Opinion
No. CV-07-5008889
January 6, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#121)
In this three-count complaint alleging breach of contract, defamation and defamation per se, the defendants have moved for summary judgment on several grounds. They argue that there is no genuine issue of fact regarding the lack of a contract between the plaintiff and the defendants on the breach of contract claim. With respect to the defamation claims, they argue that the statement was not defamatory, and even if it was, it is subject to a qualified privilege. The plaintiff has responded that there exists issues of fact on all the counts, and therefore, summary judgment should be denied.
LAW
"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." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253 (2007). "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45.
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86 (2006).
DISCUSSION
The affidavits and the exhibits attached thereto establish the following facts. The defendants, doctors Jack Hauser (Hauser), Samuel Hahn (Hahn) and Ricardo Cordido (Cordido), are all partners in the cardiology practice called HeartCare. The plaintiff, Andrew Rodican (Rodican), began working for HeartCare in August 2004. In early February 2005, Rodican and Hauser began discussing ideas for a weight loss clinic. Hauser, Hahn and Rodican worked to develop a clinic called Connecticut Weight and Wellness, which began operations in January 2006. While the plaintiff worked for Connecticut Weight and Wellness, Rodican and Hauser continued to speak and correspond via email regarding a precise compensation package for Rodican. Hauser continually promised that a draft of the employment agreement was forthcoming. On July 11, 2006, the defendants, collectively, presented Rodican with a written offer letter, which the plaintiff subsequently rejected. A written contract between the parties never materialized. On July 25, 2006, the defendants terminated Rodican. After the plaintiff's termination, Hauser admits saying to several individuals in his office, "Andy is in trouble for stealing prescription meds." The defendants believed that Rodican had stolen prescription medication that was used to assist patients in their weight loss. In addition, at the direction of Hauser, an employee of Connecticut Weight and Wellness, contacted two of the plaintiff's former patients to inquiry into whether the plaintiff had ever misappropriated prescription medication.
The plaintiff filed a six-count complaint on January 29, 2007 against HeartCare Associates of Connecticut, LLC, Connecticut Weight and Wellness, LLC, and doctors Hauser, Hahn, and Cordido. The defendants filed a motion to strike count two, count three, and count four, sounding in wrongful discharge, intentional infliction of emotional distress and negligent infliction of emotional distress, respectively. The court, Licari, J. granted the motion to strike these three counts. The defendants subsequently filed the present motion for summary judgment as to the plaintiff's remaining breach of contract, defamation and defamation per se claims.
Breach of Contract Count
The defendants argue that summary judgment is appropriate as to the breach of contract claim because the plaintiff did not enter into a written contract with the defendants. The defendants further contend that there was no meeting of the minds, no definite contract terms, and no present intent to contract and therefore, they are entitled to judgment as a matter of law on this claim. The plaintiff responds that while there was no written contract, the essential terms of the contract were agreed to by the parties' conduct: the plaintiff worked as an employee of the defendants in developing a weight-loss clinic, the defendants led the plaintiff to believe that a written draft agreement was near completion, and the plaintiff relied on the promises made by the defendants regarding the employment agreement by continuing to work for the defendants.
While neither party has proffered evidence of an express contract, the parties dispute whether an implied contract existed. "An implied contract is an agreement between the parties which is not expressed in words but which is inferred from the acts and the conduct of the parties." Brighenti v. New Britain Shirt Corp., 167 Conn. 403, 406-07 (1974). The plaintiff argues that the acts and conduct of the defendants, including accepting the work the plaintiff provided and the content of the various email correspondences between the defendants and the plaintiff, amount to an implied contract between the parties.
Even where an implied contract exists, the precise terms of the contract must be determined. The Supreme Court has held that "[a]n implied contract . . . [may incorporate] the terms of . . . oral statements." Torosyan v. Boehringer Ingeheim Pharmaceticals, Inc., 234 Conn. 1, 12-13 (1995). Oral statements made to an employee by his supervisors may be sufficient to allege the terms of an implied contract. See Gaudio v. Griffin Health Services Co., 249 Conn. 523, 537-38 (1999). Here, the plaintiff alleges that the defendants made various statements and promises to the plaintiff regarding his employment arrangement that resulted in the creation of an implied contract, which was subsequently breached when the defendants terminated the plaintiff without compensation for services rendered. See also Finley v. Aetna Life Casualty Co., 5 Conn.App. 394, 405 (1985), rev'd on other grounds, 202 Conn. 190 (1987) (whether there was a contract of employment between the parties and, if so, what the parties intended the terms of that contract to be were questions of fact for the jury to decide on the basis of all the evidence produced, including the terms of the employment manual, the policies, procedures and practices of the defendant, and other relevant documents and testimony.
The defendants, as movants, carry the initial burden of proof in demonstrating that there are no issues of material fact in dispute and that they are entitled to judgment as a matter of law. In support, the defendants cite several email correspondences between the parties that they believe establish the non-existence of an employment contract, implied or otherwise. They contend that these communications are indefinite and forward-looking and are devoid of specific contract terms. The defendants highlight, as an example, an email from Hauser to the plaintiff dated November 30, 2005, in which the defendant says, "I'm busy securing financing for our venture Mr. President! . . . I have been preparing a summary of the business strategy . . ." See Defendants' Exhibit H-attached to defendants' reply memorandum of law in support of defendants' motion for summary judgment (#130). The defendants argue that this email indicates that the business strategy and financing process is ongoing and that any employment arrangement involving the plaintiff has yet to be finalized, despite the fact that the defendant refers to the plaintiff as president. The defendants further rely on an email, dated March 3, 2006, from the plaintiff to Hauser that the defendants cite to demonstrate that the plaintiff recognized that his specific role within the company was uncertain and that the terms of his employment were not finalized. "We need to talk about the organization of CWW; chain of command, etc. . . . You need to make clear to all of us, what our responsibilities are." See Defendants' Exhibit I. The defendants also cite an email from the plaintiff to Hauser, dated May 19, 2006, in which the plaintiff stated that he understood that the defendant was considering "various options" regarding his compensation package. See Defendants' Exhibit N. On June 15, 2006, the plaintiff wrote to Hauser and said, "I hope we can work out the contract sooner, rather than later, so we can all move on and continue to make this business grow." See Defendants' Exhibit O. Finally, the plaintiff sent an email to Hauser stating that he has "been unhappy about NOT having a contract for a very long time, yet you [Dr. Hauser] continue to keep me in the dark and remain non-committal." See Defendants' Exhibit P. The defendants argue that no fact finder could conclude that a contract had been formed and subsequently breached.
When a party has satisfied the burden of proof as the movant for summary judgment, the burden shifts to the non-moving party to show that there is an issue of material fact in dispute. Socha v. Bordeau, supra, 277 Conn. 585-86. Here, the plaintiff has presented evidence that demonstrates the potential existence of an implied contract. The plaintiff argues that on numerous occasions Hauser promised and assured the plaintiff that he would be a partner in the operation of Connecticut Weight and Wellness and continued to promise him a written contract. See Rodican Affidavit. The plaintiff cited emails between the parties which were submitted by the defendants as exhibits to the defendants' reply memorandum of law in support of the defendants' motion for summary judgment. In an email dated March 7, 2006, sent by the plaintiff to Hauser, the plaintiff states "per our conversation yesterday, and to be sure we're on the same page, we agreed to the following" and then the plaintiff memorializes a specific agreement, including the fact that the plaintiff would receive fifteen percent commission on all gross retail sales resulting from all Connecticut Weight and Wellness clinics. See Defendants' Exhibit J. The plaintiff also relies upon an email from Hauser, dated June 7, 2007, to support the fact that the parties had reached an agreement regarding the terms of his employment. In that email, the defendant says "Plainly put Andy, there is no reason why we will not go forward with our deal. I am awaiting the draft of the agreement from Ron and as promised, we will seal the deal with a check to you." See Defendants' Exhibit K. Furthermore, the plaintiff cites an email from Hauser, dated July 6, 2007, which states "Andy you are working hard, and I am sure that may be why you are so tired. I do not want to make any more false promises to you, so I beg you to let me study these formulae [referring to the fifteen percent gross profit business formula that had previously been discussed by the parties.]" See Defendants' Exhibit A. The plaintiff argues that this email highlights the fact that the defendants had made promises to the plaintiff regarding the terms of his employment before further delaying in producing a written contract.
When viewed in the light most favorable to the opponent of summary judgment, there is conflicting evidence regarding the existence or non-existence of an implied contract. Accordingly, there are genuine issues of material fact in dispute regarding the existence of a contractual agreement between the parties and the motion for summary judgment as to the breach of contract claim is DENIED.
Defamation Count
The defendants next move for summary judgment on count five of the complaint, the plaintiff's defamation claim arising from Hauser's statement that "Andy is in trouble for stealing prescription meds." A "defamatory statement" is defined as "a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217 (2004). Accordingly, the court must decide whether there are any genuine issues of material fact in dispute regarding whether the plaintiff suffered injury to his reputation as a result of Hauser's statement, whether the statement was defamatory in nature and finally, whether the statement was made with malice so as to preclude the defendants' claim of qualified privilege.
The defendants argue that the plaintiff has not demonstrated that he suffered injury to his reputation, that the statement was not defamatory in nature, and that even if the statement was defamatory, it is subject to a qualified privilege. The defendants argue that there are no genuine issues of material fact in dispute and thus, they are entitled to judgment as a matter of law.
The plaintiff argues that there is a question of fact as to whether he suffered damage to his reputation. The inherent difficulty of demonstrating the adverse effect that Hauser's statement had on the plaintiff's subsequently formed business highlights the fact that there is a disputed question of fact. When asked at his deposition, "Can you name anybody with whom you otherwise would have had a profitable business but for this statement?" the plaintiff replied, "Well, if they didn't become patients, it's tough for me to tell you what their names are."
In addition, while the defendants argue that Hauser's statement was not defamatory in nature, the plaintiff contends that the statement was defamatory because Hauser emphatically stated that the plaintiff had committed a theft. In Gambardella v. Apple, 86 Conn.App. 842, 848 (2005), the Appellate Court stated "[a]n accusation that someone is guilty of theft would fit the definition of a defamatory statement." There, the plaintiff was accused of stealing property from the facility at which she worked. Id., 844-45. She later prevailed on a claim of defamation against her employer based on the fact that the employer published the accusation of theft in a disciplinary action report. Id., 848. Here, Hauser's statement effectively accused the plaintiff of committing theft. The defendants argue in the alternative that, even if the statement was defamatory, the statement is subject to a qualified privilege. The plaintiff, however, contends that whether a qualified privilege exists is a question of fact.
In determining whether there is a disputed question of fact, Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27 (1995), is instructive. In Torosyan, the court recognized a qualified privilege for intra-corporate communication regarding employee performance. Id., 29. The court, however, went on to articulate an exception to qualified privilege. "In this case, however, the trial court implicitly found that, as a matter of fact, the privilege had been abused because the defendants' agents had made the statement about the plaintiff with actual malice — that is, with knowledge of its falsity or reckless disregard as to its truth. See Bleich v. Ortiz, supra, 196 Conn. 504 (qualified privilege may be overcome on finding of malice); 4 Restatement (Second), Torts § 600 (1977) (qualified privilege fails if statement made with knowledge of falsity or reckless disregard as to truth)." Id. A qualified privilege therefore, can be overcome if it is determined that the speaker made the statement with malice. See Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 195 (1952) (a person's malicious intent is a question of fact based on all the circumstances of the case).
The plaintiff alleges that Hauser made the statement in bad faith, with malice, and with a dishonest belief in the truth of the matter. The plaintiff supports this contention by arguing that Hauser must have spoken with malice because he had no reason in fact to believe that the plaintiff had stolen any medication. At the time of the plaintiff's termination, he and Hauser conducted an accounting of the medication that the plaintiff was responsible for during his employment. After checking each bottle to see that they were unopened, Hauser made a notation on an invoice marking that all the medication had been accounted for. It was not until six weeks later that a shortage of pills was discovered and Hauser accused the plaintiff for stealing the medication. The plaintiff argues that Hauser's knowledge and participation in the accounting of the medication, which demonstrated that all the medication in the plaintiff's control was accounted for, indicates that the only possible intent behind Hauser's statement was to be malicious. The defendants deny any malicious intent on the part of Hauser. Clearly, there is a genuine issue of material fact in dispute regarding whether Hauser's statement was made with malice so as to preclude the defendants' claim of qualified privilege.
When viewed in the light most favorable to the opponent of summary judgment, there is conflicting evidence for fair and reasonable people to arrive at different conclusions regarding the plaintiff's claim of defamation. There are genuine issues of material fact in dispute regarding whether the plaintiff suffered injury to his reputation as a result of Hauser's statement and whether the statement was made with malice so as to preclude the defendants' claim of qualified privilege. The defendants' motion for summary judgment as to the fifth count alleging defamation is DENIED.
Defamation Per Se CT Page 882
The defendants additionally move for summary judgment as to the plaintiff's sixth count of defamation per se. This count is based on Hauser's statement and additionally, the defendants' act of questioning the plaintiff's former patients as to whether the plaintiff had misappropriated any prescription medication.
"This court has delineated specific categories of speech deemed actionable per se where the defamatory meaning of [the speech] is apparent on the face of the statement . . . It is a well established principle that an accusation of theft is slander per se. When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. He is required neither to plead nor to prove it . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the [defamation] caused him." (Citations omitted; internal quotation marks omitted.) Devito v. Schwartz, 66 Conn.App. 228, 234-35 (2001).
The defendants argue that the allegedly defamatory utterances amounted only to innuendo or implication, not actual statements. The defendants cite Herman v. Post, 98 Conn. 792 (1923) for the proposition that per se defamation cannot be established through implication or innuendo. Turning first to Hauser's statement that "Andy is in trouble for stealing prescription meds," the statement on its face amounts to words that are actionable per se because the statement contains an accusation of theft. At a minimum, it is question of material fact whether the statement constituted defamation per se. Moreover, in considering the questions posed to the plaintiff's former patients, a question of fact remains regarding whether the utterances amount to defamation per se. The precise nature of the questions asked to the former patients is itself in dispute and so, the defendants have not shown they are entitled to judgment as a matter of law. The court, therefore, rules that the defendants' motion for summary judgment on the plaintiff's defamation per se claim is DENIED.
CONCLUSION
For all the foregoing reasons, the defendants' motion for summary judgment is denied in toto.