Opinion
No. HHD CV 09-5029718-S
February 10, 2011
MEMORANDUM OF DECISION DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
On August 18, 2009, the plaintiff, Eloise Marinos, filed a nineteen-count amended complaint against the defendants, David Poirot and Gordon Johnson, individually and in her capacity as administratrix of the estate of her deceased husband, Steven F. Meo. The plaintiff's amended complaint alleges the following claims against Poirot: breach of the duty of loyalty (counts one, ten and fifteen); computer crimes in violation of General Statutes § 53a-251 (counts two, eleven and sixteen); violations of the Connecticut Uniform Trade Secrets Act (CUTSA) (counts three, twelve and seventeen); conversion (counts four, thirteen and eighteen); civil theft (counts five, fourteen and nineteen); civil conspiracy (count eight); and violation of the Connecticut Unfair Trade Practices Act (CUTPA) (count nine). The plaintiff's amended complaint alleges the following claims against Johnson: civil conspiracy (count six); and violation of CUTPA (count seven).
Meo, the plaintiff's deceased husband, was sole proprietor of the Law Office of Steven F. Meo (the Meo office). In October of 2005, Meo was hospitalized due to a heart condition. Meo remained hospitalized until his death, on April 25, 2006. Defendant Poirot was employed as an associate attorney at the Meo office from 1992 until April 28, 2006. Defendant Johnson worked with Meo as co-counsel on certain personal injury cases from 2002 until Meo's death.
The plaintiff alleges that, in November of 2005, Poirot began planning to open his own law office and to appropriate business from the Meo office, including its clients and pending cases. The plaintiff alleges that Poirot did in fact steal clients from the Meo office, as well as supplies, and that Poirot used the Meo office's equipment and staff to support his own law practice. The plaintiff further alleges that Poirot and Johnson conspired together to appropriate certain cases from the Meo office, and that both defendants benefitted from their actions to the detriment of the Meo office. The plaintiff claims that she, individually and as administratrix of the Meo estate, is the successor to Meo's interest in the Meo office and that she has been harmed by the defendants' actions.
On September 27, 2010, defendant Poirot filed a motion for summary judgment as to counts one through five and eight through nineteen of the amended complaint, a memorandum of law in support of his motion as well as the following evidence: Poirot's affidavit, dated September 23, 2010 (Exhibit A); excerpts from the plaintiff's responses to Poirot's first set of interrogatories and requests for production, dated August 14, 2009 (Exhibits B, C and J); a fee agreement signed by Poirot and the plaintiff, dated November 16, 2007 (Exhibit D); a probate court order concerning the award of disputed fees, dated November 19, 2007 (Exhibit E); Informal Connecticut ethics opinions Nos. 88-23 (Exhibit F), 97-14 (Exhibit G), and 00-25 (Exhibit H); and a letter by Poirot to John Laudati, dated June 12, 2006 (Exhibit I). On October 8, 2010, the plaintiff filed an objection to Poirot's motion and a memorandum in opposition, as well as the following evidence: an email from Poirot to Eugene Falcone, dated April 27, 2006 (Exhibit 1); email correspondence between Poirot and Doug Mahoney, dated April 27-28, 2006 (Exhibit 2); the plaintiff's responses to Poirot's first set of interrogatories and requests for production, dated August 14, 2009 (Exhibit 3); the plaintiffs amended responses to Poirot's first set of interrogatories and requests for production, dated August 13, 2010 (Exhibit 4); and the plaintiff's responses to Poirot's second set of interrogatories and requests for production, dated August 13, 2010 (Exhibit 5).
On October 8, 2010, defendant Johnson filed a motion for summary judgment as to counts six and seven of the amended complaint, a memorandum of law in support of his motion, as well as the following evidence: an undated excerpt from the plaintiff's pleadings addressing disputed fees; the July 27, 2009 memorandum of decision in the accompanying interpleader action, Poirot v. Marinos, Superior Court, judicial district of Hartford, Docket No. CV 07 4028870 (July 27, 2009, Miller, J.) (Memorandum of Decision, No. 135.10); and the August 31, 2010 decision of the Appellate Court affirming the court's decision in the interpleader action, Poirot v. Marinos, 123 Conn.App. 507, 1 A.3d 1274 (2010). On October 25, 2010, the plaintiff filed an objection to Johnson's motion and a memorandum in opposition, as well as the following evidence: a transcript of proceedings before the court (Miller, J.), dated March 31, 2009 (Exhibit 1); and excerpts from the plaintiff's responses to Poirot's first set of interrogatories and requests for production dated August 14, 2009. (Exhibit 2.)
Neither the court nor the plaintiff were prejudiced by the untimely filing of Johnson's motion. Accordingly, the court will consider the motion on its merits.
These matters were heard on the short calendar on November 8, 2010. Additional facts will be discussed as they become necessary to address particular legal issues.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citations omitted.) Weiss v. Weiss, 297 Conn. 446, 457 (2010).
"A material fact is a fact that will make a difference in the outcome of the case . . . Once the moving party has presented evidence in support of [its] motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." Byrne v. Burke, 112 Conn.App. 262, 267-68, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 465, 976 A.2d 23 (2009).
I BREACH OF THE DUTY OF LOYALTY
Counts one, ten and fifteen of the plaintiff's amended complaint allege breach of the duty of loyalty as to Poirot. Poirot argues that summary judgment is warranted because the plaintiff is unable to prove that the Meo estate suffered damages resulting from the alleged breach of the duty of loyalty. In opposition, the plaintiff maintains that she has provided evidence of measurable damages.
The court notes that while Poirot's motion for summary judgment is directed at all counts made against him, including count ten, Poirot does not explicitly refer to count ten in the section of his memorandum that discusses breach of duty of loyalty. However, since the arguments on this issue encompass count ten and the motion itself includes count ten, the court considers the arguments regarding breach of duty of loyalty as applying to all counts that assert that claim.
"The fiduciary duty comprises two prongs: a duty of care and a duty of loyalty . . . [T]he duty of loyalty derives from the prohibition against self-dealing that inheres in the fiduciary relationship." Lofts on Lafayette Condominium Ass'n, Inc. v. Lancaster Gate, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09 4027725 (February 17, 2010, Tobin, J.). "The general principle for the agent's duty of loyalty . . . is that the agent must act solely for the benefit of the principal in matters connecterd with the agency. The general duty of loyalty includes . . . the duty not to compete . . . and the duty not to disclose confidential information." (Internal quotation marks omitted.) News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 535, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005). "A party may recover for breach of loyalty in tort. In a tort action, harm is a necessary element of the prima facie case . . . [A] party [that] has suffered no demonstrable harm . . . has no cause of action in tort . . . If the plaintiff [does] not prove specific, quantifiable harm, it cannot recover any damages in tort for the alleged delicts of the defendant because harm is an element of the plaintiff's cause of action in tort." (Citation omitted.) Id., 535-36; see also Miller Foods, Inc. v. Schubert-Loughran, Superior Court, judicial district of Hartford, Docket No. CV 02 0815760 (May 20, 2009, Tanzer, J.) ("There must be proof . . . of injury to or a loss suffered by the plaintiff").
"The essential elements to . . . a cause of action for breach of fiduciary duty under Connecticut law are: 1. That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff; 2. That the defendant advanced his or her own interests to the detriment of the plaintiff; 3. That the plaintiff sustained damages; 4. That the damages were proximately caused by the fiduciary's breach of his or her fiduciary duty." (Emphasis added.) T. Merritt, 16 Connecticut Practice Series: Elements of an Action (2009-2010 Ed.) § 8:1.
In the present case, the plaintiff alleges that Poirot breached the duty of loyalty he owed to Meo by, inter alia, using the Meo office's staff and supplies in opening his own law office, entering into contracts on behalf of the Meo office without approval, signing checks without proper authorization and appropriating clients and computer data to the detriment of the Meo office. Poirot argues that summary judgment is warranted because, despite the plaintiffs allegations, she has failed to provide evidence of any quantifiable harm sustained as a result of the alleged breach of loyalty and so cannot recover on her claim. The plaintiff claims that she has provided evidence of measurable damages, however, the pleadings are devoid of such evidentiary support. The plaintiff did not include an accounting of alleged damages in her opposition to Poirot's motion for summary judgment; nor did she attach supporting documentation, in the form of affidavits or other evidence, thereto. Evidence of quantifiable damages does not exist elsewhere in the pleadings. The plaintiff has refused, or has been unable, to provide a description of the damage she claims to have sustained. The plaintiff's responses to Poirot's interrogatories and request for production, Exhibit B submitted in support of Poirot's motion for summary judgment, illustrate the plaintiff's inability to provide evidence of specific, quantifiable harm. Despite being four years into the present litigation, the plaintiff has yet to provide evidence of any measurable damages.
Although Poirot's affidavit, dated September 23, 2010 (Exhibit A), refers to undisputed facts which refute the plaintiff's claims, because the issue of quantifiable harm resolves Poirot's motion with respect to the counts alleging breach of loyalty, these claims need not be addressed by the court.
The plaintiff makes the claim that she has provided evidence of measurable damages generally in response to Poirot's motion for summary judgment. She does not direct her claim at any individual count.
Exhibit B is an excerpt from the plaintiff's responses to defendant Poirot's interrogatories and requests for production, dated August 14, 2008. Question 20 states: "As to each and every category of damages set forth in the subparagraphs of paragraph 43 of each count of the Complaint, state the amount of damage, and describe with particularity your methodology for calculating the same." The plaintiff's answer states: "A complete account of financial damages and losses is ongoing, therefore no itemization can be listed herein. As soon as the cumulative value has been assessed we will forward a copy of the same." To date, the plaintiff has not provided Poirot with the requested information.
Based on the evidence submitted, the court finds that there is no genuine issue of material fact as to whether the plaintiff has sustained quantifiable harm resulting from the alleged breach of loyalty. The pleadings, affidavits and other proof submitted by the parties establish that the plaintiff has not suffered any specific or quantifiable harm. The plaintiff's claims to the contrary are unavailing, as they are mere assertions of fact and cannot refute evidence properly before the court. See Byrne v. Burke, supra, 112 Conn.App. 267-68. The plaintiff has not submitted documentation evidencing measurable damages sustained as a result of Poirot's alleged breach of loyalty. Without evidence of such specific, quantifiable harm the plaintiff is unable to establish a prima facie case of breach of the duty of loyalty. News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn.App. 535-36. Accordingly, defendant Poirot is entitled to summary judgment to counts one, ten and fifteen of the amended complaint.
II COMPUTER CRIMES
Counts two, eleven and sixteen of the plaintiff's amended complaint allege that Poirot committed computer crimes in violation of General Statutes § 53a-251 and that the plaintiff is entitled to recover damages pursuant to General Statutes § 52-570b. Poirot argues that summary judgment is warranted because the plaintiff has failed to establish any evidence of damages. The plaintiff does not respond to Poirot's arguments concerning the alleged computer crimes but maintains generally, in her opposition, that she has provided evidence of measurable damages.
Poirot also asserts the affirmative defense contained in General Statutes § 53a-251(b)(2), that he was authorized to access the Meo office's computer system. He refers to his affidavit (exhibit A to Poirot's motion for summary judgment) in support of this argument. Because the issue of damages resolves Poirot's motion with respect to the counts alleging computer crimes, applicability of the affirmative defense does not need to be addressed by the court.
An individual commits a "computer crime" when he violates any of the provisions of General Statutes § 53a-251. See General Statutes § 53a-521(a). Section 53a-521(b), entitled "Unauthorized access to a computer system," provides, in relevant part: "(1) A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization." Section 53a-521(e), entitled "Misuse of computer system information," provides: "A person is guilty of the computer crime of misuse of computer system information when: (1) As a result of his accessing or causing to be accessed a computer system, he intentionally makes or causes to be made an unauthorized display, use, disclosure or copy, in any form, of data residing in, communicated by or produced by a computer system; or (2) he intentionally or recklessly and without authorization (A) alters, deletes, tampers with, damages, destroys or takes data intended for use by a computer system, whether residing within or external to a computer system, or (B) intercepts or adds data to data residing within a computer system; or (3) he knowingly receives or retains data obtained in violation of subdivision (1) or (2) of this subsection; or (4) he uses or discloses any data he knows or believes was obtained in violation of subdivision (1) or (2) of this subsection."
As to the affirmative defense claimed by Poirot, Section 53a-521(b)(2) provides: "It shall be an affirmative defense to a prosecution for unauthorized access to a computer system that: (A) The person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, had authorized him to access; (B) the person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, would have authorized him to access without payment of any consideration; or (C) the person reasonably could not have known that his access was unauthorized."
General Statutes § 52-570b governs actions for computer-related offenses and provides, in relevant part: "(c) Independent of or in conjunction with an action under subsection (a) of this section, any person who suffers any injury to person, business or property may bring an action for damages against a person who is alleged to have violated any provision of Section 53a-251. The aggrieved person shall recover actual damages and damages for unjust enrichment not taken into account in computing damages for actual loss, and treble damages where there has been a showing of wilful and malicious conduct."
In the present case, the plaintiff alleges that Poirot accessed and used the Meo office's computer system to set up his own law practice and to appropriate business from the Meo office and that his access and use of the computer system for these purposes was not authorized. The plaintiff further alleges that Poirot deleted data from the Meo office's computer systems to "cover up" his actions, and that the Meo estate incurred substantial expenses in reconstructing the deleted data. Expenses incurred by a party in investigating alleged wrongdoing constitute litigation expenses, and may not be considered as part of a claim for damages. See News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn.App. 541. Accordingly, any expense paid by the plaintiff to recover the allegedly deleted data cannot be considered actual damages, and the plaintiff is not entitled to recover those costs. Apart from the expenses incurred in reconstructing the deleted computer data, the plaintiff has not claimed that either she or the Meo estate have sustained any damages resulting from Poirot's alleged conduct, and she has provided no evidence of damages.
As is noted by Poirot in the memorandum in support of his motion, this is not a situation wherein an existing law firm has alleged a loss of future business or some other financial hardship due to a departing employee's actions.
Based on the foregoing, there exists no material issue of fact as to whether the plaintiff has sustained damages resulting from the alleged computer crimes. The pleadings, affidavits and other proof submitted by the parties establish that the plaintiff has not suffered any provable injury. "In order to state a valid claim under § 52-570b . . . the plaintiff need[s] to show that it [has] suffered injury." News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn.App. 547-48. In the present case, the plaintiff has failed to do so. Accordingly, defendant Poirot is entitled to summary judgment as to counts two, eleven and sixteen of the amended complaint.
III TRADE SECRETS VIOLATIONS
Counts three, twelve and seventeen of the plaintiff's amended complaint allege that Poirot committed violations of the Connecticut Uniform Trade Secrets Act (CUTSA). Poirot argues that entry of summary judgment is warranted on these counts because the documents in question do not contain "trade secrets." Poirot further argues that the plaintiff has not proved any actual damages to the Meo estate resulting from the alleged trade secrets violations. The plaintiff does not respond to Poirot's arguments concerning the alleged trade secrets violations but maintains generally, in her opposition, that she has provided evidence of measurable damages.
The plaintiff's complaint incorrectly refers to the law as the "Connecticut Unfair Trade Secrets Act" but the court assumes that the plaintiff is referring to CUTSA.
Poirot's second argument in support of his motion for summary judgment on these counts, that the plaintiff cannot prove actual damage to the Meo estate resulting from the alleged trade secret misappropriation, need not be addressed by the court because determination of whether the documents in question constitute "trade secrets" resolves Poirot's motion with respect to the counts alleging CUTSA violations.
"The Connecticut Uniform Trade Secrets Act, Connecticut General Statutes § 35-50 et seq., [codifies] the basic principles of common law trade secret protection. In order to establish liability under the Connecticut Uniform Trade Secrets Act, the plaintiff must prove the existence of a trade secret by § 35-51(d) and a misappropriation of the trade secret by the defendant as defined by § 35-51(b)." Mafcote Industries v. James River Paper Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0151800 (January 21, 2000, D'Andrea, J.). "[The] primary issue to be determined . . . is whether there is a trade secret existing which is to be protected." (Internal quotation marks omitted.) Elm City Cheese Co., Inc. v. Federico, 251 Conn. 59, 68, 70, 752 A.2d 1037 (1999); see also Dreamcatcher Software Development, LLC v. Pop Warner Little Scholars, Inc., 298 F.Sup.2d 276, 282 (D.Conn. 2004) ("It is undisputed that a plaintiff must establish the existence of a trade secret before he can seek protection under CUTSA").
General Statutes § 35-51(d) defines "trade secret" as "information, including a formula, pattern, compilation, program, device, method, technique, process, drawing, cost data or customer list that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." General Statutes § 35-53 governs recovery of compensatory damages under CUTSA and provides, in relevant part: "(a) In addition to or in lieu of injunctive relief, a complainant may recover damages for the actual loss caused by misappropriation."
In the present case, the plaintiff alleges that Poirot's misappropriation of certain documents from the Meo office constituted a violation of CUTSA. The documents alleged to contain trade secrets are listed in the plaintiff's responses to Poirot's first set of interrogatories and requests for production, Exhibit J submitted in support of Poirot's motion for summary judgment. They are as follows: (1) Retainer agreements/Authority to represent forms; (2) Steven F. Meo's personal injury intake checklist; (3) Needles case management files; (4) Client files taken from Steven F. Meo's premises after April 28, 2006, including but not limited to the "Banning" and "McLaughlin" files. Poirot argues that the documents at issue do not constitute "trade secrets" and so are not entitled to protection under CUTSA.
"The question of whether information sought to be protected by the trade secrets act rises to the level of a trade secret is one of fact for the trial court." Elm City Cheese Co., Inc. v. Federico, supra, 251 Conn. 68. "Factors used to determine whether given information is a trade secret include: a. The extent to which the information is known outside the business; b. The extent to which the information is known by employees and others involved in the business; c. The information's value to the employer and to its competitors; d. The resources the employer expends in developing the information; [and] e. The ease or difficulty with which the information could be properly acquired or duplicated by others. The information must also be the subject of efforts that are reasonable under the circumstances to maintain its secrecy." (Internal quotation marks omitted.) News America Marketing In-Store, Inc. v. Marquis, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 00 0177440 (October 22, 2003, Rogers, J.), aff'd, 86 Conn.App. 527, 862 A.2d 837 (2004).
With respect to the retainer agreement and the personal injury intake checklist, these are standard form documents which do not contain or constitute trade secrets. Use of retainer agreements by attorneys to clarify the terms of client representation is standard legal practice. The boilerplate found in standard retainer agreements is information that could be easily acquired by others and is readily available to lawyers from a variety of public sources. Likewise, the personal injury intake checklist is a compilation of initial questions designed to elicit information from clients that may be pertinent to their representation. Asking questions of this nature is standard practice as it is necessary to gather such information in order to competently represent any client. There is no evidence of independent economic value attached to either of these standard form documents. Competitors could not obtain value from their use because the information they contain is generally known to those practicing in the legal field. Further, there is no evidence that any efforts were taken to maintain the alleged secrecy of the information contained in these documents.
With respect to the Needles case files, they do not contain or constitute trade secret information. "Needles case files" refers to Meo office client information organized in a computer program, "Needles Case Management Software for Law Offices." The information contained in these files was specific to each individual client and has no independent economic value. Further, no effort was taken to maintain the alleged secrecy of these files. Poirot's affidavit, exhibit A submitted in support of his motion for summary judgment, states that Poirot was retained by approximately 51 former Meo office clients after Meo's death. The trustee for the Meo office transferred those client files, many of which contained paper copies of the Needles case files, directly to Poirot.
With respect to the "Banning" and "McLaughlin" case files, these client files do not contain trade secret information. The Banning case was resolved after Poirot was retained by Timothy Banning in May of 2006, and the fees earned from that case were distributed among the parties in accordance with the interpleader action and mediation agreement, described below. No fees were earned on the McLaughlin case, as it was withdrawn. Thus, neither of these files has any independent economic value.
Poirot's June 12, 2006 letter to trustee John Laudati, Exhibit I submitted in support of his motion for summary judgment, explains that Poirot retained the McLaughlin file in order to avoid expiration of a statute of limitations set to expire on May 3, 2006.
Therefore, there exists no genuine issue of fact as to whether the documents in question constitute or contain trade secrets. The plaintiff has presented no evidentiary support whatsoever in support of her claims or to refute Poirot's submissions. The pleadings, affidavits and other proof submitted by the parties establish that these documents are not trade secrets. Because the allegedly misappropriated documents are not "trade secrets," and do not contain trade secret information, CUTSA does not apply. See Elm City Cheese Co., Inc. v. Federico, supra, 251 Conn. 68-70. Accordingly, defendant Poirot is entitled to summary judgment to counts three, twelve and seventeen of the amended complaint.
IV CONVERSION AND CIVIL THEFT
Counts four, thirteen and eighteen of the plaintiff's amended complaint allege claims of conversion against Poirot. Counts five, fourteen and nineteen of the plaintiff's amended complaint allege claims of civil theft against Poirot. In support of his motion for summary judgment, Poirot argues that the plaintiff is unable to establish any damages resulting from Poirot's alleged actions and so cannot establish a prima facie case for conversion or theft. Poirot further maintains that the doctrine of res judicata bars the plaintiff's claims that Poirot took files and/or clients from the Meo office and that he retained fees for himself without proper disclosure. In opposition, the plaintiff maintains that she has provided evidence of measurable damages and that her claims are not barred by res judicata.
The conversion and civil theft claims contain nearly identical factual allegations. Because "[t]he elements of civil theft are . . . largely the same as the elements to prove the tort of conversion"; Sullivan v. Delisa, 101 Conn.App. 605, 619-20, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007); these counts are analyzed together.
"Because res judicata . . . if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 375 (1993). "The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties . . . in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made . . . To determine whether two claims are the same for purposes of res judicata, we compare the pleadings and judgment in the first action with the complaint in the subsequent action." (Emphasis in original; internal quotation marks omitted.) Stein v. Horton, 99 Conn.App. 477, 481-82, 914 A.2d 606 (2007).
"[Connecticut courts] have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." Stein v. Horton, supra, 99 Conn.App. 482-83.
"[R]es judicata should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . The judicial [doctrine] of res judicata . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate." (Citation omitted.) Naven v. Essex Savings Bank, Superior Court, judicial district of New London, Docket No. 562987 (April 29, 2003, Hurtley, J.T.R.), aff'd, 82 Conn.App. 255, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004).
"Conversion is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights." Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418, 934 A.2d 227 (2007). "To establish a prima facie case of conversion, the plaintiff [must] demonstrate that (1) the material at issue belonged to the plaintiff; (2) that [the defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [the defendant's] conduct was unauthorized and (4) that [the defendant's] conduct harmed the plaintiff." News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn.App. 527, 545; see also Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979) ("[C]onversion requires that the owner be harmed as a result of the unauthorized act"). "The elements of civil theft are also largely the same as the elements to prove the tort of conversion, but theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Sullivan v. Delisa, supra, 101 Conn.App. 605, 620.
In the present case, the plaintiff's allegations of conversion and civil theft include claims that Poirot took office materials and files from the Meo office, that Poirot wrongfully obtained cases from the Meo office for his own law practice and that Poirot did not pay fees owed to the Meo estate from his earnings on the retained cases. Poirot maintains that the plaintiff's allegations that Poirot took files and/or clients from the Meo office and that he retained fees for himself without proper disclosure, necessary to sustain her claims of conversion and civil theft, are barred by the doctrine of res judicata. Poirot argues that the plaintiff has been paid her share of fees earned and that she had ample opportunity in the parties' previous litigation to initiate discovery and to pursue any claims regarding files retained by him. In response, the plaintiff asserts that res judicata is not applicable to her claims against Poirot because she has "not yet had the opportunity to fully or fairly litigate these claims."
Poirot also argues that summary judgment is warranted because the plaintiff has not provided evidence of any damages resulting from the alleged conversion and civil theft and so cannot establish a prima facie case of conversion or theft. As the doctrine of res judicata resolves Poirot's motion with respect to these claims, this argument need not be addressed by the court.
With respect to whether Poirot was entitled to receive or retain certain fees earned on cases originating with the Meo office, the parties to the present case appeared before the probate court in Canton in 2007, at which time the court considered a claim by Poirot against the Meo estate for referral fee income that had not been paid by the plaintiff. The plaintiff objected to Poirot's claim for referral fees from cases he had generated during his last months working at the Meo office and filed a counterclaim which alleged that Poirot owed the Meo estate approximately $8,000 for reimbursement of fees that had been improperly paid to him. The November 19, 2007 decision of the probate court, Exhibit B submitted in support of Poirot's motion for summary judgment, granted Poirot's claim and rendered judgment of $8,535.57 in his favor, which was subsequently paid by the plaintiff.
The parties to the present case also attended mediation proceedings in November of 2007, wherein a settlement was reached on the division of fees from all but two of the Meo office's files. The parties' November 16, 2007 mediation agreement, Exhibit D submitted in support of Poirot's motion for summary judgment, was enforced by the trial court (Hale, J.), which granted Poirot's motion to enforce the settlement. See Poirot v. Marinos, supra, Superior Court, Docket No. CV 07 4028870 (Motion for Order, No. 108).
The fees earned from the two files left unresolved by the parties' November 16, 2007 mediation agreement, the "Higbie" and "DeWolf" cases, were the subject of an interpleader action filed by Poirot and were resolved after a trial before the Superior Court. It is noted that the plaintiff filed the present action prior to the court's issuance of its decision in the interpleader action, which held that the plaintiff had received the portion of fees to which she was entitled. See Poirot v. Marinos, Superior Court, judicial district of Hartford, Docket No. CV 07 4028870 (July 27, 2009, Miller, J.) (Memorandum of Decision No. 135.10). The decision of the trial court was affirmed on appeal. See Poirot v. Marinos, 123 Conn.App. 507, 1 A.3d 1274 (2010).
Notably, the trial court (Miller, J.), found that the plaintiff's trial testimony regarding alleged fee agreements and fees owed to the Meo estate was "not credible."
With respect to whether Poirot retained clients and/or files without proper disclosure, Poirot maintains that he submitted a complete list of all cases transferred to him by the Meo office's trustee, John Laudati. Poirot further maintains that he sent a comprehensive list of files to Laudati, which included every Meo office client that had retained Poirot to represent them and that those cases were the subject of the interpleader action, Docket No. CV 07 4028870. Poirot's affidavit, Exhibit A submitted in support of his motion for summary judgment states that he notified Laudati of the files he had removed from the office. Exhibit I submitted in support of Poirot's motion for summaiy judgment is a letter from Poirot to Laudati concerning files formerly belonging to the Meo office.
For these reasons, there exists no genuine issue of fact as to whether the doctrine of res judicata bars the plaintiff's claims that Poirot appropriated cases, files and/or fees from the Meo office. The parties to the present case are identical to those in the previous actions. The facts underlying the amended complaint in the present case are the same facts that were litigated by the parties in the previous actions. The claims raised in the previous litigation, that Poirot appropriated cases and files from the Meo office and that he wrongfully retained fees owed to the Meo estate, are essentially identical to those raised by the plaintiff in the present case. These claims have been fully adjudicated by prior judicial proceedings. Further, the plaintiff has failed to submit evidence which establishes the existence of any disputed fact with regard to applicability of the doctrine of res judicata in the present case.
With respect to the plaintiff's additional claim, that Poirot took office supplies from the Meo office, no evidence has been provided to establish the value of the items allegedly taken or that the plaintiff was damaged by Poirot's actions. This allegation, in and of itself, cannot sustain the plaintiff's burden of establishing a prima facie case of conversion or civil theft. See News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn.App. 527, 545; Devitt v. Manulik, supra, 176 Conn. 660.
Because the doctrine of res judicata bars the plaintiff's claims that Poirot appropriated cases and files from the Meo office and wrongfully retained fees owed to the Meo estate, the plaintiff is unable to establish, inter alia, that Poirot wrongly deprived the plaintiff of the items at issue and so cannot establish a prima facie case of conversion or civil theft. See News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn.App. 527, 545. Accordingly, defendant Poirot is entitled to summary judgment as to counts four, five, thirteen, fourteen, eighteen and nineteen of the amended complaint.
V CIVIL CONSPIRACY
Count eight of the plaintiff's amended complaint alleges civil conspiracy by Poirot. In support of his motion for summary judgment, Poirot argues that the doctrine of res judicata bars the plaintiff's claim. In opposition, the plaintiff maintains that her claims are not so barred.
The plaintiff makes the argument that her claims are not barred by res judicata generally. She does not respond to Poirot's argument that res judicata bars the civil conspiracy claim against him.
Count six of the plaintiff's amended complaint alleges civil conspiracy by Johnson. Like Poirot, Johnson argues that the plaintiff's claim is barred by res judicata. Johnson also argues that the plaintiff has no viable claim of conspiracy against him. In opposition, the plaintiff maintains that her claims in the present action are not barred because they may result in an award of damages in excess of the fund at issue in the prior interpleader action.
As the doctrine of res judicata resolves Johnson's motion with respect to the count alleging civil conspiracy, this additional argument need not be addressed by the court.
The plaintiff's conspiracy claims allege that Poirot and Johnson conspired to appropriate the Meo office's "traumatic brain injury cases," the Higbie and DeWolf cases, to the detriment of the Meo estate. As discussed above, the trial court's judgment in the interpleader action filed by Poirot; Poirot v. Marinos, supra, Superior Court, judicial district of Hartford, Docket No. CV 07 4028870; rendered judgment apportioning the fees earned from the personal injury settlements awarded in the Higbie and DeWolf cases among Poirot, Johnson and the Meo estate. After the trial court heard testimony from the parties and evaluated the credibility of their claims, it determined that Johnson was entitled to receive two thirds of the total fees earned, and that the remainder of the fees would be divided between Poirot and the Meo estate 45/55 as to the Higbie case, and equally as to the DeWolf case. On appeal by the plaintiff, the Appellate Court determined that the trial court had not abused its discretion in apportioning the fees and affirmed the decision of the trial court. See Poirot v. Marinos, supra, 123 Conn.App. 509-11.
The counts alleging conspiracy as to each defendant contain nearly identical allegations. Accordingly, they are analyzed together.
Therefore, the doctrine of res judicata bars the plaintiff's claims for civil conspiracy as to both Poirot and Johnson. The interpleader action is conclusive of the facts and issues litigated therein. Stein v. Horton, supra, 99 Conn.App. 481-82; see also id., 482-83 ("[T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose"). Accordingly, judgment in the interpleader action serves as a bar to any claim relating to the entitlement of fees earned from the Higbie and DeWolf cases which were actually made, or which could have been made, by the plaintiff. The plaintiff had ample opportunity in the interpleader action to raise any concerns regarding the division of fees earned from the Higbie and DeWolf cases and the defendants' actions attendant thereto. The public policy underlying the doctrine of res judicata supports the conclusion that the plaintiff should not be permitted to relitigate this matter, as she has already had the opportunity to do so.
Accordingly, the defendants are entitled to summary judgment as to counts six and eight of the amended complaint.
VI CUTPA
Count nine of the plaintiff's amended complaint alleges violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110g et seq., as to defendant Poirot. Poirot argues that summary judgment is warranted because the plaintiff's failure to provide proof of damages is fatal to her CUTPA claim. In opposition, the plaintiff maintains that she has provided documentation itemizing the nature of the injuries sustained by herself and by the Meo estate.
Poirot also argues that CUTPA is not applicable to present case because he did not engage in any unfair competition with the Meo office. Poirot claims that the Meo office could not have remained in business after Meo's death because Meo was sole proprietor of the law office and, upon the death of its owner, the plaintiff had no authority to continue to manage the Meo office. Because the office could not remain in business, no "competition" with the Meo office was possible. With regard to the plaintiff's claim that Poirot solicited the Meo office's clients, Poirot maintains that his communications with clients were permitted by the rules of professional conduct. Poirot's affidavit, Exhibit A submitted in support of his motion for summary judgment, states that he consulted with the Connecticut Bar Association prior to sending any written notification to Meo office clients regarding his pending departure from the office. Poirot also cites several Connecticut ethics opinions, Exhibits F, G and H submitted in support of his motion for summary judgment, which hold that an associate attorney may notify existing clients prior to his departure from a firm. Because the issue of measurable damages resolves Poirot's motion with respect to the CUTPA allegations, this argument is not addressed by the court.
Count seven of the plaintiff's amended complaint alleges CUTPA violations as to defendant Johnson. In support of his motion for summary judgment, Johnson argues that the plaintiff's claims are barred by the doctrine of res judicata. The plaintiff maintains that res judicata is inapplicable.
Arguments concerning the doctrine of res judicata are not addressed by the court because Johnson's motion for summary judgment, as to the count alleging CUTPA violations, is resolved on other grounds.
"CUTPA provides that `[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.' General Statutes § 42-110b(a). In order to enforce this prohibition, CUTPA provides a private cause of action to `[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . .' General Statutes § 42-110g(a)." Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213-14, 932 A.2d 401 (2007). "A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 569 n. 7, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
"The essential elements to pleading a cause of action under CUTPA are: (1) That the defendant committed an unfair or deceptive act or practice; (2) That the act complained of was performed in the conduct of trade or commerce; (3) That the prohibited act was the proximate cause of harm to the plaintiff." T. Merritt, 16 Connecticut Practice Series: Elements of an Action (2008), § 11:1, p. 530.
"The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation . . . An ascertainable loss is a loss that is capable of being discovered, observed or established . . . The term loss necessarily encompasses a broader meaning than the term damage, and has been held synonymous with depravation, detriment and injury . . . To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount . . . A loss is ascertainable if it is measurable even though the precise amount of the loss is not known." (Citations omitted; emphasis added; internal quotation marks omitted.) Artie's Auto Body, Inc., v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18, 947 A.2d 320 (2008). "The plaintiff ha[s] the burden [of proving], by a preponderance of the evidence that [he] suffered an ascertainable loss of money or property as a result of the defendant's actions." Service Road Corporation v. Quinn, 241 Conn. 630, 639, 698 A.2d 258 (1997).
In the present case, the plaintiff alleges that Poirot's planning to open his own law office, appropriating clients, files and/or office materials and the conspiracy by Poirot and Johnson to appropriate cases from the Meo office were deceptive and contrary to public policy, and that she has suffered ascertainable loss as a result of the defendants' actions.
The counts alleging CUTPA violations as to each defendant contain nearly identical allegations. Accordingly, they are analyzed together.
In support of his motion for summary judgment, Poirot argues that the plaintiff has not provided proof of ascertainable damages resulting from Poirot's alleged CUTPA violations. Poirot maintains that any expenses the plaintiff paid to computer consultants cannot be considered as part of her damages claim because they constitute expenses incurred by a party in investigating alleged wrongdoing, and that the plaintiff has failed to provide any documents or other proof in support of her damages claim. The plaintiff maintains in her opposition that she is not required to prove actual damages of a specific dollar amount to establish ascertainable loss.
While she is not required to provide proof of actual damages in the form of a specific dollar amount, the loss alleged by the plaintiff must be "measurable" for her to succeed on her CUTPA claim. Artie's Auto Body, Inc., v. Hartford Fire Ins. Co., supra, 287 Conn. 217-18. The plaintiff claims that she has provided documentation throughout discovery that itemizes the nature of the injuries and detriments to herself and the Meo estate, however, the pleadings are devoid of such evidentiary support. The plaintiff refers to her responses to defendant Poirot's interrogatories and requests for production, exhibits three, four and five submitted in connection with her opposition to Poirot's motion for summary judgment, in support of her argument. The plaintiff's responses do not contain any itemization of damages that supports her CUTPA claim. Rather, they contain conclusory statements and a list of office supplies allegedly taken by Poirot. In response to Poirot's repeated requests for the plaintiff to state the amount of damages allegedly sustained, the plaintiff replied as follows: "A complete account of financial damages and losses is ongoing, therefore no itemization can be listed herein. As soon as the cumulative value has been assessed we will forward a copy of the same." Plaintiff's responses to defendant's first set of interrogatories and requests for production, ¶ 20, dated August 14, 2009; plaintiff's amended responses to defendant's first set of interrogatories and requests for production, ¶ 20, dated August 13, 2010. To date, the plaintiff has submitted no itemization. Further, with respect to any expense paid to recover allegedly deleted computer data, as noted previously in this memorandum above, expenses incurred by a party in investigating allegations of wrongful conduct are litigation expenses which may not be considered as part of a damages claim. News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn.App. 541. The plaintiff has not identified any ascertainable loss in her opposition, nor has she attached supporting documentation, in the form of affidavits or other evidence of measurable damages, thereto.
Based on the foregoing, there exists no genuine issue of material fact as to whether any loss of money or property was suffered by the plaintiff personally, or by the Meo estate. Because the pleadings and proof submitted by the parties establish that the plaintiff and the Meo estate have not suffered any ascertainable loss, the plaintiff is unable to sustain her CUTPA claims. See General Statutes § 42-110g(a); Artie's Auto Body, Inc., v. Hartford Fire Ins. Co., supra, 287 Conn. 217-18. Accordingly, the defendants are entitled to summary judgment as to counts seven and nine of the amended complaint.
CONCLUSION
For all the foregoing reasons, Poirot's motion for summary judgment as to counts one through five and eight through nineteen of the amended complaint and Johnson's motion for summary judgment as to counts six and seven of the amended complaint are hereby granted.