AFB v. Timothy M. Herbst et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 102.00

INTRODUCTION AND SUMMARY OF FACTS

On June 13, 2013, the plaintiff, AFB Construction Management of Trumbull, Inc. (AFB) initiated this action by service of process upon the defendant, Timothy M. Herbst (Herbst), First Selectman of the Town of Trumbull.   AFB's one-count complaint alleges tortious interference with a business expectancy.   Specifically, AFB alleges the following.   AFB is a Connecticut corporation engaged in construction and facilities management on behalf of municipalities in Connecticut.   Its principal place of business is in Bridgeport, and its principal shareholder and executive, Alphonso Barbarotta (Barbarotta) is a resident of Trumbull.   Since 1986, AFB has managed school facilities on behalf of the Trumbull Board of Education (the Board) pursuant to a contract between those parties, which has been continually renewed since 1986.

In addition to its work on behalf of the Town of Trumbull, AFB has been involved with a non-profit entity called Trumbull Loves Children, Inc. (TLC) since 1991.   TLC operates educational programs in facilities adjacent to, or on the grounds of, Trumbull public schools, pursuant to agreements between TLC and the Town of Trumbull and/or the Board.   Because TLC appreciated AFB's prior work on its behalf and was confident that AFB would perform timely and well, TLC's executive director, on behalf of the organization's board of directors, entered into contract negotiations with AFB relative to the expansion and building of certain facilities on the Daniels Farm School campus in Trumbull.   AFB and TLC agreed on contract terms wherein AFB would act as the owner's representative in overseeing the construction.   This work had an approximate contractual value to AFB of $100,000.

Meanwhile, AFB alleges that since attaining office, “for reasons unknown to AFB and Barbarotta,” Herbst has “engaged in a pattern of conduct, both in words and deeds, designed to diminish the reputation of AFB and Barbarotta in the Trumbull community and elsewhere.”   Herbst leveled criticisms against AFB for its handling of snow removal at the Trumbull schools in 2011 and 2013, questioned the cost of those operations, and suggested that AFB's subcontractors may have overcharged the Town with AFB and Barbarotta's knowledge and consent.   Herbst further implied that AFB and Barbarotta improperly benefitted from the hiring of certain contractors.   Additionally, Herbst criticized AFB's work in connection with renovations to Trumbull High School, and attempted to bring about the termination of AFB's contract with the Town. Herbst's “suggestions and implications are patently false.”   Despite Herbst's criticisms, AFB has received praise for its work from the Town's, and the Board's, elected and appointed officials, including the Superintendent of Schools and the Trumbull High School Building Committee.

AFB further alleges that “Herbst has a history of using his position of power to satisfy his personal animus toward people.   He openly boasts about having obtained the ‘pelts' of persons whom he perceives as having wronged him in some way and ‘getting them out of Town.’ On occasion, Herbst has expressed the view that AFB enjoys too favorable a relationship with the Town and the Board;  consistent with Herbst's practice of developing and maintaining such personal animosities, Herbst has expressed an intention to ‘get’ Barbarotta in some fashion.”

To that end, AFB alleges that in April 2013, prior to the finalization of the AFB and TLC contract, Herbst met with TLC's executive director and attorney.   In that meeting, Herbst threatened TLC that unless TLC broke off its prospective contract with AFB, Herbst would harm TLC by terminating its contracts with the Town and/or the Board.   Because Herbst held the position of First Selectman, TLC's board of directors gave his threats credence, and determined that TLC had to yield to Herbst's threats in order to maintain good relations with the Town and the Board.

In sum, AFB alleges that Herbst, Trumbull's highest-ranking elected official, knew of AFB's $100,000 business expectancy, interfered with that expectancy when he threatened to harm TLC if it contracted with AFB, and caused TLC to terminate its plan to contract with AFB. “Herbst's actions were malicious and were actuated by an improper motive, namely, his animus toward, and desire to harm, the business of AFB and its principal, Barbarotta ․ Herbst's actions were accomplished by an improper means and intimidation, namely, his threat to take steps to harm TLC, despite the fact that there was no basis to do so.”   AFB suffered harm in the form of the loss of value of the prospective contract with TLC. AFB seeks money and punitive damages, as well as costs.

On June 18, 2013, Herbst filed a motion to strike AFB's single-count complaint, on the grounds that (1) AFB has failed to allege the elements of tortious interference with a business expectancy, and (2) AFB's claim is barred by the doctrine of governmental immunity.   Herbst filed a memorandum of law in support of his motion.   On July 12, 2013, AFB filed a memorandum of law in opposition to Herbst's motion to strike.   Subsequently, on July 30, 2013, Herbst filed a reply memorandum.   The matter was argued at short calendar on September 23, 2013.

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)  Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).   “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, supra, 349.

The first issue presented by the defendant's motion to strike is whether the court should grant the defendant's motion to strike the plaintiff's one-count complaint on the ground that it is not legally sufficient.   The second issue is whether the court should grant the defendant's motion to strike on the ground that the defendant is protected from liability under the doctrine of governmental immunity.

I. Tortious Interference with a Business Expectancy

Herbst first moves to strike on the ground that AFB has not alleged sufficient facts to state a claim of tortious interference with a business expectancy.   Specifically, Herbst argues that AFB failed to allege facts to support its contention that Herbst's actions were actuated by an improper motive, and that Herbst utilized improper means.   In sum, Herbst argues that AFB's allegations are conclusory.   For its part, AFB counters that it expressly alleged that Herbst's actions were actuated by an improper motive, namely personal animus.   AFB further contends that it expressly alleged that Herbst acted through improper means by unjustifiably threatening to terminate TLC's contracts with the Town of Trumbull unless TLC refused to contract with AFB. AFB argues that both of those allegations are supported by descriptions of specific actions taken by Herbst.

“The law ․ forbids unjustifiable interferences with any man's right to pursue his lawful business or occupation and to secure to himself the earnings of his industry.   Full, fair and free competition is necessary to the economic life of a community, but under its guise, no man can by unlawful means prevent another from obtaining the fruits of his labor.”  (Internal quotation marks omitted.)  Selby v. Pelletier, 1 Conn.App. 320, 323, 472 A.2d 1285 (1984).   “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 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, 302 Conn. 494, 510, 28 A.3d 976 (2011).

In the present case, there is no dispute as to the first and third elements.   The issue before the court is whether the second element, the defendant's intentional interference with a business relationship, has been adequately pleaded.   With respect to that element, our courts have concluded that “[e]very act of interference is not ․ tortious.   In the terminology of the Restatement [ (Second) of Torts], the test is whether the actor's behavior is improper.”  (Internal quotations omitted.)  Blake v. Levy, 191 Conn. 257, 261, 464 A.2d 52 (1983).   Accordingly, the plaintiff is required “to plead and prove at least some improper motive or improper means.”  Id., 262.   The plaintiff must proffer “proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ․ or that the defendant acted maliciously.”  (Internal quotation marks omitted.)  Id., 261.   In this context, malice is defined “not in the sense of ill will, but intentional interference without justification” Downes–Patterson Corp. v. First National Supermarkets, Inc., 64 Conn.App. 417, 429, 780 A.2d 967, cert. granted on other grounds, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002).   In order to properly allege that a defendant lacked justification in the context of tortious interference with a business expectancy claim, a plaintiff must plead facts demonstrating that the defendant's actions regarding the business expectancy were not legally justified because the defendant committed a tort.   See Tax Data Solutions, LLC v. O'Brien, Superior Court, judicial district of New Haven, Docket No. CV–10–6016263–S (February 06, 2013, Zemetis, J.).   Put simply, in a successful claim for tortious interference with a business expectancy, the plaintiff “must prove that the defendant's conduct was in fact tortious.”  Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 166, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).

“It has long been considered tortious either to induce a breach of contract or to interfere with financial expectancies.”  Id., 158.   The Restatement (Second) of Torts notes that “[a] refusal to deal is one means by which a person may induce another to commit a breach of his contract with a third person.”   4 Restatement (Second), Torts, Intentional Interference with Performance of Contract by Third Person § 766, p. 13 (1979).   By way of example, the Restatement provides:  “Upon hearing of B's contract with C, A writes to B as follows:  ‘I cannot tolerate your contract with C. You must call it off.   I am sure that our continued relations will more than compensate you for any payment you may have to make to C. If you do not advise me within ten days that your contract with C is at an end, you may never expect further business from me.’   Thereupon B breaks his contract with C. A has induced the breach and is subject to liability ․” Id., p. 13–14.

The Restatement's illustration closely parallels the facts alleged in AFB's complaint.   Here, AFB alleges that Herbst leveraged his position as First Selectman when he “expressly threatened” TLC that unless it capitulated to Herbst's demands, Herbst would harm TLC by terminating TLC's contracts with the Town and/or the Board.   As a result of Herbst's conduct, which AFB categorizes as intimidation, TLC broke off contract negotiations with AFB. At this stage in the pleadings, AFB's allegation is sufficient to establish that Herbst acted improperly when he intimidated TLC and interfered with AFB's financial expectancy.   See also Wolf Colorprint, Inc. v. Marino, Superior Court, judicial district of Hartford, Docket No. CV–09–6005913–S (August 02, 2010, Domnarski, J.) (motion to strike denied where plaintiff alleged defendant threatened to stop giving work to third party if third party gave business to plaintiff).

AFB additionally alleges that Herbst's conduct was malicious.   As the court noted in Downes–Patterson Corp. v. First National Supermarkets, Inc., supra, 64 Conn.App. 429, in the context of intentional interference with a business expectancy, malice is evidenced by a defendant's intentional interference without justification.   The parties do not dispute that Herbst intentionally interfered with AFB's business expectancy.   At issue is whether Herbst's conduct was justified.   AFB alleges that it was not, because Herbst's motivation in meeting with TLC's representatives was his personal animus toward AFB and Barbarotta.¹  While Herbst argues that his interference was justified because he was obligated to act pursuant to Trumbull's town charter and certain town ordinances, this argument pertains to an issue of fact, and as such is more properly suited for summary judgment.   Cf. Jones v. O'Connell, 189 Conn. 648, 660–61, 458 A.2d 355 (1983) (Where a vendor may have a legitimate reason for not wanting to sell to a particular party, whether the refusal proceeds from those reasons rather than from a malicious intention to interfere with the party's contractual relationship to a third party is a question of fact).   For the purposes of this motion, Herbst has sufficiently alleged that Herbst acted maliciously, in that he intentionally interfered with AFB's business expectancy without legal justification.

In sum, AFB has alleged that Herbst acted with an improper motive, by improper means, and with malice, when he intimidated TLC's representatives, thereby causing TLC to terminate its contract negotiations with AFB. Therefore, it is submitted that AFB has sufficiently alleged that Herbst's conduct was tortious in fact, and AFB's claim for tortious interference with a business expectancy cannot be striken on the ground that AFB's allegations are conclusory.

II. Governmental Immunity

Herbst next moves to strike on the ground that the doctrine of governmental immunity prevents liability from attaching to him in this matter.   Specifically, Herbst argues that at all relevant times, he was acting within the scope of his duties as First Selectman pursuant to Trumbull's town charter and certain town ordinances.   AFB counters that Herbst's actions fall under an exception to the doctrine that has been carved out for malicious conduct, and Herbst is therefore not protected by governmental immunity.

As a threshold matter, the appropriateness of raising a governmental immunity argument in a motion to strike must be addressed.   Generally, “governmental immunity must be raised as a special defense in the defendant's pleadings.”   (Internal quotations omitted.)  Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d. 1188 (2006).  “Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.”  (Internal quotation marks omitted.)  Id. In paragraph 24 of its complaint, AFB states:  “During Herbst's meeting with [TLC's executive director and TLC's attorney] Herbst expressly threatened TLC that unless TLC broke off its prospective contract with AFB, Herbst would terminate TLC's contracts with the Town and/or the Board.”   It is clear on the face of AFB's complaint that the conduct complained of transpired in the context of Herbst's role as First Selectman, as Herbst's power to terminate contracts on behalf of the Town and/or the Board arose from that office.   Therefore, Herbst appropriately raised governmental immunity in his motion to strike.

The next inquiry is whether AFB's claim is rendered insufficient by Herbst's claimed governmental immunity.   Governmental immunity is governed in relevant part by General Statutes § 52–557n(b), which provides that “a political subdivision of the state shall be liable for damages to person or property caused by ․ [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties [except where those acts or omissions] constitute criminal conduct, fraud, actual malice or wilful misconduct.”   As previously discussed, AFB has sufficiently alleged that Herbst's actions were malicious.   Therefore, “it is not apparent from the face of the complaint that governmental immunity [will] bar the plaintiff's action.” ²  Tax Data Solutions, LLC v. O'Brien, supra, Superior Court, Docket No. CV–10–6016263–S.

CONCLUSION

Applying the above analysis to the facts as alleged by the plaintiff in its complaint, the court finds that AFB has alleged sufficient facts to state a claim of tortious interference with a business expectancy and Herbst is not protected from liability under the doctrine governmental immunity.   The court therefore denies the defendant Herbst's motion to strike.

SOMMER, J.

FOOTNOTES

FN1. Herbst points out that in paragraph 10 of its complaint, AFB noted that the reason for Herbst's conduct is unknown to AFB and Barbarotta, and suggests that this statement cannot rationally coexist with the assertion that personal animus served as Herbst's motivation.   However, the complaint may fairly be read as suggesting that while the reason for Herbst's animosity toward AFB and Barbarotta is unknown, his animosity exists nonetheless..  FN1. Herbst points out that in paragraph 10 of its complaint, AFB noted that the reason for Herbst's conduct is unknown to AFB and Barbarotta, and suggests that this statement cannot rationally coexist with the assertion that personal animus served as Herbst's motivation.   However, the complaint may fairly be read as suggesting that while the reason for Herbst's animosity toward AFB and Barbarotta is unknown, his animosity exists nonetheless.

FN2. Herbst urges the court to take judicial notice of certain portions of the Trumbull town charter and code of ethics, adopted as an ordinance, arguing that those documents obligated him to act as he did.   For its part, AFB contends that taking judicial notice of facts not alleged in AFB's complaint would be improper.   It is appropriate for the court to take notice of a town's charter and municipal ordinances.   Pursuant to General Statutes § 52–163, “[t]he court shall take judicial notice of ․ ordinances of any town, city or borough of this state, and ․ regulations of any board, commission, council, committee or other agency of any town, city or borough of this state.”   See also, Stamford v. Tarzia, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–11–6011048–S (October 17, 2012, Tobin, J.T.R.) [54 Conn. L. Rptr. 838] (court takes judicial notice of municipal charter on a motion to strike, pursuant to General Statutes § 52–163);  Montefuscoli v. Ryan, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–11–6008923–S (June 22, 2012, Genuario, J.) (court takes judicial notice of municipal ordinance on a motion to strike, pursuant to General Statutes § 52–163).Nevertheless, the issue of whether Herbst's actions were undertaken pursuant to those regulations, or whether he acted outside the scope of his employment as First Selectman is one of fact, and therefore it is submitted that the charter and ordinances are not relevant at this stage in the pleadings.   See Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2012) (“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court”)..  FN2. Herbst urges the court to take judicial notice of certain portions of the Trumbull town charter and code of ethics, adopted as an ordinance, arguing that those documents obligated him to act as he did.   For its part, AFB contends that taking judicial notice of facts not alleged in AFB's complaint would be improper.   It is appropriate for the court to take notice of a town's charter and municipal ordinances.   Pursuant to General Statutes § 52–163, “[t]he court shall take judicial notice of ․ ordinances of any town, city or borough of this state, and ․ regulations of any board, commission, council, committee or other agency of any town, city or borough of this state.”   See also, Stamford v. Tarzia, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–11–6011048–S (October 17, 2012, Tobin, J.T.R.) [54 Conn. L. Rptr. 838] (court takes judicial notice of municipal charter on a motion to strike, pursuant to General Statutes § 52–163);  Montefuscoli v. Ryan, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–11–6008923–S (June 22, 2012, Genuario, J.) (court takes judicial notice of municipal ordinance on a motion to strike, pursuant to General Statutes § 52–163).Nevertheless, the issue of whether Herbst's actions were undertaken pursuant to those regulations, or whether he acted outside the scope of his employment as First Selectman is one of fact, and therefore it is submitted that the charter and ordinances are not relevant at this stage in the pleadings.   See Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2012) (“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court”).

Sommer, Mary E., J.