33 Conn. App. 303 | Conn. App. Ct. | 1993
The plaintiff appeals from the judgment rendered by a trial referee dismissing the plaintiffs conversion action for failure to establish a prima facie case.
The plaintiff in this action, Discover Leasing, Inc. (Discover), provided financing for leases of capital equipment and automobiles. Discover was incorporated with two shareholders: the defendant, Raymond J. Murphy, Jr., and Patricia Leninski. In addition to being a
In late 1988, Leninski learned that Murphy had made some unauthorized transfers of Discover funds to Becker Associates, a Rhode Island company, and had been receiving interest on the funds. She fired Murphy and the corporation removed him from his offices. After conducting an audit, Discover brought this action against Murphy, claiming conversion and statutory theft in the amount of $155,051.
The matter was transferred to a trial referee pursuant to Practice Book § 430
I
The nature of the motion acted on in the trial court determines the proper standard to be used by that court as well as our standard of review on appeal. Thus, we must first clarify what occurred at trial.
At the close of Discover’s evidence, the defendant moved for a directed verdict. “A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion . . . .” (Citations omitted; internal quotation marks omitted.) Churchill v. Skjerding, 31 Conn. App. 247, 251, 624
In this case, there was no jury. Thus, it is clear that the defendant’s motion for a directed verdict was improper. We now turn to the trial referee’s granting of a motion to dismiss. That too was an improper vehicle in this instance.
Practice Book § 142
Thus, the referee’s granting of a § 142 motion to dismiss would have been improper both as to substance and timing. Rather, the defendant’s motion challenged the sufficiency of the plaintiff’s prima facie case. This type of challenge is properly raised by a motion to dismiss for failure to make out a prima facie case pursuant to Practice Book § 302.
A trial court can dismiss an action where it believes the plaintiff has failed to make out a prima facie case. Practice Book § 302; Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 493, 569 A.2d 32 (1990). “[WJhen the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff,” dismissal under Practice Book § 302 is appropriate. Hinchliffe v. American Motors Corp., 184 Conn. 607, 609, 440 A.2d 810 (1981); Gulycz v. Stop & Shop Co., 29 Conn. App. 519, 523, 615 A.2d 1087 (1992). A § 302 motion is properly considered at the close of the plaintiff’s evidence. Carnese v. Middleton, 27 Conn. App. 530, 539, 608 A.2d 700 (1992). A denial of a § 302 motion gives the plaintiff the opportunity to have the
In considering a motion under Practice Book § 302, a trial court must consider all of the plaintiff’s evidence to be true. Hinchliffe v. American Motors Corp., supra, 609-10; Bolmer v. Kocet, 6 Conn. App. 595, 603, 507 A.2d 129 (1986). Further, a trial court must draw all reasonable inferences in the plaintiff’s favor. Pagni v. Corneal, 13 Conn. App. 468, 470, 537 A.2d 520, cert. denied, 207 Conn. 810, 541 A.2d 1239 (1988). The limitations of a § 302 motion contrast with the trial court’s discretion in ruling on the merits of a case. Once a case is presented to the trial court for final decision, the trier is released from having to treat the plaintiff’s evidence as true and can disbelieve any evidence, even if the evidence is uncontroverted. Strickland v. Vescovi, 3 Conn. App. 10, 15, 484 A.2d 460 (1984).
Here, the defendant challenged the plaintiff’s prima facie case, after the plaintiff rested, in a civil matter tried to the court. Thus, this procedural posture makes it evident that the defendant moved to dismiss under § 302.
II
On appeal of a dismissal pursuant to Practice Book § 302, we take the plaintiff’s evidence as true; Higgins v. Ambrogio, 19 Conn. App. 581, 584, 562 A.2d 1154 (1989); and consider the trial court’s conclusions in light of the evidence in the record. Bershtein, Bershtein, & Bershtein v. Nemeth, 221 Conn. 236, 239, 603 A.2d 389 (1992). “Whether the plaintiffs established a prima facie case is a question of law.” Wordie v. Staggers, 27 Conn. App. 463, 465, 606 A.2d 734 (1992); Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 561, 447 A.2d 406 (1982). “We must determine whether the trial court properly determined that the plaintiff failed to provide sufficient evidence to support
Discover alleged that the defendant had committed conversion and statutory theft in violation of General Statutes § 52-564.
Statutory theft is synonymous with larceny under General Statutes § 53a-119.
Discover established that the defendant had deprived Discover of its funds for five to seven months. Lenin-ski and Silkoff testified that the first withdrawal was made in April, 1988, followed by two more withdrawals in June, 1988. Leninski also testified that a portion of the funds was returned by Becker Associates in late 1988 or early 1989. The balance of the money remains missing.
Discover also established that the defendant acted without authorization. Leninski testified that she had not authorized any investment with Becker. Further, one of the withdrawals was made with a single signature check and another was made via wire transfer, contravening normal practice. Leninski and Greenberg both testified that Leninski fired the defendant as soon as she learned of his activities.
Discover established that the defendant had employed Discover funds for his own purposes. Emmanuel and Greenberg both testified that the defendant told them that he was receiving approximately $3000 per week in interest from the Becker investments. They further
In sum, Discover’s evidence, taken as true, established that the defendant had employed corporation funds for his own benefit, without authorization, to the detriment of Discover. Thus, when it rested, Discover had established a prima facie case of conversion and statutory theft and the defendant’s § 302 motion to dismiss should have been denied.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
The plaintiff also challenges what appears to be a decision on the merits in favor of the defendant. The trial court’s judgment states, “The Court, having heard the parties, finds the issues for the defendant, and that the defendant’s motion to dismiss should be granted and judgment entered on behalf of the defendant . . . .” The trial court could not render a decision on the merits in this case. First, the court had previously dismissed the plaintiffs case for failing to make out a prima facie case. Thus, the case was no longer before the court. Second, because the defendant had never rested his case, the merits of the action were not before the court for adjudication. Therefore, we will address the plaintiffs appeal from the trial court’s judgment of dismissal in favor of the defendant, the only judgment properly before the trial court.
Practice Book § 430 provides in pertinent part: “[Tjhe judicial authority may refer any civil nonjury case or, with the written consent of the parties or their attorneys, any civil jury case, pending before such court, in which the issues have been closed, to a trial referee, who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in such case. . . .”
Practice Book § 142 provides in pertinent part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .”
Practice Book § 143 provides in pertinent part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. . . .”
Practice Book § 302 provides in pertinent part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ...”
General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”
General Statutes § 53a-119 provides in pertinent part: “A person commits larceny 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. Larceny includes but is not limited to:
“(1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody. . . .”