RN v. Walnut Hill, Inc. dba Walnut Hill Convalescent Home aka Walnut Hill Health Care Center et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE THE AMENDED COMPLAINT

In response to a October 19, 2012 ruling by the Court (Sheridan, J.), granting in part and denying in part the defendants' motion to strike the original complaint in its entirety,¹ on November 7, 2012, the plaintiff filed a ten-count amended complaint alleging breach of contract (count one), breach of the covenant of good faith and fair dealing (count two), negligent misrepresentation (count three), intentional misrepresentation (count four), fraud in the inducement (count five), intentional interference with business expectancy (count six), negligent interference with contractual obligations (count seven), promissory estoppel (count eight), intentional infliction of emotional distress (count nine) and breach of implied contract (count ten).

The essential facts alleged in the amended complaint are as follows.   Walnut Hill, Inc. (Walnut Hill) is a convalescent home in New Britain, Connecticut.   The defendant, Donald Griggs, is the owner and president of Walnut Hill. The plaintiff began working at Walnut Hill as a nursing supervisor in 2005.   He also worked a second job with another employer during this time.   On May 4, 2011, Griggs offered the plaintiff two new positions, “Director of Nursing” and “Chief Financial Advisor,” on the condition that the plaintiff resign from his nursing supervisor position, as well as from his second nursing position with the other employer.   After discussions with Griggs, the plaintiff resigned from both of his jobs and accepted the new positions.   Thereafter, Griggs sent a letter to the employees of Walnut Hill announcing the plaintiff as director of nursing services and chief advisor of Walnut Care Center.   On May 6, 2011, the plaintiff reported to work to assume his new positions;  instead, he was fired without explanation.   Walnut Hill denied his request to be reinstated in his former position.

On February 5, 2013, the defendants filed a motion to strike the amended complaint in its entirety ² on the grounds that each of the ten counts of the amended complaint are legally insufficient and fail to state a claim upon which relief may be granted.   In opposition, the plaintiff argues that the motion to strike must be denied because (1) the defendants filed a previous motion to strike allegations in the original complaint which remain unchanged in the amended complaint and, therefore, cannot have a “second bite at the apple”;  and, (2) the remaining claims have been repleaded so as to allege legally sufficient causes of action.

For the following reasons, the motion to strike count nine is granted and the motion to strike counts one, two, three, four, five, six, seven, eight and ten is denied.

Counts Three, Four, Five, and Eight

As to count three (negligent misrepresentation), count four (intentional misrepresentation), count five (fraud in the inducement) and count eight (promissory estoppel), because these counts are identical to those set forth in the original complaint and have been previously determined by the court to be legally sufficient, the law of the case and the rules of practice dictate that the motion to strike these claims be denied.   See Kaithamattam v. Walnut Hill, Inc., Superior Court, judicial district of Hartford, Docket No. CV 11 6022262 (October 19, 2012, Sheridan, J.) [54 Conn. L. Rptr. 890].

Our Supreme Court has stated that 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 ․ Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that 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.”  (Internal quotation marks omitted.)  Brown & Brown, Inc v. Blumenthal, 288 Conn. 646, 656, 954 A.2d 816 (2008).  “The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked ․ A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”  (Internal quotation marks omitted.)  Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 741, 867 A.2d 851 (2005).

“In the context of a motion to strike, the doctrine applies when the motion is directed to an amended complaint that is substantially the same as a previous version thereof which was already stricken.  S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn.App. 786, 798, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).”  (Emphasis added.)   Gandolfo v. Barker, Superior Court, judicial district of Hartford, Docket No. CV 06–5003862 (March 11, 2008, Dubay, J.) (“[T]o the extent that the plaintiffs now seek to strike the counterclaims on the grounds previously decided in an underlying decision, the law of the case would be applicable”).   It is only when a court is faced with a “new pleading which adds substantive factual allegations [that] the law of the case doctrine is not applicable.”   (Emphasis added.)   Distinctive Home Builders, LLC v. Copar Construction, LLC, Superior Court, judicial district of Hartford, Docket No. CV 05–4019423 (October 24, 2006, Freed, J.T.R.).

Even where the law of the case doctrine does not apply, a party may be precluded from filing a subsequent motion to strike.  “[A]lthough the appellate courts have not ruled on the issue, in numerous cases, the judges of the Superior Court have concluded that the rules of practice preclude a party from filing successive motions to strike when the grounds raised in a later motion could have been raised in the initial motion ․ [A] second motion to strike may be appropriate in limited circumstances.   For example, when a plaintiff, pursuant to Practice Book § 10–44, files a subsequent pleading alleging new facts ․ Additional motions to strike, however, are not allowed when the grounds asserted therein could have been raised in an earlier motion.”   (Internal quotation marks omitted.)   Beckstein v. Allstate Ins. Co., Superior Court, judicial district of New London, Docket No. CV 10 6005267 (March 30, 2011, Cosgrove, J.).

For these reasons, the motion to strike counts three, four, five and eight must be denied.

As to counts one (breach of contract), two (breach of the covenant of good faith and fair dealing), six (intentional interference with business expectancy), seven (negligent interference with business expectancy), nine (intentional infliction of emotional distress) and ten (breach of implied contract), the original complaint contained similar counts and the court granted the defendants' first motion to strike those counts.   However, because the court has not previously considered the arguments as directed toward the repleaded amended complaint, the court determines each of them herein.

Count One:  Breach of Contract

In count one of the amended complaint, the plaintiff alleges that the agreement between the plaintiff and the defendants was a contract separate and apart from, or in addition to, the plaintiff's initial at will employment relationship with the defendants.   The agreement required the plaintiff to give up his then current position with the defendants, as well as his position with the second employer.   The defendants breached this agreement and, as a result, the plaintiff has suffered and will continue to suffer a loss.

The defendants argue that the plaintiff has conceded that his employment as nursing supervisor was at will and, absent some showing that the plaintiff's termination violated public policy, the amended complaint fails to state a claim upon which relief may be granted.   The plaintiff counters that the agreement he entered into with the defendants was for an exchange of positions for which he gave additional consideration in the form of resigning from his then current position with the defendants, as well as with his position with his second employer.   Therefore, the contract alleged to have been breached was separate and apart from his initial at will employment agreement and, as a result, provides basis for a colorable claim of breach of contract.

“[T]o survive a motion to strike, the allegations [of breach of an employment contract] must include ․ specific factual allegations concerning the formation and terms of the express contract [the plaintiff] claims [he] had with the defendant[s].”  (Internal quotation marks omitted.)   Avitable v. 1 Burr Road Operating Co. II, LLC, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 5013806 (June 4, 2010, Adams, J.).   The plaintiff must allege that the defendant employer “agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause.”  (Internal quotation marks omitted.)  Coelho v. Posi–Seal International, Inc., 208 Conn. 106, 112, 544 A.2d 170 (1988).

The plaintiff, in support of its objection to the defendants' motion to strike, cites SeaLand Service, Inc. v. O'Neal, 224 Va. 343, 297 S.E.2d 647 (1982), a decision from the Supreme Court of Virginia, in which the plaintiff brought a breach of contract action against her former employer in which she alleged that she had been offered a promotion, which was conditioned upon her resigning from her current position.  Id., 347.   The plaintiff resigned and, on her first day of work, was told the position was no longer available.   Id. The Virginia Supreme Court sustained the award of damages to the plaintiff, finding that the promise to the plaintiff that, if she resigned from her then current position, she would be employed in another was “an undertaking separate and apart from any contract covering the particular position involved and was not subject to any presumption of terminability at will that might have applied to such a contract.”  Id., 349.   As a result, once the plaintiff “performed her part of the bargain by resigning ․ [the defendant employer] became obligated to perform on its part and breached its obligation to her damage when it refused to employ her in the [new] position.”  Id.

While Sea–Land is not binding authority on this court, its reasoning is sound and persuasive.   This court, Sheridan, J., when granting the motion to strike the breach of contract claim in the original complaint, acknowledged that, “[i]f the plaintiff intends to fit within the narrow exception outlined in Sea–Land, the pleading needs to reflect that.”  Kaithamattam v. Walnut Hill, Inc., supra, Superior Court, Docket No. CV 11–6022262.   The plaintiff has amended the complaint to allege that, when he agreed to resign and did resign from his then current position with the defendants and the position with his second employer, it constituted an agreement with the defendants separate and apart from his original at will employment agreement.   Viewing count one of the amended complaint in a light most favorable to sustaining its legal sufficiency, the plaintiff has pleaded facts sufficient to support a claim for breach of contract.   Accordingly, the motion to strike as to count one must be denied.

Count Two:  Breach of Covenant of Good Faith and Fair Dealing

Count two of the amended complaint incorporates those facts generally alleged, as well as those alleged in count one.   In count two, the plaintiff additionally alleges that the defendants owed him a duty to act in good faith and to deal with him in a fair manner, that the defendants materially breached their obligations to the plaintiff under the agreement and, as a result, the plaintiff was damaged.

The defendants argue that an at will employee may not challenge his dismissal based on an implied covenant of good faith and fair dealing without showing that his termination violated public policy.   Therefore, because the amended complaint fails to allege that the plaintiff's termination violated public policy or any statutory or constitutional provision, it fails to state a claim for breach of the covenant of good faith and fair dealing.   The plaintiff counters that there is an implied covenant of good faith and fair dealing in every contract.

“[E]very contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.”  (Internal quotation marks omitted.)  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 125 Conn.App. 678, 693, 10 A.3d 61, 75 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011).  “[T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing.”  Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000).

As noted previously, the plaintiff alleges in the amended complaint that he entered into an agreement separate and apart from the original at will employment agreement when he agreed to resign from his then current position with the defendants, as well as his position with the second employer, in exchange for the new positions with the defendants.   Therefore, the plaintiff has pleaded facts sufficient to support a cause action for breach of covenant of good faith and fair dealing and, consequently, the defendants' motion to strike must be denied as to count two.

Count Six:  Intentional Interference with Business Expectancy

Count six of the amended complaint incorporates those facts generally alleged, as well as those alleged in all previous counts.   In count six, the plaintiff additionally alleges that the defendants made a promise to the plaintiff so as to induce him to rely on it and in order to gain a competitive advantage over the plaintiff's second employer.   By doing so, the defendants sought to interfere with the plaintiff's business expectancy, to deceive and intimidate the plaintiff, and otherwise acted fraudulently and/or with malice.

The defendants argue that count six of the amended complaint is legally insufficient because it fails to allege facts necessary to support a claim for intentional interference with a business expectancy—namely, the plaintiff fails to allege facts showing fraud, misrepresentation, intimidation or malice on the part of the defendants.   The plaintiff counters that count six of the amended complaint does include express allegations of malice and, as a result, states a legally sufficient cause of action for intentional interference with business expectancy.

In Connecticut, a successful action for intentional interference with a business expectancy (otherwise known as tortious interference with a business expectancy) “requires the satisfaction of three elements:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”  (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 90, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).  “[T]he plaintiff must plead and prove at least some improper motive or improper means ․ [F]or a plaintiff to successfully prosecute such an action it must prove that ․ the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously ․ In the context of a tortious interference claim, the term malice is meant 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 [defendants].”  (Citations omitted;  internal quotation marks omitted.)   Id. “There is no requirement that a plaintiff prove breach of an existing contract.   It is enough that the defendant interfered with a business relationship.”   Chambers v. Bridgeport Civil Service Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 10 6007882 (April 24, 2013, Radcliffe, J.) [55 Conn. L. Rptr. 935], citing Lawton v. Weiner, 91 Conn.App. 698, 706, 882 A.2d 151 (2005).

When granting the defendants' motion to strike count five of the original complaint, the court determined that the plaintiff had failed to specifically allege an “improper motive, improper means or ‘lack of legal justification’ “ for the defendants' actions.  Kaithamattam v. Walnut Hill, Inc, supra, Superior Court, Docket No. CV 11 6022262.   In the amended complaint, the plaintiff has added allegations that the defendants “made a promise to the plaintiff in order to induce [the] plaintiff to rely upon it in order to gain a competitive advantage over [the] plaintiff's second employer.”   In its objection to the motion to strike, the plaintiff argues that this added statement provides the express allegation, required by the court when granting the original motion to strike, that the defendants acted without legal justification so as to support a claim for intentional interference with business expectancy.   Construing all facts most favorably to the non-moving party, the plaintiff has alleged facts sufficient, albeit barely, to support a claim for intentional interference with business expectancy.   Accordingly, the defendants' motion to strike count six must be denied.

Count Seven:  Negligent Interference with Business Expectancy

Count seven of the amended complaint incorporates those facts generally alleged, as well as those alleged in all previous counts.   The plaintiff additionally alleges in count seven that the defendants' careless and negligent actions caused the plaintiff to be deprived of enjoying and benefitting from his contract with the defendants, as well as with his second employer.   The plaintiff further alleges that the defendants knew or should have known that their actions would cause harm to the plaintiff by denying him such business opportunities.

The defendants argue that count seven is legally insufficient because it fails to allege privity of contract, which is required to sustain a claim for negligent interference with contractual obligations.   As a result, the plaintiff has failed to allege facts sufficient to establish that a legally enforceable contract existed between the parties.   The plaintiff counters that he has alleged the existence of an oral contract between the parties and, therefore, sufficiently has alleged negligent interference with contractual obligations.

In its memorandum of decision regarding the original motion to strike, the court, Sheridan, J, relied on Judge Young's recent exploration of the “origins of the vague and obscure cause of action labeled negligent interference with contract” in United Demolition & Reclamation Statewide Restoration Co. v. Altchem Environmental Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 10 6010528 (December 6, 2011, Young, J.), and determined that, if such a cause of action is recognized in Connecticut, “it seems self-evident that interference with contractual obligation by a negligent act can only occur if a valid, legally enforceable ‘contractual obligation’ is interfered with.   Therefore, it is incumbent upon the pleader to allege facts showing such a contract.”  Kaithamattam v. Walnut Hill, Inc., supra, Superior Court, Docket No. CV 11 6022262.   The court thus determined that the plaintiff had “not alleged facts sufficient to establish that legally enforceable contractual obligations existed between him and either of the two employers referenced in the [original] complaint.”  Id.

In the amended complaint, however, the plaintiff alleges that the agreement between the plaintiff and the defendants, whereby the plaintiff would resign from his then current position with the defendants, as well as his position with the second employer, in exchange for two new positions with the defendants, constituted “a contract or undertaking separate and apart from” the original at will employment agreement.   Viewing the amended complaint in a light most favorable to sustaining its legal sufficiency, the plaintiff has alleged facts sufficient to support a finding that a legally enforceable contractual obligation existed between the parties.   Accordingly, the motion to strike as directed toward count seven must be denied.

Count Nine:  Intentional Infliction of Emotional Distress

Count nine of the amended complaint incorporates those facts generally alleged, as well as those alleged in all previous counts.   The plaintiff additionally alleges in count nine that the defendants' conduct was “extreme and outrageous” because they had no intention of performing on their promise to exchange the plaintiff's then current position for the two offered.   Additionally, the plaintiff alleges that by terminating his employment after he resigned on the promise of the new positions, “the defendants engaged in intentional conduct which created an unreasonable and foreseeable risk of causing the plaintiff emotional distress likely to lead to illness or bodily harm.”

The defendants argue that the amended complaint alleges no facts to show that the defendants' conduct was extreme and outrageous and, therefore, count nine is legally insufficient.   The plaintiff counters that the ninth count of the amended complaint sufficiently alleges that the defendants' conduct was extreme and outrageous so as to support a claim for intentional infliction of emotional distress.

“In order to prevail on a claim of intentional infliction of emotion distress, the plaintiff must prove:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Stancuna v. Schaffer, 122 Conn.App. 484, 491–92, 998 A.2d 1221 (2010).  “Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind ․ [I]t is the intent to cause injury that is the gravamen of the tort.”  (Internal quotation marks omitted.)  Id., 492.  “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.”  (Internal quotation marks omitted.)  Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).

In the present case, the plaintiff alleges that “the defendants engaged in intentional conduct which created an unreasonable and foreseeable risk of causing the plaintiff emotional distress likely to lead to illness or bodily harm.”   The plaintiff additionally alleges that “[a]s a result of the defendants' intentional infliction of emotional distress, the plaintiff has suffered damages ․” Viewing these allegations in a light most favorable to sustaining their legal sufficiency, the plaintiff arguably has alleged facts sufficient to establish the first, third and fourth prongs of a claim for intentional infliction of emotional distress.

As to the second prong, however, the plaintiff merely alleges that the “defendants had no intention of performing on their promise of exchanging [the] plaintiff's positions after inducing [the] plaintiff to resign,” which, alone, the plaintiff claims “was extreme and outrageous.”  “Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine.”  (Internal quotation marks omitted.)  Gagnon v. Housatonic Valley Tourism District Commission, supra, 92 Conn.App. 846.  “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’  “ (Internal quotation marks omitted.)  Cassotto v. Aeschliman, 130 Conn.App. 230, 234–35, 22 A.3d 697 (2011).

When determining whether the conduct alleged may possibly satisfy the “extreme and outrageous” element, it is often best to look at examples.   In Dollard v. Board of Education, 63 Conn.App. 550, 552, 774 A.2d 714 (2001), our Appellate Court found that allegations that “the defendants jointly engaged in a concerted plan and effort to force the plaintiff to resign from her position ․ [where] [t]he defendants carried out their plan by hypercritically examining every small detail of [the plaintiff's] professional and personal life” did not rise to the level of “extreme and outrageous” so as to support a cause of action for intentional infliction of emotional distress.   On the basis of this standard, the allegations asserted by the plaintiff in count nine of the amended complaint, without more, do not rise to the level of extreme and outrageous conduct necessary to state a legally cognizable claim for intentional infliction of emotional distress.   Rather, the plaintiff merely asserts a legal conclusion without facts sufficient to support such a claim.   Accordingly, the defendants' motion to strike as to count nine must be granted.

Count Ten:  Breach of Implied Contract

Count ten of the amended complaint incorporates those facts generally alleged, as well as those alleged in all previous counts.   The plaintiff additionally alleges in count ten that he resigned from his positions with the defendant and with his second employer in reliance on the express agreement with the defendants to exchange his then current positions with those offered by the defendants.   When the defendants terminated the plaintiff's employment, they breached an implied contract of employment.

The defendants argue that count ten is legally insufficient because the plaintiff fails to allege that the defendants agreed to be bound by some form of actual contractual commitment or facts showing an agreement between the parties to enter into an employment relationship, which are elements necessary to support a claim for breach of implied contract.   The plaintiff counters that the complaint, as amended, contains allegations sufficient to support a claim for breach of implied contract.

“[A] properly pleaded claim for breach of an implied contract must plead sufficient facts that the defendant agreed, either by words, conduct or action, to be bound by some form of actual contractual commitment.”  (Internal quotation marks omitted.)   Joyner v. Simkins Industries, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04–4000605 (October 18, 2006, Zoarski, J.T.R.), aff'd, 111 Conn.App. 93, 957 A.2d 882 (2008).

In the amended complaint, the plaintiff alleges that the defendant, Griggs, made an offer to the plaintiff to exchange his current position for two new positions with the defendant, Walnut Hill. The defendant, Griggs, made the offer on the condition that the plaintiff resign from his then current positions with Walnut Hill and his second employer.   In reliance upon the express agreement with the defendants for employment resulting from an exchange of positions, the plaintiff resigned from his then current positions.   While the differences between the allegations in count fifteen of the original complaint and count ten of the amended complaint are slight, nevertheless, in its amended complaint, the plaintiff has clarified the original allegations to reflect an agreement separate and distinct from the original at will employment agreement between the parties.   Viewing the allegations in a light most favorable to sustaining their legal sufficiency, the plaintiff has alleged facts sufficient to support a claim for breach of implied contract.   Accordingly, the defendants' motion to strike as to count ten must be denied.

CONCLUSION

For all of the foregoing reasons, the defendants' motion to strike count nine is hereby granted and their motion to strike counts one, two, three, four, five, six, seven, eight and ten are hereby denied.

Peck, J.

FOOTNOTES

FN1. Docket entry # 109..  FN1. Docket entry # 109.

FN2. Docket entry # 137..  FN2. Docket entry # 137.

Peck, A. Susan, J.