13 Conn. App. 230 | Conn. App. Ct. | 1988
The plaintiffs appeal from the trial court’s granting of summary judgment in favor of the defendant on the two counts of the plaintiffs’ complaint. The plaintiffs Rotophone, Inc., and Delong Answerphone, Inc., operate telephone answering services in the city of Danbury.
The plaintiffs allege in the first count of their complaint that the defendant’s operation of a telephone answering service violated the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and, in the second count, that the operation constituted a tortious interference with the plaintiffs’ business expectancy. The crux of the plaintiffs’ allegation that CUTPA is being violated is that the defendant, a tax-exempt corporation, is conducting an unrelated trade or business as defined in § 513 of the Internal Revenue Code
The parties submitted affidavits and counteraffidavits in support of, and in opposition to, the defendant’s motion for summary judgment. The plaintiffs claim that the trial court erred (1) in holding that the plaintiffs’ CUTPA claim is subject to the public interest requirement set forth in Ivey, Barnum & O’Mar a v. Indian Harbor Properties, Inc., 190 Conn. 528, 461 A.2d 1369 (1983), (2) in concluding that the defendant’s answering service was limited to its own medical staff,
A trial court may appropriately grant a motion for summary judgment only when the affidavits and evidence submitted in support of the motion demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Catz v. Rubenstein, 201 Conn. 39, 48-49, 513 A.2d 98 (1986); Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Stradav. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). In deciding
The plaintiffs’ first claim is that the trial court erred in holding that they were required to demonstrate a nexus with the public interest as a prerequisite to recovery under CUTPA. Alternatively, the plaintiffs argue that such an element was present in this case.
Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., supra, 537, holds that “suits undertaken pursuant to CUTPA must demonstrate some nexus with the public interest.” The public interest requirement of a private action under CUTPA was subsequently eliminated by the legislature.
Furthermore, the plaintiffs failed to allege in their complaint, or in their counteraffidavit opposing the motion for summary judgment, any nexus between their CUTPA claim and the public interest. The plaintiffs argue in their brief, however, that the public interest is implicated in this case because the defendant’s
The plaintiffs finally claim error in the trial court’s granting of summary judgment to the defendant on the plaintiff’s claim of tortious interference with a business expectancy. In order to succeed on such a claim, a plaintiff must do more than show that the defendant’s actions proximately caused a loss to the plaintiffs’ businesses. A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation, molestation, or that the defendant acted maliciously. Sportsmen’s Boating Corporation v. Hensley,
The plaintiffs argue that the defendant’s alleged operation of an unrelated trade or business, purportedly constituting an unfair method of competition, meets the improper means requirement set forth in Blake v. Levy, supra. The plaintiffs’ argument is flawed, however, in that they failed to establish that the defendant’s conduct is in fact an unrelated trade or business as defined in § 513 of the Internal Revenue Code.
There is no error.
. In this opinion the other judges concurred.
The plaintiff Connecticut Association of Telephone Answering Services, an unincorporated association composed of private telephone answering services, is involved in the first count only of the complaint. Rotophone, Inc., and Delong Answerphone, Inc., are members of the Connecticut Association of Telephone Answering Services.
Section 513 of the Internal Revenue Code provides in pertinent part: “(a) The term ‘unrelated trade or business’ means . . . any trade or
business the conduct of which is not substantially related ... to the exercise or performance by [an] organization of its charitable, educational, or other purpose or function constituting the basis for its exemption . . . except that such term does not include any trade or business—
“(2) which is carried on . . . by the organization primarily for the convenience of its members, students, patients, officers, or employees Sections 511 and 512 of the Internal Revenue Code set forth the extent to which an unrelated trade or business of an otherwise tax-exempt organization is subject to taxation.
The plaintiffs conceded during oral argument before this court that the service was only available to the defendant’s own medical staff. Thus, this claim of error need not be considered.
Public Acts 1984, No. 84-468, §§ 2, 4 (effective June 8, 1984); General Statutes §§ 42-110g, 42-110m.
We decline the plaintiffs’ invitation to overrule Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 492 A.2d 545 (1985), and to follow Wilson v. Fireman’s Ins. Co., 40 Conn. Sup. 336, 337-40, 499 A.2d 81 (1985) (holding that Public Acts 1984, No. 84-468 is retroactive in effect).
Paragraph 9 of the plaintiffs’ counteraffidavit, marked as exhibit A, sets forth:
“In 1982, Danbury Hospital began operating a telephone answering service for its employee physicians and for private physicians who were members of its staff, but were neither employed by or had offices at the hospital.” (Emphasis added.)
Even if it were assumed that the defendant’s conduct constituted an unrelated trade or business by a tax-exempt organization as defined in the Internal Revenue Code, it would not necessarily follow that the defendant was engaged in an unfair method of competition. Rather, as the trial court correctly pointed out, such a determination would simply mean that the defendant would be required under the federal tax code to pay taxes on its unrelated business.