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Magee Avenue, LLC v. Lima Ceramic Tile, LLC

Court of Appeals of Connecticut

July 24, 2018

MAGEE AVENUE, LLC
v.
LIMA CERAMIC TILE, LLC, ET AL.

          Argued May 21, 2018

         Procedural History

         Action to recover unpaid rent, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, Housing Session at Norwalk, where the court, Rodriguez, J., granted the defendants' motion for summary judgment as to the defendant Moufid Makhraz and rendered judgment thereon; thereafter, the court denied the plaintiff's motion to reargue, and the plaintiff appealed to this court. Reversed; further proceedings.

          Richard J. Rapice, with whom, on the brief, were Peter V. Lathouris and Conor J. McLaughlin, certified legal intern, for the appellant (plaintiff).

          Raymond W. Ganim, for the appellee (defendant Moufid Makhraz).

          DiPentima, C. J., and Moll and Lavery, Js.

          OPINION

          LAVERY, J.

         The plaintiff, Magee Avenue, LLC, appeals from the judgment of the trial court rendering summary judgment in favor of the defendant, Moufid Makhraz, [1] on the plaintiff's complaint alleging two counts of breach of contract and one count of unjust enrichment. On appeal, the plaintiff claims that the trial court improperly (1) rendered summary judgment because the defendant's affidavit in support of the defendants' motion for summary judgment was untimely and insufficient; (2) permitted and considered the defendant's testimony during the hearing on the motion; and (3) permitted the defendant to amend orally his motion for summary judgment to include all counts when the written motion only sought relief from the two counts of breach of contract. We agree with the plaintiff's claims and reverse the judgment.

         The following facts, as alleged in the complaint, and procedural history are relevant to our decision. On December 7, 2011, the plaintiff and the defendants entered into a month-to-month lease for the defendants to rent 46-50 Magee Avenue in Stamford. Per the terms of the lease agreement, the defendants were to pay $3500 per month. The defendants failed to make timely rental payments. The defendants also were required to keep the premises clean, sanitary, and in good condition, and to return the premises to the plaintiff in a condition ‘‘identical'' to that which existed when they took possession, except for ordinary wear and tear. The defendants were required to reimburse the plaintiff for the cost of any repairs resulting from damage to the premises through misuse or negligence. The defendants, however, caused damage to many parts of the premises but did not pay for the damage.

         On February 23, 2016, the plaintiff filed a complaint against the defendants. In its three count amended complaint dated June 1, 2016, the plaintiff claimed that the defendants breached the lease agreement by failing to pay the full amount of rent and late fees and by damaging the premises and failing to pay for the damage and cost of collection, and that the defendants were unjustly enriched by failing to pay for the use and occupancy of the premises or for the damage the defendants caused to the premises. On July 26, 2016, the defendants filed a motion for summary judgment, claiming that ‘‘no contractual relationship existed between the [p]laintiff and the [d]efendants in this action.'' Specifically, the defendants argued in their memorandum of law in support of their motion for summary judgment that the contract at issue did not involve either defendant because the tenant in the contract was identified as ‘‘Lima Tile, Inc.'' The defendants therefore argued that there was no written agreement between the plaintiff and either defendant. The plaintiff objected to the motion, claiming that the motion was inadequate, per Practice Book § 17-45, because no supporting documents were attached to the motion. The plaintiff also claimed that the identification of ‘‘Lima Tile, Inc.'' was a scrivener's error and that the defendants had ratified the agreement. Attached to the plaintiff's objection was an affidavit from the plaintiff's principal explaining that he searched the secretary of the state's online records for ‘‘Lima Tile, Inc., '' but could find only ‘‘Lima Ceramic Tile, LLC.'' Appended to the affidavit were screen shots from his web search, as well as a copy of a check made out to the plaintiff from Lima, which was signed by the defendant.

         A hearing on the motion for summary judgment was scheduled for October 4, 2016. The day before the hearing, the defendants filed a copy of the lease agreement and the defendant's affidavit. In the affidavit, the defendant stated that he signed the lease agreement as Lima's manager and did not rent the property individually or personally. At the hearing the next day, the defendants agreed that Lima would remain in the case but pressed the motion for summary judgment as to the defendant. The plaintiff argued that the defendant should remain in the case also, as it would seek to pierce the corporate veil, if necessary. The plaintiff asked the court to consider that the defendants had filed their affidavit only the day before, which affidavit the plaintiff claimed was insufficient and unsupported. When the plaintiff objected on the basis that the affidavit did not include a statement that it was made on personal knowledge, the defendants' counsel offered for the court to hear the defendant's testimony. Over the plaintiff's objection, the court heard the defendant's testimony, in which he claimed to have rented the premises as Lima's managing member and not for his own personal use, and that he had personal knowledge as to his testimony. After the defendant's testimony, the plaintiff again objected, noting that the briefs did not ask for testimony and that, because the rules of practice call for documentary evidence to support a motion for summary judgment, the mere fact that the defendant had to testify meant that there was a factual issue in dispute.

         In a memorandum of decision filed on October 4, 2016, the trial court found that the defendant did not enter into an agreement with the plaintiff in his individual capacity, but only as Lima's managing member, and it stated that the complaint was ‘‘stricken'' as to the defendant. The plaintiff filed a motion to reargue, which the court denied.[2] This appeal followed. Additional facts will be set forth as needed.

         On appeal, the plaintiff claims that the trial court improperly rendered summary judgment because the defendant's affidavit in support of his motion was untimely and insufficient, permitted and considered the defendant's testimony during the hearing on the motion, and permitted the defendant to amend orally his motion for summary judgment to include judgment on all counts when the written motion only sought relief from the two counts of breach of contract.

         ‘‘Our review of the trial court's summary judgment rulings is plenary . . . and the general principles governing those rulings are well established. 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.'' (Citation omitted; internal quotation marks omitted.) Doe v. West Hartford, 328 Conn. 172, 191-92, 177 A.3d 1128 (2018).

         I

         Before we address the merits of the plaintiff's claims, we must consider whether this appeal was taken from a final judgment. Although the defendants moved for summary judgment on the first two counts only, the trial court's memorandum of decision on the motion stated that ‘‘[t]he complaint is stricken as to [the defendant].'' (Emphasis added.) We, therefore, must determine whether the court rendered summary judgment or whether it struck the complaint as to the defendant without rendering judgment.

         ‘‘Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.'' (Citations omitted; internal quotation marks omitted.) Raudat v. Leary, 88 Conn.App. 44, 48, 868 A.2d 120 (2005).

         ‘‘[C]ertain basic principles . . . distinguish the procedural devices of a motion for summary judgment and a motion to strike. 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. . . .

         ‘‘In contrast, a motion to strike, pursuant to Practice Book § 10-39 (a), shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any . . . [claim] . . . to state a claim upon which relief can be granted . . . .'' (Citations omitted; footnote omitted; internal quotation marks omitted.) Bank of New York ...


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