Andrew Cimmino v. Maria Marcoccia et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT # 310

I

BACKGROUND AND PROCEDURAL HISTORY

On November 8, 2012, the jury rendered a verdict against Maria Marcoccia and Sally Lyddy on count two of the plaintiff's operative complaint,¹ which alleged tortious interference with contract against them.   Count two also alleged tortious interference with contract against Ellen Tiedman, but the jury rendered a verdict in favor of Tiedman on count two.   This court granted defendant Bridgeport Board of Education (school board) and Ellen Tiedman's motion for directed verdict as to counts three, four, five and six ² and instructed the jury to return verdicts accordingly.

On November 9, 2012, Marcoccia and Lyddy filed a motion to set aside the verdict against them.   The motion was argued on March 27, 2013, along with other posttrial motions.   On July 29, 2013, the motion was denied by the court, Sommer, J.

II

FACTS

The jury could have reasonably found the following facts.³  At all relevant times, unless otherwise specified, the plaintiff was employed as the principal of the Thomas Hooker Elementary School.   In 2002, while Marcoccia and Lyddy were employed by the school, Marcoccia took photographs of the plaintiff that displayed the plaintiff engaging in what is alleged to have been child and student abuse.   Sometime afterwards, the plaintiff came to believe that Marcoccia and Lyddy were misappropriating funds from an afterschool program, and made complaints to various authorities.   Subsequently, the photos were provided to various authorities and the plaintiff was investigated by the Bridgeport police and the Connecticut Department of Children and Families.   The investigations did not result in any punishment or disciplinary action against the plaintiff.

On July 31, 2009, defendant Tiedman, who was an employee at the elementary school, brought the photographs at issue to a meeting with Assistant Superintendent John DiDonato.   Marcoccia and Lyddy, who were no longer employed by the Bridgeport BOE, accompanied Tiedman to the board of education office, but they were not permitted to enter his office and DiDonato refused to speak to them.   As result of the photos and information which Tiedman provided to DiDonato, the school board conducted an investigation of incidents that occurred between 2002 and 2004.   An earlier investigation on behalf of the Bridgeport BOE of allegations of sexual harassment and inappropriate behavior toward students had resulted in administrative discipline and plaintiff entering into a Last Chance Agreement which provided inter alia, for consequences including termination of the plaintiff's employment if violated.   As a result of the investigation which followed from Ms. Tiedman's meeting with Mr. DiDonato, the school board terminated the plaintiff's employment in June of 2010.⁴  Subsequently, the plaintiff entered into a consent decree with the school board whereby he was permitted to return to work after two years, but not in elementary or middle schools, and was required to undergo sexual harassment training.   Additional facts will be set forth as necessary.

III

DISCUSSION

The court has denied the defendants' motion to set aside the verdict against them on the ground that it is not accompanied by a memorandum of law or any legal authority.   Nevertheless, in the interest of justice, the court now finds that it is required to reconsider that prior ruling.

“The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence ․ [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ․ Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion.”   (Internal quotation marks omitted.)  Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).  “[Courts] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, support the jury's verdict ․ In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable ․ In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.”   (Emphasis removed;  internal quotation marks omitted.)  Id., 704.

“[T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did ․ A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear ․ A verdict will be deemed intelligible if it clearly manifests the intent of the jury ․” (Citation omitted;  internal quotation marks omitted.)  Hall v. Bergman, 106 Conn.App. 660, 680, 943 A.2d 515 (2008), aff'd, 296 Conn. 169, 994 A.2d 666 (2010).

“Although the court has broad discretion in setting aside a verdict, its discretion is not boundless ․ [I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will.”  (Internal quotation marks omitted.)   Schettino v. Labarba, 82 Conn.App. 445, 449, 844 A.2d 923 (2004).  “Limiting that discretion ․ is the litigants' constitutional right to have issues of fact determined by a jury where there is room for a reasonable difference of opinion among fair-minded jurors.”  (Internal quotation marks omitted.)   Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998).

“A claim for tortious interference with contractual relations requires the plaintiff to 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 defendants' tortious conduct.”  (Internal quotation marks omitted.)   Appleton v. Board of Education, 254 Conn. 205, 212–13, 757 A.2d 1059 (2000).

The court will start with causation.   In this case, there was evidence that Marcoccia took the photographs of the incidents at issue.   Plaintiff himself acknowledged the behavior and events depicted in the photographs but disagreed that they were inappropriate.   As result of the photos and information which Tiedman provided to DiDonato, the school board conducted an investigation of incidents that occurred between 2002 and 2004.   Eventually, the plaintiff was terminated, at least partially as a result of the photographs taken by Marcoccia.   Although plaintiff argues that Marcoccia can be said to have caused the termination, and therefore the monetary loss, of the plaintiff, the photographs documented conduct which the Bridgeport BOE had a legal responsibility to address as plaintiff's employer and within its further responsibility to safeguard the children enrolled in its schools.   Given the remoteness of Marcoccia's conduct to the harm suffered by the plaintiff, her actions may not necessarily be sufficient to constitute the level of cause necessary to meet the legal standard of proximate cause required to establish causation for purposes of tortious interference with contract.   The case for causation with respect to Lyddy is even more tenuous.

In Rice v. Housing Authority, Superior Court, judicial district of New Haven, Docket No. CV 03 0479556 (March 27, 2009, Corradino, J.), the court addressed a similar issue.   There, the jury returned a verdict against the defendant on a tortious interference with contractual and beneficial relations claim.   The plaintiff was a former employee of a city housing authority, and the defendant was an attorney for the housing authority.   The plaintiff was terminated after a hearing at which the defendant testified and for which the defendant prepared a report.   The court held that even though the jury could have found that the defendant harbored ill will toward the plaintiff, and that defendant's report and testimony was “tendentious and misleading,” the evidence was that the plaintiff was terminated on the basis of a conviction for driving under the influence, not on the basis of the defendant's testimony and report.

Here, although the jury could have reasonably found ill will on the part of Marcoccia and Lyddy, it does not necessarily follow that they were the proximate cause of, or that they actively induced, the plaintiff's termination.   See Augustine v. Trucco, 124 Cal.App.2d 229, 245, 268 P.2d 780 (1954) (“[To plead an unjustifiable inducement of a breach of contract], [i]t is necessary to prove that [the defendant] intentionally and actively induced the breach ․ Unless the act complained of was the proximate cause of the injury, there is no liability.”  [Citations omitted;  emphasis removed;  internal quotation marks omitted] ).   It is plausible that their acts can be considered too far removed from the plaintiff's termination to have proximately caused that termination, especially considering that the school board underwent an independent investigation and that the plaintiff signed the consent decree.   Nevertheless, even assuming arguendo, that Marcoccia and Lyddy caused the plaintiff's injury, the court finds that the jury could not have reasonably concluded that their actions were tortious.

In Connecticut, it is settled that “not every act that disturbs a contract or business expectancy is actionable ․ [F]or a plaintiff to successfully prosecute such an action [he] must prove that the defendant's conduct was in fact tortious.   This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously ․ [A]n action for intentional interference with business relations ․ requires the plaintiff to plead and prove at least some improper motive or means ․ The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification ․ In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the actor.”  (Citations omitted;  internal quotation marks omitted.)  Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 805–06, 734 A.2d 112 (1999).

Our Appellate Court has also cited 4 Restatement (Second), Torts § 767 (1979) for further clarification in determining whether interference is improper.   Reyes v. Chetta, 143 Conn.App. 758, 764 (2013).   The Restatement (Second) “sets forth seven factors to consider in determining whether the interference is improper, namely:  ‘(a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference and (g) the relations between the parties.’  “ Id.

More specifically, the Restatement (Second) also limits the liability of individuals responsible for the welfare of others as follows:  “One who, charged with responsibility for the welfare of a third person, intentionally causes that person not to perform a contract or enter into a prospective contractual relation with another, does not interfere improperly with the other's relation if the actor ․ (a) does not employ wrongful means and ․ (b) acts to protect the welfare of the third person.   4 Restatement (Second), supra, § 770.   This rule applies in the case of agents acting for the protection of their principals as in an employer/employee context.”   See id., comment (b), pp. 46–47;  id., Illustration 3, p. 47;  see also Worrick v. Flora, 133 Ill.App.2d 755, 272 N.E.2d 708 (1971).

Even absent a special relationship, the Restatement (Second) further limits liability arising from an actor who merely forwards truthful information:  “One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person ․ (a) truthful information ․” 4 Restatement (Second), supra, § 772.  “The interference in this instance is clearly not improper.   This is true even though the facts are marshaled in such a way that they speak for themselves and the person to whom the information is given immediately recognizes them as a reason for breaking his contract or refusing to deal with another.   It is also true whether or not the information is requested ․” Id., comment (b), p. 50;  see also W. Prosser & W. Keeton, Torts (5th Ed.1984) § 129, p. 990 (“It seems probable ․ that the mere statement of existing facts, or assembling of information in such a way that the party persuaded recognizes it as a reason for breaking the contract is not enough ․”).

In Grasson v. Salati, Superior Court, judicial district of New Haven, Docket No. CV 10 5033540 (March 21, 2013, Wilson, J.), the court addressed a similar situation.   There, the court granted summary judgment on the plaintiff bus driver's complaint for, inter alia, tortious interference with a business expectancy.   The plaintiff in that case alleged that the defendant authorized his name to be added to a letter to the board of education, the plaintiff's employer, that wrongfully implied that the plaintiff was a pedophile.   The letter was authored by the defendant's ex-wife, and accused the plaintiff of discussing a “secret” with her daughter, which the defendant and his ex-wife found inappropriate.   The plaintiff was ultimately terminated.   The court concluded that the letter was written merely to protect the defendant's daughter from what he perceived as a threat to her safety, which constituted a proper motive.

In the present case, similarly, there was no evidence presented from which the jury could have reasonably concluded that Marcoccia and Lyddy engaged in fraud, misrepresentation, intimidation, molestation or any kind of other tortious activity that caused the plaintiff's termination.   In other words, the plaintiff failed to prove that they used any improper means to bring about his termination, even assuming that, in a legal sense, they can be said to have brought it about.   They did not even attend the meeting with Tiedman and DiDonato, and there is no evidence that, beyond the production of the photographs themselves, Marcoccia and Lyddy engaged in any tortious conduct to bring about the plaintiff's termination.   There was also no credible evidence that the BOE relied on the photographs in its decision.   Whatever Tiedman said to DiDonato cannot in any way be attributed to Marcoccia or Lyddy.   To be sure, there was evidence from which the jury could have reasonably inferred malice, in the sense of ill will from facts which showed a once friendly business relationship between these parties which went sour.   But ill will, “while so often present in wrongful acts, cannot of itself make a lawful act unlawful.   It is not the motive of a wrongdoer but the fact that, whatever his motive, he is a wrongdoer, that is material.”  Sorenson v. Chevrolet Motor Co., 171 Minn. 260, 268, 214 N.W. 754 (1927) (Stone, dissenting).

Although the presence of justification typically presents a question of fact, the court has the authority to grant a motion for directed verdict if the jury did not have facts before it from which it could reasonably conclude as it did.   As school employees, the defendants were, at least at one time, mandated reporters of child abuse pursuant to General Statutes § 17a–101(b).  Even though the defendants were not school employees at all relevant times, the prevention of child abuse, and the reporting thereof, is a strong public policy of Connecticut.   See § 17a–101(a).   To hold individuals liable for reporting suspected child abuse in this instance would contravene this state's strong public policy of encouraging reports of such abuse, even if the report was untimely and partially motivated by animosity.   The fact that the defendants may have harbored ill will toward the plaintiff for reasons pertaining to the alleged child abuse, or for other reasons, does not negate their justification.   Nor does the fact that the defendants actively attempted to persuade various authorities to bring about the permanent termination of the plaintiff render their actions tortious.   See 4 Restatement (Second), supra, § 770, comment (d), p. 47 (“Persuasion is not wrongful”).   The plaintiff has failed to provide evidence from which the jury could have reasonably concluded that the defendants were unjustified in their actions, or, in other words, that any interference on their part was improper.   The evidence shows, rather, that the reason the plaintiff was terminated was that he engaged in inappropriate conduct.⁵  This finding was made after a full investigation by the school board, the propriety of which was already affirmed by the jury, as directed by the court.⁶  See Daley v. Aetna Life & Casualty Co., supra, 249 Conn. 805 (affirming directed verdict in favor of defendant on tortious interference with employment count because plaintiff's discipline and discharge were justified).

Additionally, the jury's verdict for defendant Tiedman indicates that the jury did not believe that merely giving the photographs to DiDonato, thereby initiating the investigation that led to the plaintiff's termination, constituted tortious interference.   The jury could have believed that Marcoccia and Lyddy harbored ill will toward the plaintiff whereas Tiedman did not;  but as the court has already determined, the fact that a defendant harbors ill will or hostility toward a plaintiff does not render the defendant's actions per se improper, unjustified or tortious.   The intent behind the jury's finding of liability on the part of Marcoccia and Lyddy, who did not even meet with DiDonato, but not Tiedman, is unclear.   The court cannot find an intelligible basis for the jury's finding that Marcoccia and Lyddy's interference was tortious while Tiedman's was not.

IV

CONCLUSION

For all of the aforementioned reasons, the court vacates its prior order (# 310.10) and hereby grants the defendants' motion to set aside the verdict.

Judgment shall enter in accordance with the above.

SOMMER, J.

FOOTNOTES

FN1. The operative complaint is the plaintiff's eighth amended complaint, filed on January 26, 2012..  FN1. The operative complaint is the plaintiff's eighth amended complaint, filed on January 26, 2012.

FN2. Count three alleged intentional infliction of emotional distress against Marcoccia, Lyddy and Tiedman.   Count four alleged breach of covenant of good faith and fair dealing against the school board.   Counts five and six alleged a violation of General Statutes § 10–151 et seq. and General Statutes § 31–51q, respectively, against the school board..  FN2. Count three alleged intentional infliction of emotional distress against Marcoccia, Lyddy and Tiedman.   Count four alleged breach of covenant of good faith and fair dealing against the school board.   Counts five and six alleged a violation of General Statutes § 10–151 et seq. and General Statutes § 31–51q, respectively, against the school board.

FN3. Most of the relevant facts are undisputed, but the court will view any disputed facts in a light most favorable to sustaining the verdict.   Jackson v. Water Pollution Control Authority, 278 Conn. 692, 704, 900 A.2d 498 (2006)..  FN3. Most of the relevant facts are undisputed, but the court will view any disputed facts in a light most favorable to sustaining the verdict.   Jackson v. Water Pollution Control Authority, 278 Conn. 692, 704, 900 A.2d 498 (2006).

FN4. The plaintiff was paid during the investigation until his termination..  FN4. The plaintiff was paid during the investigation until his termination.

FN5. This could also provide a basis for the absence of proximate cause..  FN5. This could also provide a basis for the absence of proximate cause.

FN6. The directed verdict is currently on appeal to the Appellate Court..  FN6. The directed verdict is currently on appeal to the Appellate Court.

Sommer, Mary E., J.