Opinion
No. CV 02-0812560
September 24, 2003
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
FACTS
The plaintiff, KR Nursing Services, Inc. (KR), filed a two-count complaint against the defendants, Emily Cruz d/b/a Nurse Cruz, Marc Beaulieu, individually and as the agent of Liberty Nursing Services (Liberty). Count one alleges a cause of action for breach of fiduciary duty on the part of Cruz and count two alleges a cause of action for civil conspiracy as to both Cruz and Beaulieu. On March 24, 2003, the defendants, Beaulieu and Liberty, filed a motion for summary judgment, accompanied only by a memorandum of law, as to count two of the complaint that alleges a cause of action for civil conspiracy. On May 9, 2003, KR filed an objection to the motion for summary judgment and requested a continuance in order to file a memorandum of law in opposition. On May 27, 2003, KR filed a memorandum of law in opposition, accompanied by documentary evidence in support. On June 23, 2003, Beaulieu filed a reply memorandum of law, accompanied by documentary evidence in support and a motion for sanctions. On July 11, 2003, KR filed a supplemental brief.
Cruz is not a party to the motion for summary judgment presently before this court. Accordingly, Beaulieu and Liberty will be collectively referred to as "Beaulieu" for the purposes of this decision.
DISCUSSION
"The Connecticut Supreme Court has held that the legal sufficiency of a complaint may be challenged after the pleadings have been closed by filing a motion for summary judgment. See Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-09, 279 A.2d 540 (1971). Although the Appellate Court in Burke v. Avitabile, 32 Conn. App. 765, 772 n. 9, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993), rejected the use of motions for summary judgment to test the legal sufficiency of a complaint and characterized language in Boucher as `anomalous,' a more recent appellate opinion has stated that a motion for summary judgment is a proper procedural vehicle to test the legal sufficiency of a complaint. See Drahan v. Board of Education, 42 Conn. App. 480, 498 n. 17, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996)." CT Page 10880-cg Lewczyk v. Connecticut Department of Health, Superior Court, judicial district of Hartford, Docket No. CV 00 0596677 (December 10, 2002, Hennessey, J.T.R.) ( 33 Conn.L.Rptr. 681, 683); see also Jewett v. General Dynamics Corp., Superior Court, judicial district of New London-Norwich at New London, Docket No. 530943 (May 1, 1997, Booth, J.). "However, the motion should only be granted if it meets the standard for a motion for summary judgment, not for a motion to strike." (Internal quotation marks omitted.) Santiago v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144611 (May 8, 2000, Doherty, J.).
Beaulieu asserts in his motion for summary judgment that the pleadings for this action have not been closed. A review of the file confirms Beaulieu's statement.
Beaulieu has moved for summary judgment as to count two of the complaint on the ground that there are no genuine issues of material fact. He claims that he is entitled to summary judgment as a matter of law because the actions, as alleged in the complaint, are neither criminal nor unlawful as required for a civil conspiracy cause of action. Therefore, KR cannot prevail as a matter of law. KR argues that it has properly alleged a cause of action for civil conspiracy. Specifically, KR contends that it has alleged that Beaulieu committed a burglary by allegedly breaking into an employee's desk and stealing confidential information that was used to obtain KR's clients. (KR's memorandum of law in opposition, pp. 1-2.)
It appears that Beaulieu is challenging the legal sufficiency of the complaint by arguing that the alleged conduct doesn't amount to a criminal or unlawful act as required to maintain a cause of action for civil conspiracy and, therefore, KR has failed to state a claim upon which relief can be granted.
"The contours of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 139-40, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). "An essential element of a civil action for conspiracy is that the alleged conspirators have combined to do a criminal act or an unlawful act or a lawful act by criminal or unlawful means." (Internal quotation marks omitted.) Jones v. O'Connell, 189 Conn. 648, 662, 458 A.2d 355 (1983).
KR alleges the following in count two of its complaint. First, that Cruz and Beaulieu contacted KR's existing clients/nurses in order to recruit them for Cruz's nursing business. Second, that Cruz and Beaulieu contacted certain healthcare facilities that maintained contracts with KR. Finally, that Cruz and Beaulieu disclosed "deleterious confidential information about the Plaintiff learned through her employment to potential clients and health care facilities . . ." (Complaint, count two, ¶ 7, a, b, c.) CT Page 10880-ch
It is Beaulieu's contention that the allegations of the complaint fail to allege a criminal or unlawful act as required to maintain a cause of action for civil conspiracy. Specifically, that contacting clients/nurses and healthcare facilities do not arise to criminal or unlawful acts especially since KR has failed to allege the existence of a contract that contained an exclusivity clause that barred such conduct. Furthermore, Beaulieu contends that KR admitted that the information concerning its rates were not required to be confidential and cites to Sharon Kunz's deposition testimony in support. Therefore, Beaulieu argues that knowing a competitor's rates does not constitute a criminal or unlawful act.
KR argues that it has alleged a criminal act, that Beaulieu committed a burglary when he broke into an employee's locked desk in order to ascertain KR's contract rates and that Beaulien used that information to obtain an unfair advantage. Specifically, KR contends that "[a]s a result of . . . Beaulieu's unlawful act, in burglarizing Ms. Silva's desk, in furtherance of his conspiracy with Ms. Cruz . . . plaintiff suffered a substantial loss." (KR's memorandum of law in opposition, p. 4.) KR cites to the affidavits of Patti Silva and Kunz in support of this argument. KR maintains that "the affidavits attached hereto sets forth a prima facie case of civil conspiracy;" and that "[t]he affidavits clearly establish that the contracts were kept confidential by KR . . ." (KR's memorandum of law in opposition, pp. 5-6.)
"Although 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, 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.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 372-73 n. 7, 746 A.2d 753 (2000). CT Page 10880-ci
A review of the complaint reveals that KR did not allege that Beaulieu committed a burglary in order to obtain confidential information concerning its nursing rates. It is only in its memorandum of law that KR makes the allegation of a burglary necessary in order to maintain a cause of action for a civil conspiracy. KR submits the affidavits of Silva and Kunz in support of its contention that it has alleged a criminal act in order to establish a cause of action for civil conspiracy. These affidavits, however, contain hearsay, conclusions of fact, personal opinion and fail to include an affirmation that all averments were being made through personal knowledge. For example, Silva avers that "[a]lthough, no one actually saw Mr. Beaulieu break into my desk, I firmly believe that he in fact broke into my desk and stole the rate schedules and contracts." (Silva's Affidavit, Exhibit A.) Kunz further avers in her affidavit that Silva told her that her desk had been broken into. (Kunz' Affidavit, Ex. C.) Kunz further avers that Silva told her that it was Beaulieu who broke into her desk and stole the contract rates. (Kunz' Affidavit, Ex. C.)
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence . . ." Practice Book § 17-46. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great County Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). "Hearsay statements are insufficient to contradict facts offered by the moving party . . . and if an affidavit contains inadmissible evidence it will be disregarded." (Citations omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 568-69, 636 A.2d 1377 (1994).
Accordingly, because the affidavits submitted by KR contain hearsay and personal opinion, the court cannot consider those statements in its determination of the motion for summary judgment. Beaulieu, in his reply memorandum of law, however, submits the deposition testimony of Silva wherein she states that her desk, which contained schedules, rates and contracts, was broken into during December of 2000. (Deposition of Patti Silva [Silva Deposition], p. 8.) Silva further testified that Beaulieu was working as the supervisor on shift and had access to her desk during the time that the break-in allegedly occurred. (Silva Deposition, p. 8.) Silva further stated that the schedules, rates and contracts were stolen from her desk. (Silva Deposition, p. 8.)
"[A] party that raises legal sufficiency by way of motion for summary judgment assumes the burden of proving what the material facts are with CT Page 10880-cj regard to the sufficiency of the complaint." Arnone v. Connecticut Light Power, Superior Court, complex ligation docket at Waterbury, X0 01 CV 98 0168276 (March 22, 2002, Hodgson, J.) ( 32 Conn.L.Rptr. 58, 60). "To be entitled to summary judgment . . . the movant must show what the material facts are, that there is no genuine dispute as to those facts, and that under those facts the movant is entitled to judgment as a matter of law." Id.
Beaulieu has failed to meet his burden of establishing that no genuine issues of material facts exist and that he is entitled to summary judgment as a matter of law. Specifically, the Silva deposition raises an issue of material fact as to whether the information, as argued by KR, was illegally obtained by way of a criminal act. This presents a genuine issue of material fact and, therefore, summary judgment is inappropriate at this time.
Because a burglary has not been pleaded specifically, the court is cognizant that if the current complaint were tried on the merits it could lead to a directed verdict caused by KR's failure to allege a criminal act. The court, however, concludes that Beaulieu has failed to satisfy his burden because a genuine issue of material fact does exist in this case and, therefore, summary judgment is improper at this time.
CONCLUSION
For the aforementioned reasons, Beaulieu's motion for summary judgment as to count two of the complaint is denied. The motion for sanctions is denied.
Booth, J.