Opinion
AANCV166022190S
10-11-2017
Dejan Robert Cokic v. Fiore Powersports, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON THE PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIMS
Barry K. Stevens, J.
STATEMENT OF THE CASE
This action was instituted by the plaintiff Dejan Cokic against the defendants Fiore's Powersports, LLC, Christopher Fiore, and Village Marina, LLC regarding repairs and claims involving a jetski owned by the plaintiff. Pending before the court is the plaintiff's motion to strike the counterclaims filed by Village Marina. For the following reasons, the plaintiff's motion to strike these counts is granted.
The allegations of the second amended complaint relevant to the plaintiff's motion to strike are as follows. The plaintiff took the jetski to Village Marina for repair and agreed to pay $800 for the repairs. Subsequently, a $2, 470 invoice was received from Fiore's Powersports for repairs purportedly done on the jetski. Among other things, the complaint alleges that the plaintiff never authorized Fiore's Powersports to do any repairs to the jetski, did not agree to repairs costing $2, 470, and some of the requested repairs were not done or were not done correctly. Counts two, four, and six of the complaint assert claims against Village Marina. Count two alleges conversion; count four alleges violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a (CUTPA); and count six alleges negligence. Village Marina has filed two counterclaims against the plaintiff alleging abuse of process and vexatious litigation.
DISCUSSION
I
" A motion to strike attacks the legal sufficiency of the allegations in a pleading . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action." (Internal quotation marks omitted.) Kortner v. Martise, 312 Conn. 1, 48-49, 91 A.3d 412 (2014). " 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 [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " [W]hether the plaintiff alleged the facts required . . . must be determined with due regard to the principle that the facts necessarily implied by the allegations in a complaint are sufficiently pleaded, and hence need not expressly be alleged." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). " In 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). Similarly, " the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
II
As previously stated, the first count of Village Marina's counterclaim is based on abuse of process. " 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." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).
In its first counterclaim, the defendant alleges that the plaintiff's institution of this action constituted an abuse of process because the action " was primarily to accomplish a purpose for which it was not designed or intended as the [plaintiff] was aware that [Village Marina] was not associated in any way with the remaining defendants when he filed his lawsuit." The plaintiff argues that this count should be stricken because it does not allege facts sufficient to assert an abuse of action claim and because the claim as alleged is premature. The court agrees.
First, the counterclaim's allegation that the plaintiff knew that Village Marina was not " associated" with the other defendants does not clearly or sufficiently explain how the plaintiff's complaint constitutes an improper use of process. Stated differently, the plaintiff's claims against Marina Village, as asserted in the complaint, are not necessarily dependent on this defendant having an " association" with the other defendants.
Second, although the elements of a cause of action for abuse of process do not require favorable termination of a prior action, our Supreme Court has nevertheless concluded that an abuse of process claim is properly stricken as premature when the underlying action is still pending. Larobina v. McDonald, 274 Conn. 394, 407-08, 876 A.2d 522 (2005). Although addressed while evaluating the propriety of a CUTPA counterclaim factually premised on vexatious litigation, Judge Sheldon's thorough, well-reasoned analysis of Larobina is fully applicable here.
" The upshot of Larobina, for present purposes, is that whenever a legal claim is based upon an allegation that one's opponent has engaged in litigation misconduct--whether by wrongfully bringing a claim or lawsuit or by abusing legal process in so doing--the claim is `premature, ' and must therefore be stricken, if the underlying claim or lawsuit thereby challenged is still pending. To the degree that issues raised by such litigation-misconduct claims overlap with issues raised in the underlying litigation, the striking of such claims while the underlying litigation is still pending fosters the final resolution of such common issues in the underlying litigation, where they first were raised and can best be understood and decided in their proper context. The eventual outcome of the underlying litigation and the evidence presented by the parties concerning it will ultimately be relevant in litigating the misconduct claim, presumably at a later time.
" In addition, by preventing the prosecution of litigation-misconduct claims while the underlying litigation is still pending, the rule announced in Larobina promotes the vigorous prosecution of the underlying litigation in two ways. First, it unburdens the parties from the need to engage in costly, time-consuming litigation in two forums at once, thereby eliminating the risk of producing inconsistent judgments in separate trials. Second, it eliminates the chilling effect on claimants of having to defend themselves against allegations of litigation misconduct while attempting to prove their own claims on the merits. For the reasons that follow, the latter effect would be particularly debilitating if litigation-misconduct claims could be brought as counterclaims in the very same lawsuit where such litigation misconduct allegedly occurred.
" If a party were required, in the course of prosecuting his own claims against an opponent on the merits, to defend himself against a counterclaim contending that his prosecution of those claims was groundless, and thus constituted litigation misconduct, he would be forced in that lawsuit not only to establish those claims with competent evidence but to rebut the opponent's allegation against him that he had pursued or was pursuing those claims without probable cause. This would raise the issues of when, how and on what factual and legal bases he determined that his claims were meritorious, which in turn would expose him to discovery by his opponent of at least three types of information he would otherwise be privileged not to reveal. The first is his attorney's investigative work product. The second are the confidential communications that he has made to his attorney concerning the facts of the case in order to seek his attorney's advice as to the viability of his underlying claims. The third are the confidential communications made to him by his attorney concerning the legality of pursuing such claims on the basis of the facts he provided the attorney and such other facts as his attorney learned in preparing the case. Though such information and communications are privileged, and thus not disclosable, in a case involving only the merits of the plaintiff's own claims, it would be discoverable with respect to the opponent's litigation-misconduct counterclaim, of vexatious litigation or its equivalent, because they bear upon central issues raised by such a claim, to wit: whether the plaintiff acted with probable cause when he brought his underlying claims; whether, in the absence of probable cause, he brought such claims in good-faith reliance upon the advice of counsel after making a full disclosure to counsel of all facts known to him concerning the matters at issue. Plainly, one major benefit to be gained by insisting that claims of litigation misconduct not be brought on any legal theory until after the completion of the underlying litigation in which the misconduct allegedly occurred is that that would relieve plaintiffs of the burden of making such disclosures of otherwise privileged information, which could obviously otherwise have a profoundly chilling effect upon the exercise of their right to consult in confidence with and make full and effective use of the services of their attorneys in the prosecution of their claims.
" Another significant benefit to be gained by postponing the bringing of any claim based upon the allegedly groundless prosecution of a lawsuit until after the lawsuit in question is completed is to avoid the risk of creating conflicts of interest between clients and their attorneys if the latter become material witnesses to their clients' defenses to claims of litigation misconduct against them. If the client testifies as to the information he gave to his attorney before suit was filed and to the attorney's advice to him to support his defense of good-faith reliance upon the advice of counsel, the attorney will at a minimum be required to defend both his client's conduct and the nature and soundness of his own legal advice. If the client is challenged as to his testimony on that subject, moreover, the attorney may become a material witness to the attorney-client discussions upon which the client claims to rely, and thus may be required to withdraw from the representation of the client in order to testify personally in the client's defense. In fact, the lawyer might become a critical witness not only as to the substance of his own advice to his client but as to the completeness of the information given to him by the client as a basis for formulating and offering such advice. Surely, there can be no effect more chilling upon the right to prosecute a legal claim than the prospect of losing one's right to continue using the services of one's chosen counsel simply because one's opponent might decide to bring a counterclaim of vexatious suit or its equivalent against him in the case.
" The conclusion to which the foregoing analysis naturally leads is that, in fairness to parties wishing to resort to our courts to present legal claims of any kind, it is essential that no claims based upon alleged litigation misconduct in the bringing or prosecution of such underlying claims be brought against them until the underlying claims are finally resolved. Therefore, no claim based upon alleged litigation misconduct in the bringing or prosecution of an underlying claim may be brought as a counterclaim in the same lawsuit that is claimed to have been improperly brought or prosecuted. This is equally true for claims of vexatious suit and intentional interference with business relations, of which the favorable termination requirement has been made an essential element, and for claims of abuse of process, where favorable termination has not been made an element, but the pursuit of such a claim has nonetheless been disallowed as premature until the completion of the underlying litigation." Wes-Garde Components Group, Inc. v. Carling Technologies, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-5028121-S (March 10, 2010, Sheldon, J.) (49 Conn. L. Rptr. 671, 674-75, ).
Consequently, on the basis of Larobina , trial courts have either stricken or entered judgment against counterclaims asserted by defendants alleging that a plaintiff's complaint constitutes an abuse of process. Realty Ass'n., LLC v. Ancker, LLC, Superior Court, judicial district of Hartford, Docket No. CV-15-6062514-S (November 1, 2016, Peck, J.T.R.) (63 Conn. L. Rptr. 311, ) (striking counterclaim alleging that plaintiff's complaint constituted abuse of process); Kobylanska v. Northstar Condo. Ass'n, , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6021406-S, (June 28, 2016, Tobin, J.T.R.) (same); MacDermid, Inc. v. Leonetti, Superior Court, judicial district of Waterbury, Docket No. CV-11-6012559-S (July 16, 2014, Shapiro, J.) (58 Conn.L.Rtpr. 561, ) (granting summary judgment against counterclaim alleging that plaintiff's complaint constituted abuse of process).
III
The second count of Marina Village's counterclaim alleges that the plaintiff's complaint constitutes vexatious litigation. The plaintiff correctly indicates that an essential element of a vexatious litigation claim is termination of an earlier action in favor of the claimant. " [U]nder Connecticut law, a counterclaim alleging vexatious litigation may not be brought in the same action as that which the defendant claims is vexatious." Somers v. Chan, 110 Conn.App. 511, 542, 955 A.2d 667 (2008).
" [T]o establish a claim for vexatious litigation at common law, one must prove want of probable cause, malice and a termination of suit in the plaintiff's favor . . . The statutory cause of action for vexatious litigation exists under [General Statutes] § 52-568, and differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages . . . In the context of a claim for vexatious litigation, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted . . . Vexatious litigation claims may not be brought until the underlying action that is the source of the alleged misconduct has concluded. [U]nder Connecticut law, a counterclaim alleging vexatious litigation may not be brought in the same action as that which the defendant claims is vexatious . . . 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 favorable termination requirement is an essential element of a vexatious litigation claim." (Citations omitted; emphasis in original; internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 158 Conn.App. 176, 183-84, 118 A.3d 158 (2015).
Marina Village's only response to the plaintiff's position is that it should be allowed to assert its vexatious litigation claim prematurely and contrary to established law because otherwise years may pass before the resolution of the present action and the statute of limitations for asserting a vexatious litigation claim may expire. The defendant's argument that it may assert a vexatious litigation claim for these reasons is both speculative and without legal support. Furthermore, to the extent that the defendant's statute of limitations concern has basis, the concern simply reflects the consequences of the legislature's enactment of statutes limiting the time within which causes of action may be instituted and the policy considerations on which such statutes are based. " While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The statute of limitations and repose sections are a way of implementing the public policy of limiting the legal consequences of wrongs to a controllable degree." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 527-28, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001).
CONCLUSION
Therefore, for these reasons, the plaintiff's motion to strike the counterclaims filed by the defendant Marina Village, LLC is granted. The defendant may plead over within fifteen days. Practice Book § 10-44. The plaintiff shall plead further as may be required within thirty days thereafter. Practice Book § 10-8.