Rosenblit v. Danaher

• Decision Date: 02 February 1988
• Docket Number: No. 13139,13139
• Citation: 537 A.2d 145,206 Conn. 125
• Court: Connecticut Supreme Court
• Parties: Jack L. ROSENBLIT, et al. v. William K. DANAHER, Jr., et al.

Page 145

537 A.2d 145

206 Conn. 125

Jack L. ROSENBLIT, et al. v. William K. DANAHER, Jr., et al.

No. 13139.

Supreme Court of Connecticut.

Argued Nov. 5, 1987.

Decided Feb. 2, 1988.

Mark S. Rosenblit, West Hartford, for appellants (plaintiffs).

Denise Martino Phelan, with whom, on the brief, was Andrew J. O'Keefe, West Hartford, for appellees (named defendants).

Before ARTHUR H. HEALEY, CALLAHAN, GLASS, COVELLO and SANTANIELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The ultimate issue on this appeal concerns whether the trial court, M. Hennessey, Jr., erred in dismissing the plaintiffs' action on the ground of lack of personal jurisdiction under the Connecticut long arm statute, i.e., General Statutes § 52-59b, ¹ over the named defendant, William K. Danaher, Jr., who is an out-of-state resident. We find no error.

The following background circumstances are set out in order to place in proper context our determination of this matter. The plaintiffs, Jack L. Rosenblit, Jack S. Joseph and Gino Marchetti, who constitute a Connecticut general partnership known as The Worthy Group, instituted an action against William K. Danaher, Jr., David P. Connor, Daniel M. Keyes, Jr., and Leonard Orland, returnable to the Superior Court at Hartford. ² Rosenblit and Joseph are Connecticut residents. Marchetti is a Massachusetts resident. The defendant Orland, a Connecticut resident, is a law professor in Connecticut and an attorney admitted to practice in Connecticut. The defendants Danaher, Connor and Keyes are all Massachusetts residents. Danaher is also an attorney admitted to practice in Massachusetts. The multicount complaint of the plaintiffs claimed damages and other relief for alleged legal malpractice, fraud, negligent misrepresentation, common law conversion, statutory theft (General Statutes § 52-564) and violations of the Connecticut Unfair Trade Practices Act. ³

The record discloses the following: In February, 1978, Rosenblit, Joseph and Marchetti, who were developers, formed The Worthy Group for the purpose of rehabilitating the Worthy Hotel located in Springfield, Massachusetts. In order to do so, it was necessary to obtain an exclusive option to buy the site of the hotel, certain building and zoning code variances, formal allocation to this project of Section 8 rent subsidies from the United States Department of Housing and Urban Development (HUD) and a Massachusetts Housing and Finance Agency (MHFA) commitment for a long term, low interest mortgage loan. After some contacts and negotiations with certain Massachusetts residents, both corporate and individual, the plaintiffs, in the first half of 1982, sought legal advice from the defendant Keyes with reference to filing a suit against MHFA, the Springfield Redevelopment Authority, the mayor of Springfield, Attorney Anthony W. Ravosa (an associate of the mayor), and a Connecticut developer who allegedly had encountered much more success with developing the rehabilitation of the Worthy Hotel than had the plaintiffs. As a result of Keyes' representations and recommendations, the plaintiffs met with and retained Danaher's law firm to take the case. "Some three months later," ⁴ Danaher introduced the plaintiffs to Orland. As a result of representations claimed to have been made to the plaintiffs by both Danaher and Orland concerning the nature of the litigation to be instituted, the dollar potential of a recovery in damages, their expertise in antitrust litigation, their having "joint-ventured many antitrust cases together in the past," as well as a representation that Danaher's law firm and Orland would take the case as "partners," Danaher subsequently filed an antitrust suit ⁵ on behalf of the plaintiffs in the United States District Court for the District of Massachusetts. Thereafter, the plaintiffs alleged their dissatisfaction with the conduct and nature of this litigation, including the failure to name certain parties as defendants and Danaher's management of the action. Danaher attempted to withdraw from the case, but his first motion to withdraw was denied. The defendants in the antitrust action then moved for summary judgment and, shortly thereafter, Danaher, who filed objections to that motion, again moved to withdraw and his motion was granted. The plaintiffs obtained new counsel whose subsequent motion to add additional counts to the pending antitrust suit was denied. Thereafter, the United States Magistrate issued his "Report and Recommendation on Defendants' Motions for Summary Judgment" that recommended the granting of such motions. ⁶ The motions for summary judgment by the antitrust defendants were later granted and the present lawsuit ensued.

The plaintiffs sought to make service in this action on Danaher under the Connecticut long arm statute, i.e., General Statutes § 52-59b. Danaher moved to dismiss the action on the ground that the Superior Court lacked personal jurisdiction over him. The trial court, Purtill, J., held a hearing on Danaher's motion at the same time it heard a separate motion to dismiss filed by Orland. In its memorandum of decision filed January 7, 1986, on these motions, the trial court denied Orland's motion. ⁷ In that memorandum, after a discussion of the legal principles involving Danaher's motion, the trial court, Purtill, J., held that the "plaintiff[s'] affidavits, however, are not sufficient to allow the court to make a determination of jurisdiction [as to Danaher] under the long arm statute." It also pointed out that where an issue of personal jurisdiction has been raised, the burden is on the plaintiff to prove the facts establishing personal jurisdiction and that there were questions of fact that existed which could be resolved only by an evidentiary hearing. As to Danaher's motion, it concluded: "No action is taken on defendant Danaher's motion. Defendant Danaher's motion may be reclaimed for argument with full evidentiary hearing."

Later, Danaher's motion to dismiss was reclaimed and came before the trial court, M. Hennessey, J. An evidentiary hearing was not held; rather, the parties and the trial court agreed that additional affidavits ⁸ were to be submitted on the factual issues, together with supplemental memoranda of law. In its written memorandum of decision, ⁹ the trial court, M. Hennessey, J., granted Danaher's motion to dismiss. In doing so, it concluded from the facts it found that "the minimum contact requirement for the operation of the long arm statute [had] not been satisfied" and that the plaintiffs had not demonstrated that they should prevail on their alternative claim that jurisdiction existed under an agency theory, i.e., that the claimed tortious acts of Orland were to be imputed to Danaher. This appeal followed.

The plaintiffs claim, regarding the dismissal of the action as to Danaher, that the trial court erred in: (1) not applying, as the law of the case with respect to subsequent proceedings, the law set out by Judge Purtill in his January 3, 1986 memorandum; ¹⁰ (2) failing to find in personam jurisdiction over Danaher under General Statutes § 52-59b(a)(1) directly because of his own activities in Connecticut that were undertaken in pursuance of the plaintiffs' antitrust suit; (3) failing to find in personam jurisdiction over Danaher under General Statutes § 52-59b(a)(1) and/or (2) indirectly, because of the activities of his agent, Orland, in Connecticut, that were undertaken in pursuance of, or otherwise related to, the plaintiffs' antitrust suit; and (4) failing to state the factual basis of its decision on certain factual issues and certain claims of law raised by the parties, thereby violating Practice Book § 4059 and, therefore, erroneously denied the plaintiffs' motion for reargument. We find no error.

I

We turn first to the claim that the trial court did not apply, as the law of the case, the law set out by Judge Purtill in his earlier decision. In pressing this claim, the plaintiffs argue that because Danaher has not, by motion, notice of intention to appeal or the like, undertaken any action, the effect of which would make or seek to make Judge Purtill's decision ineffective, then that decision must be regarded as setting the law of the case that should have been applied by the trial court, M. Hennessey, J., in reaching its decision. The plaintiffs also claim that this position is reinforced by their argument that the two memoranda of decision are essentially complimentary because Judge Purtill's memorandum set out the law and made no attempt to make findings of fact, whereas Judge Hennessey's memorandum, which they allege did not set out the applicable law, made findings of fact "to which it should have applied the law as already enunciated [by Judge Purtill]." The plaintiffs' claims are not persuasive.

"The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739 , 56 L.Ed. 1152 (1912)." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). We observed in Breen that the law of the case doctrine is not one of unbending rigor when we said: " 'A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision.' Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932)." Id., 186 Conn. at 98, 439 A.2d 1066; see also State v. Mariano, 152 Conn. 85, 91, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962 (1965). In Breen, however, we held that "[a] judge should hesitate...