Opinion
No. DBDCV08-5005084 S
March 17, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (#117)
PROCEDURAL BACKGROUND
On July 3, 2008 the plaintiff filed a multiple count quiet title complaint against the defendants relative to property in Redding Ridge, Connecticut. The complaint was amended and revised several times such that the operative complaint now before the court is an eleven-count complaint titled "third revision of second amended complaint" (#116). The eleven counts are as follows: counts two and three of that complaint allege abuse of process by the defendants; counts four and five allege fraud; counts six and seven allege that the defendants have violated General Statutes § 8-26; counts eight and nine allege slander of title; and counts ten and eleven allege statutory theft pursuant to General Statutes § 52-564. Although acting pro se, the plaintiff's prayer for relief also asks for attorneys fees.
The defendants are the Town of Redding and Spray (Parcel Six) Limited Partnership.
More specifically, the complaint alleges that the defendants have sought to foreclose on tax liens against a portion of the property in the town of Redding on which the plaintiff resides. If the defendants foreclose on the subject portion of the property, the remaining portions will become landlocked. Counts two and three are stated as follows:
COUNT TWO — Abuse of Process. Injury upon the Court.
The paragraphs of the first count are hereby made paragraphs of the second count.
2-6 By amended complaint dated February 14, 2003 in an action entitled Town of Redding v. Elfire, LLC, et al., CV99-0337512S, pending in Danbury Superior Court, the Town of Redding claimed to have assessed and liened a portion of plaintiff's property according to its description as Parcel B in said legal property description at Vol. 196 Page 340, whereas the property is fully described at Vol. 196 Page 341, which cause it knew to be false.
2-7 As a result of the Town of Redding's misrepresentations plaintiff has been damaged.
COUNT THREE — Abuse of Process. Injury upon the court.
The paragraphs of the first count and second counts are hereby made paragraphs of the third count.
3-8 By "Amended Complaint," dated August 5, 2004 in said pending action, the defendant Spray, as successor to the Town of Redding, claimed to have assessed and liened a portion of plaintiff's property according to the description of "Parcel B" in said property description at Vol. 196 Page 340 which cause it knew or should have known to be false and would landlock plaintiff's residence and balance of its property.
3-9 As a result of the defendant Spray's misrepresentations and deception, the plaintiff has been damaged.
In counts four and five (titled "Fraud"), the plaintiff has incorporated the allegations of all prior counts. Liberally reading the allegations, the plaintiff essentially argues that the defendants knew that the legal description used to lien the property was false and caused the plaintiff damage.
As to counts six and seven (titled "C.G.S. § 8-26"), the plaintiff incorporates all the prior counts and alleges that the filing of the foreclosure action by the defendants against the plaintiff is an attempt to resubdivide the plaintiff's property, causing damage to the plaintiff.
As to counts eight and nine (titled "Slander of Title"), the plaintiff incorporates all the prior counts and contends that the allegations of the defendants' foreclosure complaint "are false and derogatory to the owners' [sic] title as a result of which the plaintiff has been damaged."
As to counts ten and eleven (titled "C.G.S. § 52-564"), the plaintiff incorporates all the prior counts and contends the town of Redding misappropriated a portion of the tax payments made to the town by the lender holding a mortgage against the property, and used some of those funds to pay the town's counsel fees related to the tax lien foreclosure action.
In paragraph four of her prayer for relief, the plaintiff seeks the recovery of attorneys fees.
On November 4, 2008 the defendants filed the present motion to strike (#117) counts two through eleven of that complaint along with the third and fourth prayers for relief on the grounds that the allegations are legally insufficient. The plaintiff filed an objection to the motion to strike (#118) on November 20, 2008. The matter was heard at short calendar on December 15, 2008.
LAW
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Consequently, "[t]he proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Finally, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
DISCUSSION A. Abuse of process
Counts two and three of the complaint are titled "Abuse of Process. Injury upon the Court." The plaintiff claims that the defendants filed an action to foreclose tax liens that used a legal description which they knew to be false. Although the plaintiff refers to these counts as action for abuse of process, in order to ascertain the causes of action alleged, it is the language of the complaint itself that must be analyzed. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) ("Because we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged"); see also Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) ("[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative").
A liberal review of plaintiff's complaint finds the language confusing and contradictory. In paragraph 3-8, the plaintiff alleges that the defendants used a "description of `Parcel B' . . . at Vol. 196, Page 340 which cause it knew or should have known to be false and would landlock the plaintiff's residence and balance of its property." (Plaintiff's complaint ¶ 3-8.) The complaint also claims that the defendants' "misrepresentations" damaged the plaintiff. (Plaintiff's complaint ¶ 2-7 and ¶ 3-9.)
In trying to determine what cause of action is actually alleged, the court notes that "[a]n action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . Comment b to § 682 explains that the addition of [the word] primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn.App. 63, 77, 918 A.2d 889 (2007). Analyzing the plaintiff's allegations under this theory, it cannot be said that the plaintiff has established a legally sufficient cause of action in that she has not alleged that the defendants' filing of the tax lien foreclosure action had any purpose other than that for which it was intended. The plaintiff's own allegations acknowledge the defendants had brought an action to foreclose the tax liens which they held. (See plaintiff's complaint ¶ 1-5.)
As noted above however, the language of the plaintiff in counts two and three is confusing and uses terms such as "misrepresentations" and/or "deceptions," commonly associated with actions based on fraud. "Under the common law . . . it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . All of these ingredients must be found to exist . . ." (Citations omitted; internal quotation marks omitted.) Garrigus v. Viarengo, 112 Conn.App. 655, 663-64, 963 A.2d 1065 (2009). Were counts two and three to be liberally read as attempting to state an action for common-law fraud, it would be legally insufficient as even if the defendants' use of the property description had constituted a false representation made as a statement of fact, and that it was untrue and known to be untrue by the defendants, there is no allegation that the defendants somehow induced the plaintiff into some sort of action based on that representation. Moreover, the plaintiff has not even alleged that she is a party to the foreclosure action which she has specifically referenced in her complaint ( Town of Redding v. Elfire, LLC, Superior Court, judicial district of Danbury, Docket No. CV 99 0337512S).
Accordingly, whether counts two and/or three are viewed as based upon abuse of process or common-law fraud, neither is legally sufficient to sustain the cause of action and they are hereby stricken.
B. Fraud
In both counts four and five, the plaintiff essentially contends that "the Town of Redding falsely claimed to have assessed and liened" plaintiff's property and that as a result of the actions of the defendants to foreclose the liens she has been damaged. (Plaintiff's complaint ¶ 4-10 and ¶ 5-17.) The analysis set forth above relative to an action in fraud is equally applicable to counts four and five. Accordingly, the motion to strike these counts is granted.
C. General Statutes § 8-26
Counts six and seven both allege that the plaintiff's foreclosure action "is an attempt to resubdivide plaintiff's property in violation of C.G.S. § 8-26." (Plaintiff's complaint ¶ 6-26 and ¶ 7-28.)
Our analysis begins with the mandates of General Statutes § 8-26, which govern the approval of subdivision plans. It provides in relevant part: "The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith, including existing subdivisions or resubdivisions made in violation of this section, within the period of time permitted under section 8-26d. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person applying to the commission under this section, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. In any case in which such notice is not published within such fifteen-day period, the person who made such application may provide for the publication of such notice within ten days thereafter. Such notice shall be a simple statement that such application was approved, modified and approved or disapproved, together with the date of such action. The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand . . ." General Statutes § 8-26.
Our Supreme Court has explained that "[t]he purpose of § 8-26 is to ensure expeditious action on the part of municipal planning commissions. It is the failure of the commission to act upon an application within the time provided that results in approval by operation of law under § 8-26 . . . [T]he obvious intention of the legislature in using this language was to ensure prompt and expeditious action on subdivision applications for the protection of the subdivider . . . [T]his statutory purpose will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, setting in motion clear avenues of appeal." (Citations omitted; internal quotation marks omitted.)
109 North, LLC v. Planning Commission of New Milford, 111 Conn.App. 219, 225-26, 959 A.2d 615 (2008).
Section 8-26 clearly applies only to actions of municipal planning commissions relative to subdivision applications. Here, the plaintiff has not alleged that she has a specific legal interest which has been injured by the action of a town planning commission relative to a subdivision application. Nor is there any allegation the defendants were part of any subdivision application considered and acted upon by a town planning commission. Even if there had been such action relevant to her claims, the proper remedy for contesting such action would have been an appeal under General Statutes § 8-8 and § 8-28. Counts six and seven are legally insufficient and accordingly are ordered stricken.
D. Slander of Title
Counts eight and nine of the complaint allege that the complaints dated February 14, 2003 and August 5, 2004 filed in the tax lien foreclosure action titled Town of Redding v. Elfire, LLC, Superior Court, judicial district of Danbury, Docket No. CV 99 0337512S, constitute slander of title. "Slander of title is a tort whereby the plaintiff's claim of title [to] land or other property is disparaged by a letter, caveat, mortgage, lien or some other written instrument . . . A cause of action for slander of title consists of any false communication which results in harm to interests of another having pecuniary value . . . In other words, slander of title is a falsehood published to third parties that is not withdrawn after a demand by the titleholder, which impugns the basic integrity or creditworthiness of an individual or a business." (Citations omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 202, 931 A.2d 916 (2007). It has elsewhere been stated that "[a] cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn.App. 657, 669-70, 778 A.2d 237 (2001).
In this instance, the plaintiff has not alleged malice, diminution in value, or other elements of a slander of title claim. Moreover, as noted above, the plaintiff is not even a party to the referenced foreclosure action.
A further review of our law reveals that statements made in the course of a judicial proceeding are not actionable as a matter of law. "It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy . . . The effect of an absolute privilege is that damages cannot be recovered for the publication of the privileged statement even if the statement is false and malicious . . ." (Citations omitted; internal quotations marks omitted.) CT Page 5178 Gallo v. Barile, 284 Conn. 459, 465-66, 935 A.2d 103 (2007). This absolute privilege also extends to "the words used in the pleadings and documents used to prosecute the suit." DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991).
Accordingly, counts eight and nine are found to be legally insufficient and are therefore stricken.
E. General Statutes § 52-564
In counts ten and eleven, the plaintiff has cited General Statutes § 52-564 as the basis of her claim against the defendants that the defendants have misappropriated or misapplied funds paid to them by the mortgage lender toward the delinquent taxes owed against the property. (Plaintiff's complaint ¶ 10-44 and ¶ 11-48.) "Statutory theft under [General Statutes] § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). Section 53a-119 further provides: "Larceny includes, but is not limited to . . . (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person." "[S]tatutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion . . ." Whitaker v. Taylor, 99 Conn.App. 719, 732, 916 A.2d 834 (2007).
The plaintiff has not alleged that she is the owner of, or has any right of possession to, the funds that were paid by the lender to the defendants. It was the property owner's failure to pay the taxes that led to the lender to make the payment of the delinquent taxes out of its own funds.
See also C.G.S. § 49-2(a) (when a bank escrows tax payments to protect its collateral, the "taxes and assessments paid by the mortgagee . . . are a part of the debt due the mortgagee," not the property or possession of the borrower).
Accordingly, counts ten and eleven are legally insufficient and are ordered stricken as is paragraph three of the prayer for relief seeking damages under General Statutes § 52-564.
F. Prayer for relief
In paragraph four of her prayer for relief, the plaintiff has asked for the recovery of attorneys fees although she is a pro se litigant. It has been held in various settings that a pro se litigant is not entitled to attorneys fees. Dunn v. Peter L. Leepson, P.C., 79 Conn.App. 366, 372, 830 A.2d 325, cert. denied, 266 Conn. 923, 835 A.2d 472 (2003). "Courts have reasoned, among other things, that the purpose of an award of attorneys fees is to allow a party to obtain counsel rather than to compensate litigants for their time, and that, without statutory authorization for such fees, such an award is improper . . ." (Citation omitted; emphasis added.) Lev v. Lev, 10 Conn.App. 570, 575, 524 A.2d 674 (1987). Here, there is no allegation that plaintiff has expended any funds toward the retention of counsel to represent her or otherwise assist or advise her relative to this action.
Moreover, nothing in the quiet title statute authorizes the recovery of attorneys fees. See General Statutes § 47-31.
CONCLUSION
For the above stated reasons, the defendants' motion to strike counts two through eleven as well as paragraphs three and four of the prayer for relief is granted.