | TUCCIO DEVELOPMENT, INC. v. Harry NEUMANN, Jr. |
Court | Connecticut Court of Appeals |
John R. Williams, New Haven, for the appellant (plaintiff).
Charles E. Vermette, Jr., with whom, on the brief, was Christopher J. Sochacki, Avon, for the appellee (defendant).
GRUENDEL, ROBINSON and LAVERY, Js.
The plaintiff, Tuccio Development, Inc., appeals from the summary judgment rendered by the trial court in favor of the defendant, Harry Neumann, Jr. The plaintiff claims that the court improperly concluded that there was no genuine issue of material fact, thus entitling the defendant to judgment as a matter of law. We affirm the judgment of the trial court.
This appeal concerns certain real estate records. The plaintiff, a residential real estate development corporation, contracted with the defendant, a licensed Realtor, to market and sell residential properties for the plaintiff from 2000 through 2002. In its complaint, the plaintiff alleged that the defendant created files and records concerning Lot 2, Teahouse Lane in Ridgefield, and Lot 5, North Street in Ridgefield, pursuant to that contract. Those records allegedly "were and remain the property of the plaintiff." The complaint further alleged that, in 2005, the plaintiff requested that the defendant surrender those files and records to the plaintiff, but the defendant refused. The plaintiff thereafter commenced the present action in February, 2006. Its complaint consisted of two counts alleging statutory theft pursuant to General Statutes § 52-564 and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
On October 26, 2007, the defendant filed a motion for summary judgment, alleging that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Specifically, the defendant averred that there was no evidence before the court that he intended to deprive the plaintiff of its property, a necessary prerequisite to recovery.1 In support of the motion, the defendant submitted (1) his affidavit, (2) the affidavit of the attorney who represented him at the time the plaintiff requested the aforementioned records, (3) copies of correspondence submitted by the plaintiff and its counsel to the defendant and his attorney, and the responses thereto, and (4) a copy of the plaintiff's responses to interrogatories and requests for production. The plaintiff did not submit any documentation in support of its memorandum of law in opposition to the motion for summary judgment. In its January 18, 2008 memorandum of decision, the court found that "[t]he evidence submitted to the court on the summary judgment motion is devoid of any record or reference of the defendant's having intended to take, obtain or withhold any property of the plaintiff." As such, it concluded that no genuine issue of material fact existed as to the statutory theft count. Because the CUTPA count was predicated entirely on the alleged statutory theft, the court reached the same determination as to that count. Accordingly, the court concluded that the defendant was entitled to judgment as a matter of law. This appeal followed.
Summary judgment is appropriate where "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." Practice Book § 17-49; Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004).
Once met, the burden shifts to "the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008). When 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.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007). Finally, we note that because the court's decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Id., at 199, 931 A.2d 916.
The plaintiff contends that the court improperly granted the defendant's motion for summary judgment because there exist genuine issues of material fact regarding its allegation of statutory theft. We disagree.
"Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). A person commits larceny pursuant to § 53a-119 "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...." General Statutes § 53a-119; Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418 n. 14, 934 A.2d 227 (2007).
In moving for summary judgment, the defendant alleged that no genuine issue of material fact existed as to whether he intended to deprive the plaintiff of its property. The defendant provided evidence outside the pleadings to substantiate that allegation. Appended to his motion for summary judgment was the defendant's sworn affidavit, in which he stated, inter alia, that he "had no intent to deprive the [p]laintiff of any materials ...." Also accompanying the motion was a series of correspondences between the parties, which the court aptly detailed in its memorandum of decision:
In addition, the defendant submitted the sworn affidavit of Richard D. Zeisler, counsel for the...
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