Burnham v. Karl and Gelb, P.C., 17022

• Decision Date: 15 September 1998
• Docket Number: No. 17022,17022
• Citation: 50 Conn.App. 385,717 A.2d 811
• Court: Connecticut Court of Appeals
• Parties: , 14 IER Cases 684, 1998 O.S.H.D. (CCH) P 31,665 Carole BURNHAM v. KARL AND GELB, P.C., et al.

Page 811

717 A.2d 811

50 Conn.App. 385, 14 IER Cases 684,

1998 O.S.H.D. (CCH) P 31,665

Carole BURNHAM v. KARL AND GELB, P.C., et al.

No. 17022.

Appellate Court of Connecticut.

Argued March 27, 1998.

Decided Sept. 15, 1998.

James S. Brewer, West Hartford, for appellant (plaintiff).

Richard P. Weinstein, West Hartford, with whom, on the brief, was Nathan A. Schatz, for appellees (defendants).

Before FOTI, LAVERY and FRANCIS X. HENNESSY, JJ.

FOTI, Judge.

The plaintiff appeals from the judgment of the trial court rendered following the granting of the defendants' motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly granted summary judgment in favor of the defendants as to her claims (1) of breach of contract, (2) of negligent misrepresentation and (3) of wrongful discharge. We affirm the judgment of the trial court.

The following facts are undisputed. The defendant, Karl & Gelb, P.C., is a dental office located in West Hartford that employs two periodontists, the defendants Edward Karl and David Gelb. On July 6, 1993, the plaintiff, Carole Burnham, was hired by the defendants as an office manager. On November 5, 1993, the plaintiff filed an anonymous complaint with the Connecticut State Dental Association (dental association) alleging that the defendants engaged in unsanitary and unhealthy practices in violation of the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq. On November 22, 1993, the plaintiff was terminated by the defendants and thereafter filed a complaint with the Hartford office of the Occupational Safety and Health Administration alleging that she was terminated by the defendants in retaliation for her complaint to the dental association. The plaintiff's complaint was administratively closed in February, 1994, due to the plaintiff's "lack of response" to correspondence from the Hartford office of the Occupational Safety and Health Administration.

On January 24, 1995, the plaintiff filed a three count amended complaint alleging breach of contract, negligent misrepresentation and wrongful termination. On September 23, 1996, the defendants moved for summary judgment. On March 7, 1997, the trial court granted the defendants' motion for summary judgment as to each count of the plaintiff's amended complaint.

"The standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary 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.' See Barrett v. Danbury Hospital, 232 Conn. 242, 250, 654 A.2d 748 (1995). 'Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.' Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). 'It is not enough, however, for the opposing party merely to assert the existence of ... 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].' ... Water & Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994)." Branford v. Monaco, 48 Conn.App. 216, 221-22, 709 A.2d 582, cert. denied, 245 Conn. 903, 719 A.2d 900 (1998). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn.App. 60, 64, 708 A.2d 231 (1998).

I

The plaintiff first claims that the trial court improperly granted summary judgment in favor of the defendants as to her claim of breach of contract. The plaintiff asserts that an implied employment contract existed between the parties as a result of representations made to her by the defendants. The plaintiff alleges that, at the time she was hired, the defendants agreed to evaluate her performance based on certain "performance expectations and goals." The plaintiff also alleges that the defendants agreed that she would be terminated only for cause. We disagree.

"[T]o prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant[s] to have an employment contract with [her]. 'A contract implied in fact, like an express contract, depends on actual agreement. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 2, 520 A.2d 217 (1987); Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957).' ... Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988). Accordingly, to prevail on [her breach of contract] claim, 'which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that the [defendants] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause.... D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, at 212 n. 2, 520 A.2d 217; Therrien v. Safeguard Mfg. Co., supra, at 94-95, 429 A.2d 808.' ... Coelho v. Posi-Seal International, Inc., supra, at 112, 544 A.2d 170. To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant[s] had agreed to some form of contract commitment." Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729-30, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).

"A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Lucier v. Norfolk, 99 Conn. 686, 699, 122 A. 711 (1923)." Christensen v. Bic Corp., 18 Conn.App. 451, 458, 558 A.2d 273 (1989). In order to support contractual liability, the defendants' representations must be sufficiently definite to manifest a "present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. at 214-15, 520 A.2d 217.

In the present case, the plaintiff has provided no evidence that would permit a trier of fact to draw a reasonable inference that an implied employment contract existed between the parties. The trial court concluded that, at most, the facts establish that the plaintiff completed a three month "probationary period" and that "[t]here are no facts in the record ... from which it can be concluded that in completing this brief probationary period, [the] plaintiff's status changed from that of an at-will employee." This conclusion is supported by the plaintiff's own deposition testimony. In her deposition, the plaintiff testified that she was not given a guarantee as to how long she would be employed. The plaintiff also testified that she was never told that, after the completion of the probationary period, she could be fired only if she did something wrong. Moreover, the plaintiff's claim that the defendants agreed to evaluate her performance based on certain "performance expectations and goals" is contradicted by her own deposition testimony. The plaintiff testified that no performance expectations or goals were ever set for her and that she was unaware of any standard by which the defendants were judging her performance. Given these admissions by the plaintiff, we conclude that there was no meeting of the minds between the plaintiff and the defendants regarding the existence of an employment contract.

Since the plaintiff has failed to present the necessary factual predicate to raise a genuine issue as to the existence of an implied employment contract, we conclude that the trial court properly granted the defendants' motion for summary judgment as to the plaintiff's claim of breach of contract.

II

The plaintiff next claims that the trial court improperly granted summary judgment in favor of the defendants as to her claim of negligent misrepresentation. The plaintiff asserts that the defendants negligently misrepresented that the plaintiff's job performance would be evaluated on the basis of her progress toward the achievement of "performance expectations and goals" established at the beginning of her employment. The plaintiff also asserts that the defendants negligently misrepresented that she would be terminated only for cause. We disagree.

"[Our Supreme Court] has long recognized liability for negligent misrepresentation. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. at 217, 520 A.2d 217. The governing principles are set forth in ... § 552 of the Restatement Second of Torts (1979): One who, in the course of his business, profession or employment ... supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Id., at 217-18, 520 A.2d 217. [T]he plaintiff need not prove that the representations made by the defendant[s] were promissory. It is sufficient ... that the representations contained false information. Id., at 218, 520 A.2d 217." (...