Opinion
No. CV 08-4035887
June 25, 2008
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE THE PLAINTIFFS' PETITION FOR A BILL OF EQUITY
This memorandum of decision is based upon Connecticut Practice Book § 10-43 which states: "Whenever a motion to strike is filed and more than one ground of decision is set up therein, the judicial authority, in rendering the decision thereon, shall specify in writing the grounds upon which that decision is based."
FACTS:
This is a bill of equity brought by Hayes Family Limited Partnership, seeking information in regard to a zoning application Hayes Family Limited Partnership ("Hayes") made to the Glastonbury Planning Zoning Commission for approval of a location for a CVS Pharmacy. The petitioners are seeking information as to who paid the respondents, Frank Longobardi, Patricia Synhorst and John Flanigan (hereinafter "Longobardi, Synhorst and Flanigan") for the legal fees incurred in their opposition to the petitioners' application for zoning approval. It is the contention of the bill of equity that the respondent, 1312 Manchester Road, LLC, which was nor a party to the zoning proceedings and the appeal therefrom, paid the legal fees for Longobardi, Synhorst and Flanigan to oppose the petitioners' zoning application. Respondents, Longobardi, Synhorst and Flanigan have filed a motion to strike the bill of particulars, as have the respondent, 1312 Manchester Road, LLC and respondent, David F. Sherwood.
STANDARD OF REVIEW:
"The purpose of a motion to strike is to contest . . . the legal insufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Waters v. Autuori, 236 Conn. 820, CT Page 10635 825, 676 A.2d 357 (1996).
FINDINGS AND ISSUES: 1. Should the Motion to Strike filed by Respondent, 1312 Manchester Road, LLC, be granted?
The short answer is No.
The respondent, 1312 Manchester Road, LLC claims that the petitioners have not set forth facts that fairly indicate it has some potential cause of action. Said respondent is claiming there is a lack of probable cause to eventually bring an action against 1312 Manchester Road, LLC. Said respondent has cited the Noerr-Pennington Doctrine which in essence states that parties are wholly immune from liability unless the conduct falls within the "sham" exception to the doctrine. If it is a valid effort to influence government action and is not a sham or fraud, a bill of equity would not lie. However, this Court concludes that the Noerr-Pennington Doctrine does not apply because the petitioners have alleged a cause of action against 1312 Manchester Road, LLC for violation of the Connecticut Unfair Trade Practices Act ("CUTPA"). As that claim is set forth it can be construed as a claim of sham or fraud. Accordingly, the Noerr-Pennington Doctrine does not apply.
The second reason for the motion to strike is attorney-client privilege. The Connecticut, Appellate and Supreme Courts have not decided whether a client's identity and fee payment are protected by attorney-client privilege. The respondent admits that most jurisdictions find that the payment of fees to attorneys and the identity of the client are not protected by the attorney-client privilege. This Court agrees that the mere identity of the party that pays the fees and what the fees are is not a communication that is protected by the attorney-client privilege.
For the foregoing reasons, the Motion to Strike by 1312 Manchester Road, LLC is denied.
2. As for the Respondents, David F. Sherwood, Frank Longobardi, Patricia Synhorst and John Flanigan, they are primarily witnesses, and the fact remains that in the petition for a bill of equity no allegations are made that there is probable cause against any of these respondents for any cause of action. See Cadle Company v. Norman S. Drubner, 64 Conn.App. 69 (2001) and Pfaltz Bauer v. Chepow et. al., CV 98-0149824, Superior Court Judicial District of Waterbury, March 2, 1999, Pellegrino, J., [24 Conn. L. Rptr. 119], both of which cases conclude that the petitioner has not alleged facts to show that there is a potential cause of action against certain respondents. In Cadle Company, supra, the court stated that the petition failed to set forth sufficient facts to permit the required finding that there is probable cause to bring a potential cause of action. There are no facts set forth to bring a potential cause of action against respondents Sherwood, Longobardi, Synhorst and Flanigan. Accordingly, their motions to strike are granted.