Opinion
CV156026406S
12-11-2015
Eric Stradinger v. The Griffin Hospital et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE/DISMISS #104
Andrew W. Roraback, J.
I
ISSUES
Whether counts three, four, five, seven, and eight are barred by absolute immunity, and whether to strike counts one, three, and six on the ground that they are legally insufficient.
II
FACTS
The plaintiff, Eric Stradinger, filed an eight-count complaint against the defendants, The Griffin Hospital (Griffin), Hertzmark, Crean & Lahey, LLP (HCL), and Karen Lahey, on February 17, 2015. In count one of the complaint, the plaintiff alleges the following facts. Griffin provides medical services for a fee in Derby. HCL is located in Waterbury, and provides debt collection services. Lahey is an officer of HCL. In November 2007, Griffin filed suit against the plaintiff in Waterbury Small Claims court. Griffin asserted that the plaintiff was indebted to it in the amount of $4,961.96 for medical services provided in 2006. The plaintiff owed no more than $100, if anything, to Griffin. Griffin knew or should have known its representation that the plaintiff owed it the $4,961.96 was false at the time it made the representation. That representation was " made for the purpose of using the court to obtain a legal judgment against a person (as regards at least 98% of the funds sued for)" to whom Griffin had not provided a service, had no privity of contract, and had no legitimate legal theory upon which to base its claim. Before and during the pendency of the 2007 lawsuit, the plaintiff or his representative informed Griffin's representative that Griffin's " representation was false and why it was false." Despite knowing the representation was false, Griffin proceeded to take the suit to default judgment in June 2008. The plaintiff or his representatives, on more than one occasion, advised HCL and Lahey that the representation that the plaintiff owed Griffin $4,961.96 was false. Before, during, and after the pendency of the first suit, HCL and Lahey were aware or should have been aware that that representation was false. Despite this knowledge, HCL and Lahey, " continued to propagate the representation, including to the court." After March 2013, the defendants began taking money from the plaintiff without his consent through wage execution even though they knew or should have known for several years that the plaintiff had not incurred the debt. As of September 2014, the defendants have taken approximately $2,265 from the plaintiff without his consent in " repayment" of the first alleged debt.
In May of 2013, the defendants brought a second suit against the plaintiff in Waterbury Superior Court. In the second suit, the defendants obtained a default judgment of $6,694.97 against the plaintiff. The plaintiff's representative contacted HCL and Lahey on October 1, 2014, to ask for an explanation of why the defendants were taking money from the plaintiff when he had not incurred a debt to Griffin. On October 3, 2014, HCL and Lahey agreed in writing to put any wage executions on hold pending discussions with Griffin. " Despite this representation, by November 2014, the defendants had taken approximately $3,000 from the plaintiffs pay without his consent in 'repayment' of the first alleged debt."
The date the plaintiff actually provides in its complaint is October 3, 2013. Given the other facts alleged, however, the year provided appears to be a typographical error.
On November 5, 2014, the defendants agreed in writing to release the plaintiff from the underlying bills involved in both the 2007 action and 2013 action, satisfy both cases with the courts, and remove the debt references on the plaintiff's credit report in exchange for the funds already received in collection from the 2007 suit. On December 17, 2014, Griffin provided a release of all claims and debts pertaining to both the 2007 action and 2013 action. Despite the agreement and release, the defendants continued to take funds from the plaintiff's pay without his consent " in 'repayment' of the first alleged debt." On December 18, 2014, HCL and Lahey stated that the reason for the continued taking of the plaintiff's pay was because of a marshal's error, that they would immediately stop the execution, and that the marshal would immediately mail a check to the plaintiff repaying the additional money taken. Despite these representations, the defendants continued to take funds from the plaintiff's pay without his consent. On December 22, 2014, HCL and Lahey stated in writing that " a check for $645.78 was sent to your client by the marshal's office on Saturday, " but the defendants continued to take funds from the plaintiff's pay without his consent and no check was provided. On December 26, 2014, HCL and Lahey stated in writing that the marshal was to send a check to the plaintiff for the $645.78 and the $188 just deducted, but the defendants have failed or refused to repay any of the money wrongfully taken.
In count two, the plaintiff incorporates all of the allegations of the first count and alleges that HCL and Lahey are debt collectors, that he is a consumer, and that they used false representations or deceptive means to collect or attempt to collect a debt from him in violation of 15 U.S.C. § 1692e(10). In count three, the plaintiff incorporates all of the allegations of count two and further alleges that the defendants have stolen his property in violation of General Statutes § 52-564.
In count four, the plaintiff incorporates all of the allegations of count three and further alleges the following facts. In furtherance of the defendants' scheme to steal the plaintiff's property, Griffin, through its employee, Linda Kassheimer, swore in a June 18, 2007 affidavit that $4,961.96 was now due from the plaintiff to Griffin. HCL and Lahey then submitted Kassheimer's sworn affidavit to the court, intending for the court to rely on it even though they knew or should have known it was false. " The defendants engaged in an ongoing conspiracy to deprive the plaintiff of his rightful property when, knowing that to wrongfully take a person's property was a crime, they agreed with one another to engage in the performance of the aforementioned conduct, and one o[r] more of them committed overt acts in pursuance of such conspiracy" in violation of General Statutes § 53a-48.
In count five, sounding in intentional or negligent infliction of emotional distress, the plaintiff incorporates all of the allegations of count four and further alleges that the plaintiff suffered emotional distress as a result of the defendants' actions, which the defendants intentionally or negligently caused. In count six, the plaintiff incorporates all of the allegations of count five and alleges that the defendants have been unjustly enriched.
In count seven, sounding in fraud, the plaintiff incorporates all of the allegations of count six and alleges the following additional facts. As to the debts alleged in both the 2007 and 2013 actions, all the bills that Griffin generated would have been covered by available medical insurance had Griffin properly submitted them to the relevant carriers or reimbursers. The defendant failed to properly submit these debts to the relevant carriers or reimbursers in order to be able to seek higher reimbursement from the plaintiff than they would have received from the carriers or reimbursers under their contract and statutory obligations with those insurers and reimbursers, defrauding the plaintiff.
In count eight, the plaintiff incorporates all of the allegations of count seven and alleges that the defendants' actions were immoral and unscrupulous and caused the plaintiff actual losses, violating the Connecticut Unfair Trade Practices Act (CUTPA) by engaging in unfair or deceptive practices in the conduct of trade or commerce.
On March 31, 2015, HCL and Lahey moved to strike counts four, five, seven, and eight of the complaint on the grounds that those counts were barred by the doctrine of absolute immunity, and counts one, three, and six on the grounds that they are legally insufficient. The plaintiff filed a memorandum of law in opposition to the motion to strike on May 4, 2015. Oral arguments were heard on the matter at the short calendar of May 18, 2015. The court, following a status conference with regard to motion, requested additional arguments regarding the subject matter jurisdictional implications of the absolute immunity grounds. The parties filed supplemental briefs on October 13, 2015. The court heard supplemental arguments on the matter on October 14, 2015.
III
DISCUSSION
A
Absolute Immunity
As a threshold issue, " the doctrine of absolute immunity concerns a court's subject matter jurisdiction." Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014). Subject matter jurisdiction is properly addressed by a motion to dismiss. Practice Book § 10-30(a)(1). " It is axiomatic, however, that [o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . .., and the court must fully resolve it before proceeding further with the case . . . Thus, on the issue of jurisdiction, the court may treat the motion to strike as a motion to dismiss." (Emphasis in original; internal quotation marks omitted.) Buscetto v. Saint Bernard High School, Superior Court, judicial district of New London, Docket No. CV-11-6011089-S (July 25, 2014, Devine, J.) (58 Conn. L. Rptr. 764, 773). Therefore, the court will treat the movants' motion to strike on the ground of absolute immunity as a motion to dismiss.
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651-52. " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413-14, 35 A.3d 188 (2012). It is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
The movant argues that the " plaintiff's civil conspiracy, intentional and negligent infliction of emotional distress, fraud and CUTPA claims are barred by the doctrine of absolute immunity" because the " alleged tortious conduct took place during the course of judicial proceedings . . ." Additionally, the defendant argues that absolute immunity also bars the plaintiff's statutory theft claim in count three. In its objection, the plaintiff contends that absolute immunity should not apply because is not alleged that the statements and conduct were related to a judicial proceeding. Rather, the plaintiff argues, they " occur[ed] not in the course of litigation but years after any litigation . . ." In his supplemental memorandum in opposition, the plaintiff asserts that the vast majority of his allegations relate to statements that were not made in a judicial proceeding because " there had been no litigation pending for over a year and two months . . . when the defendants agreed, in writing, not to have any further funds deducted from the plaintiff's pay." The plaintiff further argues that the court, using the legal standard for an abuse of process cause of action, must look to whether there has been an abuse of process to determine if each count should be dismissed because of absolute immunity. The plaintiff also references certain deposition testimony from Lahey and attaches a certified copy of the deposition in support of his objection. The movants argue, in response, that the deposition testimony provides no support for the plaintiff's position because they are not disputing that they engaged in post-judgment collection activity but that absolute immunity applies to post-judgment collection activities on behalf of a client. The movants respond further that the plaintiff's abuse of process argument is improper because the plaintiff has not alleged an abuse of process cause of action.
The plaintiff argues that the movants have not properly raised absolute immunity as a ground to strike count three because the ground of absolute immunity was not raised as to count three in the initial motion to strike. Regardless of whether the movants asserted absolute immunity to strike count three in its initial motion, because absolute immunity implicates the court's subject matter jurisdiction and " [t]he subject matter jurisdiction requirement . . . may be raised by a party, or by the court sua sponte, at any stage of the proceedings"; (internal quotation marks omitted) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006); the issue of whether absolute immunity bars count three is properly before the court.
The movants also argue that the court cannot consider the deposition testimony on a motion to strike because it is evidence outside of the complaint. Even though the defendants raised the issue of absolute immunity by way of a motion to strike, because absolute immunity implicates subject matter jurisdiction, the court is treating the motion as a motion to dismiss with respect to the absolute immunity issue. The court's consideration of documentary evidence outside of the complaint is allowed on a motion to dismiss and, therefore, the court can consider the deposition testimony. Conboy v. State, supra, 292 Conn. 651-52.
The first issue is whether absolute immunity is a bar to these causes of action. " The doctrine of absolute immunity as applied to statements made in the context of judicial and quasi-judicial proceedings is rooted in the public policy of encouraging witnesses, both complaining and testimonial, to come forward and testify in either criminal or civil actions. The purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements . . . [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a complaint . . . Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state . . . As a result, courts have recognized absolute immunity as a defense in certain retaliatory civil actions in order to remove this disincentive and thus encourage citizens to come forward with complaints or to testify." (Citations omitted; internal quotation marks omitted.) Rioux v. Barry, 283 Conn. 338, 343-44, 927 A.2d 304 (2007).
" Although it is true that absolute immunity bars protected communications, as opposed to entire causes of action, it does not follow that if a communication is unprotected for purposes of one cause of action that it is necessarily unprotected when used to support any other cause of action. The opposite is also true: if a communication is protected for purposes of one cause of action, it is not necessarily protected for all causes of action. Rather, courts are required to balance the policy interests of protecting communications made under particular circumstances when used to support particular causes of action." (Emphasis in original.) Krol v. Halloran & Sage, LLP, Superior Court, judicial district of Fairfield, Docket No. CV-11-6018792-S (January 24, 2013, Gilardi, J.).
" Our case law differentiates between actions based on alleged misconduct by an attorney in his role as advocate, such as defamation and fraud, and actions that challenge the underlying purpose of the litigation itself, such as vexatious litigation and abuse of process . . . For the former category, the law protects attorneys from suit in order to encourage zealous advocacy on behalf of their clients, unrestrained by the fear of exposure to tort liability." (Citation omitted.) Perugini v. Giuliano, supra, 148 Conn.App. 873. Ultimately, " whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests." Rioux v. Barry, supra, 283 Conn. 346.
" Upon applying this balancing test, [our Supreme Court] has concluded that absolute immunity does not apply to actions for abuse of process . . . vexatious litigation . . . or malicious prosecution . . . In the case of each such tort, we concluded that the tort itself has built-in restraints that minimize the risk of inappropriate [retaliatory] litigation . . . Specifically, the three torts require, as a prerequisite to suit, that the previous action had been terminated in the plaintiff's favor, and all three torts have stringent additional requirements that provide further protection against inappropriate retaliatory claims . . .
" Conversely, [our Supreme Court] has held that attorneys are absolutely immune from defamation claims arising out of their conduct in judicial proceedings because of the absence of any mechanism, inherent in the tort of defamation or otherwise, for distinguishing wholly groundless claims from potentially meritorious ones . . . Although this means that even meritorious defamation claims are foreclosed, the fundamental policy concern underlying absolute immunity outweigh[s] the interest of the private [litigant] in being free from defamation." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Simms v. Seaman, 308 Conn. 523, 587-88, 69 A.3d 880, 916-17 (2013) (Palmer, J., dissenting).
Absolute immunity has also been extended to protect attorneys in their conduct in judicial proceedings against claims of fraud; id., 569; intentional infliction of emotional distress; DeLaurentis v. City of New Haven, 220 Conn. 225, 264, 597 A.2d 807, 827 (1991); negligent infliction of emotional distress; Perugini v. Giuliano, supra, 148 Conn.App. 873; and CUTPA; Jonas v. Delallo, Superior Court, judicial district of Fairfield, Docket No. CV-10-5029297-S (December 11, 2012, Bellis, J.) (55 Conn. L. Rptr. 226, 232). Neither party has cited, nor has the court's own research revealed, any decision of a Connecticut court determining whether absolute immunity protects attorneys from statutory theft or civil conspiracy actions based on their conduct in judicial proceedings. Thus, the court must apply the public policy analysis underlying absolute immunity to the causes of action of statutory theft or civil conspiracy to determine whether, on balance, the protection of absolute immunity should extend to such claims.
The tort of statutory theft is codified at General Statues § 52-564, which provides: " Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." " The elements that the plaintiff's must prove to obtain treble damages under the civil theft statute, § 52-564, are the same as the elements required to prove larceny, pursuant to General Statutes § 53a-119." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 695, 713, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013). According 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." " It must be shown that (1) there was intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner . . . The essential cause of action is a wrongful exercise of dominion over personal property of another." (Internal quotation marks omitted.) Kosiorek v. Smigelski, supra, 713.
Section 53a-119 provides a non-exhaustive list of acts that constitute larceny. The only one that appears pertinent to the plaintiff's allegations is subsection (2), which provides: " 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." The elements of a statutory theft claim based on § 53a-119(2) thus appear analogous to a fraud claim and similarly contain none of the inherent safeguards to prevent inappropriate retaliatory litigation that the claims of malicious prosecution, vexatious litigation, and abuse of process have. As the court in Simms v. Seaman, supra, 308 Conn. 548-49, stated: " claims of defamation and fraud during a judicial proceeding contemplate allegations that a party suffered harm because of a falsehood communicated by the opponent's attorney, namely, the publication of a false statement that harms the other party's reputation in the case of defamation, and a false representation made as a statement of fact that induces the other party to act to his detriment in the case of fraud. Commentators have observed that, because the privilege protects the communication, the nature of the theory [on which the challenge is based] is irrelevant . . . Accordingly, because the communication of a falsehood is an essential element of both defamation and fraud, the litigation privilege provides a complete defense to both causes of action." (Emphasis in original.) In the present case, the communication of a falsehood is an essential element of the plaintiff's statutory theft claim. Furthermore, unlike torts such as vexatious litigation, applying absolute immunity under these circumstances would not " effectively eliminate" the tort of statutory theft. Rioux v. Barry, supra, 283 Conn. 348. Absolute immunity, therefore, bars a claim that an attorney is liable for statutory theft based on false statements provided during a judicial proceeding.
" The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff. There is, however, no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort . . . [T]he essence of a civil conspiracy . . . [is] two or more persons acting together to achieve a shared goal that results in injury to another." (Emphasis in original; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 635-36, 894 A.2d 240 (2006). " Thus, the purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor's conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing. Implicit in this purpose, and in the principle that there must be an underlying tort for the viability of a civil conspiracy claim, is the notion that the coconspirator be liable for the damages flowing from the underlying tortious conduct to which the coconspirator agreed." Id., 636.
Civil conspiracy is, thus, unusual in that " there must be an underlying tort for the viability of a civil conspiracy claim." Id., 636. Therefore, although the elements of a civil conspiracy cause of action do not themselves contain the " built-in restraints that minimize the risk of inappropriate litigation"; (internal quotation marks omitted) Rioux v. Barry, supra, 283 Conn. 348; it is possible that the underlying tort might itself provide those safeguards. Here, the plaintiffs claim in count four is that the movants conspired with Griffin Hospital to " deprive the plaintiff of his rightful property" by submitting a sworn affidavit of Griffin Hospital's employee stating that $4,961.96 was " 'now due'" from the plaintiff to Griffin Hospital for the purpose of having the court rely on it, which the defendants knew or should have known was false. In this case, the underlying tort appears to be the same statutory theft cause of action the plaintiff pleaded in count three. As the court has already determined, statutory immunity applies to the statutory theft cause of action. Absolute immunity, therefore, bars a claim that an attorney is liable in civil conspiracy for the underlying tort of statutory theft based on statements provided in a judicial proceeding.
The court notes that the plaintiff mistakenly argues that in determining whether absolute immunity applies, the court must look to the facts alleged in each cause of action to see if it also makes out a claim for abuse of process. As the case law addressing absolute immunity make clear, the court looks to the elements of the cause of action alleged to see if they provide the right balance and necessary safeguards in determining whether absolute immunity is applicable; the court does not assess the facts alleged under each cause of action to see if they might also make out a claim legally sufficient for an abuse of process cause of action. See Mozzochi v. Beck, 204 Conn. 490, 495, 529 A.2d 171, 173 (1987) (" permitting [abuse of process] cause of action"); Perugini v. Giuliano, supra, 148 Conn.App. 873 (" [o]ur case law [regarding absolute immunity] differentiates between actions").
The plaintiff's claims of statutory theft, civil conspiracy, negligent infliction of emotional distress, intentional infliction of emotional distress in counts three, four, five, and eight are, therefore, barred by absolute immunity if the communications complained of have a sufficient connection to a judicial proceeding. " 'The scope of privileged communication extends not merely to those made directly to a tribunal, but also to those preparatory communications that may be directed to the goal of the proceeding.' Hopkins v. O'Connor, 282 Conn. 821, 832, 925 A.2d 1030 (2007). The Restatement (Second) of Torts also provides that '[a]n attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.' 3 Restatement (Second), Torts § 586, p. 247 (1977). 'The privilege . . . is confined to statements made by an attorney while performing his function as such.' Id., comment (c), p. 248. 'It is not absolutely essential, [however], in order to obtain the benefits of absolute privilege, that the [communication] be spoken in open court or contained in a pleading, brief, or affidavit.' (Internal quotation marks omitted.) McManus v. Sweeney, 78 Conn.App. 327, 827 A.2d 708, 335, 78 Conn.App. 327 (2003). Our Supreme Court has also held that when communications are made to a limited and discrete group in preparation of the case and made for the purpose of marshaling evidence for a future proceeding, the statements are subject to absolute immunity. Kelley v. Bonney, 221 Conn. 549, 573-74, 606 A.2d 693 (1992). Thus, the privilege applies to communications, formal or otherwise, that have taken place both before and during a judicial or quasi-judicial proceeding as long as the communication has some relation to the proceeding and the public interest is advanced by affording the statements absolute immunity." Jonas v. Delallo, supra, 55 Conn. L. Rptr. 230-31.
In the present case, the allegations against the movants in counts three and four, which sound in civil theft and civil conspiracy based on civil theft, relate to an allegedly false representation, made to the court, that $4,961.96 was due from the plaintiff to Griffin. Such representations are at the heart of the doctrine of absolute immunity. Absolute immunity, therefore, bars the plaintiff's fraud-based civil theft and civil-theft based civil conspiracy claim in counts three and four. The plaintiff's intentional and negligent infliction of emotional distress claims in count five and the plaintiff's CUTPA claim in count eight are similarly barred as they also rely on the allegedly false representation to the court that $4,796 1.96 was due to Griffin from the plaintiff. Furthermore, the deposition testimony that the plaintiff refers to indicates that these causes of action are based on the representation to the court regarding the money due to Griffin. Count seven, however, relates to the defendants' failure to properly submit bills to the relevant carriers or reimbursers in order to seek higher reimbursement from the plaintiff. The failure to submit claims to an insurer does not have a sufficient connection to a judicial proceeding to be absolutely privileged. The claim in count seven is not only not based on statements made to the court, but it is also not based on communications undertaken in preparation of a lawsuit or a communication to the plaintiff regarding the debt that was the subject of the lawsuit. Rather, it is a fraud claim based on a deliberate failure to submit bills to an insurer. As such, count seven is not barred by absolute immunity.
B
The Motion to Strike as to Counts One and Six
Practice Book § 10-39(a) provides, in relevant part: " A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . ." " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . .." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). " 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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
1
Count One: Breach of Contact
The movants argue that the plaintiff has not alleged a legally sufficient breach of contract claim because he has failed to allege that there was any consideration provided for the agreement. According to the movants, the " plaintiff has not alleged that he promised to do anything or suffered any detriment in regard to the alleged contracts with the defendants." Rather, the movants contend, all the plaintiff has alleged are " mere unilateral promises." In response, the plaintiff argues that the complaint alleges an exchange of consideration: " the defendants get to keep funds they have taken in exchange for an agreement to take no more funds and to release the plaintiff herein and to remove adverse credit references."
" The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable . . . Put another way, [u]nder the law of contract, a promise is generally not enforceable unless it is supported by consideration . . . A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do." (Citation omitted; internal quotation marks omitted.) Thoma v. Oxford Performance Materials, Inc., 153 Conn.App. 50, 55-56, 100 A.3d 917, 923 (2014). " [C]onsideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee . . . [t]he doctrine of consideration does not require or imply an equal exchange between the contracting parties . . . Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." (Internal quotation marks omitted.) Id., 56.
In the present case, the plaintiff alleges in count one that the defendants had taken approximately $3,000 from him in repayment for the debt from the 2007 action when the plaintiff had not incurred any debt to Griffin; that, in exchange for allowing the defendants to keep that sum, the defendants agreed that they would release all claims against the plaintiff in the 2007 and 2013 suit and remove the debt reference on the plaintiff's credit report; and that the plaintiff breached this agreement by continuing to take funds from the plaintiff's pay in repayment of the debt that was the subject of the 2007 action. Interpreted most favorably to the plaintiff, the first count alleges an agreement supported by consideration because it implies that the plaintiff had a right to the $3,000 that the defendants had taken from his pay and that he relinquished that right in exchange for the defendants releasing all their claims against him in both the 2007 and 2013 actions and removing the debt reference on the plaintiff's credit report. Therefore, the plaintiff's breach of contract claim is legally sufficient.
2
Count Six: Unjust Enrichment
The movants argue that the plaintiff's unjust enrichment claim is legally sufficient because they " cannot be liable for unjust enrichment for collecting default judgments on behalf of the hospital" and " the plaintiff has included no factual allegations as to how the defendants, rather than their clients were 'enriched.'" Additionally, the movants argue that the unjust enrichment claim is legally insufficient because the plaintiff " has impermissibly incorporated all of the allegations from his breach of contract count into the unjust enrichment count." In response, the plaintiff contends that he has pleaded sufficient facts to allege " that the defendants were benefitted, that they unjustly did not pay the plaintiff for this benefit and that the failure to pay was to the plaintiff's detriment." The plaintiff also argues that, although " paragraph 31 of count one . . . alleges that '[t]he defendants breached their agreement with the plaintiff, '" " [t]here is no analogous allegation in . . . the unjust enrichment count."
" Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract . . . Recovery is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff . . . In the absence of a benefit to the defendant, there can be no liability in restitution; nor can the measure of liability in restitution exceed the measure of the defendant's enrichment." (Citations omitted; internal quotation marks omitted.) United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn.App. 506, 512, 802 A.2d 901 (2002). " The elements of unjust enrichment are well established. Plaintiff's seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefit, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Ayotte Bros. Construction Co. v. Finney, 42 Conn.App. 578, 581, 680 A.2d 330, 332 (1996).
" It has been held in several recent Superior Court cases that allegations of express contract between the parties incorporated into a count stating a claim for unjust enrichment cause a violation of the rule that those alternative causes of action must be pleaded in separate counts. Burke v. Boatworks, Inc., Superior Court, judicial district of Stamford--Norwalk at Stamford, Docket No. CV 044001838 (July 26, 2005, Jennings, J.). In William Raveis Real Estate v. Cendant Mobility Corp., [Superior Court, judicial district of Ansonia-Milford, Docket No. CV05-4002709-S (December 6, 2005, Stevens, J.)], the court concluded that by incorporating allegations of the previous counts, 'the plaintiff clearly alleges the existence and breach of an express contract in the count seeking unjust enrichment, contrary to the rule that alternative causes of action must be pleaded in separate counts. In short, the plaintiff may plead unjust enrichment in the alternative, but this is not accomplished by incorporating into this count all the allegations of an express contract. Such a complaint does not involve alternative pleading, but involves legally inconsistent pleading.'
" Several other Superior Court cases have dealt with similar inconsistent pleading and have all reached the same conclusion by striking the count alleging unjust enrichment. See, e.g., Thyssenkrupp Elevator v. Workstage, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-09-5005826 (August 19, 2010, Matasavage, J.) (striking quantum meruit count that incorporated allegations from breach of contract count 'because it alleges a claim in quantum meruit while at the same time acknowledging the existence of a contract between the plaintiff and [the defendant] and a breach thereof by [the defendant]'); Robinson Aviation, Inc. v New Haven, Superior Court, judicial district of New Haven, Docket No. CV-09-5032399 (July 7, 2010, Zoarski, J.T.R.) (striking unjust enrichment count because 'the plaintiffs incorporate[d] the allegations contained in their breach of contract count into their unjust enrichment count'); J& N Electric, Inc. v. Notkins, Superior Court, judicial district of New Haven, Docket No. CV-08-5020144 (May 20, 2009, Keegan, J.) (granting motion to strike because 'the plaintiff clearly alleges the existence and breach of an express contract in the count seeking unjust enrichment'); Silktown Roofing v. Haynes Construction, Superior Court, judicial district of Middlesex, Docket No. CV-05-4004864 (August 3, 2006, Dubay, J.) (granting motion to strike unjust enrichment claim because 'the plaintiff incorporate[d] the first thirteen paragraphs of its breach of contract claim into its claim for unjust enrichment . . . [and thus] asserted the existence of a contract remedy within [the unjust enrichment] count').
" 'On the other hand, some [S]uperior [C]ourt opinions permit incorporating allegations so long as the allegation that the contract was breached does not appear in the count for unjust enrichment.' O'Malley v. Devito, Superior Court, judicial district of New Britain, Docket No. CV 09 401988S (May 7, 2010, Trombley, J.) (49 Conn. L. Rptr. 801) . '[M]erely incorporating allegations regarding the existence of a contract into an unjust enrichment claim does not necessarily mean that the unjust enrichment claim should be stricken, so long as it has not been alleged that the contract was breached ' (Emphasis added.) The Final Cut, LLC v. Sharkey, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5007365 (May 5, 2009, Adams, J.). See also Landeen Transport, LLC v. Tuccinardi Topsoil, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 095013799 (November 2, 2009, Brunetti, J.) (denying motion to strike because unjust enrichment count separate and distinct from breach of contract count as it incorporated factual allegations regarding existence of contract, but not paragraph specifically alleging breach); Fanion v Radei, Superior Court, judicial district of Windham, Docket No. CV 07 5001250 (November 5, 2007, Martin, J.) (same)." (Emphasis in original.) MBMB, LLC v. New Alliance Bank, Superior Court, judicial district of New Haven, Docket No. CV-10-6011842-S (Dec. 9, 2010, Woods, J.).
In the present case, the plaintiff's unjust enrichment claim incorporates, in its entirety, his breach of contract claim in count one. By incorporation from count one, the plaintiff alleges not only that Griffin wrongfully took his money and failed to repay it, but also that all the defendants did so. Therefore, when the complaint is interpreted most favorably to the plaintiff, it does allege that the movants, rather than just their clients, failed to repay him the money they wrongfully took from him. Although this allegation might otherwise be sufficient to state an unjust enrichment cause of action, here the plaintiff has also incorporated from count one the existence and breach of an express contract in the count seeking unjust enrichment, " contrary to the rule that alternative causes of action must be pleaded in separate counts . . . [which] is not accomplished by incorporating into [the unjust enrichment] count all the allegations of an express contract. Such a complaint does not involve alternative pleading, but involves legally inconsistent pleading." Id. Also, it should be noted that this is not a case where the plaintiff has merely incorporated the existence of a contract and not its breach. Rather, here the plaintiff incorporates not only the existence of an agreement with the defendants but also the defendants' breach of that agreement. Count six, therefore, does not state a legally sufficient cause of action in unjust enrichment.
Because the court has already determined that it does not have subject matter jurisdiction over the plaintiff's claim of statutory theft in count three as it relates to HCL and Lahey, it need not address whether that claim is legally sufficient as to HCL and Lahey.
IV
CONCLUSION
For the foregoing reasons, counts three, four, five, seven, and eight are dismissed for lack of subject matter jurisdiction based on absolute immunity as to the defendants Hertzmark, Crean & Lahey, LLP and Karen Lahey. The motion to strike is otherwise denied as to count one and granted as to count six with respect to the defendants Hertzmark, Crean & Lahey, LLP and Karen Lahey.