Magee Avenue, LLC v. Lima Ceramic Tile, LLC
183 Conn. App. 575
Conn. App. Ct.2018Background
- Magee Avenue, LLC sued Moufid Makhraz and Lima Ceramic Tile, LLC for unpaid rent, property damage, and unjust enrichment under a month-to-month lease.
- Defendants filed a written motion for summary judgment directed to the two breach of contract counts (not the unjust enrichment count).
- One day before the summary judgment hearing, defendants filed a copy of the lease and an affidavit from Makhraz asserting he signed only as Lima’s managing member.
- At the hearing the next day the court accepted Makhraz’s live testimony about the affidavit over plaintiff’s objection; the trial court then entered summary judgment for Makhraz on all three counts and denied reargument.
- Plaintiff appealed, arguing (1) the affidavit was untimely and insufficient, (2) the court improperly considered live testimony at summary judgment, and (3) the court improperly rendered judgment on the unjust enrichment count when that claim had not been moved for.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court’s decision was a final judgment | Magee: the court rendered summary judgment for Makhraz and appeal is from final judgment | Makhraz: decision used "stricken" language but effectively disposed of claims | Court: though wording was incorrect, decision construed as summary judgment disposing of all counts — appeal is from a final judgment |
| Timeliness/sufficiency of defendant’s affidavit | Magee: affidavit filed one day before hearing violated Practice Book §17-45 (then requiring opposing filings 5 days prior) and should not be considered | Makhraz: affidavit supplied support for motion (defense argued plaintiff had not established contractual relationship) | Court: affidavit was untimely under the rule in effect at the hearing and should not have been considered; summary judgment improper on that ground |
| Use of live testimony at summary judgment hearing | Magee: live testimony substitutes for required documentary affidavits and forces credibility findings, precluding summary disposition | Makhraz: offered to testify to establish personal knowledge and support affidavit | Court: permitting and relying on live testimony required credibility determinations and factual findings, creating genuine issues of material fact; improper at summary judgment |
| Whether court could grant summary judgment on unjust enrichment (not moved) | Magee: defendants never moved on that count and court could not grant summary judgment sua sponte | Makhraz: argued counts name him and court discussion covered counts generally (no citation) | Court: defendant never moved for summary judgment on unjust enrichment; court could not grant judgment sua sponte — adjudication on that count was improper |
Key Cases Cited
- Doe v. West Hartford, 328 Conn. 172 (discussing summary judgment standards)
- State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566 (movant's burden and strict standard for summary judgment)
- Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486 (substance over form in interpreting trial court rulings)
- Meribear Productions, Inc. v. Frank, 328 Conn. 709 (examining whether trial court disposed of counts)
- Raudat v. Leary, 88 Conn. App. 44 (jurisdictional presumptions and interpreting rulings)
- Sandella v. Dick Corp., 53 Conn. App. 213 (factual questions vs. legal sufficiency)
- Velecela v. All Habitat Services, LLC, 322 Conn. 335 (when motion to strike is appropriate)
- Romprey v. Safeco Ins. Co. of America, 310 Conn. 304 (when affidavits are not required)
- Wells Fargo Bank, N.A. v. Henderson, 175 Conn. App. 474 (purpose of summary judgment and limits on evidentiary presentations)
- Braca v. Utzler, 134 Conn. App. 460 (summary judgment opposition limited to documentary evidence)
- Hope's Architectural Products, Inc. v. Fox Steel Co., 44 Conn. App. 759 (court may not grant summary judgment sua sponte)
- Mamudovski v. BIC Corp., 78 Conn. App. 715 (procedural prerequisites for summary judgment and abuse of discretion when bypassed)
- Bank of New York Mellon v. Mauro, 177 Conn. App. 295 (distinguishing summary judgment and motion to strike)