In this certified appeal,
The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "The plaintiff and Meo were wife and husband. Meo was engaged in the practice of law as the sole proprietor of the Law Office of Steven F. Meo (Meo law office) and in 1992 employed Poirot as an associate. In October, 2005, Meo was hospitalized and remained hospitalized until his death on April 25, 2006. From the time Meo was hospitalized until his death, Poirot was the only attorney in the Meo law office, and he managed its clients and files. In December, 2005, Meo authorized Poirot to be added as a signatory to the Meo law office's operating checking account and its clients' funds [Interest on Lawyers Trust Account] so that Poirot could manage and facilitate settlement disbursements for clients. On April 28, 2006, Poirot left the Meo law office to open his own practice and was retained by approximately fifty-one of the fifty-three clients of the Meo law office to handle their legal matters to conclusion."
"Johnson, an attorney licensed to practice law in Wisconsin, specializes in traumatic brain injury litigation. Beginning in 2002, Johnson, with Meo as local counsel, litigated certain traumatic brain injury cases in Connecticut. Following Meo's death, Johnson and Poirot litigated two traumatic brain injury cases that had originated
The plaintiff filed a nineteen count complaint against the defendants, alleging, inter alia, breach of the duty of loyalty, conversion, civil theft, civil conspiracy, and the claimed CUTPA violations at issue in the present appeal. "In sum, the plaintiff alleges that in November, 2005, Poirot began to plan the opening of his own law office and to appropriate business from the Meo law office. The plaintiff alleges that Poirot stole clients from the Meo law office, as well as supplies and the services of its employees. Moreover, the plaintiff alleges that Poirot and Johnson conspired to appropriate cases from the Meo law office to their benefit and to the detriment of the Meo law office. The plaintiff claims that, as Meo's widow and the administratrix of his estate, she is the successor to Meo's interest in the Meo law office and that she was harmed by the defendants' acts." Id., at 696-67, 33 A.3d 282.
Both Poirot and Johnson filed a motion for summary judgment, which motions were granted in their entirety by the trial court. In their respective motions, the defendants advanced a number of arguments, including that summary judgment was warranted because the plaintiff failed to identify any evidence of damages resulting from her claimed CUTPA violations. In her opposition to the summary judgment motions, the plaintiff denied any obligation to furnish documentary evidence or other proof in support of her CUTPA claims, but nevertheless maintained that her written responses to the defendants' discovery requests were sufficient to identify an ascertainable loss and avoid summary judgment.
Citing our decision in Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18, 947 A.2d 320 (2008), the trial court held that although the plaintiff was "not required to provide proof of actual damages in the form of a specific dollar amount," she was required to submit at least some proof of her alleged loss in order to defeat summary judgment. Because the plaintiff had failed to attach to her opposition any "supporting documentation, in the form of affidavits or other evidence of measurable damages," the court concluded that the pleadings and proof, in toto, failed to establish a genuine issue of material fact as to whether the plaintiff, either in her personal or representative capacity, had suffered "any loss of money or property...."
In so concluding, the trial court rejected the plaintiff's argument that her responses to the defendants' discovery requests were sufficient to maintain her CUTPA claim, finding, to the contrary, that the plaintiff's opposition contained only "conclusory statements and a list of office supplies allegedly taken by Poirot." Specifically, the court observed, in response to the defendants' discovery requests to state the amount of damages she had allegedly sustained, the plaintiff replied: "`A complete account of financial damages and losses is ongoing, therefore no itemization can be listed herein. As soon as the cumulative value has been assessed we will forward a copy of the same.'" The court noted, however, that more than one year later, no such itemization had been produced.
The Appellate Court affirmed the judgment of the trial court, emphasizing that "the plaintiff had failed to produce an itemization of her claimed CUTPA damages" in response to Poirot's repeated requests that she "state the amount of damages [she had] allegedly sustained." Marinos v. Poirot, supra, 132 Conn.App. at 708, 33 A.3d 282. This appeal followed.
The plaintiff contends that the Appellate Court improperly affirmed the trial court's judgment on the ground that the plaintiff's failure to produce an itemization of her damages was fatal to her CUTPA claims. The defendants disagree with the plaintiff's reading of the trial court's memorandum of decision, arguing that the trial court in fact rendered summary judgment in their favor because the plaintiff had failed to identify any evidence in her opposition that either she or Meo's estate had suffered any ascertainable loss. We agree with the defendants.
CUTPA is, on its face, a remedial statute
Of course, a plaintiff still must marshal some evidence of ascertainable loss in support of her CUTPA allegations, and a failure to do so is indeed fatal to a CUTPA claim on summary judgment. See, e.g., Anderson v. Schoenhorn, 89 Conn.App. 666, 675, 874 A.2d 798 (2005) (affirming trial court's entry of summary judgment in favor of defendants on plaintiff's CUTPA claim when plaintiff "failed to provide any basis on which a jury could conclude that the defendants' conduct violated CUTPA" [emphasis added]).
Turning to the present case, we conclude that the Appellate Court properly affirmed the trial court's grant of the defendants' motions for summary judgment. Although we agree with the plaintiff that a litigant need not produce an "itemization" of her claimed CUTPA damages to defeat a motion for summary judgment, we conclude that on any fair reading, the trial court's decision does not suggest otherwise. Rather, we observe that it was the plaintiff who alleged in her discovery responses that she could and would furnish an "itemization" of her claimed CUTPA damages, and who relied on these representations, in lieu of any evidence of her alleged loss, in opposing summary judgment. Specifically, the plaintiff represented that she was conducting a "complete account of [her alleged] financial damages and losses" and that although she could not yet produce an "itemization," "the same" would be delivered to the defendants "[a]s soon as the cumulative value [of the alleged losses had] been assessed...." The trial court therefore correctly concluded that the plaintiff's failure to tender this or any other documentary evidence in support of her opposition compelled the entry of summary judgment for the defendants. We therefore read the trial court's well reasoned decision to suggest that while the promised itemization certainly would have been sufficient to identify an ascertainable loss at the summary judgment stage, it was hardly necessary for this purpose, as the plaintiff should have submitted instead an affidavit,
By contrast, the trial court noted that the defendants had attached substantial documentary evidence to their motions for summary judgment, including the sworn affidavits of both defendants, a fee-splitting agreement executed by the plaintiff and Poirot, and copies of several memoranda of decision disposing of previous claims between the plaintiff and the defendants. The defendants' submission also asserted that, as a result of the agreement and prior judicial rulings, the plaintiff was not entitled to any additional compensation as a matter of law. This evidence shifted the burden to the plaintiff to demonstrate that her allegations of loss were supported by at least some proof. After the defendants' submission, the plaintiff's "[m]ere assertions of fact" became "insufficient to establish the existence of a material fact, and, therefore, [could] not refute [the] evidence properly presented to the court" by the defendants.
To the extent that the Appellate Court affirmed the judgment of the trial court on the ground that the plaintiff's failure specifically to produce an "itemization" of her damages was fatal to her CUTPA claims, however, we disagree with such reasoning. Black's Law Dictionary defines the verb "itemize" as "[t]o list in detail; to state by items," and gives the example of "an itemized bill." Black's Law Dictionary (9th Ed.2009). Requiring a plaintiff to list her damages "in detail," however, would be tantamount to requiring her to "provide proof of damages in the form of a specific dollar amount," something this court has expressly — and repeatedly — declined to do. See, e.g., Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 50, 717 A.2d 724 (1998) (considering plaintiff's CUTPA claim on appeal despite plaintiff's failure adequately to prove lost profit damages "to a reasonable certainty"); Service Road Corp. v. Quinn, supra, 241 Conn. at 643-44, 698 A.2d 258 (concluding that "in the business context, a plaintiff asserting a CUTPA claim may satisfy the ascertainable loss requirement of § 42-110g by establishing, through a reasonable inference, or otherwise, that the defendant's unfair trade practice has caused the plaintiff to lose potential customers" and that "[a] loss of prospective customers constitutes a deprivation, detriment [or] injury that is capable of being discovered, observed or established" [internal quotation marks omitted]); Hinchliffe v. American Motors
Although we previously have not had occasion to specify the evidentiary showing a CUTPA plaintiff must make in order to defeat a defendant's motion for summary judgment, we believe that our precedents suggest the answer. In prior decisions, we have upheld a finding of ascertainable loss — both at trial and in ruling on dispositive motions — on the basis of affidavits and other documentary evidence, as well as trial and deposition testimony. See, e.g., Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 287 Conn. at 220, 947 A.2d 320 (putative class of CUTPA plaintiffs made showing of ascertainable loss sufficient to uphold class certification through affidavits, documentary evidence); Service Road Corp. v. Quinn, supra, 241 Conn. at 644-45, 698 A.2d 258 (affirming trial court's finding of ascertainable loss, despite plaintiffs' failure to prove extent of loss, on basis of testimony of two witnesses, including expert). We see no reason to hold a CUTPA litigant to a different standard at summary judgment. Accordingly, we conclude that a CUTPA litigant may establish the existence of a genuine issue of material fact as to whether she has suffered an ascertainable loss through the use of affidavits or other documentary evidence, such as business records or transcripts of testimony, identifying a measurable loss. Indeed, when confronted with a motion for summary judgment, a CUTPA plaintiff must do so, for "[i]t is not enough that one opposing a motion for ... summary judgment claims there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented in the counter affidavit." (Internal quotation marks omitted.) Plouffe v. New York, New Haven & Hartford Railroad Co., 160 Conn. 482, 490, 280 A.2d 359 (1971); accord Federal Trade Commission v. Inc21.com Corp., 745 F.Supp.2d 975, 1008 (N.D.Cal.2010) (government agency established entitlement to summary judgment on federal unfair trade practices claim through two sworn witness declarations that defendants failed to rebut). Because the plaintiff in the present case failed to present any such evidence in opposition to the defendants' motions for summary judgment, and, indeed, failed even to request a continuance to marshal such evidence,
In this opinion the other justices concurred.