CADCO, LTD.
v.
DOCTOR'S ASSOCIATES, INC., ET AL.
Argued
November 14, 2018
Procedural
History
Action
to recover damages for, inter alia, unfair trade practices,
and for other relief, brought to the Superior Court in the
judicial district of Litchfield, where the court,
Pickard, J., granted the plaintiff's motion to
cite in additional parties; thereafter, the matter was
transferred to the judicial district of Hartford, Complex
Litigation Docket; subsequently, the court, Moukawsher,
J., granted the defendants' motions for summary
judgment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Patrick E. Power, for the appellant (plaintiff).
Jeffrey R. Babbin, with whom were David R. Roth and, on the
brief, John M. Doroghazi, for the appellees (named defendant
et al.).
Matthew W. Buttrick, pro hac vice, with whom was David T.
Martin, for the appellee (defendant Independent Purchasing
Cooperative, Inc.).
Sheldon, Elgo and Flynn, Js.
OPINION
SHELDON, J.
The
plaintiff, Cadco, Ltd., commenced this action alleging that
the defendants, Doctor's Associates, Inc. (Doctor's
Associates), Franchise World Headquarters, LLC (Franchise),
and Independent Purchasing Cooperative, Inc. (Independent),
engaged in unfair acts or practices and unfair methods of
competition and deceptive acts or practices in their business
dealings with the plaintiff concerning the design and
development of a new product in violation of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes §
42-110a et seq., and that in so doing they unjustly enriched
themselves to the plaintiff's detriment. The plaintiff
appeals from the summary judgment rendered in favor of the
defendants on its complaint. We conclude that the trial court
properly determined that the defendants were entitled to
summary judgment on each of the plaintiff's claims
against them because they established that there was no
genuine issue of material fact that the plaintiff had no
right to prevail on any of those claims. Accordingly, we
affirm the judgment of the trial court.
The
following facts are undisputed. In February, 2012,
representatives from Doctor's Associates, the franchisor
of the Subway restaurant chain in the United States, and
Franchise, a corporation that provides administrative
services to Doctor's Associates, approached the plaintiff
about purchasing a standard flat metal heating plate that the
plaintiff manufactured. The plate was to be considered for
use in Subway restaurants to cook a new flat bread pizza
product called the ‘‘Flatizza.'' As a
result of this meeting, the plaintiff provided one of its
standard heating plates to Doctor's Associates for
testing at Subway headquarters. Doctor's Associates also
requested that the plaintiff sign a nondisclosure agreement
to protect various details about its business practices,
which the plaintiff signed on February 27, 2012.
During
the course of testing, representatives from Franchise
notified the plaintiff that problems had arisen with using
the plaintiff's standard plate to cook the Flatizzas.
Thereafter, between April, 2012, and September, 2012, the
plaintiff made numerous changes to its standard heating plate
to address those problems, creating six different versions of
the plate for the defendants to test. In its correspondence
with defendants Doctor's Associates and Franchise
concerning the changes that had been made to the plates, the
plaintiff shared detailed technical information about its
design. By the end of the testing period, Doctor's
Associates had purchased a total of 133 heating plates from
the plaintiff. Subway's primary oven manufacturer,
TurboChef, ultimately approved the fifth version of the
modified heating plate for use in its ovens in Subway
restaurants. Subway then began to test market the Flatizza in
several cities across the country to determine if it should
offer the new product nationally. To facilitate such market
testing, Doctor's Associates purchased 1, 728 of the
modified heating plates from the plaintiff, in eight separate
orders from May, 2012 through February, 2013.
On June
4, 2012, a meeting was held between several the plaintiff
representatives and representatives from Doctor's
Associates and Franchise. At that meeting, the plaintiff was
informed that if Subway's management decided to offer the
Flatizza throughout the country, it would aim to distribute
the modified heating plates to its franchisees in March,
2013, and thus the plaintiff would be expected to begin
production of the new plates in October, 2012, after the
plaintiff and Independent, Subway's purchasing arm,
determined the pricing for the ‘‘full production
rollout.'' The plaintiff e-mailed representatives of
Doctor's Associates and Franchise on June 7, 2012, to
memorialize the June 4 meeting, but received no response. The
defendants later decided to delay the March, 2013 rollout of
the Flatizza.
From
March, 2013 through September, 2013, the defendants continued
to update the plaintiff regarding the Flatizza project and to
gather information from the plaintiff regarding its
production capabilities for the new plates, the process by
which it would seek national public health and safety
approval for them, and its updates to its proposal for
pricing the plates' production. On March 25, 2013, Ed
Degnan, an equipment specialist for Franchise, requested a
detailed production timeline and cost information from the
plaintiff for an order of 16, 000 plates, but he cautioned in
an e-mail the following day: ‘‘To be clear, this
is exploratory only [and] not an order. DO NOT ORDER ANY
MATERIALS.'' In April, 2013, Franchise informed the
plaintiff, in another e-mail, that it was working with four
different vendors on the project. On May 31, 2013, Tricia
Hetherington, the director of new product development for
Franchise, e-mailed the plaintiff, stating that she would
‘‘like to explore how we could be ready for a
potential February, 2014 launch of Flatizza.''
On July
10, 2013, the plaintiff e-mailed a representative from
Independent to confirm the details of a recent phone call
between itself and Independent concerning the need for a
production timeline and pricing for 22, 000 of the new
plates, Subway's intent to roll out the Flatizza in its
restaurants in February, 2014, and, to that end, its need to
have all of the new plates delivered to a warehouse in
Massachusetts for that purpose by December 20, 2013, and for
the plaintiff to commit to filling the order no later than
September 1, 2013. In response to that e-mail, the
Independent representative stated that, although the
plaintiff's summary of the phone call was accurate,
‘‘[m]uch on our end is not firm, so please await
further information . . . .''
At the
same time, there was uncertainty as to whether Merrychef, the
manufacturer of a different oven used in certain Subway
restaurants as an alternative to the TurboChef oven, would
make its own heating plates for use in its ovens to cook
Flatizzas rather than using plates manufactured by the
plaintiff. Thereafter, on July 10, 2013, Independent asked
the plaintiff to inform it of ‘‘the impact of an
additional 7000 Merrychef style plates should we add these to
the order.'' On July 18, 2013, Franchise sent an
e-mail to the plaintiff with the subject line
‘‘Pizza Plate Bid Information.'' That
e-mail read: ‘‘Do you guys have any questions on
this bid? I have notified my Merrychef rep that if you guys
are approved to manufacture both plates then Merrychef will
need to approve your plate in their oven. I would then send
one of the [two] Merrychef plates you sent me to Merrychef
for approvals.'' This was the first and only
documented mention to the plaintiff by any defendant that the
choice of manufacturer for the new heating plates, if they
were ordered, would be made through a bidding process. Later
that evening, Franchise e-mailed the plaintiff that it
‘‘looks like you are ready to [go] if we give you
the go ahead.''
On
August 1, 2013, Independent e-mailed the plaintiff to verify
the production timeline information for a presentation by
Franchise and Independent to ‘‘the leadership,
'' so that the leadership could
‘‘understand the timing of the decision
required.'' On August 16, 2013, the plaintiff
e-mailed Independent to confirm a quote for the heating
plates of $67.27 per unit. On September 13, 2013, Degnan
informed the plaintiff that there were no new updates on the
Flatizza project and that he would not expect any decisions
that year. The final e-mail exchange between Franchise and
the plaintiff occurred on September 23, 2013, when the
plaintiff asked Franchise to ‘‘go over a few
things'' over the telephone and Franchise ...