Opinion
No. CV 07 5005136
December 2, 2009
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGEMENT No. 158 and 184
This case is a sequelae of a family real estate transaction in which a one-third interest in a valuable property located in Weekapaug, Rhode Island was transferred. This sale has spawned litigation in Rhode Island and Connecticut. The case before this court includes claims for tortious interference with contractual rights, wilful, wanton and reckless conduct and the intentional infliction of emotional distress against two of the plaintiff's cousins and the cousins' lawyer.
Michael Bradley, the plaintiff, purchased a one-third interest in the Weekapaug property from his cousin, Joan Kelly, on November 9, 2005. In counts one through six of his complaint, the plaintiff claims that the defendants Paula and Anne Moran, his cousins, tortiously interfered with the plaintiff's contract with Joan Kelly, committed willful, wanton and reckless acts in manipulating Joan Kelly to file suit against the plaintiff and intentionally inflicted emotional distress on the plaintiff by persuading Joan Kelly to file an undue influence suit against him and falsely claiming that he was taking advantage of her. In count seven of his complaint, the plaintiff alleges that Heath Comley, Paula and Anne Moran's attorney, tortiously interfered with the plaintiff's contract with Joan Kelly by reviewing and approving the letter sent to Joan Kelly even though he knew it to be false and by informing Joan Kelly that the plaintiff's actions could form the basis for a rescission suit. In count eight of his complaint, the plaintiff alleges that Attorney Comley intentionally inflicted emotional distress on the plaintiff by persuading Joan Kelly to file an undue influence suit against him and falsely claiming that he was taking advantage of her. In count nine, the plaintiff alleges that Hugh Comley engaged in willful, wanton and reckless conduct by aiding the Moran sisters in manipulating Joan Kelly into filing suit against the plaintiff. Finally, count ten of the plaintiff's complaint, alleging defamation on the part of Attorney Comley, was stricken pursuant to agreement between the parties on August 4, 2008.
Undisputed Facts
The following facts are not in genuine dispute by the parties to this litigation. Prior to, and as of October 2005, Paula and Anne Moran held an interest as tenants in common in a piece of waterfront property known as "Pirates Island" located in Weekapaug, Rhode Island. They shared this interest with their sister, Joan Kelly. In October 2005, Joan Kelly contacted the plaintiff, Michael Bradley and indicated that she was looking to sell her interest in the property because she was facing financial hardship and her sisters denied her requests to allow her to mortgage her interest in the property to obtain a loan. At that time, Joan Kelly asked the plaintiff, who is an attorney, if he would represent her in a partition action. The plaintiff declined to represent Joan Kelly. The plaintiff commented to Kelly, however, that if her negotiations with her sisters failed that he would be interested in buying her interest in the property.
By a Purchase and Sale agreement dated November 9, 2005 the plaintiff agreed to pay Joan Kelly $320,000 for her interest in the property and for her interest in the property. A closing and a transfer of deed occurred on the same day. Joan Kelly was not represented in this transaction.
After the closing, Anne and Paula Moran contacted the plaintiff and asked the plaintiff to convey his interest to them in exchange for their paying him what he had paid Joan Kelly in exchange for her interest in the Property. The plaintiff and the defendant Moran sisters could not reach an agreement.
The plaintiff thereafter instituted a partition action in Rhode Island Superior Court. Anne and Paula Moran hired Providence, Rhode Island, Attorney Heath Comley to represent them in the partition action. In their answer and special defense to the partition action the Moran sisters alleged that Joan Kelly was unduly influenced by the plaintiff during the negotiation of the original conveyance. A sale of the property was ordered by the Rhode Island Superior Court and the plaintiff was the only bidder for the property at auction with a bid of $1,050,000.
On May 10, 2006, Paula and Anne Moran, while being represented by Hugh Comley, wrote a letter to Joan Kelly stating that the plaintiff had appraised the property at more than $2,000,000 and that he had made disparaging comments about their father. In that letter, Paula and Anne Moran also encouraged Joan Kelly to contact Hugh Comley to better understand her legal options with regard to the sale of her interest in the Property to the plaintiff.
On or about June 14, 2006, after receipt of this letter and before the partition sale was finalized by the Rhode Island court Joan Kelly brought suit against the plaintiff alleging undue influence. The filing of Joan Kelly's undue influence suit was one of the factors considered by the Rhode Island Superior Court, which on July 28, 2006 enjoined the sale of the property pending the outcome of Joan Kelly's suit.
In September of 2007, Joan Kelly withdrew her undue influence suit against the plaintiff. In early 2008, the Rhode Island court ordered a new partition sale of the property and at this sale the defendant Moran sisters were the highest bidders, bidding $1,500,000. The plaintiff received one-third of the net proceeds of the sale.
The Motions
On June 1, 2009, Paula and Anne Moran filed for summary judgment arguing that the tortious interference claims should be summarily decided because the purchase and sale agreement between the plaintiff and Joan Kelly with regard to the Property had been fully performed, and thus it was impossible to interfere with a completed and fully performed contract. They also argue that summary judgment should be granted with regard to the plaintiff's claims for intentional infliction of emotional distress because the plaintiff has provided no evidence to show that the defendants intended to cause emotional distress or that their conduct was extreme and outrageous. Finally, they argue that summary judgment in their favor is appropriate with regard to the plaintiff's claim of wilful, wanton and reckless conduct because they did not owe a duty to the plaintiff that could have been breached. The defendants attached the deposition transcripts of the plaintiff, as well as other documentary evidence in support of their motion for summary judgment. On August 5, 2009, Heath Comley filed a motion for summary judgment raising identical arguments to the arguments made by the Moran sisters.
On August 5, 2009 the plaintiff filed an objection to the Moran sisters' motion for summary judgment supported by deposition transcripts and an affidavit. In his memorandum supporting his objection, the plaintiff argues that he has adequately alleged that elements of tortious interference with contract. With regard to the counts relating to intentional infliction of emotional distress, the plaintiff argues that under Rhode Island law, he need not prove physical symptomatology to recover for emotional distress. On August 18, 2009, the plaintiff filed an objection to Heath Comley's motion for summary judgment incorporating his previous objection to the Moran sisters' motion for summary judgment. All parties have submitted further memoranda in support of their motions and objections.
DISCUSSION Choice of Law
As preliminary issue, the court must determine whether Rhode Island or Connecticut law should apply in this case. The plaintiff argues that Rhode Island Law should apply because the plaintiff is a resident of Rhode Island, the allegedly tortious conduct involved a Rhode Island property, and as a result of the tortious conduct, the plaintiff was subjected to a lawsuit in a Rhode Island Superior Court. Paula and Anne Moran argue that because the allegedly tortious letter was written, sent and received in Connecticut, Connecticut law should apply.
Connecticut has adopted the "most significant interest test" for determining choice of law issues in tort cases. Jaiguay v. Vasquez, 287 Conn. 323, 351, 948 A.2d 955 (2008). "[The Connecticut Supreme Court] . . . summarized the most significant relationship test set forth in §§ 6 and 145 of the Restatement (Second) as follows. `Subsection (1) of § 145 of the Restatement (Second) of Conflict of Laws provides that "[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6." 1 Restatement (Second), [ supra, § 145 (1), p. 414]. Subsection (2) of § 6 of the Restatement (Second) of Conflict of Laws, in turn, provides: `When there is no [statutory] directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (e) the relevant policies of other interested states and the relative interests of those states in the determination of a particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.' Id., § 6(2), p. 10.
"For assistance in our evaluation of the policy choices set out in §§ 145 (1) and 6 (2) we turn . . . to § 145(2) . . . which establishes black-letter rules of priority to facilitate the application of the principles of § 6 to tort cases . . . Subsection (2) of § 145 . . . provides: `Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.' [ Id.], § 145(2), p. 414." Id.
In the present case, the alleged injuries occurred largely in Rhode Island. While the letter may have been typed and mailed within Connecticut, its alleged purpose was to cause Joan Kelly to file suit against the plaintiff in Rhode Island in an effort to rescind the sale of her interest in the Property. The defendants are domiciled in California, Connecticut and Rhode Island while the plaintiff is domiciled in Rhode Island. The Moran defendants, while not domiciled in Rhode Island own real property in that state. The defendant Comley is sued for his provision of professional services in his capacity as an attorney licensed in the state of Rhode Island. The relationship between the parties, with regard to this litigation, is centered in Rhode Island in that the parties are related by their common ownership of the Property or the provision of legal services with regard to the Property. Considering the various factors, the court finds that although some of the parties are from Connecticut that Rhode Island is the state with the most significant interests in this case and its laws should apply.
While I find that Rhode Island substantive law should apply in the present case, the summary judgment requirements as expressed in the Connecticut Practice Book and construed by Connecticut courts will be used in determining whether summary judgment is appropriate. See Jaiguay v. Vasquez, supra, 287 Conn. 362 (using the Connecticut standard for summary judgment while following New York substantive law in a workers' compensation case). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
Tortious Interference with Contract: Moran Sisters
While the plaintiff has labeled the counts of his complaint as "tortious interference with contract," the court finds that the allegations made in the complaint also closely mirror claims made under the related tort of "interference with prospective contractual relations." This tort was recognized in Mesolella v. Providence, 508 A.2d 661, 669-70 (R.I. 1986). In that case, as in the present case, the plaintiff had not specifically captioned his count as "interference with prospective contractual relations," however, the Rhode Island Supreme Court construed the plaintiff's allegations as sounding in that tort and treated the claims accordingly. In Mesolella, the court stated that "one who intentionally and improperly interferes with another's prospective contractual relation . . . is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of (a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation.
"The particular elements of the tort include (1) the existence of a business relationship or expectancy, (2) knowledge by the interferer of the relationship or expectancy, (3) an intentional act of interference, (4) proof that the interference caused the harm sustained, and (5) damages to the plaintiff . . . Malice, in the sense of spite or ill will, is not required; rather legal malice — an intent to do harm without justification — will suffice. The burden is on the defendant to show justification.
"These elements are identical to those required to state a claim based on tortious interference with contractual relations, except for the requirement in the latter that an actual contract exist." (Citations omitted; emphasis added internal quotation marks omitted.) Id.
"Many factors are instructive in determining whether an alleged interference with contract occurred without justification or was otherwise improper. These include the nature of the actor's conduct, the interests of the party with whom the actor's conduct interferes, and the relations between the parties . . . Because the application of these factors is necessarily fact-specific, their utility and relevance in determining justification will vary on a case-by-case basis." (Citations omitted; internal quotation marks omitted.) UST Corp. v. Gen. Road Trucking Corp., 783 A.2d 931, 937 (R.I. 2001).
The determination of whether the defendants' involvement in the ultimate disposition of the Property constituted a tortious interference with the plaintiff's prospective or existing contract rights requires the court to conduct a "fact specific" inquiry with regard to their motives, the nature of their conduct and their relationship to the Property, Joan Kelly and the plaintiff. While the Rhode Island Supreme Court has allowed for summary judgment in favor of defendants in tortious interference actions, it has done so only where the claims of improper interference were "not improper as a matter of law, and no reasonable jury could find otherwise." See Avilla v. Newport Grand, 935 A.2d 91, 99 (R.I. 2007).
In their memoranda in support of their motion for summary judgment, the defendants argue that because the contract at the heart of the litigation, namely the purchase and sale agreement relating to the Property, had been fully performed, no contract existed and therefore the plaintiff could not make a claim for tortious interference with contract. The plaintiff however, has supported facts concerning the defendant's conduct subsequent to the real estate closing that are the cause of his alleged injury. While the contract between the plaintiff and Joan Kelly may have been completed though the transfer of a deed to the Property on November 9, 2005, the plaintiff has alleged that the defendants' actions breathed new life into the contract by causing Joan Kelly to challenge its validity and seek its rescission in June of 2006.
The defendants' motion for summary judgment must fail for several reasons. First they are predicated on the legal theory that the contract in question was fully performed and had merged into the deed for the property. As previously discussed the thrust of the defendant's conduct was to bring about the rescission of the completed contract. As such, the goal was to, in effect, unperform the performed contract. Secondly, the affidavits in this case frame several areas of factual disputes with regard to the interpretation and content of the letter written by the defendants to Joan Kelly. There are disputes about whether disparaging remarks were made, whether or not the plaintiff had multiple appraisals of the property at the time of his negotiations with Joan Kelly and as to the meaning of other portions of the letter.
The parties thus hold conflicting views about the import of the letter, the motivation of the letter writers, the effect that this letter had on its recipient. These are genuine disputes about material facts. Because the plaintiff has raised several disputed issues of material fact, summary judgment with regard to counts one and four is denied.
Tortious Interference with Contract: Attorney Comley
In addition to the ordinary requirements for proving a claim of tortious interference, where the accused tortfeasor is an attorney acting in his or her professional capacity, the plaintiff must also show additional elements of impropriety. The Rhode Island Supreme Court has stated that "an attorney has no general duty to the opposing party, and therefore, a third party does not ordinarily have standing to pursue a claim for tortious interference against his adversary's attorney . . . [W]e have recognized that an attorney can be liable for injuries to third parties when his conduct is fraudulent or malicious . . . Specifically, an attorney owes a duty to an adverse party not to participate actively in fraudulent conduct." (Citations omitted; internal quotation marks omitted.) Totse Farm Corporation v. Hadbury, Inc., 798 A.2d 901, 907 (R.I. 2002).
In order to sustain his claims against Attorney Comley, the plaintiff must demonstrate that the defendant's conduct was active participation in fraudulent conduct. The plaintiff has supplied sufficient evidentiary support to raise material issues of fact with regard to the extent and nature of Attorney Comley's involvement in the attempt to persuade Joan Kelly to support the rescission of the contract as he provided legal advice to the Moran sisters. The plaintiff has provided excerpts of Mr. Comley's testimony in a Rhode Island action. When this testimony is compared to portions of the plaintiff's affidavit it demonstrates genuine issues of fact remain in dispute. These facts will be material as a court or a jury determination of the intent and motives of the parties.
The affidavits supporting and opposing the granting of this motion go into the nature and extent of the defendant Comley's participation in his client's efforts to encourage Joan Kelly to challenge the real estate contract that she had entered into with the plaintiff. The defendant Comley did advise the Moran sisters in their effort to persuade Joan Kelly to file a rescission suit against the plaintiff. The letter authored by the Moran sisters contains allegations that the plaintiff affies were known to be false by Comley at the time the letter was sent. Although Comley was not a signatory to the letter he acknowledges reviewing the letter with the Moran sisters before it was sent. Further the letter directed Joan Kelly to contact Comley for assistance in obtaining legal representation to file the rescission litigation should she decide to do so. In fact Kelly did contact Comley and did secure legal representation to file suit.
The thrust of Comley motion for summary judgment is that the plaintiff cannot prove the elements of this claim because the contract was fully performed, that the plaintiff has not been damaged, and that the letter did not proximately cause Joan Kelly to file the rescission lawsuit.
As previously noted I have rejected the arguments presented by the Morans as to the non existence of a contract that would support the plaintiff's claims. While the plaintiff has made a profit from the sale of the property, it is also clear that at one point the Rhode Island court was poised to confirm a partition sale to the plaintiff, but the court did not do so because of the Kelly rescission lawsuit. This raises an issue as to whether the plaintiff has been damaged. Additionally, proximate cause issues are factual determinations that are best left to a jury's determination.
For all of these reasons, the entry of summary judgment in favor of Attorney Comley with regard to count Seven is not appropriate. The motion is denied as to count seven.
Intentional Infliction of Emotional Distress as to All Defendants
"To prevail on a claim for intentional infliction of emotional distress, a plaintiff must show `extreme and outrageous conduct' on the part of the defendant . . . [A] plaintiff must [also] prove physical symptomatology resulting from the alleged improper conduct . . . With respect to the necessary conduct required to be proven, we have adopted the very high standard set forth in the Restatement (Second) Torts § 46 (1965): It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" (Citations omitted; internal quotation marks omitted.) Hoffman v. Metcalf, 851 A.2d 1083, 1089-90 (R.I. 2004). "Whether conduct `may reasonably be regarded as so extreme and outrageous as to permit recovery' for intentional infliction of emotional distress is a matter of law to be decided by a court, and if the court answers that question in the negative, it should grant judgment as a matter of law and dismiss such a claim." Jalowy v. Friendly Home, Inc., 818 A.2d 698, 707 (R.I. 2003).
In the present case, the plaintiff's allegations, even when viewed most favorably, do not raise to the level of extreme and outrageous conduct required to sustain a claim of intentional infliction of emotional distress. While the actions taken by the defendants, and their allegations of professional impropriety, may have been quite troubling to the plaintiff, they do not meet the high standard of egregiousness required by the Rhode Island Supreme Court for claims sounding in the tort of intentional infliction of emotional distress. Taken as true and in the light most favorable to the plaintiff, the defendant's actions, namely writing a letter urging Joan Kelly to rescind the selling of her interest in the Property to the plaintiff and suggesting that the plaintiff took advantage of Joan Kelly in violation of his ethical duties as an attorney, are not so beyond the pale as to meet the stringent requirements for claiming intentional infliction of emotional distress. They may have caused the plaintiff discomfort and complicated his property rights, and while the defendants may be subject to liability in tort for interference with contractual relations, this alone is not sufficient to maintain an action sounding in the intentional infliction of emotional distress. The Moran sisters' attempts to undo the sale of Joan Kelly's interest in the property and Attorney Comley's participation in that endeavor are not the sort of behavior that is actionable in a suit for intentional infliction of emotional distress.
Further the plaintiff's conduct in this unusual real estate transaction — that the purchase and sale agreement and the closing were executed and performed on the same date, that the seller "chose" to be unrepresented and that the purchaser was an attorney from whom the seller initially sought advice and representation — created a context in which siblings might be concerned for the welfare of their sister.
Examining the affidavits filed for and against these motions for summary judgment, drawing inferences from those affidavits and construing these facts in a light most favorable to the plaintiff, the court cannot find that the defendants' conduct is so "extreme and outrageous" as to permit recovery for the tort of intentional infliction of emotional distress." Accordingly, summary judgment is granted with regard to counts three, six and eight.
Willful, Wanton, and Reckless Conduct
Black's Law Dictionary defines reckless misconduct as follows: "A person is guilty of reckless misconduct when he intentionally does an act, or fails to do an act in violation of his duty with knowledge of serious danger to others involved in it or facts which would disclose such danger to a reasonable man." Further, under Rhode Island law, allegations of willful, wanton and reckless conduct must be supported by pleaded and proven facts, and not based on mere conclusions or conjecture." See Houle v. Carr-Consolidated Biscuit Company, 125 A.2d 143, 146 (R.I. 1956), overruled on other grounds by Haddad v. First Nat'l Stores, 280 A.2d 93, 95 (R.I. 1971).
Before examining the factual basis for the plaintiff's claim of willful, wanton and reckless conduct, however, the court must first determine what duty of care, if any, the defendants may have owed the plaintiff. See Kiley v. Patterson, 763 A.2d 583, 586-87 (R.I. 2000) (determining duty owed between competing softball players before addressing the nature of the injury causing conduct). Under Rhode Island law, "the determination of whether a duty exists is a legal issue for the court to decide . . . In the making of this determination, no clear-cut formula exists . . . Rather, [u]nder our ad hoc approach we consider all relevant factors, including the relationship of the parties, the scope and burden of the obligation to be imposed upon the defendant, public policy considerations, and notions of fairness . . ." (Citations omitted; internal quotation marks omitted.) Hennessey v. Pine, 694 A.2d 691, 697-98 (R.I. 1997).
In his objection to the defendants' motions for summary judgment, the plaintiff does not address the defendants' arguments regarding the plaintiff's claims of willful, wanton and reckless conduct.
In the present case, the relationship between the defendants and the plaintiff was clearly an adversarial one. It is undisputed that both the plaintiff and the defendants had contested interests in the Property and both parties engaged in conduct designed to solidify and protect their interests. Because of this relationship, it cannot be said that the Morans owed the plaintiff a duty not to encourage their sister to seek to annul the sale of her interest in the Property by sending her a letter asking her to do so. Nor did Attorney Comley owe the plaintiff a duty to refrain from advising his clients as to possible avenues for achieving those goals. Given the holistic nature of the Rhode Island duty analysis, the court cannot say that adversarial family members, and their attorneys, owe each other a duty of care with regard to the pursuit of competing property interests. By the very nature of their relationship, the defendants' pursuit of their own ends was likely to result in some level of hardship and discomfort to the plaintiff. Because the danger of causing harm to the plaintiff's property interest was inherent in the adversarial relationship between the plaintiff and the defendants, the defendants did not owe the plaintiff a duty of care that would make their conduct actionable under claim of wilful, wanton and reckless conduct. Summary judgment is granted with regard to counts two, four and nine.
CONCLUSION
For the above reasons, summary judgment is granted with regard to counts two, three, five, six, eight and nine. Summary judgment is denied with regard to counts one, four and seven.