Opinion
No. CV 09 5011547 S
June 7, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (126.00), DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (132.00)
PROCEDURAL HISTORY AND FACTS ALLEGED BY THE PARTIES
This action for breach of contract and negligence was commenced by Christine McCullough against her insurer, Encompass Indemnity Company (Encompass), concerning an insurance claim she made after her home was destroyed by fire. While the matter was pending, McCullough filed a petition in bankruptcy. John J. O'Neil, trustee in bankruptcy of the estate of Christine McCullough, is the plaintiff in the present action, which was originally brought by Christine McCullough. The motions which are the subject of this memorandum of decision were filed while McCullough was the plaintiff. For the sake of simplicity, the court will refer to the current and predecessor plaintiffs as McCullough.
On February 8, 2011, McCullough moved to substitute O'Neil as the party plaintiff in this action (#144) after she filed a petition in bankruptcy. The defendant did not object. The court granted the motion on February 22, 2011.
McCullough claims that, after she had entered into a purchase and sale agreement to replace her damaged property, Encompass informed her that it would require her to finance a portion of the purchase price before it would pay the replacement cost coverage due her. McCullough asserts that this is a breach of contract. McCullough also claims that the defendant was negligent with respect to the handling of her insurance claim. As one of several special defenses, Encompass asserts that it was never obligated to make any replacement cost payment under the policy because McCullough did not first "complete replacement" of the home as required under the policy.
McCullough has moved for summary judgment on the breach of contract claim asserting that she became entitled to the payment of replacement cost coverage when she elected to replace the property at a new location. Encompass, in turn, has moved for summary judgment on both of McCullough's claims, arguing that it is not liable because (1) McCullough never completed replacement of the property as required by the policy and (2) her injuries either were not caused by any breach of contract by Encompass or are too speculative to be recoverable. The court finds, for the reasons set forth below, that neither the plaintiff nor the defendant is entitled to summary judgment.
I. Claims of the Plaintiff
The second amended complaint (145.00) is the operative complaint. McCullough alleges, explicitly or implicitly, as follows: McCullough had a homeowner's insurance policy with the defendant (policy), for which she had paid all required premiums, and which was effective from February 21, 2006, until February 21, 2007. On January 8, 2007, McCullough resided at 48 Buell Street, New Britain, Connecticut (property) in a dwelling that she owned and that was covered under the policy. On that day, the dwelling was destroyed by a fire.
When the motions for summary judgment were filed, the first amended complaint (122.00) was the operative complaint. On March 7, 2011, the plaintiff filed a motion for leave to file the second amended complaint (145.00), to which the defendant did not object. The second amended complaint amended the first amended complaint to reflect the substitution of O'Neil as the party plaintiff in the action and to add additional allegations of injury. Pursuant to Practice Book § 10-60, the second amended complaint became operative on March 22, 2011. Accordingly, the motions for summary judgment will be evaluated as to the second amended complaint. Cf. Miller v. Fishman, 102 Conn.App. 286, 292, 925 A.2d 441 (2007) (stating that proposed amendment to complaint would affect whether pending motion for summary judgment should be granted).
Encompass deemed the destruction by fire to be a covered loss under the terms of the policy. Pursuant to the policy, Encompass paid McCullough $247,500 as the "actual cash value" of the dwelling. This money was used to pay for debris removal costs and to pay off the outstanding mortgage that McCullough had on the property.
David Bostrom is a claim representative employed by Encompass. McCullough and Bostrom discussed her options under the policy with respect to compensation for her losses. Bostrom counseled McCullough that, if she were to sell the property and purchase a replacement property at a different location, she would be entitled to up to $442,100 of coverage. He arrived at that figure by subtracting the actual cash value, $247,500, from the total coverage available under the policy, $689,600. Bostrom also told her that she would be entitled to $547,331.26 in coverage if she rebuilt the destroyed dwelling on the property.
In reliance on the representations of Bostrom, McCullough elected to sell the property and purchase a replacement property. Under the plain terms of the policy, because McCullough elected to take this course of action, she was entitled to: "no more than the least of the following amounts:
a. The dwelling replacement value shown in the Coverage Summary, [or] . . .
b. The replacement cost of that part of the building damaged for like construction and use on one same premises." (Second Amended Complaint, ¶ 10.)
McCullough entered into a purchase and sale contract for a replacement property. She put down deposit money toward the purchase. Subsequently, Encompass changed its position regarding the coverage available to McCullough, informing her that she would have to finance $247,500 of the purchase price of the replacement property at closing before it would pay any of the $442,100 to which she was entitled. This new position was contrary to McCullough's understanding of the provisions of the policy; she was under the impression that the $247,500 payment had already been accounted for by the defendant when it reduced her total limit from $689,600 to $442,100. Encompass justified its position to McCullough by citing policy language that was no longer operative, having been superseded by an endorsement.
After McCullough entered into the purchase and sale contract, Bostrom informed McCullough that he had neglected to tell her that the amount of coverage would have to be reduced further by the amount of the purchase price of the replacement property representing the value of the land, as the policy only covered the loss of the dwelling and not the land. He also admitted that he might not have adequately articulated the terms of the policy when he explained her options.
As a result of Bostrom's misrepresentations and misinterpretation of the policy and the failure of Encompass to pay the full amount of money due, McCullough did not close on the purchase and sale contract, thereby losing her deposit money. Moreover, she has been forced to live in a rental property, thereby foregoing tax credits, accruing additional living expenses, and losing the opportunity to build equity. In addition, she has lost the ability to purchase a home at an advantageous price, the use of and ability to replace the contents of the dwelling that were destroyed. Lastly, she has had to file a petition in bankruptcy.
II. Claims of the Defendant
In its answer and special defense (120.00), Encompass alleges the following material facts: The policy provides: "We will pay no more than the actual cash value of the damage until actual repair or replacement is complete." (Answer and Special Defense, p. 3-4.) Although McCullough elected to replace the loss by purchasing a replacement property, she failed to actually complete replacement and, thereby, trigger entitlement to more than the actual cash value payments already made. Therefore, McCullough's allegations are not ripe.
LEGAL STANDARD
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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . .
(Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010).
The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific fact . . . which contradict those stated in the movant's affidavits and documents . . . The opposing party to a motion for 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.' (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464-65, 976 A.2d 23 (2009).
Milliun v. New Milford Hospital, 129 Conn.App. 81, 92-93 (2011).
ANALYSIS I. Jurisdiction
In its reply memorandum, Encompass argues that McCullough's claims are not ripe because McCullough never completed replacement of the property and, therefore, the duty to make the payments never arose. For the following reasons, the court finds that the claims are ripe for review.
An argument that a claim is not ripe for review is an attack on the subject matter jurisdiction of the court. See Keller v. Beckenstein, 122 Conn.App. 438, 443, 998 A.2d 838 (2010). "[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
"[T]he rationale of the ripeness doctrine is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Thus, a court must be satisfied that the case before it does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, supra, 122 Conn.App. 443.
McCullough alleges, inter alia, that Encompass breached the policy by refusing to pay McCullough the replacement cost coverage due to her, which caused McCullough to breach the purchase and sale contract and suffer the damages of which she complains. This presents neither a hypothetical injury nor a contingent claim on its face.
Even if Encompass' argument is correct that McCullough never completed replacement of the property, and thus never actually triggered entitlement to any further payment of replacement cost coverage, this would not render McCullough's claim premature. In such a case, McCullough's claim could proceed under a theory of anticipatory breach. "An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived . . . Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance." (Internal quotation marks omitted.) Land Group, Inc. v. Palmieri, 123 Conn.App. 84, 92, 1 A.3d 234 (2010).
Under an anticipatory breach theory, McCullough's alleged failure to perform the condition of completing replacement would be excused and she could be presently entitled to damages. Restatement (Second), Contracts § 255 (1981), provides: "Where a party's repudiation contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused." Comment (a) of § 255 provides in relevant part: "No one should be required to do a useless act, and if, because of a party's repudiation, it appears that the occurrence of a condition of a duty would not be followed by performance of the duty, the non-occurrence of the condition is generally excused." See, e.g., Funaro v. Baisley, 57 Conn.App. 636, 641, 749 A.2d 1205 (2000) (upholding trial court's determination that, where obligor under option contract indicated refusal to honor such option, obligee was excused from exercising option in manner technically required by option contract, because such act would have been futile), cert. denied, 254 Conn. 902, 755 A.2d 218 (2000).
There is an exception noted in Comment (b), which provides in relevant part: "Under [Restatement (Second), Contracts] §§ 237 and 238, it may be required as a condition of one party's duty that the other party perform or offer to perform his duty. A repudiation by the first party will, in those circumstances, discharge that duty of the other party . . . eliminating the requirement that the other party perform or offer to perform it. The discharge has the additional effect of excusing the non-occurrence of the condition. But non-occurrence of the condition is excused only if the duty is discharged." There is no allegation that McCullough has not performed any of her duties under the policy and thus, this exception would not apply.
McCullough alleges that, after she entered into the purchase and sale contract, Encompass informed her that it would require her to finance $247,500 of the purchase price before it would make any more payments. The terms of the policy as alleged by McCullough do not permit Encompass to make this assertion. Thus, the allegation could be interpreted as Encompass' repudiation of its potential future duty if proceeding to closing was required to trigger entitlement to payment. In such a situation, proceeding to closing would have been futile as Encompass had indicated that it would breach the agreement. Thus, Count One is ripe for review whether or not replacement is complete.
Illustration I of § 255 is helpful to illustrate the concept: "A, an insurance company, issues a policy insuring B against theft, and providing that no payment will be made unless written notice is given within 60 days after loss. A loss occurs, and B immediately notifies A by telephone. A repudiates by informing B without adequate reason that it will not pay the loss. Because of this, B does not give written notice to A. B has a claim against A for the amount of the loss."
In Count Three, the plaintiff alleges that the defendant was negligent in the handling of McCullough's claim. As a result of this negligence, the plaintiff alleges that McCullough entered into the purchase and sale contract but was forced to breach it, resulting in the injuries alleged. This count is ripe for review because it alleges actual injuries and relies on alleged past negligent conduct rather than any future event. Because both counts one and three are ripe for review, the court finds that it has subject matter jurisdiction.
II. Plaintiff's Motion for Summary Judgment (126.00)
McCullough argues that, under the language of the policy, the Encompass owes her immediate payment of replacement cost coverage for the purchase of a replacement property. She contends that the duty to pay replacement cost coverage arose when she elected to replace the property at another location.
Encompass argues that the policy required McCullough to complete replacement of the property before she became entitled to payment of replacement cost coverage. It contends that McCullough is not entitled to summary judgment because she has not established that she met this condition precedent.
The court finds that McCullough was not entitled to immediate replacement cost coverage upon election to replace the property. The terms of the policy are dispositive of this issue.
An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract . . . In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . Under those circumstances, the policy is to be given effect according to its terms . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.
(Internal quotations omitted.) National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 88-89, 961 A.2d 387 (2009).
Each party has submitted a copy of the same applicable policy. The relevant provisions of the policy begin at the bottom of page 3 of 22 of the "Special — Home" segment, under the heading "REAL PROPERTY — LIMIT OF LIABILITY." There, the policy provides: "Covered losses are settled on a replacement cost basis (without deduction for depreciation) subject to the following . . ." There are five numbered paragraphs following this language. As represented on page 3 of 7 of the "Amendment of Home and Dwelling Fire Provision — Connecticut" segment, paragraph four of the "REAL PROPERTY — LIMIT OF LIABILITY" section was deleted and replaced by the language contained in the amendment. Paragraph four, as amended, provides, in its entirety: "If the replacement premises is not at the same location, we will pay no more than the least of the following amounts:
a. The dwelling replacement value shown in the Coverage Summary; or
b. The replacement cost of that part of the building damaged for like construction and use on the same premises." In other words, while the "REAL PROPERTY — LIMIT OF LIABILITY" section provides the source of coverage, dictating that the defendant's liability shall be replacement cost, amended paragraph four is merely a cap on the amount of such liability, which is applicable when the replacement is at another location.
Just as amended paragraph four merely restricts the amount of replacement cost available, paragraph three of the "REAL PROPERTY — LIMIT OF LIABILITY" section, found on page 3 of 22 of the "Special — Home" segment, merely sets the time of performance, i.e., the time at which payment by the defendant becomes due under the policy. Paragraph three, which was not replaced or modified by any amendment, provides in relevant part: "We will pay no more than the actual cash value of the damage until actual repair or replacement is complete. Once actual repair or replacement is complete, we will settle the loss according to the replacement cost provisions above." (Emphasis added.) In other words, paragraph three breaks the payment of replacement cost coverage into two portions, (1) the actual cash value portion and (2) the remaining portion, i.e., the recoverable depreciation portion. While paragraph three permits the actual cash value portion to be paid at any time, it restricts the payment of the recoverable depreciation portion until "actual repair or replacement is complete."
It is undisputed that Encompass paid McCullough money representing the actual cash value of the dwelling. This was the actual cash value portion of the replacement cost coverage, the payment of which is not restricted by paragraph three. Under the unambiguous terms of paragraph three, however, whether McCullough was entitled to the recoverable depreciation portion of the replacement cost coverage depended on if and when "actual . . . replacement [was] complete." McCullough's mere election to replace was, therefore, insufficient to trigger the duty to pay recoverable depreciation.
There is a sound policy reason behind a requirement to complete replacement. If an insured becomes entitled to recoverable depreciation prior to actually replacing the damaged premises, the insured could "elect" to replace but then simply keep the proceeds in cash rather than purchasing the replacement, thereby realizing a monetary profit on his or her loss. Northrop v. Allstate Ins. Co., 247 Conn. 242, 252, 720 A.2d 879 (1998). Accordingly, McCullough has not shown that her election to replace the property entitles her to judgment as a matter of law.
III. Defendant's Motion for Summary Judgment (132.00)
The following undisputed facts are relevant to the disposition of Encompass' motion for summary judgment: On or about February 29, 2008, McCullough entered into a purchase and sale contract to purchase real property located at 21 Soby Drive, West Hartford, Connecticut (Soby property). She failed to close on the Soby property due to her inability to obtain sufficient funds to make the purchase.
The issue of who is at fault for her inability to obtain sufficient funds is disputed, however.
A. Count One: Breach of Contract
Encompass argues first that, as a matter of law, it could not have breached the terms of the policy because McCullough never completed replacement of the property as required under the policy, and, thus, no duty to make further payment ever arose. It contends that McCullough failed to complete replacement because she could not afford to fund the purchase of the Soby property. McCullough argues that she completed replacement when she entered into the purchase and sale contract.
McCullough advances this argument solely in opposition to Encompass' motion for summary judgment.
The court finds that the issue raised by Encompass is immaterial. As stated above in the court's discussion of the ripeness issue, Count One could be read as a claim for breach of contract based on a theory of anticipatory repudiation. As noted above, under such a theory the condition of completing replacement would be excused and McCullough could recover for Encompass' repudiation of its duty. Therefore, even if Encompass established that McCullough failed to complete replacement, that fact would not, by itself, foreclose a breach of contract claim under the allegations of Count One.
Nevertheless, whether McCullough actually completed replacement as required under the policy is unclear. While there is no Connecticut case on point, the Iowa Supreme Court, in Pierce v. Farm Bureau Mutual Ins. Co., 548 N.W.2d 551, 555-56 (Iowa 1996), relying on the doctrine of equitable conversion, held that an insured's entrance into an enforceable executory purchase and sale contract constituted a completion of replacement of real estate under the applicable homeowner's insurance policy. "Under the doctrine of equitable conversion . . . the purchaser of land under an executory contract is regarded as the owner, subject to the vendor's lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser . . . The vendor's interest thereafter in equity is in the unpaid purchase price, and is treated as personalty . . . while the purchaser's interest is in the land and is treated as realty." (Citations omitted; internal quotation marks omitted.) Francis T. Zappone Co. v. Mark, 197 Conn. 264, 267, 497 A.2d 32 (1985).
The Connecticut Supreme Court recognizes this doctrine. It applied the doctrine in Francis T. Zappone Co. v. Mark, supra, 197 Conn. 267-68, holding that a broker's commission was due at the time the client entered into a bond for deed for the purchase and sale of real estate. The client argued that the execution of such bond for deed, because no actual title was thereby transferred, did not constitute a "sale, exchange or transfer, or . . . the exercise of any option to purchase," as required for a commission to be due under the relevant agreement. Id., 268. The Court disagreed, stating: "A binding sales agreement such as a valid bond for deed passes equitable title, under the doctrine of equitable conversion, upon its execution . . . The parties are bound from that instant and the formal transfer of `paper' title can occur at some future date." (Citation omitted.) Id.
Encompass argues that it would have paid recoverable depreciation for the purchase of the Soby property, but, because McCullough failed to provide financing for the cost of the land, she failed to complete replacement of the property. Based on Pierce and Zappone, however, replacement of real property may be complete under the doctrine of equitable conversion when the insured enters into an executory purchase and sale contract.
Encompass' second ground for summary judgment on Count One is that McCullough cannot establish any injuries resulting from any act of Encompass. It argues that the individual injury claims are either speculative or not as a result of a breach of the policy provisions. McCullough disagrees with this characterization of her damage claims.
Whether McCullough can establish actual injury resulting from the alleged breach of contract is immaterial to her claim. "The law implies damage from the invasion of a legal right, and recovery of nominal damages, at least, must be had." Mirando v. Mirando, 104 Conn. 318, 321, 132 A. 910 (1926). Accordingly, "[i]f a party has suffered no demonstrable harm . . . that party may be entitled . . . to nominal damages for breach of contract." (Internal quotation marks omitted.) Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 254, 919 A.2d 421 (2007), quoting News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 535, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005).
Even if McCullough has suffered no actual damages, she still may recover for the invasion of her rights under the policy, if such invasion is established. Accordingly, Encompass has failed to establish that it is entitled to judgment as a matter of law on Count One.
B. Count Three: Negligence
As to Count Three, Encompass essentially advances the same arguments it made in favor of summary judgment as to Count One. First, it argues that, because McCullough failed to complete replacement, it had no duty to her. McCullough contends that there is an issue of fact as to whether Encompass was negligent in taking its coverage position.
There is no Count Two alleged by the plaintiff in the Amended Complaint (145.00), having been stricken by the court, Swienton, J., (115.01) from a prior complaint.
The court finds that whether or not McCullough completed replacement is immaterial to the disposition of Count Three. The allegations of Count Three sound in negligent misrepresentation.
One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 143-44, 2 A.3d 859 (2010). 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.
(Internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 502, 977 A.2d 228, cert. granted, 981 A.2d 1080 (2009).
McCullough alleges that she elected to replace the property at another location in reliance on Bostrom's representation that Encompass would pay her up to $442,100 of coverage for the replacement. McCullough further alleges that, only after she entered into the Soby property purchase and sale contract did Encompass take the position that she would have to finance certain portions of the purchase price before receiving any further payments. Moreover, McCullough alleges that she suffered damages as a result of the negligence of Encompass, including the loss of deposit money, loss of opportunity to build equity and loss of income tax deductions. Implicit in these allegations is that McCullough was forced to breach the purchase and sale contract when Encompass clarified its coverage position, stating that McCullough was entitled to less coverage than she had originally anticipated.
Recovery under this cause of action is not dependent on McCullough's completion of replacement of the property. The issue, instead, is whether Bostrom was negligent in explaining Encompass' coverage position and whether McCullough had reasonably relied on that explanation to her detriment. Thus, whether she completed replacement is not dispositive of the defendant's liability under Count Three.
Second, Encompass argues that the claimed damages are, individually, either too speculative to be recoverable, or not caused by its acts. Specifically, it contends that McCullough admitted that she would have to speculate as to some of her damages and that any damages she suffered were caused by her own failure to fund the purchase of the Soby property and subsequent breach of the purchase and sale contract. McCullough contends that the damages are no more speculative than "pain and suffering" damages in a motor vehicle accident case.
The court finds that McCullough could establish actual damages resulting from the alleged negligent acts of Encompass. When a plaintiff brings an action in negligence, in contrast to a contract action, he or she must prove actual damages in order to recover. See Right v. Breen, 277 Conn. 364, 376-77, 890 A.2d 1287 (2006). In other words, nominal damages are not available in a negligence action. Id.; see also Kaczynski v. J. Videira's Paving, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4003257 (January 23, 2008, Levin, J.) ("Because negligent misrepresentation is a tort sounding in negligence . . . the plaintiff is not entitled to nominal damages." [Citation omitted; internal quotation marks omitted.]). Thus, if Encompass establishes that, as a matter of law, McCullough suffered no actual damages as a result of its conduct, it would be entitled to judgment as a matter of law.
At the very least, however, there is evidence that McCullough suffered the loss of her deposit money as a result of her breach of the purchase and sale contract after she failed to obtain enough financing. Encompass has not established that such breach did not result from a negligent misrepresentation by its agent, Bostrom, as to how much coverage Encompass was willing to extend to her. McCullough has the right to try to establish at trial that, if she had known of Encompass' true coverage position, she would not have entered into the Soby property purchase and sale contract, would not have breached such contract and would not have suffered damages, including loss of deposit money. Encompass offers nothing contradicting this theory of events laid out in the express and implied allegations of Count Three.
Accordingly, Encompass has failed to establish the absence of any genuine issue of material fact as to Count Three.
ORDER
For the reasons set forth above, the plaintiff's motion for summary judgment (126.00) and the defendant's motion for summary judgment (132.00) are denied.