Solomon v. Aberman

• Decision Date: 04 June 1985
• Citation: 196 Conn. 359,493 A.2d 193
• Court: Connecticut Supreme Court
• Parties: Elisabeth F.S. SOLOMON v. Rosalie ABERMAN et al. Elisabeth F.S. SOLOMON v. David LEVETT.

Page 193

493 A.2d 193

196 Conn. 359

Elisabeth F.S. SOLOMON v. Rosalie ABERMAN et al.

Elisabeth F.S. SOLOMON v. David LEVETT.

Supreme Court of Connecticut.

Argued Feb. 8, 1985.

Decided June 4, 1985.

William J. Doyle, New Haven, with whom were Patrick M. Noonan, New Haven, and, on the brief, Arnold J. Bai, Trumbull, for appellants (defendants in the first case) and appellee (defendant in the second case).

David P. Burke, with whom, on the brief, were David S. Maclay and Suzanne E. Baldesare, Bridgeport, for appellee (plaintiff in the first case).

A. Reynolds Gordon, Bridgeport, with whom, on the brief, was Arthur A. Hiller, Bridgeport, for appellant (plaintiff in the second case).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, DANNEHY and SATTER, JJ.

ARTHUR H. HEALEY, Associate Justice.

The appeals here from decisions in two actions filed by the plaintiff are discussed separately.

I

(Solomon v. Aberman and Levett)

This is an appeal from an order granting a prejudgment remedy to the plaintiff, Elisabeth F.S. Solomon, against the defendants, Rosalie Aberman and David R. Levett. This legal controversy involves events surrounding the plaintiff's discharge from all the positions held by her with the Hall-Brooke Foundation (Hall-Brooke). On this appeal, the defendants attack the trial court's findings of fact and conclusions of law. They specifically claim that: the trial court's opinion is infected with a multitude of factual errors; the trial court failed to consider and weigh all the evidence before granting a prejudgment remedy; the trial court misstated and inappropriately expanded the law of individual liability for corporate acts; the trial court misapplied the law of wrongful discharge; a prejudgment remedy hearing is an inappropriate forum for significant expansion of the law; no evidence exists to support the only cognizable claims, i.e., tortious interference with contractual and beneficial relationships; and the evidence does not support the trial court's finding of potential damages. ¹

The plaintiff's complaint and affidavit in support of her request for a prejudgment remedy; General Statutes § 52-278c; charge that these defendants had tortiously interfered with her contractual and beneficial relationships with Hall-Brooke. These as well as documents presented and testimony elicited over seven days of the hearing on the plaintiff's application for a prejudgment remedy included the following circumstances. The plaintiff is an accredited professional hospital administrator who owned and operated the Hall-Brooke Hospital in Westport which, in 1966, she transferred to the Hall-Brooke Foundation, Inc. In return, it was agreed that she would be employed by Hall-Brooke as its executive director and chief administrative officer until she either reached age sixty-five or retired. The plaintiff also leased the hospital buildings and realty to Hall-Brooke. In 1969, she became a "sustaining" lifetime member of Hall-Brooke's board of trustees as well as its treasurer; these positions were held by her in addition to the executive director post.

The defendant Aberman was hired in 1976 to work at Hall-Brooke in a position subordinate to that of the plaintiff. She is not an accredited hospital administrator. After the trustees granted the plaintiff's request in 1979 for a leave of absence from her position as Hall-Brooke's executive director, Aberman was appointed as acting executive director specifically for the duration of the term of the plaintiff's leave of absence. ² While on leave, the plaintiff, with the approval of the trustees, held a newly created position as planning director of Hall-Brooke, also retaining her positions as trustee and treasurer. For the few months after the August, 1979 trustees' meeting until about February or March, 1980, the plaintiff and Aberman seemed to work amicably as they had done in the past. Problems then arose between Aberman and the plaintiff, and on May 22, 1980, the board voted to discharge the plaintiff from all her positions with Hall-Brooke. The defendant Levett, a partner in the law firm of Cummings & Lockwood, which represented Hall-Brooke at that time, handled the firm's Hall-Brooke account prior to and at the time of the plaintiff's discharge. Within nine months after the plaintiff's discharge, Hall-Brooke became a client of a newly formed law firm of which Levett was a founding partner.

The plaintiff instituted the present action against these defendants alleging tortious interference of contractual and beneficial relations with Hall-Brooke. After seven days of hearing on the plaintiff's request for a prejudgment order, covering over 1300 pages of transcript and at which in excess of fifty exhibits were introduced, the trial court found probable cause and granted the request, which involved attachment of the defendants' real property.

We have recently examined the trial court's function in considering an application for prejudgment remedy of attachment: "The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the court determine 'whether or not there is probable cause to sustain the validity of the plaintiff's claim'; General Statutes § 52-278d(a); that is to say 'probable cause that judgment will be rendered in the matter in favor of the plaintiff.' General Statutes § 52-278c(a)(2). 'The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.' Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). The court's role in such a hearing is to determine probable success by weighing probabilities. Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979)." Three S Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn.App. 388, 393, 480 A.2d 561 (1984).

Although the hearing on an application for a prejudgment remedy "is not a trial on the merits"; Michael Papa Associates v. Julian, supra, 447, 423 A.2d 105, the trial court "must weigh the plaintiff's affidavit and the oral testimony and the documentary proof submitted by both parties." William M. Raveis & Associates, Inc. v. Kimball, 186 Conn. 329, 333, 441 A.2d 200 (1982) (tortious interference with contractual relationship alleged).

We have also stated that "[t]his court's role on review is very circumscribed." Three S. Development Co. v. Santore, supra, 176, 474 A.2d 795. In its determination of probable cause, "the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. Augeri v. C.F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977)." Three S. Development Co. v. Santore, supra. Since Augeri v. C.F. Wooding Co., supra, we have consistently enunciated our standard of review in these matters. " 'In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.' " Three S. Development Co. v. Santore, supra; William M. Raveis & Associates, Inc. v. Kimball, supra, 333, 441 A.2d 200; Babiarz v. Hartford Special, Inc., supra, 392-94, 480 A.2d 561; see also Michael Papa Associates v. Julian, supra, 447, 423 A.2d 105. At this time, therefore, we need only decide whether the trial court's conclusions were reasonable under the "clear error" standard.

The gravamen of the plaintiff's complaints against these two defendants, as well as the basis upon which the trial court ordered the prejudgment remedy, was that they had tortiously interfered with the plaintiff's contractual and beneficial relations with Hall-Brooke. "This court has long recognized a cause of action for tortious interference with contract rights or other business relations." (Citations omitted.) Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the defendant(s), "knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss." Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975). " '[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.)." Blake v. Levy, supra, 261, 464 A.2d 52, quoting Kecko Piping Co. v. Monroe, 172 Conn. 197, 201-202, 374 A.2d 179 (1977); see also Jones v. O'Connell, 189 Conn. 648, 650, 458 A.2d 355 (1983). The burden is on the plaintiff "to plead and prove at least some improper motive or improper means"; Blake v. Levy, supra, 262, 464 A.2d 52; on the part of the defendants.

The trial court found and the parties appear to agree that the plaintiff had a contractual and beneficial relationship with Hall-Brooke, a nonprofit corporation which now operates a psychiatric hospital and school in Westport. The plaintiff was...