Lawton v. Weiner

• Decision Date: 04 October 2005
• Docket Number: No. 25114.,25114.
• Citation: 882 A.2d 151,91 Conn.App. 698
• Court: Connecticut Court of Appeals
• Parties: Michael LAWTON v. Marc S. WEINER et al.

882 A.2d 151

91 Conn.App. 698

Michael LAWTON v. Marc S. WEINER et al.

No. 25114.

Appellate Court of Connecticut.

Argued April 4, 2005.

Decided October 4, 2005.

Charles D. Houlihan, Jr., Simsbury, for the appellants (named defendant et al.).

Randall J. Carreira, Bridgewater, for the appellee (plaintiff).

FLYNN, DiPENTIMA and STOUGHTON, Js.

DiPENTIMA, J.

The defendants Marc S. Weiner and TMG Marketing, Inc. (TMG),¹ appeal from the judgment rendered against them after a hearing in damages. On appeal, they raise claims attacking the court's subject matter jurisdiction, the propriety of the default and the damages awarded. We affirm the judgment of the trial court.

An acrimonious business relationship between the plaintiff, Michael Lawton, and the defendants began the parties' journey to this court. A tortuous and contentious procedural history exacerbated the conflict and made its resolution needlessly arduous for all concerned. The parties and counsel are clearly responsible for much of the delay² and confusion through inartful and unnecessarily repetitive pleading on the one hand and a disregard for our rules of practice on the other.

According to the operative complaint at the hearing in damages, the plaintiff, a professional photographer, and the defendants agreed that the defendants would market the plaintiff's photography. In that capacity, the defendants represented the plaintiff in ongoing negotiations with LaserMaster Corporation (LaserMaster) regarding a copyright license agreement. The plaintiff also put the defendants in communication with David Graveen, who owned a business involving poster and image reproduction and marketing. In order to market his photography, the plaintiff provided the defendants with a $6500 lap-top computer containing $3000 worth of Graveen's poster project and twenty-three of the plaintiff's panoramic photographs. The parties' relationship rapidly deteriorated. Weiner began to interfere and to compete with the plaintiff's business and to engage in a pattern of intimidation and harassment aimed at the plaintiff, his family and Graveen. As a result of the conflict between the parties, LaserMaster refused to enter into the licensing agreement with the plaintiff until he and the defendants resolved their differences.³

We turn now to the procedural history relevant to the issues on appeal. The plaintiff brought an action against the defendants in July, 1998, alleging in count one, interference with business relations; in count two, conversion; in count three, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; in count four, breach of fiduciary duty; in count five, breach of an implied duty of good faith and fair dealing; in counts six and seven, defamation; in count eight, violation of the Connecticut Antitrust Act, General Statutes § 35-24 et seq.; and in count nine, recording of private telephone calls in violation of General Statutes § 52-570d(c). After the defendants filed a notice of compliance with discovery requests on February 8, 1999, the plaintiff filed a motion for sanctions against the defendants for failure to comply fully with his discovery requests. On May 21, 1999, the court ordered the defendants to "provide substantive responses to all discovery requests within fourteen days. . . ." On June 15, 1999, the plaintiff filed a motion for default for the defendants' failure to comply with the May 21, 1999 discovery order. The court granted the motion for default on June 29, 1999.

On July 7, 1999, the plaintiff filed a motion to cite in, as defendants, Marc Weiner's parents, Theresa Weiner and George Weiner.⁴ The court granted the motion on July 19, 1999, and ordered the plaintiff to file an amended complaint reflecting the interests of Theresa Weiner and George Weiner. The defendants filed a motion to set aside the default on July 26, 1999, which the court denied on August 16, 1999. Pursuant to the court's July 19, 1999 order, the plaintiff filed an amended complaint on July 28, 1999, incorporating Theresa Weiner and George Weiner into the original complaint and adding two new counts alleging defamation by the new defendants. The defaulted defendants, Marc Weiner and TMG, filed a notice of defenses on August 27, 1999, to which the plaintiff successfully objected as untimely. On September 2, 1999, the plaintiff filed an amended complaint materially identical to the July 28, 1999 complaint.⁵ A hearing in damages was held in January, 2000. On July 13, 2000, the defendants filed a motion to reopen the hearing in damages in order to submit certain evidence challenging the credibility of the plaintiff. That motion was ultimately acted on and denied in January, 2004.

On February 13, 2001, the court, Kocay, J., issued a memorandum of decision. The court found that with respect to counts one, four and five, the defendants interfered with the LaserMaster contract. The court awarded damages of $55,000 plus $15,000 for a Halon machine that had been part of the initial proposed contract with LaserMaster. On count two, the court awarded $3000 as the depreciated value of the computer, $3000 for conversion of the posters and $172,500 for the conversion of the twenty-three panoramic images. On the CUTPA count, the court awarded the same compensatory damages as awarded in counts one, two, four and five, inclusive. In addition, the court awarded $245,000 in punitive damages and $29,156.92 in attorney's fees. The court also awarded $10,000 on counts six and seven. The court found that the plaintiff had proven the allegations of counts eight and nine as well, but awarded no additional damages as "the compensatory and punitive damages [had] been found in earlier counts."

The defendants filed a motion for reconsideration on March 2, 2001, which was denied by the court on March 16, 2001. The court, however, on March 28, 2001, granted the defendants' March 26, 2001 motion for reconsideration of the court's decision denying their motion for reconsideration. Hearings on the motion were held on April 24, 2001. On April 25, 2001, the defendants filed a second motion to open the hearing in damages. Judge Kocay died in February, 2003. On June 23, 2003, and January 26, 2004, the court, Dunnell, J., reheard the defendant's motion for reconsideration. On January 26, 2004, the defendants filed a motion to dismiss for lack of standing, alleging that the plaintiff was not the proper party to bring the complaint as it was his company, Grafica, Inc. (Grafica), that entered into the contract with LaserMaster. The defendants filed a motion to set aside the default on the same day. Judge Dunnell denied both the motion to dismiss and the motion to set aside on January 26, 2004. On September 29, 2004, Judge Dunnell issued a memorandum addressing the defendants' motion for reconsideration in which she concluded that there was "substantial and competent evidence to support the original decision of the court." This appeal followed.

The defendants' statement of issues set forth the following "points of error": (1) the court's award of damages was improper; (2) the default was rendered void by the plaintiff's repeated amendment of the complaint; (3) the plaintiff lacked standing; (4) the defendants were denied due process because their counsel learned of the default judgment after the time to file a notice of defense had expired; and (5) the defendants were denied due process by the court's delay in rendering a decision on damages and certain motions.

I

The defendants first claim that the court's failure to hold an evidentiary hearing on the motion to dismiss, filed three years after the memorandum of decision, was improper. The motion asserted that the plaintiff did not have standing to allege interference with a business relationship because the contract that provided the basis for calculating damages was signed by the plaintiff as president of his company, Grafica, and not in his individual capacity.

"The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005). A party may raise a question of subject matter jurisdiction at any time. Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). A hearing is required only when a motion to dismiss raises a genuine issue of material fact. Sagamore Group, Inc. v. Commissioner of Transportation, 29 Conn.App. 292, 298, 614 A.2d 1255 (1992). A determination regarding a trial court's subject matter jurisdiction is a question of law, and our review is plenary. First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., supra, at 291, 869 A.2d 1193.

The complaint alleged, inter alia, that the plaintiff had put the defendants in touch with LaserMaster for the purpose of negotiating an agreement for the licensing rights owned by the plaintiff, that the defendants undermined the business relationship between the plaintiff and LaserMaster, and that, as a result, LaserMaster refused to conduct any business with the plaintiff. Those actions, the plaintiff claimed, interfered with his "business, contracts and business expectations."⁶ "[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the...