Olympic Dreams, LLC et al v. Clark et al

Filing 139

ORDER: The Motion for Summary Judgment (Doc. No. 107 ) is hereby GRANTED in part and DENIED in part. It is so ordered. Signed by Judge Alvin W. Thompson on 08/28/2014. (Bowers, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------X
:
OLYMPIC DREAMS, LLC, and
:
LORI ARUTE,
:
:
Plaintiffs,
:
:
v.
:
:
MELISSA CLARK, JOHN BRENNAN, :
NORTH RUN, INC. OF FLORIDA,
:
NORTH RUN INC. OF NEW YORK,
:
FOX RUN LTD. OF EAST AURORA, :
and MONTOGA, INC. f.k.a.
:
NORTH RUN, INC. OF NEW YORK, :
:
Defendants.
:
:
------------------------------X

Civ. No. 3:11CV01103(AWT)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs Olympic Dreams, LLC and Lori Arute (“Arute”)
bring this action against defendants Melissa Clark (“Clark”),
John Brennan (“Brennan”), North Run, Inc. of Florida, North Run
Inc. of New York, Fox Run Ltd. of East Aurora, and Montoga, Inc.
f/k/a/ North Run, Inc. of New York alleging common law
negligence.

The defendants have moved for summary judgment.

For the reasons set forth below, the defendants’ motion for
summary judgment is being granted in part and denied in part.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The defendants are equine professionals who provided

services as horse trainers to the plaintiffs and served as

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agents of the plaintiffs in recommending and evaluating horses
for the plaintiffs to buy or lease.

The defendants also acted

as brokers in transactions in which the plaintiffs bought, sold,
or leased horses.

The allegations in this case relate to the

interactions among the parties surrounding the purchase, sale or
lease of six horses: Tucker, Lando, Palona, Denmark, Utopia and
Granted.
A.

Tucker

Beginning in the summer of 2007, the defendants and the
plaintiffs began discussing whether the plaintiffs should
purchase a horse named Tucker.

Between June 27, 2007 and July

26, 2007, Clark made a number of statements to the plaintiffs
regarding Tucker and the combination of Tucker and Arute’s
daughter, Alexandra Arute (“Alexandra”).

Clark described Tucker

to the plaintiffs as “already made up and proven” and “a
successful equitation horse,” and she stated that “Tucker had
nothing left to prove as he already had won at the highest
levels.”

(Defs.’ Local Rule 56(a)(1) Stmt. ¶¶ 7, 9, 10).

Clark

further stated that horses like Tucker were extremely hard to
find.
Clark described the combination of Alexandra and Tucker as
a “fantastic and perfect match,” stating that “few horse and
rider combinations are capable of winning at the highest levels.
Alex[andra] and Tucker are one of those combinations.”

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(Id. at

¶ 8).

Thus, Clark told the plaintiffs that Tucker would be a

good fit for Alexandra, that Tucker and Alexandra were a good
match and were suitable for one another, and that if Alexandra
rode well, she would win--or it was likely that she would win-certain events on Tucker.
Prior to purchasing Tucker, Arute paid for a pre-purchase
veterinarian exam by Dr. Robert Barber.

At or around the time

the examination took place, Arute spoke with Dr. Barber’s office
about the invoicing and the vetting report.
The plaintiffs purchased Tucker on or about July 28, 2007.
Prior to purchasing Tucker, Alexandra competed on Tucker and won
two events on him.

However, within a month of Alexandra

beginning to ride Tucker after purchasing him, Alexandra
realized that he “engaged in misbehaviors.”

(Id. at ¶ 25).

The

plaintiffs, soon after purchasing him, determined that Tucker
was not suitable for the purposes for which he had been
purchased and believed that many of the defendants’
representations and statements about him were inaccurate.
B.

Lando

In late 2008, the plaintiffs and defendants began
discussing whether the plaintiffs should lease a horse named
Lando.

Clark made a number of statements to the plaintiffs

regarding Lando and the combination of Lando and Arute’s
daughter, T.A.

She described Lando as a “top level equitation

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horse” that had competed at a very high level in top level
competitions with successful results.

(Id. at ¶ 29).

Thus,

Clark stated that Lando was “very much a proven and successful
equitation horse.”

(Id. at ¶ 33).

With regard to the

combination of Lando and T.A., Clark said that Lando would be a
suitable and excellent match for T.A., he would be a “wonderful
teacher for T.A.,” and that T.A. was very lucky to have an
opportunity to get a horse like Lando.

(Id. at ¶ 30).

The plaintiffs leased Lando for one year, ending November
30, 2009.

Shortly after leasing him, however, Arute realized he

was not suitable for T.A.
C.

Palona

In or around April 2008, the plaintiffs and defendants
began discussing whether the plaintiffs should acquire a horse
named Palona.

In April and May 2008, Clark and Brennan had

conversations with Alexandra and Arute about Palona and the
combination of Alexandra and Palona.

Clark and Brennan told

Alexandra that Palona was a good horse and that she would be a
good investment for her riding career.

Clark also told

Alexandra that Palona had done well with her previous rider and
had won big competitions.

Clark described Palona to Arute as

“an absolutely amazing athlete with tremendous scope and
ability.”

(Id. at ¶ 44).

She further told Arute that Palona

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would excel in the defendants’ program and that Palona was a
wonderful match for Alexandra.
Prior to the purchase of Palona by the plaintiffs, Dr. Carl
Juul-Nielsen conducted a pre-purchase veterinarian examination.
Dr. James Belden reported the results of the examination to
Clark, saying that the horse “had sidebone, the results were all
in the realm of normal, and the horse was serviceably sound.”
(Id. at ¶ 55).

Clark then told Arute that Dr. Juul-Nielsen

reported that Palona “vetted out very clean and safe.”

(Id. at

Stmt. ¶ 53).
The plaintiffs purchased Palona on April 30, 2008.

The

terms of the purchase agreement included that the plaintiffs
would accept care and custody of Palona “as is,” “where is,” and
“with all faults.”
D.

(Id. at ¶ 41).

Denmark

In May 2010, the plaintiffs and the defendants began
discussing a horse named Denmark.

The defendants told Arute

that Denmark would be a wonderful match for T.A. and that she
would learn a lot from him.

The plaintiffs leased Denmark for

five months in 2010 for $20,000.
Prior to the plaintiffs leasing him, Denmark had been
“nerved.”

(Id. at ¶ 60).

However, T.A. was never injured while

riding Denmark, and Arute only learned that he had been nerved
after the lease expired.

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E.

Utopia

In or around March 2008, the plaintiffs and the defendants
began discussing whether the plaintiffs should acquire a horse
named Utopia.
The plaintiffs leased Utopia on March 21, 2008.

The lease

agreement provided that the plaintiffs had the option to
purchase Utopia when a farrier was able to nail shoes on to
Utopia’s feet.

At that time, the lease would expire.

The

plaintiffs purchased Utopia in or around September 2008.
Prior to the acquisition by the plaintiffs of Utopia, a
veterinarian examined Utopia.

The veterinarian and Brennan

discussed that Utopia had a fungus, known as white line’s
disease, in her feet.

Additionally, Utopia had a growth on her

shoulder, which the veterinarian told Brennan was a wart; the
plaintiffs contend the growth was a sarcoid, which is a type of
cancer.

The defendants told the plaintiffs that Utopia passed

the examination.
F.

Granted

In February 2008, the plaintiffs sold a horse named Granted
for $175,000.

The plaintiffs paid the defendants a 15 percent

commission on the proceeds of the sale, totaling approximately
$26,250.

While the plaintiffs contend that the purchaser paid

“significantly more than $175,000,” Clark testified that the
purchaser paid $185,000 for Granted and paid a $10,000

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commission to the purchaser’s agent, which resulted in net
proceeds of $175,000.
G.

(Id. at ¶ 79).

Procedural History

The plaintiffs filed the present action on July 6, 2011.
On January 30, 2014, the defendants moved for summary judgment
on three grounds:
(1) the Plaintiffs have not disclosed any expert, even
though the deadline to do so has passed, and an expert
is necessary for them to prove their case, (2) certain
of the Plaintiffs’ claims are barred by the statute of
limitations, and (3) the representations on which the
Plaintiffs base their claims were non-actionable
opinions and were not false.
(Defs.’ Mem. Supp. Mot. Summ. J. (Doc. No. 107-1) at 1).

The

plaintiffs sought to reopen discovery to take certain
depositions and to disclose an expert.
request to reopen discovery.

The court denied the

During a status conference it was

agreed that the parties would continue briefing at that time
only the second and third grounds on which the defendants moved
for summary judgment.
II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless the

court determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.
See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Gallo v. Prudential Residential Servs., 22

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F.3d 1219, 1223 (2d Cir. 1994).

Rule 56(a) “mandates the entry

of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.”

Celotex Corp., 477 U.S. at

322.
When ruling on a motion for summary judgment, the court
must respect the province of the jury.
may not try issues of fact.

The court, therefore,

See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v.
Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.
1975).

It is well-established that “[c]redibility

determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not
those of the judge.”

Anderson, 477 U.S. at 255.

Thus, the

trial court’s task is “carefully limited to discerning whether
there are any genuine issues of material fact to be tried, not
to deciding them.

Its duty, in short, is confined . . . to

issue-finding; it does not extend to issue-resolution.”

Gallo,

22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact.
Therefore, the mere existence of some alleged factual dispute

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between the parties will not defeat an otherwise properly
supported motion for summary judgment.

An issue is “genuine

. . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Anderson, 477 U.S.

at 248 (internal quotation marks omitted).

A material fact is

one that would “affect the outcome of the suit under the
governing law.”

Id.

As the Court observed in Anderson: “[T]he

materiality determination rests on the substantive law, [and] it
is the substantive law’s identification of which facts are
critical and which facts are irrelevant that governs.”

Id.

Thus, only those facts that must be decided in order to resolve
a claim or defense will prevent summary judgment from being
granted.

When confronted with an asserted factual dispute, the

court must examine the elements of the claims and defenses at
issue on the motion to determine whether a resolution of that
dispute could affect the disposition of any of those claims or
defenses.

Immaterial or minor facts will not prevent summary

judgment.

See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d

Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light most
favorable to the non-movant and . . . draw all reasonable
inferences in its favor.”

Weinstock v. Columbia Univ., 224 F.3d

33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v.

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Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)).

Because

credibility is not an issue on summary judgment, the nonmovant’s
evidence must be accepted as true for purposes of the motion.
Nonetheless, the inferences drawn in favor of the nonmovant must
be supported by the evidence.

“[M]ere speculation and

conjecture is insufficient to defeat a motion for summary
judgment.”

Stern v. Trs. of Columbia Univ., 131 F.3d 305, 315

(2d Cir. 1997) (internal quotation marks omitted) (quoting
Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121
(2d. Cir. 1990)).

Moreover, the “mere existence of a scintilla

of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which [a] jury could
reasonably find for the [nonmovant].”

Anderson, 477 U.S. at

252.
Finally, the nonmoving party cannot simply rest on the
allegations in its pleadings since the essence of summary
judgment is to go beyond the pleadings to determine if a genuine
issue of material fact exists.
324.

See Celotex Corp., 477 U.S. at

“Although the moving party bears the initial burden of

establishing that there are no genuine issues of material fact,”
Weinstock, 224 F.3d at 41, if the movant demonstrates an absence
of such issues, a limited burden of production shifts to the
nonmovant, who must “demonstrate more than some metaphysical
doubt as to the material facts, . . . [and] must come forward

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with specific facts showing that there is a genuine issue for
trial.”

Aslanidis v. United States Lines, Inc., 7 F.3d 1067,

1072 (2d Cir. 1993) (quotation marks, citations and emphasis
omitted).

Furthermore, “unsupported allegations do not create a

material issue of fact.”

Weinstock, 224 F.3d at 41.

If the

nonmovant fails to meet this burden, summary judgment should be
granted.
III. DISCUSSION
A.

Negligence Claims

In the motion for summary judgment, the defendants
construed all of the allegations in the Fourth Amended Complaint
as relating to claims for negligent misrepresentation.

(See

Mem. Supp. Mot. Summ. J. (Doc. No. 107-1) at 1 (“The undersigned
Defendants . . . hereby move for summary judgment as to . . .
the Plaintiff’s Fourth Amended Complaint, which purports to
allege claims of negligent misrepresentation.”)).

In their

opposition to the motion for summary judgment, however, the
plaintiffs state that the complaint “alleges 48 acts of
negligence--34 of which are unrelated to misrepresentations.”1
(Mem. Opp. Mot. Summ. J. (Doc. No. 132) at 2).

After examining

the Fourth Amended Complaint, the court concludes that the 34
alleged acts of negligence, as set forth in the opposition to

1

The plaintiffs do not appear to contest that the other 14 acts of negligence
raise claims for negligent misrepresentation.

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the motion for summary judgment, are pure negligence claims and
not claims for negligent misrepresentation.2

See D’Antonio v.

Am. Brands, Inc., Civ. No. B-89-461(WWE), 1991 WL 23533, *3 (D.
Conn. Jan. 16, 1991 (“A court must ‘look to the gist’ of the
factual allegations set forth in a complaint in deciding what a
plaintiff’s legal theory is.”).
In their reply brief, the defendants argued that if the
court construed the 34 non-misrepresentation claims to be pure
negligence claims, they were still entitled to summary judgment
on those claims.

(See Reply (Doc. No. 134) at 3).

However,

because the defendants have not met their initial burden with
respect to the pure negligence claims, the motion is being
denied without prejudice as to those claims.
B.

Negligent Misrepresentation Claims

As to the negligent misrepresentation claims,3 the
defendants argue that summary judgment should be granted because
(1) the alleged misrepresentations are not statements of fact,
and (2) some of the claims are barred by the statute of
limitations.

2

The court notes that the Fourth Amended Complaint is the first complaint in
this action to raise pure negligence claims. In each of the prior three
complaints, the only negligence claim was one for negligent
misrepresentation. Thus, the defendants’ misconstruction of the claims in
the Fourth Amended Complaint is understandable.
3
The claims for negligent misrepresentation are found in the following
paragraphs of the Fourth Amended Complaint: 18B, 18C, 25B, 25C, 34B, 34C,
34D, 45B, 45C, 45D, 52B, 52C, 59B and 59C.

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“[A]n action for negligent misrepresentation requires the
plaintiff to establish (1) that the defendant made a
misrepresentation of fact (2) that the defendant knew or should
have known was false, and (3) that the plaintiff reasonably
relied on the misrepresentation, and (4) suffered pecuniary harm
as a result.”
626 (2006).

Nazami v. Patrons Mut. Ins. Co., 280 Conn. 619,

Thus, a defendant “who, in the course of his [or

her] business, profession or employment supplies false
information for the guidance of others in their business
transactions, is subject to liability for pecuniary loss caused
to them by their justifiable reliance upon the information, if
he [or she] fails to exercise reasonable care or competence in
obtaining or communicating the information.”

Glazer v. Dress

Barn, Inc., 274 Conn. 33, 73 (2005) (alterations omitted).
“The requirement that a representation be made as a
statement of fact ‘focuses on whether, under the circumstances
surrounding the statement, the representation was intended as
one of fact as distinguished from one of opinion.’”

Meyers v.

Cornwell Quality Tools, Inc., 41 Conn. App. 19, 28–29 (1996)
(quoting Crowther v. Guidone, 183 Conn. 464, 468 (1981)).

“It

is sometimes difficult to determine whether a given statement is
one of opinion or one of fact, inasmuch as the subject matter,
the form of the statement, the surrounding circumstances, and
the respective knowledge of the parties all have a bearing upon

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the question.

Each case must in a large measure be adjudged

upon its own facts.”

Id. at 29 (alterations omitted).

“[A]n

opinion that a certain event will arise in the future cannot
form the basis of a fraud or misrepresentation claim.”

456

Corp. v. United Natural Foods, Inc., No. 3:09cv1983(JBA), 2011
WL 87292, *3 (D. Conn. Jan. 11, 2011).
The defendants contend that they are entitled to summary
judgment on the negligent misrepresentation claims because “the
representations Ms. Clark and Mr. Brennan made about the subject
horses were statements of opinion and that any representations
that could be considered statements of fact were not false or
misleading.”

(Mem. Supp. Mot. Summ. J. (Doc. No. 107-1) at 25).4

With respect to Tucker, the only statement made by the
defendants that could be construed as a statement of fact is
that Tucker “had won at the highest levels.”

While there is

some ambiguity as to what could be considered “the highest
level,” the defendants have produced uncontroverted evidence
that Tucker was a Reserve Champion at the BET/United States
Equestrian Team Show Jumping Talent Search Finals-East, placed
second at a Vermont Summer Festival event, and finished first at

4

The plaintiffs do not address the issue of whether the alleged
misrepresentations were statements of opinion or fact in their opposition to
the motion for summary judgment. The plaintiffs simply state: “Defendants
argue (at pages 24-27) summary judgment should enter because their statements
were not misrepresentations. Even if that were accurate, which plaintiffs
contest, summary judgment must still be denied . . . .” (Mem. Opp. Mot.
Summ. J. (Doc. No. 132) at 2).

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the Jacksonville Kickoff.

(Ex. F (Doc. No. 107-7)).

The

plaintiffs have not produced any evidence to show that Tucker
had not won at the highest levels, and therefore they have not
created a genuine issue as to whether the representation was
false.

The remaining statements made by the defendants about

Tucker, as set forth in section I.A, are all statements of
opinion or predictions as to the probability of future events,
and therefore are not statements of fact.
As to the statements about Lando, the only statement that
could be construed as one of fact is that Lando competed at a
high level with successful results.

Again, the plaintiffs have

not produced any evidence that creates a genuine issue as to
whether Lando had competed at a high level with successful
results.5

The other alleged misrepresentations, as set forth in

section I.B., are all statements of opinion, and therefore are
not actionable.
With respect to the statements made about Palona, two
statements could be construed as representations of fact: that
Palona had won big competitions and that she “vetted out clean
and safe.”

The plaintiffs have not produced any evidence which

could show that Palona had not won big competitions.6

As to the

statement that Palona “vetted out clean and safe,” the
5

It is unclear whether the plaintiffs even dispute that Lando had competed at
a high level with successful results.
6
As with Lando, it is not clear whether the plaintiffs dispute that Palona
had won big competitions.

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plaintiffs appear to contend that she did not “vet out clean and
safe” because she had sidebone.

However, the plaintiffs have

not produced any evidence which could support a conclusion that
having sidebone made Palona unsafe or means that Palona did not
“vet out clean.”

The other alleged misrepresentations, as set

forth in section I.C., are all statements of opinion, and
therefore are not actionable.
The only statements the plaintiffs contend the defendants
made about Denmark are that he would be a wonderful match for
T.A. and she would learn a lot from him.

Because this is a

statement of opinion, and not fact, it is not actionable.
As to Utopia, the only statement the plaintiffs assert the
defendants made is that Utopia passed the veterinary exam.

It

appears the plaintiffs contend the statement was false because
Utopia had white line’s disease in her feet and because they
believe the growth on Utopia’s shoulder was a sarcoid tumor, and
not a wart.

With respect to each point, however, the plaintiffs

have not presented evidence that could support a conclusion that
Utopia did not pass the veterinary exam.

Also, as to whether

the growth was a sarcoid tumor or a wart, the plaintiffs do not
dispute that the veterinarian told Brennan that the growth was a
wart.

Thus, even if the growth was a sarcoid tumor, it is

undisputed that Brennan did not know that it was not a wart.

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With respect to Granted, it is unclear what false or
misleading statement the plaintiffs allege the defendants made.
To the extent the plaintiffs assert that the defendants lied
about how much the buyer paid for Granted, the plaintiffs have
presented no evidence as to the amount that was actually paid or
that the amount was different than what the defendants
represented.

Thus, there is no evidence which could show that

the statement was false.
Because all of the alleged misrepresentations by the
defendants were either statements of opinion or the plaintiffs
have failed to create a genuine issue as to whether the
statement was false, the motion for summary judgment is being
granted as to the claims for negligent misrepresentation.7
IV.

CONCLUSION
For the reasons set forth above, the defendants’ Motion for

Summary Judgment (Doc. No. 107) is hereby GRANTED in part and
DENIED in part.

The motion is granted as to the negligent

misrepresentation claims.

The motion is denied as to the pure

negligence claims.
It is so ordered.
Dated this 28th day of August, 2014, at Hartford,
Connecticut.

7

Because the court concludes that the statements were not actionable
misrepresentations, the court does not reach the defendants’ statute of
limitations argument.

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/s/
Alvin W. Thompson
United States District Judge

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