Emerick v. Kuhn

• Docket Number: AC 16412
• Decision Date: 20 April 1999
• Citation: Emerick v. Kuhn, 52 Conn. App. 724 (Conn. App. 1999)
• Parties: ROGER EMERICK v. ROBERT KUHN ET AL.
• Court: Connecticut Court of Appeals

52 Conn. App. 724

ROGER EMERICK v. ROBERT KUHN ET AL.

AC 16412

Appellate Court of Connecticut

Argued November 9, 1998

April 20, 1999

Lavery, Landau and Hennessy, Js.

Roger Emerick, pro se, the appellant(plaintiff).

Felix J. Springer, with whom, on the brief, was Glenn W. Dowd, for the appellees(defendants).

Opinion

PER CURIAM.The plaintiff, Roger Emerick,¹ appeals from the judgment rendered following a trial to the court in part² and to the jury in part in the plaintiff's action against the defendants, his former employer and several of its agents and employees.³The action arose out of what the plaintiff alleges was the defendants' wrongful termination of his at-will employment as a result of his having exercised his right to free speech during an employer sponsored forum.The defendants contend, to the contrary, that the plaintiff was laid off as part of a large scale reduction of the workforce at Hamilton Standard, a division of the defendantUnited Technologies Corporation(United Technologies).

On appeal, the plaintiff claims that the trial court improperly (1) granted the defendants' motion to strike those counts of the plaintiff's complaint alleging a violation of General Statutes § 31-51q and wrongful discharge, (2) charged the jury on the law of implied contract, tortious interference and negligent misrepresentation, (3) gave the jury inaccurately framed interrogatories regarding the plaintiff's implied contract, tortious interference and negligent misrepresentation counts, (4) directed verdicts on the plaintiff's negligence, breach of implied contract, fraud, unjust enrichment and negligent misrepresentation counts against United Technologies, (5) concluded that United Technologies had not violated General Statutes § 31-71e, (6) induced the plaintiff to withdraw thirty-one counts of tortious allegations against six of the individual defendants and then refused to permit the plaintiff to rescind his withdrawal and permitted the defendants to present evidence of the plaintiff's history of litigation, (7) abused its discretion on evidentiary rulings and (8) failed to recuse itself and failed to grant the plaintiff's motion for a mistrial.

The following facts are relevant to this appeal.The plaintiff was an at-will employee working as a project engineer in the space and sea systems department of Hamilton Standard from 1980 until January 19, 1994.As an employee, the plaintiff participated in United Technologies' sponsored programs designed to give employees a forum in which to express their views and concerns, variously known as "Straight Talk,""DIALOG" and "All Hands."United Technologies employed ombudsmen to facilitate employee use of the forums.

Beginning in July, 1993, the plaintiff expressed his concern about certain management practices of Hamilton Standard and United Technologies executives during a number of such forums.The essence of his concern was that the poor economic climate of the time forecast budget reductions and layoffs.Despite this forecast, according to the plaintiff, senior executives were being rewarded enormous bonuses without regard to the fate of lower level United Technologies employees and without regard to the fact that the corporation accepted financial aid from the state of Connecticut.The plaintiff was also of the opinion that United Technologies was more concerned with short-term profits than long-term growth, the interests of its shareholders and the public good.

From November, 1993, through January, 1994, the plaintiff expressed his concerns to ombudsmen that he was going to be discharged for the opinions he expressed during the various forums.The plaintiff was of the opinion that the president of Hamilton Standard, defendantRoger Kuhn, directed that the plaintiff was to be discharged.On January 19, 1994, the plaintiff was laid off from his job at Hamilton Standard, which was part of an overall reduction of 50 percent of the Hamilton Standard workforce in the early 1990s.⁴The plaintiff subsequently brought suit against United Technologies and eight of its employees.Additional facts will be identified as necessary.

I

The plaintiff first claims that the trial court improperly granted the defendants' motion to strike two counts of his complaint alleging wrongful discharge in violation of his right to free speech (count thirty-three) and wrongful discharge in violation of § 31-51q(count thirty-four).We disagree.

"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof. . . ."Practice Book§ 10-39 (a).

The standard of review for granting a motion to strike is well settled." 'In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency.Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357(1993);Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738(1988).'Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357(1996).A motion to strike admits all facts well pleaded.See Practice Book § [10-39].A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact.Accordingly, our review is plenary.Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127(1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308(1997)."Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655(1997)."If facts provable in the complaint would support a cause of action, the motion to strike must be denied."(Internal quotation marks omitted.)Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293(1997)."Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852(1996). . . .Knight v. F. L. Roberts & Co., 241 Conn. 466, 470-71, 696 A.2d 1249(1997)."(Internal quotation marks omitted.)Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089(1998).

A

To review this claim, we must examine the complicated procedural history of this case.There were approximately nine iterations of the plaintiff's complaint.We will refer to the various revisions of the complaint by the relevant alphabetical identification assigned to them in the trial court.

The defendants moved to strike, among others, counts thirty-three and thirty-four of revision F.On June 14, 1995, the trial court, Handy, J., granted the motion to strike by memorandum of decision.On August 4, 1995, the plaintiff filed a request to amend his complaint, including counts thirty-three and thirty-four.⁵The trial court, Handy, J., granted the plaintiff permission to amend certain counts and paragraphs of his complaint but not counts thirty-three and thirty-four.Nonetheless, that amendment became revision G, containing counts thirty-three and thirty-four.The defendants filed a motion dated August 18, 1995, seeking to strike certain counts of revision G, including counts thirty-three and thirty-four.On August 31, 1995, the trial court, Handy, J., ruled from the bench, striking counts thirty-three and thirty-four of revision G and ordered the plaintiff not to replead those counts.⁶

In their brief and at oral argument before this court, the defendants contend that the plaintiff waived his right to raise the impropriety of the trial court's striking counts thirty-three and thirty-four of revision F by pleading over in revision G.⁷We disagree with the defendants because the procedural posture of this case is on point with the facts of Parsons v. United Technologies Corp., supra, 243 Conn. 70-76.⁸The plaintiff has asked us to review the striking of counts thirty-three and thirty-four from revision G, not revision F.

In count thirty-three of revision F, wrongful termination, the plaintiff alleged, inter alia, that there is a public policy favoring United Technologies' compliance with a code of ethics for all major defense contractors.The code of ethics requires defense contractors to implement programs conducted by an ombudsman to encourage employees to express their opinions, attitudes and concerns without fear of retribution as a means of promoting honesty, reducing fraud in defense contracts, providing corporate self criticism and alternative dispute resolution.Revision F also alleges that the plaintiff participated in United Technologies' "Straight Talk" and "DIALOG" programs and that his participation was protected by the alleged public policy.Furthermore, in or around September, 1993, because of his participation in "Straight Talk" and "DIALOG," Kuhn retaliated against the plaintiff by issuing a directive to his subordinates to find a way to discharge the plaintiff.The plaintiff also alleges that he was, in fact, wrongfully discharged in retaliation for having participated in "Straight Talk" and "DIALOG" and that this discharge violated the public policy alleged.

The defendants moved to strike count thirty-three, and others, arguing that the count failed to state a claim on which relief may be granted because it alleged no recognized violation of public policy.The trial court, citing Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66(1986), granted the motion to strike count thirty-three because the plaintiff failed to allege that his discharge violated a specific statutory or constitutional provision or contravened a judicially conceived notion of public policy.

The plaintiff amended his complaint in revision G to plead over count thirty-three and to add the allegations that he participated in "Straight Talk" and "DIALOG" at the request of his employer and that his participation in those...