Kakadelis v. DeFabritis

• Decision Date: 30 August 1983
• Citation: 191 Conn. 276,464 A.2d 57
• Court: Connecticut Supreme Court
• Parties: Peter J. KAKADELIS v. Louis A. DeFABRITIS et al.

Page 57

464 A.2d 57

191 Conn. 276

Peter J. KAKADELIS v. Louis A. DeFABRITIS et al.

Supreme Court of Connecticut.

Argued May 6, 1983.

Decided Aug. 30, 1983.

Ralph L. Friedland, Bethel, for appellant (plaintiff).

Ralph F. Scofield, Bridgeport, for appellee (named defendant).

Abram W. Spiro, Danbury, for appellee (defendant Allan R. Capellaro).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

ARTHUR H. HEALEY, Justice.

This appeal contests the propriety of a summary judgment rendered for the defendants. ¹ The memorandum of decision and the materials before the court on summary judgment disclose the following: In March, 1978, the plaintiff, a licensed real estate broker in the state of Connecticut doing business as Westview Associates, received written authorization from Martin O'Reilly to sell certain property located at 17 1/2 Main Street, Danbury, at a commission of 10 percent of the sale price. ² It is uncontested that this writing, which did not comply with the provisions set forth in General Statutes § 20-325a, was unenforceable under that statute. Acting pursuant to this agreement, the plaintiff brought the property to the attention of Elmer M. Seaman in February, 1979, who thereafter entered into an option agreement on June 7, 1979, to purchase the property. This option, which remained in effect until September 8, 1979, recognized Westview Associates as the real estate brokerage agency which brought about the option agreement. The option provided for a commission of 10 percent of the sale price ($450,000) to be paid to the plaintiff upon transfer of title. Upon the payment of additional consideration, this option was then extended until December 8, 1979, at which time the option expired.

After the expiration of the option agreement, the plaintiff claims that the seller and his attorney, defendant Louis A. DeFabritis, orally requested the plaintiff to continue his efforts regarding the sale of the property to Seaman. The plaintiff then arranged for a meeting which occurred on January 10, 1980, between the seller, DeFabritis, and Seaman. At this meeting the plaintiff was informed by O'Reilly that he had another potential buyer and that he would contact Seaman to renew the previous option in the event that the other buyer did not purchase the property. Subsequently, DeFabritis informed the plaintiff that an exclusive listing agreement to sell the property had been given to Allan R. Capellaro, a relative by marriage of DeFabritis, ³ doing business as Capellaro Realty. The plaintiff claims that DeFabritis also informed him that if he wanted to receive any commission on the sale of the property to Seaman, he would have to contact Capellaro. Thereafter, the seller and Seaman entered into other option agreements for the sale of the property which did not recognize any broker as the procuring agent. ⁴

The plaintiff then brought this action against DeFabritis and Capellaro alleging that they tortiously interfered with his business relationship with the seller of the property thereby depriving the plaintiff of the opportunity to pursue his negotiations between the seller and Seaman. ⁵ DeFabritis filed a motion for summary judgment which was granted by the court, Chernauskas, J., stating, inter alia, that General Statutes § 20-325a (b) precluded the plaintiff's claim as a matter of law. On this appeal the plaintiff contends the following: (1) that the court erred in granting the motion for summary judgment; (2) that the plaintiff was denied his right to a jury trial under the state and federal constitutions; and (3) that DeFabritis' actions are not protected by the attorney-client privilege.

The plaintiff contends that because his action is for tortious interference with business relations, it is not barred by General Statutes § 20-325a (b). We need not reach this contention in this case because quite apart from that claim, the court reached the correct result and we determine that summary judgment was properly granted. See Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982); Cheshire v. McKenney, 182 Conn. 253, 261, 438 A.2d 88 (1980); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978); Morris v. Costa, 174 Conn. 592, 598-99, 392 A.2d 468 (1978).

Only recently have we said: "This court has long recognized a cause of action for tortious interference with contract rights or other business relations.... While our cases have not focused with particularity on what acts of interference are tortious, we have made it clear that not every act that disturbs a contract or business expectancy is actionable. Jones v. O'Connell, [189 Conn. 648, 660-61, 458 A.2d 355 (1983) ]. '[F]or a plaintiff successfully to prosecute such an action it 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.' [Citations omitted.] Kecko Piping Co. v. Monroe, [172 Conn. 197, 201-202, 374 A.2d 179 (1977) ]." (Citations omitted.) Blake v. Levy, 191 Conn. 257, 260-61, 464 A.2d 52 (1983). In Blake, we also determined that "[i]n an action for intentional interference with business relations ... the better reasoned approach requires the plaintiff to plead and prove at least some improper motive or improper means. See, e.g., United Wild Rice, Inc. v. Nelson, Minn., 313 N.W.2d 628, 632-33 (1982); Anderson v. Dairyland Ins. Co., 97 N.M. 155, 159, 637 P.2d 837 (1981); Straube v. Larson, 287 Or. 357, 361, 600 P.2d 371 (1979); Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 302-304 (Utah 1982). '[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.' Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 209, 582 P.2d 1365 (1978)." Blake v. Levy, supra, 191 Conn. 262, 464 A.2d 52.

The affidavits which are the basis for the summary judgment however, indicate no wrongful conduct on the part of either defendant. The affidavit of the plaintiff states merely that DeFabritis, the attorney, was aware of his relationship with the seller and "deprived" him of the opportunity to pursue the negotiations for sale of the property. Neither in this affidavit nor even in the complaint does the plaintiff claim that DeFabritis was motivated by his desire to help his relative who was also a real estate agent. In fact, the plaintiff's affidavit does not state that DeFabritis was instrumental in causing the owner to transfer the property listing to another real estate agent. The affidavit of DeFabritis states that he gave legal advice to his client, the owner, who had requested it. The affidavit of the owner, O'Reilly, declares that the selection of the new real estate agency with which DeFabritis' brother-in-law was connected was not influenced in any manner by DeFabritis and confirms that he requested legal advice from DeFabritis.

"When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book] § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). "Mere assertions of fact, whether contained in a complaint or in a brief, are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380." Bartha v....