Opinion
No. CV01-0164079 S
February 9, 2004
MEMORANDUM OF LAW RE DEFENDANT'S MOTION TO STRIKE (#109)
The defendant, Donald Shevchuk, has moved to strike the third and fourth counts of the revised complaint of the plaintiff, Richard Giannamore. This case arises out of a contract for the painting of the defendant's residence by the plaintiff, wherein a disagreement arose between the plaintiff and the defendant concerning the painting work. The plaintiff alleges that the defendant, a public defender, attempted to obtain a favorable settlement of the painting dispute by purportedly using a friendship with an assistant state's attorney and a judge to obtain a warrant for the plaintiff's arrest on charges of larceny in the third degree. The plaintiff alleges that "there was no probable cause for the prosecution of the plaintiff and that his prosecution by the defendant was malicious, willful and wanton." The plaintiff brought this lawsuit in five counts. The plaintiff is seeking compensatory damages, punitive damages, attorneys fees and costs.
In the third count, the plaintiff alleges that the defendant "was engaged in trade and commerce" and that the defendant's conduct constitutes unfair or deceptive trade practice in violation of Connecticut General Statutes Section 42-110b.
In the fourth count, the plaintiff alleges the same facts as noted above and further alleges that "the conduct of the defendant was extreme and outrageous and was carried out for the purpose of causing the plaintiff to suffer emotional distress."
Standard of review
The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002); Sherwood v. Danbury Hospital, CT Page 2174 252 Conn. 193, 213 (2000); Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15 (1992); Ferryman v. Groton, 212 Conn. 138, 142 (1989); Practice Book § 10-39. The role of the trial court is to examine the complaint, construed in favor of the pleader, to determine whether the pleader has stated a legally sufficient cause of action. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772 (2002); ATC Partnership v. Windham, 251 Conn. 597, 603, cert. denied, 530 U.S. 1214 (1999); Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997); Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, cert. denied, 520 U.S. 1103 (1996).
In adjudicating a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. Vacco v. Microsoft Corp., supra, 260 Conn. 65; Gazo v. Stamford, 255 Conn. 245, 260 (2001); Bohan v. Last, 236 Conn. 670, 675 (1996); Sassone v. Lepore, 226 Conn. 773, 780 (1993); Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988). The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint, but only to factual allegations and the facts necessarily implied and fairly provable under the allegations. Forbes v. Ballaro, 31 Conn. App. 235, 239 (1993).
Count Three — CUTPA
In this count, the plaintiff allege that the defendant "was engaged in trade and commerce" and that the defendant's conduct constitutes "unfair and deceptive acts and practices" in violation of Connecticut General Statutes Section 42-110b.
The issue is whether a public defender's alleged use of the state criminal justice system to his advantage in a dispute over the painting of his residence is an act in trade or commerce and therefore covered by CUTPA.
In opposing the Motion to Strike, the plaintiff's memorandum states: "The complaint expressly alleges that the defendant used unethical, improper, deceptive and unfair methods to collect an alleged obligation arising out of the performance of his business. Clearly he was engaged in trade and commerce and clearly the conduct alleged violated the "cigarette rule" sufficiently to warrant submitting this case to a jury." This conclusory statement of the plaintiff is problematic, for a number of reasons.
First, the conclusory statement that the defendant "used . . . methods to collect an alleged obligation arising out of the performance of his business" misstates the plaintiff's own revised complaint. The complaint states that the defendant's business is as an attorney/public defender. The complaint states that the obligation arises out of a disagreement over a contract to paint the defendant's personal residence. There is no allegation that the defendant conducts his business in the residential premises. Thus, the statement in the memorandum is confusing, at best. Also, the last sentence, "clearly . . . and . . . clearly" merely restates the legal standard of review and is not helpful. So, in order to most fairly review the plaintiff's position in opposition, the court will turn to his pleadings, as they relate to the cases catalogued in the memorandum.
The defendant argues that the count should be stricken because the plaintiff's claim that the defendant, a public defender, supposedly used the criminal justice system to his advantage is not tantamount to a claim involving "trade and commerce" within the meaning of CUTPA.
Section 42-110b(a) provides that "[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 Connecticut Supreme Court has stated that, in general, "CUTPA applies to the conduct of attorneys." Heslin v. Connecticut Law Clinic of Trantolo Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983). The statute's "regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law." (Internal quotation marks omitted.) Id. Nevertheless, the court has declined to hold that "every provision of CUTPA permits regulation of every aspect of the practice of law . . ." Id., 520. The court has stated, instead, that, "only the entrepreneurial aspects of the practice of law are covered by CUTPA." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997). Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicof Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). "The entrepreneurial aspects of legal practice include solicitation of business and billing practice, as opposed to claims directed at the competence of and strategy employed" by an attorney. (Citation omitted; internal quotation marks omitted.) CT Page 2176 Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35-36, 699 A.2d 964 (1997). See also Brown v. Loomis, No. CV 99 0088096 (Jul. 27, 2000), 2000 Ct. Sup. 9165, 27 Conn. L. Rptr. 550.
The allegations of the revised complaint, construed most broadly in favor of the plaintiff's position, would comport with the non "entrepreneurial" aspects of the legal service profession, and therefore it is this court's position that CUTPA does not apply. The motion to strike Count Three is granted.
COUNT FOUR
Shevchuk has moved to strike Count Four on the ground that Giannamore is unable to identify any conduct that is extreme and outrageous nor has he alleged emotional distress that can be considered severe. The plaintiff, in its memorandum of law in opposition, asserts: "Whether the conduct alleged by the plaintiff was "extreme and outrageous" within the meaning of established law is a jury question, and the court should not usurp the role of the jury unless no reading of the facts alleged by the plaintiff could constitute the tort."
As stated above, in adjudicating a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. The court must also construe the complaint in the manner most favorable to sustaining its legal sufficiency.
The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint, but only to factual allegations and the facts "necessarily implied and fairly provable under the allegations." Lavoie v. Bayer Corporation, No. X01-CV 01-010168392 (Jan. 23, 2002), 2002 Ct. Sup. 746, 31 Conn. L. Rptr. 391, citing Forbes v. Ballaro, 31 Conn. App. 235, 239 (1993).
Connecticut's appellate courts have stated that conclusory statements or statements of legal effect not supported by allegations of fact will not enable a complaint to withstand a motion to strike. Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985); Raye v. Wesleyan University, No. CV-02-0098865-S (Apr. 10, 2003) 2003 Ct. Sup. 4870.
In determining whether a plaintiff may maintain an action for intentional infliction of emotional distress, the plaintiff must establish four elements. "It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society." Heim v. California Federal Bank, 78 Conn. App. 351 (2003), 828 A.2d 129. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; emphasis added; internal quotation marks omitted.) Carnemolla v. Walsh, 75 Conn. App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); see also Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000); 1 Restatement (Second) Torts § 46 (1965); W. Prosser W. Keeton, Torts (5th Ed. 1984) § 12, p. 60." Heim at 366.
At this juncture, the court must determine whether the plaintiff's allegations constitute the basis for an actionable claim of the tort of intentional infliction of emotional distress. The plaintiff alleges that the defendant: failed to know that the dispute between himself and the plaintiff was civil in nature, that the defendant consulted with officers of the Connecticut State Police and was told his dispute was civil in nature; that nevertheless "with malice and for the specific purpose of using the criminal justice system to extort from the plaintiff a settlement of said dispute more favorable," "participated in presenting criminal charges against the plaintiff for the purpose of obtaining an advantage in a civil matter." The issue before us, therefore, is whether those allegations could cause reasonable minds to differ as to whether they constituted extreme and outrageous conduct, that is, whether they exceed all bounds tolerated by a decent society, the second element of a cause of action for intentional infliction of emotional distress. We conclude that they do not.
We are unaware of any appellate decision in this state addressing the issue of whether the filing of an action can form the basis of a claim of intentional infliction of emotional distress. On several occasions, however, both our Supreme Court and this court have stated that "[t]he mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997); Campbell v. Plymouth, 74 Conn. App. 67, 78, 811 A.2d 243 (2002); Muniz v. Kravis, 59 Conn. App. 704, 710, 757 A.2d 1207 (2000). An analogy can be drawn between those cases, in which employees had their employment terminated on the basis of wrongful motivations, and the present case, in which the defendant allegedly filed an action against the plaintiff for an improper reason. The act of filing a lawsuit, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior or make the average member of the community raise their hand and exclaim, "Outrageous!"
Although we do not endorse the conduct alleged in the plaintiff's complaint, and such conduct may have been stressful or hurtful to the plaintiff, we cannot conclude that reasonable minds could find such conduct extreme or outrageous. We conclude that the court properly determined that the plaintiff's allegations failed to meet the threshold pleading requirement of extreme and outrageous conduct, and, accordingly, grant the defendant's motion to strike count four.
Alvord, J.