Opinion
CV156062514S
11-01-2016
Realty Association, LLC dba Century 21 Classic Homes v. Ancker, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE COUNT ONE OF COUNTERCLAIM (#117)
A. Susan Peck, Judge
The plaintiff, Realty Association, LLC, d/b/a Century 21 Classic Homes, brought a one count complaint for breach of contract against the defendants, Ancker, LLC, and Walter J. Ancker, Jr., commenced on September 14, 2015. On April 6, 2016, the defendants filed an answer and a three count counterclaim. In count one of the counterclaim, the defendants claim abuse of process based on the following allegations. The plaintiff is in the business of listing for sale, selling, buying and/or negotiating the purchase and sale of commercial real estate. On February 11, 2015, the plaintiff entered into a contract with Ancker, LLC for the sale/lease/exchange of the real property located at 38 West Broad Street, Stamford, Connecticut 06902. At all relevant times, Ancker, LLC, owned the real estate located at 38 West Broad Street; Walter J. Ancker, Jr. was a member of and authorized to enter into transactions on behalf of Ancker, LLC; Bald Eagle, Inc. was the owner of the gasoline station business located at 38 West Broad Street; Gold Eagle, LLC was the owner of the grocery store or convenience store business located at 38 West Broad Street; and Bald Eagle, Inc. and Gold Eagle, LLC were the lessees of Ancker, LLC. On or about April 14, 2015, and May 11, 2015, the plaintiff brought to Ancker, LLC purported offers to purchase and binders of sale for the purchase of the real property at 38 West Broad Street, together with the gasoline station business and the convenience store business, when according to the terms of the contract between the plaintiff and Ancker, LLC, the sole property offered for sale was the real property. " When defendant, Ancker, LLC rejected said purported offers, the plaintiff, by its agents or employees, threatened the defendant Ancker, LLC by falsely claiming that a commission was earned and legal action, and attempted to coerce said defendant into accepting same, and initiated the instant action in an attempt to coerce said defendant into accepting same."
On June 2, 2016, the plaintiff filed a motion to strike count one of the defendants' counterclaim for abuse of process on the grounds that the defendants have failed to sufficiently allege a cause of action, and alternatively, that the claim is premature. Oral argument was held on the motion on August 1, 2016.
" 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 [pleading party has] stated a legally sufficient cause of action." (Citation omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient." (Internal quotation marks omitted.) J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC, 164 Conn.App. 508, 512-13, 137 A.3d 894, cert. denied, 321 Conn. 913, 136 A.3d 1274 (2016).
" A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) Cadle Co. v. D'Addario, 131 Conn.App. 223, 235, 26 A.3d 682 (2011). " A counterclaim has been defined as a cause of action existing in favor of a defendant against a plaintiff which a defendant pleads to diminish, defeat or otherwise affect a plaintiff's claim and also allows a recovery by the defendant . . . In other words, a counterclaim is a cause of action . . . on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action." (Citation omitted; internal quotation marks omitted.) Historic District Commission v. Sciame, 152 Conn.App. 161, 176, 99 A.3d 207, cert. denied, 314 Conn. 933, 102 A.3d 84 (2014).
In support of its motion to strike, the plaintiff argues that the first count of the counterclaim is legally insufficient to state a claim of abuse of process because the defendants have failed to allege an improper purpose for the plaintiff's action against the defendants. In the alternative, the plaintiff argues that even if the defendants have sufficiently alleged a counterclaim for abuse of process, such a claim is premature. The defendants contend that their claim for abuse of process is not premature and that the plaintiff commenced the underlying legal action to coerce Ancker, LLC into selling the property and businesses located at 38 West Broad Street rather than to obtain the commission allegedly due under contract, and thereby have used legal process for a purpose for which it was not designed.
" 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 [the word] 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.) Larobina v. McDonald, 274 Conn. 394, 403-04, 876 A.2d 522 (2005).
" [T]o prevail on an abuse of process claim, the plaintiff must establish that the defendant used a judicial process for an improper purpose ." (Emphasis in original.) Larobina v. McDonald, supra, 274 Conn. 407. Although the Larobina court found that " the definition of process may be broad enough to cover a wide range of judicial procedures, " and there is no requirement that the success in a first action is a " prerequisite" for successful prosecution of an abuse of process claim, nonetheless, the court also found that " the eventual outcome" of the first action " and the evidence presented by the parties therein would be relevant in litigating an abuse of process claim." Id., 406-07. Based on these findings, under circumstances similar to those presented in the present action, the court concluded that allowing an abuse of process claim to proceed before the first action was concluded would be " duplicative and premature." Id., 406-08.
In the present case, the plaintiff brought a one count complaint alleging breach of contract arising out of a listing agreement for the sale of the business and real property located at 38 West Broad Street, Stamford, Connecticut. In its counterclaim, the defendant alleges that the plaintiff improperly threatened the defendant and initiated the present legal action by falsely claiming that it was entitled to a commission and to coerce the defendant into selling the gas station and convenience store business on the property, when according to the terms of the listing agreement only the real property at the location was offered for sale, lease or exchange. Based on Larobina v. McDonald, the defendants' allegations concerning the threat of legal action are not sufficient to constitute an abuse of legal process. See id., 406-07. Further, the defendants' allegations of the initiation of the present action would only be sufficient to support a claim of abuse of process if the facts alleged supported an inference that the plaintiff's complaint was brought for an improper purpose. See id. The allegations of the counterclaim, however, even when read broadly and generously, merely allege that the plaintiff seeks a commission to which it is not entitled. The parties obviously disagree as to whether the plaintiff is entitled to a commission based on what appears to be an arguably proper claim for breach of contract.
In the defendants' memorandum of law in opposition to the plaintiff's motion to strike, the defendants argue that their counterclaim for abuse of process alleges that the plaintiff's action was brought to coerce the defendants into selling the real property along with the gasoline and grocery store businesses, rather than for the purpose of obtaining the commission allegedly due under contract. Contrary to this position, there are no facts alleged in the defendants' counterclaim that could be construed to infer that the plaintiff's purpose for bringing the action was to coerce the sale of the property and businesses. The relevant facts alleged are that " [w]hen defendant, Ancker, LLC rejected said purported offers, plaintiff, by its agents or employees, threatened defendant Ancker, LLC by falsely claiming that a commission was earned and legal action, and attempted to coerce said defendant into accepting same, and initiated the instant action in an attempt to coerce said defendant into accepting same." Construing the allegations in a light most favorable to the defendants, these facts do not allege anything more than that the plaintiff initiated the action to obtain the objective of the action, i.e., the commission. Therefore, the defendants have failed to allege an improper purpose. Accordingly, count one of the counterclaim fails to sufficiently allege a claim of abuse of process.
The plaintiff alternatively argues that the defendants' abuse of process counterclaim is premature. " Although abuse of process claims do not require favorable termination as an essential element, the cause of action is still considered premature until the underlying litigation has been completed . . . In Larobina [ v. McDonald ] . . . our Supreme Court concluded that an abuse of process claim was properly dismissed as premature when the underlying action was still pending . . . In reaching this conclusion, the court stated: 'Although we do not suggest that success in the first action would be a prerequisite for an abuse of process claim . . . it is apparent that the eventual outcome of that action and the evidence presented by the parties therein would be relevant in litigating an abuse of process claim . . . Moreover, allowing the [abuse of process] claim could . . . effectively chill the vigorous representation of clients by their attorneys.'" (Citations omitted.) MacDermid v. Leonetti, 158 Conn.App. 176, 184-85, 118 A.3d 158 (2015).
As in Larobina v. McDonald and MacDermid v. Leonetti, here, the plaintiff's complaint that allegedly constitutes an abuse of process has not yet reached a conclusion. Therefore, in addition to being otherwise deficient, the defendants' abuse of process claim is premature. The defendants' argument that because their abuse of process claim is based on an ulterior motive of the plaintiff, which is independent of the present action and thereby distinguishable from other abuse of process claims, is unavailing. Their assertions also overlooks the reasoning of both of the aforementioned cases, which reflects concern about a potential chilling effect precipitated by a contemporaneous abuse of process claim. See Larobina v. McDonald, supra, 274 Conn. 406-08; MacDermid, Inc. v. Leonetti, supra, 158 Conn.App. 184-85.
CONCLUSION
For all the foregoing reasons, the plaintiff's motion to strike count one of the counterclaim is hereby granted.