Opinion
No. X06-CV-01-0344093 S
December 8, 2003
MEMORANDUM OF DECISION
The plaintiff Western Connecticut Collision Corporation, doing business as Andy's Auto Coach Works ("Andy's Auto"), a towing contractor, has initiated this action against four competing towing companies, Greentree Motors of Danbury, Inc. ("Greentree Motors"), Lang's Auto, LLC ("Lang's Auto"), CM Newman, Inc. ("CM Newman"), and Donald J. Hassiak, doing business as Avon Auto Equipment Co. ("Avon Auto"), alleging against each defendant violations of the Connecticut Antitrust Act, tortious interference with business expectancy, and libel per se. Each of the defendants has filed a motion for summary judgment as to the counts of the plaintiff's revised complaint presently pending against them.
In its revised complaint, Andy's Auto alleges that, together with the four defendants, it was an approved tow truck operator on the wrecker list maintained by the police department of the town of Brookfield. Approved tow truck operators were called on a rotating basis by the Brookfield police department to provide towing services to vehicles in need of such services within the town of Brookfield. Andy's Auto alleges that the defendants commenced a campaign in December 1999 to remove Andy's Auto from the approved wrecker list.
It is undisputed that Marilyn Hassiak, an employee of Avon Auto, attended a meeting of the Brookfield Police Commission held on December 15, 1999 and voiced concerns about the placement of Andy's Auto on the approved tow truck list because it was an out-of-town company and not a town tax payer. At that meeting, the Brookfield police chief asked Hassiak to write him a letter explaining her concerns. A letter dated January 3, 2000 was sent to the police chief outlining various concerns with the presence of Andy's Auto on the approved wrecker list and requesting that Andy's Auto be removed from the list. The letter was signed by representatives of each of the four defendants. Andy's Auto was subsequently removed from the town's approved tow truck list.
The four defendants have moved for summary judgment on the counts alleging antitrust violations on the grounds that the plaintiff has not alleged an antitrust injury protected by the state antitrust statute and that their actions are shielded by the Noerr-Pennington doctrine. The defendants have similarly cited the Noerr-Pennington doctrine as a basis for summary judgment on the tortious interference counts and they also assert that those counts fail because the plaintiff can not show that the prior proceedings terminated in its favor. Finally, the defendants claim summary judgment on the libel counts on the grounds of privilege. I agree with the defendants that the Noerr-Pennington doctrine prevents the plaintiff from suing them for antitrust violations and for tortious interference with business expectancies and that their statements were privileged.
Because my resolution of each of these issues is dispositive, it is not necessary that I address the defendants' alternative grounds for summary judgment.
I The Noerr-Pennington Doctrine
"Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn. App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn. App. 150, 158 (1997). See also Practice Book § 17-49. The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).
The Noerr-Pennington doctrine unfolded from a trilogy of decisions of the United States Supreme Court: Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, reh. denied, 365 U.S. 875, 81 S.Ct. 899, 5 L.Ed.2d 864 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). As initially conceived, the Noerr-Pennington doctrine shielded from liability under the federal antitrust act all concerted efforts to influence public officials regardless of the intent or purpose of the petitioners. United Mine Workers v. Pennington, supra, 381 U.S. 670. The doctrine is based on the belief that "it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors." California Motor Transport Co. v. Trucking Unlimited, supra, 404 U.S. 510-11.
"The Noerr-Pennington doctrine has evolved from its antitrust origins to apply to a myriad of situations in which it shields individuals from liability for petitioning a governmental entity for redress." Zeller v. Consolini, 59 Conn. App. 545, 551 (2000). The protections of the Noerr-Pennington doctrine extend to state law claims of tortious interference with business expectancies. Id. Since the purpose of the doctrine is to protect first amendment activity from the reach of antitrust liability, the Noerr-Pennington doctrine also undoubtedly encompasses claimed violations of the Connecticut Antitrust Act, General Statutes § 35-24 et seq. See Roncari Development Co. v. GMG Enterprises, 45 Conn. Sup. 408, 414, 19 Conn.L.Rptr. 237 (1997).
The activity of the defendants in this case is covered by the Noerr-Pennington doctrine. They attended a public meeting of the Brookfield Police Commission expressing their concerns and followed it up, at the request of the Brookfield police chief, with a letter to the police chief explicating those concerns. It is well established that the Noerr-Pennington doctrine applies to petitioning activity directed at local governments. Zeller v. Consolini, supra, 59 Conn. App. 552. The Brookfield Police Commission was the governmental entity responsible for determining the police department wrecker policy and the defendants had a constitutional right to petition the commission regarding that policy. The Noerr-Pennington doctrine prohibits the plaintiff from seeking to impose liability for that activity on the defendants under the Connecticut Antitrust Act or under a claim of tortious interference with business expectancies.
The plaintiff asserts in its complaint that the defendants' actions petitioning the police commission were a mere sham to cover an attempt to interfere directly with the plaintiff's business relationship. The Noerr-Pennington doctrine recognizes a "sham exception" to its protections. Zeller v. Consolini, supra, 59 Conn. App. 551-52. Petitioning activity is not sheltered if it constitutes a mere sham or pretense to interfere with the business relationships of a competitor with no reasonable expectation of obtaining a favorable ruling. Id., 552. See also Eastern Railroad Presidents Conference v. Noerr Motor Freight, supra, 365 U.S. 144.
"In Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60-62, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993), the court outlined a two part test to define sham litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. Id., 60. Second, `the court should focus on whether the baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor . . . through the use [of] the governmental process — as opposed to the outcome of that process as an anticompetitive weapon . . .' Essentially, then, a sham involves a defendant whose activities are not genuinely aimed at procuring favorable governmental action in any form." Zeller v. Consolini, supra, 59 Conn. App. 552. Although originally devised to address sham litigation, this same two-part test should be applied to determine whether the petitioning activity in this case constitutes a sham unprotected by the Noerr-Pennington doctrine.
For activity to lose the protection of the Noerr-Pennington doctrine, it must be a sham both objectively and subjectively. BEK Constr. Co. v. NLRB, 536 U.S. 516, 526 (2002). To satisfy the requirement that the activity is objectively a sham, the plaintiff must plead facts which would support a claim that the activity is objectively baseless in the sense that no reasonable person could realistically expect success on the merits. Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., supra, 508 U.S. 60. In this case, the defendants prevailed in their petition to the Brookfield Police Commission that the plaintiff be removed from the approved tow truck list. The United States Supreme Court has explicitly observed that "a successful effort to influence governmental action . . . certainly cannot be characterized as a sham." Id., 58. Since the challenged activity of the defendants objectively had merit, the defendants' subjective motivation need not be examined. Id., 60. See also Zeller v. Consolini, supra, 59 Conn. App. 563 n. 8.
II The Claim of Privilege
The defendants have also moved for summary judgment on the libel per se counts of the plaintiff's complaint. The complaint alleges that the letter sent to the Brookfield police chief contained false and misleading statements regarding the plaintiff's business. The defendants assert that these statements were protected by two privileges: (1) an absolute privilege applicable to statements made in connection with quasi-judicial proceedings and (2) a conditional or qualified privilege applicable to statements concerning a matter of public concern. I am persuaded of the merit of the latter, but not the former, claim.
"There is a `long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy.' Circus Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 60, 657 P.2d 101 (1983). The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously." Petyan v. Ellis, 200 Conn. 243, 245-46 (1986). This absolute privilege extends to relevant statements made during administrative proceedings that are quasi-judicial in nature. Id., 246.
The defendants have provided no factual basis to conclude that the Brookfield Police Commission was conducting a quasi-judicial proceeding on December 15, 1999. The minutes of that meeting indicate that it was merely a public meeting of the commission. There is no evidence that the commission was performing at that time a judicial function of any kind or exercising discretion of a judicial nature. See Petyan v. Ellis, supra, 200 Conn. 246. See also Kelley v. Bonney, 221 Conn. 549 (1992). The police commission was apparently receiving information as to the appropriate parameters of the police department wrecker policy, not adjudicating the rights or responsibilities of any particular person or entity. The defendants have not provided a factual basis for this court to conclude that this proceeding constituted a quasi-judicial proceeding to which an absolute privilege applies.
The defendants also contend that their statements were protected by a qualified privilege. "There are two facets to the defense of privilege. The occasion must be one of privilege, and the privilege must not be abused." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 28 (1995).
"The privilege of fair comment is a common law qualified privilege arising out of an occasion to express an opinion or otherwise comment on matters of public interest." Miles v. Perry, 11 Conn. App. 584, 595 (1987). See also 3 Restatement (Second), Torts § 598 (1977). The undisputed facts of this case show that the allegedly defamatory statements made by the defendants concerned a matter of public interest. The statements dealt with the requirements of the wrecker policy of the Brookfield Police Department and concerned the appropriateness of the approval by the police commission of the plaintiff as an authorized tow truck operator. These issues were undoubtedly issues of public interest. See Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 617 (1955). See also Baker v. Charles, 919 F. Sup. 41 (D.Me. 1996) (in which the court found that a conditional privilege applied to a letter written by the defendant to the Maine Land Use Regulatory Commission complaining about the plaintiffs' land use activities).
The more difficult question is the appropriateness of summary judgment regarding the issue of whether the defendants abused their conditional privilege. A qualified privilege is abused and its protection lost when the statements are made by the defendant with malice, improper motive or bad faith. Miles v. Perry, supra, 11 Conn. App. 595. When defamatory statements are made on an occasion of privilege, the plaintiff has the burden of proving actual malice or malice in fact in order to recover. Ely v. Mason, 97 Conn. 38, 44 (1921). "Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false." Chadha v. Shimelman, 75 Conn. App. 819, 827 (2003). "Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives." Id.
In Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 35 n. 12, our Supreme Court questioned whether malice in fact, or improper motive, by itself, without a showing of actual malice, was sufficient to overcome a conditional privilege. I need not address this issue since I have determined that the plaintiff here has not provided any facts demonstrating either actual malice or malice in fact.
Whether the defendants have abused their privilege is a question of fact. Miles v. Perry, supra, 11 Conn. App. 594 n. 8. Nevertheless, to defeat the defendants' motion for summary judgment which asserted a claim of conditional privilege, it was incumbent on the plaintiff to present facts that demonstrated that the defendants made the statements with malice, improper motive or bad faith. Chadha v. Shimelman, supra, 75 Conn. App. 831. Moreover, "even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Id. quoting Wadia Enterprises, Inc. v. Hirschfield, 224 Conn. 240, 250 (1992).
The plaintiff has not alleged in the libel per se counts of its complaint that the defendants made the allegedly libelous statements with any malice or improper motive or in bad faith. More important, the plaintiff has not offered any facts that would support a finding that the conditional privilege was abused. No evidence has been presented that the defendants' statements were made with knowledge of their falsity, made in reckless disregard of their falsity, or made with improper motive. In response to the defendants' motion for summary judgment, the plaintiff simply referred to two statements in the letter sent by the defendants to the police chief and asserted that the defendants' motive in signing the letter was a material question of fact. The two statements: "What concerns us is getting him off rotation" and "Being an out of town tower is also a disadvantage to the customers" are not evidence of malice, bad faith, or improper motive. The plaintiff has not met its burden of presenting evidence showing the knowledge or motives of the defendants to be in dispute. See Chadha v. Shimelman, supra, 75 Conn. App. 828-31.
In light of the above, the defendants' motions for summary judgment are hereby granted as to all counts of the plaintiff's revised complaint.
BY THE COURT
JON M. ALANDER, Judge of the Superior Court.