Opinion
No. CV-07-5002150
December 31, 2009
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case involves a single-count complaint in which the plaintiff, Richard Tasillo, claims that the defendants, Genesis Capital Group, Inc. ("Genesis") and Millennium Computer Solutions, LLC ("Millennium") entered into an oral contract with the plaintiff to pay him for work he did in connection with a proposal submitted by the defendants to the University of Connecticut to lease and sell computers and related equipment to the University and its students. The plaintiff claims that the defendants breached the contract by failing to pay him the agreed upon compensation after he performed all work required of him by the parties' agreement.
The defendants claim that no such agreement ever existed, and that the plaintiff never did any of the work he claims to have performed. They further claim that while the plaintiff did work as an independent contractor for Millennium, his work had nothing to do with the University contracts, and that he was fully compensated for all work he performed for Millennium. In fact, Millennium has asserted a counterclaim claiming that it overpaid the plaintiff and seeking the return of the amount overpaid.
The defendants have moved for summary judgment as to the plaintiff's complaint. They argue that the undisputed facts entitle them to judgment as a matter of law on the plaintiff's breach of contract claim. Further, they argue that summary judgment must issue because the alleged contract is unenforceable under the statute of frauds.
The plaintiff has opposed the defendants' motion arguing that there is more than ample evidence to support his claim and to create a triable issue of fact. As to the statute of frauds, the plaintiff argues that his performance of his obligations under the contract removes the agreement from operation of the statute.
II. SUMMARY JUDGMENT STANDARD
"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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 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]." (Citations omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty, Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Finally, "[s]ummary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." Perille v. Raybestos-Manhattan-Europe, 196 Conn. 529, 543, 494 A.2d 555 (1985) (affirming grant of summary judgment based on special defense of workers' compensation being the plaintiff's exclusive remedy).
III. LEGAL ANALYSIS
The defendants first claim that the extensive discovery completed in this case establishes that the alleged contract between the plaintiff and the defendants never existed and that the plaintiff never did the work he claims to have performed under the purported agreement. The plaintiff alleges that "on or before February 23, 2003, the plaintiff and the defendants entered into a contract by which the plaintiff would solicit and obtain a contract between the defendants and the University of Connecticut for the defendants to lease and sell laptop computers and related equipment to various departments and students at said University of Connecticut." Complaint, ¶ 1. The plaintiff alleges that under this agreement he was to be paid "33 per cent of all gross profits received by the defendants" under the contracts with the University. Complaint, ¶ 2. The plaintiff alleges that he performed his part of the contract by "submitt[ing] a proposal" to the University on behalf of the defendants. Complaint, ¶ 3. He alleges that the University accepted the proposal and entered into a contract with the defendants that was effective from May 15, 2003 until May 15, 2007. Complaint, ¶ 4-5. The plaintiff alleges that the defendants breached the contract by not paying him the agreed upon 33% on all transactions the defendants had with the University. Complaint, ¶ 8.
The defendants first argue that the plaintiff can offer no evidence of the alleged agreement between the parties. In support of this argument, the defendants point out that there is no written agreement between the parties. They also argue that the evidence showing that the plaintiff had nothing to do with soliciting and obtaining the University contracts is evidence that there was no agreement that he would do so and be compensated for doing so. Finally, Genesis argues that there is no evidence of any relationship between it and the plaintiff. In particular, Genesis points out that any compensation paid to the plaintiff came from Millennium.
In response, the plaintiff points to his own testimony that he entered into an oral agreement with Gary Boulay, the admitted founder/owner of both Genesis and Millennium, by which both defendants were retaining the plaintiff to work on the University proposal and both would pay him 33% of any gross profits they received. Tasillo Tr., pp. 82, 99, 105. Further, the plaintiff avers in his affidavit that reached such an agreement with both defendants. Tasillo Aff., ¶¶ 2-3, 7-8. In further support of his claim, the plaintiff relies on Exhibits C-I to his affidavit. According to the plaintiff, these exhibits, all e-mails from Mr. Boulay to the plaintiff, show that both defendants understood that they were required to compensate the plaintiff at the rate of 33% of all gross profits they earned from the University. With respect to Genesis, the plaintiff points out that most of the e-mails are from Mr. Boulay in his role as a representative of Genesis. Further, Exhibit G makes specific reference to the plaintiff receiving 33% of the gross profit on Genesis' sales to the University. The plaintiff also relies on the fact that Exhibit I, which lays out the 33% rate, makes no distinction between Genesis and Millennium, and identifies Mr. Boulay as setting forth the arrangement in his capacity with Genesis.
Viewing the evidence in a light most favorable to the nonmoving party, the court finds that there is sufficient evidence presented by the plaintiff to create a triable issue of fact as to the existence of the alleged agreement between the plaintiff and both defendants. A reasonable jury could accept the plaintiff's testimony, which coupled with the e-mails from Mr. Boulay could lead it to conclude that the agreement was as the plaintiff alleges.
Second, the defendants argue that the undisputed facts show that the plaintiff did nothing to "solicit and obtain" the contract between the defendants and the University. They claim that even if the alleged agreement did exist, the plaintiff did not perform his required obligation and is therefore not entitled to the compensation he seeks. In support of this argument the defendants point to a significant amount of evidence that shows that the plaintiff had no contact with any University representatives on behalf of the defendants. Tasillo Tr., pp. 52-55. They further point out that the plaintiff admitted that he did not draft certain portions of the defendant's proposal to the University, including those setting forth lease rates and annual figures. Tasillo Tr., p. 108. In fact, the plaintiff admitted that his name does not even appear in the proposal. Id., pp. 67-68. Furthermore, when the University asked for a formal presentation after the defendants submitted their bid, the plaintiff did not attend that presentation and did not participate in the negotiations that finally resulted in the contract between the defendants and the University. Boulay Aff., ¶ 9.
The defendants claim that the plaintiff admitted that he did not draft the pricing part of the proposal, citing to pages 23-25 of his deposition. The court has reviewed those pages and can find nothing that supports the defendants' claim. In fact, a review of the plaintiff's deposition transcript reflects that the plaintiff claims responsibility for the pricing in the proposal. Tasillo Tr., p. 108.
In response, the plaintiff argues that he fulfilled his obligation by preparing a significant part of the proposal that resulted in the contract with the University. In particular, the plaintiff claims that he drafted 75% of the proposal and obtained the supplier price from Dell. Tasillo Tr., pp. 81, 104-05, 108. In addition, while the defendants dispute the amount and value of the plaintiff's contributions to the proposal, Mr. Boulay acknowledged in his affidavit that the plaintiff "provided some assistance in drafting the supplier portion of the bid." Boulay Aff., ¶ 8.
The plaintiff also relies on evidence showing that the defendants did in fact compensate him at the 33% rate on some of their sales to the University. Exhibits D-F. Further, Exhibit G is evidence that the compensation was not limited to Millennium. In that document, Mr. Boulay informed the plaintiff that he would receive his commission in February 2006 "even though Genesis does not get funded until March on this deal." Exhibit G (emphasis added). The plaintiff claims that these payments are proof that the defendants were satisfied with the plaintiff's work in soliciting and obtaining the University contracts. The defendants have offered no other explanation for these payments, other than to suggest at oral argument that they were in essence a gift from the defendants to the plaintiff. While the jury might accept such a claim, it could just as easily conclude that the defendants were paying the plaintiff because he had done his work in preparing a significant part of the proposal that resulted in the University contracts.
Again, viewing the evidence in a light most favorable to the plaintiff; as the court must, there is sufficient evidence to create a triable issue of fact as to whether the plaintiff performed his obligations under the purported agreement. Thus, the defendants are not entitled to summary judgment based on these issues.
The defendants' final argument is that they are entitled to summary judgment based on the statute of frauds. They claim that the alleged oral agreement is unenforceable because it could not be performed within one year. Conn. Gen. Stat. § 52-550(a)(5).
The plaintiff does not dispute that the alleged oral agreement would be covered by the statute of frauds in the absence of any performance of the contract by the plaintiff. However, the plaintiff claims that he did in fact perform his obligations under the agreement by preparing a substantial part of the proposal, and that performance removes the agreement from the statute's application.
Our Supreme Court thoroughly analyzed and clarified the "part performance" exception to the statute of frauds in Glazer v. Dress Barn, Inc., 274 Conn. 33, 873 A.2d 929 (2005). In Glazer, the Court held that the concept of part performance is a form of equitable estoppel. Id., 60-62. The idea behind application of the principle is that it would be unfair for a party to an oral agreement to find refuge in the statute of frauds where a second party has performed under the contract and the first party knew of or assented to such performance. "Thus, in sum, the elements of part performance are: (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract; (2) knowledge or assent to the party's actions in reliance on the contract; and (3) acts that unmistakably point to the contract." Glazer, supra, 274 Conn., 62 (citations omitted). Meeting these three elements serves the dual purposes of providing evidentiary support that the contract itself existed and of preventing a party from committing a fraud by, ironically, relying on the statute of frauds. Id., 62-63.
Thus, the question here is whether the plaintiff has presented sufficient evidence to create a triable issue of fact on each of these three elements. If he has failed to present such evidence on any one of the three elements the defendants would be entitled to summary judgment.
As to the first element, the plaintiff has presented evidence though his own affidavit and deposition testimony that Gary Boulay made statements to him that induced him to act. In particular, he has testified under oath that Mr. Boulay promised him 33% of any gross profits realized from the University contracts, and that he worked on the proposal based upon that promise. While the defendants dispute the plaintiff's testimony, a jury could believe the plaintiff's version of events, creating a triable issue of fact on this element.
As to the second element, there is evidence that the defendants had knowledge of and assented to the plaintiff's work on the University proposal. First, Mr. Boulay has acknowledged in his affidavit that the plaintiff worked on the proposal. Second, as noted above, there is evidence that the plaintiff was paid by both defendants for work on the University proposal. Exhibits D-H. Viewing this evidence in a light most favorable to the plaintiff, a jury could conclude that such payments constituted assent by the defendants to the plaintiff's work on the University proposal. Consequently, the court finds that there is a triable issue of fact as to this element.
As to the third element, the plaintiff has presented evidence that his performance unmistakably points to the contract. The plaintiff claims that he worked on the proposal because he was promised compensation by the defendants. The defendants have offered no other explanation as to why the plaintiff would do such work. Similarly, the defendants have offered no explanation as to why they were, at various times, paying the plaintiff 33% of the gross profits on the University contracts. The court finds that a reasonable jury could infer that the only thing that explains both the plaintiff's work on the proposal and the defendants' payments to the plaintiff is the contract alleged by the plaintiff.
The court understands that there is no dispute that all payments made to the plaintiff came from Millennium. Given the common ownership of Millennium and Genesis though, this does not preclude, at this stage, an inference that some of the money received by the plaintiff was paid on behalf of Genesis. Such a conclusion would be reasonable in light of Exhibit G and the fact that in a number of exhibits Mr. Boulay appeared to pay little attention as to whether he was writing on behalf of Millennium or Genesis.
Because the plaintiff has presented sufficient evidence to create a triable issue of fact as to all three elements necessary to establish part performance to avoid the statute of frauds, the defendants are not entitled to summary judgment on this ground.
IV. CONCLUSION
For the foregoing reasons, the defendants' Motion For Summary Judgment is DENIED.