Opinion
No. X06-CV-02-0174833 S
April 7, 2004
MEMORANDUM OF DECISION
The plaintiff, a for-profit provider of occupational therapy services, has brought this action against two former employees, Tara Forgues and April DeFrancesco, and the town of Wilton and the Wilton Board of Education asserting breach of contract and tort claims against the defendants related to the hiring of Forgues and DeFrancesco by the Wilton Board of Education. Each of the parties has moved for summary judgment.
The following facts are essentially undisputed. On or about September 1, 2000, the plaintiff and Forgues entered into a written employment agreement for a one-year period ending August 31, 2001. Pursuant to that agreement, Forgues was employed by the plaintiff as an occupational therapist. Paragraph 11 of the agreement provided that "Ms. Forgues shall not accept an Occupational Therapist position directly or indirectly with any agency served by Pediatric Occupational Therapy Services, Inc. for one year following affiliation with Pediatric Occupational Therapy Services, Inc."
On or about August 3, 2000, the plaintiff and DeFrancesco entered into a similar one-year written employment agreement which contained a paragraph 11 identical to that contained in the agreement with Forgues.
During the 2000-2001 school year, the plaintiff provided occupational therapy services to the Wilton Board of Education for students in the Wilton school system. These services were provided at least in part through Forgues and DeFrancesco.
On or about February 14, 2001, the Wilton Board of Education, through adoption of its budget for the 2001-2002 school year, decided td provide occupational therapy services "in-house," that is to provide such services to its students through school employees rather than through an outside contractor, such as the plaintiff. The Wilton Board of Education subsequently posted the in-house occupational therapist positions and Forgues and DeFrancesco submitted applications for the positions. In May 2001, Forgues and DeFrancesco were separately interviewed by staff of the Wilton Board of Education.
The Wilton Board of Education offered DeFrancesco and Forgues employment as occupational therapists with the Wilton Public School District for the 2001-2002 school year on July 10, 2001 and July 11, 2001, respectively. Both were hired by the Wilton Board of Education effective July 1, 2001. On June 25, 2001 DeFrancesco terminated her employment with the plaintiff and on July 12, 2001 Forgues terminated her employment with the plaintiff effective August 10, 2001. Both Forgues and DeFrancesco began employment with the Wilton Board of Education at the start of the 2001-20002 school year in late August or early September 2001.
Many of the remaining factual allegations of the parties are disputed. Additional factual allegations will be recited as necessary for resolution of the pending motions. However, one additional factual allegation of the plaintiff bears noting at the outset.
The plaintiff claims that, for the 1999-2000 school year, the plaintiff and the Wilton Board of Education entered into a written agreement for the provision of occupational therapy services by the plaintiff to the Wilton Board of Education. The agreement provided that services will commence on the first day of the 1999-2000 school year and terminate on June 30, 2000. The agreement further provided that "For the period beginning from the signing of this Agreement until one (1) year from the last day that the contractor provides services, the Wilton Board of Education agrees not to solicit or hire contractors provided by Pediatric Occupational Therapy Services, Inc." The plaintiff has appended to its motion for summary judgment a copy of the agreement. The agreement bears the signatures of Tara Glennon, the plaintiff's president, and Patricia Hiles, the then Director of Special Services for the Wilton Board of Education.
The Wilton Board of Education disputes the existence of a written agreement between the parties for the 1999-2000 school year. It avers that it did not possess a copy of the alleged agreement in its files or records. It also attached to its motion for summary judgment the deposition testimony of Hiles in which she states that she has no recollection of the specific agreement, but that the signature "looks like my signature."
The plaintiff and the Wilton Board of Education agree that, prior to the 1999-2000 school year, the plaintiff provided occupational therapy services to the Wilton Board of Education through written agreements similar to the disputed 1999-2000 school year agreement. The plaintiff and the Wilton Board of Education also agree that, although the plaintiff provided occupational therapy services to the Wilton Board of Education during the 2000-2001 school year, there was no written agreement between them governing that time period.
The plaintiff's complaint asserts nine causes of action against each of the defendants: breach of contract, intentional interference with contract, promissory estoppel, fraud, negligent misrepresentation, fraudulent misrepresentation, breach of the covenant of good faith and fair dealing, civil conspiracy and aiding and abetting fraud. The plaintiff has moved for summary judgment against the Wilton Board of Education and the town of Wilton on the first count of its complaint which asserts a breach of contract claim against both defendants. The plaintiff has also moved for summery judgment against Forgues and DeFrancesco on the second count of its complaint which asserts a breach of contract claim against them both and on the nineteenth and twentieth counts which assert claims of a breach of the covenant of good faith and fair dealing against Forgues and DeFrancesco, respectively.
A tenth cause of action which alleged a violation of the Connecticut Unfair Trade Practices Act was previously stricken by the court.
The defendants town of Wilton and Wilton Board of Education and the defendants Forgues and DeFrancesco have moved for summary judgment as to each of the nine counts pending against them.
The law governing the parties' motions for summary judgment is well-established. "Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn. App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn. App. 150, 158 (1997).
"It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks and citations omitted.) Mozeleski v. Thomas, 76 Conn. App. 287, 290 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).
I THE PLAINTIFF'S CLAIMS AGAINST THE TOWN OF WILTON
The town of Wilton asserts that it is entitled to summary judgment on each of the nine counts pending against it on the grounds that the plaintiff has submitted no evidence to establish any liability on its part with respect to the hiring of Forgues and DeFrancesco. I agree.
At the outset, it is important to note that a local board of education, such as the Wilton Board of Education, acts as an agent of the state, not the municipality, when it is engaged in the provision of primary and secondary education. Board of Education v. New Haven, 237 Conn. 169, 181 (1996). It is also a body corporate with the power to sue and be sued. General Statutes § 10-241.
In its complaint, the plaintiff alleges that the town of Wilton, in addition to the Wilton Board of Education, breached its promise under the written 1999-2000 school year agreement not to hire or solicit Forgues and DeFrancesco. The plaintiff however has offered no evidence that the town of Wilton was a party to the agreement and has failed to cite any other basis upon which the town of Wilton allegedly agreed not to hire or solicit Forgues and DeFrancesco. In fact, the written 1999-2000 school year agreement itself states simply that "the Wilton Board of Education agrees not to solicit or hire contractors provided by Pediatric Occupational Therapy Services, Inc." The only fact proffered by the plaintiff in support of its claim that the town is a proper party is that Patricia Hiles, the school board administrator who allegedly signed the contract, was paid by the town of Wilton. The plaintiff has not submitted any evidence that Hiles was acting on behalf of the town when she allegedly signed the contract.
Moreover, the plaintiff has offered no evidence in support of its tort claims against the town of Wilton. No evidence has been presented establishing that the town of Wilton played any role in the solicitation or hiring of Forgues or DeFrancesco by the Wilton Board of Education. No evidence has been presented that the town took any steps or actions in any way involving either Forgues or DeFrancesco. In the absence of any material facts that the town of Wilton was involved in any way in the employment of Forgues or DeFrancesco by the Wilton Board of Education, the town is entitled to summary judgment as to all nine counts pending against it.
My determination that the plaintiff has failed to provide facts showing any conduct by the town of Wilton involving Forgues or DeFrancesco disposes of all nine counts pending against the town. The town of Wilton has also asserted additional bases for the entry of summary judgment similar to those asserted by the Wilton Board of Education. My resolution of those issues in favor of the Wilton Board of Education are likewise resolved in favor of the town of Wilton.
II THE PLAINTIFF'S CLAIMS AGAINST THE WILTON BOARD OF EDUCATION
In the first count of its complaint, the plaintiff asserts a breach of contract claim against the Wilton Board of Education. Specifically, the plaintiff claims that the Wilton Board of Education breached the written agreement for 1999-2000 school year by soliciting and hiring Forgues and DeFrancesco within the one-year ban on solicitation and hiring. The plaintiff requests the entry of summary judgment on liability claiming that the uncontradicted evidence establishes the existence of the contract and its violation. The Wilton Board of Education requests its own entry of summary judgment on this count, asserting that the hiring of Forgues and DeFrancesco occurred after the expiration of any hiring ban and that plaintiff has failed to offer any evidence showing that solicitation occurred. I agree with the Wilton Board of Education that it is entitled to summary judgment on the plaintiff's breach of contract claim.
As noted previously, the written agreement for 1999-2000 school year provides that "For the period beginning from the signing of this Agreement until one (1) year from the last day that the contractor provides services, the Wilton Board of Education agrees not to solicit or hire contractors provided by Pediatric Occupational Therapy Services, Inc." The plaintiff contends that the Wilton Board of Education violated this provision by hiring Forgues and DeFrancesco in July 2000. The plaintiff maintains that the one-year ban on hiring extended through August of 2001 because it provided services to the Wilton Board of Education during the summer of 2000.
I assume, without deciding, for the purpose of addressing the parties' motions for summary judgment that the plaintiff will establish by a preponderance of the evidence that a written agreement existed between the plaintiff and the Wilton Board of Education for the 1999-2000 school year.
The Wilton Board of Education argues that the one-year ban on hiring expired on June 30, 2001 and therefore the hiring of Forgues and DeFrancesco effective July 1, 2001 did not violate the contract. I agree.
The contract provides that the ban on hiring extends one (1) year from the last day that the contractor provides services. Under the express terms of the contract, services pursuant to the contract terminated on June 30, 2000. Although the contract allowed for termination of the contract earlier than June 30, 2000, it did not authorize an extension beyond that date. Moreover, the services provided to the Wilton Board of Education by the plaintiff during the summer of 2000 were provided pursuant to a separate agreement of the parties. Since June 30, 2000 was the last day that services were provided under the written agreement for the 1999-2000 school year, the ban on hiring expired on that date and the hiring of Forgues and DeFrancesco effective July 1, 2001 did not violate the contract.
The plaintiff also asserts that the Wilton Board of Education violated the contractual ban on the solicitation of the plaintiff's employees. The plaintiff presented evidence that the Wilton Board of Education posted its openings for occupational therapists, accepted the job applications of Forgues and DeFrancesco and interviewed them for the positions. The plaintiff maintains that these actions constitute solicitation of those employees. I am not persuaded.
Pursuant to the contract between the plaintiff and the Wilton Board of Education, the Wilton Board of Education agreed not to "solicit" the plaintiff's employees. Since the parties failed to define the term in their contract, it is appropriate to look to the dictionary to ascertain the commonly approved usage of the word. Buell Industries v. Greater New York Mutual Ins., 259 Conn. 527, 539 (2002). "Solicit" is defined as "to make petition to: entreat" and "to approach with a request or plea." Merriam-Webster's Collegiate Dictionary, Tenth Edition. See also Bigelow Co. v. Waselik, 133 Conn. 304, 306 (1946), in which the court looked to the dictionary and defined "solicit" to mean "to entreat; importune; . . . to approach with a request or plea; to seek . . . actively." The posting or advertising of a job to the public is by itself insufficient to constitute the solicitation of an employee encircled by a non-solicitation ban. It requires some effort or action directed at the individual employee urging or importuning that individual to leave his or her employment.
The determination that "solicit" is limited to a plea or entreaty directed to the individual is compelled not only by the customary definition of the term "solicit," it is compelled by practicalities. A business or entity bound by a non-solicitation provision would encounter substantial difficulty filling vacant job positions if the provision were read to cover general job postings or advertising. Those difficulties would be insurmountable for any governmental entity required by law or contract to publically post or advertise vacant positions before filling them. These practical problems are further evidence that the parties intended to limit the term "solicit" to its commonly understood definition.
The evidence presented by the parties indicates that the Wilton Board of Education publically posted its occupational therapist positions, the defendants Forgues and DeFrancesco submitted applications for those positions, were interviewed by the Wilton Board of Education and were hired. These actions by the Wilton Board of Education do not constitute an effort to solicit Forgues and DeFrancesco in violation of its contract with the plaintiff.
The Wilton Board of Education has also moved for summary judgment on each of the eight remaining counts of the plaintiff's complaint pending against it. I will address each of these counts in turn.
The third count of the complaint alleges intentional interference with contract. The plaintiff alleges that the Wilton Board of Education knew of the plaintiff's agreements with Forgues and DeFrancesco, interfered with those contracts by hiring Forgues and DeFrancesco and did so maliciously and through fraud, misrepresentation, intimidation and molestation. The Wilton Board of Education asserts that the plaintiff has presented no facts which would establish such a claim. I agree.
"Although Connecticut courts long have recognized a cause of action for tortious interference with contract rights or other business relations the case law indicates, nonetheless, that not every act that disturbs a contract or business expectancy is actionable. For a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously. An action for intentional interference with business relations requires the plaintiff 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 defendant's commission of a tort. A claim is made out only when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself. Not every act of interference is tortious. (Internal quotation marks and citations omitted.) Downes-Patterson Corp. v. First Nat. Supermarkets, 64 Conn. App. 417, 429, cert. granted, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed, June 25, 2002).
The plaintiff has proffered no facts which indicate that the Wilton Board of Education used any improper means or harbored any improper motive in hiring Forgues and DeFrancesco. The plaintiff also fails to point to any tortious conduct on the part of the Wilton Board of Education. The mere allegation that the Wilton Board of Education knew of the plaintiff's contract with Forgues and DeFrancesco, including its clause that Forgues and DeFrancesco not accept a position with a customer of the firm, and that the Wilton Board of Education hired the employees in alleged violation of that contract, is insufficient to prove a claim of intentional interference with contract. Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 536-37 (1988).
In the fifth count of its complaint, the plaintiff alleges a claim of promissory estoppel, that is that the Wilton Board of Education breached its promise not to solicit or hire employees of the plaintiff. However, the plaintiff has not presented evidence of a promise by the Wilton Board of Education that has been breached. No written agreement existed for the 2000-2001 school year and the plaintiff has offered no evidence that the Wilton Board of Education made an oral promise covering that time period. Although the written agreement for the 1999-2000 school year contained a provision in which the Wilton Board of Education agreed not to solicit or hire employees of the plaintiff, I have determined, in reviewing the plaintiff's breach of contract claim, that no evidence has been submitted indicating that the Wilton Board of Education breached this agreement. Accordingly, the Wilton Board of Education is entitled to summary judgment on this count.
In the sixth, ninth and twelfth counts of its complaint, the plaintiff asserts claims of common-law fraud, negligent misrepresentation and fraudulent misrepresentation, respectively. The Wilton Board of Education is entitled to summary judgment on each of these counts because the plaintiff has failed to proffer any evidence that the defendant has engaged in the type of tortious behavior covered by these causes of action.
Both an action in common-law fraud and an action for fraudulent misrepresentation require proof of a false representation made as a statement of fact. See Visconti v. Pepper Partners Ltd Partnership, 77 Conn. App. 675, 683 (2003) (common law fraud), and Miller v. Guimaraes, 78 Conn. App. 760, 780 (2003) (fraudulent misrepresentation). Similarly, a claim of negligent misrepresentation requires a showing of a false representation of a fact. Citino v. Redevelopment Agency, 51 Conn. App. 262, 273 (1998). The plaintiff here has not offered any evidence of any false representation of fact allegedly made by the Wilton Board of Education that the plaintiff claims to have relied upon to its detriment. The only factual statement identified by the plaintiff which the plaintiff alleges is untrue is a statement made by Christine Chambers, an employee of the Wilton Board of Education, that the defendant would honor the non-solicitation provision of its written agreement for the 1999-2000 school year. As previously discussed, the plaintiff has submitted no evidence showing that the Wilton Board of Education did not honor that provision. Accordingly, summary judgment may enter in favor of the Wilton Board of Education on the sixth, ninth and twelfth counts of its complaint.
The eighteenth count of the plaintiff's complaint asserts a claim of breach of the covenant of good faith and fair dealing against the Wilton Board of Education. The Wilton Board of Education is entitled to summary judgment on this count because the plaintiff has failed to offer evidence that the defendant acted in bad faith.
"`Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.' Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992)." Gupta v. New Britain General Hospital, 239 Conn. 574, 598 (1996). See also Macomber v. Travelers Property Casualty Corp., 261 Conn. 620 638 (2002). To prove a lack of good faith or, conversely, bad faith, a party must show more than bad judgment or negligence or mistake. Elm Street Builders v. Enterprise Park Condominium, 63 Conn. App. 657, 667-68 (2001). See also Miller v. Guimaraes, 78 Conn. App. 760, 773 (2003). "Bad faith in general implies both `actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to ones rights or duties, but by some interested or sinister motive.' Black's Law Dictionary (5th Ed. 1979). Bad faith means more than mere negligence; it involves a dishonest purpose." (Citations omitted.) Habetz v. Condon, supra, 224 Conn. 237 (1992).
The plaintiff has offered no evidence that the conduct of the Wilton Board of Education was motivated by bad faith. The only direct evidence presented by either party on the issue of the motivation of the Wilton Board of Education in moving its occupational services in-house reflects a good faith basis for doing so. Christine Chambers, the Director of Special Services for the Wilton school district, testified at her deposition that the reasons for the change were to provide better services to students and to reduce costs.
The plaintiff contends that the actions of the Wilton Board of Education in soliciting and hiring Forgues and DeFrancesco are evidence of its bad faith. I do not agree. There is no evidence that the Wilton Board of Education individually solicited either Forgues or DeFrancesco in violation of its contract with the plaintiff. The hiring of Forgues and DeFrancesco occurred after the expiration of the plaintiff's written contract with the Wilton Board of Education at a time when there was no ban on their hiring. The mere act of soliciting and hiring a business's employee without more is insufficient to show the improper or sinister motive required for a finding of bad faith.
III PLAINTIFF'S CLAIMS AGAINST FORGUES AND DEFRANCESCO
The plaintiff has moved for summary judgment against Forgues and DeFrancesco on its breach of contract claim (second count) and on its claims of a breach of the covenant of good faith and fair dealing (nineteenth and twentieth counts). The defendants Forgues and DeFrancesco have moved for summary judgment as to each of the nine counts pending against them. I will address each of the nine counts seriatim.
With respect to the breach of contract claim and the claims of a breach of the covenant of good faith and fair dealing, the plaintiff contends that the uncontradicted evidence shows that Forgues and DeFrancesco breached the post-employment restraint provision of their respective employment contracts with the plaintiff by obtaining employment with the Wilton Board of Education, an agency formerly served by the plaintiff. Forgues and DeFrancesco respond that the post-employment restraint provision, under the circumstances of this case, is broader than necessary to fairly protect the legitimate business interests of the plaintiff and is therefore not enforceable. Forgues and DeFrancesco also assert that the plaintiff has failed to present any evidence that the alleged breach of the non-compete provision caused any damages to the plaintiff. I agree with the defendants.
In support of their motion for summary judgment, Forgues and DeFrancesco submitted deposition testimony from Christine Chambers, Director of Special Services for the Wilton Board of Education, which contained the following uncontradicted facts. Chambers was hired as the new Director of Special Services in August of 1999. In the fall of 1999, she began discussions and planning to consider bringing in-house the occupational therapy services provided students in the Wilton public school district. In the fall of 2000, Chambers submitted a proposal to the Wilton Board of Education to provide occupational therapy services through staff employees, rather than through outside contractors, beginning with the 2001-2002 school year. The Wilton Board of Education subsequently approved a budget proposal in February 2001 which established in-house occupational therapy services. The reasons for the change in the delivery of such services by the school system were to improve services to students and to save money. In April 2001, Chambers informed the plaintiff that the Wilton Board of Education would not be needing the plaintiff's occupational therapy services for the 2001-2002 school year because it was establishing an in-house program.
As noted previously, Forgues and DeFrancesco were subsequently hired as employees of the Wilton Board of Education to staff the school system's new occupational therapy positions. The plaintiff asserts that the acceptance by Forgues and DeFrancesco of these positions breached their employment contracts with the plaintiff because it violated Paragraph 11 of the agreements which provided that they would not accept an occupational therapist position directly or indirectly with any agency served by Pediatric Occupational Therapy Services, Inc. for one year following affiliation with Pediatric Occupational Therapy Services, Inc.
The plaintiff's employment agreements with Forgues and DeFrancesco also contained a paragraph 10 which provided, in part, that: "For a period of one (1) year after termination of this Agreement, the Employee will not, within a radius of fifty (50) miles from the offices at 1300 Post Road, Suite 204, Fairfield, Connecticut, and 530 Old Post Road #3, Suite 100, Greenwich, Connecticut, directly or indirectly, own, manage, operate, control, develop, or be connected in any manner with the ownership, management, operation, control, or development of any business similar to the type of business conducted by the Employer at the time of the termination of this agreement." The plaintiff has indicated that it is not claiming in this lawsuit that either Forgues or DeFrancesco violated the provisions of this paragraph.
The standard for determining the validity of the parties' restrictive covenant is well-established. Essentially, the restrictions contained in a covenant not to compete must be reasonable and they must fairly protect the interests of both parties. Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 530 (1988). See also Mattis v. Lally, 138 Conn. 51, 54 (1951). "In dealing with a restrictive stipulation between an employer and an employee, as in this case, in order that the court may uphold and enforce the restriction, if it is not otherwise contrary to public policy, the court must find that the facts alleged disclose a restriction on the employee reasonably necessary for the fair protection of the employer's business or rights, and not unreasonably restricting the rights of the employee, due regard being had to the interests of the public, and the circumstances and conditions under which the contract is to be performed." (Citations and internal quotation marks omitted.) Samuel Stores, Inc. v. Abrams, 94 Conn. 248, 253 (1919).
The criteria for determining the reasonableness of a non-compete clause were established by the Connecticut Supreme Court in Scott v. General Iron Welding Co., 171 Conn. 132 (1976). Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 529 (1988) (" Scott v. General Iron Welding Co., 171 Conn. 132 (1976), sets forth the factors relevant to an evaluation of the reasonableness of a covenant not to compete ancillary to an employment agreement"). In Scott, the court decreed that: "In order to be valid and binding, a covenant which restricts the activities of an employee following the termination of his employment must be partial and restricted in its operation in respect either to time or place, and must be reasonable — that is, it should afford only a fair protection to the interest of the party in whose favor it is made and must not be so large in its operation as to interfere with the interests of the public. The interests of the employee himself must also be protected, and a restrictive covenant is unenforceable if by its terms the employee is precluded from pursuing his occupation and thus prevented from supporting himself and his family." (Citations and internal quotation marks omitted.) Scott v. General Iron Welding Co., 171 Conn. 132, 137 (1976).
The Appellate Court has discerned in Scott five factors for determining the validity of a noncompetition restriction: (1) the length of time the restriction is to be in effect; (2) the geographic area covered by the restriction; (3) the degree of protection afforded to the party in whose favor the covenant is made; (4) the restrictions on the employee's ability to pursue his occupation; and (5) the extent of interference with the public's interests. New Haven Tobacco Co. v. Perrelli, 18 Conn. App. 531, 533-34 (1989). A covenant not to compete must be reasonable in all five respects. Id., 534. The burden is on the defendant to demonstrate the unreasonableness of the covenant's restrictions. Milaneseo v. Calvanese, 92 Conn. 641, 642 (1918).
It has long been clear that, in order to be valid, a post-employment restraint on an employee must be limited to that restraint necessary to fairly protect the legitimate interests of the employer. Scott v. General Iron Welding Co., 171 Conn. 132, 137 (1976): See also May v. Young, 125 Conn. 1, 5 (1938), and Samuel Stores, Inc. v. Abrams, 94 Conn. 248, 253 (1919). Put another way, a promise by an employee to limit his employment opportunities after leaving his employer's employ is invalid if the restraint is greater than is needed to protect the employer's legitimate interests. Restatement (Second), Contracts § 188.
Here, the plaintiff seeks to apply the post-employment restraint provision of the parties' contract to employment with a former customer of the plaintiff, who had decided, independently of Forgues and DeFrancesco, to terminate its relationship with the plaintiff prior to hiring the defendants. There is no legitimate business interest of the plaintiff that justifies the prohibition on such employment.
The employment of Forgues and DeFrancesco by the Wilton Board of Education did not cause the loss by the plaintiff of a customer. That loss resulted from a prior decision by the Wilton Board of Education unrelated to Forgues and DeFrancesco. In short, this is not a case of Forgues and DeFrancesco "stealing" a customer of the plaintiffs. See Entex Information Services v. Behrens, Superior Court, Judicial District of Hartford at Hartford, Docket No. CV 99-0593692, 26 Conn.L.Rptr. 680 (Mar. 17, 2000) (Freed, J.) (in which the court found that a business has no legitimate interest in preventing an employee from working for a former customer).
This is also not a case of an employee leaving an employer to work for a competitor or to establish a competing concern. The Wilton Board of Education is not engaged in the business of providing occupational therapy services to existing or potential customers of the plaintiff. Their services are limited to current students in the Wilton school district.
In apparent recognition of this fact, the plaintiff has chosen not to assert a claim that Forgues and DeFrancesco violated paragraph 10 of their employment contract which prohibited them from being involved in the operation of any business similar to the type of business conducted by plaintiff.
This is also not a situation where restraints are necessary to protect an employer from harm by the appropriation by the employee of trade secrets or confidential information or by the appropriation of special or long-standing customer relationships acquired by the employee during employment. See, e.g., May v. Young, 125 Conn. 1 (1938). See also Restatement (Second), Contracts § 188, comment (b) which states that post-employment restraints must usually be justified on the ground that the employer has a legitimate interest in restraining the employee from appropriating valuable trade information and customer relationships to which he has had access in the course of his employment. The plaintiff has not sought to justify the post-employment restraint here on the defendants' appropriation of any trade secrets or confidential information or on the appropriation of customer relations cultivated by the defendants.
The plaintiff has not identified a legitimate interest in preventing the employment of Forgues and DeFrancesco with the Wilton Board of Education. Accordingly, the post-employment restraint provision of the employment contracts between the plaintiff and Forgues and DeFrancesco is invalid.
Forgues and DeFrancesco are also entitled to summary judgment on the breach of contract and breach of the covenant of good faith and fair dealing counts of the plaintiff's complaint because the plaintiff has failed to offer evidence that the employment by Forgues and DeFrancesco with the Wilton Board of Education caused damage to the plaintiff.
"The general rule of damages in a breach of contract action is that the award should place the injured party in the same position as he would have been in had the contract been performed. O'Hara v. State, 218 Conn. 628, 642 (1991). To prevail in a breach of contract action, the plaintiff must prove that the breach caused it damage. "It is hornbook law that to be entitled to damages in contract a plaintiff must establish a causal relation between the breach and the damages flowing from that breach. Such causal relation must be more than surmise or conjecture, inasmuch as a trier is concerned not with possibilities but with probabilities. Where the damages claimed are remote from the breach complained of and the causal connection is wholly conjectural, There can be no recovery." (Internal quotation marks and citations omitted.) West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 314-15 (1988). Summary judgment may be granted based on a failure to establish causation. Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307 (1997).
In this case, the plaintiff claims that it suffered damage in the form of lost profits from the loss of the contract with the Wilton Board of Education. "[P]rospective profits are allowable as an element of damage whenever their loss arises directly from and as a natural consequence of the breach." West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 320 (1986).
The uncontradicted evidence submitted by the parties with respect to the cross motions for summary judgment shows that the plaintiff's loss of its contract with the Wilton Board of Education was not caused by the Wilton Board of Education's hiring of Forgues and DeFrancesco. The Wilton Board of Education decided not to renew its contract with the plaintiff prior to hiring Forgues and DeFrancesco and independent of its subsequent decision to hire them. The termination of the contract was based on programmatic and fiscal considerations unrelated to Forgues and DeFrancesco. The plaintiff has not presented any evidence showing that the hiring of Forgues and DeFrancesco caused it to lose the contract with the Wilton Board of Education. Rather, the evidence that was presented indicated that the plaintiff would have lost the contract beginning with the 2000-2001 school year regardless of the employment of Forgues and DeFrancesco.
The plaintiff also asserts a variety of additional damages which it claims flow from the breach of the employment contract by Forgues and DeFrancesco. These items of damage include the lost opportunity to expand the plaintiff's business, lost profits from the inability to serve clinic clients, and the cost to train Forgues and DeFrancesco. However, these additional items of damage claimed by the plaintiff do not result from the alleged breach of contract by Forgues and DeFrancesco. These damages were incurred due to the defendants leaving the plaintiff's employ, not due to their employment with the Wilton Board of Education. The plaintiff did not lose the opportunity to expand or lose the opportunity to serve its other clients or incur the other costs it claims because the defendants are now employed by the Wilton Board of Education. It suffered those damages because the defendants left its employ.
The alleged breach of contract in this case was the acceptance of employment at an agency formerly served by the plaintiff in violation of paragraph 11 of the employment contract. The breach of contract was not the departure from the plaintiff's employ as there is no provision in the employment contract preventing Forgues and DeFrancesco from terminating their employment with the plaintiff. Therefore, the additional damages claimed by the plaintiff were not caused by the alleged breach of contract or by the alleged breach of the covenant of good faith and fair dealing.
In the fourth count of its complaint, the plaintiff alleges that Forgues and DeFrancesco intentionally interfered with the contract between the plaintiff and the Wilton Board of Education by accepting positions with the Wilton Board of Education as occupational therapists. As previously noted, the plaintiff has presented no evidence that the hiring of Forgues and DeFrancesco by the Wilton Board of Education violated any contract between the plaintiff and the Wilton Board of Education. Since the plaintiff has proffered no facts which would establish that Forgues and DeFrancesco actually interfered with a contract between the plaintiff and the Wilton Board of Education, Forgues and DeFrancesco are entitled to summary judgment on the fourth count of the plaintiff's complaint.
In the fifth count of its complaint, the plaintiff asserts a claim of promissory estoppel against Forgues and DeFrancesco. The plaintiff alleges that the defendants breached their promise to abide by the post-employment restraints of their employment contracts. Since I have determined that these contractual restraints are invalid, any equivalent promises are similarly unenforceable.
In the seventh, tenth and thirteenth counts of its complaint, the plaintiff asserts claims of common-law fraud, negligent misrepresentation and fraudulent misrepresentation, respectively, against Forgues. In the eighth, eleventh and fourteenth counts of its complaint, the plaintiff asserts similar claims against DeFrancesco. The defendants are entitled to summary judgment on each of these counts because the plaintiff has failed to proffer any evidence that either Forgues or DeFrancesco made allegedly false statements to induce the plaintiff to act on them.
Common-law fraud and fraudulent misrepresentation require proof that a false statement of fact was made to induce another party to act on it. Citino v. Redevelopment Agency, 51 Conn. App. 262, 275 (1998). A cause of action for negligent misrepresentation similarly requires proof that false information was supplied for the guidance of others in their business transactions. Craine v. Trinity College, 259 Conn. 625, 661 (2002), and Restatement (Second), Torts § 552. Although allegations such as misrepresentation and fraud present issues of fact, it remains incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined as a matter of law that a genuine issue of material fact exists. Jaser v. Fischer, 65 Conn. App. 349, 358 (2001).
The plaintiff alleges that Forgues and DeFrancesco lied to it as where they were going to work after leaving the plaintiff's employ. In her affidavit submitted in support of the plaintiff's motion for summary judgment, Tara Glennon, the president of the plaintiff, states that the defendants never told her that they were going to work for the Wilton Board of Education. She states that Forgues told her that "she did not want to work with children anymore and was considering returning home to Vermont or working with adults." Glennon also states that DeFrancesco told her that she was moving out of state.
The plaintiff has presented no evidence that the defendants made their allegedly false statements to induce the plaintiff to act on those statements. The allegedly false statements which the plaintiff attributes to Forgues and DeFrancesco concern their reasons for leaving the plaintiff's employ. The plaintiff has failed to submit any evidence that either Forgues or DeFrancesco lied to the plaintiff as to their reasons for quitting in order to entice any particular action by the plaintiff.
With respect to DeFrancesco, the plaintiff has also failed to present any evidence that it relied upon the allegedly false statement of DeFrancesco to the plaintiff's detriment. Common-law fraud, fraudulent misrepresentation and negligent misrepresentation all require as an essential element that the plaintiff justifiably relied on the false statements of fact. Visconti v. Pepper Partners Ltd Partnership, 77 Conn. App. 675, 682-83 (2003). Glennon states in her affidavit with respect to Forgues that she would not have "waived the cost of the training reimbursement as I did for Ms. Forgues, or pay her a bonus, or give her a letter of recommendation, if I knew she was going to work for the Town of Wilton directly in breach of her contract." Glennon makes no such statements with respect to DeFrancesco.
Accordingly, summary judgment may enter in favor of Forgues on the seventh, tenth and thirteenth counts of the plaintiff's complaint and in favor of DeFrancesco on the eighth, eleventh and fourteenth counts of the complaint.
IV THE PLAINTIFF'S CONSPIRACY AND AIDING AND ABETTING CLAIMS
The plaintiff also asserts claims of civil conspiracy and "aiding and abetting fraud" against each of the defendants (the twenty-first and twenty-fourth counts against the Wilton Board of Education; the twenty-second and twenty-third counts against Forgues, and the twenty-fifth and twenty-sixth counts against DeFrancesco). The factual allegations of the plaintiff's complaint with respect to each count are essentially the same. The plaintiff alleges that the Wilton Board of Education acted in concert with Forgues and DeFrancesco to assist each other in violating their respective contracts with the plaintiff. Since I have found that summary judgment should enter for all the defendants with respect to the breach of contract claims against them, summary judgment must also enter on the claims of conspiracy and aiding and abetting fraud.
It is not clear that there is a distinction between a cause of action alleging civil conspiracy and one alleging "aiding and abetting" a tort. I need not decide whether the plaintiff may appropriately assert separate causes of action since my decision on the defendants' motions for summary judgment is the same whether I treat the causes of action as one cause of action or two.
"The elements of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." Harp v. King, 266 Conn. 747, 779 (2003).
The appellate courts of our state have not yet recognized the tort of aiding or abetting fraud. Liability for concerted actions involving tortious conduct that result in harm to a third person is recognized in the Restatement (Second) of Torts. The Restatement provides as follows: "For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." 4 Restatement (Second), Torts § 876(a).
Both a claim of civil conspiracy and a claim of aiding and abetting require a showing of unlawful or tortious conduct. The unlawful conduct alleged by the plaintiff are actions amounting to a breach of the defendants' respective contracts with the plaintiff. The plaintiff alleges that Forgues and DeFrancesco assisted the Wilton Board of Education in violating its contractual duty not to solicit or hire them and the plaintiff alleges that the Wilton Board of Education conspired with Forgues and DeFrancesco to violate their contractual duties not to accept employment at a former customer of the plaintiff.
I have previously determined that there is no evidence that the Wilton Board of Education violated its contract with the plaintiff. I have also previously determined that summary judgment should enter on the plaintiff's breach of contract claims against Forgues and DeFrancesco because the post-employment provision of those contracts is invalid. Since the plaintiff's civil conspiracy and aiding and abetting claims rest on their breach of contract allegations, those claims similarly fail.
V CONCLUSION
In light of the above, summary judgment is hereby entered in favor of all defendants on all counts of the plaintiff's complaint.
BY THE COURT
Jon M. Alander, Judge of The Superior Court