Opinion
No. HHD CV 10-6013983-S
October 5, 2011
MEMORANDUM RE MOTION TO STRIKE #111
FACTS
The plaintiff, Marc K. Lewis, filed this action against the defendant Royal Bank of Scotland (RBS) and David Goodwin. In his amended complaint, Lewis alleges the following. RBS previously commenced an action against him in the Hartford Superior Court. Goodman was responsible for the decision to bring that action, and he managed and oversaw it. The substance of the plaintiff's allegations are contained in paragraphs four and five of count one in which he states that "there was no good faith basis upon which the defendant RBS could file and maintain a claim against the plaintiff herein Lewis. Notwithstanding same the defendants artificially contrived a claim against the plaintiff herein in an effort to pressure him in regard to said litigation and to otherwise make him compromise the rights, claims and position of the LLC in order to avoid the alleged personal exposure . . . The action of the defendants were vexatious in commencing the suit and continuing to prosecute the suit against the plaintiff herein, all to his special loss and damage." Lewis asserts three claims against the defendants, a common-law vexatious litigation claim, and statutory claims for double and treble damages for vexatious litigation under General Statutes § 52-568. On June 30, 2011, the defendants moved to strike the entire complaint on the grounds that Lewis has not pleaded sufficient facts to support these causes of action. The plaintiff filed an objection on July 11, 2011, to which the defendants replied on August 23, 2011.
General Statutes § 52-568, which is entitled "Damages for groundless or vexatious suit or defense," provides:
"Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
DISCUSSION
"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). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Id., 498. "Insofar as [a] motion to strike is directed [to] the entire complaint, it must . . . fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Michel v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 11 6015195 (March 7, 2011, Levin, J.). See also Whelan v. Whelan, 41 Conn. Sup. 519, 520, 588 A.2d 251 (1991) [ 3 Conn. L. Rptr. 135] (court denied motion to strike directed at entire complaint rather than at selected portions).
The defendants argue that Lewis does not allege any facts that support the two of the required elements of a vexatious litigation claim, lack of probable cause, and malice. Lewis fails to allege that the defendants lacked probable cause to file the prior action, and that he also does not allege any facts that would support such a conclusion, i.e., that they knew he was not liable, but instituted the prior action anyway. Likewise, the defendants point out that Lewis did not plead any facts supporting his conclusory allegation that the defendants acted with malice in joining him in the prior action.
In response, the plaintiff argues that his allegation that "there was no good faith basis upon which defendant RBS could file and maintain a claim against the plaintiff herein Lewis" coupled with the allegation that "the claim asserted against Lewis was `artificially contrived' . . . for the purpose of applying `pressure' to Lewis to `make him compromise the rights, claims and position of [Lexham]" are sufficient to satisfy the requirement that the defendants lacked probable cause. Furthermore, he states the defendant's reading of § 49-1 is incorrect, since § 49-1 would never mandate joining a defendant without probable cause. Finally, he argues that malice may be inferred from his allegations of lack of probable cause, and thus he has adequately alleged that the defendants acted with malice.
"The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages . . . The purpose of the action is to compensate a wronged individual for damage to his reputation and to reimburse him for the expense of defending against the unwarranted action." (Citation omitted, internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553-54, 944 A.2d 329 (2008). "In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute." Id., 554.
"[T]o establish a claim for vexatious litigation at common law, one must prove `want of probable cause, malice and a termination of suit in the plaintiff's favor.'" Id. "The statutory cause of action for vexatious litigation exists under § 52-568, and differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages." (Internal quotation marks omitted.) Id.
Lewis does not adequately allege facts that show that the defendants proceeded in the prior action with malice or lack of probable cause. In Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002), the Appellate Court upheld the trial court's judgment granting a motion to strike in a malicious prosecution counterclaim the pleading party simply alleged, in relevant part that "[s]aid action was commenced by plaintiff without probable cause" and "[s]aid action was maliciously brought . . ."
Although the party's claim was styled as one for "malicious prosecution," it was a civil action and do it is more properly conceived as one for vexatious litigation. See Bernhard-Thomas Building Systems v. Dunican, supra, 286 Conn. 554 n. 6 ("The elements of the torts of malicious prosecution and vexatious litigation are identical . . . The difference is that malicious prosecution is based on a former criminal prosecution, while the vexatious litigation is based on a prior civil action"). (Citation omitted, internal quotation marks omitted.)
"For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." Falls Church Group v. Tyler, Cooper, Alcorn LLP, 281 Conn. 84, 95, 912 A.2d 1019 (2007).
Merely alleging, as Lewis does here, that the defendants proceeded without a "good faith basis" and that the claim against him was "artificially contrived" is different from stating that the "action was commenced without probable cause," a formulation the Appellate Court specifically rejected in Krenisky. The plaintiff is required to allege specific facts to support these allegations.
In his brief, Lewis relies on DeLaurentis v. New Haven, 220 Conn. 225, 256 (1991) where that court stated: "[I]n the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." Lewis' allegation that "there was no good faith basis" to file the prior suit is nothing more than a conclusory allegation of the probable cause element. Cf. Fidelity Bank v. Krenisky, 72 Conn.App. 720 ("[the malicious prosecution claim] is legally insufficient because it alleges no facts in support of its mere conclusions of law"). "Mere conclusions of law, without factual support, are not enough to survive a motion to strike." Keller v. Beckenstein, 117 Conn.App. 550, 565, 979 A.2d 1055 (2009).
Finally, Lewis, in support of his argument of lack of probable cause, claims that the defendant's decision to withdraw its claim against him in the related foreclosure action indicates the defendant knew that they could not prevail on their claim against him in that action. Regardless of the reason why the defendant withdrew its claim against the plaintiff in the foreclose action, Lewis must affirmatively allege the lack of probable cause and the facts supporting that claim in this action. See Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005) ("It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.)
The defendant argues that there existed a very legitimate reason for including the plaintiff Lewis in the foreclosure action as he was the guarantor of the debt. If the guarantor was not named in the foreclosure action (assuming he was subject to service of process in Connecticut) the bank would never have had an opportunity to collect on the guaranty. In fact, it appears that it is the normal course to join guarantors. See D. Caron G. Milne, Connecticut Foreclosures: An Attorney's Manual of Practice Procedure, (2004) § 4.03C, p. 71 (Since § 49-1 operates to bar further action against any liable person who could have been subject to in personam jurisdiction at the time of the commencement of the action, anyone having a possible liability on the underlying obligation should be made a party defendant. Failure to do so precludes action for a deficiency judgment against any person who could have been made a party but was not. This category would include guarantors . . . Nothing in Schlesinger[v. Broderick, 220 Conn. 53 (1994)] or [ Bristol Bank Trust Co. v.] Broderick [ 122 Conn. 310 (1937) (construing predecessor statute to § 49-1)] suggest it is improper to bring suit against guarantors by means of a second count in a foreclosure . . ."). See also Connecticut Bank Trust Co. v. Boston Post Limited Partnership, Superior Court, judicial district of New London at New London, Docket No. 515294 (December 12, 1990) ( 3 Conn. L. Rptr 56) (date of Law Reporter not included) ("All parties . . . agree that if the plaintiff wishes to obtain a deficiency judgment, against the defendant guarantor, he must be made a party to the foreclosure action.")
Lewis' complaint lacks any factual allegations sufficient to support the claim of vexatious litigation and therefore the complaint should be stricken.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike is granted.