Melvin Thompson v. Samuel M. Rizzitelli, Jr. et al. (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 164)

The plaintiff pro se litigant, Melvin Thompson, commenced the present action against the defendants, Samuel Rizzitelli, Sandy Watson, Dan Sexton, Joe Kubic, Harlow, Adams & Friedman, P.C., Elio Morgan, Law Office of Elio C.C. Morgan and The Hartford Financial Services Group, Inc. by filing a summons and complaint on February 24, 2010.¹

The present action stems from a companion case entitled Rizzitelli v. Thompson, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009384, which is active and pending.   That case was commenced on June 3, 2009 by the defendant in the present case, Rizzitelli, against the plaintiff in the present case.   The defendant in the present case, Harlow, Adams & Friedman, P.C., has represented Rizzitelli at all times in the companion case.

On December 10, 2009, Thompson filed a motion to enjoin in the companion case.   The motion to enjoin was accompanied by, inter alia, two affidavits of Sexton, dated December 3, 2009, and a settlement agreement between Thompson and Sexton, which is also dated December 3, 2009.   On January 7, 2010, Rizzitelli filed an objection to Thompson's motion to enjoin along with a third affidavit of Sexton, which is dated January 2, 2010.   Thereafter, Thompson filed the complaint in the present case, claiming, inter alia, tortious interference with contractual relations against the defendants Kubic and Harlow, Adams & Friedman, P.C.

The causes of action for tortious interference with a contract alleged in the present case regard the alleged settlement agreement proffered by the plaintiff in the companion case.   The alleged settlement agreement released Sexton from a case pending in the Federal District Court for the District of Connecticut.   The plaintiff alleges that Sexton agreed to testify as an expert witness in the companion case of Rizzitelli v. Thompson, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009384 and other litigation as consideration for the release.

The defendants, Kubic and Harlow, Adams & Friedman, P.C., filed the present motion for summary judgment and a memorandum of law in support thereof on October 25, 2010.   The defendants' motion seeks summary judgment on counts five and six of the plaintiff's complaint, which state causes of action for tortious interference with contractual relations against the defendants, Kubic and Harlow, Adams & Friedman, P.C., respectively.²  In support of their motion for summary judgment, the defendants have submitted two affidavits of Sexton, both dated December 3, 2009;  a copy of the alleged settlement agreement between Thompson and Sexton, dated December 3, 2009;  an affidavit of Sexton, dated January 2, 2010;  and, an affidavit of the defendant, Joe Kubic, dated October 18, 2010.

The plaintiff filed an objection and a memorandum of law in support thereof on November 2, 2010.   In support of his objection to the defendants' motion for summary judgment, the plaintiff submitted a copy of the alleged settlement agreement between Thompson and Sexton, dated December 3, 2009; ³  a single page, number seven, from a document signed by the defendant, Kubic, on behalf of Harlow, Adams & Friedman, P.C.;   and a copy of the January 2, 2010 Sexton affidavit.

The court heard argument on the defendants' motion at short calendar on November 29, 2010.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks, omitted.)  Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 791, 936 A.2d 625 (2007).   “The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Washington v. Blackmore, 119 Conn.App. 218, 221, 986 A.2d 356, cert. denied, 296 Conn. 903, 991 A.2d 1104 (2010).

The defendants raise two arguments in their memorandum of law in support of their motion for summary judgment.   First, the defendants argue that the material facts of the present case are uncontroverted and do not support a prima facie case for tortious interference with contractual relations against either defendant.   Alternatively, the defendants contend that they are shielded from prosecution for any acts relating to judicial proceedings by the doctrine of absolute immunity.

The plaintiff, in his memorandum in support of his objection to the defendants' motion for summary judgment, argues first that the defendants have failed to meet their burden to demonstrate the absence of a material fact.   Second, the plaintiff asserts that the defendants knowingly have filed a false affidavit in support of their motion for summary judgment.   Third, the plaintiff maintains that the defendants' alleged actions are not protected under the aegis of absolute immunity.   Lastly, the plaintiff advocates that the court should apply the doctrine of judicial estoppel to bar the defendants' motion for summary judgment.

I Tortious Interference with Contractual Relations (Counts 5 & 6)

In order to support a cause of action for tortious interference with contractual relations, the plaintiff must establish:  “(1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' 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.”  Rioux v. Barry, 283 Conn. 338, 351, 927 A.2d 304 (2007), citing Collum v. Chapin, 40 Conn.App. 449, 452, 671 A.2d 1329 (1996).

The documents submitted by both parties indicate, prima facie, that a contract does exist between Thompson and Sexton in the form of the settlement agreement.   The defendants have, however, presented evidence that refutes the plaintiff's allegations that they had knowledge of the contract.   The defendant, Kubic, avers in his affidavit that “[a]t no time did I have ‘detailed knowledge that a contract existed between the plaintiff and [Sexton] to provide expert testimony as to Derby politics, the Derby democratic town committee, Derby municipal elections and the role of the defendant Rizzitelli in them.’  “ Kubic testifies in his affidavit that he “did have some extremely limited knowledge” of the settlement agreement between Thompson and Sexton but that he “only became aware of the existence of the written settlement agreement” after the plaintiff appended it to his memorandum of law in support of his objection to the defendants' present motion for summary judgment.   Moreover, Kubic testified in his affidavit that he “was never put on notice at any time by [the plaintiff] that [Sexton] was considered to be an expert witness.”

The defendant, Kubic, also avers in his affidavit that neither he nor the defendant, Harlow, Adams & Friedman, P.C., had, at any time, contacted Sexton in order to obtain any of the three affidavits, nor had he or the defendant, Harlow, Adams & Friedman, P.C., or any of its members “contacted, communicated, or had any correspondence whatsoever in any way, shape or form with [Sexton].”   In addition, the affidavit and the pleadings show that Sexton was never disclosed as an expert in the underlying case of Rizzitell v. Thompson, Superior Court, Docket No. CV 09 5009384.   The submissions of both parties in the present case make clear the lack of knowledge on the part of the defendants of any agreement between Thompson and Sexton.   Without such knowledge, the defendants could not have possessed the requisite intent to interfere with any existing contractual relationship.

Kubic also testifies in his affidavit that he “never acted fraudulently to pursue [Sexton] because [he] never attempted to pursue [Sexton] for any reason whatsoever, and [he] could not have misrepresented any rights and responsibilities of any person or party to [Sexton]” because he lacked knowledge of Sexton's agreement with the plaintiff to testify.   This demonstrates the absence of any fraud, misrepresentation, or malicious interference on the part of the defendants.   Therefore, the defendants have offered proof that their alleged acts were not tortious.

At the summary judgment phase of a trial, after the burden shifts from the defendants, the plaintiff bears the burden to produce some evidence of a material issue of fact warranting trial or to demonstrate a genuine legal issue.   In the present case, the plaintiff has failed to support his allegations with any evidence of the defendants' improper motive or means, or that he would suffer any damages as a result of the defendants' alleged conduct.⁴

The documents submitted by the plaintiff in opposition to the defendants' motion for summary judgment are devoid of substance that would contradict the proof offered by the defendants.   Furthermore, the plaintiff's submissions fail to demonstrate an issue of material fact for trial with respect to the defendants' alleged tortious acts.   The defendants, having demonstrated both the lack of the requisite knowledge and intent, are entitled to summary judgment on both counts five and six of the plaintiff's second amended complaint.⁵

II Judicial Estoppel

The plaintiff argues that the court should, in the due exercise of its discretion, apply the doctrine of judicial estoppel in the present case.   Specifically, the plaintiff argues in his memorandum in support of his objection to the defendants' motion to dismiss that “defendants, Kubic and Harlow, Adams & Friedman, P.C., filed and made clear representations to the court that the second affidavit of defendant [Sexton] ․ was a representation of defendant Sexton's true intent as to any case involving any of the parties to this action ․ The settlement agreement at issue was made under oath by defendant [Sexton].   The [January 2, 2010] affidavit in question was made after and also under oath by defendant, [Sexton], and then used by defendants, Kubic, Harlow, Adams & Friedman, P.C. and Rizzitelli in another action and represented as the truth even though one of these sworn affidavits is a lie.   There is a clear contradiction and inconsistent positions in litigation taken by defendants Kubic and Harlow, Adams & Friedman, P.C. So much so given that two statements under oath were made that the court is urged to exercise judicial estoppel as to the summary judgment motion of defendants, Kubic and Harlow, Adams & Friedman, P.C.”

“Judicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding ․ [J]udicial estoppel serves interests different from those served by equitable estoppel, which is designed to ensure fairness in the relationship between parties ․ The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings ․

“Typically, judicial estoppel will apply if:  1) a party's later position is clearly inconsistent with its earlier position;  2) the party's former position has been adopted in some way by the court in the earlier proceeding;  and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel ․ We further limit judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain ․ Thus, courts generally will not apply the doctrine if the first statement or omission was the result of a good faith mistake ․ or an unintentional error.  (Citations omitted;  internal quotation marks omitted.)   Association Resources, Inc. v. Wall, 298 Conn. 145, 169-71, 2 A.3d 873 (2010).   Because the rule is intended to prevent improper use of judicial machinery ․ judicial estoppel is an equitable doctrine invoked by a court at its discretion.”  (Citation omitted;  internal quotation marks omitted.)   Id., 171.

The position taken by Sexton in his January 2, 2010 affidavit appears to contradict the position he took in his two affidavits of December 3, 2009 and in the alleged settlement agreement.   Moreover, the defendants have, to some degree, relied upon the settlement agreement and the January 2, 2010 affidavit in the present action and its companion, Rizzitelli v. Thompson, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009384.   Nevertheless, the defendants' reliance on either document has neither been adopted nor relied upon in any way by the court in the companion case.   Furthermore, the court is not persuaded that the defendants will reap an unfair advantage against the plaintiff by the presentation of all three of the Sexton affidavits and the settlement agreement in the present case.   The trier of fact is entitled to assess the truthfulness of Sexton's statements in reaching conclusions as to Sexton's credibility with regard to the causes of action that survive the present motion for summary judgment.   That the defendants intend to rely in good faith on a contradictory sworn statement of Sexton does not render their usage of the judicial process improper.

For the foregoing reasons, the defendants' motion for summary judgment is granted.

HILLER, J.

FOOTNOTES

FN1. On April 14, 2010, the plaintiff withdrew his complaint as against the defendant, The Hartford Financial Services Group, Inc. The plaintiff filed revised complaints on July 1, 2010 and October 12, 2010, the latter being the operative complaint for the purposes of the present motion for summary judgment..  FN1. On April 14, 2010, the plaintiff withdrew his complaint as against the defendant, The Hartford Financial Services Group, Inc. The plaintiff filed revised complaints on July 1, 2010 and October 12, 2010, the latter being the operative complaint for the purposes of the present motion for summary judgment.

FN2. Due to a clerical error, the defendants identified counts four and six of the plaintiff's complaint as stating causes of action for tortious interference with contractual relations in their motion for summary judgment.   Counts five and six of the plaintiff's second amended complaint contain those causes of action.   At oral argument, the parties agreed that the defendants' motion addresses counts five and six of the plaintiff's second amended complaint..  FN2. Due to a clerical error, the defendants identified counts four and six of the plaintiff's complaint as stating causes of action for tortious interference with contractual relations in their motion for summary judgment.   Counts five and six of the plaintiff's second amended complaint contain those causes of action.   At oral argument, the parties agreed that the defendants' motion addresses counts five and six of the plaintiff's second amended complaint.

FN3. In addition to the full contract, and presumably for emphasis, the plaintiff submitted an excerpted paragraph from the alleged settlement agreement between himself and Sexton entitled “Consideration,” which provides:  “In consideration for signing this agreement and compliance with the promises made herein, Sexton agrees to testify as a witness against Samuel Rizzitelli in this case and any other including but not limited to the case of [Rizzitelli v. Thompson, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009384], now pending in the Connecticut Superior Court.   Sexton further releases and indemnifies Mel Thompson against any and all lawsuits and damages that flow from his actions that led to the filing of the civil action captioned [Thompson v. Rizzitelli ] case no.   3:09 CV 1099 VLB. Thompson in consideration will withdraw his claims against Sexton in the matter of [Thompson v. Rizzitelli ] case no.   3:09 CV 1099 VLB without prejudice to their further pursuit in the future.   In further consideration Dan Sexton promises not to assist, help, aid or in any way give any assistance to any of the following named individuals or entities in any action at any time from now until the end of the world that is adverse or in opposition to Mel Thompson.   In further consideration Dan Sexton promises not to testify for or on behalf of any of the following persons as it relates to any and all actions including but not limited to [Thompson v. Rizzitelli ] case no.   CV 09 5009384 to and [Thompson v. Rizzitelli ] case no.   3:09 CV 1099 VLB.”.  FN3. In addition to the full contract, and presumably for emphasis, the plaintiff submitted an excerpted paragraph from the alleged settlement agreement between himself and Sexton entitled “Consideration,” which provides:  “In consideration for signing this agreement and compliance with the promises made herein, Sexton agrees to testify as a witness against Samuel Rizzitelli in this case and any other including but not limited to the case of [Rizzitelli v. Thompson, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009384], now pending in the Connecticut Superior Court.   Sexton further releases and indemnifies Mel Thompson against any and all lawsuits and damages that flow from his actions that led to the filing of the civil action captioned [Thompson v. Rizzitelli ] case no.   3:09 CV 1099 VLB. Thompson in consideration will withdraw his claims against Sexton in the matter of [Thompson v. Rizzitelli ] case no.   3:09 CV 1099 VLB without prejudice to their further pursuit in the future.   In further consideration Dan Sexton promises not to assist, help, aid or in any way give any assistance to any of the following named individuals or entities in any action at any time from now until the end of the world that is adverse or in opposition to Mel Thompson.   In further consideration Dan Sexton promises not to testify for or on behalf of any of the following persons as it relates to any and all actions including but not limited to [Thompson v. Rizzitelli ] case no.   CV 09 5009384 to and [Thompson v. Rizzitelli ] case no.   3:09 CV 1099 VLB.”

FN4. Whether Sexton will testify in the ongoing case of Rizzitelli v. Thompson, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009384, for either party, is at least speculative at present.   Furthermore, whether his testimony would be beneficial to the plaintiff in the present case cannot be known.   The plaintiff has failed, in any way, to make a showing of the loss required to state a prima facie case for tortious interference with contractual relations..  FN4. Whether Sexton will testify in the ongoing case of Rizzitelli v. Thompson, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5009384, for either party, is at least speculative at present.   Furthermore, whether his testimony would be beneficial to the plaintiff in the present case cannot be known.   The plaintiff has failed, in any way, to make a showing of the loss required to state a prima facie case for tortious interference with contractual relations.

FN5. Because the court finds that the defendants are entitled to summary judgment, the court need not address the defendants' alternative argument that they are absolutely immune from prosecution for their alleged actions..  FN5. Because the court finds that the defendants are entitled to summary judgment, the court need not address the defendants' alternative argument that they are absolutely immune from prosecution for their alleged actions.

Hiller, Arthur A., J.