Opinion
No. CV09-5009384S
August 2, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #170
Facts
In the revised complaint filed October 1, 2009, the plaintiff, Sam Rizzitelli, claims defamation, invasion of privacy, intentional infliction of emotional distress and negligent infliction of emotional distress arising out of alleged postings that the defendant, Melvin Thompson, made on his Internet blog, derbypolitics.com. On December 15, 2009, the defendant filed an answer and counterclaim. On January 15, 2010, the defendant filed a revised counterclaim consisting of 118 paragraphs and comprised of seven counts: defamation, invasion of privacy, fraud, breach of contract, breach of the implied covenant of good faith and fair dealing, legal malpractice and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendant attached to the counterclaim his own affidavit, the affidavit of Frank Lazowski, Sr., who is a member of the Derby democratic town committee and who attests that he witnessed certain relevant events, and a copy of a document which the defendant claims is an agreement between the parties.
A blog is "[a] Web site that contains dated text entries in reverse chronological order about a topic (most recent entry first). Blogs serve many purposes from personal journals to online newsletters to `ranting and raving.' Written by one person or a group of contributors, entries contain commentary, observations and opinions and may include images, audio, video, links to other sites and even a search facility for finding earlier entries." PC Magazine Online Encyclopedia, PCMag.com, "blog," http://www.pcmag.com/encyclopedia/ (last visited July 8, 2010).
On December 30, 2009, the plaintiff filed a motion to strike the counterclaim and a memorandum in support of his motion. On January 15, 2010, the defendant objected to the motion to strike on the ground that it was moot because, on that same date, he filed a revised counterclaim. The court did not rule on the December 30, 2009 motion to strike.
On March 31, 2010, the plaintiff filed a motion to strike the revised counterclaim and memorandum of law in support of his motion. On April 14, 2010, the defendant filed an objection to the motion to strike and a memorandum of law in opposition. On April 22, 2010, the plaintiff withdrew his March 31, 2010 motion and memorandum and on April 23, 2010, filed the motion to strike and memorandum of law that is presently before the court. The plaintiff moves to strike all seven counts of the defendant's revised counterclaim, the factual allegations of which will be set forth below. The court heard oral argument at the short calendar on May 10, 2010. At argument, the court clarified that the defendant intended to apply to the present motion his April 14, 2010 objection to the prior motion to strike and his memorandum of law in opposition.
Discussion CT Page 15646
"[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . 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.) Morgan Chase Bank v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008)."The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). When ruling on a motion in strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id.
"A speaking motion to strike is one improperly importing facts from outside the pleadings." Mercer v. Cosley, 110 Conn.App. 283, 292 n. 7, 955 A.2d 550 (2008). "[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion . . . Nonetheless, `[a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party . . . `Practice Book § 10-29(a). A complaint includes all exhibits attached thereto." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
Therefore, while the court will consider those exhibits which are attached to the counterclaim as part of the pleadings, I will not consider the documents attached to the defendant's memorandum of law marked as Exhibits C through H, consisting of uncertified copies of newspaper clippings, police reports, e-mail correspondence and other documents, as these are evidence outside the pleadings.
I Defamation
The plaintiff moves to strike count one of the defendant's revised counterclaim, alleging defamation, on the ground that it fails to state a claim upon which relief can be granted. In support of the motion, the plaintiff argues that this count fails to identify the specific defamatory statements and does not identify where, when and to whom they were made and, alternatively, that the "actual statements alleged by the [d]efendant are wholly unrelated to the claim in the [p]laintiff's [c]omplaint." In response, the defendant counters that pursuant to Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004), the defendant has sufficiently alleged facts to establish a "prima facie case of defamation." He maintains that he has alleged that the plaintiff published a defamatory statement and did so to a third party, the defamatory statement identified the defendant to a third party, and he suffered damage to his reputation. The defendant maintains that the plaintiff did in fact make defamatory statements and he refers to exhibits attached to his memorandum of law. As noted previously, the court cannot properly consider those exhibits as they are evidence outside the pleadings. The defendant further maintains that since the pleadings are to be construed broadly and realistically in a manner most favorable to sustaining the counterclaim, the motion to strike should be denied.
The court will address the argument that the defamatory statements are wholly unrelated to the claim in the plaintiff's complaint in part IV of this opinion.
In count one, the defendant alleges the following. The plaintiff knowingly made "false statements with actual malice and reckless disregard for the truth" regarding the defendant to Frank Lazowski, Sr. Specifically, he stated that the defendant was "drunk every day by 11 a.m." that he witnessed the defendant "drinking at 11 a.m." and that these statements damaged his reputation. The plaintiff also "knowingly made false statements with actual malice and a reckless disregard for the truth" about the defendant to the New Haven Register, the Connecticut Post, the Valley Gazette and their reporters. The plaintiff "stated and implied" that the defendant had committed the crime of extortion. The plaintiff also made statements that the defendant had committed extortion to two detectives of the Derby police department, whom the defendant identified by name, and that these statements "did in fact defame, slander, injure and otherwise damage [the defendant's] good name and reputation with [those parties]."
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . 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." (Internal quotation marks omitted.) Mercer v. Cosley, supra, 110 Conn.App. 296-97. "[A] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom . . . [I]n defamation actions especially, words count, and a premium is placed on the precise words employed . . . Although it is not necessary to allege the exact words of the defamatory statement, the complaint must apprise the defendants of the specific statements that are alleged to be defamatory." (Citation omitted; internal quotation marks omitted.) Johns v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 08 5024593 (April 8, 2009, Keegan, J.) ( 47 Conn. L. Rptr. 549, 552 n. 3). "[C]ase law has made clear that [t]wo of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 848 n. 2, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
In the present case, there are two distinct factual bases for the defamation count. The first is that the plaintiff told Lazowski that the defendant was drinking at 11:00 a.m. The defendant alleges that he was identified to a named third person, Lazowski. Stating that a person is "drunk every day by 11 a.m." is defamatory because it would tend to harm his reputation as to lower him in the estimation of the community. The defendant alleges that his reputation suffered injury as a result of the statement. These allegations are sufficiently specific. The second basis for the defamation claim is that the plaintiff "stated or implied" to reporters at multiple publications and to police officers that the defendant had committed extortion. It is sufficient for the defendant to allege the names of the newspaper publications to whom the plaintiff made the statements, even though he did not name the reporters. The defendant did not quote the exact language that the plaintiff used when the plaintiff "stated or implied" to these third parties that the defendant committed extortion. In this context, it is not necessary for the defendant to allege the exact words of the defamatory statement because he alleges that the plaintiff told multiple identified third parties that the defendant committed that crime. The counterclaim does apprise the plaintiff of the statements that are alleged to be defamatory and to whom they were published.
The motion to strike count one on the ground that the plaintiff does not identify the specific defamatory statements is denied. The court will address the defendant's alternate argument, that the defamatory statements are wholly unrelated to the claim in the plaintiff's complaint, in part IV of this opinion.
II Invasion of Privacy
The plaintiff moves to strike the second count, invasion of privacy, on the ground that it fails to state a claim for any of the recognized causes of action for invasion of privacy. In support of his motion, the plaintiff discusses each theory under which an invasion of privacy tort can sound and maintains that the defendant does not allege facts sufficient to support any of these theories. The defendant argues in response he has alleged sufficient facts to show that the plaintiff intruded on the defendant's seclusion, that he gave unwanted publicity to the defendant's private life and that he placed the defendant in a false light before the public.
In the second count of the counterclaim, which incorporates the first 43 paragraphs from count one, the defendant alleges further the following facts. "[The plaintiff] did in fact cause the Derby Police department to apply for and obtain a search warrant of [the defendant's] home." The resulting execution of the search warrant seeking evidence of the plaintiff's "allegations of extortion resulted in . . . the unwarranted publicizing of the [defendant's] private affairs . . . [and] an [outrageous] violation of [the defendant's] privacy that it caused and continues to cause [him] shame and humiliation . . ." He has suffered damages to his business and "public ridicule and scorn due to the acts of [the plaintiff], the subsequent search warrant and the media attention that it received."
"[Our Supreme Court has noted] that the law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone." (Internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, CT Page 15650 448 A.2d 1317 (1982). "The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A [1977] as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public . . . Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007)." (Internal quotation marks omitted.) Miron v. McNeil, Superior Court of Connecticut, judicial district of Fairfield, Docket No. CV 09 5021085 (November 10, 2009, Bellis, J.) ( 48 Conn. L. Rptr. 797, 800 n. 4). The defendant maintains that he has alleged facts sufficient to support three of the four categories of invasion of privacy.
First, the defendant maintains that he has alleged that the plaintiff unreasonably intruded on his seclusion. "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. 3 Restatement (Second), Torts § 652B, p. 378 (1977). This is said to consist of intentional interference with another's interest in solitude or seclusion, either as to his person or to his private affairs or concerns. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 117, p. 854." Gleason v. Smolinski, Superior Court of Connecticut, judicial district of New Haven, Docket No. CV 06 5005107 (July 20, 2009, Wilson, J.).
"It has been said that, [t]he invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined. See 3 Restatement (Second), supra, at § 652B, comment (b)." Id.
In the present case, the plaintiff did not personally enter the defendant's home or otherwise personally intrude on his seclusion. Rather, he alleges that the physical intrusion into his home was accomplished by police officers who executed a search warrant. The facts as alleged cannot support a cause of action against the plaintiff for invasion of privacy premised upon an unreasonable intrusion upon the defendant's seclusion because the defendant has not alleged that the plaintiff personally so intruded.
The defendant also maintains that the plaintiff gave unreasonable publicity to his private life. "In Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993), [our] Supreme Court approved the Restatement's definition of the cause of action for giving unreasonable publicity to another's private life. In order to successfully litigate a cause of action for giving unreasonable publicity to the plaintiff's private life, the plaintiff must plead and prove: (1) that the defendant gave publicity; (2) to a matter concerning the private life of the plaintiff; and, (3) that the matter publicized was of a kind that (a) would be highly offensive to a reasonable person, and (b) would not be of legitimate concern to the public. Id., 170-72." Meade v. Orthopedic Associates of Windham County, Superior Court, judicial district of Windham at Putnam, Docket No. CV 06 4005043 (December 27, 2007, Booth, J.).
The essential question in this case is whether the defendant alleges that the matter publicized concerned his "private life." The defendant's claim is similar to that of the plaintiff in LaFontaine v. Family Drug Stores, Inc., 33 Conn.Sup. 66, 360 A.2d 899 (1976). In that case, a pharmacist suspected that a prescription for a controlled drug was a forgery and, after an attempt to verify the prescription, contacted the police. Id., 68-69. The plaintiff was arrested and, because her arrest was publicized, she suffered humiliation. Id., 69. The plaintiff brought suit for invasion of privacy against the pharmacy after it was discovered that the prescription was not, in fact, forged. Id. The court entered a judgment notwithstanding the verdict in favor of the defendant, reasoning that "[f]or the plaintiff to recover against the defendant . . . she must show that the defendant caused the publication of the private facts about her . . . [O]nce the actual arrest occurred, the facts related to it were no longer private and they became part of the public record. A person charged with the violation of the law loses her right of privacy regarding that matter." Id., 72. The court concluded, as a matter of law, that the plaintiff failed to prove her invasion of privacy claim. Id., 73.
In the present case, the defendant alleges that the "execution of the search warrant seeking evidence of [the plaintiff's] allegations of extortion" resulted in a violation of his privacy, which subjected him to "public ridicule and scorn" because of the "search warrant and the media attention that it received." The fact that a search warrant was executed is part of the public record, unless the court has entered a sealing order. Accordingly, the facts as alleged cannot support a cause of action against the plaintiff for invasion of privacy premised upon unreasonable publicity given to the defendant's private life because the fact that the police executed a search warrant is not a private fact.
Finally, the defendant maintains that the plaintiff unreasonably placed the defendant in a false light before the public. "[A] false light invasion of privacy occurs if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed . . . This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is . . . The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true . . . and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position." (Citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 131.
The defendant argues that the plaintiff's misrepresentations to the police cast him in the false light of an extortionist, which, as a result of the search warrant and attendant media coverage, was publicized broadly. The defendant's claim differs from that of LaFontaine v. Family Drug Stores, Inc., supra, 33 Conn.Sup. 72, in one important respect. In that case, "[t]here [was] no evidence that defendant or its agents notified the radio station or the newspapers of [the plaintiff's] arrest or did anything to induce the media to publicize the arrest." Here, the defendant alleges that the plaintiff "knowingly made false statements" in which he "stated and implied" the defendant had committed the crime of extortion to the reporters of three newspapers. Accordingly, the defendant has pleaded sufficient facts to support a claim of invasion of privacy premised upon publicity that unreasonably placed the defendant in a false light before the public.
Thus, the motion to strike count two is denied.
III Fraud
The plaintiff moves to strike the third count of the revised counterclaim, alleging fraud, on the ground that it fails to set forth any false representation that was made as a statement of fact, allege that any such representation was untrue and known to be untrue by the plaintiff, and allege facts sufficient to show that statements made by the plaintiff induced the defendant to act. The defendant responds that he has pleaded facts which support a cause of action in fraud.
In this count, the defendant alleges that he confronted the plaintiff about the "defamatory remarks made to or in the presence of [Lazowski]" and stated that he (the defendant) intended to file a civil action for defamation regarding those statements. The plaintiff "pleaded that he not be sued . . . and was not able to pay more than $500." The defendant drew up a settlement agreement, e-mailed it to the plaintiff, and agreed to accept $500 to settle the matter. "[The plaintiff] then used this very document as the pretext for his false claims to the Derby police department sounding in extortion." The defendant alleges that he was "fraudulently induced by [the plaintiff] to draft and email said settlement agreement believing it was what it was intended to be, a settlement of the parties' dispute as to the defamatory remarks by [the plaintiff] and the subsequent postings critical of [the plaintiff that the defendant made on the Internet blog] derbypolitics.com." The defendant refers to two of the exhibits that are attached to the counterclaim.
"Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact . . . The party claiming fraud . . . has the burden of proof . . . The essential elements of a cause of action in [fraudulent misrepresentation] are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon the false representation to his injury." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 521-22, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).
Here, the defendant alleges that the plaintiff falsely stated that he would settle the matter for $500 and that, as a result, he e-mailed a proposed agreement to the plaintiff, which resulted in extortion charges against him. Whether the plaintiff induced the defendant in any way to so memorialize the settlement agreement is a question for the trier of fact and is not appropriate for a motion to strike. A review of the allegations shows that the defendant has alleged sufficient facts to support his claim. Accordingly, the motion to strike the third count is denied.
CT Page 15654
IV Improper Counterclaim
The court must next consider whether to grant the motion to strike on the ground that certain counts of the revised counterclaim are wholly unrelated to the allegations of the underlying complaint and, therefore, are inappropriate for a counterclaim. Specifically, the plaintiff moves to strike counts four and five, alleging breach of contract and breach of implied covenant of good faith and fair dealing, on this ground. He also moves to strike part of the defamation count on this ground. It is the plaintiff's position that the contract dispute over payment for the derbydemocrats.com website is wholly unrelated to the allegations in the underlying complaint, which arise out of postings that the defendant made on a different website, derbypolitics.com. The defendant does not counter this argument.In the fourth count, the defendant alleges that he offered to produce and maintain a website (derbydemocrats.com) for the Derby Democratic town committee (committee) for a total of $1,200. The plaintiff accepted this offer on behalf of the committee pursuant to his powers as chairman. The plaintiff has refused to pay and otherwise honor his express agreement with the defendant. The plaintiff had "the authority and power to contract with [the defendant] and to authorize payment to be made to [the defendant] by the Treasurer of the [committee]." He alleges money damages arising out of this breach. He alleges in the fifth count that the plaintiff induced the defendant to expend his personal funds pursuant to the contract for website services and then refused to pay for those services, resulting in damages to the defendant.
"Practice Book § 10-10 provides [in relevant part] that `[i]n any action for legal or equitable relief; any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint . . . `This section is a common-sense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy . . . The transaction test is one of practicality . . ." (Citation omitted; internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008). "Our Supreme Court has instructed that the [r]elevant considerations in determining whether the `transaction test' has been met include whether the same issues of fact and law are presented by the complaint and the [counter]claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts." (Internal quotation marks omitted.) South Windsor Cemetery Assn., Inc. v. Lindquist, 114 Conn.App. 540, 547, 970 A.2d 760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009).
"[T]he courts seem to be saying that where the legal claim of the complaint and the evidence to prove it is completely different from the claims of the counterclaim and the evidence that will be used to establish it, there really is no judicial economy to be achieved [by allowing the counterclaim to proceed]." Grant v. Lettieri, Superior Court, judicial district of New Haven, Docket No. CV 08 4034372 (December 10, 2009, Corradino, J.) (striking counterclaim that did not arise out of same transaction as underlying complaint). "[Our courts do] not sanction an indiscriminate mix in one case of all claims or contentions the parties might have with each other." Id.
Counts four and five of the counterclaim sound in breach of contract and breach of implied covenant of good faith and fair dealing arising out of a contract for website development for or on behalf of the committee. The website created was derbydemocrats.com. The evidence to prove that the plaintiff breached a contract with the defendant for the creation of derbydemocrats.com is different from that needed to establish the tort claims of the underlying complaint, or, indeed, the tort claims raised by the counterclaim. There is no allegation, for example, that either tort claim for defamation in the underlying complaint or in the counterclaim arose out of a dispute over this contract. Accordingly, a separate trial on the breach of contract and breach of implied covenant of good faith and fair dealing arising out of the dispute over the derbydemocrats.com website would not involve a duplication of effort because these contract counts do not arise out of the same transaction which is the subject of the plaintiff's complaint, the tort claims. The motion to strike counts four and five of the counterclaim is therefore granted.
The plaintiff also moved to strike counts four and five on the ground that they fail to state a claim upon which relief can be granted because (1) the defendant fails to allege a contract between the plaintiff and the defendant, (2) the defendant fails to name, a necessary party, the committee, as a counterclaim defendant, and (3) the fifth count fails to allege bad faith. Because I conclude that counts four and five do not arise out of the same transaction as the underlying complaint and are therefore inappropriate for a counterclaim, I will not reach the plaintiff's additional grounds for striking counts four and five.
As for the defamation count, the plaintiff moves to strike only those allegations that relate to defamatory remarks regarding the defendant's use of alcohol, which he maintains are unrelated to the underlying complaint. A review of the allegations in that count reveals that the remaining allegations regarding extortion do relate to the underlying complaint. See part I of this decision. This court will not grant a motion to strike that is directed at only some of the paragraphs of a count in the counterclaim when such paragraphs do not state a separate cause of action. See Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) ( 43 Conn. L. Rptr. 458, 458) ("the weight of authority in the Superior Court is that the motion [to strike an individual paragraph] does not lie, except possibly where the subject paragraph attempts to state a cause of action" [internal quotation marks omitted]). Accordingly, the motion to strike count one of the counterclaim on the ground that some of the defendant's allegations are wholly unrelated to the plaintiff's underlying complaint is denied.
V Legal Malpractice
The plaintiff moves to strike count six of the revised counterclaim on the ground that the defendant has not alleged facts necessary to support a claim of legal malpractice. The plaintiff argues that the element of causation has not been established because the defendant has not identified a lawsuit pending or any judgment rendered that is the necessary "case-within-a-case" component from which professional malpractice can be determined. In other words, the plaintiff asserts that the defendant failed to allege any litigation or damages arising from the plaintiff's alleged malpractice, and that the plaintiff cannot do so until any such claim for damages has been adjudicated. It is the plaintiff's position that since the defendant fails to allege damages as the result of the plaintiff's "alleged malpractice" and that this claim is "premature" without a "subsequent claim," count six should be stricken. The defendant responds that he has sufficiently alleged each element of the legal malpractice cause of action in his counterclaim and that each element can be proven. In particular, the defendant asserts that he has alleged an attorney-client relationship between himself and the plaintiff, the plaintiff's wrongful acts or omissions, causation, and damages. As to the wrongful acts and omissions, the defendant claims that the plaintiff did not "review and correct any defamatory material" in the blog postings he made about the plaintiff and, instead, commenced the present lawsuit for defamation. Lastly, the defendant argues that the present litigation establishes the causation and damage prongs for his malpractice count.
"[T]o prove any legal malpractice claim, a plaintiff must establish the four necessary elements: (1) an attorney-client relationship; (2) a wrongful act or omission by the attorney; (3) proximate cause; and (4) legal damages." Lee v. Harlow, Adams Friedman, P.C., 116 Conn.App. 289, 302, 975 A.2d 715 (2009).
The defendant alleges the following facts in the sixth count. The plaintiff agreed to provide legal advice to the defendant regarding the writing and publishing of the Internet blog derbypolitics.com. The plaintiff "provided legal advice . . . regarding defamation, libel, slander and whether or not to create an LLC that would own [the blog]." The plaintiff said he would "personally review each blog posting and correct them if they were defamatory" and he had "a password and access to the blog's administrative controls." The defendant followed and relied upon the plaintiff's advice to his financial, personal and professional detriment because the plaintiff "failed to review and correct any defamatory material on the blog . . ."
[T]he subject matter jurisdiction of a court addresses the fundamental competency of that court to operate as adjudicator, and such claims therefore may be made by any party at any time, or may be raised by the court sua sponte." Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 550 n. 10, 858 A.2d 709 (2004). "A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Cadle Co. v. D'Addario, 111 Conn.App. 80, 82, 957 A.2d 536 (2008). "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Emphasis added; internal quotation marks omitted.) Id.
"[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Internal quotation marks omitted.) Lee v. Harlow, Adams Friedman, P.C., 116 Conn.App. 289, 297, 975 A.2d 715 (2009). The defendant must be able to allege an actual harm that was proximately caused by the plaintiff's professional acts or omissions. As one court noted in an analogous context: "Bad advice without some adverse consequence, after all, is just bad advice." Katz v. Kucej, Superior Court of Connecticut, judicial district of New Haven, Docket No. CV 06 5004131 (May 20, 2010, Corradino, J.T.R.) (dismissing legal malpractice claim as unripe).
"Pursuant to Connecticut's ripeness jurisprudence, as long as it is clear that a plaintiff has suffered an injury sufficient to give rise to the cause of action alleged, a lack of certainty as to the precise scope of damages will not prevent the claim from being justiciable." Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 87-88, 952 A.2d 1 (2008). "This case is distinguishable from those cases in which only the amount of damages is in question, thereby affecting the [party's] ability to prove its case, and not the court's jurisdiction. In those cases, in which the injury had already occurred, the only questions were whether there would be damages and their extent. See . . . Mayer v. Biafore, Florek O'Neill, [ 245 Conn. 88, 89, 713 A.2d 1267 (1998)] (judicial determination that action barred by statute of limitations not necessary to justiciability of legal malpractice claim because injury already occurred); Weiner v. Clinton, 100 Conn.App. 753, 757-63, 919 A.2d 1038 (despite pending appeal, injury of default judgment allegedly caused by legal negligence already occurred, thereby making malpractice matter ripe for adjudication), cert. denied, 282 Conn. 928, 926 A.2d 669 (2007)." Cadle Co. v. D'Addario, supra, 111 Conn.App. 83-84.
In the present case, the injury has not yet occurred. There has been no resolution or adjudication of the plaintiff's defamation claim. The gravamen of the defendant's legal malpractice claim is that the plaintiff failed to "review and correct" the blog posts that the defendant made about the plaintiff and which the plaintiff claims in the present litigation were defamatory. The defendant alleges an injury that is, at present, hypothetical. The defendant's legal malpractice claim is contingent upon his liability for defamation, which is an event that has not and indeed may never transpire. Unless or until a court renders a judgment against the defendant finding that the posts at issue in the underlying complaint in the present litigation were, in fact, defamatory, the defendant will be unable to demonstrate how the plaintiff's acts or omissions proximately caused that injury. Accordingly, the sixth count of the counterclaim is dismissed for a lack of subject matter jurisdiction over the claimed malpractice.
CUTPA
The plaintiff moves to strike the final count, count seven of the revised counterclaim, alleging a violation of CUTPA, on the ground that it must fail as a matter of law. He argues that this cause of action should be stricken because the defendant does not allege any aggravating factors for the breach of contract claim, CUTPA does not apply to claims of legal malpractice, and the counts on which CUTPA is premised — breach of contract, breach of implied covenant of good faith and fair dealing, and legal malpractice — have been determined to be legally insufficient. The defendant responds that the "alleged practices as pleaded are considered unlawful and offensive to public policy, particularly since they were alleged to have been done by an [a]ttorney" to satisfy prong one of the CUTPA test. As to the second prong of the test, he argues, that the pleadings "state actions that by any reasonable measure meet the criteria." As to the third prong, the defendant asserts that he has "alleged to have been a customer of the plaintiff" and that he was "damaged by the actions of the plaintiff." I will not address these issues as the causes of action on which the CUTPA claim is premised either have been stricken or dismissed by the court.
Conclusion
For the foregoing reasons, the plaintiff's motion to strike the defendant's counterclaim is granted as to counts four (breach of contract), five (breach of the implied covenant of good faith and fair dealing) and seven (violation of CUTPA) and denied as to counts one (defamation), two (invasion of privacy) and three (fraud). Count six for legal malpractice is dismissed for lack of subject matter jurisdiction.