Opinion
No. CV 03-0827411S
May 12, 2006
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #137, #144 AND #178
Pursuant to Practice Book § 17-44 et seq., the defendants, attorney Jon Schoenhorn and the law firm of Schoenhorn Associates (collectively, Schoenhorn), attorneys Peter C. Schwartz, R. Bradley Wolfe and the law firm of Gordon, Muir Foley, LLP (GMF), moved for summary judgment against the plaintiff, Tobias C. Anderson, arguing that no genuine issue of material fact exists as to the plaintiff's tort, civil conspiracy and various other claims. The defendants' motion as revised and corrected is accompanied by several affidavits and properly authenticated documents. By way of background, this case arises out of the defendants' alleged theft and illegal retention of certain property provided by the plaintiff to Schoenhorn in the course of Schoenhorn's representation of the plaintiff in a separate criminal matter. The plaintiff, an incarcerated prisoner appearing pro se, claims damages in the form of loss of access to property, infringement on access to the courts and emotional and mental anguish. The complaint requests compensatory and punitive damages.
The plaintiff's forty-four count complaint includes allegations of larceny, statutory theft, conversion, negligence per se, breach of contract, tortious interference with business expectancy, violations of the plaintiff's rights under 42 U.S.C. §§ 1983 and 1985(3) and civil conspiracy to commit the same. The court, Stengel, J., struck the plaintiff's 42 U.S.C. §§ 1983 and 1985(3) claims in counts seventeen, eighteen, thirty-seven and thirty-eight in response to the defendants' motion to strike. See Anderson v. Gordon, Muir Foley, Superior Court, judicial district of Hartford, Docket No. CV 03 0827411 (January 7, 2004, Stengel, J.).
"[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). The defendants appended affidavits from Schoenhorn, Schwartz, Wolfe and several nonparties to their memorandum of law in support of the motion for summary judgment. In his affidavit, Wolfe avers that documentary exhibits A, B, H and I are true and accurate copies of the originals. Exhibits A and B are letters addressed to Schoenhorn and the plaintiff dated April 1 and April 3, 2001, respectively. Exhibit H is a letter to Schoenhorn from Temmy Ann Pieszak, chief of habeas corpus services at the office of the public defender's habeas corpus unit. Exhibit I is a letter to Schwartz from Schoenhorn sent April 8, 2001.
I. FACTS
The following relevant facts are drawn from evidence submitted by the defendants in support of their motion for summary judgment. In late 1996, Schoenhorn acquired approximately thirteen boxes of property consisting of trial materials (materials) while representing the plaintiff in a proceeding concerning a habeas corpus petition. Schoenhorn obtained leave to withdraw from his representation of the plaintiff on November 27, 2000. In a letter dated April 1, 2001 to Schoenhorn, the plaintiff indicated that "[s]omeone from and/or associated with the public defender's office will pick up [his] legal materials." Schoenhorn replied in a letter dated April 3, 2001 that he would "turn over the files to anyone from the public defender's office who contacts [him] on [the plaintiff's] behalf . . ." On May 17, 2001, Schoenhorn attests that Ellin A.M. Grenger of the Sawyer Law Firm "had called indicating that the Sawyer Law Firm [was] appointed as a special public defender for [the plaintiff] in his habeas corpus case" and requested a "transcript." On May 21, 2001, the plaintiff served process on Schoenhorn based on his alleged malpractice in connection with Schoenhorn's representation in the habeas matter. On June 7, 2001, GMF was engaged to represent Schoenhorn, his law offices and Jeanne Zulick. GMF filed an appearance for the defendants in the malpractice lawsuit. Some time in the next several days, a portion of the materials were delivered by Schoenhorn to GMF. Schwartz later confirmed by letter to Schoenhorn dated June 15, 2001 that Schoenhorn would send the additional materials for "ultimate referral" to Anderson's new counsel.
The plaintiff appended the same exhibits to his memorandum in opposition to the motion for summary judgment and to his reply memorandum.
See exhibit A appended to the plaintiff's memorandum in opposition to the motion for summary judgment.
See exhibit B attached to the defendants' memorandum in support of the motion for summary judgment.
On July 18, 2001, Schwartz and Schoenhorn jointly called Grenger on the telephone and Grenger told Schwartz and Schoerhorn to hold onto the materials until further notice as it had not yet been determined that Sawyer would accept the appointment. Neither Schoenhorn nor GMF received any written follow up instructions from the Sawyer Law Office regarding the disposition of the materials.
By letter dated October 2, 2001 to Schoenhorn, Attorney Temmy Ann Pieszak of the public defender's office requested that the materials be forwarded to Sawyer's office. By letter to Schwartz dated October 8, 2001 enclosing Pieszak's letter to him, Schoenhorn asked that Schwartz "handle this immediately." By letter dated October 12, 2001 from Chipman, an associate at GMF, to Pieszak, GMF asked that Pieszak call to discuss the method of delivery of the materials. On October 18, 2003, Chipman spoke to Grenger on the telephone to discuss the logistics of the delivery of the materials. By e-mail on October 18, 2001 GMF notified Grenger of Scott Sawyer's office that the files would be ready for delivery on or about October 23, 2001. In his affidavit, Schwartz avers that "on October 23, 2001, the files were delivered to the law office of Attorney Scott Sawyer." With these facts in mind, the court considers the defendants' claims in turn.
II. STANDARD OF REVIEW The standards for granting a motion for summary judgment are well established. Summary judgment may properly be granted where the pleadings, affidavits, and any other proof submitted establish that there exists no genuine issue of 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). A material fact is "one which will make a difference in the result of the case." Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 378, 374 A.2d 1051 (1977). When deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Barrett v. Danbury Hospital, 232 Conn. 242, 654 A.2d 748 (1995). However, when a motion for summary judgment is supported by affidavits and other documents, the non-moving adverse party, by affidavit or as otherwise provided by the Practice Book, "must set forth specific facts showing that there is a genuine issue for trial . . ." Kakadelis v. DeFabritis, 191 Conn. 276, 280, 464 A.2d 57 (1983) (Internal quotation marks omitted). Mere assertions of fact are insufficient to establish the existence of an issue of material fact and if the adverse party does not respond with competent evidence the court may rely on the movant's evidence. Id., 191 Conn. 280-81. Mere assertions are insufficient to establish the existence of an issue of material fact and cannot refute evidence that is properly presented to a court in support of a motion for summary judgment. Miller v. United Technologies Corp., 233 Conn. 732, 660 A.2d 810 (1995).Evidence in support of motions for summary judgment and in opposition to such motions must be admissible evidence. Evidence that is inadmissible cannot be relied upon for purposes of a motion for summary judgment. Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984); see Practice Book Sections 17-45, 17-46. If the non-moving party fails to respond with specific facts, the court is entitled to rely upon the facts stated in the affidavit of the movant. Id. If such affidavit, pleading or 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, the motion for summary judgment should be granted. Practice Book Section 17-49.
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts. (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).
III. CONVERSION
In counts twenty-nine and forty-three, the plaintiff alleges that Schoenhorn converted the trial materials when he "illegally and without authorization . . . took possession of [the plaintiff's] legal property." The plaintiff alleges in count three that GMF is likewise liable for conversion of the trial materials, which included certain cassette tape recordings. The plaintiff repeats the conversion allegations against Schwartz and Wolfe, individually, in counts nine and twenty-one.
"[C]onversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . In addition, conversion requires that the owner be harmed as a result of the unauthorized act." (Citations omitted; internal quotation marks omitted.) Howard v. MacDonald, 270 Conn. 111, 129 n. 8, 851 A.2d 1142 (2004). "Conversion requires a showing that the defendant's conduct was in fact unauthorized." Vanguard Engineering, Inc. v. Anderson, 83 Conn.App. 62, 67, 848 A.2d 545 (2004).
"A lawyer should hold property of others with the care required of a professional fiduciary." Statewide Grievance Committee v. Schaffer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0196758 (February 2, 2004, Hiller, J.) citing Rules of Professional Conduct 1.15, commentary. "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests . . ." Rules of Professional Conduct, 1.16. In this case, the defendants state that there is no genuine issue regarding Schoenhorn's possession of the trial materials because the Rules of Professional Conduct authorized him to safeguard the trial materials, lawfully acquired while representing the plaintiff, in anticipation of instructions from "[s]omeone from . . . the public defender's office," which the plaintiff stated would be forthcoming in exhibit A. According to his uncontradicted affidavit, Schoenhorn entrusted the trial materials to GMF, in part, "for safe keeping and for turn over to [the plaintiff's] subsequent counsel." The plaintiff does not "provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact" calling Schoenhorn's authority into question. (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 549-50, 791 A.2d 489 (2002). Accordingly, this court finds that Schoenhorn did not perpetrate "an unauthorized assumption and exercise of the right of ownership" over the trial materials. (Emphasis added.) See Howard v. MacDonald, supra, 270 Conn. 129 n. 8.
The remaining defendants, Schwartz, Wolfe and GMF, argue that once the plaintiff brought a malpractice action against Schoenhorn, Schoenhorn could transfer the trial materials to GMF, Schwartz and Wolfe as his "agents" to establish a defense.
They further assert that the plaintiff "incurred no loss" because "the [trial] materials have no market value." (Internal quotations omitted.) The defendants' arguments are wholly unsupported by legal authority.
"Claims that are not adequately briefed are considered abandoned." Liano v. Bridgeport, 55 Conn.App. 75, 77 n. 1, cert. denied, 252 Conn. 909 (1999). "[M]ere naked statements, unsupported by citations of authorities constitute inadequate briefing and merit no consideration . . . Bare assertions without citation to legal authority constitutes abandonment of the issue." (Citation omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Peck, Superior Court, judicial district of Hartford, Docket No. 91 0503797 (March 2, 1992, Burns, J.) ( 7 C.S.C.R. 376, 377). Thus, the court may deem these arguments abandoned. For purposes of clarification, however, the court notes that it is unaware of precedent requiring that conversion result in a strictly pecuniary harm. Rather, "[t]he essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 329, 852 A.2d 703 (2004). Schwartz, Wolfe and GMF, therefore, have not "[shown] the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] [them] to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). Based on the foregoing analysis, the court grants summary judgment on counts twenty-nine and forty-three of the complaint, each directed against Schoenhorn, and denies the defendants' motion as to the remaining conversion counts, counts three, nine and twenty-one.
IV. STATUTORY THEFT AND LARCENY
In counts twenty-seven and forty-one, the plaintiff alleges that Schoenhorn is liable for statutory theft of the trial materials by turning the trial materials over to GMF. The plaintiff also alleges statutory theft in counts one, seven and nineteen against GMF, Schwartz and Wolfe, respectively. The defendants argue that summary judgment on the statutory theft and negligence per se (larceny) claims is warranted because the evidence establishes a lack of the requisite level of intent to wrongfully take, obtain or withhold the trial materials, as required by General Statutes § 53a-119.
In counts twenty-five and thirty-nine, the plaintiff alleges that Schoenhorn committed "negligence per se" (larceny in the first degree) pursuant to General Statutes § 53a-122(a)(2). The plaintiff repeats the same allegations in counts five and twenty-three of the complaint against Schwartz and Wolfe, respectively. Although the facts alleged in the larceny counts mirror those alleged in the statutory theft counts, the defendants did not move for summary judgment on the larceny counts as duplicative or legally insufficient.
"[S]tatutory theft under [General Statutes] § 52-564 is synonymous with larceny [as provided in] General Statutes § 53a-119." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000). According to General Statutes § 53a-119, "[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." "[S]tatutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 544, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005). This court recently interpreted Marquis to hold that "[l]iability for conversion is a precondition for finding liability for statutory theft." Miller v. Wiremold Co., Superior Court, judicial district of Hartford, Docket No CV 04 4001913 (March 10, 2006, Keller, J.) citing News America Marketing In-Store, Inc. v. Marquis, supra, 544-46.
In their original memorandum in support of the motion for summary judgment, the defendants initially assert that the plaintiff did not plead an intent to deprive. The burden of proof for purposes of this motion, however, is on the defendants. "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Socha v. Bordeau, supra, 277 Conn. 585-86. The plaintiff has no obligation to establish the existence of a disputed factual issue until the defendants have satisfied their burden. See id., 586; Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005).
The defendants also argue that no reasonable trier of fact could conclude that they possessed the requisite intent. The court is mindful, however, that "[s]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Emphasis added; internal quotation marks omitted.) Morascini v. Commissioner of Public Safety, 236 Conn. 781, 809, 236 A.2d 1340 (1996). See also Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). The Appellate Court has specifically determined the intent to deprive required by § 53a-119, wherein larceny is defined, presents a question of fact. See State v. Pulley, 46 Conn.App. 414, 418, 699 A.2d 1042 (1997) (whether "defendant possessed intent to steal . . . was a question of fact for resolution by the jury . . . The only evidence relevant to the defendants' intent are statements made in affidavits attached by the defendants, which describe the defendants' handling of the trial materials. Although the affidavit testimony inferentially disavows a larcenous intent, "[t]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004). The affidavit testimony, though probative of the defendants' intent, is subject to interpretation and is not appropriately decided by way of summary judgment. In addition, because factual questions exist with respect to Schwartz's, Wolfe's and GMF's potential liability for conversion, the statutory theft counts against them necessarily raise related issues of fact. See Miller v. Wiremold Co., supra, Superior Court, Docket No. CV 04 4001913. By the same token, the court's decision to grant the defendants' motion on the conversion claims against Schoenhorn compels summary judgment as to counts twenty-five, twenty-seven, thirty-nine and forty-one, which allege statutory theft and larceny by Schoenhorn. See id. (requiring "[l]iability for conversion [as] a precondition for finding liability for statutory theft"). The court denies the defendants' motion as it applies to the plaintiff's claims of statutory theft and larceny against Schwartz, Wolfe and GMF in counts one, five, seven, nineteen and twenty-three.
V. BREACH OF IMPLIED IN FACT CONTRACT
In counts eleven and thirty-one of the complaint, the plaintiff alleges that Schwartz and Schoenhorn breached an implied contract by refusing to surrender the trial materials to newly appointed habeas counsel, attorney Scott Sawyer of the Sawyer Law Firm, and subsequently transferring the trial materials to GMF. In support of Sehoenhorn's alleged contractual commitment, the plaintiff relies on his correspondence with Schoenhorn regarding the disposition of the trial materials in exhibits A and B.
The defendants argue that "the terms and conditions of Schoenhorn's obligation to perform are too indefinite . . . to be enforceable." "The existence of a contract[, however,] is a question of fact to be determined by the trier on the basis of all the evidence." (Internal quotation marks omitted.) Heller v. D.W. Fish Realty Co., 93 Conn.App. 727, 731, 890 A.2d 113 (2006). Similarly, "[t]he question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 322, 885 A.2d 734 (2005). Here, the plaintiff's statement that "[s]omeone from and/or associated with the public defender's office will pick up [his] legal materials . . ." and Schoenhorn's agreement to "turn over the files to anyone from the public defender's office who contacts [him] on [the plaintiff's] behalf . . ." is not definitive because more than one interpretation of the language is possible. Thus, the existence of an implied contract or the terms allegedly contained therein cannot be decided as a matter of law.
Alternatively, the defendants argue that no breach of the alleged implied contract occurred because "no one from the public defender's office ever attempted to pick up the [trial] materials from Schoenhorn's office." Like issues of contract formation and contract interpretation, "[w]hether there was a breach of contract is ordinarily a question of fact." (Internal quotation marks omitted.) Choi v. Argenti, 91 Conn.App. 681, 684, CT Page 8874 881 A.2d 1053 (2005); see also Czaplicki v. Ogren, 87 Conn.App. 779, 785, 868 A.2d 61 (2005) (same).
The question of breach in the present case is a question of fact, which is complicated by an affidavit by Grenger, in which she avers: "[S]ometime on or about May 17, 2001, I spoke to someone at the law offices of Jon Schoenhorn and told them that Scott Sawyer had been appointed as special public defender for [the plaintiff] in [the plaintiff's] habeas corpus case and requested that the transcript be mailed to me at Scott Sawyer's office." (Emphasis added.) In the next paragraph, however, Grenger states m relevant part: "[I]t was not yet determined that Scott Sawyer would accept his appointment as special public defender for [the plaintiff] . . ." Thus, the defendants have not met their burden of proving the absence of a genuine issue of material fact as to whether attorney Scott Sawyer qualified as "[s]omeone from and/or associated with the public defender's office . . ." In sum, the defendants' attacks on the terms and the alleged breach of the implied contract are not properly advanced in the context of the present motion because "question[s] of fact . . . cannot appropriately be resolved by a summary judgment." Connecticut Bank Trust Co. v. Carriage Lane Association, 219 Conn. 772, 778, 595 A.2d 334 (1991). For that reason, the motion is denied as to count thirty-one. The motion is granted as to count eleven, however, because although the plaintiff purports to direct count eleven against Schwartz, the allegations contained therein reference no wrongdoing on Schwartz' part.
VI. TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY
In counts thirteen and thirty-three, respectively, the plaintiff alleges that Schwartz and Schoenhorn interfered with an earlier business arrangement for the timely transcription of taped recordings of police interviews contained in the trial materials. In counts fifteen and thirty-four, respectively, the plaintiff alleges that Schwartz and Schoenhorn "intentionally tried to encourage the Sawyer Law Firm not to . . . [represent] the plaintiff because of the size of the habeas case" by "misrepresent[ing] the amount of work . . . done in the habeas case."
"The elements of a cause of action for tortious interference with contract rights are well settled . . . [F]or a plaintiff to successfully prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . [A]n action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means . . . [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself." (Internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 502 n. 24, 656 A.2d 1009 (1995).
The plaintiff alleges and argues that Schoenhorn and Schwartz impeded transcription of the cassette tapes in retaliation to the action commenced by the plaintiff. Schwartz avers, however, that "the tapes could not be released in the absence of an express written authorization by [the plaintiff] or a court order [and that] no authorization was received . . ." He avers that the trial materials "were delivered to the law office of Attorney Scott Sawyer" consistent with Schoenhorn's and Pieszak's requests. The defendants also contend that their characterization of the trial materials as "voluminous" or as including "several boxes" during conversations with Grenger was not tortious or improper and cannot serve as the basis for a claim of tortious interference with business expectancy. The plaintiff nowhere clarifies the alleged intentional misrepresentation by Schoenhorn and Schwartz and offers no conflicting evidence that supports their alleged "improper motive" or establishes their conduct as fraudulent, malicious or otherwise tortious. See id. "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 550. Because no genuine issue of material fact exists regarding the defendants' allegedly tortious conduct and because the plaintiff provides no contradictory evidence, the defendants' motion is granted as to counts thirteen, fifteen, thirty-three and thirty-four of the complaint.
VII. CIVIL CONSPIRACY
The bulk of allegations in the plaintiff's complaint sound in civil conspiracy. In counts two and four of the complaint, the plaintiff alleges that GMF and the remaining defendants conspired to commit statutory theft and conversion of the trial materials. In counts six, eight, ten, twelve, fourteen and sixteen, the plaintiff alleges that Schwartz and the remaining defendants conspired to commit larceny, statutory theft, conversion, breach of implied in fact contract and tortious interference with business expectancy, respectively. In counts twenty, twenty-two and twenty-four, the plaintiff alleges that Wolfe and the remaining defendants conspired to commit statutory theft, conversion and larceny. In counts twenty-six, twenty-eight, thirty, thirty-two, thirty-five and thirty-six, the plaintiff alleges that Schoenhorn and the remaining defendants conspired to commit larceny, statutory theft, conversion, breach of implied in fact contract and tortious interference with business expectancy, respectively. Finally, in counts forty, forty-two and forty-four, the plaintiff alleges that the law firm of Schoenhorn Associates and the remaining defendants conspired to commit larceny, statutory theft and conversion.
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 277 Conn. 617, 635-36, 894 A.2d 240 (2006). As discussed above, the allegations of Schoenhorn and his law firm's conversion in counts twenty-nine and forty-three, the allegations of their statutory theft and negligence per se (larceny) in counts twenty-five, twenty-seven, thirty-nine and forty-one, the allegations of their tortious interference with business expectancy in counts thirty-three and thirty-four, the allegations of Schwartz's tortious interference with business expectancy in counts thirteen and fifteen and the allegations of his breach of implied in fact contract in count eleven raise no genuine issue of material fact. As a consequence, the corresponding allegations that Schwartz and Schoenhorn separately entered into a civil conspiracy lack the essential intent on their part to combine with one or more persons "to do a criminal or unlawful act or a lawful act by criminal means." See id., 636. This is significant because "[t]here is . . . no independent claim of civil conspiracy . . . [T]o state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Internal quotation marks omitted.) Id. Consequently, the court grants the defendants' motion as to counts fourteen, sixteen, twenty-six, twenty-eight, thirty, thirty-five, thirty-six, forty and forty-four because the underlying torts in each count are no longer viable causes of action. In addition, summary judgment is also appropriate with respect to the allegations of civil conspiracy to breach an implied in fact contract in counts twelve and thirty-two against Schwartz and Schoenhorn, because the elements of a civil conspiracy are not legally sufficient. The plaintiff fails in that count to adequately allege that the defendants conspired to perform an unlawful act or a lawful act by criminal means applicable to a substantive tort. Id. See also McHeny v. Lubell, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-0346842S (August 2, 2001, Skolnick, J.), rev'd on other grounds, McHenry v. Nussbaum, 79 Conn.App. 343, 830 A.2d 333 (2003).
The remaining civil conspiracy allegations in counts two, four, six, eight, ten, twenty, twenty-two and twenty-four involve genuine issues of material fact as to the defendants' state of mind, particularly knowledge and intent, and are not properly decided in the context of the present motion. "To establish the liability of a party [for civil conspiracy], it is necessary to prove that the party was actuated by the same wrongful intent and had substantially the same knowledge of the wrongful means and purposes as the other participants in the conspiracy." (Emphasis added.) See v. Bridgeport R.C. Diocesan Corp., Superior Court, judicial district of Bridgeport, Docket No. CV93 0300948 (July 31, 1997, Thim, J.) ( 20 Conn. L. Rptr. 271, 277) citing Williams v. Maislen, 116 Conn. 433, 438, 165 A. 455 (1933). As explained, "summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated." Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 842, 888 A.2d 104 (2005). Compare DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 690 n. 14, 846 A.2d 849 (2004) ("when the facts alleged permit only one conclusion regarding an actor's state of mind, that issue is appropriately resolved by way of summary judgment").
VIII. CONCLUSION
The defendants' motion for summary judgment is granted as to counts eleven, twelve, thirteen, fourteen, fifteen, sixteen, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six, thirty-nine, forty, forty-one, forty-two, forty-three and forty-four. The motion is denied as to the remaining seventeen counts of the complaint: counts one, two, three, four, five, six, seven, eight, nine, ten, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four and thirty-one. For purposes of clarity, a list of the remaining counts is attached.
LIST OF REMAINING COUNTS OF THE COMPLAINT
Count One — Statutory Theft (GMF)
Count Two — Conspiracy to Commit Statutory Theft (GMF)
Count Three — Tort of Conversion (GMF)
Count Four — Conspiracy to Commit the Tort of Conversion (GMF)
Count Five — Larceny (53a-122(a)(2)) in the First Degree (Schwartz)
Count Six — Civil Conspiracy — Negligence Per Se — to Commit Larceny in the First Degree (Schwartz)
Count Seven — Statutory Theft (Schwartz)
Count Eight — Conspiracy to Commit Statutory Theft (Schwartz)
Count Nine — Tort of Conversion (Schwartz)
Count Ten — Conspiracy to Commit the Tort of Conversion (Schwartz)
Count Nineteen — Statutory Theft (Wolfe)
Count Twenty — Conspiracy to Commit Statutory Theft (Wolfe)
Count Twenty-One — Tort of Conversion (Wolfe)
Count Twenty-Two — Conspiracy to Commit the Tort of Conversion (Wolfe)
Count Twenty-Three — Larceny(53a-122(a)(2)) in the First Degree (Wolfe) Count Twenty-Four — Civil Conspiracy — Negligence Per Se — to Commit Larceny in the First Degree (Wolfe)
Count Thirty-One — Breach of Contract Implied in Fact (Schoenhorn)