Opinion
CV166070983S
05-11-2017
Eric Coleman v. Cynthia R. Jennings et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#111)
Jane S. Scholl, J.
Discussion
In this action the plaintiff, Eric Coleman, brings claims of vexatious suit and malicious prosecution against each of the defendants, Cynthia R. Jennings and John Q. Gale, stemming from their filing of a complaint with the State Elections Enforcement Commission (SEEC) in which they alleged that the plaintiff used public funds for a campaign mailing. The plaintiff claims that the complaint was commenced and prosecuted without probable cause and with malicious intent. It is alleged that the complaint, after investigation, was dismissed by the SEEC.
The defendant Gale has moved to strike Counts Three and Four of the Complaint, which are directed against him, claiming that they fail to alleged facts sufficient to support a claim for vexatious suit or malicious prosecution and that he enjoys absolute immunity with respect to the complaint before the SEEC.
" Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Lawrence v. O& G Industries, Inc., 319 Conn. 641, 648-9, 126 A.3d 569 (2015).
The defendant Gale argues that in order to state a claim of vexatious litigation the plaintiff must allege that a civil proceeding was prosecuted by him. " A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor . . . Most courts now agree with the Restatement (Second) of Torts, § 680, which permits liability for vexatious initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other." (Citation omitted; internal quotation marks omitted.) DeLaurentis v. City of New Haven, 220 Conn. 225, 248-49, 597 A.2d 807 (1991). A review of the powers of the SEEC set forth in General Statutes § 9-7b reveals that the SEEC can take action which would affect the legally protected interests of others, for example, levy a civil penalty against one who is the subject of a complaint.
The defendant cites the court's decision in Sullivan v. Campbell, Superior Court, judicial district of Hartford, Docket No. 98 0581706 (Wagner, J., July 9, 1999) [25 Conn.L.Rptr. 93, ], which held that a complaint to the Department of Children and Families could not form the basis for a claim for vexatious litigation. In discussing Sullivan the court in Cerejo v. Cerejo, Superior Court, judicial district of New Haven, Docket No. CV115034020S (Lager, J., June 29, 2012) [54 Conn.L.Rptr. 368, ], held that: " A report to DCF is not equivalent to the initiation of a proceeding before an administrative body that has the power, on its own, to effectuate a permanent deprivation." Sullivan is clearly distinguishable from the allegations here.
The defendant Gale also argues that the plaintiff fails to allege that the proceedings were actually prosecuted by Gale and that the SEEC was the only one responsible for the process of investigating the defendants' complaint. However, it is clear, from a review of the allegations of the complaint and the SEEC's authority, that the plaintiff has alleged that the defendant Gale was responsible for the initiation of the proceedings before the SEEC in the same way as described in DeLaurentis . The complaint alleges that the defendants commenced and prosecuted the underlying proceedings against the plaintiff when they filed an affidavit of complaint with the SEEC. Pursuant to General Statutes § 9-7b the SEEC has authority to make investigations " upon written complaint under oath by any individual." Therefore Count Three of the complaint states a cause of action for vexatious litigation.
The defendant Gale moves to strike Count Four of the complaint because the SEEC proceeding was not a criminal action for purposes of malicious prosecution. An essential element of a malicious prosecution claim is that the " defendant initiated or procured the institution of criminal proceedings against the plaintiff." (Citation omitted; internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 404, 948 A.2d 1009 (2008). The proceeding here before the SEEC was not a criminal proceeding. The SEEC only has authority to impose civil penalties. See, General Statutes § 9-7b. The claim that the facts alleged by the defendants in their complaint may also constitute criminal conduct, as the plaintiff argues, does not transform the SEEC's actions into criminal proceedings. The statutes recognize that the SEEC may be involved in the investigation of alleged or suspected criminal conduct, but does not give the SEEC the authority to prosecute such conduct. See, General Statutes § 9-7b(a)(15). Although the SEEC has the authority to make referrals to the Chief State's Attorney, the United States Department of Justice, and the United States Attorney for Connecticut, it does not itself have the authority to bring or prosecute criminal proceedings. See, General Statutes § 9-7b(a)(8), (11), (12). Therefore Count Four of the complaint fails to state a cause of action for malicious prosecution.
Defendant Gale also claims that absolute immunity should apply to a complaint filed with the SEEC. He cites the decision in Field v. Kearns, 43 Conn.App. 265, 277, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996). There the Appellate Court held that " the public policy of protecting the courts and the public from unethical and unprofessional attorneys is so strong that there is absolute immunity for the complainant in filing or otherwise causing the institution of attorney disciplinary proceedings." However in Rioux v. Barry, 283 Conn. 338, 349 n.6, 927 A.2d 304 (2007), the Court noted that the holding of Field is inconsistent with the holding of that opinion. There the Court held that: " We previously have recognized, in a different but related context, that, although the tort of defamation cannot surmount a claim of absolute immunity for statements made in a judicial proceeding, the tort of vexatious litigation is treated differently because of these restraints built into it by virtue of its stringent requirements. In Mozzochi v. Beck, 204 Conn. 490, 491, 529 A.2d 171 (1987), we granted absolute immunity to attorneys who made allegedly defamatory comments in the course of a judicial proceeding. We noted that [b]ecause litigants cannot have such access without being assured of the unrestricted and undivided loyalty of their own attorneys, we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings . . . For other causes of action, however, the exigencies of the adversary system have not been deemed to require absolute immunity for attorneys. We have assumed, without discussion, that an attorney may be sued in an action for vexatious litigation, arguably because that cause of action has built-in restraints that minimize the risk of inappropriate litigation.' (Citations omitted.) Id., at 494-95, 529 A.2d 171. In addition, were we to provide absolute immunity for the communications underlying the tort of vexatious litigation, we would effectively eliminate the tort. Unlike the communications underlying the tort of defamation, virtually any initiation or procurement of a previous lawsuit would necessarily be part of any judicial proceeding. Thus, the tort of vexatious litigation would virtually always be subject to absolute immunity. Indeed, the Restatement of Torts implicitly recognizes this by providing that statements made in the course of a judicial or quasi-judicial proceeding are absolutely immune in the context of a defamation suit but not in the context of a suit for vexatious litigation. See 3 Restatement (Second), Torts § 587, p. 249, comment (a) (1977).We therefore conclude that the requisite elements of the tort of vexatious litigation effectively strike the balance between the public interest of encouraging complaining witnesses to come forward and protecting the private individual from false and malicious claims. It is unnecessary and undesirable to extend the additional protection afforded by the doctrine of absolute immunity to defendants in vexatious litigation claims." Id., 347-49. Consequently, the defamation cases, such as Craig v. Stafford Construction, Inc., 271 Conn. 78, 856 A.2d 372 (2004), cited by the defendant, in which the court afforded the defendants there absolute immunity, are inapplicable. Therefore absolute immunity does not apply to the plaintiff's claim of vexatious litigation.
Conclusion
The Motion to Strike is denied as to Count Three and granted as to Count Four.