Pressman v. Purcell

Filing 61

RULING: For the foregoing reasons, Pressmans Partial Motion for Summary Judgment (Doc. No. 49 ) is DENIED, the Third-Party Defendants Motion to Strike (Doc. No. 58 ) is DENIED, and the Third-Party Defendants Motion for Summary Judgment (Doc. No. 54 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge Janet C. Hall on 8/19/2019. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBERT PRESSMAN,
:
Plaintiff, Third-Party Defendant :
:
v.
:
:
ANA PURCELL,
:
Defendant, Third-Party Plaintiff :
:
v.
:
:
TRITON EQUITY PARTNERS, LLC, :
AND LA BOB, INC,
:
Third-Party Defendants.
:
:

CIVIL CASE NO.
3:17-CV-1918 (JCH)

AUGUST 19, 2019

RULING ON PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT (DOC.
NO. 49), THIRD-PARTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DOC. NO. 54), AND THIRD-PARTY DEFENDANTS’ MOTION TO STRIKE
RESPONSE (DOC. NO. 58).
I.

INTRODUCTION
Plaintiff-Third-Party Defendant Robert Pressman (“Pressman”) brought the

present action alleging fraud, conversion, and three counts of unjust enrichment,
against Defendant-Third-Party Plaintiff Ana Purcell. See Complaint (“Compl.”) (Doc.
No. 1). Purcell filed an Answer and alleged multiple counterclaims, including claims of
fraud, breach of contract, and slander, against Pressman and Third-Party Defendants
LA Bob, Inc. and Triton Equity Partners. See Answer and Third-Party Complaint
(“Purcell Compl.”) (Doc. No. 30). The court previously granted, in part, the Third-Party
Defendants’ Motion to Dismiss. See Order (Doc. No. 52).
Pending before the court are Pressman’s Partial Motion for Summary Judgment
(Doc. No. 49), the Third-Party Defendants’ Motion for Summary Judgment (Doc. No.
54), and a Motion to Strike (Doc. No. 58). For the reasons stated below, Pressman’s
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Partial Motion for Summary Judgment is denied, and the Third-Party Defendants’
Motion for Summary Judgment is granted in part and denied in part.
II.

STANDARD OF REVIEW
Summary judgment is proper only where, construing the evidence in the light

most favorable to the non-movant, “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On a
motion for summary judgment, the moving party bears the burden of establishing the
absence of any genuine issue of material fact. Zalaski v. City of Bridgeport Police Dep't,
613 F.3d 336, 340 (2d Cir. 2010). If the moving party satisfies that burden, the
nonmoving party must set forth specific facts demonstrating that there is ‘a genuine
issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). A genuine issue
exists where the evidence is such that a reasonable jury could decide in the non-moving
party's favor. See, e.g., Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,
104 (2d Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
The court’s role at summary judgment “is to determine whether genuine issues of
material fact exist for trial, not to make findings of fact.” O’Hara v. Nat. Union Fire Ins.
Co. of Pittsburgh, 642 F.3d 110, 116 (2d Cir. 2011). Unsupported allegations do not
create a material issue of fact and cannot overcome a properly supported motion for
summary judgment. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
The non-moving party “may not rely on mere conclusory allegations nor speculation, but
instead must offer some hard evidence showing that [their] version of the events is not
wholly fanciful.” D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.1998) (collecting
cases). Additionally, the evidence the court considers in ruling on a motion for summary

2

judgment must be admissible evidence, or evidence that could be readily reduced to an
admissible form at trial. See LaSalle Bank National Ass'n v. Nomura Asset Capital
Corp., 424 F.3d 195, 205 (2d Cir. 2005); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.
2001) (“Affidavits submitted to defeat summary judgment must be admissible
themselves or must contain evidence that will be presented in an admissible form at
trial.”) (citation omitted).
III.

FACTS
Pressman and Purcell met on or about Apri1 4, 2017, in Puerto Rico, and

thereafter began a romantic relationship. Defendant’s Local Rule 56(a)(2) Statement of
Facts in Opposition to Summary Judgment (“Purcell 56(a)(2)”) (Doc. No. 53) ¶¶ 1–2. At
the time, Pressman was married. Id. ¶ 3. In June 2017, Pressman asked Purcell to
marry him; Purcell agreed. Id. ¶ 4. Pressman told Purcell he was unmarried and that
he wanted to be a “total open book.” Id. On June 23, 2017, Pressman and Purcell
travelled to a Cartier store in New York City, where Pressman purchased a sapphire
and diamond ring by cashier’s check in the amount of $127,300. Id. ¶ 7. Pressman
proposed marriage to Purcell again in the Cartier store, and Purcell again accepted the
ring. Id. ¶¶ 9–10. Purcell’s understanding was that the ring was an engagement ring.
See Deposition of Ana Purcell (Doc. No. 49-2) (“Purcell Dep.”) at 56:23–25.1

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Purcell repeatedly objects to the characterization of the ring as an engagement ring. See, e.g.,
Def.’s SOF ¶¶ 7–10. She cites to her Declaration, in which she states that she understood the ring to be
an unconditional gift and did not accept it “in contemplation of marriage.” See Declaration of Ana Purcell
(Doc. No. 53-2) (“Purcell Decl.”) ¶¶ 14–15. However, the statements in her Declaration, dated December
6, 2018, contradict her earlier deposition testimony from May 3, 2018. See Purcell Dep. (Doc. No. 49-2)
at 56:23–25 (“Q: And was it your understanding that the ring was an engagement ring? A: Yes.”).
“[F]actual allegations that might otherwise defeat a motion for summary judgment will not be permitted to
do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that
affidavit contradicts her own prior deposition testimony. Moll v. Telesector Res. Grp., Inc., 760 F.3d 198,
205 (2d Cir. 2014). “[F]actual issues that a party creates by filing an affidavit crafted to oppose a

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Pressman and Purcell made wedding plans during the course of their
relationship, including discussing potential dates and locations for a wedding. See id. at
57:5–7, 57:19–25. They moved into a rental home in Greenwich, Connecticut on or
about August 28, 2017. Purcell 56(a)(2) ¶ 18. The monthly rental payment on the
property was $17,000. Id. ¶ 39. On July 17, 2017, Pressman paid a security deposit on
the property in the amount of $34,000, advanced rent in the amount of $19,194, plus
five-months additional rent in the amount of $85,000, for a total payment of $138,194.
Id. ¶ 41. The payment was made by wire transfer from Pressman’s business bank
account. Id.
After he suffered a serious, multi-day illness, Pressman was transported by
ambulance to a nearby hospital on August 31, 2017. Id. ¶¶ 19, 44. While Purcell was
visiting Pressman in the hospital, Pressman terminated their relationship, and no
marriage took place. Id. ¶¶ 23–24. On September 6, 2017, Purcell sent an email to
Mitch Baker, a friend of Pressman, which stated that “per [Baker’s] request,” she had
put together a list of items promised to her. See Email, Ex. 4 (Doc. No. 49-2) at 82–83.
The list of 21 items included, inter alia, a mortgage payment on a home in North
Carolina, two years of rent for the Greenwich home so that Purcell’s son could finish
school, a $10,000 per month allowance for Purcell, tuition at Yale Law School, and $12

summary judgment motion that contradicts that party's prior testimony are not “genuine” issues for trial.”
Id. The court further notes that it is not entirely clear even from Purcell’s Local Rule 56(a)(2) Statement of
Facts whether she agrees or disagrees that the ring is an engagement ring. See Def.’s SOF ¶ 12 (stating
that Purcell “does not deny” the statement that “Purcell agrees that the blue sapphire ring was an
engagement ring,” but nonetheless “object[ing] to its characterization as an “engagement ring”) Given
that Purcell’s later Declaration contradicts her deposition testimony, the court treats as admitted the fact
that the ring in question was understood to be an “engagement ring.” Compare Purcell Decl. ¶¶ 14–15
(stating that Purcell understood the ring to be an unconditional gift and did not accept it “in contemplation
of marriage”), with Purcell Dep. at 56:23–25 (answering “Yes” when asked if she understood the ring to
be an engagement ring).

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million. See id. In return for the items requested, Purcell agreed to “release all claims
and indemnify and hold harmless” Pressman and his wife, and to refrain from
“publish[ing] or shar[ing] information regarding the situation which names either family.”
Id. at 83. Pressman did not give Purcell the items requested. Purcell 56(a)(2) ¶ 33.
Purcell has not returned the ring. Id. ¶ 34.
IV.

DISCUSSION
A.

Motion to Strike

Pressman and Triton Equity Partners (“Triton”) (collectively “Third-Party
Defendants”) filed a Motion to Strike the Declaration of Alan Berlin, offered by Purcell in
her Opposition to the Third-Party Defendants’ Motion for Summary Judgment on the
Third-Party Complaint. See Motion to Strike (Doc. No. 58) at 1. The District of
Connecticut Local Rules expressly state that “Motions to strike (a) statements made in a
Rule 56(a) statement or (b) the supporting evidence are prohibited.” D. Conn. L. Civ. R.
56(a)(4). The Berlin Declaration was submitted in support of Purcell’s Rule 56(a)(2)
Statement in Opposition to Summary Judgment. The Motion to Strike is denied.
B.

Motion for Summary Judgment as to Purcell’s Counterclaims

The Third-Party Defendants seek summary judgment in their favor as to Purcell’s
remaining counterclaims. See Third-Party Defendants’ Motion for Summary Judgment
on Purcell’s Third-Party Complaint (“Defs.’ MSJ Purcell Compl.”) (Doc. No. 54) at 1.
While LA Bob, Inc. was previously a party to this action, all claims against LA Bob were
dismissed in this court’s earlier Ruling on the Third-Party Defendants’ Motion to
Dismiss. See Ruling (Doc. No. 52). The court also grants the motion to dismiss as to

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Count One and Five as to Triton.2 The remaining counterclaims are: Count One,
alleging fraudulent inducement against Pressman; Count Four, alleging breach of
contract against Pressman and Triton; Count Five, alleging fraud and misrepresentation
against Pressman; Count Six, alleging breach of the covenant of good faith against
Pressman and Triton; and Count Nine, alleging slander per se against Pressman.
1.

Fraud in the Inducement (Count One) and Fraudulent
Misrepresentation (Count Five).

Count One of the Third-Party Complaint alleges that Pressman is liable for fraud
in the inducement. See Purcell Compl. ¶¶ 60–67, 98–105. To state a claim of
fraudulent inducement or fraudulent misrepresentation, a plaintiff must prove that (1) the
defendant made a representation of fact; (2) the statement was untrue and known to be
untrue by defendant; (3) the statement was made to induce the plaintiff to act upon it;
and (4) the plaintiff did so act upon that false representation to his injury. See Simms v.
Seaman, 308 Conn. 523, 548 (2013).
Purcell alleges in her Complaint that she “was induced to forgo her then[-]current
employment, a possible new position at a higher rate of pay, move her home, her
personal property, and uproot her child, based upon representations . . . made by
Pressman.” Purcell Compl. ¶ 62. She also alleges that “[a]n essential and material part
of . . . her agreeing to move to Connecticut with all that that involved, was Pressman’s
representation that he was not married.” Id. ¶ 99.

2 In its ruling in the Motion to Dismiss, the court stated in the conclusion that it granted the motion
as to Count Four and Six against Triton. Ruling at 18. However, the court failed to discuss these claims
against Triton. See Ruling at 12–13. Thus, the court views Count Four and Six as pending against
Triton.

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The Third-Party Defendants argue that summary judgment is warranted as a
matter of law because there is no genuine issue of fact as to whether: (1) Purcell was
induced to forgo her current employment by a promise to marry or a contractual
promise; (2) the marriage proposal was a false statement made to induce Purcell to
move; (3) the draft written contract exchanged between Pressman and Purcell induced
Purcell to move; or (4) false statements were made which induced Purcell to enter into a
lease. See Third Party Defendants’ Memorandum in Support of Mot. S.J. (“Defs.’ Joint
Mem. in Supp.”) (Doc. No. 54-1) at 4–9. As to Count Five, the Third-Party Defendants
argue that Purcell cannot establish that Pressman misrepresented that he was
unmarried, and that Purcell cannot prove damages. Id.17 at 19–20.
Purcell’s Opposition to summary judgment as to Count One relies almost entirely
on the argument that, because credibility issues remain to be determined, summary
judgment is inappropriate. Purcell Memorandum in Opposition to Plaintiffs’ Motion for
Summary Judgment (“Purcell Opp.”) (Doc. No. 55-1) at 8 (“The Court here is confronted
with a matter of the credibility of Pressman. To grant the relief requested for any of the
Counts challenged is error as these belong in the bailiwick of a jury of Ms. Purcell’s
peers to determine.”); id. at 24 (“As credibility is a fact for the jury, this Court’s
evaluation of her credulity, especially on a Rule 56 Motion, is not proper.”).
However, the undisputed evidence establishes that Purcell’s employment
terminated on May 16, 2017, and that she signed a separation agreement with her
former employer on June 8, 2017. See Separation Agreement Letter (Doc. No. 54-2) at
24. The undisputed evidence further establishes that Pressman first proposed to
Purcell during a vacation in Antigua, which vacation occurred in June 2017. See Purcell

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56(a)(2) ¶ 4; id. at 14 ¶ 7; Affidavit of Robert Pressman (Doc. No. 54-2) at 13 ¶ 11.
Therefore, there is no genuine issue of fact as to whether Purcell was induced to forego
her employment based on a promise to marry—she had already left her employment
when any such promise was made to her.
The Third-Party Defendants correctly argue that “[t]he written contract in Exhibit
A [between Triton and Purcell] is dated August 20, 2017,” and that “[t]here is no
evidence that there were any drafts or other written agreements prior to August 20,
2017.” Defs.’ Joint Mem. in Supp. (Doc. No. 54-1) at 5. Instead, “[t]he evidence of
record demonstrates that as of August 20, 2017, the terms of the written contract were
still being negotiated between Pressman and Purcell.” Id. Moreover, because the draft
was dated after Purcell left her job, there is no issue of fact as to whether it induced
Purcell to leave her employment. See Purcell Deposition (Doc. No. 54-2) at 62:13–
63:09 (reflecting Purcell’s admission that, by the time any contractual agreement
between Pressman and Purcell was proposed, she had already left her job).
Purcell testified during her deposition that she was induced to forego alternate
job opportunities, to give up her career, and to move from North Carolina to
Connecticut, based upon discussions with Pressman regarding a contract between
himself and Purcell. Id. at 62:13–19 (“[Purcell:] It is fair to say that that contractual
proposal was made and affected my decision about whether or not to leave my career,
and whether to move and uproot my minor son.”). As the Third-Party Defendants
argue, “the promises in the draft written contract . . . could not have induced Purcell to
move since the decision to move had already been made prior to August 20th,” given
that “[t]he parties signed a lease dated July 14, 2017, with a move in date of August

8

28th [2017].” Defs.’ Joint Mot. in Supp. at 8; Purcell 56(a)(2) ¶¶ 36–38. Summary
judgment is therefore granted insofar as Purcell’s fraudulent inducement claim rests
upon vague “discussions” regarding future contracts between herself and Pressman.
However, there remain issues of material fact as to (1) whether Pressman falsely
told Purcell that he was unmarried, (2) when Purcell became aware that Pressman was
in fact married, and (3) whether the statement that Pressman was unmarried was
material to Purcell’s agreement to obligate herself on the tenancy in the Greenwich
rental property, or to move herself and her son from North Carolina to Connecticut.
These factual issues are properly left for a jury, and summary judgment on the
fraudulent inducement count is denied to the extent the claim rests on such alleged
false statements by Pressman. The same factual issues preclude a grant of summary
judgment as to Count Five, in which Purcell alleges that Pressman is liable for
fraudulent misrepresentation.
2.

Breach of Contract (Count Four)

Count Four alleges that Triton and Pressman breached a contract with Purcell.
Purcell Compl. (Doc. No. 30) ¶¶ 89–97. The Third-Party Defendants argue that
summary judgment is warranted because (1) Pressman was not a party to any contract
in his personal capacity, (2) no enforceable written contract exists, and (3) no
enforceable oral contract exists. See Defs.’ Joint Mem. in Supp. at 9. Purcell responds
that (1) a jury should determine whether veil-piercing so as to render Pressman liable is
appropriate; (2) Purcell’s partial performance rendered the unsigned contract

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enforceable; and (3) that, even if the written contract was not enforceable, an
enforceable oral agreement existed. See Purcell Opp. at 13, 19, 20–21, 23.3
First, the court concludes, as a matter of law, that the draft contract dated August
20, 2017, is unenforceable. This conclusion flows from two separate sources. First, “[i]t
is elementary contract law that in order for a promise or contract to be binding it must be
supported by consideration.” Gianoni v. Bristol Gen. Mfg. Holding Co., No.
CVX03990497900S, 2002 WL 31938877, at *1 (Conn. Super. Ct. Dec. 19, 2002). “It is
also elementary contract law that past consideration is not valid consideration.” Id. at
*2. In this case, the draft contract noted that “Purcell has already provided to Triton
certain valuable information, tactics and strategy pertaining to Triton (and its affiliates)
business activities and affairs in connection with Puerto Rico.” Purcell Ex. 1 (“Draft
Contract”) (Doc. No. 53-3) at 1 ¶ 1. The draft contract did not include any promise by
Purcell to provide further information, and in fact disclaimed any such requirement. Id. ¶
2 (“Purcell has fully earned the Payment herein, with no other requirements of Purcell to
provide any other information or services to Triton.”). Because the draft contract
concerned only past performance, there was no valid consideration given for Triton’s
promise to pay Purcell, and any contract was unenforceable.

3

Purcell relies upon New York law in arguing the enforceability of the alleged contract. There is
no basis in the record for this court to apply New York law to the contract, and Purcell makes no
argument as to why she relies upon New York. The relationship between the parties in this case was
centered in Connecticut, and the damages alleged resulted predominately from conduct alleged to have
occurred in Connecticut. Under Connecticut’s “most significant relationship” test, the court concludes that
the appropriate law to apply is Connecticut law. See Macomber v. Travelers Prop. & Cas. Corp., 277
Conn. 617, 640 (2006) (“For the plaintiff's contract claim, we adopt the ‘significant relationship’ test, and
presume the application of the law of the state in which the bulk of the transaction took place.”).

10

Second, the draft contract language—which was never executed—makes clear
that the intent of the parties was that the contract was to be executed before it became
effective, and furthermore that any duty to pay was premised on the occurrence of a
condition precedent. In Connecticut,
A condition precedent is a fact or event which the parties intend must exist
or take place before there is a right to performance. . . . A condition is
distinguished from a promise in that it creates no right or duty in and of itself
but is merely a limiting or modifying factor. . . . If the condition is not fulfilled,
the right to enforce the contract does not come into existence. . . . Whether
a provision in a contract is a condition the nonfulfilment of which excuses
performance depends upon the intent of the parties, to be ascertained from
a fair and reasonable construction of the language used in the light of all the
surrounding circumstance when they executed the contract.
Town of Stratford v. A. Secondino & Son, Inc., 133 Conn. App. 737, 747 (2012) (citing
Lach v. Cahill, 138 Conn. 418, 421 (1951).
The contract language is clear that any payment would be subject to a
“Pressman Event.” Draft Contract at ¶ 3. The “Pressman Event” was further defined as
an event wherein “Robert L. Pressman shall from the execution of this Agreement
through August 31, 2019 die” or be disabled for 14 consecutive days. Id. ¶ 4. A fair and
reasonable reading of the contract makes clear that a “Pressman Event” was a
condition precedent to the contract obligations, and therefore no payment obligation
could arise until such a time as such an Event occurred. There is no evidence before
the court on which a jury could find that the Pressman Event occurred. Summary
judgment is therefore granted in favor of the Third-Party Defendants, as to Purcell’s
claims resting on the draft contract.
While the Third-Party Defendants argue that Purcell’s Complaint sought only to
enforce a written contract, see Defs.’ Joint Mem. in Supp. at 16, Purcell’s Complaint

11

includes allegations of a preexisting agreement. See Purcell Compl. ¶ 35 (alleging that
Third-Party Defendants proposed a contract “[i]n or around June 15th, 2017,” and that
Purcell “fully accepted all of the terms of the submitted contract and acted in
accordance therewith”). These allegations, which predated the August 20 draft
agreement, were sufficient to provide notice of a claim regarding a preexisting,
enforceable agreement.
In Connecticut, “an agreement must be definite and certain as to its terms and
requirements” in order to qualify as a contract. Glazer v. Dress Barn, Inc., 274 Conn.
33, 51 (2005). The draft contract, dated August 20, 2019, includes language stating
that “Triton has previously promised to and agreed with Purcell to pay and compensate
Purcell certain specific amounts and value . . . .” Id. ¶ 2. This raises a genuine issue of
fact as to whether a prior agreement, sufficiently definite so as to contain “specific
amounts and value” of compensation, existed between Triton and Purcell.
Purcell also seeks to impute Triton’s contractual liability upon Pressman. To do
so requires that Purcell satisfy the requirements to pierce the corporate veil. In
Connecticut, “courts may pierce the corporate veil under one of two theories: either the
instrumentality rule or the identity rule.” McKay v. Longman, 332 Conn. 394, 433
(2019). The Connecticut Supreme Court “has pierced the veil ‘only under exceptional
circumstances, for example, where the corporation is a mere shell, serving no legitimate
purpose, and used primarily as an intermediary to perpetuate fraud or promote
injustice.’” Id. (quoting Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187
Conn. 544, 557 (1982)).

12

Here, Purcell argues that piercing the veil is warranted under the “instrumentality
rule.” See Purcell Opp. (Doc. No. 55-1) at 15–16. In Connecticut, the instrumentality
rule requires three elements:
(1) Control, not mere majority or complete stock control, but complete
domination, not only of finances but of policy and business practice in respect to
the transaction attacked so that the corporate entity as to this transaction had at
the time no separate mind, will or existence of its own; (2) that such control
must have been used by the defendant to commit fraud or wrong, to perpetrate
the violation of a statutory or other positive legal duty, or a dishonest or unjust
act in contravention of plaintiff’s legal rights; and (3) that the aforesaid control
and breach of duty must proximately cause the injury or unjust loss complained
of.
Angelo Tomasso, Inc., 187 Conn. at 557 (emphasis in original). Courts look at several
factors in determining control and domination, including: “(1) the absence of corporate
formalities; (2) inadequate capitalization; (3) whether funds are put in and taken out of
the corporation for personal rather than corporate purposes . . .” Naples v. Keystone
Bldg. and Dev. Corp., 295 Conn. 214, 233 (2010).
Based on the evidence before this court, a reasonable jury could find that
Pressman exercised sufficient control over the corporate entity to satisfy the first
element of the instrumentality rule. Purcell offered evidence demonstrating that, by the
time the August 20 contract was executed, Pressman was the sole officer, director, and
member of Triton. Purcell Opp. at 18. Furthermore, Pressman testified that there was
no official address for Triton, and that the unofficial address was wherever he was
located. Deposition of Robert Pressman (Doc. 55-5) (“Pressman Dep.”) at 160:1-3.
Finally, Purcell offered evidence that Pressman used Triton’s bank account for personal
purposes, withdrawing funds to pay Purcell’s lawyers for legal services performed on
her behalf. See Purcell Opp. at 14. A reasonable jury could find that this evidence

13

demonstrates that Pressman exercised a degree of control over Triton sufficient to
satisfy the first element of the instrumentality rule.
Regarding the second element of the instrumentality rule, a genuine issue of
material fact remains as to whether Pressman used his control over Triton to perpetrate
the violation of his contractual duties. The August 20 contract makes clear that Triton
was a party to the alleged preexisting oral agreement (“Triton has previously promised
to and agreed with Purcell . . .”). Draft Contract at 1 ¶ 2. While Triton was not formally
established until one week after this preexisting oral agreement occurred, Defs.’ MSJ
Purcell Compl. at 6, this fact is not dispositive. The evidence presented by Purcell
creates a question of fact as to whether Pressman used Triton as a way to protect
himself from personal liability relating to this oral agreement. See Purcell Opp. at 14,
18. These questions are appropriately left for a jury. Because the breach of contract is
the same injury of which Purcell complains, a reasonable jury could find that the third
element of the instrumentality rule is easily satisfied.
Summary Judgment is therefore denied as to Count Four insofar as it is based
on the existence of a preexisting oral agreement between the parties. It is granted as to
any claim based upon the draft written contract dated August 20, 2017.
3.

Breach of Covenant of Good Faith and Fair Dealing (Count Six)

Count Six of Purcell’s Complaint alleges that Triton and Pressman breached the
covenant of good faith and fair dealing by filing litigation and police reports in bad faith.
See Purcell Compl ¶ 108.
Under Connecticut law a violation of the implied covenant of good faith and
fair dealing occurs where the “defendant . . . impedes the plaintiff's right to
receive benefits that he or she reasonably expected to receive under the
contract . . . in bad faith.” Capstone Bldg. Corp. v. Am. Motorists Ins. Co.,
14

308 Conn. 760, 67 A.3d 961, 986 (2013) (internal quotation marks omitted).
Bad faith in this context “implies both actual or constructive fraud, or a
design to mislead or deceive another, or a neglect or refusal to fulfill some
duty or some contractual obligation, not prompted by an honest mistake as
to one's rights or duties, but by some interested or sinister motive. Bad faith
means more than mere negligence; it involves a dishonest purpose.” Id.
(internal quotation marks and ellipsis omitted).
RIDE, Inc. v. APS Tech., Inc., 612 F. App'x 31, 34 (2d Cir. 2015).
As an initial matter, summary judgment is granted in favor of Triton as to this
claim. The Third-Party Defendants proffered evidence sufficient to establish that Triton
was uninvolved in any of the actions alleged to have breached any duty. See Defs.’
Joint Mem. in Supp. at 22–23 (noting that “Triton was not a party to either lawsuit, nor
was it the reporting party with respect to the Police Report.”). Purcell’s Opposition
mentions only Pressman’s actions and makes no argument as to Triton’s liability. See
Purcell Opp. at 26–28. Summary judgment is granted as to Triton on Count Six.
Summary judgment is also granted in Pressman’s favor as to the claims resting
on the filing of two lawsuits against Purcell. The first lawsuit, filed in Connecticut
Superior Court, alleged that Purcell illegally locked Pressman out of the Greenwich
residence. Pressman argues that the litigation was filed in good faith, evidenced by the
fact that the Connecticut court ordered that Purcell give Pressman access to the
premises to move his belongings. See Defs.’ Joint Mem. in Supp. at 21, 23. In the
second lawsuit, Pressman sued the owners of the Greenwich property, after which the
parties to that lawsuit entered into a settlement agreement. Id. at 21.
The court order in the lockout action, which required that Purcell grant Pressman
access to the property, indicates that the claim was not frivolous, and that the action
was brought in good faith. Similarly, the settlement between the Greenwich Property
owners and Pressman indicates that the claim was not frivolous. Pressman thus met
15

his burden to show the lack of any genuine issue of material fact as to whether he filed
the lawsuits in bad faith.
In opposition, Purcell came forward with no evidence upon which a reasonable
jury could make a finding of bad faith as to either lawsuit. Indeed, Purcell’s objection is
little more than a collection of conclusory allegations and speculation that “the record
shows that Pressman’s actions in filing these lawsuits . . . were mere sham attempts to
avoid his contractual obligation with the Berlins, and to harm the Third Party Plaintiff.”
Purcell Opp. at 28. Purcell failed to provide any evidentiary support for her statements.
Summary judgment is granted to Pressman as to the claims of bad faith resting on the
filing of lawsuits in Connecticut Superior Court.
An issue of fact remains to be determined, however, as to Purcell’s claim
regarding the criminal complaint filed by Pressman with the Greenwich Police
Department. A reasonable jury could conclude that Purcell, through her email to
Mitchell Baker, intended to “extort” Pressman in exchange for her silence and
agreement to leave him and his wife alone. However, a jury could also conclude, given
the language of the email, that Purcell was responding to a request by Mitchell. If a jury
were to conclude that the email was a response, not a solicitation, and furthermore
conclude that Pressman were aware of the same, it could conclude that a police report
was filed in bad faith. Given the many factual and credibility determinations remaining,
summary judgment is denied as to Count Six, insofar as it rests on Pressman’s filing of
a police report.

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4.

Slander Per Se (Count Nine)

Count Nine of Purcell’s Third-Party Complaint alleges slander per se. Slander
and libel are encompassed by the claim of defamation. See Gleason v. Smolinski, 319
Conn. 394, 430 n.30 (2015) (“Defamation is comprised of the torts of libel and slander:
slander is oral defamation and libel is written defamation.”). To establish a prima facie
case of defamation, a plaintiff must show (1) the defendant published a defamatory
statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the
defamatory statement was published to a third person; and (4) the plaintiff's reputation
suffered injury as a result of the statement. Id. at 430 However, a plaintiff need not
prove reputational harm where the defamatory statement was actionable “per se.” The
Supreme Court of Connecticut has noted that,
[s]lander is . . . actionable [per se] if it charges a crime. . . . To be actionable
per se, the [defamation] must be one which charges a crime which involves
moral turpitude or to which an infamous penalty is attached. . . . The modern
view of this requirement is that the crime be a chargeable offense which is
punishable by imprisonment.
Id. at 430 n.31 (alterations in original). Contrary to Purcell’s argument, see Purcell Opp.
at 30, whether a communication is defamatory per se is a question for the court. Lowe
v. City of Shelton, 83 Conn. App. 750, 766 (2004).
The police report indicates that Pressman stated (1) that he suffered a stroke and
expected Purcell to help him, but that she did not, and (2) that “Purcell began making
demands for maintaining the lease [at the Greenwich Property], covering her personal
debt and paying her $12 million.” Incident Report (Doc. No. 55-16) at 3. Pressman
further stated that Purcell stated that she would “embarrass him and his reputation” if he
did not meet her demands. Id. Questioned by the investigating officer, Pressman

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clarified that there was nothing beyond the relationship itself, and the payments and
gifts made to Purcell, which could be construed as compromising. Id. Pressman also
clarified that there was no unauthorized use of his credit cards or bank accounts. Id.
The investigating officer concluded that the matter was civil in nature. Id.
Purcell argued, in her Opposition, that Pressman’s statements would support a
charge of extortion pursuant to Conn. Gen. Stat. § 53-119(5)(E). Purcell Opp. (Doc. No.
55-1) at 30–31. That statute defines extortion, in part, as when a person obtains
property by “instilling in [the victim] a fear that, if the property is not so delivered, the
actor or another will . . . expose a secret or publicize an asserted fact, whether true or
false, tending to subject some person to hatred, contempt or ridicule.” Conn. Gen. Stat.
§ 53a-119.
The police report notes that Pressman accused Purcell of seeking substantial
sums of money, and that he had accused of Purcell of stating that, “unless Pressman
acquiesced to her demands, she would embarrass him and his reputation.” Incident
Report at 3. The court concludes that, if a jury were to find that Pressman’s statements
to the investigating officer were accurately recorded in the Incident Report, that
Pressman accused Purcell of a crime punishable by imprisonment. Such statements
would be per se defamatory. Pressman’s Motion for Summary Judgment as to Count
Nine is denied.
C.

Motion for Summary Judgment as to Pressman’s Claims

Pressman has moved for summary judgment in his favor as to a number of his
claims against Purcell. Pressman’s Motion for Partial Summary Judgement (Doc. No.
49) at 1. He seeks summary judgment as to Count Two, alleging conversion of the

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engagement ring; Count Three, alleging unjust enrichment through retention of the
same ring; and Count Four, alleging unjust enrichment with regard to the Greenwich
rental property. See Pressman Compl. (Doc. No. 1) at 10–12.
1.

Conversion, Engagement Ring (Count Two)

In Count II, Pressman alleges that Purcell has “assumed and exercised
ownership” over the engagement ring “to the exclusion of Pressman’s rights.” Id. ¶ 77.
“Pressman seeks the return of the Cartier sapphire engagement ring (or its value).”
Pressman Memorandum of Law in Support of Partial Summary Judgment (“Pressman
Mem. in Supp.”) (Doc. No. 49-1) at 6. Pressman argues that, in Connecticut, an
engagement ring is a gift given in contemplation of marriage, and such a gift is
conditional upon a subsequent ceremonial marriage. Id.
The court agrees that the general rule in Connecticut is that gifts given in
contemplation of marriage are conditional on the subsequent ceremonial marriage. See
Reid v. Shelton, No. CV116021534S, 2013 WL 7084810, at *2 (Conn. Super. Ct. Dec.
30, 2013) (“The modern view is that the gift of the engagement ring is a conditional gift,
the condition being the subsequent marriage of the parties. If the marriage does not
take place, the condition has not been met and the ring should be returned to the
donor.”). Moreover, “[a] majority of jurisdictions hold that where an engagement gift is
given to a donee in contemplation of marriage, although absolute in form, it is
conditional; the donor is entitled to return of the engagement gift upon breach of the
engagement.” Barbara Frazier, "But I Can't Marry You": Who Is Entitled to the
Engagement Ring When the Conditional Performance Falls Short of the Altar?, 17 J.

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Am. Acad. Matrim. Law. 419, 421 (2001). Notwithstanding this general rule, issues of
fact preclude summary judgment in Pressman’s favor.
As Purcell notes, weeks prior to purchasing the engagement ring, Pressman
presented her with a note, which note stated, “[t]his Jewelry and all other Jewelry that
was, or will be given to you are all gifts, and are given unconditionally to you with love.”
See Purcell 56(a)(2) ¶ 34. Though there is substantial evidence supporting a
conclusion that the ring was given in contemplation of marriage, including Purcell’s
admission that she viewed the ring as an engagement ring, see Purcell Dep. (Doc. No.
49-2) at 56:23–25,4 the handwritten (and signed) note given to Purcell by Pressman
raises a genuine issue of fact as to whether the ring was intended to be given
unconditionally.
The modern rule regarding engagement rings implies a condition of marriage
upon the gift of the ring. See Frazier, 17 J. Am. Acad. Matrim. Law. at 422. (“A majority
of jurisdictions recognize that the condition of ensuing marriage may be implied by the
nature and inherent symbolism of the engagement ring.”). In this case, however, there
is an unresolved issue of fact as to whether the parties sought to expressly overrule that
implied conditionality. Because that fact is material to determination of the claim,
summary judgment as to Count Two is denied.
2.

Unjust Enrichment, Engagement Ring (Count Three)

In Count Three, Pressman seeks return of the ring or damages equal to its value,
pursuant to the equitable doctrine of unjust enrichment. See id. at 9. Pressman relies

As noted above, see supra n.1, the court ignores Purcell’s statement in her Declaration which
contradicts her earlier admission that she viewed the ring as an engagement ring.
4

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upon “the same reasons” as his argument in favor of summary judgment as to Count
Two. See id. at 9. However, the same issues of fact that precluded summary
judgment as to Count Two—whether the ring was intended to be given as an
unconditional gift—bar summary judgment as to this count, and summary judgment is
therefore denied.
3.

Unjust Enrichment, Rental Property (Count Four)

Finally, Pressman seeks summary judgment as to Count Four, in which he seeks
Purcell’s “proportional share of the rent and security deposit for the Greenwich house.”
Id. Summary judgment as to this claim is also denied. It remains to be determined
how, if at all, Pressman and Purcell intended to proportion the rent at the Greenwich
home. Pressman offered no evidence that they agreed to split the rent equally, and
indeed there is evidence upon which a jury could find that Pressman intended to pay the
total rent payment. Defs.’ Joint Mem. in Supp. at 3. Moreover, it is unclear that any
mutual obligation that Pressman and Purcell may have had to the landlord through the
Lease would require that they be equally obligated to one another based on any
damages flowing from that agreement. Because these are factual issues which remain
unresolved and which are both material and disputed, summary judgment is denied.
V.

CONCLUSION
For the foregoing reasons, Pressman’s Partial Motion for Summary Judgment

(Doc. No. 49) is DENIED, the Third-Party Defendants’ Motion to Strike (Doc. No. 58) is
DENIED, and the Third-Party Defendants’ Motion for Summary Judgment (Doc. No. 54)
is GRANTED IN PART AND DENIED IN PART.

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The Third-Party Defendants’ Motion for Summary Judgment is granted as to
Count One, insofar as Count One based upon claims that Purcell was induced to forego
her employment based on a promise to marry, or that she was induced to leave her
employment or move to Connecticut based on a written contract. It is denied as to
Count One in all other respects.
The Third-Party Defendants’ Motion for Summary Judgment is granted as to
Count Four, insofar as Count Four is based upon breach of the August 20, 2017 Draft
Contract. It is denied insofar as Count Four is based on evidence of a preexisting,
enforceable agreement between Pressman and Purcell.
The Third-Party Defendants’ Motion for Summary Judgment is granted as to
Count Six insofar as Count Six is based upon Pressman’s filing of litigation and denied
insofar as Count Six is based upon Pressman’s filing of a police report.
The Third-Party Defendants’ Motion for Summary Judgment is denied as to
Count Five and Count Nine.
SO ORDERED.
Dated this 19th day of August 2019 at New Haven, Connecticut.

Janet C. Hall
United States District Judge

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