Opinion
CV165015844S
06-30-2017
Ridgefield Waterside Motors, LLC v. Alison Borg et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTIONS TO STRIKE COUNTERCLAIMS (#126 AND #130)
Irene P. Jacobs, J.
FACTS
This case arises out of a dispute concerning the condition of the defendants' motor vehicle after it had been brought to the plaintiff, an automobile dealership, to be serviced in accordance with a manufacturer's recall. The plaintiff, Ridgefield Waterside Motors, LLC, instituted this action on August 16, 2016, against the defendants, Alison and John Borg, alleging that the defendants failed to return a vehicle loaned to the defendants while the repair was being performed. The complaint, in four counts, alleges replevin, conversion, statutory theft, and breach of contract [#107]. The defendant John Borg, representing himself, filed an answer, special defenses, and a seven-count counterclaim on December 27, 2016 [#123]. The defendant Alison Borg, also representing herself, filed an answer, special defenses, and an almost-identical seven-count counterclaim on January 17, 2017 [#129]. The defendants' counterclaims contain the following seven causes of action: anticipatory breach of contract; breach of contract; private nuisance; invasion of privacy; alleges trespass; negligence; and intentional infliction of emotional distress.
On January 17, 2017, the plaintiff filed the current motion to strike the defendant John Borg's counterclaim [#126] and a supporting memorandum of law [#127]. On January 19, 2017, the plaintiff filed a motion to strike the defendant Alison Borg's counterclaim [#130] and a supporting memorandum of law [#131]. Objections and memoranda of law were filed by the defendant John Borg on February 21, 2017 [#149] and by the defendant Alison Borg on February 27, 2017 [#153, #154]. The plaintiff filed reply memoranda to each defendant's objection on February 28, 2017 [#151, #152]. The motions were argued at the March 6, 2017 Short Calendar.
The plaintiff alleges that, on June 17, 2016, the plaintiff loaned a vehicle (loaned vehicle) to the defendant Alison Borg while the plaintiff performed recall services on the vehicle given to it by defendant Alison Borg (recalled vehicle). Later that day, the plaintiff completed the services on the recalled vehicle and attempted to deliver it to the defendants at 5 Sterling Drive, Westport, Connecticut. The defendants refused the vehicle, claiming that damage had been done to the wood trim on its interior. The plaintiff then made efforts to find a suitable replacement for the broken piece of trim, but the defendants refused delivery of the recalled vehicle multiple times because they were not satisfied with the repaired trim. On July 7, 2016, the plaintiff returned the recalled vehicle to the 5 Sterling Drive property. Since that date, the plaintiff alleges it has made several demands for the return of the loaned vehicle, but as of the present date, the defendants are still in possession of the loaned vehicle.
The defendants, in separate answers, deny all of the plaintiff's allegations and each assert the same seven-count counterclaim. In their counterclaim, and in their arguments to the court at Short Calendar, the defendants allege the following facts. The defendant Alison Borg dropped the recalled vehicle off at the maintenance department of the plaintiff's automobile dealership for repairs relating to an airbag recall, and the plaintiff loaned her a vehicle. When the plaintiff attempted to return the recalled vehicle, the defendants noticed that a piece of interior wood trim was broken. The plaintiff refused to repair said trim, instead offering compensation of $100. The plaintiff then delivered the recalled vehicle to the 5 Sterling Drive property, without repairing the trim, and blocked the defendants' access to two other vehicles on the property. The plaintiff then attempted to retrieve the loaned vehicle by having a representative enter the 5 Sterling Drive property, but the representative left without the loaned vehicle after the defendant John Borg asked him to leave. In addition, the plaintiff contacted both Westport and Ridgefield police departments and reported the loaned vehicle as stolen. Finally, although the plaintiff admitted to breaking the trim in a phone conversation, it has refused to perform the necessary repair, valued at no more than $500.
DISCUSSION
" Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Cadle Co. v. D'Addario, 131 Conn.App. 223, 235, 26 A.3d 682 (2011). " A counterclaim has been defined as 'a cause of action existing in favor of a defendant against a plaintiff which a defendant pleads to diminish, defeat or otherwise affect a plaintiff's claim and also allows a recovery by the defendant.' . . . In other words, a counterclaim is a cause of action . . . on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action." (Citation omitted; internal quotation marks omitted.) Historic District Commission v. Sciame, 152 Conn.App. 161, 176, 99 A.3d 207, cert. denied, 314 Conn. 933, 102 A.3d 84 (2014). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
Count One: Anticipatory Breach of Contract
" An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived . . . Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance . . . The manifestation of intent not to render the agreed-upon performance may be either verbal or nonverbal . . . and is largely a factual determination in each instance . . . Repudiation can occur either by a statement that the promisor will not perform or by a voluntary, affirmative act that indicates inability, or apparent inability, substantially to perform." (Internal quotation marks omitted.) Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn.App. 632, 803 A.2d 402 (2002).
The plaintiff argues that defendant John Borg has not sufficiently pled that he is a party to any contract that involves the plaintiff. The plaintiff argues that the defendant Alison Borg has pled no facts that support the claim that the plaintiff intended to breach a contract between the parties.
Both defendants allege that the terms included in an advisory letter sent to them in September 2014, from BMW of North America, LLC, (advisory letter) act as a binding contract on the plaintiff. The defendants allege that the advisory letter stated that they should " immediately schedule an appointment to have the necessary repair performed as soon as possible" and that it would be a " free repair" that " will require approximately three hours" to replace the " front passenger airbag." (#129, p. 5; #123, p. 6.) The defendants allege that the plaintiff failed to complete the repair in three hours and that the plaintiff failed to provide the repair free of charge.
The defendants have alleged no facts that support the claim that the advisory letter was adopted by the plaintiff as a binding contract. The defendants acknowledge that the plaintiff has a different mailing address and is a different entity than BMW North America. Nowhere in their pleadings do the defendants allege that the advisory letter contained the name of the plaintiff, or promises that the plaintiff would provide said work in conjunction with the terms of the advisory letter. The plaintiff acknowledges that it was performing the work described in the advisory letter, but the defendants have not pleaded facts establishing that the plaintiff specifically, and not BMW North America or any other authorized BMW service center, is the party bound to any promises contained in the advisory letter.
Contrary to his allegations that the plaintiff breached its contractual obligations, the defendant John Borg states in count one of his counterclaim that he " specifically denies any execution or involvement with" any alleged agreement made between him and the plaintiff (#123, p. 12). Given the fact that he has explicitly denied a contractual relationship with the plaintiff, the defendant John Borg has failed to allege facts that support a claim of anticipatory breach of contract by the plaintiff. Count one is legally insufficient because the defendant has not pleaded any facts to show that he has a contractual relationship with the plaintiff or that he was an intended beneficiary of a contract between the plaintiff and a third party.
The defendant Alison Borg alleges that she and the plaintiff entered into a contract that provided her with the loaned vehicle until the completion of the free repair on the recalled vehicle. She alleges that since the plaintiff failed to repair the recalled vehicle within the three-hour time limit described in the advisory letter, the plaintiff failed to perform its duties under the contract. She alleges that the agreement provided by the plaintiff as Exhibit B to the complaint is not the agreement she is referencing. The defendant Alison Borg does not provide the terms or the conditions of the alleged agreement she references, and instead relies on the terms of the advisory letter as proof that the plaintiff failed to fulfill its contractual obligations. As discussed above, the advisory letter cannot act as a binding contract on the plaintiff as pleaded, and allegations of its existence are not sufficient to establish a contract and subsequent breach by the plaintiff.
Count Two: Breach of Contract
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Summerhill, LLC v. Meriden, 162 Conn.App. 469, 131 A.3d 1225 (2016). The plaintiff argues that defendant John has not sufficiently pled any facts that he is a party to any contract that involves the plaintiff. The plaintiff argues that defendant Alison Borg alleges no facts that the plaintiff and she held a contract that was breached by the plaintiff.
Both defendants assert that the advisory letter established a binding contract between them and the plaintiff for a free repair of approximately three hours on the front passenger air bag. The defendants do not allege any facts that show the plaintiff accepted these terms, made actions that showed their willingness to be bound by these terms, or that the plaintiff was specifically named by BMW of North America as the party required to perform the airbag repair. An advisory letter, with a description of the necessary repairs that needed to be completed on the recalled vehicle is not enough to establish a contract between the plaintiff and the defendants. Counts one and two of the defendant John Borg's counterclaim are legally insufficient because the defendant John Borg has not pleaded any facts to show that he has a contractual relationship with the plaintiff or that he was an intended beneficiary of a contract between the plaintiff and a third party. Count one and two of the defendant Alison Borg's counterclaim is legally insufficient because the defendant Alison Borg has not pleaded any facts to show that the obligations allegedly breached were part of any contractual relationship between her and the plaintiff.
Count Three: Private Nuisance
" In order to recover in a private nuisance action a plaintiff must have an ownership interest in the land." Meizoso v. Bajoros, 12 Conn.App. 516, 518, 531 A.2d 943 (1987). The plaintiff argues that the defendants fail to plead facts that establish a private nuisance claim because they have not alleged that they hold an ownership interest in the 5 Sterling Drive property.
Neither defendant has asserted any facts that they have an ownership interest in the property located at 5 Sterling Drive. Both defendants state that they lack " sufficient knowledge or information to form a belief with respect to the allegations" of whether they reside at 5 Sterling Drive. In addition, both defendants state in their answers that their principal place of residence is 411 Walnut Street, Unit 6164, Green Cove Springs, Florida, 32043. Since neither defendant has asserted an ownership interest in the 5 Sterling Drive property, they have not alleged the facts necessary to establish a private nuisance case.
Count Four: Invasion of Privacy
" The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." Goodrich v. Waterbury Republican-America, Inc., 188 Conn. 107, 448 A.2d 1317 (1982).
[C]onstruction of a self-represented party's pleading should not focus on technical defects, but should afford the [appellant] a broad, realistic construction of the pleading under review. Macellaio v. Newington Police Department, 145 Conn.App. 426, 431, 75 A.3d 78 (2013). (internal quotation marks and citation, omitted.) " The court is mindful of the need to balance fairness to a self-represented party who may not be proficient in technical rules of pleading, against fairness to represented parties who should not be disadvantaged by virtue of the fact that they are represented." Johnson v. Young, Superior Court, Docket No. FST-CV 15-501-5168-S, (11/23/16), Povodator, J. Thus, although neither defendant clarifies which category or categories of the invasion of privacy tort they are asserting, the court gives the defendants latitude and addresses the three categories of invasion of privacy presented by the plaintiff in its motions to strike.
1. Unreasonable Intrusion upon Seclusion of Another
" Section 652B of the Restatement (Second) of Torts provides: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy . . . Furthermore, [t]he invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars . . . It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail . . . Id., comment (b). Finally, [t]he defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff . . . Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters. Id., comment (c)." (Internal quotation marks omitted.) Gullong v. Nurmi, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV-15-6013784-S (November 8, 2016, Vitale, J.). The plaintiff argues that the defendants have failed to plead that any unreasonable intrusion into their seclusion took place, physical or otherwise.
The defendants fail to adequately plead that the plaintiff physically intruded into a secluded space. The defendants allege that the plaintiff entered the 5 Sterling Drive property without permission or attempting to schedule a time in order to retrieve the loaned vehicle. In addition, the defendants allege that the plaintiff delivered their vehicle to the 5 Sterling Drive property and intentionally blocked two other vehicles on the property. Neither defendant alleges that these contacts were made in an area where they had a right to privacy or seclusion, simply that the plaintiff's representatives were trespassing on the 5 Sterling Trail property, and therefore, invaded their privacy. Without more specific factual allegations as to how the plaintiff intruded upon the expected physical seclusion of the defendants, the pleadings are insufficient to support a cause of action under the tort of intrusion upon the seclusion of another.
In addition, the defendant John Borg alleges that the plaintiff e-mailed him on his personal e-mail, which was provided by the Westport police department, and the defendant Alison Borg alleges that the plaintiff left voicemails on a phone number that she did not provide and sent written letters to an address that she did not provide. The defendants do not allege that the plaintiff obtained the e-mail address, phone number, or address, through means that invaded their privacy. The allegations as pleaded do not support the claim that the plaintiff intruded upon the defendants' seclusion when it obtained and then utilized the defendants' contact information to make inquiries about the loaned vehicle. In addition, neither defendant alleges that any of the plaintiff's conduct was directed at discovering personal, private matters about either defendant's personal life, only that the unsolicited messages pertained to the loaned vehicle.
2. Unreasonable Publicity
" Section 652D of the Restatement (Second) of Torts defines a tort action for the invasion of personal privacy as being triggered by public disclosure of any matter that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." (Internal quotation marks omitted.) Perkins v. FOIC, 228 Conn. 158, 635 A.2d 783 (1993). " The rule stated in [§ 652D] gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable [person]." Id., 173. The plaintiff argues that defendants failed to allege facts that the plaintiff publicly disclosed private information about the defendants, and that the defendants do not allege any facts referencing what, if any, private information was made public.
The defendants have not alleged that the plaintiff publicized any personal information about them. Both defendants claim that the plaintiff filed false police reports, but they do not specify what information provided to the police was false. In addition, neither defendant alleges any facts about how the information was made available to the public.
3. False Light
In order to establish invasion of privacy by false light, a party must show " (a) the false light in which [she] was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed . . . The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true . . . and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position." (Citation omitted; internal quotation marks omitted.) Jonap v. Silver, 1 Conn.App. 550, 474 A.2d 800 (1984). The plaintiff argues that the defendants do not allege any facts showing that the plaintiff provided false information, and further, did not allege what false information was then made public.
The defendants allege that the plaintiff levied false police reports against them, and as a result of these false reports, the defendants were forced to reveal private information which is now public. The defendants have not pleaded any facts that indicate the information that the plaintiff supplied the Westport and Ridgefield police departments was false. In addition, the defendants have not pleaded that the plaintiff published any false information about them, only that the police reports were filed, and then as a result of the defendant's own disclosures, the information has subsequently become public. Even if the plaintiff did provide false information to the police, the defendants have not alleged facts as to how the false information has been published.
Count Five: Trespass
" The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury . . . The invasion, intrusion or entry must be physical . . . [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land." (Citations omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 931 A.2d 237 (2007). The plaintiff argues that the defendants have not pled ownership or possession of the 5 Sterling Drive property.
As has been previously discussed, neither defendant has alleged an ownership or possessory interest in the 5 Sterling Drive property. For this reason, the defendants have not sufficiently pled their claim for trespass by the plaintiff.
Count Six: Negligence
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Citations omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004). " A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act . . . There is no question that a duty of care may arise out of a contract, but when the claim is brought against a defendant who is not a party to the contract, the duty must arise from something other than mere failure to perform properly under the contract." (Citations omitted; internal quotation marks omitted.) Atelier Constantin Popescu, LLC v. JC Corp., 134 Conn.App. 731, 49 A.3d 1003 (2012). " The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result." (Internal quotation marks omitted.) Jarmie v. Troncale, 306 Conn. 578, 50 A.3d 802 (2012). The plaintiff argues that the defendants have not pleaded facts that establish a duty of care that the plaintiff owed to them. As to the defendant John Borg, the plaintiff argues that he was not a part of an agreement between the parties and has no ownership interest in the vehicle that would create a duty of care on the part of the plaintiff. As to the defendant Alison Borg, the plaintiff argues that emotional damages that allegedly occurred as a result of damage to the recalled vehicle are too remote to establish a legal duty on the part of the plaintiff.
As discussed above, the defendant John Borg has expressly stated in his counterclaim that he was not a part of any contract with the plaintiff. In addition, he alleges that he was not part of any contract between " the plaintiff and the owner of the . . . recalled vehicle." (#123, p. 5.) As he has pleaded no interest in a contract with the plaintiff, or ownership of the recalled vehicle, the defendant John Borg cannot be owed a duty based on a contract with the plaintiff, or even generally as an owner of the recalled vehicle.
The defendant Alison Borg claims that " [t]he plaintiff . . . directly or through agents knew or should have known that attempting to conceal the inflicted damages caused by the plaintiff . . . to the BMW Recalled Vehicle would only further cause damage." (#129, p. 18.) The damages she then lists in count six of her counterclaim are: " apprehension, intimidation, annoyance, severe anxiety, emotional distress, [and] extreme mental anguish." (#129, p. 19.) The plaintiff could reasonably foresee that it would be liable for physical damages to the defendant Alison Borg's vehicle if it caused the physical damages to the wood trim. However, the defendant Alison Borg's pleadings indicate that the negligence action in her counterclaim is directed at additional damage that the plaintiff caused when it attempted to conceal damage to the wood trim. The defendant Alison Borg alleges no other physical damages to the recalled vehicle, only the emotional damages listed in count six of her counterclaim. These emotional damages would not have been foreseeable by the plaintiff when it began the requested repairs on the recalled vehicle.
Count Seven: Intentional Infliction of Emotional Distress
" In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Carrol v. Allstate Ins. Co., 262 Conn. 433, 815 A.2d 119 (2003). " Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Citations omitted.) Id., 443. The plaintiff argues that the defendants do not adequately plead extreme and outrageous conduct as required by the tort of intentional infliction of emotional distress.
The defendants have pleaded no facts which implicate conduct that would be utterly intolerable in a civilized community. Both defendants assert the fact that the plaintiff engaged in acts that were " extreme, outrageous, willful, and wonton when intruding upon the privacy" of the defendants and " as such, the acts constitute an intentional infliction of emotional distress." (#129, p. 21; #123, p. 21.) In addition, both defendants state that the plaintiff s acts and omissions " constitute an intentional infliction of emotional distress . . . [and] [t]hese are acts of a kind that would be highly offensive to a reasonable person." (#129, p. 21; #123, p. 21.) The facts alleged by the defendants do not support the defendants' conclusory statements. Calls and emails from the plaintiff requesting the return of the loaned vehicle, which the defendants admit to possessing, does not constitute extreme behavior. Attempts to involve law enforcement to retrieve property that the plaintiff views as stolen is not outrageous behavior. Attempts to enter the property or loaned vehicle, without more, are not enough to justify a claim of conduct beyond the bounds of reason that supports an intentional infliction of emotional distress claim
CONCLUSION
For the aforementioned reasons, the plaintiff's motions to strike the counterclaims of defendants Alison Borg and John Borg are granted.