ACKIEFI v. BLOOMFIELD, No. X01 CV 01 4005253S (Feb. 9, 2007)


John Ackiefi et al. v. Town of Bloomfield et al.

2007 Ct. Sup. 2615
No. X01 CV 01 4005253SConnecticut Superior Court Judicial District of Waterbury, Complex Litigation Docket at Waterbury
February 9, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MOTIONS FOR SUMMARY JUDGMENT
WILLIAM T. CREMINS, Judge.

PROCEDURAL BACKGROUND
By way of complaint dated February 9, 2001, the plaintiffs, John Ackiefi, Regina Associates, L.L.C. “Regina Associates”) and Adom Foods, Inc. (“Adom Foods”) (collectively “plaintiffs”) initiated this action against the defendants, the Town of Bloomfield (“Bloomfield”) and the town manager of Bloomfield, Louie Chapman, (collectively “defendants”).

On April 16, 2001, the plaintiffs filed a revised complaint in response to the defendants’ request to revise. The revised complaint sets forth the following causes of action:

1. First Count: Breach of Contract — Bloomfield;
2. Second Count: Contractual Interference — Chapman;
3. Third Count: Contractual Interference — Bloomfield;
4. Fourth Count: Defamation — Chapman;
5. Fifth Count: Defamation — Bloomfield;
6. Sixth Count: Intentional Infliction of Emotional Distress — Bloomfield and Chapman;
7. Seventh Count: Negligent Infliction of Emotional Distress — Bloomfield and Chapman;
8. Eighth Count: Breach of Good Faith and Fair Dealing — Bloomfield and Chapman;

CT Page 2616

9. Ninth Count: Breach of Privacy — Bloomfield and Chapman.

On May 1, 2001, the defendants filed an answer and special defenses, which include the defenses of (1) statute of frauds, (2) lapse of time or latches, (3) doctrine of modification, (4) doctrine of rescission (by way of abandonment), (5) doctrine of impracticability, (6) failure to state a legally recognized claim and (7) the doctrine of governmental immunity. The plaintiffs deny each special defense set forth by the defendants.

On July 5, 2006, the defendants filed a motion for summary judgment as to all counts of the plaintiffs’ revised complaint. On August 21, 2006, the plaintiffs moved for summary judgment as to counts one, two, and three of the revised complaint.

SEQUENCE OF EVENTS
Ackiefi had a business interest in and managed the operations of Regina Associates and Adom Foods. During the year 1995, Ackiefi approached Bloomfield requesting assistance with the purchase of a large commercial building located at 26 Tobey Road, Bloomfield, Connecticut (the “Property”). The Property was subject to tax liens filed by Bloomfield (the “Tax Liens”) arising from delinquent property taxes. Bloomfield, through Chapman, entered into negotiations with Ackiefi for the purchase of the Tax Liens and the compromise of future taxes pursuant to General Statutes § 12-65(b).

On January 31, 1996, Ackiefi, through Regina Associates, took ownership of the Property by way of quitclaim deed. Approximately four months later, on or about May 30, 1996, Ackiefi’s attorney, Charles Silver (“Attorney Silver”), forwarded a draft agreement and balloon note to Chapman for review by Bloomfield’s legal counsel.

On June 24, 1996, Attorney Silver sent draft copies of a proposed balloon note and mortgages to Chapman and to the town counsel for Bloomfield Attorney Eric Coleman (“Attorney Coleman”).

On Monday, July 8, 1996, Chapman approached the town council with Ackiefi’s proposal to purchase the Tax Liens. The town council unanimously voted to authorize Chapman to enter into an agreement with the plaintiffs, limited to the following terms and conditions:

[T]he purchase of two tax liens, in accordance CT Page 2617 with Connecticut General Statutes 12-195(h), through two mortgages to secure such lien; the first mortgage in the amount of $50,000 to be paid back to the Town of Bloomfield within four (4) years and the second to remain pending; further that the tax assessment for the grand list of 1997 be set at $1.00 (one dollar); the grand list of 1998 to be set at 50% (fifty percent) of the assessed real and personal property; the grand list of 1999 to be set at the full assessed value of the real and personal property.

(Bloomfield Town Council Minutes, 7/8/96; Defendants’ Exhibit F)

The following day, Tuesday, July 9, 1996, Ackiefi and Attorney Silver went to the Bloomfield town hall and presented the tax payment and assessment agreement (“1996 Agreement”) to Chapman for his signature. The 1996 Agreement refers to terms set forth in a balloon note and two mortgages, which were to be attached as Exhibits A through C respectively. Neither the balloon note nor any mortgages were attached to the 1996 Agreement when it was presented to Chapman for his signature. Both Chapman and Ackiefi signed the 1996 Agreement.

Attorney Coleman telephoned Attorney Silver following the execution of the 1996 Agreement and advised Attorney Silver that the balloon note and mortgages, were acceptable.

The 1996 Agreement sets forth the following terms and conditions:

NOW, THEREFORE, the parties hereto covenant and agree to the following terms and conditions:

1. Ackiefi will purchase the Town’s tax liens presently on the property pursuant to Connecticut General Statutes Section 12-195h, through and including the taxes owed for the October 1, 1996 Grand List for the sum of One Hundred Thousand ($100,000.00) Dollars, which sum will be paid as follows:
a. Fifty Thousand ($50,000.00) Dollars shall be paid pursuant to the term of the Balloon CT Page 2618 Note attached hereto and made a part hereof as Exhibit A which shall be secured by a mortgage deed on the Premises which is attached hereto and made a part hereof as Exhibit B; and
b. The remaining $50,000.00 balance shall be evidenced by a mortgage secured by the Premises which is attached hereto and made a part hereof as Exhibit C.
4. Pursuant to the Connecticut General Statutes Section 12-65b, the parties agree to fix the assessment of said property as follows:
a. For the October 1997 Grand List the assessment will be set at One ($1.00) Dollar.
b. For the October 1, 1998 Grand List the assessment will be set at Fifty (50%) Percent of the current revaluation of the property.
c. For any subsequent years, the property will be assessed according to the normal procedure and taxes will be paid at the normal rate.
5. The Town agrees to subordinate its mortgages to the financing obtained by Ackiefi including but not limited to HEDCO and the State of Connecticut Department of Economic Development.

(Tax Payment and Assessment Agreement 7/9/96; Defendant’s Exhibit G).

The proposed balloon note prepared by Attorney Silver and forwarded to Attorney Coleman reads, in part:

I [Ackiefi] will pay principal and interest by making payments every month.
I will make my monthly payments on the first day of each month beginning August 1, 1996. I will make these payments every month until I have paid all of the principal and interest and any other charges described below under this Note . . . If, in July 1, 2001, I still owe amounts under this CT Page 2619 Note, I will pay those amounts in full on that date, which is called the Maturity Date.
I will make my monthly payments at 800 Bloomfield Avenue, Bloomfield, Connecticut 06002, or a different place if required by the Note Holder.
(B) Amount of Monthly Payments

My monthly payment will be in the amount of U.S. $________________

(Proposed Balloon Note; Defendant’s Exhibit I).

Ackiefi never executed the proposed balloon note and mortgages, and neither has been filed on the Bloomfield land records.

On July 26, 2000, Attorney Coleman, forwarded a notice to Ackiefi representing that $288,665.75 was due and owing on the property and that payment must be made within one month or legal action would commence.

In September of 2000, Ackiefi and Attorney Silver, contacted Bloomfield concerning the 1996 Agreement. Attorney Silver represented that the United States Small Business Administration (“SBA”) committed to lend Ackiefi $330,000 for his business provided that Bloomfield released the Tax Liens. Attorney Silver proposed a new agreement to Bloomfield whereby Ackiefi would pay all delinquent taxes from 1996 to 2000, including all interest that would have been due and payable on the $50,000.00 note had it been executed in 1996. Bloomfield rejected the proposal.

On or about October 10, 2000, Gary Besser of the SBA contacted Chapman with questions concerning the 1996 Agreement. Chapman, in his deposition of December 20, 2005 (Plaintiff’s Exhibit 1), testified that he indicated to Besser that Ackiefi had not acquired any property tax liens and had defaulted on the 1996 Agreement. Chapman further testified that he told Besser that more than $303,000 in property taxes were due and owing on the Property absent any tax abatement agreement. When asked if he was aware that in making these statements to Besser Ackiefi would not get the SBA loan Chapman responded that his intention was “to fairly and accurately portray to the SBA person what [he] thought the status of [the 1996 Agreement] was.” (Plaintiff’s Exhibit I, page 70).

Ackiefi admits that the balloon note and mortgages referenced within the 1996 Agreement were not attached to the 1996 Agreement. Ackiefi CT Page 2620 argues that the balloon note and mortgages did not need to be completed or signed until after he, Ackiefi, applied for and successfully closed upon an SBA loan contemplated under ¶ 5 of the 1996 Agreement.

Ackiefi further believes that he would not have been obligated to pay Bloomfield any proceeds from any SBA loan. Ackiefi reasons that the 1996 Agreement does not require a lump sum payment to Bloomfield, but instead, requires monthly payments to Bloomfield during a fifteen (15) year time period, with a first payment beginning thirty days after the close of the SBA loan.

In summary, plaintiffs’ position is that: (1) Bloomfield breached the 1996 Agreement by not subordinating the Tax Liens to the SBA loan (count one); (2) Chapman’s comments to Besser constitute an intentional interference with the contractual relationship between plaintiffs and the SBA (counts two and three); (3) the statements Chapman made to Besser were defamatory (counts four and five); (4) the statements Chapman made to Besser amounted to extreme and outrageous conduct and were intended to cause (count six) or negligently caused (count seven) extreme emotional distress; (5) the defendants breached their duty to deal fairly and in good faith with defendants (count eight); and (6) Chapman’s statements to Besser were an invasion of plaintiffs’ right of privacy.

SUMMARY JUDGMENT STANDARD
“[S]ummary 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 the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.)Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 757, 905 A.2d 623
(2006). “[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, CT Page 2621 however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003).

DISCUSSION Count One — Breach of Contract
Both plaintiffs and defendants seek summary judgment as to count one of the plaintiff’s revised complaint. The defendants argue that the 1996 Agreement is unenforceable in that: (1) it was not complete and is therefore unenforceable under the statute of frauds, General Statutes § 52-550; (2) there was a lack of mutuality of assent as indicated by the nonexistence and/or incomplete attachments the 1996 Agreement; (3) the plaintiffs failed to perform a condition necessary to Bloomfield’s agreement to subordinate the Tax Liens; and (4) the defendants were not obliged to perform under the 1996 Agreement due to plaintiffs’ material breach. Plaintiffs argue that Bloomfield breached a clear unequivocal duty to perform by refusing to subordinate the Tax Liens to the SBA financing. In other words, both parties, reviewing the same documentation, come to completely different conclusions as to the intention and effect of the 1996 Agreement.

“The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence.” (Internal quotation marks omitted.) Positive Impact Corp. v. Indotronix International Corp., 96 Conn.App. 361, 364, 900 A.2d 535, cert. denied, 280 Conn. 915, 908 A.2d 538 (2006). “To form a valid and binding contract in Connecticut there must be a mutual understanding of the terms that are definite and certain between the parties.” (Emphasis added.) Vertex v. Waterbury, 278 Conn. 557, 571, 898 A.2d 178 (2006). “To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete.” (Emphasis added; internal quotation marks omitted.)Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). CT Page 2622

A motion for summary judgment is properly granted only where no genuine issue of fact exists. Here, there is a factual dispute as to whether a contract exists between the parties and whether the written contract is complete or missing any essential components. Therefore, summary judgment is inappropriate. The plaintiffs’ motion for summary judgment as to count one of its revised complaint is denied. The defendants’ motion for summary judgment as to count one is also denied.

Count Two — Contractual Interference as to Chapman; Count Three — Contractual Interference as to Bloomfield
Counts two and three of the plaintiffs’ revised complaint claim intentional contractual interference against Chapman and Bloomfield, respectively. In support of these causes of action, the plaintiffs claim that the defendants intentionally, and with malice, interfered with a commitment by the SBA to provide a loan when Chapman responded to questions from Besser concerning the status of the 1996 Agreement.

“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) interference [that is] tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants’ tortious conduct.” Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000). “[N]ot every act that disturbs a contract or business expectancy is actionable.” (Internal quotation marks omitted.) Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805, 734 A.2d 112 (1999). A plaintiff “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.” (Internal quotation marks omitted.)Id.

“[A]n action for intentional interference . . . requires the plaintiff to plead and prove at least some improper motive or improper means.”Id. “[A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.” (Internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 502 n. 24, 656 A.2d 1009 (1995); see als Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 753-55, CT Page 2623 474 A.2d 780 (1984) (liability in tort imposed if fraud, misrepresentation, intimidation, molestation or showing that the defendant acted maliciously). “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.” (Internal quotation marks omitted.) Par Painting, Inc. v. Greenhorne O’Mara, Inc., 61 Conn.App. 317, 324, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001).

Chapman did not actively and intentionally interfere with any contractual or beneficial relationship between the SBA and Ackiefi. Instead, Chapman, who received an unsolicited call from the SBA, responded truthfully concerning his understanding of the status of the 1996 Agreement. Therefore, the plaintiffs’ motion for summary judgment as to counts two and three is denied. The defendants’ motion for summary judgment is granted as to counts two and three of the revised complaint.

Count Four — Defamation as to Chapman: Count Five — Defamation as to Bloomfield
In counts four and five, the plaintiffs allege defamation against Chapman and Bloomfield. Specifically, the plaintiff alleges that Chapman defamed him when Chapman made statements to Besser tending to injure the business reputation of the plaintiffs and to diminish their esteem, respect, goodwill or confidence in which the plaintiffs are held and that the statements were intended to excite adverse, derogatory or unpleasant feelings or opinions against them.

The defendants move for summary judgment as to the plaintiffs’ defamation counts on the grounds that (1) the statements made to Besser were true; (2) the statements were not defamatory because they did not concern the character or reputation of the plaintiffs, but rather concerned the validity of the 1996 Agreement; and (3) the statements were statements of opinion, not fact.

To prevail on a cause of action for defamation, the plaintiff must prove “that the defendants published false statements that harmed the [plaintiff], and that the defendants were not privileged to do so.” (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27, 662 A.2d 89 (1995). “In a civil action for [slander], where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly [slanderous] statement of fact provides an absolute defense.”Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112, 438 A.2d 1317 (1982). CT Page 2624

“[Slander] is actionable per se if it charges improper conduct or lack of skill or integrity in one’s profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A.2d 199 (1987).

The defendants argue that the statements Chapman made cannot support a cause of action for defamation because they are statements of opinion. “[T]he statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion.” Daley v. Aetna Life Casualty Co., supra, 249 Conn. 795. “A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . In a [slander] action, such statements of fact usually concern a person’s conduct or character . . . An opinion, on the other hand, is a personal comment about another’s conduct, qualifications or character that has some basis in fact.” (Citations omitted; emphasis omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 111. Although “this distinction [between fact and opinion] may be somewhat nebulous . . . [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact.” (Internal quotation marks omitted.)Id., 111-12.

None of Chapman’s statements to Besser, as set out in Chapman’s deposition testimony of 12/20/05 (Plaintiff’s Exhibit I), can be characterized as supporting a claim for slander. The statements are either true (i.e Ackiefi had not acquired property tax liens, Ackiefi had sought to compromise and settle all property tax debts, Bloomfield was willing to strike a deal but that Ackiefi was required first to pay $50,000 as a condition of the deal, that more than $303,000 in property taxes were due and owing), statements of opinion (i.e. that Bloomfield had no obligations under the July 9, 1996 contract, that Ackiefi had defaulted on agreements concerning the agreement of July 9, 1996) or were not calculated to cause injury to one in his business (i.e. stating in the deposition that his (Chapman’s) intention was to fairly and accurately portray to the SBA person (Besser) what he thought the status of the agreement was, and did not indicate that Ackiefi was not telling the truth). The defendants’ motion for summary judgment as to counts four and five is therefore granted.

CT Page 2625 Count Six — Intentional Infliction of Emotional Distress — Chapman and Bloomfield
In count six, the plaintiff alleges intentional infliction of emotional distress against Chapman and Bloomfield. The defendants move for summary judgment as to count six on the grounds that the defendants’ conduct was not extreme or outrageous.

“In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (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 . . . 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 . . . Only where reasonable minds disagree does it become an issue for the jury. Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . 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! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 210-11.

Here, in count six, the plaintiffs allege that Chapman and Bloomfield intentionally engaged in extreme and outrageous conduct based on Chapman’s comments to Besser. The statements referred to by plaintiffs are discussed above and will not be repeated here. As a matter of law, the defendants’ conduct was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . .” (Internal quotation marks omitted.) Id., 211. The court, therefore, grants the defendants’ motion for summary judgment as to count six.

Count Seven — Negligent Infliction of Emotional
CT Page 2626 Distress — Chapman and Bloomfield

The defendants also move for summary judgment as to count seven regarding Chapman’s liability for negligent infliction of emotional distress on the ground that he is protected by governmental immunity. They argue that Chapman’s responses to Besser were undertaken in furtherance of his public duties as Bloomfield town manager, and since his conduct was an exercise of judgment in the performance of his work, he is immune from liability. They further argue that his decision was discretionary and that, even if he made an error in judgment, a public official cannot be held liable for making a mistake in the performance of a discretionary act. The plaintiff does not address the issue of immunity raised by the defendants and presents no argument to support a limitation or abrogation of governmental immunity for common-law negligence in this matter

“[A] municipality enjoys governmental immunity for common-law negligence unless a statute has limited or abrogated that immunity . . .” Williams v. New Haven, 243 Conn. 763, 769, 707 A.2d 1251 (1998). The Connecticut Supreme Court has implemented a two-fold inquiry as to whether the doctrine of governmental immunity applies to a municipality and its employee; (1) whether the defendant was charged with a public duty or a private duty; and (2), whether the defendant was engaged in discretionary or ministerial acts in discharging that duty. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165-67, 544 A.2d 1185 (1988).

“Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). Municipalities and their employees are entitled to governmental immunity for acts that require the sound exercise of discretion. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180-81 (1988). The Connecticut Supreme Court has “approved the practice of deciding the issue of governmental immunity as a matter of law.”Id. at 170.

The governmental immunity normally granted to municipal employees who perform discretionary acts is subject to three exceptions: “first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a CT Page 2627 cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.” (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 49 n. 7, 881 A.2d 194 (2005). As stated above, the plaintiffs make no argument to support the application of any of the above exceptions.

In the instant case, Chapman’s responses to Besser and his opinion concerning the 1996 Agreement were undertaken in furtherance of his public duties as town manager for Bloomfield. Since his conduct was an exercise of judgment in the performance of his work, both he and Bloomfield are immune from the plaintiffs’ claim of negligent infliction of emotional distress. Accordingly, the court grants the defendants’ motion for summary judgment as to count seven of the complaint.

Count Eight — Breach of Covenant of Good Faith and Fair Dealing — Bloomfield and Chapman
“Every contract carries an implied covenant of good faith and fair dealing 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.) Gaudio v. Griffen Health Services Corp., 249 Conn. 523, 564, 733 A.2d 197 (1999). “[A] claim for breach of the implied covenant of good faith and fair dealing is not legally sufficient unless a dishonest purpose or sinister motive is alleged.”Wolverine Fire Protection Co. v. Tougher Industries, Superior Court, judicial district of Hartford, Docket No. CV01 0805554 (June 20, 2001, Hale, J.) (29 Conn. L. Rptr. 731). “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Internal quotation marks omitted.) De La Concha of Hartford v. Aetna Life Ins., 269 Conn. 424, 433, 840 A.2d 382 (2004). “A mere conclusory allegation of bad faith unsupported by any factual allegations, is insufficient to sustain a claim of bad faith.” Wolverine Fire Protection Co. v. Tougher Industries, supra, 29 Conn. L. Rptr. 733.

The court finds that the plaintiff’s allegations do not support a bad faith claim. Chapman’s comments to Besser and his refusal to subordinate the Tax Liens do not equate to bad faith conduct. The court fails to see how Chapman’s acts can be looked upon as signifying a dishonest purpose. CT Page 2628 The plaintiff has, at most, alleged sufficient facts for actions sounding in breach of contract and negligence, but not for a breach of the implied covenant of good faith and fair dealing.

The defendant’s motion for summary judgment as to count eight for breach of the implied covenant of good faith and fair dealing is granted.

Count Nine — Breach of privacy
Count nine of the plaintiffs’ revised complaint sets forth a common-law claim for invasion of privacy.

“The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other’s name or likeness; (c) unreasonable publicity given to the other’s private life; or (d) publicity that unreasonably places the other in a false light before the public.” Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 128. The plaintiff, in this case, is alleging a cause of action under category (d).

The Connecticut Appellate Court in Jonap v. Silver, 1 Conn.App. 550, 474 A.2d 800 (1984) discussed the elements of false light before the public: “In order to establish invasion of privacy by false light, the plaintiff must show (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed . . . This form of invasion of privacy protects one’s interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is . . . The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true; . . . and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.” (Citations omitted; internal quotation marks omitted.) Jonap v. Silver, supra, 1 Conn.App. 557-58.

“[I]n defining and discussing the requirement of `giving publicity’ in the tort of invasion of privacy by false light, Restatement (Second), Torts § 652E, comment a incorporates by reference the Restatement’s comments to § 652D, pertaining to the tort of invasion of privacy by giving publicity to private facts. Restatement (Second), Torts § 652D, comment a states: `Publicity,’ as it is used in this Section, differs CT Page 2629 from `publication,’ as that term is used . . . in connection with liability for defamation . . .’Publicity’ . . . means that the matter is made public, by communication of it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication . . . It is one of a communication that reaches, or is sure to reach, the public.

” `Thus, it is not an invasion of the right of privacy, within the rule stated . . . to communicate a fact . . . to a single person or even a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or a statement made in an address to a large audience, is sufficient to give publicity . . . The distinction, in other words, is one between private and public communication.’ Restatement (Second), Torts § 652D, comment a.” Galligan v. Edward D. Jones Co., Superior Court, judicial district of New Haven, Docket No. CV 389623, (November 13, 2000, Levin, J.)

In the instant case, the defendants argue that plaintiffs cannot prevail on their claim of false light based upon the following reasons: (1) Chapman was truthful when he conveyed to Besser that the taxes on the Property remain unpaid; (2) the statement made by Chapman concerned unpaid taxes on the Property and not the character, history, activities or beliefs of Ackiefi; and (3) the statements were not made to the public, but instead, to Besser.

The plaintiffs argue that the facts presented are more than sufficient to put this issue before jury. The plaintiffs, however, have not demonstrated how the facts presented would establish the elements for an invasion of privacy by false light as set out above in Jonap to overcome the defendants’ summary judgment motion. As discussed previously, the comments made by Chapman to Besser are not such a major misrepresentation of Ackiefi’s character, history or activities such that serious offense may reasonably be expected to be taken. Further, there is no evidence that Chapman acted with reckless disregard in making the comments to Besser.

As a matter of law, summary judgment shall enter as to count nine of the plaintiffs’ revised complaint.

SUMMARY
CT Page 2630

Count one — Plaintiffs’ motion for summary judgment is denied
Defendants’ motion for summary judgment is denied
Count two — Plaintiffs’ motion for summary judgment is denied
Defendants’ motion for summary judgment is granted
Count three — Plaintiffs’ motion for summary judgment is denied
Defendants’ motion for summary judgment is granted
Counts four through nine — Defendants’ motion for summary judgment is granted.

CT Page 2631