Brown v. Otake , 164 Conn. App. 686 ( 2016 )

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STEPHEN A. BROWN v. LEO OTAKE ET AL.
(AC 37691)
Sheldon, Keller and Prescott, Js.
Argued January 5—officially released April 19, 2016
(Appeal from Superior Court, judicial district of
Hartford, Domnarski, J. [motion to strike]; Hon. Richard
M. Rittenband, judge trial referee [summary judgment
motion; judgment].)
Devin W. Janosov, with whom was Lukas J. Thomas,
for the appellant (plaintiff).
Jeffrey J. Mirman, with whom, on the brief, was
Alexa T. Millinger, for the appellees (defendants).
Opinion
PRESCOTT, J. The plaintiff, Stephen A. Brown,
appeals from the summary judgment rendered by the
trial court in favor of the defendants, Leo Otake and
Saint Francis Hospital and Medical Center (hospital).1
The plaintiff’s principal claim on appeal is that the court
improperly violated the law of the case doctrine by
granting summary judgment in favor of the defendants
on all counts of the complaint on the basis of its determi-
nation that, as a matter of law, no contract existed
between the parties, despite a prior ruling by the court
on a motion to strike that suggested that the formation
of a contract was immaterial to those counts of the
complaint that alleged negligent and intentional misrep-
resentation and tortious interference with business
expectancies (noncontractual counts).2 We disagree
and affirm the judgment of the court.
The record reveals the following undisputed facts
and procedural history relevant to our review. The
plaintiff was a plastic surgeon who practiced in Hartford
and New Britain, and had privileges at the hospital.3
The plaintiff decided to retire from practice due to
physical limitations that began to affect his ability to
perform surgeries. Hoping to find someone to purchase
his practice, he hired a broker to help him locate a
buyer.
The broker contacted Otake about the opportunity
to purchase the plaintiff’s practice in 2009. At that time,
Otake practiced plastic and reconstructive surgery at
Yale-New Haven Hospital, commuting there from his
home in Westchester County, New York. The plaintiff
and Otake began communicating directly in November,
2009, and spoke on and off throughout the first half of
2010, trying to negotiate terms for the sale of the plain-
tiff’s practice to Otake. Although Otake expressed inter-
est in purchasing the plaintiff’s practice, he was unsure
about relocating to the Hartford area and also was con-
sidering other opportunities.
The plaintiff assured Otake that the plaintiff’s prac-
tice was doing very well and that he would provide
letters introducing Otake to his patients. The plaintiff
also made clear that he was willing to stay on with the
practice in the short term, if Otake bought it, to aid
Otake in the transition. The plaintiff, who understood
that the hospital was looking to offer a two year stipend
to ensure adequate plastic surgery coverage for the
hospital, introduced Otake to members of the hospital’s
surgery department, including the chief of surgery, with
the hope that Otake and the hospital could come to a
short-term staffing arrangement that would benefit all
parties. Ultimately, however, Otake decided not to pur-
chase the plaintiff’s practice, and instead took a full-
time position that he was offered by the hospital in
August, 2010.
In May, 2011, the plaintiff commenced this action
against the defendants. According to the plaintiff’s ini-
tial complaint, he and Otake had reached an agreement
about the sale of the plaintiff’s practice, and although
the plaintiff had performed all of his obligations in
accordance with that agreement, he suffered damages
as a result of the defendants’ conduct. In particular, the
plaintiff alleged that he expended considerable time
and effort keeping his practice operational during the
transition process, and that those efforts were made in
reliance on Otake’s representation that he would buy
the practice. Among the expenses that the plaintiff
alleged he incurred in keeping his practice operational
were office expenses, salaries, overhead, rent, utilities,
supplies, and malpractice insurance. Additionally, the
plaintiff alleged that despite having introduced Otake
to the hospital as ‘‘the plastic and reconstructive sur-
geon who was purchasing his business and practice,’’
the hospital and Otake secretly had agreed that, instead
of offering Otake a two year stipend, the hospital would
hire Otake as a full-time employee to enhance the hospi-
tal’s existing plastic surgery department, which would
directly compete with the plaintiff’s practice.
The plaintiff’s initial complaint contained seven
counts. Counts one and six alleged claims against Otake
for breach of contract and unjust enrichment; count
seven alleged tortious interference with business expec-
tancies against the hospital; and counts two through
five alleged, respectively, negligent misrepresentation,
intentional misrepresentation, breach of the duty of
good faith and fair dealing, and fraudulent concealment
against both defendants.
On July 7, 2011, the defendants filed a joint motion
to strike all counts of the complaint for failure to set
forth sufficient facts to state a cognizable claim. The
court, Domnarski, J., rendered a decision on October
14, 2011, granting in part and denying in part the motion
to strike.
The court granted the motion to strike as to four
counts of the complaint. First, the court reasoned that
although the plaintiff had alleged in the complaint that
he and Otake had agreed in principle to a sale of the
plaintiff’s practice to Otake, the plaintiff had failed to
plead facts demonstrating that they had come to terms
about essential provisions necessary for the formation
of a contract, such as a purchase price. The court con-
cluded that this was fatal to the plaintiff’s breach of
contract count.
Second, the court determined that there was no alle-
gation in the complaint of a contractual relationship
between the plaintiff and the hospital. Because the
plaintiff had failed to plead facts establishing the exis-
tence of a contract between himself and either of the
defendants, the court concluded that the plaintiff’s
count against them for breach of the duty of good faith
and fair dealing failed to state a valid cause of action.
Third, the court concluded that the count alleging
fraudulent concealment must be stricken because Con-
necticut does not recognize an independent cause of
action for fraudulent concealment. The court, citing
Zenk-Pinter v. Henry J. Showah, DDS, P.C., Superior
Court, judicial district of Danbury, Docket No. CV-10-
6002725 (September 23, 2010) (50 Conn. L. Rptr. 689,
690), explained that ‘‘[General Statutes § 52-595] is the
codification of the common-law rule that fraudulent
concealment is an avoidance of an affirmative defense
of the statute of limitations. It gives rise to neither
an independent cause of action nor an enhancement
of damages.’’
Fourth, the court concluded that the plaintiff’s allega-
tions that his introduction of Otake to the hospital led
to the hospital’s hiring of Otake and that the plaintiff,
therefore, was entitled to compensation were legally
insufficient to state a claim against Otake for unjust
enrichment. The court reasoned: ‘‘While unjust enrich-
ment is a broad doctrine, if such behavior were legally
sufficient to state a cause of action, every person who
has recommended another for a job or spoke kindly of
them to a potential employer without receiving compen-
sation in return could survive a motion to strike on a
claim of unjust enrichment.’’
The court denied the motion to strike with respect to
the remaining three counts, concluding that the plaintiff
adequately had pleaded facts sufficient to state causes
of action sounding in negligent misrepresentation,
intentional misrepresentation, and tortious interfer-
ence. With respect to the tortious interference count,
the court suggested that its legal sufficiency did not
turn on the existence of an enforceable contract, stating
that ‘‘[although] the plaintiff has not sufficiently pleaded
breach of contract, the plaintiff has pleaded that he
was, at the very least, in negotiations with Otake to
purchase his practice and business. It was only based
on these negotiations that he introduced Otake to the
hospital. It is also alleged that he introduced Otake as
the surgeon who was buying his practice. Therefore,
the hospital is alleged to have been on notice of the
beneficial business expectancy, even if it was based on
an unenforceable contract. As previously stated, the
plaintiff has adequately pleaded that the hospital made
misrepresentations to him regarding the purpose of the
introduction. And finally, it is alleged that the hospital
secretly hired Otake to the detriment of the plaintiff in
that any potential deal for Otake to purchase his busi-
ness was destroyed when Otake was hired as a full-
time employee of the hospital. Therefore, the plaintiff
has stated a legally sufficient cause of action as to
tortious interference . . . .’’
The plaintiff filed a revised amended complaint on
November 23, 2011 (operative complaint). Although the
plaintiff did not replead those counts asserting unjust
enrichment and fraudulent concealment, he repleaded
the breach of contract count against Otake4 and also
repleaded the breach of the duty of good faith and fair
dealing count, although only against Otake. In sum, the
operative complaint contained five counts: count one
alleged breach of contract by Otake; count two alleged
negligent misrepresentation by both defendants; count
three alleged intentional misrepresentation by the
defendants; count four alleged that Otake had breached
the duty of good faith and fair dealing; and count five
asserted a claim of tortious interference with business
expectancy against the hospital. The defendants filed
an answer to the operative complaint and a special
defense alleging that the plaintiff had failed to mitigate
his damages.
On November 14, 2014, the defendants filed a motion
for summary judgment as to all five counts of the com-
plaint, asserting that there were no material facts in
dispute and that the defendants were entitled to judg-
ment as a matter of law. In support of their motion, the
defendants submitted a memorandum of law as well as
several affidavits and deposition transcripts.5 In
response, the plaintiff filed a two page opposition. He
submitted no opposing affidavits or any other documen-
tary proof, nor did he cite to any of the depositions or
other documentary evidence submitted by the defen-
dants. The court heard argument on the motion for
summary judgment on December 22, 2014.
With respect to the counts for breach of contract and
breach of the covenant of good faith and fair dealing,
the defendants argued that they had shown through
their submissions, including the plaintiff’s own deposi-
tion testimony, that there was never any meeting of the
minds between the plaintiff and Otake regarding the
sale of the plaintiff’s practice. Without a meeting of the
minds, the defendants argued that the parties had not
formed a binding contract, and, therefore, that the plain-
tiff’s claims of breach of contract and breach of the
covenant of good faith and fair dealing failed as a matter
of law. Although the defendants asserted that the lack of
a contractual relationship also was fatal to the tortious
interference count against the hospital, they also argued
that the count failed because there was nothing mali-
cious or tortious about the hospital’s offer to Otake of
a job, and, thus, the plaintiff had failed to establish the
existence of an essential element of the tort of tortious
interference. The defendants addressed the two misrep-
resentation counts together. They argued that neither
of the two alleged misrepresentations—Otake’s alleged
representation that he would purchase the plaintiff’s
practice and the hospital’s alleged representation that
it planned to offer Otake a two year stipend—were
supported by any evidence in the record. According to
the defendants, the affidavits submitted in support of
summary judgment demonstrated that although Otake
engaged in negotiations to purchase the plaintiff’s prac-
tice, he never agreed to do so, and the hospital never
represented that it would provide Otake with a stipend
in any amount and only offered Otake a position after
his negotiations with the plaintiff had ended.
In response to the defendants’ arguments, the plain-
tiff conceded that his claim for breach of contract was
not necessarily a strong one, but argued that the pur-
pose of summary judgment was not to prevent weak
cases from proceeding to trial and that whether he had
reached an enforceable oral agreement with Otake was
an issue that should be left for the jury to consider, not
decided at summary judgment. In essence, the plaintiff
seemed to argue that his allegation in the complaint
that an agreement existed was sufficient to prevent
summary judgment on both the breach of contract claim
and the claim for tortious interference, stating that if
he ‘‘prevails on the contract claim, then, obviously,
there was some business relationship between the
parties.’’6
The plaintiff offered no arguments in support of his
claims of negligent and intentional misrepresentation.
With respect to those counts, the plaintiff’s counsel
stated as follows: ‘‘Now, the other claims, misrepresen-
tation, I don’t know that there is stuff specifically in
the record to support that at this point, whether or not
there would be stuff at trial to support that, but I’m
mostly concerned with simply those two counts right
now, the breach of contract claim and the tortious inter-
ference with contractual relations. And I think both
of those are clear. I think the five points of tortious
interference are met if you allow a fact finder to deter-
mine whether there is a breach of contract claim. And
I think that’s the standard of the law, and I think that
my client should be entitled to a day in court to be able
to have a fact finder evaluate that on its merits.’’
Following argument, the court, Hon. Richard M. Rit-
tenband, judge trial referee, indicated that it would
‘‘take the papers.’’ The court later rendered a decision
granting the motion for summary judgment. The court
did not issue a written memorandum of decision
‘‘encompass[ing] its conclusion as to each claim of law
raised by the parties and the factual basis therefor.
. . .’’ Practice Book § 64-1 (a). Rather, the court’s lim-
ited analysis was included on the notice granting the
motion in its entirety: ‘‘A court may interpret a contract
as a matter of law, and the court finds that there was
clearly no meeting of the minds. The amended com-
plaint shows a purchase price of $200,000, yet [the plain-
tiff’s] deposition cites a $300,000 purchase price. The
terms of payment were not agreed upon. . . . [T]he
plaintiff’s wife and office manager stated in a deposition
that in July of 2010 her husband and the defendant,
Otake, were still negotiating. Moreover, the agreement
was conditional upon Otake obtaining a stipend from
Saint Francis, which never came to pass.’’
The plaintiff filed a motion to reargue in which he
claimed that the court appeared to have granted sum-
mary judgment on all counts solely on the basis of
its conclusion that there was no contract between the
parties. The plaintiff argued that it was not necessary
for him to show the existence of an enforceable contract
in order to sustain his claim of tortious interference
with a business expectancy, and, therefore, the court
improperly granted summary judgment on that count.
The plaintiff made no argument that summary judgment
was inappropriately granted with respect to any of the
other counts, including the two misrepresentation
counts. The defendants filed an objection to the motion
to reargue. The court sustained that objection and
denied the motion. This appeal followed.
During the pendency of the appeal, the plaintiff filed
a motion for articulation pursuant to Practice Book
§ 66-5. The plaintiff asked the court to explain how the
discussion it included on the notice granting the motion
for summary judgment applied with respect to each of
the five counts of the operative complaint, and also to
articulate the factual and legal basis for denying the
plaintiff’s motion to reargue. The trial court granted the
motion and issued a brief articulation.7
With respect to count one, alleging breach of con-
tract, the court stated: ‘‘The facts presented to the court
showed, as stated in the granting of the motion for
summary judgment, that there was no meeting of the
minds, the amended complaint shows a purchase price
of $200,000, yet [the plaintiff’s] deposition cites a
$300,000 purchase price. The terms of payment were
not agreed upon, and the plaintiff’s wife stated that her
husband and Otake were still negotiating. Finally, the
agreement was conditional upon Otake obtaining a sti-
pend from [the hospital], which never was obtained.
Therefore, there is no breach of contract.’’
Regarding count two, alleging negligent misrepresen-
tation, the court stated: ‘‘There were no facts presented
that showed negligent representation on the part of
these defendants.’’ Similarly, the court articulated as to
count three, alleging intentional misrepresentation, that
‘‘[t]here were no facts presented that any misrepresen-
tations were made, negligent or false.’’
The court articulated with respect to count four that,
because ‘‘there was no meeting of the minds and no
breach of contract, there were no facts presented that
[Otake] violated the duty of good faith [and fair
dealing].’’
With respect to count five, alleging tortious interfer-
ence, the court articulated as follows: ‘‘No facts were
presented that showed that there was any tortious inter-
ference by [the hospital]. [The hospital] had no obliga-
tion to give [Otake] a stipend, and there were no facts
presented to show that the failure by [the hospital] to
give a stipend was for the purpose of interfering with
the contract between [the plaintiff] and [Otake], which,
in fact, did not exist. One cannot interfere with some-
thing that does not exist.’’ Finally, the court explained
that it had denied the motion to reargue because ‘‘noth-
ing new was presented that had not yet been con-
sidered.’’8
Before turning to our discussion of the plaintiff’s
claims on appeal, we first set forth the well settled
legal principles that guide our review. ‘‘The fundamental
purpose of summary judgment is preventing unneces-
sary trials. . . . If a plaintiff is unable to present suffi-
cient evidence in support of an essential element of his
cause of action at trial, he cannot prevail as a matter
of law. . . . To avert these types of ill-fated cases from
advancing to trial, following adequate time for discov-
ery, a plaintiff may properly be called upon at the sum-
mary judgment stage to demonstrate that he possesses
sufficient counterevidence to raise a genuine issue of
material fact as to any, or even all, of the essential
elements of his cause of action.’’ (Citations omitted;
internal quotation marks omitted.) Stuart v. Freiberg,
316 Conn. 809, 822–23, 116 A.3d 1195 (2015).
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party.9 . . . 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 him to a judgment as a matter of law . . . and
the party opposing such a motion must provide an evi-
dentiary foundation to demonstrate the existence of a
genuine issue of material fact.’’ (Footnote added; inter-
nal quotation marks omitted.) Barbee v. Sysco Connect-
icut, LLC, 156 Conn. App. 813, 817–18, 114 A.3d 944(2015).
‘‘It is not enough . . . for the opposing party merely
to assert the existence of such a disputed issue. Mere
assertions of fact . . . are insufficient to establish the
existence of a material fact and, therefore, cannot refute
evidence properly presented to the court . . . . [T]ypi-
cally [d]emonstrating a genuine issue requires a show-
ing of evidentiary facts or substantial evidence outside
the pleadings from which material facts alleged in the
pleadings can be warrantably inferred.’’ (Citation omit-
ted; internal quotation marks omitted.) Rafalko v. Uni-
versity of New Haven, 129 Conn. App. 44, 49, 19 A.3d
215 (2011). Only if the defendant as the moving party
has submitted no evidentiary proof to rebut the allega-
tions in the complaint, or the proof submitted fails to
call those allegations into question, may the plaintiff
rest upon factual allegations alone. Conboy v. State, 292
Conn. 642, 651–52, 974 A.2d 669 (2009).
‘‘[I]ssue-finding, rather than issue-determination, is
the key to the procedure. . . . [T]he trial court does
not sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s con-
clusions were legally and logically correct and find sup-
port in the record.’’ (Internal quotation marks omitted.)
Barbee v. Sysco Connecticut, LLC, supra, 156 Conn.
App. 818.
The plaintiff claims that the court improperly granted
summary judgment on the entire complaint on the basis
of its determination that, as a matter of law, no contract
existed between the parties. The plaintiff contends that
in a prior ruling on the defendants’ motion to strike, a
different judge had concluded that the formation of a
contract was immaterial with respect to the noncontrac-
tual counts of the complaint alleging negligent and
intentional misrepresentation and tortious interference
with business expectancies, and, therefore, the court’s
decision to grant summary judgment on those counts
on the basis of its rationale that no contract existed
was improper and violated the law of the case doctrine.
We are not persuaded.
We clarify at the outset that the plaintiff does not
challenge the court’s summary judgment ruling with
respect to either the breach of contract count or the
count alleging breach of the covenant of good faith and
fair dealing, and his attorney conceded as much at oral
argument before this court.10 The plaintiff advances no
argument that the court’s determination that no con-
tract was ever formed between Otake and the plaintiff
provided an improper basis for granting summary judg-
ment on those counts, nor could he properly do so. See
Macomber v. Travelers Property & Casualty Corp., 261
Conn. 620, 638, 804 A.2d 180 (2002) (existence of con-
tract necessary antecedent to any claim for breach of
contract, including claim for breach of duty of good
faith and fair dealing). Rather, it is only with respect
to the noncontractual counts, those alleging negligent
misrepresentation, intentional misrepresentation, and
tortious interference with business expectancies, that
the plaintiff challenges the court’s decision to grant
summary judgment, arguing that the court’s determina-
tion that there was no meeting of the minds, and, thus,
no contract between Otake and the plaintiff, was not
a proper basis for granting summary judgment on those
counts. Before turning to a discussion of whether the
court properly granted summary judgment with respect
to each of the noncontractual counts, we briefly discuss
the law of the case doctrine and why the plaintiff’s
reliance on that doctrine is misguided in the present
case.
‘‘The application of the law of the case doctrine
involves a question of law, over which our review is
plenary. . . . The law of the case doctrine expresses
the practice of judges generally to refuse to reopen
what [already] has been decided . . . . New pleadings
intended to raise again a question of law which has
been already presented on the record and determined
adversely to the pleader are not to be favored. . . .
[When] a matter has previously been ruled [on] interloc-
utorily, the court . . . may treat that [prior] decision
as the law of the case, if it is of the opinion that the
issue was correctly decided, in the absence of some
new or overriding circumstance. . . . A judge should
hesitate to change his own rulings in a case and should
be even more reluctant to overrule those of another
judge. . . . Nevertheless, if . . . [a judge] becomes
convinced that the view of the law previously applied
by his coordinate predecessor was clearly erroneous
and would work a manifest injustice if followed, he may
apply his own judgment.’’ (Citations omitted; internal
quotation marks omitted.) Total Recycling Services of
Connecticut, Inc. v. Connecticut Oil Recycling Ser-
vices, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013).
‘‘The adoption of a different view of the law by a
judge in acting upon a motion for summary judgment
than that of his predecessor in considering such a
motion or some other pretrial motion is a common
illustration of this principle. . . . From the vantage
point of an appellate court it would hardly be sensible
to reverse a correct ruling by a second judge on the
simplistic ground that it departed from the law of the
case established by an earlier ruling. . . . In an appeal
to this court [in which] views of the law expressed by
a judge at one stage of the proceedings differ from
those of another at a different stage, the important
question is not whether there was a difference but
which view was right.’’ (Citations omitted; internal quo-
tation marks omitted.) Breen v. Phelps, 186 Conn. 86,
100, 439 A.2d 1066 (1982).
For several reasons we will explain, we are uncon-
vinced that the law of the case doctrine is applicable
under the circumstances presented. Further, even if it
were applicable, the plaintiff has failed to demonstrate
that application of the doctrine would mandate a rever-
sal of the court’s decision to grant summary judgment
in the present case.
First, it appears that the plaintiff reads far too much
into Judge Domnarski’s prior ruling. The legal issue
before Judge Domnarski in deciding the defendants’
motion to strike was whether the plaintiff had pleaded
sufficient facts in the complaint to state a proper cause
of action. The plaintiff suggests that because the court
answered that question in the affirmative with respect
to the noncontractual counts, and yet contemporane-
ously determined that the plaintiff had failed to allege
the existence of a contractual relationship essential to
stating a cause of action for breach of contract, the
court necessarily also must have decided that the exis-
tence of a contractual relationship was immaterial to
the misrepresentation and tortious interference counts.
That particular question of law, however, was not an
issue that was actually litigated by the parties or
expressly decided by Judge Domnarski in his ruling on
the motion to strike. Accordingly, Judge Rittenband’s
decision cannot be characterized as conflicting with
Judge Domnarski’s ruling on the motion to strike.11
Second, the plaintiff’s entire law of the case argument
is premised on his assumption that Judge Rittenband
granted summary judgment on all counts of the com-
plaint solely on the basis of his determination that, as
a matter of law, there was no enforceable contract
between Otake and the plaintiff. That assumption, how-
ever, is not supported by the record, as evidenced by
the court’s articulation, which the plaintiff appears to
ignore.12
Finally, the law of the case doctrine recognizes that
a trial judge may, in the exercise of its discretion, choose
to reach a contrary conclusion on an issue of law pre-
viously decided if the judge is convinced that the prior
ruling was wrong or following it would work an injus-
tice. Even if the plaintiff is correct that the law of the
case doctrine should have guided Judge Rittenband’s
summary judgment decision, the plaintiff has failed to
analyze whether and in what manner Judge Rittenband
abused his discretion in allegedly electing not to follow
Judge Domnarski’s earlier ruling.
Simply put, although the plaintiff is entitled to chal-
lenge the merits of Judge Rittenband’s decision to grant
summary judgment, he has failed to demonstrate that
the law of the case doctrine is implicated here. Having
determined that the law of the case doctrine presented
no discernible barrier to the court’s summary judgment
ruling, we turn next to whether the court properly deter-
mined that there was an absence of any genuine issue
of material fact and that the defendants were entitled
to judgment in their favor under applicable principles
of substantive law.
We first consider whether the court properly granted
summary judgment on the two misrepresentation
counts. Although the plaintiff offered no argument at
the hearing on the motion for summary judgment with
respect to those counts, stating that he was unsure
whether there was ‘‘stuff specifically in the record to
support’’ them,13 the plaintiff nonetheless now argues
on appeal that the court should have denied summary
judgment because he had alleged sufficient facts in his
complaint to support his misrepresentation claims
against each of the defendants. We conclude that the
plaintiff failed to meet his burden of production in
opposing summary judgment and that the court prop-
erly rendered judgment on both counts in favor of
the defendants.
‘‘To establish liability for negligent misrepresenta-
tion, a plaintiff must be able to demonstrate by a prepon-
derance of the evidence: (1) that the defendant made
a misrepresentation of fact (2) that the defendant knew
or should have known was false, and (3) that the plain-
tiff reasonably relied on the misrepresentation, and (4)
suffered pecuniary harm as a result.’’ (Emphasis added;
internal quotation marks omitted.) Stuart v. Freiberg,
supra, 316 Conn. 821–22. A claim of intentional misrep-
resentation14 requires the same elements as negligent
misrepresentation except that the plaintiff also must
prove that the defendant made the misrepresentation
‘‘to induce the other party to act upon it . . . .’’ (Inter-
nal quotation marks omitted.) Jaser v. Fischer, 65 Conn.
App. 349, 358, 783 A.2d 28 (2001). ‘‘Although the general
rule is that a misrepresentation must relate to an
existing or past fact, there are exceptions to this rule,
one of which is that a promise to do an act in the future,
when coupled with a present intent not to fulfill the
promise, is a false representation.’’ Paiva v. Vanech
Heights Construction Co., 159 Conn. 512, 515, 271 A.2d
69 (1970).
In the operative complaint, the plaintiff alleged two
possible representations on which to base his claims
of negligent and intentional misrepresentation—one by
Otake and one by the hospital. First, Otake allegedly
represented that he would purchase the plaintiff’s prac-
tice. Second, the hospital allegedly represented that it
intended to offer a two year stipend to a plastic surgeon
who would agree to provide coverage for the hospital.15
In their motion for summary judgment, the defendants
argued that there was no evidence that these alleged
representations were ever made, and, therefore,
because the plaintiff could not prove an essential ele-
ment of his misrepresentation counts, they were enti-
tled to judgment as a matter of law.
With respect to Otake’s alleged representation that he
would purchase the plaintiff’s practice, the defendants
submitted evidence from which it can be reasonably
inferred that no such representation was ever made. In
Otake’s affidavit, he attests that he had only engaged
in negotiations with the plaintiff; he never agreed to
buy the plaintiff’s practice. He claims that he did not
receive the financial information from the plaintiff nec-
essary to make such a preliminary decision until July,
2010, after which he had no further contact with the
plaintiff. This fact was supported by the testimony of
the plaintiff’s wife in her deposition that, on July 17,
2010, she had provided Otake with detailed numbers
about income and the costs associated with running
the practice. The defendants also offered the deposition
testimony of the plaintiff, in which he acknowledged
that he and Otake had never agreed on any of the essen-
tial terms of a sale, including financing terms. When
asked about the allegation in the complaint that the
purchase price was to have been $200,000, the plaintiff
testified that he believed the price was actually
$300,000. The plaintiff’s wife confirmed in her deposi-
tion that the parties were still in negotiation as of July,
2010. The plaintiff offered no evidence to rebut the
evidence submitted by the defendants and simply
directed the court to the allegations in his complaint.
For example, he failed to submit his own counteraffida-
vit or any deposition transcript evidencing when Otake
allegedly had made this representation.
Similarly, the defendants presented evidence negat-
ing the allegation that the hospital had made a misrepre-
sentation about its intention to provide Otake with a
two year stipend, something that the plaintiff and Otake
had agreed would be necessary in order to make the
purchase of the plaintiff’s practice a viable opportunity
for Otake. According to the affidavits that the defen-
dants submitted from various hospital agents, before it
could even consider offering Otake a stipend, the hospi-
tal would have had to complete a study, something
that was never done. Carolyn Martindale, the hospital’s
former director of business development, testified that
there was no reason to offer a stipend until there was an
understanding between the plaintiff and Otake, which
never materialized. Again, the plaintiff offered no evi-
dence of his own necessary to create a genuine dispute
about the existence of this representation by the
hospital.
According to the court’s articulation, summary judg-
ment was warranted on the negligent misrepresentation
count because ‘‘[t]here were no facts presented that
showed negligent representation on the part of these
defendants.’’ With respect to the count alleging inten-
tional misrepresentation, the court articulated that it
granted summary judgment because ‘‘[t]here were no
facts presented that any misrepresentations were made,
negligent or false.’’ On the basis of our review of the
record, including the arguments of the parties at sum-
mary judgment, we construe the court’s ruling as hold-
ing that the plaintiff failed to present any evidence
rebutting the proof submitted by the defendants show-
ing that the representations on which the plaintiff relies
as misrepresentations were never made, thereby estab-
lishing a lack of a genuine issue of material fact on an
essential element necessary to prevail at trial on either
misrepresentation count. That conclusion is legally and
logically correct, and supported by the record. Once
the defendants presented evidence demonstrating the
lack of a genuine issue of material fact regarding the
existence of a misrepresentation of fact, the evidentiary
burden shifted to the plaintiff, and he could no longer
rely solely upon the allegations in his complaint. To
survive summary judgment, the plaintiff needed to mar-
shal some evidence countering that submitted by the
defendants, and it was not the court’s responsibility to
search the evidentiary record provided by the moving
party on his behalf. Having failed to present any evi-
dence himself or to reference any portion of the evi-
dence submitted by the defendants, the plaintiff failed
to meet his burden. Accordingly, we conclude that the
court properly granted summary judgment on the mis-
representation counts as a matter of law.
We turn next to the plaintiff’s argument that the court
improperly granted summary judgment in favor of the
hospital on his claim of tortious interference with busi-
ness expectancies.
‘‘It is well established that the elements of a claim
for tortious interference with business expectancies
are: (1) a business relationship between the plaintiff
and another party; (2) the defendant’s intentional inter-
ference with the business relationship while knowing
of the relationship; and (3) as a result of the interfer-
ence, the plaintiff suffers actual loss.’’ (Internal quota-
tion marks omitted.) American Diamond Exchange,
Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 976 (2011).
‘‘The plaintiff need not prove that the defendant caused
the breach of an actual contract; proof of interference
with even an unenforceable promise is enough. . . . A
cause of action for tortious interference with a business
expectancy requires proof that the defendant was guilty
of fraud, misrepresentation, intimidation or molestation
. . . or that the defendant acted maliciously. . . . It is
also true, however, that not every act that disturbs a
contract or business expectancy is actionable. . . . A
defendant is guilty of tortious interference if he has
engaged in improper conduct. . . . [T]he plaintiff [is
required] to plead and prove at least some improper
motive or improper means. . . .
‘‘Stated simply, to substantiate a claim of tortious
interference with a business expectancy, there must be
evidence that the interference resulted from the defen-
dant’s commission of a tort.’’ (Citations omitted; inter-
nal quotation marks omitted.) Biro v. Hirsch, 62 Conn.
App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908,
772 A.2d 601 (2001); see Kopperl v. Bain, 23 F. Supp.
3d 97, 110 (D. Conn. 2014) (‘‘[c]entral to [a claim of
tortious interference with business expectancies] is the
requirement that to be actionable, the interference com-
plained of must be tortious’’ [emphasis in original]).16
In the present case, except for the plaintiff’s bald
allegations in his complaint, there is nothing in the
record indicating that the hospital acted fraudulently or
with malice when it offered Otake a full-time position,
despite having knowledge of the negotiations between
Otake and the plaintiff regarding the sale of the plain-
tiff’s practice. The defendants presented evidence in
support of summary judgment that the hospital and
Otake did not engage in discussions about full-time
employment for Otake until after the hospital believed
that the negotiations between the plaintiff and Otake
had ended. The defendants submitted evidence that it
was the hospital’s understanding that no agreement was
ever reached between the plaintiff and Otake.
The court, in its articulation, used language sug-
gesting that the lack of a contractual relationship
between Otake and the plaintiff was a factor in the
court’s decision to grant summary judgment. The plain-
tiff claims that this was error because an enforceable
contract is not a necessary element of a claim for tor-
tious interference. The court more generally explained,
however, that ‘‘[n]o facts were presented that showed
that there was any tortious interference by [the hospi-
tal].’’ Read as a whole, the court’s articulation of its
reasoning focuses less on the lack of a contractual
relationship between Otake and the plaintiff than on the
plaintiff’s failure to present any evidence demonstrating
tortious conduct on the part of the hospital or its
agents.17 As with the misrepresentation counts, once
the defendants presented evidence demonstrating the
lack of a genuine issue of material fact regarding an
essential element—namely, that the actions of the hos-
pital were, in some manner, tortious or done with mal-
ice—the plaintiff could not rest on the factual
allegations in the complaint and needed to provide
counteraffidavits or other evidence demonstrating a
genuine issue of material fact. Because he failed to
produce such evidence, the court properly granted sum-
mary judgment on the tortious interference count.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We refer to the defendants individually by name and collectively as
the defendants.
2
The plaintiff raises additional claims that we construe as part and parcel
of his principal claim, and which we address as part of that discussion.
3
The plaintiff shared office space with another doctor, Steven Belinkie,
at a medical office building in Hartford that was owned by the hospital and
at a New Britain office building in which the plaintiff and Belinkie each had
an ownership interest.
4
The revised breach of contract count was identical to the one the court
previously had stricken except that it included the following additional
allegation: ‘‘[The plaintiff and Otake] agreed that the purchase price for the
business and practice would be $200,000.’’
5
Specifically, the defendants submitted the depositions of the plaintiff
and his wife, who was employed by the practice as both the office manager
and a nurse; an affidavit of Otake, attached to which were copies of several
correspondences between himself and agents of the hospital, including the
hospital’s letter offering Otake a position on its staff; an affidavit of Carolyn
Martindale, the hospital’s former director of business development; an affida-
vit of Joseph Bisson, the hospital’s former vice president of business develop-
ment; and an affidavit of Jeffrey Steinberg, the former director of the
hospital’s department of surgery.
6
The plaintiff in his opposition never discussed the count alleging breach
of the covenant of good faith and fair dealing during arguments nor chal-
lenged the defendants’ suggestion that the viability of that count turned,
like the breach of contract count, on the existence of a contractual agreement
between Otake and the plaintiff.
7
We note that neither party filed a motion for further articulation; see
Practice Book § 66-5; or sought review of the court’s articulation from this
court in accordance with Practice Book § 66-7.
8
Although the plaintiff asserted as a claim in his preliminary statement
of issues that the court abused its discretion by denying his motion to
reargue, he did not raise this claim in his appellate brief and, thus, we deem
it abandoned. See Thomas v. West Haven, 249 Conn. 385, 390 n.11, 734 A.2d
535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000).
9
The plaintiff claims in the present case that, in granting summary judg-
ment, the court failed to view the evidence presented in the light most
favorable to him. ‘‘The question of whether a trial court has held a party to
a less exacting standard of proof than the law requires is a legal one.
. . . Accordingly, our review is plenary.’’ (Citation omitted.) Kaczynski v.
Kaczynski, 294 Conn. 121, 126, 981 A.2d 1068 (2009). Although it is axiomatic
that ‘‘[i]n deciding a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the nonmoving party . . .
[and] must view the inferences to be drawn from the facts in the light most
favorable to the party opposing the motion . . . 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.’’ (Citations omitted; internal quotation
marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.
App. 582, 591, 715 A.2d 807 (1998). In the absence of any indication that
the court applied an incorrect standard, we will assume that the court acted
correctly in accordance with the law. See In re James O., 160 Conn. App.
506, 520 n.4, 127 A.3d 375, cert. granted on other grounds, 319 Conn. 956,
125 A.3d 533 (2015).
The court never indicated at the hearing on the motion for summary
judgment or in its decision or articulation that it was applying a standard
other than one in which it viewed the evidence presented in the light most
favorable to the plaintiff as the nonmoving party. Because the plaintiff has
failed to demonstrate that the court applied a less favorable standard, we
find no merit in his claim to the contrary. Further, even if the trial court
applied an incorrect standard, this court, in conducting our own de novo
review, has viewed the evidence presented in the light most favorable to
the plaintiff and reaches the same conclusion as the trial court, namely,
that the defendants are entitled to summary judgment. Any error that the
plaintiff assigns to the trial court is, accordingly, immaterial. See Escourse
v. 100 Taylor Ave., LLC, 150 Conn. App. 819, 821 n.2, 92 A.3d 1025 (2014).
10
Accordingly, to the extent that some of the arguments made by the
plaintiff in his appellate brief can be construed as challenging the court’s
decision with respect to those contractual counts, we decline to address
their merits.
11
The plaintiff raises as an additional claim in his appellate brief that
Judge Rittenband should have given the plaintiff another opportunity to
replead because the defendants’ motion for summary judgment challenged
the legal sufficiency of the operative complaint and, thus, should have been
treated as a motion to strike. See Larobina v. McDonald, 274 Conn. 394,
400–401, 876 A.2d 522 (2005). We reject that claim, however, because it is
evident from reviewing the motion for summary judgment that the defen-
dants were not challenging the legal sufficiency of the plaintiff’s allegations,
but the lack of evidentiary proof necessary to raise a genuine issue of
material fact and avoid summary judgment. Whereas the former must be
evaluated by the court on the basis of the factual allegations made in the
complaint, the latter requires consideration of the evidentiary basis for those
allegations, something the plaintiff failed to provide.
12
There is little doubt that the court’s initial truncated explanation for its
decision to grant the defendants’ motion for summary judgment as well
as the court’s ill-advised choice not to issue a memorandum of decision
contributed to any confusion by the plaintiff regarding the basis for the
court’s decision.
13
We do not consider whether the plaintiff effectively abandoned his
misrepresentation counts because that issue was not raised by the defen-
dants on appeal and, thus, was not briefed by the parties.
14
‘‘[A]t common law, fraudulent misrepresentation and intentional misrep-
resentation are the same tort.’’ Kramer v. Petisi, 285 Conn. 674, 684 n.9,
940 A.2d 800 (2008).
15
Although neither representation appears on its face to relate to an
existing or past fact, each arguably could fall within the exception for a
promise to act in the future. Because our resolution of the plaintiff’s claim
turns on a lack of evidentiary support that either representation occurred,
we will assume without deciding that the alleged representations qualify as
actionable misrepresentations of fact.
16
As aptly explained by the District Court in Kopperl: ‘‘Our relations and
expectancies in life are constantly interfered with by others. That is an
inevitable consequence of living in a competitive world, among people whose
ambitions, hopes or purposes may match or conflict with our own. If we
could file a civil action against anyone who interfered with our contractual
relations or business expectancies, the courts would have no time to do
anything else. The saving limitation, embedded in the common law, is found
in the rule that only a tortious interference is actionable.’’ Kopperl v. Bain,
supra, 23 F. Supp. 3d 110.
17
To the extent any ambiguity remained regarding the meaning of the
court’s articulation, the plaintiff never filed a motion for review seeking an
order from this court requiring the trial court to articulate further. See
footnote 7 of this opinion.