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National Utility Service Inc V Jr Sexton Inc

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National Utility Service, Inc. v. J.R. Sexton, Inc United States District Court, D. Connecticut.


Civ. No. N-88-324(JAC).

Nov. 3, 1989.


JOSE A. CABRANES, District Judge:

*1 This case involves a contract between plaintiff National Utility Service, Inc. (“N.U.S.”), a utility analyst and consulting service, and defendant, J.R. Sexton, Inc. (“Sexton”). Under this agreement N.U.S. undertook to analyze Sexton’s utility usage and submit recommendations of means to effect utility cost savings. If Sexton implemented any such recommendation, in addition to an initial fee of $5,000 it was to transmit its utility bills to N.U.S. so that resulting savings could be determined. After the amount of $5,000 in savings was realized, defendant was to pay plaintiff 50% of its utility bill savings for 60 months. Plaintiff alleges that defendant implemented plaintiff’s recommendations but failed to fulfill its obligations under the contract to pay its fees and to transmit its utility bills to plaintiff to allow a determination of amounts of money owed.

Plaintiff alleges breach of contract (Count 1), unjust enrichment (Count 2), and violation of the Connecticut Unfair Practices Act (CUTPA), C.G.S. § § 42- 110(a) et seq. (Count 3). Plaintiff seeks compensatory and punitive damages, attorney’s fees, a declaratory judgment, and specific performance.

Currently before the court are two motions, Plaintiff’s Motion for Summary Judgment (filed Sept. 15, 1989) and Defendant’s Motion for Summary Judgment Against Plaintiff, National Utility Service, Inc. (filed Sept. 15, 1989). The latter motion is addressed solely to the CUTPA claim in Count 3 of the complaint and is thus deemed a motion for partial summary judgment.

For the reasons stated below, plaintiff’s motion for summary judgment is granted in part, as to liability for Count 1 (breach of contract) and denied in all other respects. Defendant’s motion for partial summary judgment as to the CUTPA claim is granted. These claims shall be addressed, in turn, below.


Summary Judgment Standards

The court may grant summary judgment where the moving party has demonstrated 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.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) ( “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). A motion for summary judgment thus is the appropriate vehicle “to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

In making a summary judgment determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (Feinberg, C.J.), cert. denied, 480 U.S. 932 (1987). The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, 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.” Knight v. U.S. Fire Ins. Co., 804 F.2d at 12. Mere conclusory allegations and denials in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980); British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981 (1979). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.

Claim of Breach of Contract

*2 Plaintiff claims it is entitled to judgment as a matter of law as to the claim of breach of contract. Defendant responds by alleging that the contract between the parties is ambiguous in relevant part and therefore a genuine issue of material fact exists as to whether Sexton’s actions in refusing payment constituted a breach of that contract. In particular, defendant claims that a disputed question exists as to whether Sexton adopted N.U.S.’ recommendation regarding utility usage.

It is not disputed that Sexton made a change identical to that recommended by N.U.S., namely, it arranged to purchase natural gas under an “interruptible rate.” It is also undisputed that this change was made subsequent to the receipt of the N.U.S. report. In fact, Sexton’s letter to the utility company requesting the interruptible rate was identical, save for the substitution of Sexton’s letterhead, to the suggested letter enclosed for this purpose in the N.U.S. report. Sexton claims that this does not constitute an adoption of the recommendation in the N.U.S. report envisaged by the agreement because the same change of service was previously recommended to them by their utility company and it was the recommendation of the utility company, and not of N.U.S., that caused Sexton to make the change.

The relevant language in the contract provides that,

[a]ny [N.U.S.] recommendation acted on by [Sexton] shall be deemed accepted…. [N.U.S] will not share in any reductions or savings effected solely by the lowering of rate schedules of any public utility corporation which they voluntarily apply to [Sexton’s] bills and which are not influenced by [N.U.S.’] prior recommendations to [Sexton]. [Sexton] will pay [N.U.S.] only for savings which actually become effective on [Sexton’s] bills after [N.U.S.’] recommendation is implemented.

(emphasis added).

Sexton claims that this language is ambiguous and permits more than one fairly reasonable interpretation and that summary judgment is thus inappropriate. See Aetna Casualty & Surety Co. v. Geiesow, 412 F.2d 468, 471 (2d Cir.1969). See also, e.g., Grand Union Co. v. Cord Meyer Development Corp., 735 F.2d 714 (2d Cir.1984). N.U.S. interprets the contract to mean that all recommendations made by N.U.S. that were subsequently acted upon by Sexton give rise to obligations under the contract. Sexton proposes that the contract can also be interpreted to mean that only “exclusive” recommendations by N.U.S., i.e., those not available from any other source, if adopted by Sexton, give rise to contractual obligations.

The court finds that the language of the contract is unambiguous. The contract states that any recommendation acted on shall be deemed accepted. This language unambiguously means that if N.U.S. recommends a course of action and Sexton subsequently takes that course and achieves utility bill savings as a result, Sexton is obligated to compensate N.U.S. The contract nowhere suggests or envisages an inquiry into the state of mind of Sexton or its officials to determine the degree to which they were influenced by factors other than the N.U.S. report to adopt the course of action recommended by N.U.S.

*3 The court finds that, in light of the undisputed facts of this case, there are no genuine issues of material fact as to Sexton’s obligations under the contract. It is also undisputed that Sexton did not forward its utility bills to N.U.S. for determination of amounts owed or make payments of any kind to N.U.S. Summary judgment is thus appropriate as to defendant’s liability for breach of contract.

The court finds, however, that genuine issue of material fact exists as to the amount of damages. Plaintiff has the burden of proof on the issue of the amount of its damages. N.U.S. claims damages in the amount of $58,764.75. See Affidavit in Support of Plaintiff’s Motion for Summary Judgment (filed Sept. 15, 1989) at 7. This number is not explained and no basis for the calculation used to reach it is provided. In view of the current state of the pleadings, summary judgment is not appropriate as to damages due to N.U.S. for Sexton’s breach of contract.

Claim of Unjust Enrichment

Neither the plaintiff’s nor the defendant’s motion makes any reference to this claim. Thus summary judgment is not appropriate on this issue.


Defendant seeks summary judgment as to the claim of violation of CUTPA, C.G.S. § § 42-110(a), et seq. Sexton argues that plaintiff cannot maintain a private right of action under CUTPA because the alleged conduct of defendants does not rise to the level of being offensive to public policy, immoral, unethical, oppressive, or unscrupulous, and it does not cause substantial injury to consumers.

The relevant section of CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” C.G.S. § 42-110b. The Supreme Court of Connecticut has defined “unfairness” as

(1) whether the practice … offends public policy as it has been established by statutes, the common law, or otherwise … (2) whether it is immoral, unethical, oppressive or unscrupulous; (3) whether it causes substantial injury to consumers (competitors or other businessmen).

Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 539 n. 13 (1987) (citations omitted). Nevertheless, a practice may be “unfair” even if all three criteria are not met. See McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558 (1984); Gibbs v. Mace, 11 Conn.App. 289, 296 (1987).

N.U.S. concedes that Sexton’s breach of contract alone is not sufficient to establish a CUTPA violation. See Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Partial Summary Judgment (filed Oct. 6, 1989) at 3. However it claims that “the totality of Sexton’s egregious conduct,” id., renders it liable under CUTPA. The court finds this argument unpersuasive. The “totality” of Sexton’s conduct, as it emerges from the undisputed facts of this case, constitutes merely breach of contract and persistence in that breach in face of demands for performance by the other party to the contract. N.U.S. offers no evidence to indicate that the breach of contract at issue violated any “established concept of fairness.” See Sorisio v. Lenox, Inc., 701 F.Supp. 950, 963 (D.Conn.1988) (Burns, J.). Summary judgment on this count is thus appropriate.


*4 For the reasons stated above and upon a full review of the record, Plaintiff’s Motion for Summary Judgment (filed Sept. 15, 1989) is GRANTED IN PART, as to liability on Count 1 (breach of contract) and DENIED in all other respects. Judgment as to liability only on Count 1 shall enter in due course for plaintiff. Defendant’s Motion for [Partial] Summary Judgment Against Plaintiff, National Utility Service, Inc. (filed Sept. 15, 1989) is GRANTED. Judgment for defendant shall enter in due course on Count 3 of the complaint.

It is so ordered.

1989 WL 343048, 1989 WL 343048 (D.Conn.)


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