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Brown v. Otake

Court of Appeals of Connecticut

April 19, 2016


Argued January 5 2016

Appeal from Superior Court, judicial district of Hartford, Domnarski, J. [motion to strike]; Hon. Richard M. Rittenband, judge trial referee [summary judgment motion; judgment].

Devin W. Janosov, with whom was Lukas J. Thomas, for the appellant (plaintiff).

Jeffrey J. Mirman, with whom, on the brief, was Alexa T. Millinger, for the appellees (defendants).

Sheldon, Keller and Prescott, Js.



The plaintiff, Stephen A. Brown, appeals from the summary judgment rendered by the trial court in favor of the defendants, Leo Otake and Saint Francis Hospital and Medical Center (hospital).[1]The plaintiff’s principal claim on appeal is that the court improperly violated the law of the case doctrine by granting summary judgment in favor of the defendants on all counts of the complaint on the basis of its determination that, as a matter of law, no contract existed between the parties, despite a prior ruling by the court on a motion to strike that suggested that the formation of a contract was immaterial to those counts of the complaint that alleged negligent and intentional misrepresentation and tortious interference with business expectancies (noncontractual counts).[2] We disagree and affirm the judgment of the court.

The record reveals the following undisputed facts and procedural history relevant to our review. The plaintiff was a plastic surgeon who practiced in Hartford and New Britain, and had privileges at the hospital.[3]The plaintiff decided to retire from practice due to physical limitations that began to affect his ability to perform surgeries. Hoping to find someone to purchase his practice, he hired a broker to help him locate a buyer.

The broker contacted Otake about the opportunity to purchase the plaintiff’s practice in 2009. At that time, Otake practiced plastic and reconstructive surgery at Yale-New Haven Hospital, commuting there from his home in Westchester County, New York. The plaintiff and Otake began communicating directly in November, 2009, and spoke on and off throughout the first half of 2010, trying to negotiate terms for the sale of the plaintiff’s practice to Otake. Although Otake expressed interest in purchasing the plaintiff’s practice, he was unsure about relocating to the Hartford area and also was considering other opportunities.

The plaintiff assured Otake that the plaintiff’s practice was doing very well and that he would provide letters introducing Otake to his patients. The plaintiff also made clear that he was willing to stay on with the practice in the short term, if Otake bought it, to aid Otake in the transition. The plaintiff, who understood that the hospital was looking to offer a two year stipend to ensure adequate plastic surgery coverage for the hospital, introduced Otake to members of the hospital’s surgery department, including the chief of surgery, with the hope that Otake and the hospital could come to a short-term staffing arrangement that would benefit all parties. Ultimately, however, Otake decided not to purchase the plaintiff’s practice, and instead took a fulltime position that he was offered by the hospital in August, 2010.

In May, 2011, the plaintiff commenced this action against the defendants. According to the plaintiff’s initial complaint, he and Otake had reached an agreement about the sale of the plaintiff’s practice, and although the plaintiff had performed all of his obligations in accordance with that agreement, he suffered damages as a result of the defendants’ conduct. In particular, the plaintiff alleged that he expended considerable time and effort keeping his practice operational during the transition process, and that those efforts were made in reliance on Otake’s representation that he would buy the practice. Among the expenses that the plaintiff alleged he incurred in keeping his practice operational were office expenses, salaries, overhead, rent, utilities, supplies, and malpractice insurance. Additionally, the plaintiff alleged that despite having introduced Otake to the hospital as ‘‘the plastic and reconstructive surgeon who was purchasing his business and practice, ’’ the hospital and Otake secretly had agreed that, instead of offering Otake a two year stipend, the hospital would hire Otake as a full-time employee to enhance the hospital’s existing plastic surgery department, which would directly compete with the plaintiff’s practice.

The plaintiff’s initial complaint contained seven counts. Counts one and six alleged claims against Otake for breach of contract and unjust enrichment; count seven alleged tortious interference with business expectancies against the hospital; and counts two through five alleged, respectively, negligent misrepresentation, intentional misrepresentation, breach of the duty of good faith and fair dealing, and fraudulent concealment against both defendants.

On July 7, 2011, the defendants filed a joint motion to strike all counts of the complaint for failure to set forth sufficient facts to state a cognizable claim. The court, Domnarski, J., rendered a decision on October 14, 2011, granting in part and denying in part the motion to strike.

The court granted the motion to strike as to four counts of the complaint. First, the court reasoned that although the plaintiff had alleged in the complaint that he and Otake had agreed in principle to a sale of the plaintiff’s practice to Otake, the plaintiff had failed to plead facts demonstrating that they had come to terms about essential provisions necessary for the formation of a contract, such as a purchase price. The court concluded that this was fatal to the plaintiff’s breach of contract count.

Second, the court determined that there was no allegation in the complaint of a contractual relationship between the plaintiff and the hospital. Because the plaintiff had failed to plead facts establishing the existence of a contract between himself and either of the defendants, the court concluded that the plaintiff’s count against them for breach of the duty of good faith and fair dealing failed to state a valid cause of action.

Third, the court concluded that the count alleging fraudulent concealment must be stricken because Connecticut does not recognize an independent cause of action for fraudulent concealment. The court, citing ZenkPinter v.Henry J. Showah, DDS, P.C., Superior Court, judicial district of Danbury, Docket No. CV-10-6002725 (September 23, 2010) (50 Conn.L.Rptr. 689, 690), explained that ‘‘[General Statutes § 52-595] is the codification of the common-law rule that fraudulent concealment is an avoidance of an affirmative ...

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