Brown v. Otake

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STEPHEN A. BROWN v. LEO OTAKE ET AL.

(AC 37691)

Sheldon, Keller and Prescott, Js.

Argued January 5—officially released April 19, 2016

(Appeal from Superior Court, judicial district of

Hartford, Domnarski, J. [motion to strike]; Hon. Richard

M. Rittenband, judge trial referee [summary judgment

motion; judgment].)

Devin W. Janosov, with whom was Lukas J. Thomas,

for the appellant (plaintiff).

Jeffrey J. Mirman, with whom, on the brief, was

Alexa T. Millinger, for the appellees (defendants).

Opinion

PRESCOTT, J. The plaintiff, Stephen A. Brown,

appeals from the summary judgment rendered by the

trial court in favor of the defendants, Leo Otake and

Saint Francis Hospital and Medical Center (hospital).1

The plaintiff’s principal claim on appeal is that the court

improperly violated the law of the case doctrine by

granting summary judgment in favor of the defendants

on all counts of the complaint on the basis of its determi-

nation that, as a matter of law, no contract existed

between the parties, despite a prior ruling by the court

on a motion to strike that suggested that the formation

of a contract was immaterial to those counts of the

complaint that alleged negligent and intentional misrep-

resentation and tortious interference with business

expectancies (noncontractual counts).2 We disagree

and affirm the judgment of the court.

The record reveals the following undisputed facts

and procedural history relevant to our review. The

plaintiff was a plastic surgeon who practiced in Hartford

and New Britain, and had privileges at the hospital.3

The plaintiff decided to retire from practice due to

physical limitations that began to affect his ability to

perform surgeries. Hoping to find someone to purchase

his practice, he hired a broker to help him locate a

buyer.

The broker contacted Otake about the opportunity

to purchase the plaintiff’s practice in 2009. At that time,

Otake practiced plastic and reconstructive surgery at

Yale-New Haven Hospital, commuting there from his

home in Westchester County, New York. The plaintiff

and Otake began communicating directly in November,

2009, and spoke on and off throughout the first half of

2010, trying to negotiate terms for the sale of the plain-

tiff’s practice to Otake. Although Otake expressed inter-

est in purchasing the plaintiff’s practice, he was unsure

about relocating to the Hartford area and also was con-

sidering other opportunities.

The plaintiff assured Otake that the plaintiff’s prac-

tice was doing very well and that he would provide

letters introducing Otake to his patients. The plaintiff

also made clear that he was willing to stay on with the

practice in the short term, if Otake bought it, to aid

Otake in the transition. The plaintiff, who understood

that the hospital was looking to offer a two year stipend

to ensure adequate plastic surgery coverage for the

hospital, introduced Otake to members of the hospital’s

surgery department, including the chief of surgery, with

the hope that Otake and the hospital could come to a

short-term staffing arrangement that would benefit all

parties. Ultimately, however, Otake decided not to pur-

chase the plaintiff’s practice, and instead took a full-

time position that he was offered by the hospital in

August, 2010.

In May, 2011, the plaintiff commenced this action

against the defendants. According to the plaintiff’s ini-

tial complaint, he and Otake had reached an agreement

about the sale of the plaintiff’s practice, and although

the plaintiff had performed all of his obligations in

accordance with that agreement, he suffered damages

as a result of the defendants’ conduct. In particular, the

plaintiff alleged that he expended considerable time

and effort keeping his practice operational during the

transition process, and that those efforts were made in

reliance on Otake’s representation that he would buy

the practice. Among the expenses that the plaintiff

alleged he incurred in keeping his practice operational

were office expenses, salaries, overhead, rent, utilities,

supplies, and malpractice insurance. Additionally, the

plaintiff alleged that despite having introduced Otake

to the hospital as ‘‘the plastic and reconstructive sur-

geon who was purchasing his business and practice,’’

the hospital and Otake secretly had agreed that, instead

of offering Otake a two year stipend, the hospital would

hire Otake as a full-time employee to enhance the hospi-

tal’s existing plastic surgery department, which would

directly compete with the plaintiff’s practice.

The plaintiff’s initial complaint contained seven

counts. Counts one and six alleged claims against Otake

for breach of contract and unjust enrichment; count

seven alleged tortious interference with business expec-

tancies against the hospital; and counts two through

five alleged, respectively, negligent misrepresentation,

intentional misrepresentation, breach of the duty of

good faith and fair dealing, and fraudulent concealment

against both defendants.

On July 7, 2011, the defendants filed a joint motion

to strike all counts of the complaint for failure to set

forth sufficient facts to state a cognizable claim. The

court, Domnarski, J., rendered a decision on October

14, 2011, granting in part and denying in part the motion

to strike.

The court granted the motion to strike as to four

counts of the complaint. First, the court reasoned that

although the plaintiff had alleged in the complaint that

he and Otake had agreed in principle to a sale of the

plaintiff’s practice to Otake, the plaintiff had failed to

plead facts demonstrating that they had come to terms

about essential provisions necessary for the formation

of a contract, such as a purchase price. The court con-

cluded that this was fatal to the plaintiff’s breach of

contract count.

Second, the court determined that there was no alle-

gation in the complaint of a contractual relationship

between the plaintiff and the hospital. Because the

plaintiff had failed to plead facts establishing the exis-

tence of a contract between himself and either of the

defendants, the court concluded that the plaintiff’s

count against them for breach of the duty of good faith

and fair dealing failed to state a valid cause of action.

Third, the court concluded that the count alleging

fraudulent concealment must be stricken because Con-

necticut does not recognize an independent cause of

action for fraudulent concealment. The court, citing

Zenk-Pinter v. Henry J. Showah, DDS, P.C., Superior

Court, judicial district of Danbury, Docket No. CV-10-

6002725 (September 23, 2010) (50 Conn. L. Rptr. 689,

690), explained that ‘‘[General Statutes § 52-595] is the

codification of the common-law rule that fraudulent

concealment is an avoidance of an affirmative defense

of the statute of limitations. It gives rise to neither

an independent cause of action nor an enhancement

of damages.’’

Fourth, the court concluded that the plaintiff’s allega-

tions that his introduction of Otake to the hospital led

to the hospital’s hiring of Otake and that the plaintiff,

therefore, was entitled to compensation were legally

insufficient to state a claim against Otake for unjust

enrichment. The court reasoned: ‘‘While unjust enrich-

ment is a broad doctrine, if such behavior were legally

sufficient to state a cause of action, every person who

has recommended another for a job or spoke kindly of

them to a potential employer without receiving compen-

sation in return could survive a motion to strike on a

claim of unjust enrichment.’’

The court denied the motion to strike with respect to

the remaining three counts, concluding that the plaintiff

adequately had pleaded facts sufficient to state causes

of action sounding in negligent misrepresentation,

intentional misrepresentation, and tortious interfer-

ence. With respect to the tortious interference count,

the court suggested that its legal sufficiency did not

turn on the existence of an enforceable contract, stating

that ‘‘[although] the plaintiff has not sufficiently pleaded

breach of contract, the plaintiff has pleaded that he

was, at the very least, in negotiations with Otake to

purchase his practice and business. It was only based

on these negotiations that he introduced Otake to the

hospital. It is also alleged that he introduced Otake as

the surgeon who was buying his practice. Therefore,

the hospital is alleged to have been on notice of the

beneficial business expectancy, even if it was based on

an unenforceable contract. As previously stated, the

plaintiff has adequately pleaded that the hospital made

misrepresentations to him regarding the purpose of the

introduction. And finally, it is alleged that the hospital

secretly hired Otake to the detriment of the plaintiff in

that any potential deal for Otake to purchase his busi-

ness was destroyed when Otake was hired as a full-

time employee of the hospital. Therefore, the plaintiff

has stated a legally sufficient cause of action as to

tortious interference . . . .’’

The plaintiff filed a revised amended complaint on

November 23, 2011 (operative complaint). Although the

plaintiff did not replead those counts asserting unjust

enrichment and fraudulent concealment, he repleaded

the breach of contract count against Otake4 and also

repleaded the breach of the duty of good faith and fair

dealing count, although only against Otake. In sum, the

operative complaint contained five counts: count one

alleged breach of contract by Otake; count two alleged

negligent misrepresentation by both defendants; count

three alleged intentional misrepresentation by the

defendants; count four alleged that Otake had breached

the duty of good faith and fair dealing; and count five

asserted a claim of tortious interference with business

expectancy against the hospital. The defendants filed

an answer to the operative complaint and a special

defense alleging that the plaintiff had failed to mitigate

his damages.

On November 14, 2014, the defendants filed a motion

for summary judgment as to all five counts of the com-

plaint, asserting that there were no material facts in

dispute and that the defendants were entitled to judg-

ment as a matter of law. In support of their motion, the

defendants submitted a memorandum of law as well as

several affidavits and deposition transcripts.5 In

response, the plaintiff filed a two page opposition. He

submitted no opposing affidavits or any other documen-

tary proof, nor did he cite to any of the depositions or

other documentary evidence submitted by the defen-

dants. The court heard argument on the motion for

summary judgment on December 22, 2014.

With respect to the counts for breach of contract and

breach of the covenant of good faith and fair dealing,

the defendants argued that they had shown through

their submissions, including the plaintiff’s own deposi-

tion testimony, that there was never any meeting of the

minds between the plaintiff and Otake regarding the

sale of the plaintiff’s practice. Without a meeting of the

minds, the defendants argued that the parties had not

formed a binding contract, and, therefore, that the plain-

tiff’s claims of breach of contract and breach of the

covenant of good faith and fair dealing failed as a matter

of law. Although the defendants asserted that the lack of

a contractual relationship also was fatal to the tortious

interference count against the hospital, they also argued

that the count failed because there was nothing mali-

cious or tortious about the hospital’s offer to Otake of

a job, and, thus, the plaintiff had failed to establish the

existence of an essential element of the tort of tortious

interference. The defendants addressed the two misrep-

resentation counts together. They argued that neither

of the two alleged misrepresentations—Otake’s alleged

representation that he would purchase the plaintiff’s

practice and the hospital’s alleged representation that

it planned to offer Otake a two year stipend—were

supported by any evidence in the record. According to

the defendants, the affidavits submitted in support of

summary judgment demonstrated that although Otake

engaged in negotiations to purchase the plaintiff’s prac-

tice, he never agreed to do so, and the hospital never

represented that it would provide Otake with a stipend

in any amount and only offered Otake a position after

his negotiations with the plaintiff had ended.

In response to the defendants’ arguments, the plain-

tiff conceded that his claim for breach of contract was

not necessarily a strong one, but argued that the pur-

pose of summary judgment was not to prevent weak

cases from proceeding to trial and that whether he had

reached an enforceable oral agreement with Otake was

an issue that should be left for the jury to consider, not

decided at summary judgment. In essence, the plaintiff

seemed to argue that his allegation in the complaint

that an agreement existed was sufficient to prevent

summary judgment on both the breach of contract claim

and the claim for tortious interference, stating that if

he ‘‘prevails on the contract claim, then, obviously,

there was some business relationship between the

parties.’’6

The plaintiff offered no arguments in support of his

claims of negligent and intentional misrepresentation.

With respect to those counts, the plaintiff’s counsel

stated as follows: ‘‘Now, the other claims, misrepresen-

tation, I don’t know that there is stuff specifically in

the record to support that at this point, whether or not

there would be stuff at trial to support that, but I’m

mostly concerned with simply those two counts right

now, the breach of contract claim and the tortious inter-

ference with contractual relations. And I think both

of those are clear. I think the five points of tortious

interference are met if you allow a fact finder to deter-

mine whether there is a breach of contract claim. And

I think that’s the standard of the law, and I think that

my client should be entitled to a day in court to be able

to have a fact finder evaluate that on its merits.’’

Following argument, the court, Hon. Richard M. Rit-

tenband, judge trial referee, indicated that it would

‘‘take the papers.’’ The court later rendered a decision

granting the motion for summary judgment. The court

did not issue a written memorandum of decision

‘‘encompass[ing] its conclusion as to each claim of law

raised by the parties and the factual basis therefor.

. . .’’ Practice Book § 64-1 (a). Rather, the court’s lim-

ited analysis was included on the notice granting the

motion in its entirety: ‘‘A court may interpret a contract

as a matter of law, and the court finds that there was

clearly no meeting of the minds. The amended com-

plaint shows a purchase price of $200,000, yet [the plain-

tiff’s] deposition cites a $300,000 purchase price. The

terms of payment were not agreed upon. . . . [T]he

plaintiff’s wife and office manager stated in a deposition

that in July of 2010 her husband and the defendant,

Otake, were still negotiating. Moreover, the agreement

was conditional upon Otake obtaining a stipend from

Saint Francis, which never came to pass.’’

The plaintiff filed a motion to reargue in which he

claimed that the court appeared to have granted sum-

mary judgment on all counts solely on the basis of

its conclusion that there was no contract between the

parties. The plaintiff argued that it was not necessary

for him to show the existence of an enforceable contract

in order to sustain his claim of tortious interference

with a business expectancy, and, therefore, the court

improperly granted summary judgment on that count.

The plaintiff made no argument that summary judgment

was inappropriately granted with respect to any of the

other counts, including the two misrepresentation

counts. The defendants filed an objection to the motion

to reargue. The court sustained that objection and

denied the motion. This appeal followed.

During the pendency of the appeal, the plaintiff filed

a motion for articulation pursuant to Practice Book

§ 66-5. The plaintiff asked the court to explain how the

discussion it included on the notice granting the motion

for summary judgment applied with respect to each of

the five counts of the operative complaint, and also to

articulate the factual and legal basis for denying the

plaintiff’s motion to reargue. The trial court granted the

motion and issued a brief articulation.7

With respect to count one, alleging breach of con-

tract, the court stated: ‘‘The facts presented to the court

showed, as stated in the granting of the motion for

summary judgment, that there was no meeting of the

minds, the amended complaint shows a purchase price

of $200,000, yet [the plaintiff’s] deposition cites a

$300,000 purchase price. The terms of payment were

not agreed upon, and the plaintiff’s wife stated that her

husband and Otake were still negotiating. Finally, the

agreement was conditional upon Otake obtaining a sti-

pend from [the hospital], which never was obtained.

Therefore, there is no breach of contract.’’

Regarding count two, alleging negligent misrepresen-

tation, the court stated: ‘‘There were no facts presented

that showed negligent representation on the part of

these defendants.’’ Similarly, the court articulated as to

count three, alleging intentional misrepresentation, that

‘‘[t]here were no facts presented that any misrepresen-

tations were made, negligent or false.’’

The court articulated with respect to count four that,

because ‘‘there was no meeting of the minds and no

breach of contract, there were no facts presented that

[Otake] violated the duty of good faith [and fair

dealing].’’

With respect to count five, alleging tortious interfer-

ence, the court articulated as follows: ‘‘No facts were

presented that showed that there was any tortious inter-

ference by [the hospital]. [The hospital] had no obliga-

tion to give [Otake] a stipend, and there were no facts

presented to show that the failure by [the hospital] to

give a stipend was for the purpose of interfering with

the contract between [the plaintiff] and [Otake], which,

in fact, did not exist. One cannot interfere with some-

thing that does not exist.’’ Finally, the court explained

that it had denied the motion to reargue because ‘‘noth-

ing new was presented that had not yet been con-

sidered.’’8

Before turning to our discussion of the plaintiff’s

claims on appeal, we first set forth the well settled

legal principles that guide our review. ‘‘The fundamental

purpose of summary judgment is preventing unneces-

sary trials. . . . If a plaintiff is unable to present suffi-

cient evidence in support of an essential element of his

cause of action at trial, he cannot prevail as a matter

of law. . . . To avert these types of ill-fated cases from

advancing to trial, following adequate time for discov-

ery, a plaintiff may properly be called upon at the sum-

mary judgment stage to demonstrate that he possesses

sufficient counterevidence to raise a genuine issue of

material fact as to any, or even all, of the essential

elements of his cause of action.’’ (Citations omitted;

internal quotation marks omitted.) Stuart v. Freiberg,

316 Conn. 809, 822–23, 116 A.3d 1195 (2015).

‘‘Practice Book § [17-49] provides that summary judg-

ment shall be rendered forthwith if the pleadings, affida-

vits and any other proof submitted show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

. . . In deciding a motion for summary judgment, the

trial court must view the evidence in the light most

favorable to the nonmoving party.9 . . . The party

seeking summary judgment has the burden of showing

the absence of any genuine issue [of] material facts

which, under applicable principles of substantive law,

entitle him to a judgment as a matter of law . . . and

the party opposing such a motion must provide an evi-

dentiary foundation to demonstrate the existence of a

genuine issue of material fact.’’ (Footnote added; inter-

nal quotation marks omitted.) Barbee v. Sysco Connect-

icut, LLC, 156 Conn. App. 813, 817–18, 114 A.3d 944

(2015).

‘‘It is not enough . . . for the opposing party merely

to assert the existence of such a disputed issue. Mere

assertions of fact . . . are insufficient to establish the

existence of a material fact and, therefore, cannot refute

evidence properly presented to the court . . . . [T]ypi-

cally [d]emonstrating a genuine issue requires a show-

ing of evidentiary facts or substantial evidence outside

the pleadings from which material facts alleged in the

pleadings can be warrantably inferred.’’ (Citation omit-

ted; internal quotation marks omitted.) Rafalko v. Uni-

versity of New Haven, 129 Conn. App. 44, 49, 19 A.3d

215 (2011). Only if the defendant as the moving party

has submitted no evidentiary proof to rebut the allega-

tions in the complaint, or the proof submitted fails to

call those allegations into question, may the plaintiff

rest upon factual allegations alone. Conboy v. State, 292

Conn. 642, 651–52, 974 A.2d 669 (2009).

‘‘[I]ssue-finding, rather than issue-determination, is

the key to the procedure. . . . [T]he trial court does

not sit as the trier of fact when ruling on a motion for

summary judgment. . . . [Its] function is not to decide

issues of material fact, but rather to determine whether

any such issues exist. . . . Our review of the decision

to grant a motion for summary judgment is plenary.

. . . We therefore must decide whether the court’s con-

clusions were legally and logically correct and find sup-

port in the record.’’ (Internal quotation marks omitted.)

Barbee v. Sysco Connecticut, LLC, supra, 156 Conn.

App. 818.

The plaintiff claims that the court improperly granted

summary judgment on the entire complaint on the basis

of its determination that, as a matter of law, no contract

existed between the parties. The plaintiff contends that

in a prior ruling on the defendants’ motion to strike, a

different judge had concluded that the formation of a

contract was immaterial with respect to the noncontrac-

tual counts of the complaint alleging negligent and

intentional misrepresentation and tortious interference

with business expectancies, and, therefore, the court’s

decision to grant summary judgment on those counts

on the basis of its rationale that no contract existed

was improper and violated the law of the case doctrine.

We are not persuaded.

We clarify at the outset that the plaintiff does not

challenge the court’s summary judgment ruling with

respect to either the breach of contract count or the

count alleging breach of the covenant of good faith and

fair dealing, and his attorney conceded as much at oral

argument before this court.10 The plaintiff advances no

argument that the court’s determination that no con-

tract was ever formed between Otake and the plaintiff

provided an improper basis for granting summary judg-

ment on those counts, nor could he properly do so. See

Macomber v. Travelers Property & Casualty Corp., 261

Conn. 620, 638, 804 A.2d 180 (2002) (existence of con-

tract necessary antecedent to any claim for breach of

contract, including claim for breach of duty of good

faith and fair dealing). Rather, it is only with respect

to the noncontractual counts, those alleging negligent

misrepresentation, intentional misrepresentation, and

tortious interference with business expectancies, that

the plaintiff challenges the court’s decision to grant

summary judgment, arguing that the court’s determina-

tion that there was no meeting of the minds, and, thus,

no contract between Otake and the plaintiff, was not

a proper basis for granting summary judgment on those

counts. Before turning to a discussion of whether the

court properly granted summary judgment with respect

to each of the noncontractual counts, we briefly discuss

the law of the case doctrine and why the plaintiff’s

reliance on that doctrine is misguided in the present

case.

‘‘The application of the law of the case doctrine

involves a question of law, over which our review is

plenary. . . . The law of the case doctrine expresses

the practice of judges generally to refuse to reopen

what [already] has been decided . . . . New pleadings

intended to raise again a question of law which has

been already presented on the record and determined

adversely to the pleader are not to be favored. . . .

[When] a matter has previously been ruled [on] interloc-

utorily, the court . . . may treat that [prior] decision

as the law of the case, if it is of the opinion that the

issue was correctly decided, in the absence of some

new or overriding circumstance. . . . A judge should

hesitate to change his own rulings in a case and should

be even more reluctant to overrule those of another

judge. . . . Nevertheless, if . . . [a judge] becomes

convinced that the view of the law previously applied

by his coordinate predecessor was clearly erroneous

and would work a manifest injustice if followed, he may

apply his own judgment.’’ (Citations omitted; internal

quotation marks omitted.) Total Recycling Services of

Connecticut, Inc. v. Connecticut Oil Recycling Ser-

vices, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013).

‘‘The adoption of a different view of the law by a

judge in acting upon a motion for summary judgment

than that of his predecessor in considering such a

motion or some other pretrial motion is a common

illustration of this principle. . . . From the vantage

point of an appellate court it would hardly be sensible

to reverse a correct ruling by a second judge on the

simplistic ground that it departed from the law of the

case established by an earlier ruling. . . . In an appeal

to this court [in which] views of the law expressed by

a judge at one stage of the proceedings differ from

those of another at a different stage, the important

question is not whether there was a difference but

which view was right.’’ (Citations omitted; internal quo-

tation marks omitted.) Breen v. Phelps, 186 Conn. 86,

100, 439 A.2d 1066 (1982).

For several reasons we will explain, we are uncon-

vinced that the law of the case doctrine is applicable

under the circumstances presented. Further, even if it

were applicable, the plaintiff has failed to demonstrate

that application of the doctrine would mandate a rever-

sal of the court’s decision to grant summary judgment

in the present case.

First, it appears that the plaintiff reads far too much

into Judge Domnarski’s prior ruling. The legal issue

before Judge Domnarski in deciding the defendants’

motion to strike was whether the plaintiff had pleaded

sufficient facts in the complaint to state a proper cause

of action. The plaintiff suggests that because the court

answered that question in the affirmative with respect

to the noncontractual counts, and yet contemporane-

ously determined that the plaintiff had failed to allege

the existence of a contractual relationship essential to

stating a cause of action for breach of contract, the

court necessarily also must have decided that the exis-

tence of a contractual relationship was immaterial to

the misrepresentation and tortious interference counts.

That particular question of law, however, was not an

issue that was actually litigated by the parties or

expressly decided by Judge Domnarski in his ruling on

the motion to strike. Accordingly, Judge Rittenband’s

decision cannot be characterized as conflicting with

Judge Domnarski’s ruling on the motion to strike.11

Second, the plaintiff’s entire law of the case argument

is premised on his assumption that Judge Rittenband

granted summary judgment on all counts of the com-

plaint solely on the basis of his determination that, as

a matter of law, there was no enforceable contract

between Otake and the plaintiff. That assumption, how-

ever, is not supported by the record, as evidenced by

the court’s articulation, which the plaintiff appears to

ignore.12

Finally, the law of the case doctrine recognizes that

a trial judge may, in the exercise of its discretion, choose

to reach a contrary conclusion on an issue of law pre-

viously decided if the judge is convinced that the prior

ruling was wrong or following it would work an injus-

tice. Even if the plaintiff is correct that the law of the

case doctrine should have guided Judge Rittenband’s

summary judgment decision, the plaintiff has failed to

analyze whether and in what manner Judge Rittenband

abused his discretion in allegedly electing not to follow

Judge Domnarski’s earlier ruling.

Simply put, although the plaintiff is entitled to chal-

lenge the merits of Judge Rittenband’s decision to grant

summary judgment, he has failed to demonstrate that

the law of the case doctrine is implicated here. Having

determined that the law of the case doctrine presented

no discernible barrier to the court’s summary judgment

ruling, we turn next to whether the court properly deter-

mined that there was an absence of any genuine issue

of material fact and that the defendants were entitled

to judgment in their favor under applicable principles

of substantive law.

We first consider whether the court properly granted

summary judgment on the two misrepresentation

counts. Although the plaintiff offered no argument at

the hearing on the motion for summary judgment with

respect to those counts, stating that he was unsure

whether there was ‘‘stuff specifically in the record to

support’’ them,13 the plaintiff nonetheless now argues

on appeal that the court should have denied summary

judgment because he had alleged sufficient facts in his

complaint to support his misrepresentation claims

against each of the defendants. We conclude that the

plaintiff failed to meet his burden of production in

opposing summary judgment and that the court prop-

erly rendered judgment on both counts in favor of

the defendants.

‘‘To establish liability for negligent misrepresenta-

tion, a plaintiff must be able to demonstrate by a prepon-

derance of the evidence: (1) that the defendant made

a misrepresentation of fact (2) that the defendant knew

or should have known was false, and (3) that the plain-

tiff reasonably relied on the misrepresentation, and (4)

suffered pecuniary harm as a result.’’ (Emphasis added;

internal quotation marks omitted.) Stuart v. Freiberg,

supra, 316 Conn. 821–22. A claim of intentional misrep-

resentation14 requires the same elements as negligent

misrepresentation except that the plaintiff also must

prove that the defendant made the misrepresentation

‘‘to induce the other party to act upon it . . . .’’ (Inter-

nal quotation marks omitted.) Jaser v. Fischer, 65 Conn.

App. 349, 358, 783 A.2d 28 (2001). ‘‘Although the general

rule is that a misrepresentation must relate to an

existing or past fact, there are exceptions to this rule,

one of which is that a promise to do an act in the future,

when coupled with a present intent not to fulfill the

promise, is a false representation.’’ Paiva v. Vanech

Heights Construction Co., 159 Conn. 512, 515, 271 A.2d

69 (1970).

In the operative complaint, the plaintiff alleged two

possible representations on which to base his claims

of negligent and intentional misrepresentation—one by

Otake and one by the hospital. First, Otake allegedly

represented that he would purchase the plaintiff’s prac-

tice. Second, the hospital allegedly represented that it

intended to offer a two year stipend to a plastic surgeon

who would agree to provide coverage for the hospital.15

In their motion for summary judgment, the defendants

argued that there was no evidence that these alleged

representations were ever made, and, therefore,

because the plaintiff could not prove an essential ele-

ment of his misrepresentation counts, they were enti-

tled to judgment as a matter of law.

With respect to Otake’s alleged representation that he

would purchase the plaintiff’s practice, the defendants

submitted evidence from which it can be reasonably

inferred that no such representation was ever made. In

Otake’s affidavit, he attests that he had only engaged

in negotiations with the plaintiff; he never agreed to

buy the plaintiff’s practice. He claims that he did not

receive the financial information from the plaintiff nec-

essary to make such a preliminary decision until July,

2010, after which he had no further contact with the

plaintiff. This fact was supported by the testimony of

the plaintiff’s wife in her deposition that, on July 17,

2010, she had provided Otake with detailed numbers

about income and the costs associated with running

the practice. The defendants also offered the deposition

testimony of the plaintiff, in which he acknowledged

that he and Otake had never agreed on any of the essen-

tial terms of a sale, including financing terms. When

asked about the allegation in the complaint that the

purchase price was to have been $200,000, the plaintiff

testified that he believed the price was actually

$300,000. The plaintiff’s wife confirmed in her deposi-

tion that the parties were still in negotiation as of July,

2010. The plaintiff offered no evidence to rebut the

evidence submitted by the defendants and simply

directed the court to the allegations in his complaint.

For example, he failed to submit his own counteraffida-

vit or any deposition transcript evidencing when Otake

allegedly had made this representation.

Similarly, the defendants presented evidence negat-

ing the allegation that the hospital had made a misrepre-

sentation about its intention to provide Otake with a

two year stipend, something that the plaintiff and Otake

had agreed would be necessary in order to make the

purchase of the plaintiff’s practice a viable opportunity

for Otake. According to the affidavits that the defen-

dants submitted from various hospital agents, before it

could even consider offering Otake a stipend, the hospi-

tal would have had to complete a study, something

that was never done. Carolyn Martindale, the hospital’s

former director of business development, testified that

there was no reason to offer a stipend until there was an

understanding between the plaintiff and Otake, which

never materialized. Again, the plaintiff offered no evi-

dence of his own necessary to create a genuine dispute

about the existence of this representation by the

hospital.

According to the court’s articulation, summary judg-

ment was warranted on the negligent misrepresentation

count because ‘‘[t]here were no facts presented that

showed negligent representation on the part of these

defendants.’’ With respect to the count alleging inten-

tional misrepresentation, the court articulated that it

granted summary judgment because ‘‘[t]here were no

facts presented that any misrepresentations were made,

negligent or false.’’ On the basis of our review of the

record, including the arguments of the parties at sum-

mary judgment, we construe the court’s ruling as hold-

ing that the plaintiff failed to present any evidence

rebutting the proof submitted by the defendants show-

ing that the representations on which the plaintiff relies

as misrepresentations were never made, thereby estab-

lishing a lack of a genuine issue of material fact on an

essential element necessary to prevail at trial on either

misrepresentation count. That conclusion is legally and

logically correct, and supported by the record. Once

the defendants presented evidence demonstrating the

lack of a genuine issue of material fact regarding the

existence of a misrepresentation of fact, the evidentiary

burden shifted to the plaintiff, and he could no longer

rely solely upon the allegations in his complaint. To

survive summary judgment, the plaintiff needed to mar-

shal some evidence countering that submitted by the

defendants, and it was not the court’s responsibility to

search the evidentiary record provided by the moving

party on his behalf. Having failed to present any evi-

dence himself or to reference any portion of the evi-

dence submitted by the defendants, the plaintiff failed

to meet his burden. Accordingly, we conclude that the

court properly granted summary judgment on the mis-

representation counts as a matter of law.

We turn next to the plaintiff’s argument that the court

improperly granted summary judgment in favor of the

hospital on his claim of tortious interference with busi-

ness expectancies.

‘‘It is well established that the elements of a claim

for tortious interference with business expectancies

are: (1) a business relationship between the plaintiff

and another party; (2) the defendant’s intentional inter-

ference with the business relationship while knowing

of the relationship; and (3) as a result of the interfer-

ence, the plaintiff suffers actual loss.’’ (Internal quota-

tion marks omitted.) American Diamond Exchange,

Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 976 (2011).

‘‘The plaintiff need not prove that the defendant caused

the breach of an actual contract; proof of interference

with even an unenforceable promise is enough. . . . A

cause of action for tortious interference with a business

expectancy requires proof that the defendant was guilty

of fraud, misrepresentation, intimidation or molestation

. . . or that the defendant acted maliciously. . . . It is

also true, however, that not every act that disturbs a

contract or business expectancy is actionable. . . . A

defendant is guilty of tortious interference if he has

engaged in improper conduct. . . . [T]he plaintiff [is

required] to plead and prove at least some improper

motive or improper means. . . .

‘‘Stated simply, to substantiate a claim of tortious

interference with a business expectancy, there must be

evidence that the interference resulted from the defen-

dant’s commission of a tort.’’ (Citations omitted; inter-

nal quotation marks omitted.) Biro v. Hirsch, 62 Conn.

App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908,

772 A.2d 601 (2001); see Kopperl v. Bain, 23 F. Supp.

3d 97, 110 (D. Conn. 2014) (‘‘[c]entral to [a claim of

tortious interference with business expectancies] is the

requirement that to be actionable, the interference com-

plained of must be tortious’’ [emphasis in original]).16

In the present case, except for the plaintiff’s bald

allegations in his complaint, there is nothing in the

record indicating that the hospital acted fraudulently or

with malice when it offered Otake a full-time position,

despite having knowledge of the negotiations between

Otake and the plaintiff regarding the sale of the plain-

tiff’s practice. The defendants presented evidence in

support of summary judgment that the hospital and

Otake did not engage in discussions about full-time

employment for Otake until after the hospital believed

that the negotiations between the plaintiff and Otake

had ended. The defendants submitted evidence that it

was the hospital’s understanding that no agreement was

ever reached between the plaintiff and Otake.

The court, in its articulation, used language sug-

gesting that the lack of a contractual relationship

between Otake and the plaintiff was a factor in the

court’s decision to grant summary judgment. The plain-

tiff claims that this was error because an enforceable

contract is not a necessary element of a claim for tor-

tious interference. The court more generally explained,

however, that ‘‘[n]o facts were presented that showed

that there was any tortious interference by [the hospi-

tal].’’ Read as a whole, the court’s articulation of its

reasoning focuses less on the lack of a contractual

relationship between Otake and the plaintiff than on the

plaintiff’s failure to present any evidence demonstrating

tortious conduct on the part of the hospital or its

agents.17 As with the misrepresentation counts, once

the defendants presented evidence demonstrating the

lack of a genuine issue of material fact regarding an

essential element—namely, that the actions of the hos-

pital were, in some manner, tortious or done with mal-

ice—the plaintiff could not rest on the factual

allegations in the complaint and needed to provide

counteraffidavits or other evidence demonstrating a

genuine issue of material fact. Because he failed to

produce such evidence, the court properly granted sum-

mary judgment on the tortious interference count.

The judgment is affirmed.

In this opinion the other judges concurred.

1

We refer to the defendants individually by name and collectively as

the defendants.

2

The plaintiff raises additional claims that we construe as part and parcel

of his principal claim, and which we address as part of that discussion.

3

The plaintiff shared office space with another doctor, Steven Belinkie,

at a medical office building in Hartford that was owned by the hospital and

at a New Britain office building in which the plaintiff and Belinkie each had

an ownership interest.

4

The revised breach of contract count was identical to the one the court

previously had stricken except that it included the following additional

allegation: ‘‘[The plaintiff and Otake] agreed that the purchase price for the

business and practice would be $200,000.’’

5

Specifically, the defendants submitted the depositions of the plaintiff

and his wife, who was employed by the practice as both the office manager

and a nurse; an affidavit of Otake, attached to which were copies of several

correspondences between himself and agents of the hospital, including the

hospital’s letter offering Otake a position on its staff; an affidavit of Carolyn

Martindale, the hospital’s former director of business development; an affida-

vit of Joseph Bisson, the hospital’s former vice president of business develop-

ment; and an affidavit of Jeffrey Steinberg, the former director of the

hospital’s department of surgery.

6

The plaintiff in his opposition never discussed the count alleging breach

of the covenant of good faith and fair dealing during arguments nor chal-

lenged the defendants’ suggestion that the viability of that count turned,

like the breach of contract count, on the existence of a contractual agreement

between Otake and the plaintiff.

7

We note that neither party filed a motion for further articulation; see

Practice Book § 66-5; or sought review of the court’s articulation from this

court in accordance with Practice Book § 66-7.

8

Although the plaintiff asserted as a claim in his preliminary statement

of issues that the court abused its discretion by denying his motion to

reargue, he did not raise this claim in his appellate brief and, thus, we deem

it abandoned. See Thomas v. West Haven, 249 Conn. 385, 390 n.11, 734 A.2d

535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000).

9

The plaintiff claims in the present case that, in granting summary judg-

ment, the court failed to view the evidence presented in the light most

favorable to him. ‘‘The question of whether a trial court has held a party to

a less exacting standard of proof than the law requires is a legal one.

. . . Accordingly, our review is plenary.’’ (Citation omitted.) Kaczynski v.

Kaczynski, 294 Conn. 121, 126, 981 A.2d 1068 (2009). Although it is axiomatic

that ‘‘[i]n deciding a motion for summary judgment, the trial court must

view the evidence in the light most favorable to the nonmoving party . . .

[and] must view the inferences to be drawn from the facts in the light most

favorable to the party opposing the motion . . . a party may not rely on

mere speculation or conjecture as to the true nature of the facts to overcome

a motion for summary judgment.’’ (Citations omitted; internal quotation

marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.

App. 582, 591, 715 A.2d 807 (1998). In the absence of any indication that

the court applied an incorrect standard, we will assume that the court acted

correctly in accordance with the law. See In re James O., 160 Conn. App.

506, 520 n.4, 127 A.3d 375, cert. granted on other grounds, 319 Conn. 956,

125 A.3d 533 (2015).

The court never indicated at the hearing on the motion for summary

judgment or in its decision or articulation that it was applying a standard

other than one in which it viewed the evidence presented in the light most

favorable to the plaintiff as the nonmoving party. Because the plaintiff has

failed to demonstrate that the court applied a less favorable standard, we

find no merit in his claim to the contrary. Further, even if the trial court

applied an incorrect standard, this court, in conducting our own de novo

review, has viewed the evidence presented in the light most favorable to

the plaintiff and reaches the same conclusion as the trial court, namely,

that the defendants are entitled to summary judgment. Any error that the

plaintiff assigns to the trial court is, accordingly, immaterial. See Escourse

v. 100 Taylor Ave., LLC, 150 Conn. App. 819, 821 n.2, 92 A.3d 1025 (2014).

10

Accordingly, to the extent that some of the arguments made by the

plaintiff in his appellate brief can be construed as challenging the court’s

decision with respect to those contractual counts, we decline to address

their merits.

11

The plaintiff raises as an additional claim in his appellate brief that

Judge Rittenband should have given the plaintiff another opportunity to

replead because the defendants’ motion for summary judgment challenged

the legal sufficiency of the operative complaint and, thus, should have been

treated as a motion to strike. See Larobina v. McDonald, 274 Conn. 394,

400–401, 876 A.2d 522 (2005). We reject that claim, however, because it is

evident from reviewing the motion for summary judgment that the defen-

dants were not challenging the legal sufficiency of the plaintiff’s allegations,

but the lack of evidentiary proof necessary to raise a genuine issue of

material fact and avoid summary judgment. Whereas the former must be

evaluated by the court on the basis of the factual allegations made in the

complaint, the latter requires consideration of the evidentiary basis for those

allegations, something the plaintiff failed to provide.

12

There is little doubt that the court’s initial truncated explanation for its

decision to grant the defendants’ motion for summary judgment as well

as the court’s ill-advised choice not to issue a memorandum of decision

contributed to any confusion by the plaintiff regarding the basis for the

court’s decision.

13

We do not consider whether the plaintiff effectively abandoned his

misrepresentation counts because that issue was not raised by the defen-

dants on appeal and, thus, was not briefed by the parties.

14

‘‘[A]t common law, fraudulent misrepresentation and intentional misrep-

resentation are the same tort.’’ Kramer v. Petisi, 285 Conn. 674, 684 n.9,

940 A.2d 800 (2008).

15

Although neither representation appears on its face to relate to an

existing or past fact, each arguably could fall within the exception for a

promise to act in the future. Because our resolution of the plaintiff’s claim

turns on a lack of evidentiary support that either representation occurred,

we will assume without deciding that the alleged representations qualify as

actionable misrepresentations of fact.

16

As aptly explained by the District Court in Kopperl: ‘‘Our relations and

expectancies in life are constantly interfered with by others. That is an

inevitable consequence of living in a competitive world, among people whose

ambitions, hopes or purposes may match or conflict with our own. If we

could file a civil action against anyone who interfered with our contractual

relations or business expectancies, the courts would have no time to do

anything else. The saving limitation, embedded in the common law, is found

in the rule that only a tortious interference is actionable.’’ Kopperl v. Bain,

supra, 23 F. Supp. 3d 110.

17

To the extent any ambiguity remained regarding the meaning of the

court’s articulation, the plaintiff never filed a motion for review seeking an

order from this court requiring the trial court to articulate further. See

footnote 7 of this opinion.