ERIC J. SHAMES v. ANTONY CONTOMICHALOS ET AL.
2011 Ct. Sup. 16752
No. CV 10 6004914Connecticut Superior Court Judicial District of New London at New London
July 27, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, No. 127
COSGROVE, J.
FACTS
On June 23, 2010, the plaintiff, Eric J. Shames, filed a twenty-count complaint against the defendants, Antony Contomichalos, Working Realty, Ltd., Joshua Prottas, MacArthur Properties Ventures, LLC and MacArthur Capital, Inc., arising out of a commercial real estate transaction. Count eight of the complaint, sounding in breach of contract and directed against the defendants Working Realty and Prottas, is the subject of this memorandum. It alleges the following facts. In September 2006, the plaintiff and the defendant Prottas decided to invest in a piece of undeveloped real estate located in Waterford, Connecticut. The two men had engaged in investments together for several years. Prottas represented to the plaintiff that he was going to contribute half of the purchase price for the property and that both he and the plaintiff would be equal partners. Prottas advised the plaintiff that he should enter into a nominee agreement with the defendant Working Realty, a corporate entity completely owned by Prottas. Pursuant to the nominee agreement, Working Realty would ?own, 100% of the record legal title to the Working Realty, Ltd. Interest in the Property solely as nominee for Shames.? On September 14, 2006, the plaintiff delivered $300,000 to Prottas to invest in the subject property. By special warranty deed dated September 14, 2006, the defendants MacArthur Properties Ventures, LLC and Working Realty purchased the property as tenants in common. The plaintiff was never informed of MacArthur Properties Ventures, LLC?s ownership interest in the property. The plaintiff alleges that Working Realty breached its responsibilities under the nominee agreement by taking title to the subject property as a tenant in common.
On March 31, 2011, the plaintiff filed a motion for summary judgment as to liability against the defendants Working Realty and Prottas on the eighth count of the complaint. The motion is accompanied by a memorandum of law, an affidavit from the plaintiff and copies of the nominee agreement and special warranty deed conveying the subject property. On CT Page 16753 May 4, 2011, the defendants Working Realty and Prottas filed an objection to the plaintiff?s motion for summary judgment and a memorandum of law in support of their objection. The plaintiff filed a reply memorandum on May 25, 2011.
DISCUSSION
?Practice Book ? 17-49 provides that 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.? (Internal quotation marks omitted.)?Sherman v. Ronco,?294 Conn. 548,?553-54,?985 A.2d 1042?(2010). ?In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The 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 . . . 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.??Ramirez v. Health Net of the Northeast, Inc.,?285 Conn. 1,?10-11,?938 A.2d 576?(2008).
In the present case, the plaintiff argues he is entitled to summary judgment with respect to count eight on the ground that there is no dispute of material fact that Working Realty and Prottas breached the nominee agreement between the plaintiff and these two defendants. Specifically, the plaintiff states that Working Realty?s breach occurred when it took title to the subject property in fee simple as a tenant in common and not as a nominee for the plaintiff, depriving the plaintiff of ownership in the property. In response, the defendants contend that not only are there genuine issues of material fact with respect to count eight, but also the evidence presented by the plaintiff does not even support a breach of contract claim.
?The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.? (Internal quotation marks omitted.)?Rosato v. Mascardo,?82 Conn.App. 396,?411,?844 A.2d 893?(2004).
In reviewing the plain language of the nominee agreement and the allegations of the complaint, the plaintiff cannot establish that there CT Page 16754 are no genuine issues of material fact that the defendants have breached the agreement. Paragraph thirty-seven of count eight of the complaint purports to allege the terms of the nominee agreement. Paragraph thirty-seven section (a) states: ?Mr. Shames would provide the Defendant Working Realty, Ltd. with $300,000 for purposes of investing in the Waterford Property.? Section (b) of the paragraph states: ?Defendant Working Realty, Ltd. would take title to the Waterford Property as a nominee of Mr. Shames.? It should first be noted that there is no mention whatsoever in the nominee agreement of any contribution on the part of the plaintiff for investing in the subject property.
More importantly, however, the agreement clearly states that ?Working Realty Ltd is the record owner of 50% of the property . . . and . . . Working Realty Ltd acknowledges that it does not own all of the Interest in the Property and that Shames owns beneficially a 100% undivided interest of the Working Realty Ltd Interest in the Property.? Thus, under the terms of the nominee agreement, the evidence indicates that Working Realty owns half of the subject property, and this half interest is held solely as nominee for the plaintiff. The agreement?s scope appears to be only Working Realty?s one-half interest in the property. The nominee agreement was executed one day after the special warranty deed was signed, granting the subject property to MacArthur Properties Ventures, LLC and Working Realty as tenants in common. Read together, in viewing the evidence most favorable to the defendants, the deed granted Working Realty a one-half interest in the property and the nominee agreement states that Working Realty?s interest is being held for the benefit of the plaintiff. The court is mindful that ?[i]n 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.? (Internal quotation marks omitted.)?Maltas v. Maltas,?298 Conn. 354,?365,?2 A.3d 902?(2010). Therefore, issues of fact clearly exist as to whether a breach of the nominee agreement occurred, and the plaintiff has failed to meet his burden as the moving party of a motion for summary judgment.
CONCLUSION
Based on the foregoing, the plaintiff?s motion for summary judgment with respect to count eight of the complaint is hereby denied.
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