Norse Systems, Inc. v. Tingley Systems, Inc.

• Decision Date: 28 July 1998
• Docket Number: No. 16966,16966
• Citation: 49 Conn.App. 582,715 A.2d 807
• Court: Connecticut Court of Appeals
• Parties: NORSE SYSTEMS, INC. v. TINGLEY SYSTEMS, INC.

Page 807

715 A.2d 807

49 Conn.App. 582

NORSE SYSTEMS, INC. v. TINGLEY SYSTEMS, INC.

No. 16966.

Appellate Court of Connecticut.

Argued March 23, 1998.

Decided July 28, 1998.

Todd R. Bainer, Branford, for appellant (plaintiff).

Michael Feldman, Farmington, with whom, on the brief, was Charles E. Hickey, for appellee (defendant).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and SCHALLER, JJ.

LAVERY, Judge.

The plaintiff, Norse Systems, Inc. (Norse), appeals from the trial court's granting of summary judgment on all counts of its complaint in favor of the defendant, Tingley Systems, Inc. (Tingley). On appeal, Norse claims that the trial court improperly (1) failed to recuse itself from hearing Tingley's motion for summary judgment and (2) granted Tingley's motion for summary judgment because (a) there are genuine issues of material fact and (b) the law was misapplied with respect to (i) Tingley's special defense relating to advice of counsel and (ii) Norse's abuse of process and Connecticut Unfair Trade Practice Act (CUTPA) ¹ claims. We affirm the judgment of the trial court.

The following facts are relevant to the case before this court. Norse, a Connecticut corporation, and Tingley, a Florida corporation, do business in the computer industry. Norse develops software programs and systems for health maintenance organizations. Sometime prior to 1988, Tingley had licensed the use of its health maintenance organization software program (software program) under certain conditions to Aetna Health Care Systems, Inc. (Aetna). On or about 1987, Tingley knew that Aetna intended to upgrade its computer hardware. Aetna hired Norse as a consultant to assist in its upgrading efforts. Sequoia Systems, Inc. (Sequoia), was a computer hardware vendor offering to sell Aetna a new computer. In early 1988, Tingley learned certain information that caused its principals to believe that the software program had been used in a manner that violated the license. Tingley received information that Norse had assisted Aetna and Sequoia in benchmarking ² the software program on Sequoia's equipment in Massachusetts. ³ Benchmarking necessarily involved the copying and modification of the software program. Norse stood to gain a sizeable commission from Sequoia if Aetna purchased Sequoia's equipment.

On May 16, 1988, Tingley commenced suit against Norse in the United States District Court for the District of Connecticut alleging copyright infringement, unauthorized access to and misuse of a computer system in violation of General Statutes § § 53a-251 and 52-570b, tortious interference with a business relationship, misappropriation of trade secrets, common-law unfair competition and CUTPA violations. On July 28, 1988, the District Court, Nevas, J., dissolved the temporary restraining order obtained by Tingley finding there was no actual or imminent harm to Tingley. Norse moved for sanctions against Tingley. ⁴

On August 3, 1998, Tingley voluntarily dismissed the suit without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. ⁵ Norse opposed the dismissal and moved to have Aetna made a party defendant to the action. The District Court, Nevas, J., granted Norse's motion to vacate the dismissal and ordered Tingley to join Aetna as a party defendant. Tingley amended its complaint to cite in Aetna. Norse answered the amended complaint and alleged ten counterclaims against Tingley, including federal antitrust violations.

Following discovery and the filing of numerous motions, only two counts of Tingley's amended complaint went to the jury, copyright infringement and tortious interference with business relations. Norse ultimately limited its counterclaims to five, alleging tortious interference with contractual relations, libel, slander, CUTPA violations and common-law unfair competition. Following trial, the jury returned a verdict in favor of Norse on both the amended complaint and its own counterclaims. ⁶ The jury awarded Norse $1,610,500. Tingley filed postverdict motions, and the District Court reduced the verdict to $515,000. ⁷ Norse again moved for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. ⁸ In denying the motion for sanctions, the District Court, Restani, J., found that Tingley had probable cause to bring its claim for copyright violation.

Judgment entered in the federal litigation on September 15, 1993. On September 20, 1993, Norse commenced the present action against Tingley alleging vexatious litigation with malice pursuant to General Statutes § 52-568(2), vexatious litigation pursuant to General Statutes § 52-568(1), abuse of process and CUTPA violations. In 1995, ⁹ Norse filed an application for a prejudgment remedy of more than $1,900,000, which was denied by the trial court following a two day hearing in October, 1996. Tingley then filed a motion for summary judgment, which the trial court granted. Norse appealed. We affirm the judgment of the trial court.

I

Norse's first claim is that the trial court improperly failed to recuse itself from hearing Norse's motion for summary judgment. Norse's claim of judicial bias has two bases: first, that the trial court was privy to settlement discussions and, second, that the trial court acted with bias toward Norse as a result of the prejudgment remedy hearing. We do not agree.

The following additional facts are necessary for our review of this claim. Norse's application for a prejudgment remedy was heard on October 9 and 10, 1996. Prior to the hearing, the trial court met with counsel in chambers during which time the prospects of settlement were discussed. Although there is no transcript of the discussion, the trial court made brief mention of the settlement discussion on the record prior to the prejudgment remedy hearing. ¹⁰ Immediately following the trial court's comment about the settlement discussion, counsel for Norse asked that the parties waive any objection to the prejudgment remedy application's being heard by a trial judge referee. ¹¹

Lief Petterson, president of Norse, was called as a witness to testify, in part, as to the damages Norse incurred as a result of the federal litigation. During cross-examination, Tingley's counsel elicited a response from Petterson that revealed that he had not accurately represented the amount of attorney's fees Norse had incurred at the time of his testimony in the federal case. ¹² A portion of the transcript of the federal trial was placed in evidence; it revealed that, during his closing argument to the federal jury, Norse's counsel, who knew the actual fee arrangements between Norse and its attorneys, adopted Petterson's testimony as to attorney's fees. ¹³ The trial court voiced concern about the discrepancy between Petterson's federal and state court testimony and the argument of Petterson's counsel before the federal jury. The trial court instructed Norse's trial counsel ¹⁴ to prepare an affidavit for the trial court to review and consider next steps, if any. ¹⁵ The trial court denied Norse's application for a prejudgment remedy at the conclusion of the hearing.

On October 29, 1996, Norse filed a motion for recusal. The motion for recusal was based on the trial court's comments about Petterson's testimony and the final argument of Norse's counsel in the federal trial. The motion did not include an affidavit or a certification by counsel that the motion was made in good faith. The motion was denied by the trial court on December 5, 1996.

On December 16, 1996, Tingley filed a motion for summary judgment, which Norse opposed. The trial court heard argument on the motion for summary judgment on February 3, 1997. After Tingley's counsel had argued, Norse's counsel moved orally for the trial court to recuse itself. For the first time, Norse's counsel cited the trial court's participation in the settlement discussion as a basis for the motion and claimed the trial court had not given Norse a fair hearing with respect to the prejudgment remedy application. The trial court denied the motion for recusal.

"A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time." Practice Book § 997, now Practice Book (1998 Rev.) § 1-23. "This provision creates a mandatory procedure to be followed by any party seeking to recuse a judge. See State v. Cook, 183 Conn. 520, 521-23, 441 A.2d 41 (1981)." State v. Weber, 6 Conn.App. 407, 412, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). " 'It is axiomatic that the burden of establishing a record that a judicial impropriety has occurred which demonstrates or gives the appearance of bias or partiality so as to require recusal rests with the party who claims the occurrence of such an impropriety.' State v. Santangelo, 205 Conn. 578, 584, 534 A.2d 1175 (1987)." State v. Teel, 42 Conn.App. 500, 506, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996).

In this case, Norse did not comply with the rules of practice in either instance in which it attempted to have the trial court recuse itself. Norse's written motion contained no affidavit setting forth the facts relied on to show the grounds for disqualification; it also contained no good faith certificate of the counsel of record. Norse never requested or demanded a hearing to present evidence to support its claim of judicial disqualification. "Representations made by counsel are not evidence in the record upon which we can rely in our review of the judge's conduct.... [T]he dictates of Practice Book § 997 [now Practice Book (1998 Rev.) § 1-23], which requirements we hold to be mandatory are a condition...