Opinion
No. CV04 4004060S
June 7, 2006
MEMORANDUM OF DECISION MOTION TO STRIKE # 112
The defendant Chet Dunican has filed a motion to strike Counts one through Four of the plaintiff's revised complaint. On February 8, 2005, the plaintiff, Bernhard Thomas Building Systems, LLC, filed a revised nine-count complaint against the defendants, Chet Dunican and Attorney Jacques Parenteau. Counts one through four allege respectively against Dunican: statutory vexatious litigation in violation of General Statutes § 52-568(1); statutory vexatious litigation in violation of § 52-568(2); common-law vexatious litigation and abuse of process. Counts five through nine alleged respectively against Parenteau include statutory vexatious litigation in violation of § 52-568(1); statutory vexatious litigation in violation of § 52-568(2); common-law vexatious litigation; abuse of process and violation of the Connecticut Unfair Trade Practices Act (CUTPA), § 42-110b, et seq. On August 11, 2005, the plaintiff filed a partial revision to the revised complaint regarding Counts Five through Nine against Parenteau. However, the first four counts against Dunican remained unchanged.
The plaintiff alleges that Dunican, a former employee, filed an application for a prejudgment remedy in the amount of three million five hundred thousand dollars on December 19, 2003, at the advice of his attorney, Parenteau. The application was filed in anticipation of a wrongful discharge claim against the plaintiff. The plaintiff further alleges that on March 10, 2004, after a hearing on the prejudgment remedy, the court denied Dunican's application for lack of probable cause. As a result the plaintiff claims that it has incurred substantial fees and expenses to defend against the prejudgment remedy. The plaintiff also alleges that it suffered damages to its business and reputation after Dunican and Parenteau notified its largest client, the Weitz Company, of Dunican's pending prejudgment remedy application.
I Procedural Background
On June 23, 2005, Dunican filed his motion to strike the first four counts of the plaintiff's complaint and on August 24, 2005, Parenteau filed a motion to strike counts five through nine of the plaintiff's revised complaint. The plaintiff filed objections to the motions to strike by Dunican and Parenteau on July 2005 and September 9, 2005 respectively. On January 18, 2006, the court (Skolnick, J.) granted Parenteau's motion to strike counts 5 through 9. See. Bernhard-Thomas Building Systems, LLC, v. Dunican, Superior Court, judicial district of Fairfield at Bridgeport No. CV 04-4004060 S (Jan. 18, 2006, Skolnick, J.). While Judge Skolnick's memorandum of decision refers to the motions to strike filed by both Dunican and Parenteau, the decision only involves the granting of Parenteau's motion to strike. Regarding the Dunican motion to strike, Judge Skolnick commented as follows:
Parenteau, thereafter, filed a motion for judgment as to counts 1 through 5 which was granted without objection by the court (Rush, JTR) on February 27, 2006.
Dunican filed a motion to strike counts one through four of the plaintiff's revised complaint on June 23, 2005. His motion to strike, however, is not addressed in this decision. A default for failure to plead was entered against him on June 27, 2005. He subsequently filed a motion to open the default on July 11, 2005, arguing that the default was entered by the clerk in error because he had previously filed the motion to strike. Because the default has not been opened or set aside, his motion is improperly before the court. "Although no appellate decisions of this state have addressed this issue directly, many Superior Court decisions are on point. See, e.g., Slamon v. Ierardi, Superior Court, judicial district of Litchfield, Docket No. 091995 (November 22, 2004) (Brunetti, J.) (defendant prohibited from filing any motions where default had not been opened or set aside) . . . Neiman Marcus Group v. Meehan Neiman, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 387601 (September 19, 1991) (Schaller, J.) ( 5 Conn. L. Rptr. 16, 17) (defendant prohibited from filing motion to strike where default not opened or set aside)." (Citations omitted.) Dauti v. Stop Shop Supermarket Co. 90 Conn.App. 626, 638 n. 12, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).
See Bernhard-Thomas Building Systems, LLC, v. Dunican, supra, n. 2. Therefore, the court (Skolnick, J.) never determined the merits of Dunican's motion to strike, due to the procedural impediments surrounding the default for failure to plead. This court has removed that procedural barrier by granting Dunican's motion to set aside the default on June 6, 2006. The court will, therefore, determine the merits of Dunican's motion to strike counts 1 through 4, having reviewed the earlier decision of Judge Skolnick. Bernhard-Thomas Building Systems, LLC, v. Dunican, supra, Superior Court, judicial district of Fairfield at Bridgeport No. CV 04-4004060 S (Jan. 18, 2006, Skolnick, J.).
Dunican's motion to set aside the default and motion to strike # 112 were assigned to this court on the short calendar dated March 20, 2006.
II Legal Standard Re Motion to Strike
"The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
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 omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
III Discussion A. VEXATIOUS LITIGATION
Dunican moves to strike counts one, two and three of the plaintiff's revised complaint on the grounds that count one fails to allege vexatious litigation under § 52-568(1); count two fails to allege vexatious litigation under § 52-568(2); and count three fails to allege common-law vexatious litigation. He argues that the complaint is legally insufficient in that it does not allege facts to establish that he commenced or prosecuted a civil action that terminated in the plaintiff's favor. In particular, he argues that a prejudgment remedy application does not constitute a "civil action" for the purposes of asserting a claim of vexatious litigation.
Section 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such person double damages, or 2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
In rendering its decision in Bernhard-Thomas Building Systems, LLC, v. Dunican, supra, Superior Court, judicial district of Fairfield at Bridgeport No. CV 04-4004060 S (Jan. 18, 2006, Skolnick, J.), discussed the issue of whether a denial of an application for a prejudgment remedy and was a civil action upon which a cause of action for civil litigation can be based. Judge Skolnick determined that an application for a prejudgment remedy and the subsequent denial of that application, is not a civil action upon which a cause of action for vexatious litigation may be based. See Dinnis v. Roberts, Superior Court, judicial district of New Haven, Docket No. 296974 (January 3, 1991, Dorsey, J.) ( 3 Conn. L. Rptr. 638); see also, Savitt v. Condon Olderman Realty, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 01 073254 (October 31, 2002, Holden, J.) ( 33 Conn. L. Rptr. 325).
A review of the allegations regarding vexatious litigation, both statutory and common law against Dunican in counts 1 through 3 reveals that they mirror the allegations against Parenteau in counts 1 through 8, which were ordered stricken by the court (Skolnick, J.). A review of the plaintiff's legal brief opposing Dunican's motion to strike, as it applies to counts 1 through 3, reveals that the reasoning for the plaintiff's objections are similar if not identical, to the objections he raised in opposing Parenteau's motion to strike counts 5 through 8. In his decision Judge Skolnick undertook a thorough analysis of the issue of vexatious litigation pursuant to General Statutes §§ 52-5689(a)(1) and 52-668(a)(2) and common-law vexatious litigation. For the reasons stated therein he that counts 5 though 7 of the revised complaint against Parenteau should be stricken. This court adopts Judge Skolnick's reasoning and applies that reasoning to counts 1 through 3 of the revised complaint pertaining to the defendant Dunican. Accordingly, the court orders that counts 1 through 3 of the Revised Complaint be stricken.
B. Abuse of Process
Dunican has also moved to strike Count Four of the plaintiff's Revised Complaint which alleges an abuse of process. Count Four against Dunican minors Count Eight which was alleged against Parenteau. Judge Skolnick ordered Count 8 stricken in his decision regarding Parenteau's motion to strike Counts 5 through 9 of the Revised Complaint. See. Bernhard-Thomas Building Systems, LLC, v. Dunican, supra, Superior Court, judicial district of Fairfield at Bridgeport No. CV 04-4004060 S (Jan. 18, 2006, Skolnick, J.) In that decision, the court found that the plaintiff's claim for abuse of process was deficient. Id. This court, again, adopts Judge Skolnick's reasoning and applies it to the plaintiff's Count Four against Dunican. Accordingly, Count Four is ordered stricken.
Summary
The court hereby grants the defendant Dunican's motion to strike Counts 1 through 4 of the plaintiff's Revised Complaint dated February 7, 2005.