2 National Place, LLC v. Reiner ( 2014 )

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2 NATIONAL PLACE, LLC v. MICHAEL
D. REINER ET AL.
(AC 35642)
Bear, Keller and Harper, Js.*
Argued April 24—officially released September 2, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Jenna N. Sternberg, for the appellant (plaintiff).
David L. Gussak, with whom, on the brief, was Gary
J. Greene, for the appellee (defendant Greene Law,
P.C.).
Opinion
KELLER, J. The plaintiff, 2 National Place, LLC,
appeals from the summary judgment rendered by the
trial court in favor of the defendant law firm of Greene
Law, P.C.1 The plaintiff claims that the trial court
improperly concluded that the defendant, as a matter
of law, (1) did not breach its fiduciary duty to the plain-
tiff, and (2) was not vicariously liable for the alleged
statutory theft, pursuant to General Statutes § 52-564,
and unjust enrichment of its agent, Attorney Michael
D. Reiner, who had provided the plaintiff with legal
representation in connection with the closing of the
sale of the plaintiff’s real property. We affirm the judg-
ment of the trial court.
The following facts, as alleged in the plaintiff’s opera-
tive complaint,2 and procedural history are necessary
for our resolution of this appeal. By way of a three
count complaint, the plaintiff commenced this action
against the defendant and Reiner, in which he alleged
breach of fiduciary duty, statutory theft pursuant to
§ 52-564, and unjust enrichment. The plaintiff, a Con-
necticut limited liability company of which the sole
member is Charles Levesque, alleged that Reiner was
licensed to practice law in Connecticut, and that prior
to April, 2008, he practiced at the law firm of Reiner,
Reiner & Bendett, P.C., in Farmington. On or about April
1, 2008, Reiner terminated his employment at Reiner,
Reiner & Bendett, P.C., and became employed by the
defendant law firm, a Connecticut corporation that had
formed on or about March 31, 2008. Reiner previously
had performed ‘‘various legal services’’ for the plaintiff
while he was practicing at Reiner, Reiner & Bendett,
P.C., and continued to do so after he began working
for the defendant. The plaintiff understood that it owed
no legal fees to Reiner, Reiner & Bendett, P.C., as of
April, 2008, when Reiner left the firm.
At some point prior to July 16, 2008, the plaintiff
retained Reiner to represent it in connection with a
closing of the sale of real property that it owned known
as 2 National Place in Danbury. The plaintiff alleged
that ‘‘[p]rior to the closing, Reiner had stated that he
would only charge the fee of $1,000 for the legal work
associated with the closing and would hold the balance
of the money for the benefit of the plaintiff.’’ On July
16, 2008, with Reiner’s assistance, the plaintiff closed
on the sale of the property. At that time, ‘‘the settlement
agent disbursed to [the defendant] the sum of $293,750,
which was deposited in an [Interest on Lawyer Trust
Account] held by [the defendant].’’ The defendant sub-
sequently transferred $195,000 of that sum from the
account to the plaintiff. The defendant then paid to
Reiner, by check, the account’s remaining balance of
$98,750, allegedly without the plaintiff’s knowledge or
consent. Reiner later refused the plaintiff’s demands to
return the funds in excess of the agreed upon sum of
$1000 or to provide the plaintiff with an accounting of
the funds. The plaintiff further alleged that Reiner and
the defendant fraudulently claimed that the payment
of $98,750 was intended to compensate Reiner for previ-
ous fees owed either to him or Reiner, Reiner & Ben-
dett, P.C.
In count one of the complaint, the plaintiff alleged
that because Reiner was working for the defendant at
the time of the closing, the defendant therefore ‘‘owed
the plaintiff a fiduciary duty, independent of the fidu-
ciary duty owed by Reiner,’’ and it breached that duty
by failing to account for or to deliver the funds to the
plaintiff, and by failing to ‘‘memorialize the basis upon
which . . . [the defendant was] accepting custody and
responsibility for the plaintiff’s funds.’’ In count two,
the plaintiff alleged that the defendant was liable for
statutory theft pursuant to § 52-564,3 because the defen-
dant and Reiner ‘‘intended to permanently deprive the
plaintiff of its property,’’ when the defendant received
the funds or when Reiner subsequently refused to
account for or to return them. Finally, in count three,
the plaintiff alleged that the defendant and Reiner were
liable under a theory of unjust enrichment as a result
of Reiner’s refusal to return the funds disbursed by the
defendant.4 In each count the plaintiff alleged that it
suffered damages.
On August 10, 2012, the defendant filed an answer
to the operative complaint, and, on October 15, 2012,
it filed a motion for summary judgment as to liability.
Along with its motion, the defendant filed a memoran-
dum of law and affidavits by Reiner and Attorney Gary
J. Greene, the defendant’s president.5 The plaintiff sub-
sequently objected to the defendant’s motion and filed
a memorandum of law in opposition. It also submitted
the affidavit of Levesque.6 Significantly, the various affi-
davits revealed that there was a dispute as to the pur-
pose of the payment made to Reiner: Levesque
understood that the funds ‘‘would be applied against
future legal fees incurred by [the defendant],’’ whereas
Reiner believed that the funds were intended to com-
pensate Reiner for legal work he previously had per-
formed while practicing at Reiner, Reiner & Bendett,
P.C. Greene, in contrast, averred that the payment to
Reiner was made pursuant to a settlement statement,
commonly referred to as a HUD-1, signed by Levesque,
that indicated that $98,750 of the proceeds from the
sale of the property were to be paid from the seller’s
funds at settlement to Reiner.
Oral argument on the motion for summary judgment
was heard on January 28, 2013. On the same day, the
court issued a written order denying in part and granting
in part the motion. The court found that a genuine issue
of material fact existed as to the purpose of the payment
to Reiner, whether it was ‘‘for work done prior to and
at the closing . . . or whether some of that money was
to be held by Attorney Reiner for future work,’’ and
therefore denied summary judgment as to Reiner. The
court, however, granted summary judgment as to the
defendant. With respect to the breach of fiduciary duty
count against the defendant, the court stated: ‘‘Attorney
Greene was not present at the closing, there is no claim
that he knew of the dispute between [the plaintiff] and
Attorney Reiner . . . .’’ The court continued: ‘‘Greene
had no interest in the $98,750, which went solely to
Attorney Reiner.’’ Additionally, the court noted that the
payment to Reiner ‘‘was solely the affair of the agent
[of the defendant],’’ and concluded that the defendant
could not, as a matter of law, be held liable for Reiner’s
allegedly wrongful acts. Accordingly, the court granted
the motion for summary judgment as to liability with
respect to the defendant.
On February 15, 2013, the plaintiff filed a motion to
reargue, to which the defendant objected on February
20, 2013. On April 4, 2013, the court held a hearing
on the motion to reargue and issued a written order
affirming its decision granting summary judgment as
to the defendant. The court stated: ‘‘There is no evi-
dence of breach of fiduciary duty. The evidence at this
point is that [the defendant] fulfilled its duty as fidu-
ciary. The court affirms its decisions granting summary
judgment in favor of [the defendant] on [the counts of]
civil theft and unjust enrichment. . . . There is no evi-
dence [the defendant] benefited financially or otherwise
. . . .’’ This appeal followed. Additional facts and pro-
cedural history will be set forth as necessary.
As a preliminary matter, we set forth our standard
of review and other legal principles relevant to evaluat-
ing a court’s decision to grant a motion for summary
judgment. ‘‘Practice Book [§ 17-49] provides that sum-
mary judgment shall be rendered forthwith if the plead-
ings, 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. . . . Once the moving party has presented evi-
dence in support of the motion for summary judgment,
the opposing party must present evidence that demon-
strates 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 estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book [§ 17-45].’’ (Internal quotation
marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.
App. 700, 704–705, 807 A.2d 968, cert. denied, 262 Conn.
915, 811 A.2d 1291 (2002).
‘‘Summary judgment rulings present questions of law;
accordingly, [o]ur review of the . . . decision to grant
the defendant’s motion for summary judgment is ple-
nary. . . . 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[s] him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . In order for a motion for summary judgment
to be granted properly, the moving party must demon-
strate 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. . . . [A] summary dispo-
sition [must] . . . be on evidence which a jury would
not be at liberty to disbelieve and . . . where, on the
evidence viewed in the light most favorable to the non-
movant, the trier of fact could not reasonably reach any
other conclusion than that embodied in the [summary
judgment].’’ (Citations omitted; internal quotation
marks omitted.) Farrell v. Twenty-First Century Ins.
Co., 301 Conn. 657, 661–62, 21 A.3d 816 (2011).
I
The plaintiff first claims that because a genuine issue
of material fact existed as to the defendant’s knowledge
of the purpose and legitimacy of the payment to Reiner,
the court improperly determined that, as a matter of
law, the defendant did not breach its fiduciary duty to
the plaintiff. We disagree.
We begin with a discussion of fiduciary relationships.
‘‘[I]n order to maintain a claim for breach of fiduciary
duty, the plaintiff [is] required first to prove the exis-
tence of a fiduciary relationship.’’ (Emphasis omitted.)
Golek v. Saint Mary’s Hospital, Inc., 133 Conn. App.
182, 196–97, 34 A.3d 452 (2012). ‘‘The law does not
provide a bright line test for determining whether a
fiduciary relationship exists, yet courts look to well
established principles that are the hallmark of such
relationships. Our Supreme Court has stated that [a]
fiduciary or confidential relationship is characterized
by a unique degree of trust and confidence between
the parties, one of whom has superior knowledge, skill
or expertise and is under a duty to represent the inter-
ests of the other. . . . The superior position of the
fiduciary or dominant party affords [it] great opportu-
nity for abuse of the confidence reposed in him. . . .
We have not, however, defined that relationship in pre-
cise detail and in such a manner as to exclude new
situations, choosing instead to leave the bars down for
situations in which there is a justifiable trust confided
on one side and a resulting superiority and influence
on the other. . . . Fiduciaries appear in a variety of
forms, including agents, partners, lawyers, directors,
trustees, executors, receivers, bailees and guardians.
. . .
‘‘The fact that one party trusts another is not disposi-
tive of whether a fiduciary relationship exists . . .
rather, proof of a fiduciary duty requires an evidentiary
showing of a unique degree of trust and confidence
between the parties such that the [defendant] under-
took to act primarily for the benefit of the plaintiff.’’
(Citations omitted; internal quotation marks omitted.)
Iacurci v. Sax, 139 Conn. App. 386, 401–402, 57 A.3d
736 (2012), cert. granted on other grounds, 308 Conn.
910, 61 A.3d 1100 (2013). In the present case, the parties
are in agreement that they were bound in a fiduciary
relationship and that the defendant owed the plaintiff
certain fiduciary duties. We turn, therefore, to the sec-
ond component of a breach of fiduciary duty claim.
‘‘Once a [fiduciary] relationship is found to exist, the
burden of proving fair dealing properly shifts to the
fiduciary. . . . Furthermore, the standard of proof for
establishing fair dealing is not the ordinary standard of
fair preponderance of the evidence, but requires proof
either by clear and convincing evidence, clear and satis-
factory evidence or clear, convincing and unequivocal
evidence.’’ (Internal quotation marks omitted.) Barber
v. Skip Barber Racing School, LLC, 106 Conn. App. 59,
75, 940 A.2d 878 (2008). ‘‘[B]reach of a fiduciary duty
implicates a duty of loyalty and honesty.’’ (Internal quo-
tation marks omitted.) Iacurci v. Sax, supra, 139 Conn.
App. 402. Finally, ‘‘a fiduciary . . . [has] the duty to
deal fairly with [its client], not simply to act reasonably
based upon the relevant information. . . . That is, the
duty to make a ‘reasonable’ business decision based
upon all the circumstances [is] not necessarily the
equivalent of a duty to deal fairly, as a fiduciary, with
the [client].’’ (Citation omitted.) Konover Development
Corp. v. Zeller, 228 Conn. 206, 221, 635 A.2d 798 (1994).
The plaintiff argues that the defendant breached its
fiduciary duty because it relied solely on the representa-
tions made in the HUD-1 settlement statement in dis-
bursing the funds to Reiner, and the defendant did so
without first obtaining his permission, as the client.
The following additional facts, which are not in dis-
pute, are necessary to our resolution of this claim. As
required by federal law, a HUD-1 settlement statement
was prepared in connection with the closing on the sale
of the property.7 The HUD-1, which was attached as an
exhibit to the affidavit submitted by Reiner, was signed
by Levesque on behalf of the plaintiff, and identifies
PM Danbury, LLC, as the borrower and purchaser of
the property, The Washington Trust Company as the
lender, and the subject property as 2 National Place in
Danbury. It further lists the ‘‘contract sales price’’ of
the property as $3,300,000, and revealed that the prop-
erty was encumbered by two mortgages: a first mort-
gage in favor of Union Savings Bank in the amount of
$1,347,046.04, and a second mortgage in favor of Savings
Institute in the amount of $307,000.11. The HUD-1 also
listed a ‘‘Payoff to Sovereign Bank’’ of $1,063,452.87.
Finally, and of particular note, the HUD-1 indicated
that ‘‘Attorney’s Fees to Michael D. Reiner, Esq.’’ in the
amount of $98,750 were to be ‘‘paid from seller’s funds
at settlement.’’ The settlement agent certified, under
penalty of false statement, that ‘‘[t]o the best of my
knowledge, the HUD-1 settlement statement which I
have prepared is a true and accurate account of the
funds which were received and have been or will be
disbursed as part of the settlement of this transaction.’’
Having thoroughly reviewed the complaint, the
motion for summary judgment and the plaintiff’s objec-
tion thereto, and the parties’ supporting affidavits and
documentation, we conclude that the court properly
granted the defendant’s motion for summary judgment.
Although the plaintiff alleged that the defendant
breached its fiduciary duty by making a payment to
Reiner in accordance with the terms of the HUD-1 settle-
ment statement, the defendant successfully demon-
strated an absence of any genuine issue of material fact
as to whether it acted fairly, as a fiduciary, with the
plaintiff. The plaintiff, in turn, has failed to provide any
foundation establishing a lack of fair dealing on the
part of the defendant.
In his affidavit, Greene expressly averred that the
funds from the plaintiff’s settlement proceeds were dis-
bursed to Reiner in accordance with the terms set forth
in the HUD-1 settlement statement, and that the defen-
dant ‘‘did not take a fee for representing [the plaintiff]
in the [c]losing.’’ Further, in support of its motion for
summary judgment, the defendant submitted the tran-
script of the deposition of Greene. Therein, Greene
stated that it was his understanding that the funds were
included on the HUD-1 and to be disbursed to Reiner
because Reiner, in separating from his former law firm,
had purchased certain accounts receivable, and the pay-
ment was ‘‘money that was owed to Reiner, Reiner &
Bendett,’’ and ‘‘had nothing to do with the defendant.’’
Indeed, the HUD-1 expressly stated that the sum of
$98,750 in ‘‘attorney’s fees’’ was to be paid from the
plaintiff’s funds at settlement to ‘‘Michael D. Reiner,
Esq.,’’ and not to either the defendant or Reiner,
Reiner & Bendett, P.C.
In response, Levesque averred, inter alia, that until
mid-2009, he was the sole president, director and share-
holder of Fairfield Financial Mortgage Group, Inc. (Fair-
field Financial), a Connecticut corporation engaged in
‘‘the origination of residential mortgages for a profit
. . . .’’ While Reiner was practicing at Reiner, Reiner &
Bendett, P.C., he performed a significant amount of
legal work for the plaintiff and various other entities
with which he was associated, including Fairfield Finan-
cial. Although Reiner’s former law firm failed to provide
regular billing statements, Levesque attested that he did
not believe there to be any outstanding fees owed to
Reiner, Reiner & Bendett, P.C., at the time of the closing.
He averred that ‘‘at some point between March and July
2008, Attorney Reiner agreed to accept money from
the closing to hold as retainer funds for future work
performed on behalf of [Levesque and his associated]
entities.’’ These attestations, however, do not implicate
the defendant or create any question as to whether
the defendant had in fact acted fairly as the plaintiff’s
fiduciary. The evidence merely demonstrated that the
defendant relied on and acted in accordance with the
terms of the HUD-1 settlement statement, which was
signed by the plaintiff.
Neither the plaintiff’s pleadings nor the evidence
before the court raised the specter that the defendant
acted in a manner that was dishonest or disloyal to the
plaintiff in the course of their fiduciary relationship.
Instead, the evidence demonstrated that based on the
relevant terms of the HUD-1 settlement statement—
which was signed by Levesque, who himself was well
experienced with residential mortgages—the defendant
issued a check to Reiner. No evidence was submitted
that showed that the defendant’s representation of the
plaintiff was directly adverse to the plaintiff in any way,
or that disloyalty or dishonesty encouraged the defen-
dant to disburse the funds in a manner not in accor-
dance with the terms of the HUD-1. Indeed, the plaintiff
has not alleged any form of collusion or scheme
between the defendant and Reiner.
The plaintiff argues on appeal that ‘‘the circum-
stances leading up to the sale of the property raised or
should have raised several red flags for [the defendant]
relating to the amount of attorney’s fees claimed by
Reiner . . . making it inappropriate to rely on the
[HUD-1] settlement statement without first obtaining
sufficient documentation and/or clear client approval
. . . .’’ Specifically, the plaintiff argues that the attor-
ney’s fees were disproportionately high compared to
the sales price. The evidence before the court, however,
did not demonstrate that the defendant acted in an
unfair manner in its capacity as fiduciary. ‘‘Professional
negligence alone . . . alone does not give rise automat-
ically to a claim for breach of fiduciary duty. Although
an attorney-client relationship imposes a fiduciary duty
on the attorney . . . not every instance of professional
negligence results in a breach of fiduciary duty. . . .
Professional negligence implicates a duty of care, while
breach of a fiduciary duty implicates a duty of loyalty
and honesty.’’ (Internal quotation marks omitted.) Cam-
marota v. Guerrera, 148 Conn. App. 743, 759, 87 A.3d
1134, cert. denied, 311 Conn. 944, 90 A.3d 975 (2014).
A review of the pleadings and evidence before the court
reveals that the plaintiff’s claim of breach of fiduciary
duty sounds not in a breach of the defendant’s duty of
loyalty or honesty. Instead, the facts of this case evoke
a question of whether the defendant fulfilled its duty
of care—a cause of action the plaintiff did not plead.
See, e.g., id.Because the duties of loyalty and honesty are not
implicated by the facts of this case when viewed in the
light most favorable to the plaintiff, we conclude that
the court properly granted the defendant’s motion for
summary judgment as to the breach of fiduciary duty
count.
II
We next turn to the plaintiff’s claim that the court
improperly concluded that, as a matter of law, the defen-
dant could not be held liable for the alleged statutory
theft or unjust enrichment of Reiner. We conclude that
the court properly granted the defendant’s motion for
summary judgment as to these two counts of the plain-
tiff’s complaint.
The plaintiff’s claim rests on a theory of vicarious
liability, and specifically the doctrine of respondeat
superior. See footnote 4 of this opinion. ‘‘[T]he funda-
mental principles of the doctrine of respondeat superior
are well established in Connecticut. Under the doctrine
of respondeat superior, a master is liable for the wilful
torts of his servant committed within the scope of the
servant’s employment and in furtherance of his master’s
business. . . . The master is not held on any theory
that he personally interferes to cause the injury. It is
simply on the ground of public policy, which requires
that he shall be held responsible for the acts of those
whom he employs, done in and about his business, even
though such acts are directly in conflict with the orders
which he has given them on the subject. . . . [I]n order
to hold an employer liable for the intentional torts of
his employee, the employee must be acting within the
scope of his employment and in furtherance of the
employer’s business. . . . But it must be the affairs of
the principal, and not solely the affairs of the agent,
which are being furthered in order for the doctrine to
apply.’’ (Internal quotation marks omitted.) Cornelius
v. Dept. of Banking, 94 Conn. App. 547, 557, 893 A.2d
472, cert. denied, 278 Conn. 913, 899 A.2d 37 (2006).
‘‘In determining whether an employee has acted
within the scope of employment, courts look to whether
the employee’s conduct: (1) occurs primarily within the
employer’s authorized time and space limits; (2) is of
the type that the employee is employed to perform; and
(3) is motivated, at least in part, by a purpose to serve
the employer. . . . Ordinarily, it is a question of fact
as to whether a willful tort of the servant has occurred
within the scope of the servant’s employment . . .
[b]ut there are occasionally cases [in which] a servant’s
digression from [or adherence to] duty is so clear-cut
that the disposition of the case becomes a matter of
law.’’ (Citation omitted; internal quotation marks omit-
ted.) Harp v. King, 266 Conn. 747, 782–83, 835 A.2d
953 (2003). Furthermore, ‘‘[w]hile a servant may be
acting within the scope of his employment when his
conduct is negligent, disobedient and unfaithful . . .
that does not end the inquiry. Rather, the vital inquiry
in this type of case is whether the servant on the occa-
sion in question was engaged in a disobedient or unfaith-
ful conducting of the master’s business, or was engaged
in an abandonment of the master’s business. . . .
Unless [the employee] was actuated at least in part by a
purpose to serve a principal, the principal is not liable.’’
(Internal quotation marks omitted.) Mullen v. Horton,
46 Conn. App. 759, 764, 700 A.2d 1377 (1997).
In rendering summary judgment in favor of the defen-
dant, the court concluded that the evidence demon-
strated that although Reiner was the defendant’s agent
within the context of the closing, the payment to Reiner
was ‘‘solely the affairs of the agent.’’ Further, in conclud-
ing that Reiner’s actions were not in furtherance of the
defendant’s business, the court stated, ‘‘[t]here is no
evidence [the defendant] benefited financially or other-
wise . . . .’’ We agree with the court and conclude that
it properly granted the defendant’s motion for summary
judgment with respect to the plaintiff’s claims of statu-
tory theft and unjust enrichment because a genuine
issue of material fact did not exist as to this issue.
Viewing the circumstances on summary judgment in
the light most favorable to the plaintiff, we conclude
that any injury incurred by the plaintiff in this matter,
as it pertains to the defendant’s culpability, resulted
from Reiner acting outside the scope of his employment
by the plaintiff, and not by the defendant. The plaintiff
produced no evidence that Reiner’s acts were in further-
ance of the defendant’s interests, or that Reiner was
‘‘motivated’’ or ‘‘actuated’’ by a purpose to serve or
benefit the defendant. Levesque’s affidavit is devoid of
any statements that can be construed to suggest that
Reiner, by his alleged statutory theft or unjust enrich-
ment, intended in any way to advance the defendant’s
interests, or that the defendant’s interests in fact were
advanced. Nor does the plaintiff identify any particular
interest that would be advanced by Reiner’s alleged
statutory theft and unjust enrichment. Moreover, the
undisputed facts reveal that the defendant did not have
any monetary interest in the funds disbursed to Reiner,
as Greene expressly averred in his affidavit that the
defendant ‘‘did not take a fee for representing [the]
plaintiff in the [c]losing.’’ The counts in the complaint
merely set forth in one paragraph a legal conclusion
that the defendant is liable for damages caused by its
employee in the course of business. ‘‘ ‘In the course of
his employment’ means while engaged in the service
of the master, and it is not synonymous with the phrase
‘during the period covered by his employment.’ ’’ Brown
v. Housing Authority, 23 Conn. App. 624, 628, 583 A.2d
643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233(1991). Ultimately, at issue, is a dispute between the
plaintiff and Reiner, and the evidence produced by the
parties failed to implicate the defendant or to create a
genuine issue of material fact as to whether the defen-
dant was liable for the wrongful acts of its employee,
acting outside the scope of his employment.
On close examination of the record and the specific
facts of this case, we conclude that there was no evi-
dence before the court from which it could conclude
that Reiner was motivated by a purpose to advance the
defendant’s interests through his alleged statutory theft
and unjust enrichment. The court, therefore, properly
granted the defendant’s motion for summary judgment
as to those counts.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Attorney Michael D. Reiner was also a defendant in this action. The
summary judgment from which the plaintiff appeals, however, was rendered
solely in favor of Greene Law, P.C. Accordingly, Reiner is not a party to
this appeal. All references to the defendant in this opinion are to Greene
Law, P.C., and, where necessary, we refer to Reiner by name.
2
The operative complaint is the second revised complaint dated March
5, 2012.
3
General Statutes § 52-564 provides: ‘‘Any person who steals any property
of another, or knowingly receives and conceals stolen property, shall pay
the owner treble his damages.’’
4
The statutory theft and unjust enrichment counts of the complaint appear
to be based on theories of both direct and vicarious liability. On appeal,
however, the plaintiff states in its principal brief that ‘‘both counts are based
on agency principles,’’ and only argues that the defendant is vicariously
liable for Reiner’s wrongful acts. The plaintiff claims for the first time in
its reply brief that the defendant is directly liable for statutory theft and
unjust enrichment. It is well established that ‘‘[c]laims . . . are unreview-
able when raised for the first time in a reply brief.’’ (Internal quotation
marks omitted.) Nowacki v. Nowacki, 144 Conn. App. 503, 512 n.9, 72 A.3d
1245, cert. denied, 310 Conn. 939, 79 A.3d 891 (2013). Such is the case
here, and, accordingly, we do not consider these arguments. See part II of
this opinion.
5
The affiants attached to their affidavits, as exhibits, extensive documenta-
tion. These exhibits included, inter alia, copies of the affiants’ deposition
transcripts, the purchase and sale agreement for the sale of the property,
a Housing and Urban Development settlement statement (commonly
referred to as a HUD-1), e-mail correspondence, wire transfer confirmations,
and bills for legal fees.
6
Levesque also attached a number of exhibits to his affidavit, including,
inter alia, e-mail correspondence between himself and Reiner, and bills for
legal fees.
7
A HUD-1 settlement statement is created pursuant to the Real Estate
Settlement Procedures Act and ‘‘[sets] forth settlement charges in connec-
tion either the purchase or refinancing’’ of a property. 24 C.F.R. § 3500.2(b). The HUD-1, essentially, is an itemized list of the costs and fees associated
with closings and disbursements of loan proceeds.