Opinion
No. X02-UWY-CV09-5015180
September 16, 2011
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT #167
FACTS AND PROCEDURAL HISTORY
The plaintiffs, Charles Barrow ("Barrow") and Harbor Marketing, Inc. ("Harbor"), a business owned and operated by Barrow, commenced the present action by service of process against the defendants, Thomas Walsh and Brody Wilkinson, P.C., on December 1, 2008. The operative complaint is the first amended version filed on November 2, 2010. It alleges the following facts. Barrow was approached by Douglas Newman and Scott Holmes on September 11, 2005 about replacing John Kinney as a member in two new business entities, a car wash and a related real estate venture. According to the resulting agreement, which was closed on December 1, 2005, Harbor would invest in the two entities in exchange for a 15 percent share in both of them; Harbor would provide loans to the two entities; and both Barrow and Harbor would guarantee notes from the two entities to Citizens Bank. The defendants acted as counsel to the plaintiffs and had previously represented them in other matters. The defendants had also previously represented Newman, Holmes, the two entities and certain of Newman's other business entities. At all times relevant to the present action, they represented the plaintiffs, Newman, Holmes and the two entities until the plaintiffs retained other counsel in March 2007.
Plaintiffs allege that contrary to the representations made to them by the defendants, the two entities were not viable, and they were therefore damaged by their participation in the investment and loan transaction. Their complaint sounds in two counts against both defendants. The first count is for legal malpractice and alleges that the defendants were negligent in their representation of the plaintiffs because they failed, in part, to disclose certain information and provide certain advice. The second count alleges negligent misrepresentation by virtue of an October 7, 2005 letter of understanding from the defendants to the plaintiffs in which the defendants specifically represented to the plaintiffs that they could not advise any of the parties involved in the investment and loan transaction if their interests ever became adverse. The plaintiffs allege that representation was false and negligent because the parties' interests were adverse at all times relevant to the present action.
The defendants filed the present motion for summary judgment, a memorandum of law in support thereof and exhibits on April 18, 2011. The plaintiffs in turn filed an opposition to the motion, a memorandum of law in support thereof and exhibits on May 25, 2011. The defendants then filed a reply memorandum and exhibits on June 8, 2011. The court heard the matter on June 13, 2011.
DISCUSSION
The defendants move for summary judgment on the following grounds. First, they are entitled to a judgment as a matter of law on the entirety of the complaint because there is no genuine issue of material fact about whether they breached the applicable standard of care or caused the plaintiffs' alleged damages. A plaintiff in a legal malpractice action must provide expert witness testimony in order to establish the applicable standard of care and whether the defendant caused the plaintiffs' alleged damages. The defendants contend the plaintiffs in the present action are unable to provide such testimony because David Erdos, their disclosed expert for their legal malpractice allegations, is unqualified, cannot articulate the applicable standard of care or causation and lacks an adequate factual foundation for his opinions. They claim this is evident in the opinions that he rendered during his deposition, and that because of this his expert witness testimony is inadmissible, and this in turn entitles defendants to a judgment as a matter of law because the plaintiffs lack the expert witness testimony required to support their legal malpractice action.
In support of the present motion, the defendants have submitted transcript pages from Erdos' deposition (Def.'s Ex. H); correspondence among the parties involved in the investment and loan transaction (Def.'s Ex. 1, 2, 3); transcript pages from Barrow's deposition (Def.'s Ex. 1, 2, 3, 4, C); the North Branford Car Care, LLC operating agreement (Def.'s Ex. 4); an affidavit in which defense counsel attests to the improper and irregular conduct of the plaintiffs, their counsel and Erdos in preparing for and conducting days three and four of Erdos' deposition (Def.'s Ex. 5); transcript pages from Walsh's deposition (Def.'s Ex. A); transcript pages from Newman's deposition (Def.'s Ex. B, D); transcript pages from Holmes' deposition (Def.'s Ex. E); transcript pages from the deposition of Walter Leask, Barrow's accountant (Def.'s Ex. F); and transcript pages from the deposition of Christopher Neubert, Barrow's financial advisor (Def.'s Ex. G).
Furthermore, the defendants are entitled to a judgment as a matter of law on both counts of the complaint because the testimony that Erdos gave on days three and four of his deposition is irrevocably tainted and would be extremely prejudicial to the defendants if admitted into evidence. This testimony, in which Erdos expressed opinions that were completely different from those he had expressed on days one and two of his deposition, is tainted because it is the product of improper coaching and improper preparation. Defendants ask that in the event the court denies the present motion, it should nonetheless enter an order limiting Erdos' testimony to the opinions he expressed on days one and two of his deposition.
According to defense counsel's affidavit, plaintiffs' counsel refused to immediately proceed with his cross-examination of Erdos after defense counsel completed his direct examination on February 8, 2011, day two of Erdos' deposition. Def.'s Ex. 5. Plaintiffs' counsel did not begin his cross-examination of Erdos until more than three weeks later. Id. During the interim, Erdos had lengthy meetings with both the plaintiffs and their counsel and reviewed materials that he had not reviewed before either his disclosure as an expert or days one and two of his deposition. Id. He subsequently rendered opinions during days three and four of his deposition that were very different from those he had rendered on days one and two. Id. Neither Barrow nor Erdos would provide any details of their meetings when they were asked to do so during their respective depositions. Id.
The final ground on which the defendants move for summary judgment is that they are entitled to a judgment as a matter of law on count two, even if the court denies the present motion with respect to the entirety of the complaint, because there is no genuine issue of material fact about whether the representation at issue was false and therefore a negligent misrepresentation.
The plaintiffs oppose the present motion by arguing first that it is procedurally improper because it seeks to resolve evidentiary issues that should instead be raised by a motion to preclude. Second, they contend Erdos is qualified, has sufficiently articulated both the applicable standard of care and causation and has based his opinions upon an adequate factual foundation. Third, the defendants lack legal support for their argument that the testimony given by Erdos on days three and four of his deposition is irrevocably tainted and would therefore be extremely prejudicial to the defendants if admitted into evidence. Plaintiffs also argue that Erdos, the plaintiffs and their counsel prepared for days three and four of Erdos' deposition in standard fashion, and the defendants could have requested the court to order that Erdos be sequestered or prevented from engaging in additional preparation. Finally, the negligent misrepresentation count (count two) should survive the present motion because "[t]he Defendant after putting his representation in writing in a letter to the Plaintiffs did not act as he represented he would and the plaintiff is entitled to establish the elements of negligent misrepresentation at trial through his evidence."
In support of their opposition to the present motion, the plaintiffs submit the following exhibits: transcript pages from Barrow's deposition (Pl.'s Ex. A); transcript pages from Walsh's deposition (Pl.'s Ex. B); the October 7, 2005 letter of understanding from Walsh to Barrow (Pl's Ex. C); a subordination agreement between Barrow and Citizens Bank (Pl.'s Ex. E); an affidavit of plaintiffs' counsel (Pl's Ex. H); and transcript pages from Erdos' deposition (Pl's Ex. I).
"Summary judgment is a method of resolving litigation when 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 a judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). "[T]he [movant] is required to support its motion with supporting documentation . . ." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents . . . be made under oath or be otherwise reliable." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 233, n. 10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
"[T]rial judges should exercise great care in granting motions for summary judgment. A litigant has a right to a trial where there is the slightest doubt as to the facts, and a denial of that right is reviewable; but refusal to grant a summary judgment is not reviewable. Such a judgment, wisely used, is a praiseworthy timesaving device. But, although prompt dispatch of judicial business is a virtue, it is neither the sole nor the primary purpose for which courts have been established." (Internal quotation marks omitted.) Manufacturers Small Business Investment Co. of Connecticut, Inc. v. Empire Auto Body, Inc., 3 Conn. Cir.Ct. 613, 620, 222 A.2d 592 (1966). "[S]ummary judgment procedure was designed essentially to provide for the disposal of frivolous defenses and to prevent parties from using formal pleadings as instruments of delay . . . [T]he procedure was not intended as a substitute for the trial of issues at an evidentiary hearing, even though the parties insist that they are entitled to judgment as a matter of law." Pine Point Corp. v. Westport Bank and Trust Co., 164 Conn. 54, 55-56, 316 A.2d 765 (1972).
According to the defendants, they are not moving for summary judgment on the ground "that there are no issues of disputed fact with respect to the underlying merits of this case. Rather, this motion is predicated on . . . two specific bases . . . first, summary judgment is proper because Plaintiffs are unable to offer sufficient expert testimony to sustain their burden of proof, as is required in a legal malpractice action in Connecticut; and second, there can be no negligent misrepresentation in the absence of a false statement. If Plaintiffs cannot get past these two preliminary hurdles . . . then there is no need to address any of the underlying issues of fact."
As noted above, count one alleges legal malpractice. "[P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services." (Internal quotation marks omitted.) Vona v. Lerner, 72 Conn.App. 179, 187, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003). "[A] plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages." Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998). Furthermore, "the plaintiff must produce expert testimony (1) that a breach of the professional standard of care has occurred, and (2) that the breach was the proximate cause of the injuries suffered by the plaintiff." Somma v. Gracey, 15 Conn.App. 371, 374-75, 544 A.2d 668 (1988). "The requirement of expert testimony in legal malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and then evaluate the defendant's actions in light of that standard." Vona v. Lerner, supra, 72 Conn.App. 188.
"To be qualified as an expert witness in a legal malpractice matter, an attorney must be found to possess special knowledge beyond that exhibited by every attorney simply as a result of membership in the legal profession . . . The test is whether the proposed expert knows the applicable standard of care and can evaluate the defendant's conduct against that standard . . . Our Supreme Court has held that an expert must show more than a casual familiarity with the standards of the specialty in question . . . It is the knowledge that the witness possesses, not the source of that knowledge, that determines eligibility to provide expert testimony . . . In order to render an expert opinion, the witness must be qualified to do so, and there must be a factual basis for the opinion." (Citations omitted; internal quotation marks omitted.) Glaser v. Pullman Comley, LLC, 88 Conn.App. 615, 623, 871 A.2d 392 (2005).
The defendants cite to several cases to demonstrate that a motion for summary judgment may be granted in a legal malpractice action when the plaintiff has not provided sufficient expert witness testimony. The cases to which the defendants cite, however, are distinguishable. See, e.g., Marciano v. Kraner, 126 Conn.App. 171, 10 A.3d 572, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (motion for directed verdict granted where plaintiff failed to introduce admissible expert witness testimony); Dixon v. Bromson Reiner, 95 Conn.App. 294, 898 A.2d 193 (2006) (motion for summary judgment granted where plaintiff presented no expert witness testimony); Anderson v. Schoenhorn, 89 Conn.App. 666, 874 A.2d 798 (2005) (motion for summary judgment granted where plaintiff disclosed five expert witnesses, three of whom refused to testify and two of whom were defendants, whose ability to serve in such capacity remained undecided and whose opinions did not support plaintiff's position); Celentano v. Grundberg, 76 Conn.App. 119, 818 A.2d 841, cert. denied, 264 Conn. 904, 823 A.2d 1220 (2003) (motion for directed verdict granted where plaintiff presented no expert witness testimony); Vona v. Lerner, supra, 72 Conn.App. 179 (motion for directed verdict granted where plaintiffs provided insufficient expert witness testimony during trial on issue of causation); Solomon v. Levett, 30 Conn.App. 125, 618 A.2d 1389 (1993) (motion for directed verdict granted where plaintiff presented no expert witness testimony); Fortin v. Hartford Underwriters Ins. Co., Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 03 4034596 (February 19, 2009, Shapiro, J.) (motion for summary judgment granted where plaintiff could not establish elements of legal malpractice claim after court granted concurrently filed motion to preclude plaintiff's expert witness); Demoraes v. Nakian, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002049 (August 19, 2008, Tobin, J.) (judgment entered for defendant because plaintiff's evidence, which included expert witness testimony, was insufficient to establish causation); Rachstein, Norman Buchman, LLP v. Sakon, Superior Court, judicial district of New Britain, Docket No. CV 02 0515919 (December 19, 2005, Shapiro, J.) (motion for summary judgment granted where plaintiff disclosed expert in conclusory fashion, without reference to qualifications and proposed testimony on standard of care and causation, and where plaintiff provided no evidence of expert's opinion in opposing motion).
The defendants in the present action are not moving for a directed verdict on the ground that the plaintiffs' trial evidence, including Erdos' expert witness testimony, cannot support the plaintiffs' legal malpractice claim. Nor have the defendants filed any evidentiary motions to preclude the admission of Erdos' expert witness testimony. The defendants instead ask the court, on a motion for summary judgment, to determine the admissibility of any expert witness testimony that Erdos has given and may later give, not only with respect to the present motion but also with respect to all future proceedings in the present action. A court's function on a motion for summary judgment is limited to "determin[ing] whether there is a genuine issue as to any material fact, but not to decide that issue if it does exist until the parties are afforded a full hearing." Town Bank and Trust Co. v. Benson, 176 Conn. 304, 306, 407 A.2d 971 (1978). Determining whether Erdos is able, properly prepared and qualified to render expert opinions on, among other things, the duty and causation elements of the plaintiffs' legal malpractice claim is not akin to determining whether there are any genuine issues regarding any material facts underlying the claim. Furthermore, the cases upon which the defendants rely for the proposition that they may seek summary judgment on the ground of insufficient expert witness testimony are inapposite, because they involve plaintiffs who, either affirmatively or by virtue of a motion to preclude, failed to offer any expert witness testimony. See, e.g., Fortin v. Hartford Underwriters Ins. Co., supra, Superior Court, Docket No. X04 CV 03 4034596; Rachstein, Norman Buchman, LLP v. Sakon, supra, Superior Court, Docket No. CV 02 0515919. The court thus declines to consider the admissibility of Erdos' expert witness testimony on the present motion, given the lack of precedent for doing so and the well established summary judgment standards that limit the scope of the court's consideration.
In contrast, "[t]he purpose of a motion in limine is to exclude irrelevant, inadmissible and prejudicial evidence from trial . . . A trial court should exclude evidence if it would create undue prejudice and threaten an injustice if admitted." (Citation omitted; internal quotation marks omitted.) State v. La Sacco, 26 Conn.App. 439, 444, 602 A.2d 589 (1992).
The court likewise will not address the defendants' argument that they are entitled to a judgment as a matter of law on both counts of the complaint due to the impropriety of Erdos' testimony from days three and four of his deposition. The question of whether the subject deposition testimony is irrevocably tainted is different than the question of whether genuine issues of material fact exist with respect to both counts of the complaint. Answering it on the present motion would thus be procedurally inappropriate. The defendants rely on Practice Book § 13-4 in arguing their entitlement to summary judgment due to the impropriety of the subject deposition testimony. Practice Book § 13-4(h) provides, however, that "[a] judicial authority may, after a hearing, impose sanctions on a party for failure to comply with the requirements of this section. An order precluding the testimony of an expert witness may be entered only upon a finding that (1) the sanction of preclusion, including any consequence thereof on the sanctioned party's ability to prosecute or to defend the case, is proportional to the noncompliance at issue, and (2) the noncompliance at issue cannot adequately be addressed by a less severe sanction or combination of sanctions." Therefore, the proper procedural vehicle for seeking sanctions against the plaintiffs with respect to the subject deposition testimony would have been an evidentiary motion, such as a motion to preclude or a motion for sanctions.
The court's analysis here should not be considered as its acceptance of the plaintiffs' argument that Erdos' testimony on days three and four of his deposition and the circumstances surrounding it are unobjectionable.
The defendants have represented to the court that the proximity between the delayed completion of Erdos' deposition and the scheduling order deadline for the filing of dispositive motions necessitated the filing of a motion for summary judgment instead of an evidentiary motion. Their position is unavailing. Procedural impropriety is not excused by strategic decision making. Furthermore, the defendants could have filed the present motion with a related motion to preclude, as did the defendant in Fortin v. Hartford Underwriters Ins. Co., supra, Superior Court, Docket No. X04 CV 03 4034596.
The court will now address the motion with respect to count two of the complaint, which sounds in negligent misrepresentation. "Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). "The test of negligent misrepresentation involves the breach of a duty to exercise reasonable care in communicating information upon which another may reasonably be expected to rely in conducting their affairs. Under this principle, one making a representation or communication may even believe [the] representation or communication to be true, but because of his lack of reasonable care in making that representation or communication it is in fact false." Martineau v. LaRosa, Superior Court, judicial district of New Haven, Docket No. FA 89 0279189 (August 23, 2005, Frazzini, J.). "[F]alsity is an essential element of a negligent misrepresentation claim . . ." Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 792, 734 A.2d 112 (1999).
Implicit in the defendants' first ground for summary judgment is the argument that count two properly sounds in legal malpractice, not negligent misrepresentation, and therefore requires the plaintiff to offer expert witness testimony on the issues of duty and causation. "A fundamental tenet in our law is that the plaintiff's complaint defines the dimensions of the issues to be litigated." Pergament v. Green, 32 Conn.App. 644, 650, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). The court concludes, based on its examination of the complaint, that count two properly sounds in negligent misrepresentation, not legal malpractice, given that the plaintiffs base their theory of liability upon how they were injured by the falsity of the subject representation, not by how the defendants failed to exercise due care in providing legal services to the plaintiffs.
"Although the general rule is that a misrepresentation must relate to an existing or past fact, there are exceptions to this rule, one of which is that a promise to do an act in the future, when coupled with a present intent not to fulfill the promise, is a false representation." Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970). "The law is well established that a representation of one's intent to do an act which is false at the time it was made constitutes a misrepresentation. Meyers v. Cornwell Quality Tools, Inc., 41 Conn.App. 19, 29 (1996). See also Restatement (Second), Torts § 525, comment (c)." Crist v. O'Keefe Associates, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 01 0176326 (August 31, 2005, Alander, J.). "Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact . . ." (Internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 502, 977 A.2d 228, cert. granted in part, 116 Conn.App. 483, 977 A.2d 228 (2009).
The specific representation at issue is contained in a letter from Walsh to Barrow and his wife dated October 7, 2005, in which Walsh wrote: "You have requested that I represent North Branford Car Care, L.L.C. and 2381 Foxon Road, L.L.C. (the `Company') with respect to a loan by you to the Company as well as your potential investment in the Company. As we are both aware, this firm has acted as your personal legal counsel as well as having served as legal counsel to the Company and to one of its owners, Doug Newman. As such, to the extent your interests in this transaction should later become adversarial to those of the Company and its owners, this firm can neither advise you, the Company nor Mr. Newman with respect to any such disagreements." (Emphasis added.) Def.'s Ex. 2; Pl.'s Ex. C. The plaintiffs allege that they were injured by their reliance upon the representation because they believed that they would not need to seek independent counsel until the defendants ended their involvement in the investment and loan transaction.
The defendants argue that there is no genuine issue of material fact about whether the representation was false because the parties were never engaged in litigation, (i.e., an "adversarial," setting) at any time relevant to the present action. They also argue that there is no genuine issue of material fact about whether the plaintiffs reasonably relied upon the alleged misrepresentation to their detriment, because Barrow was repeatedly told that he should have another lawyer review the documentation for the investment and loan transaction. The plaintiffs in turn argue that the defendants are not entitled to summary judgment on count two because "adversarial" can be understood to mean "adverse," the parties' interests were adverse at all times relevant to the present action and genuine issues of material fact therefore remain with respect to the falsity of the subject representation.
In support of this argument, the plaintiffs cite to Kuhns v. Jacobson, Brown, Tillinghast, Lahan King, P.C., Superior Court, judicial district of Litchfield, Docket No. CV 94 0064249 (February 8, 1995, Pickett, J.) ( 13 Conn. L. Rptr. 442, 445), in which the court challenged the plaintiffs' description of their alleged transactions as "non-adversarial," for the reason that "at least one commentator has noted that [t]ransactions involving contractual negotiations do involve parties with adverse interests." (Internal quotation marks omitted.)
In Murray v. Santa Fuel, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 97 0342601 (April 1, 1999, Skolnick, J.), the court denied the defendant's motion for summary judgment on the plaintiff's negligent misrepresentation claim where the plaintiff alleged that he was fraudulently induced to accept the defendant's employment offer by the subject representations. The defendant moved for summary judgment on the ground that there was "no evidence that any of the statements . . . were false and known to be false when made," given that the subject representations were "inspirational or cheerleading comments rather than factual statements." Id. The court concluded that it "need not decide whether the allegations . . . state a claim for . . . negligent misrepresentation. Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact . . . The court cannot make factual rulings in favor of the defendant as a matter of law unless the alleged misrepresentations are so obviously deficient that no reasonable person would find in favor of the plaintiff. See Miller v. United Technologies Corp., [ 233 Conn. 732, 751, 660 A.2d 810 (1995)]. Because reasonable minds can differ over the import of the alleged misrepresentations here, the defendant's motion for summary judgment . . . is denied." (Citation omitted; internal quotation marks omitted.) Id.
The court in the present action similarly concludes that reasonable minds could differ over the import of the subject representation, given the competing interpretations offered by the parties on the present motion, and the reasonableness of the plaintiffs' alleged reliance upon it. "Whether or not . . . representations contained false information is a question of fact . . . Furthermore, questions of motive, intent and subjective feelings and reactions are particularly inappropriate for resolution in a motion for summary judgment. See, e.g., Nolan v. Borkowski, 206 Conn. 495, 504-05, 538 A.2d 1031 (1988)." Pesce v. Connecticut National Bank, Superior Court, judicial district of Litchfield, Docket No. 0054542 (July 21, 1992, Dranginis, J.). The present motion must therefore be denied with respect to count two because the defendants have not met their initial burden of "making a showing that it is quite clear what the truth is" with respect to the falsity of the subject representation and whether the plaintiffs reasonably relied upon it, to their detriment.
CONCLUSION
The defendants have not met their initial burden because they have not established that no genuine issues of material fact exist and that they thus are entitled to a judgment as a matter of law. Accordingly, their motion for summary judgment on the entirety of the complaint is denied. Also, the relief requested by the defendants to limit the expert's opinion testimony to days one and two of his deposition is denied without prejudice as this motion is not the appropriate vehicle for granting such relief.