Opinion
No. CV 04-4004060 S
January 18, 2006
MEMORANDSUM OF DECISION RE MOTION TO STRIKE # 112 AND MOTION TO STRIKE #119
Before the court is the defendant, Chet Dunican's motion to strike counts one through four of the plaintiff's revised complaint, and the defendant, Attorney Jacques Parenteau's motion to strike counts five through nine of the same 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 allege respectively against Parenteau: 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.
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.
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.
On August 24, 2005, Parenteau filed a motion to strike counts five through nine of the plaintiff's revised complaint with a supporting memorandum. The plaintiff filed a memorandum in opposition to Parenteau's motion to strike on September 9, 2005.
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, Inc. v. Meehan, 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).
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the trial court construes the facts in the complaint in the manner most favorable to sustaining its legal sufficiency. Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, morever, [the court] read[s] the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Furthermore, "[i]n ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
I VEXATIOUS LITIGATION
Parenteau moves to strike counts five, six and seven of the plaintiff's revised complaint on the grounds that count five fails to allege vexatious litigation under § 52-568(1); count six fails to allege vexatious litigation under § 52-568(2); and count seven 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.
"[The Supreme Court has] held that a claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit was initiated maliciously, without probable cause, and terminated in the plaintiff's favor . . . In suits for vexatious litigation, it is recognized to be sound policy to require the plaintiff to allege that prior litigation terminated in his favor. This requirement serves to discourage unfounded litigation without impairing the presentation of honest but uncertain causes of action to the courts." (Citations omitted; internal quotation marks omitted.) Zeller v. Consolini, 235 Conn. 417, 424, 666 A.2d 64 (1995). "The elements of a common-law or statutory cause of action for vexatious litigation are identical." Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 596, 715 A.2d 807 (1998).
The plaintiff alleges in counts five, six and seven that Parenteau, in acting as Dunican's attorney, caused it to defend against a vexatious suit by filing a prejudgment remedy application. Specifically, it alleges that Parenteau lacked probable cause in seeking the prejudgment remedy and acted with malice. The plaintiff further alleges that Parenteau acted with intent to vex and trouble when he sent notice of the prejudgment remedy application to the Weitz Company, its largest client, and threatened to disclose embarrassing information. The court's denial of Dunican's prejudgment remedy application after a hearing, it argues, constitutes a termination of a proceeding in its favor for the purposes of asserting statutory and common-law claims of vexatious litigation. The plaintiff also asserts that although an application for a prejudgment remedy may not be a civil action, it is a complaint within the meaning of § 52-568.
Parenteau's motion to strike counts five, six and seven of the revised complaint allege that said counts do not sufficiently allege statutory and common-law vexatious litigation because they do not allege that a civil action commenced by Parenteau terminated in the plaintiff's favor. "The adjudication made by the court on the application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff's cause of action. It is independent of and collateral thereto and primarily designed to forestall any dissipation of assets by the defendant . . . [P]rejudgment remedy proceedings . . . are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication." (Internal quotation marks omitted.) Orsini v. Tarro, 80 Conn.App. 268, 272-73, 834 A.2d 776 (2003). Because a denial of an application for a prejudgment remedy is not a final adjudication on the merits of an action, "[a]n application for a prejudgment remedy is not a civil action upon which a cause of action for vexatious litigation may be based." 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).
Therefore, defendant Parenteau's motion to strike counts 5, 6, and 7 of plaintiff's revised complaint are hereby granted.
II ABUSE OF PROCESS
Parenteau moves to strike count eight of the plaintiff's revised complaint on the grounds that its abuse of process claim is deficient in that it does not allege facts to establish "specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation," as is required of an abuse of process claim against an opposing attorney.
"An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . Comment b to § 682 explains that the addition of `primarily' is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) Alexandru v. Dowd, 79 Conn.App. 434, 441-42, 830 A.2d 352, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003).
The plaintiff argues that Parenteau's motion to strike count eight should be denied because it has sufficiently alleged that Parenteau's actions in pursuit of the prejudgment remedy constituted an abuse of process. In the revised complaint, it asserts that Parenteau's notice to the Weitz company of the prejudgment remedy and threats to disclose embarrassing information constitute abuse of process. The plaintiff further argues that Parenteau's actions are instances of specific misconduct intended to cause specific injury outside the normal contemplation of private litigation.
The plaintiff's claim for abuse of process is deficient. "The purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiff's judgment, should he obtain one." (Internal quotation marks omitted.) Lewis Truck Trailer, Inc. v. Jandreau, 11 Conn.App. 168, 170, 526 A.2d 532 (1987). The plaintiff's allegation that Parenteau sent notice of the prejudgment remedy application to the Weitz Company and threatened to disclose embarrassing information, when viewed in its most favorable light do not establish that Parenteau's actions were in furtherance of a primary purpose other than to secure a prejudgment remedy. Rather, these allegations merely show that an ulterior motive existed. "Abuse of process is not an undefined cause of action; the fact that there existed an incidental motive of spite or an ulterior purpose of benefit to the defendant is not sufficient to constitute a cause of action for abuse of process." (Internal quotation marks omitted.) Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 720, 627 A.2d 374 (1993).
Accordingly, defendant Parenteau's motion to strike count 8 of plaintiff's revised complaint is granted.
III CUTPA
Parenteau moves to strike count nine of the revised complaint on the grounds that the plaintiff has failed to allege he violated CUTPA though his representation of Dunican. Because the representation of a client is not an entrepreneurial aspect of the practice of law, he asserts, an attorney of a plaintiff's adversary cannot be liable under CUTPA. Parenteau also argues that the plaintiff's allegations in the ninth count do not meet the standard established by the Connecticut Appellate Courts in evaluating CUTPA claims.
"CUTPA prohibits anyone from engaging in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. General Statutes § 42-110b(a)." (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 674-75, 874 A.2d 798 (2005). "[I]n determining whether a practice violates CUTPA [the Supreme Court has] adopted the criteria set out in the cigarette rule by the federal trade commission for determining whether a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise . . . (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005).
In count nine of its revised complaint, the plaintiff alleges that Parenteau violated CUTPA, § 42-110b et seq. during his representation of Dunican. Specifically alleges that Parenteau: (1) filed an unsuccessful prejudgment remedy application in the amount of three million five hundred thousand dollars; (2) his attorneys fees were to be determined by the amount Dunican recovered; (3) notified the Weitz company of the prejudgment remedy application in an attempt to pressure the plaintiff to pay money to Dunican; and (4) as a result of Parenteau's actions, it has suffered an ascertainable loss in that it has incurred substantial fees and expenses, and has suffered damage to its reputation.
Section 42-110b provides in relevant part: "[N]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
The plaintiff re-alleges the allegations in count six of its revised complaint, statutory vexatious litigation, in support of its CUTPA claim in count nine of the revised complaint.
Parenteau's motion to strike count nine of the plaintiff's revised complaint claims that said complaint does not sufficiently allege a violation of CUTPA. An aggrieved party does not have a cause of action against his opponent's attorney. "In general, CUTPA applies to attorney conduct, but only as to the entrepreneurial aspects of legal practice. Professional negligence, or malpractice, does not fall under CUTPA . . . [M]any decisions made by attorneys eventually involve personal profit as a factor, but are not considered part of the entrepreneurial aspect of practicing law . . ." (Citations omitted; internal quotation marks omitted.) Anderson v. Schoenhorn, supra, 89 Conn.App. 674. "Imposing liability under CUTPA on attorneys for their representation of a party opponent in litigation would not comport with a lawyer's duty of undivided loyalty to his or her client." Jackson v. R.G. Whipple, Inc., supra, 225 Conn. 729. The plaintiff, moreover, has failed to allege sufficient facts to support its CUTPA claim under the cigarette rule adopted by the Supreme Court. See Ventres v. Goodspeed Airport, supra, 275 Conn. 155. Specifically, it has failed to allege facts that Parenteau's actions: (1) offend public policy as established by statutes or some common law; (2) were immoral, unethical, oppressive or unscrupulous; or (3) caused substantial injury to consumers, competitors or other businessperson.
Accordingly, defendant Parenteau's motion to strike count 9 of plaintiff's revised complaint is granted.
CONCLUSION
Therefore, defendant Parenteau's motion to strike counts five, six, seven, eight and nine of the plaintiff's revised complaint is granted as to all counts enumerated. Said counts have failed to allege statutory and common law vexatious litigation, abuse of process and a violation of CUTPA.