Opinion
FSTCV156026922S
07-06-2017
Ramon Sotelo v. Sean Bierbower
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
David R. Tobin, Judge Trial Referee.
The plaintiff in this case, Ramon Sotelo, who operates a dog walking service under the trade name " Pet Palz, " brings this action against defendant, Sean Bierbower, who worked for him as a dog walker in the capacity of an independent contractor. In the first count of his complaint, dated November 4, 2015, the plaintiff alleges that the defendant breached a covenant not to compete and a non-solicitation provision contained in an agreement which the defendant signed on January 20, 2014. The second count asserts a claim of tortious interference by the defendant with the business relationships between the plaintiff and certain of his customers. The third count alleges that the defendant defamed the plaintiff by making false statements regarding the plaintiff which " impugned the Plaintiff's reputation as a dog-walker."
The defendant filed his appearance as a self-represented party and subsequently filed an answer denying the allegations of the complaint. The case was tried before the court on April 11 and 12, 2017. After the conclusion of evidence the court heard oral argument from the parties and allowed the plaintiff until May 12, 2017 to file a post-trial brief and the defendant to file a responsive brief no later than June 9, 2017.
The court subsequently granted the plaintiff's motion to extend the deadline for filing to May 15, 2017.
THE EVIDENCE
The plaintiff's first witness was the defendant who confirmed that he had worked for the plaintiff for approximately six months in 2014. He learned of the opportunity from his girlfriend who was a customer of the plaintiff's dog walking service. The defendant denied that he had signed any agreement with the plaintiff. He described the plaintiff's business which involved bringing customers' dogs to Mianus River Park in Greenwich and walking them. The defendant was required to use his own car to pick up customers' dogs at their respective residences and transport them to and from the park. There were a number of other dog walkers who used the park for their commercial enterprises in competition with the plaintiff.
The defendant admitted that after he ceased working for the plaintiff he operated his own dog walking business under the name Canine Health. He testified that he had fifteen customers and would walk as many as six dogs at a time, depending on the size of the dogs. He denied that any of his customers were former customers of the plaintiff's. He claimed the turnover in the dog walking trade was huge and that he might not hear from the customer for a year or more. He claimed to have had experience as a dog walker while in high school prior to his association with the plaintiff.
The defendant testified that no license is required to walk or train dogs and that the field is essentially unregulated. He initially claimed that he was not fired by the plaintiff, but instead quit. Upon termination of his association with the plaintiff, the defendant claimed he had returned keys to customer's homes, and all work shirts and all paper work bearing the Pet Palz's name.
While working for the plaintiff, the defendant was paid a share of the revenues generated by his efforts. For example, if a customer paid the standard fee of $35 for a walk, the defendant would be paid $20 while the plaintiff retained the $15 balance. He testified as to the difficulties of the job. An organization, " Friends of Mianus River Park" were opposed to the use of the park by commercial dog walkers and would often threaten to call the police. The customers expected the dogs to be walked for approximately one hour and fifteen minutes. However, on rainy days, the dogs would be taken on a shorter trail which would shorten the walk to forty-five minutes.
The defendant claimed that he had a poor relationship with the plaintiff, in part, because the plaintiff used choke collars and shock collars with the dogs entrusted to his care. The defendant felt that these training devices were unnecessarily cruel and believed the plaintiff used them because he had a deal with a shock collar company which allowed him to sell those devices to his customers.
The defendant was shown Exhibit 1, which purported to be a document outlining the terms of his agreement with Pet Palz. The defendant denied that the signature and the initials on the document were his. However, he agreed that the date on the document was approximately the date he first became associated with the plaintiff's dog walking business.
The defendant was shown Exhibit 2, which is an undated three-page statement bearing a signature purporting to be that of the defendant on stationery bearing a logo for " CanineHealth." The defendant agreed that he had written some, but not all, of the text of the statement. However, he denied that the signature was his or that he had prepared the document.
The defendant admitted the Exhibit 3 was a business card he used for " a month or so." It describes him as " Canine Behaviorist/CPDT." He was uncertain as to what the initials CPDT stood for but, believed DT meant " Dog Trainer." In later testimony he acknowledged that CPDT meant " Certified Professional Dog Trainer" and that he was never a certified professional dog trainer or a canine behaviorist.
The defendant explained that he no longer uses Mianus River Park to walk dogs because the plaintiff got an order of civil protection against him and he didn't want to risk violating the order. Instead he takes dogs to a park in New York State where dogs are allowed off leash.
The defendant stated that he had been bitten by dogs four times while he worked for the plaintiff. On one occasion, he was loading a customer's two older dogs into his car along with a " massive" St. Bernard puppy. During the loading process he was bitten on the forearm.
The defendant acknowledged that following the end of his relationship with the plaintiff he left a message on the answering machine of one of the plaintiff's customers named McLaren who had contacted him. An audio copy of the message was admitted into evidence as Exhibit 5. In that message the defendant states that he is no longer working with the plaintiff, but is planning to continuing walking a few dogs that he has become close to. He further states that he would love to continue to walk the family dog " Joey" and that the McLaren's son, Alex would be welcome to join the walk. The defendant denied that the conversation involved solicitation of one of the plaintiff's customers.
The defendant testified that his present business is not just dog walking, but instead involves pet health and behavioral science. The defendant acknowledged that Exhibit 6 represented screen shots of a Facebook page which he had established. The plaintiff recognized several of the dogs in the pictures on the page, but not others. Although he claimed that he set up the page two to four weeks after the termination of his relationship with the plaintiff, the page states that it was opened approximately two months prior to the defendant's claim. He claimed that the page was not an advertisement, but rather a dog enthusiast's site.
The defendant denied that he owned a black Jeep depicted in photographs taken by the plaintiff, but admitted that it resembled his father's car which he used occasionally in connection of his CanineHealth endeavors. He first claimed that his father had driven him to court in the Jeep and then later testified that, in fact, he, and not his father, had driven his father's car that day. He denied that Amy Matto, a former customer of the plaintiff's, was ever a customer of his. He admitted visiting Matto's home and spending time with her dog but only as a friend and not for any monetary compensation.
The plaintiff's wife, Elzbieta Sotelo, testified that she was married to the plaintiff in 2012 and thereafter worked for him as an independent contract dog walker. She took a break from dog walking during the term of the defendant's engagement by Pet Palz. On July 9, 2014, she was walking dogs with the plaintiff in the park when they encountered the defendant who was also walking dogs in the park. After they parted, the witness and the plaintiff noticed that one of the dogs he had been walking had followed the defendant. When they met the defendant in the parking lot at the park, the dogs including Brady, the dog which the plaintiff had originally been walking were in the defendant's car. An argument between the plaintiff and defendant ensued which resulted in the plaintiff terminating the defendant's employment. At that time the defendant stated that the plaintiff abused dogs (" like kicking dogs and using the choke collars"). These statements might have been overheard by another dog walker " and some other lady."
After the defendant was terminated in July 2014, she frequently saw him walking as many as five dogs in Mianus River Park and saw his car in the parking lot at that park and the parking lots of other parks. She testified that in the early winter of 2014-15, she was with the plaintiff and saw the defendant in Mianus River Park and heard him state: 1. that the plaintiff hires convicted felons as dog walkers; 2. that the plaintiff uses cruel methods to control and train dogs including choke collars and kicking dogs; 3. that the plaintiff places dogs in cars with darkened windows. These statements were overheard by one other dog walker in the park who was a competitor of the plaintiff.
She testified that some of the pictures on Exhibit 6 were of dogs owned by the plaintiff or his customers and that one of the pictures contains a partial image of the plaintiff. She testified that she had been given copies of Exhibit 2 by Carol Blood and the butler for the Harris family who were both Pet Palz customers.
The plaintiff testified that he has been in the dog walking business for the last twelve years. Prior to that time he worked in the financial services industry, but ran into " some bad luck." In addition to the defendant, he had from time to time engaged several other independent contractors to walk his customers' dogs, including his wife, Elzbieta Sotelo, the father of his sister's child, Daniel Hernandez, Didier Chambra and several others. He was in need of a dog walker when Chambra relocated to Las Vegas and he interviewed the defendant for the position. He claimed the defendant was inexperienced and " odd, " but thought he could train him.
The plaintiff testified that he never engaged anyone who did not sign a non-competition agreement. He testified that Exhibit 1 was the agreement initialed and signed by the defendant in his presence. Each of the dog walkers which the plaintiff engages is treated as an independent contractor rather than as an employee (i.e. their income is reported on IRS form 1099 rather than on form W-2). Exhibit 1 was prepared without the assistance of an attorney. The plaintiff first testified that he had found the form which he adapted for his purposes on Google. He later clarified that he had found the form, not at the Google website, but " on the Internet."
Exhibit 1 is titled " The Pet Palz" and begins " I welcome Sean Patrick Bierbower to the Pet Palz and look forward to having you join my business as an independent contractor aka Pet Palz associate ." The first page of the agreement states: " The Pet Palz understands the desire of individuals to become their own boss, to own their own business and to have unlimited earnings potential. As a Pet Palz associate you can do that in a franchise like model. I decided to expand my business because I do not have clones of myself to be everywhere. So, I need like minded individuals who can share my vision, grow my business to new horizons."
The second and third pages of the agreement required the defendant to initial each of thirty bullet points " to concur that you are in agreement with The Pet Palz." The bullet points included a variety of statements ranging from " Work Monday to Friday and weekends if needed" to " The Pet Palz frees itself of any liability if you get in a car accident while driving to and from clients or dog destinations." Each of the bullet points is initialed " SB."
The fourth page of the agreement is labeled " *Non-Compete Agreement " and states:
Working as a Pet Palz Associate you will be *Entering a non-compete agreement with The Pet Palz. That means you cannot take Pet Palz clients with you if you are terminated or decide to leave and start a similar business with your name of business name. All clients you receive and make before and during employment is a Pet Palz client.*
With the exception of clients upon entering as a Pet Palz associate names as pre-existing, all clients/members of The Pet Palz are non-transferable. In the event that the associate chooses to terminate his/her employment with the Pet Palz, there are specific restrictions with regards to opening his/her business own similar business within the Pet Palz coverage area. In addition, The Pet Palz clients/members will remain The Pet Palz clients. The associate cannot approach The Pet Palz clients to service them directly or indirectly under his/her own business. The associate will be required to sign this non-competition agreement portion of the work agreement with all these details outlined prior to the commencement of employment with The Pet Palz. This agreement will be fully enforced.
The " Pet Palz coverage area" is not defined in Exhibit 1.
At the bottom of the fourth page, the name " Sean Bierbower" is printed in ink above the date " 1/20/14." Beneath the name and the date is a signature " Sean Bierbower."
The fifth page of the agreement contains bullet points under the headings " Pet Palz Support" and " Marketing Support." The sixth page of the agreement is headed " Compensation and taxation." It lists various services which Pet Palz provides including walks, hikes and " Two Dogs Home." It indicates that revenue is to be split between Pet Palz and the associate on bases between 40/60 and 60/40, with more experienced associates receiving a higher share of revenue. The seventh and last page of the agreement concludes with the statement " Remember . . . If you are successful, I am successful and together we can grow and nurture new clients and that equals your financial success and independence. You don't have to work in an office to make an incredible living, believe me; I am doing something I love and getting paid. With all this mentioned you need to be a motivated person who can handle all types of weather, diversity of pets and client personalities. Please sign, print your name along with today's date." Beneath the statement the name and signature " Sean Bierbower" is written in ink along with the date " 1/20/2014."
Although the agreement is replete with first person singular and plural pronouns " I" " my" " me" " our" " we, " there is no indication as to the identity of the individual or entity that who or which is entering into the agreement with the defendant. The agreement bears only the two signatures purported to those of the defendant. It does not bear the signature of the plaintiff or anyone else purporting to sign on behalf of " The Pet Palz."
The plaintiff testified that on April 17, 2014, approximately three months after he engaged the defendant as a dog walker, he received a call from the defendant reporting that he had been bitten on the arm by one of the dogs he was assigned to walk. Using his cell phone, the defendant sent him a photograph of his arm showing the bite mark. (Ex. 4.) The plaintiff forwarded the photograph to the dog's owner, Rachel Khanna, who denied that her dog had bitten the defendant, claimed that the photograph showed a bite mark made by human teeth. As the result of the allegedly false accusations levied against the dog, Rachel Khanna terminated her relationship with Pet Palz. The plaintiff testified that Pet Palz had billed Khanna, $55 a week and had suffered damages of $220 a month for the loss of the customer. The plaintiff claimed that the defendant's false accusations against the innocent dog constituted tortious interference with his business relationship with Khanna under the second count of his complaint.
The plaintiff testified that, in April or May 2014, as a result of word of mouth recommendations he acquired a new customer, Rene Litt who owned a cockapoo. He assigned the customer to the defendant. After picking up the dog in the Cos Cob section of Greenwich, the defendant drove to Old Greenwich to pick up another dog prior to taking the dogs to Mianus River Park. The plaintiff received a phone call from the defendant reporting that while loading a dog into his car in Old Greenwich, the cockapoo had bolted out of the car and ran away. The plaintiff drove to Old Greenwich where he was able to find the runaway dog and retrieve him. The dog's owner was upset and disappointed to learn that her pet had been allowed to escape and ceased being a customer of Pet Palz. The plaintiff claimed that the defendant's conduct constituted tortious interference with the business relationship between Pet Palz and the dog's owner and that he was entitled to damages.
Apparently a cross between a poodle and a cocker spaniel.
In January 2014, about the time the defendant was hired, Pet Palz acquired a new customer, Amy Matto, who owned a Golden Retriever puppy, " Hunter." The dog was in need of training and the plaintiff assigned the defendant to go to the Matto home for one hour, five days a week, to play with Hunter. The play was considered part of the puppy's training. The defendant was terminated on July 9, 2014. Nevertheless, after his termination, he went to the Matto home for his regular playdate with Hunter. The defendant informed the plaintiff that he had provided that service to Matto and the invoice she was sent included the services rendered by the defendant on that date. Matto paid the invoice and the plaintiff included the defendant's share of the revenue received in his final check.
The plaintiff authenticated Exhibit 14 which was a compilation of invoices sent to Amy Matto covering the period January 13, 2014 to July 9, 2014. The first invoice refers to a dog named " Harley" and includes three entries of $35.00 each. Each of the invoices lists the plaintiff's rates for regular services including:
Nature Hikes
$35.00 1 dog
$50.00 2 dogs
$75.00 3 dogs
Boarding
$55.00 for one dog
$75.00 for two doggies
Six of the invoices refer to services rendered to a dog named " Hunter" on nearly every weekday from April 23, 2014 to July 9, 2014 at the rate $45.00 a day. Five of the invoices describe the service rendered as " Train & Exercise" and the final one describes the service as " Train and Hike."
The plaintiff testified that Exhibit 15 was an IRS form 1099 issued by Pet Palz to the defendant for the year 2014. The exhibit also includes back-up ledgers confirming the plaintiff's testimony regarding the services rendered by the defendant to Amy Matto on July 9, 2014 and the payment to defendant of his share of the revenue generated by those services. The plaintiff testified that after July 9, 2014, Amy Matto did not call upon Pet Palz for any further services.
The exhibit shows that the defendant's Social Security Number is redacted. However, there is no indication that Pet Palz employer identification number or the plaintiff's social security number were ever included on the document. The Internal Revenue Code requires the inclusion of the payer's identification information on form 1099. 26 USCS § 6041A(f).
The plaintiff testified that after he terminated the defendant he had dashcams installed on his car and his wife's. He stated that he was unable to capture images of the defendant walking dogs in Mianus River Park, because he eludes him. However, the plaintiff presented copies of photographs taken from his dashcam while driving on Stanwich Road in Greenwich near Amy Matto's residence. (Exs. 8. 9 and 10.) Each of the pictures depict a black Jeep either exiting the Matto driveway or in close proximity to that driveway. The plaintiff testified that the pictures were taken on October 20, 2016, November 22, 2016 and January 20, 2017 respectively.
The plaintiff further testified that three days after he terminated the defendant as an independent contractor he saw the defendant walking " Hunter" in Mianus River Park. When he attempted to photograph the defendant with the dog, the defendant " ducked and dived." The plaintiff claims that on another occasion when he encountered the defendant in the park the defendant stated to him; " Yeah, I stole your customer." In describing the same incident later in his testimony the plaintiff stated that the defendant held up " Hunter" and stated " Look what I've got." The plaintiff testified as to his belief that the defendant continued to service Amy Matto's dog Hunter until the date of trial.
Neither party called Amy Matto as a witness.
The plaintiff introduced into evidence screen shots he took several days before the trial of the Facebook page for CanineHealth which the defendant admittedly created. (Ex. 6.) The page indicated that it was created in June 2014 while the defendant was still engaged by the plaintiff as an independent contractor. However, it was not possible to determine what was posted to the page at the time of creation or on any particular day prior to the screen shots taken by the plaintiff in April 2017.
While the defendant admitted that he had created the page, he denied that he had posted all of the content on the page. He testified that any Facebook users can post pictures and comments on certain pages created by other users.
In addition to the alleged fake dog bite and the loss of a customer's dog, the plaintiff claimed other misconduct led to the defendant's termination as an independent contractor. These included: failing to accept assignments to walk customers' dogs on Mother's Day 2014; tardiness in keeping appointments with customers; returning dogs to customers when muddy.
The plaintiff testified that after the termination of his relationship with the defendant, he had been given copies of Exhibit 2 by two customers who had previous contact with the defendant. These were Carol Blood and the butler for the Harris family. Exhibit 2 is an updated document entitled " CanineHealth" bearing the defendant's name and a signature. It states that the author has " created a health and behavioral service to provide dogs and their owners with an unprecedented and unmatched level of services." While the document does not offer dog walking services, per se, it contains statements such as " Just like humans, dogs require a healthy balance of mental stimulation as well as physical exercise." and " Dogs were bred to work for a living and attaining a healthy amount of exercise is only half the formula for a well-balanced dog."
The first page contains a copyright notice: (© CanineHealth 2014).
On cross examination, the plaintiff testified that prior to engaging the defendant he had conducted a background check which including contact with his prior employer and the university he had attended. While the plaintiff was not satisfied with the result of the background check, he nevertheless, engaged the defendant because of the defendant's girlfriend. He further testified that when the defendant signed the Pet Palz agreement (Ex. 1) both his wife, Elzbieta Soleto and Danny Hernandez were present.
On cross examination, the plaintiff agreed that he found it unusual that Amy Matto would hire the defendant after he had lost Rene Litt's dog, since Matto and Litt were close friends. When questioned by the court concerning the bills sent to Amy Matto, the plaintiff testified that he billed her at $45 per one-hour session and credited the defendant with $30 of that amount while retaining the remaining $15. He claimed that puppies often require socialization training for up to two years, but could not adequately explain why the rates for such training were not included in any of the billing and promotional materials submitted in evidence.
The plaintiff called Daniel Hernandez as his final witness. He testified that for the last six years he had worked for Pet Palz as a dog walker under an independent contractor agreement. He knows the defendant since they were co-workers for approximately six months in 2014. On July 9, 2014, he received a call from the plaintiff asking him to come to Mianus Park. When he arrived at the park, he met the defendant who was just finishing walking a number of dogs. The defendant offered his opinion that the plaintiff was " an asshole."
At that point, Hernandez suggested that the dogs be placed in the defendant's car which was done. A few minutes later the plaintiff and his wife came to the parking lot with dogs they had been walking in the park. An argument between the plaintiff and the defendant ensued, with the plaintiff demanding that the defendant remove the customers' dogs from his car. The defendant began to comply while cursing at the plaintiff. However, Hernandez stated that the defendant threw the final dog from his car before he sped away. On cross examination, Hernandez conceded that the dog that was allegedly thrown from the car was not injured and that neither he, nor the plaintiff, reported the incident of animal cruelty to the police.
A few days after the July 9, 2014 incident, Hernandez saw the defendant in the park with five dogs including Amy Matto's dog, Hunter. The defendant was not angry with Hernandez, but suggested that he could do better on his own rather than working for the plaintiff. Several months later Hernandez noticed that several dog walker's cars parked in the parking area at Mianus River Park had yellow slips of paper placed on their windshields. Upon investigation he found the papers to be invoices prepared for Pet Palz customers whose dogs had been walked by the defendant while he was engaged by the plaintiff. (Ex. 16 and 17.) The invoices contained information regarding the fees which Pet Palz charged for various services. Hernandez turned the invoices over to the plaintiff. On cross examination, he testified that he did not see the defendant place the invoices on the vehicles. Hernandez further testified that he was present when the defendant was presented with Exhibit 1 and that he saw him sign that document.
After being recalled as a witness, the plaintiff testified that Pet Palz bills its customers by preparing invoices on yellow paper, addressed to the dog, which are then given to the dog walker to personally deliver to the dog's owner. He identified exhibits 18 and 19 as invoices he had prepared and first given to the defendant for delivery to the owners of two dogs. He further testified that those exhibits were returned to his possession by Daniel Hernandez after Hernandez returned from Mianus River Park.
After the completion of evidence the court heard oral argument from the parties. The court then directed the parties to file post-trial briefs addressing the legal issues identified in oral argument with plaintiff's brief due on May 12, 2017 and the defendant's brief due on June 9, 2017. After receiving an extension from the court, the plaintiff filed a post-trial brief on May 15, 2017. The defendant did not file a post-trial brief.
The court subsequently granted the plaintiff's motion to extend the time for filing his brief to May 15, 2017.
THE DEFENDANT'S CREDIBILITY
In his post-trial brief, the plaintiff points out many inconsistencies and contradictions in the defendant's testimony and suggests that in many instances the defendant was deliberately giving false or misleading testimony. The court agrees. Having observed the defendant's demeanor on the witness stand and his explanations of the contradictions and corrections in his testimony, the court agrees that little weight can be assigned to much of his testimony. Nevertheless, the court cannot find that the plaintiff has sustained his burden of proof with respect to any of the elements of his various claims, simply because the defendant has testified to the contrary. Our appellate courts repeatedly have stated that the disbelief of a statement of a witness or party by a fact finder is not a substitute for affirmative proof of the contrary; see, Hartford v. McKeever, 314 Conn. 255, 271-73, 101 A.3d 229 (2014); State v. McCarthy, 105 Conn.App. 596, 619, 939 A.2d 1195, cert. denied 286 Conn. 913, 944 A.2d 983 (2008); Vitale v. Kowal, 101 Conn.App. 691, 700-01, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
THE RELATIONSHIP BETWEEN THE PLAINTIFF AND DEFENDANT
The court finds that the evidence establishes that, despite the defendant's testimony to the contrary, the defendant did, in fact, sign Exhibit 1, the independent contractor agreement with the plaintiff which contained the non-competition, non-solicitation provisions which the plaintiff is seeking to enforce. The evidence shows that despite the recitations of the agreement, the relationship between the plaintiff and defendant was more akin to that of employer/employee rather than one involving the engagement of an independent contractor. In situations where the question of the status of workers is at issue for purposes of the Fair Labor Standards Act of 1938, § 3, 29 U.S.C.A. § 203(e)(1), for determining coverage under Workers' Compensation statutes, or for determining an employer responsibility to contribute the employer's share of FICA, or to pay payroll taxes funding employment compensation benefits, courts often employ the so-called " Reid factors" which originated in the Supreme Court's decision in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). Those factors are:
[1] the hiring party's right to control the manner and means by which the product is accomplished . . . [; ] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party. 490 U.S. at 751-52.
The court finds that evidence produced at trial demonstrates that an application of the Reid factors to the relationship between the plaintiff and the defendant would, most likely result in a finding that the relationship was not one involving an independent contractor, but rather that of employer/employee. The following factors weigh in favor of a employer/employee relationship. The plaintiff controlled the manner and means by which the defendant performed his duties as a dog walker; on a daily basis the plaintiff informed the defendant of which customer's dogs were to be walked, for how long and required that the dogs be walked only in a particular public park. The evidence did not show that any particular skill was required to be a dog walker. The agreement between the parties did not have a termination date and contemplated a continuing relationship. During the course of the relationship the plaintiff could and did assign additional customers and responsibilities to the defendant. The defendant had little discretion as to when and how long to work. The agreement between the parties did not allow the defendant to hire assistants to perform any of the work contemplated. The work was performed as a regular part of the plaintiff's Pet Palz business.
Several of the factors could be considered as suggesting that the defendant was an independent contractor. These include, the requirement that the defendant provide a vehicle in which the customer's dogs were transported to and from the park; the lack of employee benefits and that fact that the plaintiff issued the defendant a form 1099 rather than a form W-2. The final factor, the method of payment does not appear to favor either finding as to the defendant's status.
No Connecticut case has expressly addressed the question of whether a person who structures a relationship with those who perform work for him in a manner designed to avoid the legal responsibilities of an employer can, nevertheless, enforce non-competition and non-solicitation covenants.
Historically, covenants not to compete were viewed as contracts in restraint of trade and highly disfavored. Eventually courts developed a policy of enforcing covenants not to compete in two distinct situations. First, in connection with the sale of business. Second, in connection with an apprentice who could be legally restrained from using his former master's trade secrets to compete against him. Presently, the majority of states will enforce covenants not to compete if they are reasonable, in writing, supported by consideration and are ancillary to a valid transaction or relationship. 54A Am.Jur.2d, Monopolies, Restraints of Trade, and Unfair Trade Practices § 836 (2009).
It is clear that under Connecticut law the relationship of employer-employee will support the enforcement of a covenant not to compete, provided the terms are found to be reasonable. Robert S. Weiss & Assoc., Inc. v. Wiederlight, 208 Conn. 525 n.2, 546 A.2d 216 (1968). The enforceability of a covenant not to compete is a question of law to be decided by the court. See Hare v. McClellan, 234 Conn. 581, 589, 662 A.2d 1242 (1995).
When the relationship involves an independent contractor rather than an employee, the answer is less clear. There are no Connecticut statutes or regulations that govern non-compete agreements generally, and therefore, most non-compete agreements in Connecticut are governed by case law.
There are only two industries that have statutes in place to govern non-compete agreements: General Statutes § 31-50a governs non-compete agreements in the security guard industry, and General Statutes § 31-50b governs non-compete agreements in the broadcast industry.
A general survey of Connecticut case law reveals that a company, which employs an individual as an independent contractor, will, under some circumstances, be able to prevent that independent contractor from engaging in competition pursuant to a non-compete agreement. In Osborne v. Locke Steel Chain Co., 153 Conn. 527, 529, 218 A.2d 526 (1966), the plaintiff was the former chairman of the board of directors of the defendant company. After the plaintiff retired, the parties entered into an agreement that provided that the defendant would pay the plaintiff for the rest of his life in exchange for the plaintiff keeping himself available for consultation and advice, and not engaging with or being employed by any business that was in competition with the defendant. Id., 528-29. The plaintiff brought an action for breach of contract after the defendant stopped making payments to him. Id., 528. The court found that the agreement was valid and enforceable by both parties and reversed the trial court which had ruled that the agreement was not supported by consideration and/or was otherwise unfair to the corporate defendant. Id., 537-38.
In Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 747-48, 905 A.2d 623 (2006), the plaintiffs brought an action against the defendant alleging the company had wrongfully withheld commissions and deferred compensation after their termination. Each plaintiff had an independent contractor contract with the defendant and agreed to sell only the defendant's insurance products. Id., 750. The Supreme Court specifically found that the contracts did not require an employee's express promise not to compete, but did require a forfeiture of the employee's benefits if they engaged in competition after termination. Id., 761. The Supreme Court held that " requiring that an agent forfeit his or her interest in the plan for competing with the defendants is, for all intents and purposes, a restraint against competition . . ." Id., 768. This finding further supports that independent contractors can be bound by a non-compete agreement, which would prevent that contractor from engaging in competition.
There are also several Superior Court cases which found that independent contractors can be prevented from engaging in competition under a non-compete agreement. See Ives Bros., Inc. v. Keeney, Superior Court, judicial district of Windham, Docket No. CV-06-4004952-S, (October 27, 2009, Swords, J.) (permanent injunction and monetary damages awarded where independent contractor heating and oil service technician breached covenant not to compete); Express Courier Systems, Inc. v. Brown, Superior Court, judicial district of New Haven, Docket No. CV-06-4023011-S (December 18, 2006, Hadden, J.T.R.) (42 Conn.L.Rptr. 525, 528, ) (temporary injunction to enforce non-compete agreements granted where couriers were independent contractors); Century 21 Access America v. McGregor-McLean, Superior Court, judicial district of Fairfield, Docket No. CV-04-4000764-S (November 4, 2004, Karazin, J.) (38 Conn.L.Rptr. 205, 206, ) (temporary injunction to enforce non-compete clause granted as court found former independent contractor violated restrictive covenant); Century 21 Access America v. Lisboa, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-03-081901 (July 22, 2003, Ronan, J.) (35 Conn.L.Rptr. 272, 273, 278, ) (temporary injunction to enforce covenant not to compete granted where defendant was employed by plaintiff as independent contractor but left to work for direct competitor); but see Century 21 Access America v. Garcia, Superior Court, judicial district of Fairfield, Docket No. CV-04-4000081, (August 6, 2004, Levin, J.) (temporary injunction denied because it would have been unreasonable where independent contractor was new real estate agent, did not obtain trade secrets, and only made one sale).
Although there does not seem to be any case, statutes, or secondary materials directly on point, Connecticut case law does suggest that independent contract agreements are sometimes referred to as " employment contracts" or " employment relationships." In Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 750, the court, in providing the relevant facts of the case, stated that the " [plaintiffs] respectively began their employment relationship with the defendants . . . Each plaintiff executed a contract with the defendants in which he or she was deemed an independent contractor . . ." (Emphasis added.) In its analysis, the court then refers to " the termination of [the plaintiffs'] business relationships with the defendants, [because the plaintiffs] had engaged in conduct described in [the restrictive covenant] of their employment contracts . . ." (Emphasis added.) Id., 757-58. The court further described the plaintiffs as employees and considers their independent contracts in terms of employment: " In the present case, the contract does not require an employee's express promise not to compete after termination of employment; instead it requires a forfeiture of the employee's benefits if he or she engages in competition after termination of employment ." (Emphasis modified.) Id., 761.
At least one Appellate Court case, and a host of Superior Court cases, has referred to independent contracts as employment contracts and/or independent contractors as employees--specifically referring to independent contractors as being " employed" rather than as " contracted with." See Cooley v. Cooley, 32 Conn.App. 152, 154, 628 A.2d 608, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993) (referring to defendant working as independent contractor-salesperson as employed); Drauss v. Drauss, Superior Court, judicial district of New Haven, Docket No. FA-10-4013427-S, (June 29, 2012, McNamara, J.) (referring to wife working as independent contractor as employed); Ives Bros., Inc. v. Keeney, supra, Superior Court, (referring to independent contractor agreement as " independent employment contract" and " employment contract by which defendant remained independent contractor"); Jason Roberts, Inc. v. Administrator Unemployment Compensation, Superior Court, judicial district of New Haven, Docket No. CV-08-403233-S, (June 17, 2009, Berdon, J.T.R.), aff'd, 127 Conn.App. 780, 15 A.3d 1145 (2011) (referring to defendant working as independent contractor as employed); Century 21 Access America v. McGregor-McLean, supra, 38 Conn.L.Rptr. 206, (referring to independent contractor agreement as employment agreement); Century 21 Access America v. Lisboa, supra, 35 Conn.L.Rptr. 273, (referring to independent contractor as employee).
However, none of these cases have considered the issue of whether the " employer" wrongfully structured the relationship in order to avoid the obligations imposed on employers under various statutory enactments. In this case the plaintiff is not seeking equitable relief, simply money damages. Accordingly, the court is not required to determine whether the potentially inequitable conduct of the plaintiff bars the court from granting the requested relief.
Based on the precedents noted above, the court finds that Connecticut recognizes that an independent contractor can be held responsible for damages resulting engaging in competition under a covenant not to compete, or from the solicitation of certain customers under a non-solicitation provision. In the present case, the plaintiff " employed" the defendant as an independent contractor. The independent contract/employment agreement between the parties included a provision entitled " Non-Compete Agreement."
FIRST COUNT--BREACH OF CONTRACT
The first count alleges that the defendant breached his obligations under the Pet Palz agreement (Ex. 1) by both competing with the plaintiff and by soliciting the plaintiff's customers. The contractual basis for this claim is the " Non-Compete Agreement" set forth on page 4 of Exhibit 1. That part of the agreement is not artfully drafted. The first sentence that the defendant " will be * Entering a non-compete agreement with The Pet Palz." implying that the non-compete agreement might well be a separate document. However, the penultimate sentence on Page 4 states " The associate will be required to sign this non-compete agreement portion of the work agreement with all these details outlined prior to the commencement of employment with The Pet Palz." In addition to his signature on the last page of Exhibit 1, page 4 also contains the defendant's name, signature and the date. The evidence makes it clear that there was no separate document and that the plaintiff is relying exclusively on the provisions of Exhibit 1 in claiming that the defendant breached his contractual obligations to the plaintiff.
The second sentence of page 4 requires that, in the event of the termination of the defendant's relationship with the plaintiff, the defendant cannot take the plaintiff's customers regardless of whether the relationship is terminated by the plaintiff or the defendant. The agreement contains an exception for " pre-existing" clients which the defendant brings with him at the start of his relationship with the plaintiff. These type of restrictions are commonly referred to as " non-solicitation agreements, " although that phrase is not used in Exhibit 1. The agreement does not contain any time limitation on the restriction. Page 4 does contain a non-competition provision, which is operative only " [i]n the event the associate chooses to terminate his/her employment with The Pet Palz." In such case, Exhibit 1 vaguely states: " there are specific restrictions with regards to opening his/her business with a similar business within the Pet Palz coverage area." The Pet Palz coverage area is not defined. The non-competition portion of the agreement also states " in addition The Pet Palz clients/members will remain The Pet Palz clients. The associate cannot approach The Pet Palz clients to service them directly or indirectly under his/her own business." Despite the defendant's claim that he resigned, the evidence clearly establishes that the plaintiff and not the defendant chose to end their relationship. Accordingly, the court finds that the non-competition provision is, by its terms, inapplicable to the defendant.
The plaintiff correctly claims that the evidence shows that, following the termination of his relationship with the plaintiff, the defendant made several attempts to steal the plaintiff's customers, including telephoning at least one customer offering to walk her dog; and, on numerous occasions, walking Amy Matto's dog, Hunter.
The Supreme Court has defined five factors that a court is to evaluate when determining if a covenant not to compete is reasonable. See Robert S. Weiss & Assoc., Inc. v. Wiederlight, 208 Conn. 525 n.2, 546 A.2d 216 (1968). " The[se] five factors . . . are: (1) the length of time the restriction operates; (2) the geographical area covered; (3) the fairness of the protection accorded to the employer; (4) the extent of the restraint on the employee's opportunity to pursue his occupation; and (5) the extent of interference with the public's interests." Id. " [T]ime and geographic restrictions in a covenant not to compete are valid if they are reasonably limited and fairly protect the interests of both parties." Id. at 530.
" The five prong test . . . is disjunctive, rather than conjunctive; a finding of unreasonableness in any one of the criteria is enough to render the covenant unenforceable." (Citation omitted.) New Haven Tobacco Co. v. Perrelli, supra, 18 Conn.App. 531, 533-34, 559 A.2d 715 (1989). " 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, 368 A.2d 111 (1976). 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." (Citations omitted.) Pediatric Occupational Therapy Services, Inc. v. Wilton, supra, 37 Conn.L.Rptr. 120, .
This five-prong test was first applied by the Connecticut Supreme Court in Scott v. General Iron & Welding Co., 171 Conn. 132, 137, 368 A.2d 111 (1976).
Covenants not to compete and not to solicit fall under the broad category of restrictive covenants and, as such, non-solicitation agreements are analyzed as non-compete agreements under the five-prong test. See New Haven Tobacco Co. v. Perrelli, supra, 18 Conn.App. 533-34; see also Robert S. Weiss & Associates, Inc. v. Wiederlight, supra, 208 Conn. 533-35 (covenant that barred employee from soliciting employer's accounts or selling to employer's clients after he was terminated was reasonable); Creative Dimensions, Inc. v. Laberge, Superior court, judicial district of New Haven, Docket No. CV-11-6020991-S (May 31, 2012, Robinson, J.) (54 Conn.L.Rptr. 172, 174-75, ) (restrictive covenant containing non-compete and non-solicitation language legally unenforceable under five-prong test); Webster Ins., Inc. v. Levine, Superior Court, judicial district of New Haven, Docket No. CV-07-4026861-S, (December 21, 2007, Meadow, J.) (non-solicitation agreement barring former employee from accepting and servicing clients of previous employer not enforced as against public interest); H& R Block Eastern Tax Services, Inc. v. Elia, Superior Court, judicial district of New Haven, Docket No. CV-02-0462902-S (December 12, 2002, Radcliffe, J.) (33 Conn.L.Rptr. 520, 522-23, ) (non-solicitation and non-competition covenants determined to be reasonable and enforceable under five-prong test); Spitz, Sullivan, Wachtel & Falcetta v. Murphy, Superior Court, judicial district of Hartford, Docket No. CV-86-0322422-S (June 13, 1991, Maloney, J.) (4 Conn.L.Rptr. 613, 616-18, ) (non-solicitation agreement analyzed as non-compete agreement and found reasonable).
In his post-trial brief, the plaintiff concedes that the provisions found on Page 4 of Exhibit 1 fail to provide any temporal limitation on the restrictions on the defendant's ability to solicit the plaintiff's customers. Nevertheless, the plaintiff requests the court to enforce the agreement as drafted thus creating a perpetual restriction on the defendant's activities. In his post-trial brief, the plaintiff calculates damages in the amount of $22, 200 allegedly suffered by the plaintiff as the result of the defendant's walking Amy Matto's dog Hunter, based on the assumed life span of the dog of approximately 6 years. No actuarial evidence as to Hunter's life span was produced at trial. The court finds that a restriction of unlimited duration is patently unreasonable under the circumstances.
The plaintiff, apparently recognizing the difficulty in meeting the first prong of the five-prong test, suggests that the court invoke its power under Beit v. Beit, 135 Conn. 195, 63 A.2d 161 (1948), to " blue pencil" the agreement and limit the length of the restriction to one of reasonable duration.
APPLICATION OF THE " BLUE PENCIL" RULE
In Beit v. Beit, supra, the plaintiffs were a husband and wife who operated three stores in partnership with the husband's two brothers. Two of the stores were large grocery stores located in New London and Norwich, respectively. The third store was a smaller meat store located in Norwich. The plaintiffs sold their interests in the store to the son of one of the brothers. In connection with that sale, they signed a bill of sale in which they agreed not to operate a meat market or a grocery store in New London County for a period of thirty years. When the plaintiffs decided that they wanted to buy a grocery store in East Lyme, which was in New London County but not adjacent to either New London or Norwich, they brought an action requesting a declaratory judgment that the restrictions set forth in the bill of sale were unenforceable. The court first determined that allowing the plaintiffs to maintain their action did not violate the public policy of the state. The court then considered the decision of the trial court which found that the agreement was unreasonable and accordingly unenforceable.
The Supreme Court found that the trial court had properly held that the restrictions constituted a restraint of trade which was greater than was reasonable under the circumstances. The court considered whether to take the approach advocated by Professor Williston in his treatise on contracts and adopted by Massachusetts which involved giving effect to overly broad restraints of trade only " to the extent to which the court finds it would not be unenforceable." 135 Conn. at 204. The court rejected this approach because it did not give effect to the intention of the parties to the agreement " who, had they desired a narrower provision, should have agreed upon it." Id. The court held that it was only permissible to enforce an overly broad restrictive covenant if the terms were divisible. " A restrictive covenant which contains or may be read as containing distinct undertakings bounded by different limits of space or time, or different in subject matter, may be good as to part and bad as to part. But this does not mean that a single covenant may be artificially split up in order to pick out some part of it that can be upheld. Severance is permissible only in case of a covenant which is in effect a combination of several distinct covenants. Where the covenant is intended by the parties to be an entirety, it cannot properly be so divided by a court that it will be held good for a certain area but invalid for another; indeed . . . this would be to make an agreement for the parties into which they did not voluntarily enter." Id. at 205.
In applying the " blue pencil rule" in Connecticut, the court may only erase terms which exceed the bounds of reasonableness when the erasure leaves in place a reasonable restriction. Beit v. Beit, 15 Conn.Supp. 191, 196 (1947). Where terms of a restrictive covenant are not severable or divisible, Connecticut courts have not used the blue pencil doctrine. See Timenterial, Inc. v. Dagata, 29 Conn.Supp. 180, 185, 277 A.2d 512 (1971) (covenant not to compete in fifty-mile radius was not blue penciled because separate towns not listed); Trans-Clean Corp. v. Terrell, Superior Court, judicial district of Fairfield, Docket No. CV-97-0348039-S (March 17, 1998, Melville, J.) (21 Conn.L.Rptr. 420, 423-24, ) (sixty-mile radius restriction around plaintiff's headquarters not severable). Some employment contracts will include blue pencil provisions urging the court to use its authority to edit a restriction the court deems unreasonable. See Gartner Group, Inc. v. Mewes, Superior Court, judicial district of Stamford-Norwalk, Doc. No. CV 91 0118332 (January 3, 1992, Mottolese, J.) [5 Conn.L.Rptr. 441, ] (quoting provision of agreement providing parties' intention that court shall modify unenforceable portion). In practice, courts will not narrow an overly broad geographic term if there is no provision in the contract allowing for blue penciling. See Braman Chemical Enterprises, Inc. v. Barnes, Superior Court, judicial district of New Haven, Docket No. CV-06-4020633-S (December 12, 2006, Silbert, J.) (42 Conn.L.Rptr. 547, 550-52, ) (holding without provision providing for " blue penciling, " court will not reform overly broad non-compete agreements).
In this case, the restrictive covenant contains no provision limiting the length of the term during which the defendant is barred from soliciting the plaintiff's customers. There is no provision of the covenant which can be erased leaving an agreement with reasonable provisions in place. The court cannot, under Connecticut law, insert a reasonable time limit for the non-solicitation provision to be operative since this would be " making an agreement for the parties" in violation of the limitations of Beit, supra .
The court finds that the non-solicitation provisions of the agreement between the parties is unenforceable because of the unreasonable duration of the restriction. The court finds the issues on the first count in favor of the defendant and against the plaintiff.
SECOND COUNT--TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS
The second count of the complaint alleges that the defendant tortiously interfered with the plaintiff's " beneficial business relationships with his customers" by " engaging in behavior that he knew would cause damage to [such relationships]" and that as a result the " Plaintiff has been damaged in an amount to be determined at trial."
Our Supreme Court has set forth the elements which a plaintiff must prove to support a claim for tortious interference with business relationships. " A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendant's knowledge of that relationship, (3) the defendant's intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendant's tortious conduct." Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).
In his May 15, 2017 post-trial brief (#112.00), the plaintiff claims that the evidence shows that the defendant intentionally interfered with the plaintiff's business relationships with its customers with the intention of damaging the plaintiff's business and positioning himself to " break in" to the market for dog walking services in Greenwich. The plaintiff claims that, in pursuit of that goal, the defendant engaged in the following intentional acts during the term of his employment with the plaintiff as an independent contractor: 1) by falsely reporting that he had been bitten by a customer's dog in April 2014; 2) by allowing a dog owned by a new customer to escape from his custody and become lost; and 3) leaving copies of invoices containing the plaintiff's proprietary pricing information on the windshields of vehicles belonging to the plaintiff's competitors.
The plaintiffs claim that the bite on the defendant's arm shown on Exhibit 4 was inflicted by human rather than canine teeth is based on the plaintiff's testimony that the dog's owner pointed out to him that she thought that the marks were not consistent with those made by a dog. The dog's owner was not called as a witness and no objection was made to her hearsay statement. However, the plaintiff's claim is undermined by the fact that despite his many years of working with dogs, he found the photograph sent to him by the defendant to be sufficiently credible to forward it to the dog's owner. The image on Exhibit 4 was of such low quality that the court had difficulty recognizing it for what it purported to be. The court finds that the plaintiff failed to prove that the defendant's report of a dog bite was false.
In oral argument, the plaintiff apparently conceded that the evidence did not demonstrate that the defendant had intentionally allowed a dog to escape from his custody and that mere negligence in allowing the dog to escape could not form the basis of a claim of intentional interference with a business relationship. However, in his post-trial brief the plaintiff claims that, when taken in the context of all the evidence, it is clear that the defendant's action was intentional and part of a broader plan to wrongfully appropriate the plaintiff's business. The plaintiff invites the court to consider that context and then infer that the defendant's conduct was intentional (and designed to injure the plaintiff's business) and not merely negligent.
In support of its position, the plaintiff claims that the evidence shows that the defendant, while employed by the plaintiff as an independent contractor, asked questions regarding the operation of the business with an intent of learning how to " break in" to the Greenwich market for dog walking services. Further, the defendant created a website for " Canine Health" designed to promote the defendant as an expert in canine matters using images of dogs owned by the plaintiff's customers. Finally, the defendant's intentions are demonstrated by the fact that, following his termination he was observed walking the dog " Hunter" owned by Amy Matto, a former customer of plaintiff's.
The court does not agree. The fact that the defendant asked questions regarding the operations of the plaintiff's business is entirely consistent with the tenor of the Pet Palz Agreement (Ex. 1) which contains language strongly suggesting that the defendant's work with the plaintiff as an independent contractor was a prelude to an opportunity to operate his own dog walking business. " The Pet Palz understands the desire of individuals to become their own boss, to own their own business and to have unlimited earnings potential. As a Pet Palz associate you can do that in a franchise like model. I decided to expand my business because I do not have clones of myself to be everywhere. So, I need like minded individuals who can share my vision, grow my business to new horizons . . . The Pet Palz wants you to have the opportunity to grow into the Entrepreneurial role as opposed to jumping into the pet services business without a support system."
The screen shots from the " Canine Health" Facebook page (Ex. 6) were taken in 2017 only a few days before the trial. The text on the page is ambiguous as to whether any services are being marketed which might compete with the services offered by the plaintiff. " CanineHealth is dedicated to the idea that all dogs deserve a healthy and active life . . . CanineHealth applies extensive knowledge of modern behavioral science in combination with years of field experience to provide the highest quality health and behavior service available." It is also impossible to determine what may or may not have been on the page at any time prior to 2017.
Finally, as noted above, the evidence that the defendant was seen walking Amy Matto's dog after the termination of his relationship with the plaintiff does not establish that the defendant was implementing a long-term plan to interfere with the plaintiff's business relationships with his customers and wrongfully usurp his opportunities. Indeed, the fact that the plaintiff could produce evidence of only one customer's dog which defendant was walking after his termination suggests either the absence of such a wrongful plan or woeful ineptitude in executing the plan.
The court finds the evidence insufficient to allow the court to infer that either the defendant's allegedly fabricated dog bite report or the escape of Rene Litt's cockapoo were intentional acts by the defendant intended to injure the plaintiff's business relationship with his customers.
The plaintiff's third claim is that the defendant placed copies of invoices created by the plaintiff and containing proprietary information on the windshields of vehicles owned by the plaintiff's competitors. The evidence that the defendant placed the invoices on the windshields was entirely circumstantial. Moreover, the defendant testified that when his relationship with the plaintiff terminated he returned all Pet Palz materials to the plaintiff and denied that he had placed any materials on windshields at Mianus River Park. As noted above, the court did not find the defendant to be a credible witness in many respects. Weighing the evidence, the court finds that the plaintiff has established that it is more likely than not that the defendant was responsible for placing the invoices on the windshields.
However, the plaintiff did not produce any evidence that he suffered any loss as a result of the defendant's apparent attempt to interfere with his relationship with his customers. There was no evidence that the plaintiff's pricing information was ever communicated to the plaintiff's competitors or that the plaintiff thereby suffered a loss. In the absence of evidence of a loss the court finds the issues on the second count in favor of the defendant and against the plaintiff.
THIRD COUNT--DEFAMATION
In his third count the plaintiff alleges that the defendant " knowingly made false statements about the Plaintiff that impugned his reputation as a dog-walker . . . to third parties, including, but not limited to Plaintiff's current and former clients." (Plaintiff's Complaint ¶ ¶ 67 & 68.) It is further alleged that on " December 2, 2014, Defendant stated that Plaintiff abused dogs, took advantage of clients, and employed convicted felons, in front of witnesses, including Plaintiff's competitors, at Plaintiff's usual regular dog-walking park." (Id., ¶ 69.) The plaintiff claims that, as a result, his reputation was injured and that he suffered financial harm.
" 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 party; and (4) the plaintiff suffered injury as a result of the statement." (Internal quotation marks and citations omitted.) Cweklinsky v. Mobil Chemical, Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
In his post-trial brief, the plaintiff asserts that the plaintiff and Daniel Hernandez testified that the defendant " made several public allegations that Plaintiff abused and mistreated dogs." After reviewing its notes regarding testimony and listening to recordings of testimony made by the court monitor, the court could not find that the plaintiff testified that he had personally overheard any defamatory statements made by the defendant.
However, the plaintiff's wife and Daniel Hernandez both testified that the defendant made several allegedly defamatory statements regarding the plaintiff. These included statements made by the defendant on July 9, 2014, the date of his termination. The plaintiff's wife testified that at that time the defendant stated that the plaintiff abused dogs (" like kicking dogs and using the choke collars"). These statements might have been overheard by another dog walker " and some other lady." Hernandez testified that the defendant offered his opinion that the plaintiff was an " asshole."
The plaintiff's wife further testified that in the early winter of 2014-15, she was with the plaintiff and saw the defendant in Mianus River Park and heard him state: 1. that the plaintiff hires convicted felons as dog walkers; 2. that the plaintiff uses cruel methods to control and train dogs including choke collars and kicking dogs; 3. that the plaintiff places dogs in cars with darkened windows. She claimed that these statements were overheard by one other dog walker in the park who was a competitor of the plaintiff.
To some extent the statements attributed to the defendant are statements of opinion upon which reasonable people could differ. For example, one person may consider that use of a choke collar or a shock collar are reasonable dog training aids which do no substantial harm to the animals. Others might reasonably believe that the use of such devices are unnecessarily cruel to the animals in question and advocate for more humane training techniques. Similarly, some might believe that placing dogs in cars with darkened windows in some way harms the dog, by preventing the animal from more fully experiencing its environment during car trips. Others might believe that the use of darkened windows prevents the car in which the dogs are being transported from becoming overheated.
It could be argued that the employment of convicted felons might serve a societal interest in returning such persons to the work force and allowing them to earn honest wages. However, the evidence makes it clear that, in many instances, the plaintiff's dog walkers were provided with keys to the customer's home, to allow them to pick up and drop off dogs even in the owner's absence. Given that business model, an untrue allegation that the plaintiff employed convicted felons could easily be construed by present or potential customers (if it came to their attention) as a very negative factor. The statement that the plaintiff kicked dogs unambiguous and not reasonably subject to any benign interpretation.
The plaintiff testified that he believed that his revenues from customers were somewhat lower after the defendant's departure. He claimed the reduced revenues were directly attributable to the slanderous statements made by the defendant. He did not offer any evidence to support his opinion or to show that any reduction in revenues might have been due to the fact that, after the defendant's termination, the plaintiff had one less person engaged full time in walking his customer's dogs.
The court finds that the plaintiff did not produce any credible evidence of any actual damages which he sustained as a result of the statements made by the defendant. However, the plaintiff claims that the defendant's statements constituted slander per se, since they falsely charged the plaintiff with conduct which would adversely affect his trade or business. Proto v. Bridgeport Herald Corp., 136 Conn. 557, 72 A.2d 820 (1950); Moriarty v. Lippe, 162 Conn. 371, 294 A.2d 326 (1972). In such cases, a plaintiff is entitled to an award of general damages, even the absence of proof of special damages. DeVito v. Schwartz, 66 Conn.App. 228, 234-35, 784 A.2d 376 (2001). The court agrees and finds that, under the circumstances, an award of general damages in the amount of $500.00 is appropriate.
The court declines to award punitive damages to the plaintiff.
SUMMARY
The court finds the issues on the first and second counts for the defendant and against the plaintiff. The court finds the issue on the third count for the plaintiff and against the defendant and awards the plaintiff general damages in the amount of $500.00.
The court notes that much of the trial involved evidence offered in support of: 1) a non-competition agreement which, by its terms, was not operative when the plaintiff, rather than the defendant, terminated their relationship; 2) enforcement of a non-solicitation agreement which was not enforceable under Connecticut law because of the absence of any limitation on its duration; 3) evidence of possible negligence of the defendant in the performance of his duties as a dog walker which failed to support an inference that the defendant attempted to injure the plaintiff's business. Under these circumstances, the court orders that neither party be awarded costs.