Opinion
No. CV11 6018911S
October 27, 2011
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#101) (#105)
FACTS
On March 22, 2011, the plaintiff, Oliver Painting Construction, LLC, filed a four-count complaint against the defendants, Cynthia Vassilowitch (Vassilowitch) and Steven Cooper (Cooper), for breach of contract, unjust enrichment, quantum meruit and account stated. In its complaint, the plaintiff alleged the following relevant facts as the basis for its claims. On or about September 15, 2009, Cooper, acting for himself and as Vassilowitch's agent, hired the plaintiff to perform painting and other work at the defendants' home at 56 Sperry Road, Bethany, Connecticut, according to the terms of a written contract signed by the plaintiff and Cooper. The total cost of the services totaled $10,600. The plaintiff performed the work in a timely and workmanlike manner. There remains due and owing a balance of $9,072. Despite due demand, the defendants have refused to pay the balance. The plaintiff provided its services to the defendants with the expectation that it would be paid and the defendants were aware of this expectation. The defendants received invoices from the plaintiff for the work performed, retained the invoices without timely objection, failed to pay the amount due, refused to pay the amount due and continue to fail and to refuse to pay the amount due. In support of its complaint, the plaintiff attached a copy of the contract at issue.
On May 10, 2011, the defendants filed a motion for summary judgment against the plaintiff. The motion for summary judgment was accompanied by a memorandum of law in support of the motion, exhibits, and affidavits of both defendants. On June 8, 2011, the plaintiff filed an objection to the defendants' motion for summary judgment. In support of its objection the plaintiff attached only the contract. On June 17, 2011, the plaintiff filed a motion for summary judgment. The plaintiff did not attach any exhibits or affidavits to that motion. On July 5, 2011, this court held oral argument on the defendants' motion for summary judgment and the plaintiff's objection thereto and plaintiff's motion for summary judgment.
DISCUSSION
"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 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).
"An important exception exists . . . to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 850-51, 939 A.2d 1249 (2008). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 465, 976 A.2d 23 (2009). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Gold v. East Haddam, 290 Conn. 668, 678, 966 A.2d 684 (2009). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) Karkowsky v. Fardy, 118 Conn.App. 480, 485, 984 A.2d 480 (2009).
"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." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 557, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather determine whether any such issues exist." Nolan v. Barkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 him to a judgment as a matter of law. 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of facts . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 596 (2008).
In support of its motion for summary judgment, the defendants argue that there exists no genuine issue of material fact that the plaintiff was paid in full for its services as set forth in a written contract between the plaintiff and the defendants. The defendants argue that the contract stated that the work would cost $2,600 in cash and $8,000 in barter dollars and that the defendants fully complied with the terms of the contract by paying $2,600. Specifically, the defendants argue that ITEX Corporation has exclusive control over the distribution of barter dollars and, thus, the plaintiff's claim for the barter dollars properly lies against ITEX Corporation. In support of the motion for summary judgment, the defendants submitted the following evidence: Exhibit A which is a copy of the contract at issue; Exhibit B which contains copies of pages from the ITEX website; the affidavit of Cooper; and the affidavit of Vassilowitch.
The plaintiff argues that the defendants owe the plaintiff $8,000, which is the balance of the amount owed under the contract, plus interest in accordance with the contract, for a total outstanding amount of $9,072. The plaintiff further argues that the defendants' failure to pay the remaining balance constitutes a breach of the contract and it is seeking payment of the balance owed on the contract. The plaintiff has also brought a claim for unjust enrichment alleging that it would be unjust for the defendants to retain the benefit of the services and supplies provided by the plaintiff and accepted by the defendant without full payment to the plaintiff for those services and supplies. The plaintiff has also brought a quantum meruit claim for the reasonable value of the services rendered. The plaintiff also claims that the defendants are liable based on an account stated theory of liability. The plaintiff alleges that "the Defendant received invoices from the Plaintiff for the services and supplies that it rendered to the defendant, retained the invoices without timely objection, failed and refused, and continues to fail and refuse to pay the Plaintiff the full amounts due and owing as stated within the invoices." The plaintiff asserts that disputed issues of fact exists as to each of its claims against the defendants and therefore the defendants are not entitled to judgment as a matter of law. In support of its objection to the motion for summary judgment, the plaintiff submitted a copy of the contract at issue.
I BREACH OF CONTRACT
First, there is no dispute that an express contract existed between the plaintiff and the defendant. Both the plaintiff and the defendant submitted a copy of the contract. The contract states with respect to payment the following: "Cost: $10,000;" "Payment terms: $2,000 in cash; tax of $600 in cash; balance of $8,000 via barter dollars. Total Amount of Contract $10,600." The contract further indicates that the plaintiff received $2,600 from the defendants on September 15, 2009. The contract is also signed by the plaintiff. There is no dispute that both the plaintiff and the defendant are members of the ITEX Corporation, a marketplace for cashless transactions across North America. ITEX Corporation uses its own payment technology platform for processing cashless business transactions and through its exclusive distribution channel, member businesses, such as the plaintiff's and defendant's, utilize its digital currency "ITEX Dollars," i.e. barter dollars, to exchange goods and services rather than use cash. The company provides "trade dollars" to member businesses in return for a product or service. These trade or barter dollars go into the company or individual's ITEX bank account and they can spend these trade or barter dollars on whatever that member deems appropriate through the ITEX Corporation network. (Defendant's Exhibit B.)
The defendants argue that there exists no genuine issue of material fact that the defendants satisfied the terms of the contract which required the defendants to pay $2,600 in cash to the plaintiff and the balance of $8,000 in barter dollars. In support of this argument, the defendants submit a copy of the contract and the affidavits of Cooper and Vassilowitch. Although the plaintiff appropriately sets forth in its brief the standard required for a motion for summary judgment, it fails to point out beyond mere assertions what genuine issues of material fact exists as to the breach of contract claim. While the plaintiff submits only the contract in support of its objection, it does not point out any disputed issues that are created by the contract.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008). "A contract is express if its terms are stated by the parties, either orally or in writing . . . In other words . . . an express contract is one in which parties arrive at their agreement and express it in words, either oral or written." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 738, 901 A.2d 1277 (2006).
Here, both parties attach an identical document to their pleadings and refer to this document as the contract which embodies the terms of their agreement. The attached document states that the plaintiff agreed to perform painting and related services for the defendants. The document also set the cost of the services at $10,600, $2,600 of which would be paid in cash, and $8,000 in barter dollars. Therefore, the parties are operating under the terms of an express, written contract. The submission of this document by both parties establishes: (1) the formation of an agreement under which the plaintiff agrees to perform painting and related services; and (2) the defendants' agreement to provide payment for such services.
Neither party disputes that the plaintiff fulfilled its contractual obligations to perform the painting and related services for the defendant. Regarding a breach of the agreement by the defendants, the defendants submit affidavits which establish that the plaintiff fulfilled its contractual obligations and that the defendants paid the plaintiff $2,600 in cash on September 15, 2009, per the contract terms. The affidavits also establish that the remaining $8,000 in barter dollars owed to the plaintiff were to be paid by ITEX Corporation, the barter company responsible for the disbursement of barter dollars to the plaintiff. Both defendants explicitly state in their affidavits that they have no control over the payment of the barter dollars. The plaintiff, however, submits no affidavits or any other evidence to counter the defendants' affidavits. Furthermore, the plaintiff fails to set forth any evidence that demonstrates that they were not paid in barter dollars as the terms of the contract require. The plaintiff cites in its brief in support of its motion for summary judgment, not in its objection, the "Rules of the ITEX Marketplace" to dispute the defendants' assertion they do not control how ITEX payments are made. The plaintiff cites to the "Rules of the ITEX Marketplace" as "Exhibit 1," which it claims states that "transaction disputes concerning the quality, fulfillment, or deliverability of products and/or services purchased are between the buyer and seller only and ITEX has no responsibility in connection therewith other than recording transactions." However, the plaintiff has failed to submit an Exhibit 1 as referenced in its motion for summary judgment, nor was it attached to the plaintiff's objection to defendants' motion for summary judgment. The defendants have therefore met their initial burden of demonstrating that no genuine issue of fact exists that they satisfied their obligation pursuant to the terms of the contract. The plaintiff failed to provide any proof to substantiate its assertion that an issue of fact exists as to whether the defendant breached the terms of the contract. Therefore, there is no genuine issue of material fact that the defendants satisfied their obligations under the terms of the contract entered into on September 15, 2009. With there being no breach of the contract, the plaintiff cannot recover damages against the defendants on the breach of contract claim. Accordingly, the defendants' motion for summary judgment as to the plaintiff's breach of contract claim is granted because there is no dispute that the defendants fulfilled their obligation under the terms of the contract and are therefore entitled to judgment as a matter of law.
II A Unjust Enrichment
In count two, the plaintiff raises an unjust enrichment claim against the defendants to recover in restitution from the defendants for the services performed under the contract terms for which the plaintiff argues that it did not receive the proper amount of compensation. "Unjust enrichment applies whenever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . Indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment." (Citation omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). "[A]n express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter." (Internal quotation marks omitted.) Meaney v. Connecticut Hospital Association, Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999). "An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party . . . Accordingly, an implied in law contract is another name for a claim for unjust enrichment." (Citation omitted; internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006).As discussed in section I, supra, the transaction between the two parties is governed by an express contract. Neither party disputes that the contract embodies all of the terms of their agreement and that the contract governs their relationship. Pursuant to the existence of the express contract, the remedy available to the plaintiff for any failure of the defendants to fulfill their obligations under the contract is a breach of contract claim. In the present case, the plaintiff alleges a breach of contract claim in count one. Accordingly, the defendants' motion for summary judgment is granted as to the plaintiff's unjust enrichment claim because there is no dispute that the parties entered into an express contract and that the plaintiff has a remedy available by an action on the contract, which as a matter of law precludes the recognition of an implied in law contract and recovery based on unjust enrichment.
B Quantum Meruit
In count three, the plaintiff raises a quantum meruit claim against the defendants to recover the reasonable value of services rendered and supplies. "A party may not recover the reasonable value of services rendered, pursuant to the doctrine of quantum meruit, when the actions for which it seeks relief were governed by an express contract." Somers v. Busch, 283 Conn. 396, 408, 927 A.2d 832 (2007). "Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, supra, 96 Conn.App. 737.
Here, the plaintiff seeks to recover on a theory of quantum meruit for actions taken pursuant to an express contract, not an implied contract. As discussed in section I, supra, the agreement at issue is an express contract. Therefore, the plaintiff cannot recover under the theory of quantum meruit as a matter of law. Accordingly, the defendants' motion for summary judgment as to the plaintiff's quantum meruit claim is granted.
III ACCOUNT STATED
In count four, the plaintiff raises an account stated claim to recover from the defendants the remaining balance due for the services performed under the terms of the contract, plus interest. The defendants argue that there is no genuine issue of material fact that the plaintiff failed to put forth sufficient evidence to establish an account stated claim against the defendants.
In Connecticut, an accounted stated cause of action has been recognized for over one hundred years. See Zacarino v. Pallotti, 49 Conn. 36, 38 (1870). ("An account stated is an agreement between persons who had previous transactions, fixing the amount due in respect to such transactions and promising payment.") "The theory of account stated is described as follows: The delivery by the [creditor] to the [debtor] of each statement of the latter's account, with the [documentation] upon which the charges against [the debtor's account] were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute[s] an account stated which is prima facie evidence of the correctness of the account. General Petroleum Products, Inc. v. Merchants' Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932)." (Internal quotation marks omitted.) Citibank (South Dakota) N.A. v. Evvard, 128 Conn.App. 843, 844 n. 2, 18 A.3d 682 (2011).
To establish an account stated claim, the creditor must submit copies of the statements of the debtor's account to the court. In Citibank (South Dakota) N.A. v. Filip, Superior Court, judicial district of Tolland, Docket No. CV 09 6000823 (July 12, 2010, Bright, J.) [ 50 Conn. L. Rptr. 260], Judge Bright thoroughly discusses the required elements of an account stated cause of action and sets forth several Superior Court cases that have addressed motions similar to the plaintiff's relying on the account stated theory, and the quantum of proof necessary to entitle the creditor to judgment in its favor: "In [ CitiBank (South Dakota) N.A. v.] Stewart, [Superior Court, judicial district of New Haven, Docket No.CV 05 4012384 (November 30, 2005, Silbert, J.) ( 40 Conn. L. Rptr. 337)], the plaintiff similarly moved for summary judgment on its claim grounded in an accounted stated theory of recovery . . . Attached to its motion for summary judgment the plaintiff in Stewart included the contract between the parties, an affidavit of its authorized agent and the records of the defendant's credit card account with the plaintiff, including monthly statement mailings and payments received that demonstrated the amount of the alleged debt owed by the defendant . . . The court found that the plaintiff presented the entire record of its billings and payments received, and that the defendant was obliged to concede that she had no evidence whatsoever to place in dispute either her liability to the plaintiff under the terms of her credit card agreement not the amount claimed by way of payment due . . . The court concluded that because the account stated cause of action is recognized in Connecticut, because the plaintiff put forth admissible evidence in support of that cause of action, and because there was no genuine issue of material fact in dispute, the plaintiff was entitled to summary judgment . . .
"[In] CitiBank (South Dakota) N.A. v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV 05 4002020 (December 21, 2005, McWeeny, J.) ( 40 Conn. L. Rptr. 489), . . . the court granted the plaintiff creditor's motion for summary judgment on its account stated claim. The plaintiff offered as evidence, inter alia, the credit card agreement it entered into with the defendant and copies of the monthly statements it sent to the defendant . . . The defendant issued a general denial as an answer, but the plaintiff argued that the defendant's failure to provide the plaintiff with any objections she had to the statements provided by the plaintiff preclude her from disputing the amount due . . . The court determined that the plaintiff established the defendant's obligation under an account stated theory and granted the motion for summary judgment in the plaintiff's favor . . .
"[I]n Palisades Collection, LLC v. Wright, Superior Court, judicial district of Fairfield, Docket No. CV 08 5015544 (January 27, 2009, Bellis, J.), while recognizing the account stated cause of action, the court denied the plaintiff's motion for summary judgment because the plaintiff failed to put forth admissible evidence in support of that cause of action . . . [I]n Palisades the defendant filed neither a memorandum in opposition to the motion for summary judgment nor any counter affidavit. Though the plaintiff argued that the defendant was provided with monthly billing statements, the plaintiff failed to submit copies of any such statements to the court nor was any other documentation submitted to support its argument. The court found accordingly, that the plaintiff's arguments were not supported by any documentation. The court held that the plaintiff's nonevidentiary assertions of fact are insufficient to show that there is no genuine issue of material fact. . . . [Similarly,] [i]n CACH, LLC v. Stupack, Superior Court, judicial district of New Britain, Docket No. CV 08 5008144 (March 1, 2010, Swienton, J.) ( 49 Conn. L. Rptr. 403), the plaintiff debt collector commenced action against the defendant debtor, filing a two count complaint. In count two of the complaint, the plaintiff sought to hold the defendant liable under an account stated theory . . . The only evidence offered by the plaintiff to establish that the defendant entered into the alleged credit card agreement was eight credit card statements which indicated the defendant's name and address on them . . . The defendant testified that he never received the statements in the mail and denied that the account was his, claiming that the first he learned of the account was when he was served with the complaint . . . The court ultimately concluded that the plaintiff needs to produce more than just eight monthly statements which the defendant denies receiving in order to establish the elements of accounted stated . . . Accordingly, the court entered judgment for the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) CitiBank (South Dakota) N.A. v. Filip, Superior Court, judicial district of Tolland, Docket No. CV 09 6000823 (July 12, 2010, Bright, J.).
Unlike the cases cited in Filip, the defendants in this case have the burden as they are the parties moving for summary judgment. Kakadelils v. DeFabritis, supra, 191 Conn. 282. Therefore, the defendants' evidence must demonstrate that there exists no genuine issue of material fact that the plaintiff failed to satisfy the elements of its account stated claim. See Sherman v. Ronco, supra, 294 Conn. 553-54. Then, and only then, will the burden shift to the plaintiff to provide evidence which demonstrates that the defendant is not entitled to summary judgment as a matter of law on the account stated claim. See Baldwin v. Curtis, supra, 105 Conn.App. 851; Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.
Here, the defendants' proof consists of the contract entered into by the parties, the affidavits of both defendants and an exhibit describing the ITEX Corporation. As stated above, the contract establishes: (1) the formation of an agreement under which the plaintiff agrees to perform painting and related services; and (2) the defendants' agreement to provide payment for such services. The affidavits establish that: (1) the defendants paid the plaintiff $2,600 in cash on September 15, 2009, per the contract terms; and (2) the remaining $8,000 in barter dollars owed to the plaintiff were to be paid by ITEX Corporation. This evidence, however, does not address any of the account stated elements. The defendants' evidence does not demonstrate that it did not receive any balance statements from the plaintiff. The defendants' evidence also does not establish that it received statements from the plaintiff to which it objected. The defendants could only demonstrate the insufficiency of the plaintiff's claim through proving either that it did not receive any statements from the plaintiff or that it received statements from the plaintiff and objected thereto. As the defendants' evidence does not establish either of these as fact, the defendants have failed to satisfy their burden of demonstrating that there exists no genuine issue of material fact as to the plaintiff's account stated claim. Therefore, the defendant is not entitled to judgment as a matter of law on the plaintiff's account stated claim and the motion for summary judgment is therefore denied.
IV PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT #105
In support of its motion for summary judgment, the plaintiff argues that the defendants do not raise any genuine issues of material fact as to any of the plaintiff's claims and therefore it is entitled to judgment on all of its claims as a matter of law. The plaintiff argues that the defendants do not refute that a breach occurred and that they merely state that they do not control the method by which ITEX distributes its currency. The plaintiff argues that this assertion, in addition to the affidavits provided by the defendants, fail to demonstrate the existence of a genuine issue of material fact as to the breach of contract claim. The plaintiff argues that the defendants do not refute the plaintiff's claim for unjust enrichment because the defendants do not dispute that the plaintiff painted their home nor that the painting was performed in a workmanlike manner. The plaintiff also argues that the defendants, in their motion for summary judgment, concede that the plaintiff is due something of value for the work completed. The plaintiff further argues that the defendants concede that the plaintiff performed services for the defendants and that the defendants provide no response to the quantum meruit argument. Finally, the plaintiff argues that it is entitled to an accounting from the defendants. The plaintiff provides the legal standards for an accounting claim and argues that the defendants fail to refute this claim for an accounting.
In making this argument, the plaintiff refers to the "Rules of the ITEX Marketplace" as Exhibit 1. However, as previously discussed, the plaintiff does not attach any exhibits to its motion for summary judgment nor does it submit this document in its opposition to the defendants' motion for summary judgment.
As discussed above, the court reviewed the evidence submitted by both parties as to the issues raised in the defendants' motion for summary judgment. The plaintiff addresses the same claims in its motion for summary judgment and provides no additional evidence in support of its arguments. Because the court determined that the defendants were entitled to judgment as a matter of law on the plaintiff's breach of contract, unjust enrichment and quantum meruit claims, and since the defendant met its burden that no genuine issue of fact exists as to those claims, the plaintiff is not entitled to summary judgment on the same claims, as a matter of law.
Regarding count four, the plaintiff misconstrues its cause of action. In the complaint, the plaintiff sets forth the legal standard and corresponding facts to support an account stated cause of action. However, in its memorandum in support of its motion for summary judgment, the plaintiff's discussion of count four is based upon the legal standard for an accounting cause of action. "The theory of account stated is described as follows: The delivery by the [creditor] to the [debtor] of each statement of the latter's account, with the [documentation] upon which the charges against [the debtor's account] were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute[s] an account stated which is prima facie evidence of the correctness of the account . . ." (Citation omitted; internal quotation marks omitted Citibank (South Dakota) N.A. v. Evvard, supra, 128 Conn.App. 844 n. 2.
"An accounting is defined as an adjustment of the accounts of the parties and a rendering of a judgment for the balance ascertained to be due. An action for an accounting usually invokes the equity powers of the court, and the remedy that is most frequently resorted to . . . is by way of a suit in equity . . . An accounting is not available in an action where the amount due is readily ascertainable. Equity will ordinarily take jurisdiction to settle the account if the facts create a reasonable doubt whether adequate relief may be obtained at law . . . To support an action of accounting, one of several conditions must exist. There must be a fiduciary relationship, or the existence of a mutual and/or complicated accounts, or a need of discovery, or some other special ground of equitable jurisdiction such as fraud." (Citations omitted; emphasis in original; internal quotation marks omitted.) Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 460, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d 580 (2004).
In count four of the complaint, the plaintiff alleges that the defendants "received invoices from the [p]laintiff for the services and supplies it rendered to the [d]efendants, retained the invoices without timely objection, failed and refused, and continues to fail and refuse to pay the [p]laintiff the full amounts due and owing as stated within the invoices." In a motion for summary judgment, the causes of action to be considered are those set forth by the facts alleged in the pleadings. See Keller v. Beckenstein, 117 Conn.App. 550, 557, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). Although the plaintiff argues that it is entitled to summary judgment on an accounting claim, count four of the complaint sets forth the legal standard and relevant facts to support an account stated claim. See Citibank (South Dakota) N.A. v. Evvard, supra, 128 Conn.App. 844 n. 2. Therefore, the plaintiff is not entitled to judgment as a matter of law as to the purported accounting claim set forth in count four. With respect to the plaintiff's motion for summary judgment on what appears to be an account stated claim as set forth in count four, it has failed to submit any evidence to meet its burden that no material fact exists that it is entitled to judgment in its favor based on an account stated theory of liability. The plaintiff has only submitted the contract in support of its motion. For the foregoing reasons, the plaintiff is not entitled to judgment as a matter of law as to any of its claims and the court denies its motion for summary judgment in its entirety.
CONCLUSION
For the foregoing reasons, this court concludes that there exist no genuine issues of material fact as to the breach of contract claim, the quantum meruit claim and the unjust enrichment claim. There does exist, however, a genuine issue of material fact as to the account stated claim. Therefore, the defendants are entitled to judgment as a matter of law, and the court grants the defendants' motion for summary judgment as to the breach of contract, quantum meruit and the unjust enrichment claims. The defendants are not entitled to judgment as a matter of law on the account stated claim and therefore the motion for summary judgment on that claim is denied. The plaintiff's motion for summary judgment is denied in its entirety.