Opinion
No. CV01-0509331S
July 17, 2003
MEMORANDUM OF DECISION
The plaintiff, Elynna Raymond, has brought a multi-count complaint for interference with business relations, breach of fiduciary duty, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), negligence, breach of contract, and breach of privacy against Southington Savings Bank (the bank), Vincent Ruggiero, a bank official, and a resident of Southington, Matthew Florian. The defendants have moved for summary judgment.
The plaintiff alleges in her amended complaint the following: In September 1999, the plaintiff became interested in the purchase of 61-69 Center Street in Southington and entered into negotiations with Vinal Michaud, the owner of the property. On or about October 14, 1999, the plaintiff met with Ruggiero, a loan officer with the bank, to make an application for a mortgage to purchase the property; in the course of this meeting, the plaintiff gave Ruggiero information on her offering price and her financial position.
The plaintiff then alleges that Ruggiero or another bank employee disclosed "confidential information concerning the purchase of 61-69 Center Street, Southington, Connecticut, by the plaintiff to a third party, Matthew Florian." Plaintiff alleges that Florian owned real estate near the subject property and that Florian was a major depositor and borrower of the bank. Plaintiff charges that Florian subsequently approached the prospective seller, Michaud, with his own offer to purchase the property. Michaud later told the plaintiff that the offer made by Florian was higher than hers. At this time the plaintiff alleges that she had a conversation with Florian and he made a suggestion that she allow him to purchase the property and he would eventually sell her a portion of the property and retain the remainder for parking. The plaintiff claims that this sequence of events eventually led to her paying an additional amount to Michaud to secure the purchase of the property, and that the defendants are liable to her for damages on the different legal bases claimed in each count. CT Page 8413-gu
The sole ground of the defendants' motion for summary judgment (which they support by affidavits and deposition testimony) is that there never was an improper disclosure by the bank or its employees to Florian. According to the defendants, lacking the key element of any disclosure, summary judgment is appropriate in their favor. By affidavit and references to transcripts, the plaintiff points to three circumstantial indications that there was a disclosure of confidential information.
The defendants have not raised any other grounds specific to the individual counts of tortuous interference, illegal disclosure, CUTPA, negligence, breach of contract or privacy which question any count's validity. Cf. Chertkova v. Connecticut General Life Insurance Co., Superior Court, judicial district of New Britain, Docket No. CV98 048646S (July 12, 2002, Berger, J.), affirmed per curiam, 76 Conn. App. 907 (2003), where each cause of action is analyzed. The court leaves these issues, if any, for another day. Wachter v. UDV North America, Inc., 75 Conn. App. 538, 546 (2003) ("we will not review claims absent law and analysis").
First, the plaintiff states in her affidavit that in her conversation with Florian, the possibility of the town purchasing the building had been discussed, that she had never discussed this possibility in her conversation with Ruggiero, and that in December 1999, when the plaintiff called to find out the status of her loan application, Ruggiero stated to her: "[w]e discussed the option of the town buying the building and you buying the building from the town." Secondly, in a response to an interrogatory directed to Florian, he states that his uncle is an officer of the bank. Thirdly, the bank "stalled" the plaintiff's loan commitment process.
There are well-established principles that govern the consideration of a motion for summary judgment. "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. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988). "It was the plaintiff's burden to file an affidavit reciting relevant evidentiary matter to establish the existence of a genuine issue as to a material fact." Taricani v. Nationwide Mutual Ins. Co., 77 Conn. App. 139, 152 (2003). "Simply, the granting of summary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Citation omitted; internal quotation marks omitted.) Kopacz v. Day Kimball Hospital, 64 Conn. App. 263, 267 (2001).
The court concludes that, following these principles, that the defendants' motion for summary judgment should be denied, as the plaintiff has presented genuine issues of material fact. Viewing the evidence in the light most favorable to the plaintiff, she has, especially through the December 1999 conversation with Ruggiero, produced CT Page 8413-gv evidence conflicting with the defendants' denials that any breach of confidence took place.
This result is strengthened by reference to the two leading cases on improper disclosure by a bank officer. The first is Dolton v. Capitol Federal Savings and Loan Association, 642 P.2d 21 (Colo.App. 1981). There the plaintiff, a real estate developer, was in a "bidding war" for a premises with the First Capitol Corporation. The plaintiff approached his long-time bank, the defendant, Capitol Federal Savings and Loan to make an application for a mortgage. First Capitol was a subsidiary of Capitol Federal. The plaintiff told a loan officer details relating to his purchase of the building, but did not file an application. The loan officer told the plaintiff that First Capitol was no longer interested in the property, but subsequent to the plaintiff's meeting with the loan officer, First Capital made another offer and was the successful bidder.
Two Superior Court cases have stated generally that a cause of action exists for a breach of a bank's duty of confidentiality to its customer. Dicks v. Fairfield First Bank Trust, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV92 298564S (June 20, 1994, Ford, J.); Mastroberti v. Centerbank, Superior Court, judicial district of Litchfield, Docket No. 052779 (Nov. 16, 1990, McDonald, J.), 3 Conn.L.Rptr. 560.
The trial court wanted Capitol Federal's motion for summary judgment, but the Colorado Court of Appeals reversed. The court first extensively discussed the right to bring this action with a factual background similar to the case before this court. "[A] breach of fiduciary duty is one of fact. Finding that, as a matter of law, the relationship between a savings and loan institution and potential borrower did not give rise to a fiduciary obligation, the trial court concluded that there were no grounds for relief on this theory and, therefore, granted summary judgment in favor of the lender. We disagree with this conclusion . . . Upon analysis of the particular circumstances at issue, a fiduciary relationship between a borrower and lender has been found to exist where there is a repose of trust by the customer along with an acceptance or invitation of such trust on the part of the lending institution . . . To determine whether such relationship is present here, it is necessary to determine first whether, as a matter of fact, [the plaintiff] trusted [the loan officer] and Capitol Federal to hold confidential the information which he disclosed regarding his intended purchase of the real estate and the proposed terms of the transaction, and whether the lender accepted or invited his trust . . . Also, because a fiduciary relationship may exist between a lending institution and prospective borrower . . . [the plaintiff's] failure to submit a formal loan application does not compel the conclusion that, as a matter of law, no fiduciary relationship exists here . . . If a fiduciary relationship exists, the lender has a duty to refrain from involvement in transactions antagonistic to its customer . . . Moreover, a fiduciary has an obligation not to disclose or otherwise misuse confidential information . . . Although [the plaintiff] had not formally applied for a loan, and First Capitol knew of the availability of the parcel prior to [the CT Page 8413-gw plaintiff's] conversation with [the loan officer], [the plaintiff] alleged a long-term business relationship which could reasonably have induced him to relax the care and diligence he might otherwise have used."
This issue was another neither raised nor briefed by the defendants and is not considered by the court. See footnote 2.
Under these circumstances, the Colorado Court of Appeals concluded: "The conversation between [the loan officer] and [the plaintiff] is critical to determination of the existence and breach of a fiduciary duty. What transpired therein is in dispute. Thus, there are controverted material issues of fact and summary judgment was improper." Id. at 23-24. This important decision emphasizes that the issues in the present case cannot be resolved at the summary judgment stage.
In Rubenstein v. South Denver National Bank, 762 P.2d 755 (Colo.App. 1988), the plaintiffs alleged that they were loan customers of the defendant bank and that it had breached a duty not to reveal information concerning the plaintiffs' financial status. The court reversed the trial court's granting of summary judgment, recognizing "the considerable authority for the general rule that a bank is under a duty not to disclose the financial condition of its customers and depositors," as well as that there were "controverted issues of material fact concerning the [bank's] alleged disclosures to third parties, and the actual relationship between the parties." Id. at 757.
The defendants rely upon Chertkova, supra, to argue that the plaintiff has merely raised "impermissible speculation and conjecture" on the "leaking" of information by the bank to Florian, and that this conjecture cannot support an opposition to summary judgment. Chertkova is distinguishable, however. First, the court had concluded, even before considering Chertkova's evidence, that she had sued the wrong party and that summary judgment was appropriate on that ground alone. In addition, Chertkova's testimony was that her current employment "must have been" influenced by "high level" officials at her previous position.
Here, by contrast, the plaintiff points to specific conversations and actions of the defendants in opposition to summary judgment. She is entitled to reach the trier of fact on the issue. See Carman v. Carman, 758 P.2d 710 (Idaho App. 1988), where the plaintiff alleged that a county clerk had prematurely disclosed a magistrate's decision to her former husband in a divorce proceeding. The county produced several affidavits flatly stating that no illegal disclosure had occurred. The plaintiff produced an admission by her husband given in a bankruptcy proceeding four years after the supposed disclosure and other circumstantial evidence. The plaintiff had raised "genuinely disputed issues of material fact in this case. A resolution of these matters will determine the cause of action asserted by [the plaintiff]. Consequently, these issues of CT Page 8413-gx material fact preclude summary judgment." Id. at 713. Based on the foregoing, the motion for summary judgment is denied.
So ordered.
Henry S. Cohn, Judge