Opinion
No. CV 04 4001683S
April 8, 2008
MEMORANDUM OF DECISION AS TO DEFENDANT'S MOTION TO STRIKE REVISED COMPLAINT
This is an action between two attorneys over fees for representing a mutual client. The plaintiff filed a revised complaint dated November 30, 2004 in four counts: count one being interference with contract, count two being defamation, count three bad faith interference with contract, and count four bad faith defamation.
The defendant has filed a Motion to Strike all four counts claiming (1) as to count one, the complaint fails to allege sufficient facts to state a claim for tortious interference with contractual relations; (2) as to count two the complaint fails to allege material facts sufficient facts to state a claim for defamation; (3) as to counts three and four, the complaint fails to state causes of action recognized by Connecticut law and fail to allege sufficient material facts to support a claim of bad faith. The defendant further claims that the complaint fails to allege sufficient material facts to state a claim for damages and for punitive damages and attorney fees.
The plaintiff filed an Objection to the Motion to Strike claiming that there are sufficient facts to support their claims.
DISCUSSION OF THE LAW
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987). The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. CT Page 5641 Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
A motion to strike is an appropriate means of presenting to the court legal issues at the onset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
AS TO COUNT ONE: INTERFERENCE WITH CONTRACT
In this count the plaintiff claims that the defendant has represented the named client since late 1995 before the Workers' Compensation Commission. The plaintiff claims to have represented the named client since 1998 in a civil action which was resolved by arbitration under a written contract. The plaintiff claims that the defendant knew about the written contract. The plaintiff further claims that the defendant "actively and intentionally interfered with the written contract and with the agreements between the plaintiff and the named client in order to obtain a financial benefit to herself and that the aforesaid interference included the defendant causing to be published, on one or more occasions, to one or more parties, false, libelous and derogatory information concerning the plaintiff, the effect of which was to impugn the plaintiff's reputation, general competence and integrity in the operation of his business and the practice of his profession." (Revised complaint count one.)
The defendant claims that this count fails to allege any material facts demonstrating that the defendant interfered with the performance of the contractual relationship. The defendant claims that the complaint must allege some facts tending to show that the defendant committed some sort of fraud, misrepresentation, intimidation, molestation or acted with malice.
The plaintiff's response in their objection is that they have pled all of the elements. The court agrees that they have pled all of the elements, however, the court finds that their "facts" are conclusory and mirror the language of the elements of the cause of action without any actual and stated facts to support their conclusions. "[The Supreme Court] has long recognized a cause of action for tortious interference with contract rights or other business relations . . . The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the defendant(s), knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious . . . The burden is on the plaintiff to plead and prove at least some improper motive or improper means . . . on the part of the defendants." (Citations omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 364-65, 493 A.2d 193 (1985). "[N]ot every act that disturbs a contract or business expectancy is actionable." (Internal quotation marks omitted.) Holler v. Buckley Broadcasting Corp., 47 Conn.App. 764, 769, 706 A.2d 1379 (1998). "[T]o raise an allegation of wilful conduct, the plaintiff must clearly plead that the [harm] was caused by the wilful or malicious conduct of the defendants." (Internal quotation marks omitted.) Id. "Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the defendants' interference resulted from the defendant's commission of a tort." (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129 (2001). See Neidig v. Heilig, superior court, judicial district of New Haven at New Haven, Docket No. CV06-4021414S (November 7, 2007, Holden, J.), 2007 Ct.Sup. 18960.
Therefore, since the plaintiff failed to state any of the above required facts or allege same, the Motion to Strike count one of the revised complaint is granted.
AS TO COUNT TWO: DEFAMATION
In connection with the plaintiff's second count, sounding in defamation, the defendant moves to strike because the requisite level of specificity has not been alleged. "To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Citation omitted; internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 846, 888 A.2d 104 (2005). Moreover, when claiming defamation, "[c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made." (Internal quotation marks omitted.) Crosby v. HSBC North American Holdings, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 06 5000378 (May 16, 2007, Robinson, J.); see also Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 98-0486346 (July 12, 2002, Berger, J.), aff'd, 76 Conn.App. 907, 822 A.2d 372 (2003) ("[a] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom").
"With these standards in mind, the court inquires whether the plaintiff has identified what statements were made, whom they were made by, and to whom they were offered." Winters v. Concentra Health Services, superior court, judicial district of New Haven at New Haven, docket no. CV07-5012082S (March 5, 2008, Thompson, J.), 2008 Ct.Sup. 3634. Although the plaintiff alleges that "the defendant causing to be published, on one or more occasions, to one or more parties, false, libelous and derogatory information concerning the plaintiff, the effect of which was to impugn the plaintiff's reputation, general competence and integrity in the operation of his business and the practice of his profession." (Plaintiff's revised complaint dated November 20, 2004, count second.) The plaintiff does not adequately specify anything. Moreover, while the court is sympathetic to the plaintiff's argument that these details are best flushed out during discovery, that concern is superseded by the admonition that a plaintiff's complaint must put the defendant on notice of the claims made against him so that an effective defense can be advanced. "In defamation cases in particular, there are a number of special defenses that may be applicable and which require greater specificity than provided in this complaint . . . See, e.g., Berte v. Haddam Hills Academy, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 02 0097138 (December 16, 2005, Beach J.), 1140 Conn. L. Rptr. 5651 ("[t]hough there may at times be a fine line between fact pleading and evidence, defamation should be alleged with some degree of specificity"). Accordingly, count two is stricken because the plaintiff has not pleaded with adequate specificity what the false statement was or to whom the statement was made.
AS TO COUNTS THREE AND FOUR
The third and fourth counts of the plaintiff's revised complaint the defendant claims that the court should strike these two counts for two reasons. First, that Connecticut law does not recognize causes of action for bad faith tortuous interference with contractual relations or bad faith defamation. Second, that the counts do not allege any material facts to support the conclusions of bad faith.
"In order to prevail on a claim of bad faith, it is necessary for the complaint to allege a specific act that was performed purposefully, with a sinister intent . . . Even if it was found that there was a breach of contract, not all contracts are breached with a sinister intent." Namoury v. Tibbetts, United States District Court for the District of Connecticut, Docket No. 3:04 CV 599 (January 11, 2005). "Neglect or refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive." Feinberg v. Berglewicz, 32 Conn.App. 857, 862, 632 A.2d 709 (1993). "The lynchpin of a bad faith claim is a state of mind characterized by an intent to mislead or deceive or defraud." Ravski v. Connecticut State Medical Society, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 04 4000582 (January 26, 2005, Sheedy, J.). "In order to make [such a claim] the plaintiff must allege that the defendant did more than simply deny the plaintiff's claim for benefits." (Internal quotation marks omitted.) Bernard v. Buendia, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 4003054 (July 20, 2005, Doherty, J.). Crespan v. State Farm Mutual Auto Insurance Co., superior court, judicial district of New Haven at New Haven, Docket No CV05-40021215 (January 13, 2006, Pickard, J.), 2006 Ct.Sup. 994.
For these reasons alone, the Motion to Strike these two counts is granted.
However, as to the argument by the defendant that these are not causes of actions recognized by the State of Connecticut, the plaintiff can present no evidence to the court that these causes of action do indeed exist.
AS TO DAMAGES, PUNITIVE DAMAGES AND ATTORNEY FEES
The defendant also claims that the plaintiff offered no facts demonstrating the nature of his claimed injuries, that his claims were again conclusory and insufficient to state a claim. The defendant also argues that the claims for punitive damages should fail since the count under which the claim for punitive damages should be striken. The defendant further argues that attorneys fees can not be claims since there is no contractual or statutory exception to allow this recovery.
Since the court has granted the motion to strike as to all of the above counts, the motion to strike the claimed damages, punitive damages and attorney fees is granted for all of the above reasons.