Summary
In Barbiero v. Chiocca, supra, 40 Conn. L. Rptr. 694, the plaintiff brought a claim against the defendant for abuse of process on the basis that the defendant knowingly made a false claim to the police that a bad check, completed by the defendant, had in fact been completed by the plaintiff.
Summary of this case from Kelly v. McIntoshOpinion
No. CV05-40139295
January 31, 2006
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The defendant has moved to strike the third count (abuse of process) and fourth count (intentional infliction of emotional distress) on the grounds that they are not legally sufficient.
Although the court will try to discuss the facts in more detail as necessary, a preliminary overview of them is necessary. In August 2003 the parties entered into an agreement whereby the plaintiff was to purchase various food and restaurant items from the defendant. Payment was to be made in installments, one at the time of delivery and the second in cash or goods after January 2004. Payment was to be secured by an undated check by the plaintiff to the defendant. Paragraph 4 states that "without authorization or notice to the plaintiff, the defendant did fraudulently complete and execute the . . . security check representing that the plaintiff had completed the check and intended it to be cashed by the defendant."
The check was returned for insufficient funds and paragraph 5 goes on to allege that the defendant made a complaint to the police claiming the check, completed by the defendant, had in fact been completed by the plaintiff and was intended for deposit. Paragraph 6 says that as a result of the complaint, forgery, and misrepresentation he was arrested by warrant. Paragraph 11 states the defendant knew that his complaint and statement to the police were false and was "made for a purpose inconsistent with the process of a criminal complaint." In paragraph 12 it is alleged that the complaint and statement to the police were made to harm and vex the plaintiff.
The intentional infliction of emotional distress claim in count four repeats the foregoing allegations and alleges in paragraph 13 of that count that the defendant's conduct constitutes intentional infliction of emotional distress — the defendant's actions were extreme and outrageous in that "the defendant intentionally and unreasonably subjected plaintiff to severe emotional distress which he knew or should have known was likely to result in illness or other bodily harm." Paragraph 14 goes on to state the defendant's conduct caused the plaintiff to suffer "severe mental, physical, and emotional distress" requiring treatment by "physicians and/or mental health professionals" and other damage.
(1)
The motion to strike directed to the third count lying in abuse of process is based on two arguments. First it is argued that the count is legally insufficient because it does not set forth a claim for abuse of process. If anything a malicious prosecution claim is being advanced and the complaint is legally insufficient on that ground because under the Uniform Commercial Code as adopted by our state and as it governs negotiable instruments, §§ 42a-3-101, etc., the particular check here was in fact a negotiable instrument and the complaint to the police when it was returned for insufficient funds was justified and proper. Thus it cannot be concluded that the defendant acted without probable cause and malicious prosecution cannot be established within the four corners of the complaint.
A.
This requires a definition of these two torts. Schaefer v. OK Tool, Inc., 110 Conn. 528, 532-33 sets forth the elements of these separate torts in our state.
Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose. The gravamen of the complaint is the use of process for a purpose not justified by law. The distinction between malicious prosecution or vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceedings, not in the issue of process but in its abuse. The distinction in the elements essential for recovery in each tort is that in the action for abuse of process the plaintiff is not bound to allege or prove the termination of the original proceeding nor, in most jurisdictions, the want of probable, while both of those must be proven in an action for malicious prosecution or vexatious suit.
The court then discussed why the factual allegations made in the case indicates that the action before it lied in malicious prosecution not abuse of process as alleged:
The material allegations of the counterclaim are: (1) that plaintiff instituted the present action in this State on July 30th, 1927, (2) that on October 3d, 1927, he served a summons and complaint upon the defendant to appear before the Supreme Court of the State of New York, setting forth the same cause of action as is set forth in this action, and (3) that the New York action was brought solely to harass the defendant and was without justification and vexatious. This does not set up a cause of action for abuse of process. The defendant's complaint is of the issue of the process, not the abuse of it. The only action of the plaintiff which is complained of, is that he instituted a suit by summons and complaint in the State of New York while there was a suit for the same cause of action pending in this State. Id. pp.
533-34.
Schaefer is still the law in our state, see QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 360, fn. 16. Prosser On Torts, 5th ed. further explains the distinction between abuse of process and malicious prosecution. At § 121, page 897 he says:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.
All of this reflects the commentary to § 682 of Restatement (2d) Torts defining abuse of process, there at page 474 it says:
A. The gravamen of the misconduct for which the liability stated in this section is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process no matter how properly obtained, for any purpose other than that which it was designed to accomplish.
Keeping these definitions in mind the point here is that the claim being made is in fact with the very initiation of the criminal proceedings against the plaintiff. As stated in comment (a) to the Restatement: "The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which liability is imposed under the rule stated in this section (for abuse of process)," id. (Emphasis by Court). Here the claim is that the very initiation of criminal proceedings was unjustified, in fact that is the basis for the later claim of intentional infliction of emotional distress. In Am.Jur.2d "Abuse of Process" it says at § 4, pp. 460-61, "The significant distinction between these two causes of action is that in (malicious prosecution), the wrongful act is the commencement of an action without legal justification (the exact case here) and in (abuse of process) it is the subsequent proceedings not in the issue of process, but in its abuse." The latter scenario does not fit any allegation made in this third count so the court will regard it as lying in malicious prosecution not as claimed, abuse of process.
The court will not strike this count on the basis alone that a wrong cause of action was used as a label for it. That would exalt form over substance. P.B. § 10-43 talks of the legal sufficiency of the allegations in general it does not refer to the legal sufficiency of the cause of action advanced in the complaint. Also by implication the general powers given trial courts to have parties define the issues in dispute under P.B. § 10-1 envisages a situation where the factual allegations do not support the legal claims or defenses made and the trial court orders the issues be "defined" or be given a "fuller and more particular statement." One cannot hypothesize a situation where a court can or would make such an order where the actual factual allegations do not support the issue the court seeks to be made more particularized or defined.
B.
In any event based on the factual allegations of the complaint can a claim of malicious prosecution be said to be legally sufficient under the factual allegations made. An action for malicious prosecution requires (1) that the defendant initiated criminal proceedings against the plaintiff (2) the proceedings terminated in the plaintiff's favor (3) the defendant acted without probable cause (4) the defendant acted with malice and not to bring an offender to justice, McHale v. W.B.S. Corp., 187 Conn. 444, 447 (1982).
Reading the entire complaint the check in question is alleged to have been undated. Giving the complaint every favorable inference the alleged "fraudulent" completion of the check involved filling in a date without "authorization or notice to the plaintiff." The complaint also alleges a complaint was made to the police "claiming that the check completed by the defendant was completed by the plaintiff." The plaintiff was arrested but upon presentation of documentation to the police "the warrant for the plaintiff's arrest was vacated and no prosecution of the plaintiff ever arose." The police proceeding terminated in the plaintiff's favor. The first two elements of malicious prosecution have been properly alleged. The defendant claims the last two have not been.
The defendant's claim of lack of sufficiency in the third count rests on his interpretation of various provisions of the Uniform Commercial Code. In other words the defendant argues he did not act without probable cause or with malice in setting in motion the process by which the plaintiff was arrested — in fact the defendant's only purpose was that of "bringing an offender to justice." The defendant's reference to the code and argument are set forth on page five of his brief:
"Pursuant to 42a-3-102, the Uniform Commercial Code applies to negotiable instruments and a check is referred to and defined within that particular act. See, 42a-3104(8). "If an instrument is undated, its date is the date of its issue, or in a case of an unissued instrument, the date it first comes into possession of a holder." Connecticut General Statutes § 42a-3-113. In addition, a negotiable instrument such as a check is payable upon demand if there is no date in the instrument. Connecticut General Statutes § 42a-3-108. In order to define when the check was issued one needs only refer to Connecticut General Statutes § 42a-3-105 which defines issuance of a negotiable instrument as delivery."
In other words the defendant argues that the check, although undated, was a negotiable instrument at the time of delivery to the defendant, he therefore had a right to try to cash it and press charges when the check was returned for insufficient funds.
The plaintiff counters by arguing that the defendant has confused an "undated" instrument which he describes as "a negotiable instrument upon which no indication of date (is) provided" § 42a-3-115 and an "incomplete instrument" as described in § 42a-3-115. The plaintiff points to subsection (c) of the latter statute which says:
(c) If words or numbers are added to an incomplete instrument without authority of the signer, there is an alteration of the incomplete instrument under section 42a-3-407.
Section 42a-3-407, in relevant part, says "(a) An alteration means (1) an unauthorized change in an instrument that purports to modify in any respect the obligation of a party or (ii) an unauthorized addition of words or numbers or other change to an incomplete instrument relating to the obligation of a party." Subsection (b) says that "an alteration fraudulently made discharges a party whose obligation is affected by the alteration . . ." Therefore, it is argued, the defendant had no right to try to cash the check — it was only a security check for two payments to be made by means other than the delivery of this check.
However, the court does not agree with this particular argument of the plaintiff, in that it does not take into account the definition of "incomplete instrument" in subsection (a) of § 42a-3-115 which says an "incomplete instrument" means a "signed writing, whether or not issued by the signer, the contents of which show at the time of signing that it is incomplete but that the signer intended it to be completed by the addition of words or numbers." The comment to this statute says: "The term `incomplete instrument' applies both to an `instrument,' i.e., a writing meeting all the requirements of section 3-104, and a writing intended to be an instrument that is signed but lacks some element of an instrument. The test in both cases is whether the contents show that it is incomplete and that the signer intended that additional words or numbers be added." (Emphasis by court.)
It is difficult to conclude from what has been presented to the court that the mere fact that a check or any other instrument is undated indicates that the signer intended that additional numbers be added. Section 42a-3-104 sets forth the requirements of a negotiable instrument and as noted in Uniform Commercial Code, 4th ed. White Summers at § 17-4, page 155: "The date requirement is fairly flexible: provisions for extension or acceleration do not affect negotiability and courts construe instruments with a missing date as payable on demand," citing Ranieri v. Terzano, 457 N.E.2d 906 (Oh. 1983); Citibank N.A. v. Pitassi, 432 N.Y.S.2d 389 (1980), cf. also § 42a-3-113(b). Since this is the case it is difficult to see how in commercial markets or among ordinary users of checks it could be said that the mere fact that a check is undated would indicate the instrument is incomplete and the signer intended it to be completed by the addition of numbers such as a date — why would such an "intention" be operable since anyone receiving the check would know under the code that the undated character of the check does not affect its status as payable on demand, i.e., that it is a negotiable instrument. But this does not end the discussion.
The code wishes to protect and encourage the negotiability of instruments which the discussion of the foregoing code sections underlines. However the code cannot be read to provide a cloak for fraudulent conduct or violation of agreements involved with and governing the creation of what purports to be on a face and indeed is on its face, as here, a negotiable instrument. That would hardly encourage the use of negotiable instruments in the economy for everyday use by business people.
Therefore there is a need for a provision like § 42a-3-117 which neither party referred to in their brief or in argument. That section reads as follows:
§ 42a-3-117. Other agreements affecting instrument
Subject to applicable law regarding exclusion of proof of contemporaneous or previous agreements, the obligation of a party to an instrument to pay the instrument may be modified, supplemented, or nullified by a separate agreement of the obligor and a person entitled to enforce the instrument, if the instrument is issued or the obligation is incurred in reliance on the agreement or as part of the same transaction giving rise to the agreement. To the extent an obligation is modified, supplemented, or nullified by an agreement under this section, the agreement is a defense to the obligation.
In the comment to this section the reason for it is stated quite clearly: "For example, a person may be induced to sign an instrument under an agreement that the signer (here the plaintiff) will not be liable on the instrument (to a person in the position of the defendant) unless certain conditions are met." That is exactly the viable assertion here — the undated check was given only as security for payment of goods sold and delivered; it was to become operative only upon the failure of the condition of payment — that is necessarily implied by characterization of the check as a "security" instrument. That would not mean the instrument is otherwise not negotiable — the section only provides a defense against the payee (here the defendant) in the original transaction. The Code's interest in negotiability and coherent uniformity of its provisions defining negotiability is ensured by the observation made in another comment to this section. Thus, although section 42a-3-117 would provide a defense to the plaintiff against any claim that he would be obligated on the check without his authorization, "the defense would not be good against a subsequent holder in due course of the note that took it without notice of the agreement."
For example if the bank here had cashed this check it would have a defense against the plaintiff for disbursement of funds from the checking account.
It is true that the section does have a qualifier which says that the defense it provides is "subject to applicable law regarding exclusion of proof of contemporaneous or previous agreements." But this cannot be dealt with on a motion to strike and in any event, giving the complaint every reasonable inference, the "applicable law" referenced, one would think, should have an exception for fraudulent conduct.
The court denies the motion to strike the third count.
(2)
The motion also is directed against the fourth count which alleges intentional infliction of emotional distress. It is argued that the requirement of this tort that the conduct be "extreme and outrageous." As the Restatement (2d) Torts says at § 46, page 73: "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," Petyan v. Ellis, 200 Conn. 243, 253 (1986). Conduct displaying bad manners or that results in hurt feelings or is merely insulting will not suffice, Appleton v. Bd. of Education, 254 Conn. 205, 210-11 (2000) (Section 46 of Restatement followed).
Since the courts would be overwhelmed if slight hurts could establish the extreme and outrageous element of this tort the Restatement in comment k to Section 46 has the following to say:
It is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery or whether it is necessarily so. Where reasonable men (and women) may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.
Giving the complaint every favorable inference what is alleged here is that the plaintiff gave the defendant a check only intended to secure payment for the sale and delivery of goods. In other words it was not to be cashed unless the plaintiff authorized it. The complaint alleges that not only did the defendant violate this agreement by presenting the check for payment but knowing of his violation (he was a party to the agreement) he went ahead and procured the plaintiff's arrest for return of a check which according to the plaintiff he never had a right to present for payment.
Whether such conduct, if proven, is extreme and outrageous is properly a jury question.
This complaint could have very well been subject to a request to revise. The court is compelled to give every favorable inference to the complaint and its factual allegations and therefore did not believe it could grant the motion to strike either count which are factually related. The plaintiff in the complaint characterized the check in question as a "security check." This implied to the court that at the time the defendant tried to cash it per the agreement between the parties, it was still considered to be security for payment but the question remains as to whether at the time the check was cashed was payment due or not due for the goods sold. That the check was to continue in its capacity as security for a sale and purchase is further buttressed by the allegation in paragraph 4 that it was presented to the bank without "authorization from or notice to the plaintiff."
Also paragraph 5 says the defendant complained to the police that the check delivered to him was "intended for deposit." The obvious inference is that per the agreement this was not the case — the very presentation of the check is claimed to be fraudulent and paragraph 8 states the plaintiff was able to show the police that "the claims of the defendant were false." This must include the claim that the check was "intended for deposit." These matters may have to be explored in a later dispositive motion.