LAVINE, J.
The plaintiff, Eloise Marinos, individually and as administratrix of the estate of Steven F. Meo (Meo),
The following facts provide the background for our resolution of this appeal. 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.
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 in the Meo law office. In April, 2009, the plaintiff commenced this action against the defendants.
On September 27, 2010, Poirot filed a motion for summary judgment, with a memorandum of law and supporting documents, as to counts one through five and eight through nineteen of the revised complaint. Johnson filed his motion for summary judgment, with a memorandum of law and supporting documents as to counts six and seven, on October 8, 2010. The plaintiff filed objections to both motions accompanied by memoranda of law and supporting documents. The parties appeared at short calendar on November 8, 2010, to argue the motions for summary judgment. Additional facts will be addressed as necessary.
"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. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court's decision to grant [a party's] motion for summary judgment is plenary." (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).
"A material fact is a fact which will make a difference in the result of the case. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citation omitted; internal quotation marks omitted.) Curley v. Kaiser, 112 Conn.App. 213, 220, 962 A.2d 167 (2009). In ruling on a motion for summary judgment, "[t]he test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000).
The plaintiff's first claim is that the court improperly granted summary judgment in favor of Poirot on counts one, ten and fifteen, which allege breach of the duty of loyalty. The court found that the plaintiff had not submitted evidence that quantified the damages that the plaintiff purportedly sustained as a result of Poirot's alleged breach of the duty of loyalty. We agree with the trial court.
The court found that the plaintiff alleged that Poirot breached the duty of loyalty that he owed to Meo by using the Meo law office staff and supplies to open his own law office, entering into contracts on behalf of the Meo law office without approval, signing checks without proper authorization and appropriating clients and computer data to the detriment of the Meo law office.
This court addressed a breach of the duty of loyalty claim in News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 533-38, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005). "The relationship of principal and agent implies trust or confidence by the
In News America Marketing In-Store, Inc., the trial "court expressly found that the plaintiff had failed to adduce any evidence of harm resulting from the alleged acts of misconduct by [the defendant Steven] Marquis." Id., at 535, 862 A.2d 837. In the present action, the court found that the plaintiff failed to provide evidence of measurable damages resulting from Poirot's alleged breach of the duty of loyalty and failed to include an accounting of alleged damages in her objection to Poirot's motion for summary judgment. "[P]roof of a specific loss is an essential element in a cause of action for breach of the duty of loyalty owed by an employee to his employer." (Internal quotation marks omitted.) News America Marketing In-Store, Inc. v. Marquis, 276 Conn. 310, 313, 885 A.2d 758 (2005).
On appeal, the plaintiff claims that she presented evidence of quantifiable damages. We agree that she presented a list of damages that could be quantified, but she did not present evidence of the value of those damages. Although "the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion [for summary judgment] . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998). Demonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. See United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. See Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986).
To oppose successfully the motion for summary judgment, the plaintiff was required to introduce evidence to indicate the dollar value of the harm she claims she sustained.
The plaintiff's second claim is that the court improperly granted summary judgment on counts four, thirteen and eighteen alleging conversion, and counts five, fourteen and nineteen alleging civil theft
The tort of "[c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 169, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). The tort of conversion requires, in addition, that the owner be harmed as a result of the unauthorized act. See Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979). "[S]tatutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Suarez-Negrete v. Trotta, 47 Conn.App. 517, 521, 705 A.2d 215 (1998).
In his motion for summary judgment, Poirot argued that the plaintiff was unable to establish any damages resulting from his alleged acts.
On appeal, the plaintiff claims that the issue is whether she is obligated to prove the precise amount of her damages or to prove only the existence of some damages that a jury would be capable of determining. She relies on an unassailable proposition of law that Connecticut "does not require a party claiming damages to prove them with exactitude or precision. Indeed, a party seeking damages must only afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that [party's] loss. From the very nature of the situation, the amount of loss cannot be proved with exactitude and all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and
The plaintiff argues that although her responses to Poirot's interrogatories do not provide appraisals of the value of the office supplies, the responses itemize the categories of loss with sufficient clarity so that a jury could make a fair and reasonable estimate of the damages. Our review of the plaintiff's answers to the relevant interrogatories persuades us that those answers do not meet the standard by which a jury could assign a fair, just and reasonable value of the damages the plaintiff alleges she sustained.
Meo died in April, 2006, and the Meo law office closed soon thereafter. The plaintiff commenced this action in April, 2009, and Poirot served interrogatories on the plaintiff on June 16, 2009. The plaintiff received an extension of time within which to respond to the interrogatories and answered them on August 14, 2009. Interrogatory number five of Poirot's first set of interrogatories stated: "Provide a detailed description, including the estimated fair market value, of each item of office supplies and books of the [Meo law office] that you allege Poirot took for his own purposes, as alleged in paragraph 23(c) of each count of the Complaint." The plaintiff's answer stated: "Mr. Poirot took, for his own use, the following office supplies: copy paper, paper clips, note pads, pens, file folders, binders, boxes, tape, envelopes. The plaintiff does not know the fair market value of the office supplies that were usurped by the defendant, David Poirot." (Emphasis added.)
Poirot filed a motion for summary judgment on September 27, 2010. The parties appeared at short calendar to argue the motion on November 8, 2010. Our review of the court file indicates that the plaintiff did not request an extension of time to respond to the motion for summary judgment. See Practice Book § 17-45. Our review encompassed the documents the plaintiff submitted to oppose the summary judgment motion, including her responses to Poirot's interrogatories. Her answer to the fifth interrogatory lists office supplies that the plaintiff alleges Poirot misappropriated, but not the quantities by unit or the value of a unit. She also stated that she was unable to ascertain the fair market value of those supplies. In order to prevail on claims of conversion and civil theft, a plaintiff must prove harm. If the plaintiff could not assign a fair market value to the office supplies more than four years after the Meo law office closed, on this record, no jury could award damages without resorting to speculation. The court therefore properly granted Poirot's motion for summary judgment on the counts of conversion and civil theft.
The plaintiff's third claim is that the court improperly granted summary judgment on counts two, eleven and sixteen alleging computer crimes; see General Statutes § 53a-251; on the ground that the expenses she incurred with regard to the computer system in the Meo law office were related to trial preparation. We do not agree.
In her revised complaint, the plaintiff alleges, among other things, that "Poirot was not authorized to access the computer system of the [Meo law office] to set up his own law practice and appropriate the business of the [Meo law office]. . . . Poirot deleted data from the computer systems of the [Meo law office] to cover up his actions, and the [e]state has incurred substantial expenses in reconstructing the deleted data. . . . Plaintiff is entitled to recovery
Section 53a-251 provides in relevant part: "(b) . . . (1) A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization . . . . (e) . . . A person is guilty of the computer crime of misuse of computer system information when . . . (2) he intentionally or recklessly and without authorization (A) alters, deletes, tampers with, damages, destroys or takes data intended for use by a computer system . . . ." Section 52-570b (c) provides in relevant part: "[A]ny person who suffers any injury to person, business or property may bring an action for damages against a person who is alleged to have violated any provision of section 53a-251. The aggrieved person shall recover actual damages and damages for unjust enrichment not taken into account in computing damages for actual loss. . . ."
The court found, among other things, that the plaintiff alleged that Poirot did not have authorization to access and to use the Meo law office's computer system to set up his own law practice and to appropriate business from the Meo law office. Moreover, the plaintiff alleged that Poirot deleted data from the Meo law office computer system to "cover up" his actions and that the plaintiff incurred substantial expenses in reconstructing the deleted data. The court noted, pursuant to News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn.App. at 541-42, 862 A.2d 837, that expenses incurred by a party in investigating alleged wrongdoing constitutes a litigation expense and may not be claimed as damages. The court concluded that any expenses the plaintiff paid to recover the allegedly deleted data are not recoverable. The court also found that the circumstances of this case are not those of an existing law firm that has alleged a loss of future business or some other financial hardship due to a departing employee's acts. The Meo law office closed shortly after Meo's death. The court concluded therefore that there was no issue of material fact as to whether the plaintiff had sustained damages resulting from the alleged computer crimes. For the foregoing reason, the court properly granted summary judgment on counts two, eleven and sixteen.
The plaintiff's fourth and final claim is that the court improperly granted summary judgment on count nine, which alleges CUTPA violations as to Poirot, and count seven, which alleges CUTPA violations as to Johnson, on the ground that she failed to present evidence of damages within the meaning of Connecticut law.
"A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he [or she] must present evidence providing the court with a basis for a reasonable estimate of the damages suffered." (Internal quotation marks omitted.) MacMillan v. Higgins, 76 Conn.App. 261, 279, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003). The plaintiff had the burden of presenting facts to the court giving rise to a genuine issue of fact that she and the estate suffered an ascertainable loss as a result of the defendants' alleged acts. See Service Road Corp. v. Quinn, 241 Conn. 630, 639, 698 A.2d 258 (1997).
"The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation. . . . An ascertainable loss is a loss that is capable of being discovered, observed or established. . . . The term loss necessarily encompasses a broader meaning than the term damage, and has been held synonymous with depravation, detriment and injury. . . . To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount. . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known." (Citations omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d 320 (2008).
The court found that, although the plaintiff was not required to provide proof of actual damages in the form of a specific dollar amount, the damages must be measurable. The plaintiff claimed to have provided measurable damages in response to Poirot's interrogatories and requests for production, namely exhibits three, four and five. The court found, however, that the plaintiff's responses do not contain any itemization of damages that supports her CUTPA claims.
The judgment is affirmed.
In this opinion the other judges concurred.