2005 Ct. Sup. 15151
No. CV 05 4005249 SConnecticut Superior Court Judicial District of Stamford-Norwalk Complex Litigation Docket at Stamford
November 29, 2005
MEMORANDUM OF DECISION
DAVID R. TOBIN, JUDGE.
Presently before the court is a motion for summary judgment dated October 12, 2005 filed by the plaintiffs. In that motion the plaintiff’s request the court to grant summary judgment in their favor on the defendant’s counterclaim. The first count of the complaint alleges that the defendant breached a contract to perform paving work for the plaintiffs by failing to install a driveway in accordance with the contract. The second alleges breach of a guarantee of work and materials under the contract. In its answer the defendant denied all essential allegations of the complaint and asserted a counterclaim alleging that the plaintiffs were unjustly enriched as the result of services rendered and materials furnished to the plaintiffs. The counterclaim does not state the amount of the claim, however, the statement of amount on demand seeks between $2,500 and $15,000 in damages.
In support of their motion for summary judgment the plaintiffs submitted an affidavit from Vicenzo Iannone, the sole member of Backlot, LLC and the president of R.I. Pools, Inc. In his affidavit Iannone states that the work performed by the defendant for the plaintiffs was done pursuant to a written contract. A copy of a contract dated September 17, 2004 is annexed to the affidavit. That contract, purportedly signed by the parties, shows a base price of $39,500. Also attached to the affidavit is a copy of an invoice rendered to R.I. Pools, Inc. referencing a contract with a base price of $39,500 and claiming $5,980 in additional work and materials. No opposing memorandum or materials were filed by the defendant.
“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The CT Page 15152 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 fact . . . 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.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1
(2005).
The undisputed facts established by the plaintiffs’ affidavits show that the parties entered into a written contract covering the paving which is the subject matter of this litigation. The claim for unjust enrichment set forth in the defendant’s counterclaim cannot be maintained when there is an express contract between the parties. Rosick v. Equipment Maintenance Service, Inc., 33 Conn.App. 25, 37, 632 A.2d 1134 (1993). See also Burns v. Koellmer, 11 Conn. 375, 385, 527 A.2d 1210 (1987) “[P]arties who have entered into controlling express contracts are bound by such contracts to the exclusion of inconsistent implied contract obligations.” H.B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 347, 446 A.2d 1 (1982). It is apparent that the defendant’s counterclaim is founded on the same express contract that furnishes the basis for the plaintiffs’ complaint. Accordingly, the plaintiff’s motion for summary judgment on the defendant’s counterclaim is granted. CT Page 15153