Opinion
No. 562077
August 21, 2003
MEMORANDUM OF DECISION
The defendants have filed motions to strike against the plaintiff's revised complaint. The case before the court arises out of a suit first filed by the defendant Landmark Development Group against TMK Associates involving an agreement to exercise an option to purchase real property in East Lyme. The defendant Michael Dowley, Esq. was retained by Landmark to file a lis pendens on the property and to bring a lawsuit against TMK. A trial on this first suit was held before Judge Leuba in March 2002, and he found in favor of TMK on all issues.
The plaintiff TMK then brought this action against Landmark Development, a limited liability corporation, Glen Russo, Gus Demady and Michael Dowley, Esq.
A motion to strike has been filed against Counts Two and Three, which allege statutory vexatious litigation against Glen Russo and Guy Demady respectively (§ 52-568, C.G.S. A.), Counts Five, Six and Seven, which allege common-law vexatious litigation against Landmark Development, Russo and Demady, and Counts Thirteen, Fourteen and Fifteen, which allege a violation of the Connecticut Unfair Trade Practices Act (§ 42-110, C.G.S. A.) against each of the same three defendants.
Attorney Dowley has also filed a motion to strike against the revised complaint. His motion is directed against Count Four, statutory vexatious litigation (§ 52-568, C.G.S. A.), Count Eight, common-law vexatious litigation, Count Twelve, tortious interference with a business expectation, and Count Sixteen, violation of CUTPA.
The court will now attempt to address the issues raised by the motions to strike.
(1)
Landmark, Russo and Demady move that the common-law vexatious litigation counts against each one of them be stricken (Counts Five, Six and Seven); Dowley, in his own motion to strike, asks that the statutory vexatious count against him set forth in Count Four be stricken. The defendants base their position on a common argument. The ancient case of Whipple v. Fuller, 11 Conn. 582 (1836), is cited for the proposition that common-law vexatious litigation suits cannot be joined with a statutory vexatious litigation claim pursuant to § 52-268. Whipple certainly said that, and at pages 586 and 587, the court made two important observations for the purposes of deciding the issue now raised by the defendants.
But notwithstanding each count in this declaration, separately considered is good, yet we are of the opinion, that these counts could not, by law, be joined in one declaration; that there is a misjoinder of actions; and that for this cause alone, the declaration is insufficient.
The court went on to note, however, that under 1836 practice, "actions of debt on bond and covenant broken cannot be joined . . . Neither can actions of account or replevin, or an action on book, in this state, be joined with any other cause of action."
The court then goes more directly to the situation presented by the case before it and says in the type of joined actions just mentioned joinder is not allowed because: "the forms of proceeding in some, as well as the essential nature, and forms of the judgment in others of these actions, are different from the forms of proceeding and judgments in all other cases."
Armed with this reasoning, the court went on to conclude at page 587:
The first count in this declaration is founded upon the statute to prevent vexatious suits; and the plaintiff, by virtue of that statute, demands to recover treble damages. And the second count is at common law, on which single damages only are recoverable. If a general verdict be given for the plaintiff, upon this declaration, or a judgment by default be rendered, is the court to assess single, or double damages? The law requires a judgment upon one of these counts, to be essentially different from the judgment to be rendered upon the other.
For the particular proposition now being discussed, Whipple has not been cited by any appellate court for 177 years. There is good reason for that — in the late 19th Century, the predecessor to § 52-97 of the General Statutes was passed, which is embodied in § 10-21, "Joinder of Causes of Action" of the Practice Book. All manner of actions may now be joined. As concisely stated in Horton Knox, Connecticut Practice (2003 Ed.), alternative and even inconsistent pleadings are "now permitted under § 10-25 of the Practice Book; absent a showing of prejudice to the opposing parties, there is no general prohibition of inconsistent pleadings" (see commentary to Practice Book § 10-25 at page 412)." "Prejudice" is not a factor here — even Whipple recognized that a common-law and statutory vexatious litigation claim are separately viable and modern procedure and the nature of this case do not present insuperable problems that would prejudice either one side or the other if the claims are joined. Also, there can be no claim that "good faith" is at issue since each separate legal theory even under Whipple, as noted, "are good." Id. at page 586; see Drier v. Upjohn Co., 196 Conn. 242, 245 (1985), Hanover Ins. Co. v. Firemens' Fund Ins. Co., 217 Conn. 340, 346 (1991), both cited by Horton Knox.
The incongruity of concluding that Whipple v. Fuller is good law is underlined, in fact, by that case's very statement that each of the claims — common-law vexatious litigation and a statutory claim for the same — "separately considered" are "good." Id. In other words, if Whipple is still good law when these two separate claims are included in one suit, nothing under Whipple would prevent the losing party on the motion to strike from bringing a separate action on whichever count is stricken. But is Practice Book § 9-5 then rendered inoperable which permits consolidation of actions? As an early case referred to by Horton Knox indicates, application of this procedure lies within the discretion of the trial court and consolidation will be allowed "where it will expedite the court's business without creating an injustice to the parties." Connecticut Practice, author's comments to Rule 9-5 at page 352; case cited Rode v. Adley Express Co., 130 Conn. 274, 277 (1943). Neither of the factors arguing against consolidation were raised by the defendants because they apparently cannot be.
Well, if consolidation were to be permitted for separate suits which respectively make the claim for common-law vexatious litigation and statutory vexatious litigation, why cannot both be joined in one suit by means of different counts? Our modern practice would simply require separate verdict forms for each claim.
It is also clear that Whipple does not conform with present day practice, if we examine types of litigation where the appellate courts have allowed certain types of different claims, common-law and statutory, to be joined in the same suit. For example, a § 1983 federal civil rights action against police officers can be joined with a state common-law malicious prosecution claim. The punitive damage claim under federal law is treated quite differently from the punitive damage claim that can be made under the state common-law tort but the specter of CT Page 10226 Whipple v. Fuller does not prevent the joinder of those claims in one suit. See Ham v. Green, 248 Conn. 508, 518 (1999). Also, nothing has prevented the courts from permitting a common-law breach of contract claim to be joined with a CUTPA claim relying on the same facts if the breach of contract is aggravated enough to permit a claim under our Unfair Trade Practices Act. The damages awarded under each of these claims, one at common law, the other statutory, can be quite different. Similarly, civil penalties under the Dram Shop Act (§ 30-102) are statutorily defined, but recently the Supreme Court concluded that the "act does not occupy the field so as to preclude a common-law action in negligence against a purveyor of alcoholic beverages for service of alcoholic liquor to an adult patron who, as a result of intoxication, injures another." Craig v. Driscoll, 262 Conn. 312, 330 (2003). There, the Supreme Court upheld the Appellate Court's conclusion that the trial court referee erred in granting a motion to strike a negligence count brought in conjunction with a Dram Shop Act claim.
Our modern rules of practice have, in effect, gone beyond Whipple and our appellate courts have abrogated its operation.
In any event, for the foregoing reasons, the motions to strike Counts Four, Five, Six and Seven by Landmark, Demady, Russo and Dowley are denied.
(2)
The defendants Russo and Demady have filed a motion to strike the second and third counts of the revised complaint which assert statutory vexatious litigation claims (§ 52-568) against each one of them. Section 52-568 reads as follows:
Any person who commences and prosecutes any civil action or complaint against another, in his (sic) own name or the name of others, or asserts a defense to any civil action or complaint commenced or prosecuted by another (1) without probable cause shall pay such other person double damages or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him (her) treble damages.
The defendants argue that "a key element in vexatious suits is the identification of the parties to the underlying suit. Specifically, the parties to both suits must be identical." The defendants further note that the first suit out of which this case arises was captioned: " Landmark Development Corp. v. TMK Associates, et al., #CV00-0554947-S." Landmark was the only named plaintiff while TMK was one of the eight named defendants in that suit. In this suit, however, TMK has brought suit not only against Landmark but also against Demady and Russo. The defendants argue that the complaint's allegations only say they were associated with Landmark and the only specific allegation against each one of them in the counts against them is that "acting in concert" with Landmark they instituted the lawsuit against TMK in violation of § 52-568. It should also be noted, however, that later paragraphs in each of the counts say that, in effect, Landmark and Russo and Landmark and Demady "commenced and prosecuted" the suit in violation of the statute without probable cause (para. 6 of Counts Two and Three), and with the alternative statutory basis of malicious intent (para. 7 of Counts Two and Three). But the defendants conclude by arguing that "the plain language of the statute requires the defendants to be named plaintiffs in the original action . . . (but) "they were not parties to the underlying suit."
The court could find no appellate cases on point where the precise legal and factual claim was addressed by the court in applying and/or interpreting § 52-568. The court, however, does not agree with the defendants' "plain language" argument. The statute could have read:
Any person who commences and prosecutes any civil action or complaint against another in his (sic) own name (1) without probable cause shall pay such other person double damages or (2) without probable cause and with a malicious intent unjustly to vex and trouble such other person shall pay him (her) treble damages.
But the statute does not read that way. It says that: "Any person who commences and prosecutes any civil action or complaint against another, in his (sic) own name, or in the name of others, . . . (1) without probable cause . . ." etc. (Emphasis by the court.) The underlined language must be taken to have some meaning and its only rational meaning is that in the universe of possibly culpable parties under the statute not only must the parties who actually brought the suit be included, but also individuals who caused the named parties to bring the suit. Any other reading would allow people to bring suits by proxy and avoid the heavier statutory penalties deemed necessary by the legislature if the statutory's substantive requirements were otherwise to be met. It would create somewhat of an anomaly in a situation where corporate officers were directly involved in having their corporate entities initiate such vexatious litigation but could not be held responsible under § 52-568. This would seem to contradict well-established law designed to fully effectuate the policing purposes of tort litigation, whether inspired by statute or common law.
Thus, it has been said that:
It is also true that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he (she) acts on behalf of his (her) principle or corporation, he (she) is liable to third persons injured thereby.
Scribner v. O'Brien, Inc., 169 Conn. 389, 404 (1975).
In Kilduff v. Adams, Inc. 219 Conn. 314, 332 (1991), the court said:
It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable.
The court then added, in a case where fraud was found, that the individual defendants "were personally liable for their participation in the fraud, regardless of whether the corporate veil should have been pierced." Id. The same observation would hold true where an individual, acting as an agent of a corporation, commits a tort.
In order to relate the foregoing observations to the motion to strike, it is necessary to further examine the allegations against Russo and Demady made in the statutory vexatious litigation counts, Two and Three.
A request to revise was not filed with respect to the revised complaint. Therefore, the court is presented with bald allegations against Russo and Demady that not only were they "associated" with Landmark Development as regards to the underlying litigation, but each of them "acting in concert" with Landmark "instituted a lawsuit" against the plaintiff TMK, (para. 4 of Counts Two and Three) and, furthermore, the defendants (which would include Landmark Development and each individual defendant Russo and Demady), "commenced and prosecuted" Landmark v. TMK in violation of subsection (1) and (2) of § 52-568 (para. 6 and 7 of Counts Two and Three). All of these allegations taken together present a legally sufficient claim under § 52-568.
In light of the foregoing discussion, these allegations prevent the granting of the Russo and Demady motion to strike the statutory vexatious litigation claims (§ 52-568) set forth in Counts Two and Three.
(3)
The defendants Landmark Development, Russo and Demady also move to strike Counts Thirteen, Fourteen and Fifteen alleging a violation of the Connecticut Unfair Trade Practices Act (§ 42-110 et seq.).
They argue that "in order to successfully allege a violation of CUTPA, the plaintiff must allege more than a singular occurrence"; "there must be a pattern of unfair or deceptive trade practices"; "the plaintiff failed to plead more than a single act (of) unfair or deceptive business practices." This argument was laid to rest in Johnson Electric Co. v. Salce Contracting Assoc., 72 Conn. App. 342 (2002). There, "the trial court held that, because the plaintiff did not prove that the defendant had engaged in a repeated course of misconduct, the plaintiff did not establish that the defendant violated CUTPA." Id. page 349. The court disagreed, ruling that, `The trial court improperly declined relief to the plaintiff on the ground that it had alleged and proven only a single act of misconduct." Id. page 353.
It is true that this view of CUTPA must be understood with reference to the violation of the so-called "cigarette rule," violation of which determines whether a CUTPA claim can be made out. Hartford Electric Supply Co. v. Arlen-Bradley Co., 250 Conn. 334, 368 (1999). In other words, the fact that only a single act was involved may make it more difficult to prove any or all of the three elements of the rule, but this is not necessarily so if that single act was sufficiently aggravating.
And in this regard, the defendants further argue that a violation of the "cigarette rule" has not been shown. (1) There is no public policy issue, it is not stated by the plaintiff how the defendants' activities are offensive to public policy. (First prong of "cigarette rule.") (2) Also, it is said that the acts complained of "are not immoral, unethical, oppressive or unscrupulous, nor has the plaintiff alleged that they were." (Second prong.) (3) Finally, as to the third prong, it is argued that "the plaintiff has neither alleged nor shown that the acts of the defendant caused it substantial injury."
In addressing these claims, it must be kept in mind that in Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106 (1992), the court turned to guidance to the Federal Trade Commission and one of its regulations which it quoted. The federal regulation said of the three pronged "cigarette rule": "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the three criteria or because to a lesser extent it meets all three." This is a shorthand way of saying CUTPA is a remedial act and the "cigarette rule" was not devised to be a straight jacket on its operation.
Have the requirements of the cigarette rule been satisfied here? In this case, it must be noted that the basic assertion underlying all the counts is that a baseless suit, known by the defendants to be such, was filed against the plaintiff. This suit was dismissed by another judge who found that the claims made and the evidence offered by the defendant in that earlier litigation were false and the conduct of the defendant and its agents was based on misrepresentations. The judge's decision in the first case is attached to the complaint in this case and, in that sense, is part of the pleadings for testing the sufficiency of the revised complaint here. No explicit objection has been raised to this procedure, although it may make it difficult in future proceedings to determine what particular allegations consist of in terms of deciding whether evidence offered is material.
In any event, the court has concluded that the allegations of the revised complaint, standing alone, satisfy the requirements of the "cigarette rule." It certainly offends public policy (prong one), where, in a dispute between two businesses, one of them is alleged to have filed a baseless suit. The common law has created a tort of vexatious litigation to police such activity and the legislature has passed a statute (§ 52-568) providing for multiple damages when such litigation is pursued. The court is not passing on the merits, but it must give the allegations every favorable inference. Not only are the activities alleged harmful to the party subjected to such a suit — its right to conduct its business is put in limbo while the allegedly fraudulent suit is being litigated, but the machinery of the court system, set up to resolve disputes for the particular litigants, but also other litigants who might have valid business disagreements, is tied up handling a meritless claim — time that could have been otherwise spent resolving other litigation. All of this raises public policy considerations.
It also appears to be clear that if the CUTPA allegations set forth in Counts Seven and Eight of each of the CUTPA counts are established, wherein it is stated that the suit was filed without probable cause by a party who knew its claim was invalid and was done to harass and annoy the plaintiff in part to prevent it "from engaging in its business," then it would follow that such conduct was unethical and immoral, oppressive and unscrupulous (prong two). The use of the court system in this way cannot be used by one business against another to resolve business disputes.
The last prong of the rule appears also to be satisfied. Paragraph 8 of the CUTPA count explicitly alleges that the defendants Landmark, Russo and Demady knew or should have known that, "(d) plaintiff would be prevented from engaging in its business as a result of defendants having filed Landmark v. TMK" (first suit). The third prong indicates that the party alleging a CUTPA violation must show (here, allege) that the practice complained of: "Causes substantial injury to consumers, competitors, or other business men (sic) "(emphasis added). Being prevented from engaging in one's business would certainly seem to satisfy that requirement.
It is worth noting that when the Federal Trade Commission was created in 1944, it was directed towards protecting business entities subjected to unfair competition. In 1938, the Commission's power was broadened so as to more directly protect consumers. FTC v. Colgate-Palmolive Co., 380 U.S. 374, 384-85 (1964). The allegations of the complaint do not make it clear to the court at least how the relationship between Landmark and TMK can be characterized. But if Judge Leuba's opinion is examined, it would appear that Landmark itself wanted to develop the parcel of land involved here and that is why it engaged in the tactics alleged to be unfair. Interestingly, however, the third prong of the "cigarette rule," as noted, does not simply say the contested act "causes substantial injury to consumers (and) competitors," it adds the language "or other businesses."
The court has found the following cases and commentary regarding the threat of suit or the improper use of legal proceedings as a basis of finding an unfair trade practice at common law or an unfair trade practice under the federal Clayton Act, which is administered by the Federal Trade Commission. An older Massachusetts common-law unfair trade practice case held that bad faith threats of patent infringement suits made against a competitor were actionable. Russo v. Thompson, 200 N.E. 570 (Mass., 1936). An early federal case between competitors indicated it was an unfair trade practice to initiate false litigation against a competitor to have it declared insolvent in order to cast doubt on the competitor's financial condition. Chamber of Commerce v. F.T.C., 13 F.2d 673, 682 (Cal. 8, 1926). Also noted in the "Monopolies" article in 54A Am.Jur.2d, § 1155, "the FTC could determine that a mail order company's practice of bringing suit in Illinois, where it had its major place of business, against persons living outside of Illinois under the state's long arm statute, thereby forcing a consumer to appear in a courtroom hundreds or thousands of miles from home at travel costs that might exceed the amount in controversy, was an unfair trade practice, although permissible under state law." See Spiegel, Inc. v. FTC, 540 F.2d 287 (Ca., 7, 1976).
Certainly, there is no a priori reason why use of the court system to advance an unfounded claim and thereby secure an unwarranted advantage over another business cannot be an unfair trade practice.
In any event, the motion to strike Counts Thirteen, Fourteen and Fifteen by Landmark, Russo and Demady are denied.
(4)
The defendant attorney has moved separately to strike Count Sixteen, which alleges a violation of CUTPA against him. Jackson v. Whipple, Inc. et al., 225 Conn. 705 (1993), and Suffield Development Association v. National Loan Investors, 260 Conn. 766 (2002), make clear that a CUTPA action does not lie against this attorney. The Suffield Development case quoted from earlier opinions and made clear that "only the entrepreneurial aspects of the practice of law are covered by CUTPA." CT Page 10232 Id. page 781. The court went on to say:
Our CUTPA cases illustrate that the most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorneys professional representation of a client or is part of the entrepreneurial aspect of practicing law. Applying this distinction to the present case, we conclude that the plaintiff failed to allege sufficient facts to support a CUTPA claim against the defendant attorney and law firm.
The plaintiff's amended complaint alleges that the defendants engaged in an unfair and deceptive trade practice by obtaining an execution in excess of the amount their client was owed under a stipulated judgment. Although that may be actionable professional misconduct, we conclude that these allegations do not support a CUTPA claim because obtaining an execution on a judgment relates to the representation by the defendant attorney and law firm of their client and not to the entrepreneurial aspect of practicing law. Obtaining an execution to collect on a court judgment is the heart of an attorneys representation of a client because it is a means by which the attorney secures actual compensation for the judgment obtained by the client.
Id., pages 781-82.
The court went on to say that the fact that the lawyer might have been involved in intentional misconduct makes no difference in the limitations placed on an attorney CUTPA claim. Also, the court reasoned that even when the lawyer intends to profit by the intentional misconduct, the misconduct does not become entrepreneurial and thus subject to CUTPA.
There is no indication in the allegations of the sixteenth count that the defendant attorney was acting in any other capacity than a lawyer in bringing the first suit or that he had any direct financial involvement in the activities of Landmark as, for example, a business associate or investor. The vague reference in paragraph 5 that he, as an attorney, brought the lawsuit "in concert" with Landmark Development or that the lawsuit was meritless and harmful to TMK as alleged in paragraphs 7 and 8 do not somehow allow this lawyer's actions to be characterized as entrepreneurial and thus subject to CUTPA. In fact, the alleged improper use of court processes is exactly what was purportedly involved in Suffield Development Association.
In any event, the court will strike Count Sixteen.
(5)
The defendant Dowley has also filed a motion to strike against the twelfth count which is entitled: "Tortious Interference with a Business Expectancy as to Michael Dowley, Esq."
The count repeats the factual allegations made in earlier counts (Count Four, para. 4-6, Count Six, para. 7-8) that the underlying suit, Landmark v. TMK, was initiated without probable cause and that the suit was commenced and prosecuted with malicious intent. The count then goes on to allege:
9. The defendant, Michael F. Dowley, Esq., knew that the plaintiffs intended to sell and/or develop its land in East Lyme into a subdivision.
10. The defendant intentionally, without justification, with improper motive and by use of improper means, sought to interfere with the plaintiff's business relationship in that he commenced Landmark v. TMS with wilful and malicious intent and without probable cause for the purpose of preventing the plaintiff from engaging in its business including, but not limited to, the development of its property.
11. As a result of the defendant's tortious interference with the plaintiff's business relationship, the plaintiff has sustained actual loss consisting of, but not limited to lost profits and opportunities, interest charges and the cost of litigating Landmark v. TMK.
The problem with the twelfth count is that it appears to confuse or run together two torts or two aspects of the same tort action. The clearest discussion of the question presented is located in 45 Am.Jur.2d, "Interference," pp. 269, et seq. Also see Prosser Keeton on Torts, 5th ed., §§ 129, 130, pages 978, et seq.; Dobbs, The Law of Torts, Vol. 2, Chapter 32, page 1257, et seq. As the Am.Jur. article points out, there are two or three subsets or categories of "interference" as a tort.
The torts of intentional interference with contractual relations, with lawful business and with prospective business advantage are closely related. The tort of interference with contractual relations is merely a species of the broader tort of interference with prospective business advantage and the tort of interference with business advantage is merely interference with ongoing and existing rather than prospective business advantage.
45 Am.Jur.2d at § 36, page 301.
Judge Rubinow recognized this dichotomy in Heirs v. Cohen, 31 Conn. Sup. 305, 310, 311 (1973). Our court has recognized the traditional interference with a contractual relationship for many years. Id.; also see RW Hat Shop v. Sculley, 98 Conn. 1, 14 (1922). A cause of action in this area does not require interference with an actual written or oral contract, however. There can be recovery where there is tortious interference with an ongoing business relationship. Harry Finman Son v. Conn. Truck Trailer Ser., 169 Conn. 407, 414-15 (1975); Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 166-68 (1998). There is arguably a much broader cause of action in tort which is reflected in the language of another often cited older case, Skene v. Carayanis, 103 Conn. 708, 714 (1926), where the court said:
The law does not however, restrict its protection to rights resting upon completed contracts, but it also forbids unjustifiable interference with any (person's) right to pursue his (her) lawful business or occupation and to secure to himself (or herself) the earnings of his (her) industry . . . No (person) can justify an interference with another's business through fraud or misrepresentation, nor by intimidation obstruction or molestation.
In other words, besides a tort for interference with an actual contract, or with a business relationship offering the prospect of future profit, there could be an action for loss of prospective business advantage, broadly understood. That is, it might be claimed by a real estate developer that baseless litigation prevented it from building housing units for sale in a seller's market or a manufacturer might claim baseless litigation prevented it from building a new factory on certain land which limited its production.
Where such a claim is made, proof of damages might be difficult but so it is for interference with a business relationship, Technology for Energy Corp. v. Scandpower, 880 F.2d 875 (Cal. 6, 1989), but that cannot be addressed by a motion to strike or, by itself, present a reason why such a theory of tort recovery cannot be advanced.
Also, if there is concern about the ambit of such a theory of recovery, the language of Blake v. Levy, 191 Conn. 257, 262 (1983), should be kept in mind: ". . . to substantiate a claim or tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort. `[A] claim is made out (only) when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.'"
There is not a wealth of cases supporting this broad view of the tort, but the problem here is that under the allegations made, the court cannot properly address the viability of such a tort theory in general or, if such a theory lies, determine if it is satisfied by the allegations made in the revised complaint.
The problem with the pleading in this case is that it is not clear what exact variation of the "interference" tort the plaintiff is alluding to in its complaint. On the one hand, paragraph 10 talks of the defendant's attempt "to interfere with plaintiff's business relationship." See also paragraph 11. The defendant is perfectly correct in saying that there are no allegations to support such a claim — what exactly is the "business relationship" that is interfered with or even referred to in the pleadings? As the defendant succinctly phrases it: "Nowhere in the twelfth count does the plaintiff identify an entity with whom it had a business relationship that was tortiously interfered with by the commencement of the original action." Is a prospective relationship being suggested? The language used does not permit that interpretation. Cf. Harry Finman Son v. Conn. Truck Trailer Ser., 169 Conn. 407, 415 (1975). On the other hand, paragraph 9 and portions of 10 can also be interpreted as making a claim of loss due to the fact that the plaintiff was prevented or delayed in developing the land — loss of a prospective business advantage.
The court cannot address the "possible" issues presented and opposing counsel is not properly informed of the exact theory of liability. Therefore, pursuant to Section 10-1 of the Practice Book, the court will, in effect, rule that the twelfth count as framed is not viable and directs the plaintiff to withdraw the count in a new pleading or reword its allegations so as to make clear what actual theory of recovery is being advanced under the penumbra of an interference claim.
(6)
The defendant Dowley also moves to strike the Fourth Count (statutory vexatious litigation, § 52-568) and the Eighth Count (common-law vexatious litigation) on the grounds that they are legally insufficient. A claim for vexatious litigation under § 52-568 is governed by the same principles that apply to a common-law claim for vexatious litigation. Schaefer v. O.K. Tool Co., 110 Conn. 528, 534 (1934); Frisbee v. Morris, 75 Conn. 637, 639 (1903), cited in DeLaurentis v. New Haven, 220 Conn. 225, 238, fn. 3. In Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582 (1998), the court said: "The elements of a common-law or statutory cause of action for vexatious litigation are identical." Id. page 596.
What are those elements? The court in DeLaurentis said to prove such a case the following must be established:
(1) There must be a prior civil action;
(2) there must be no probable cause for the action;
(3) the action must have been brought with malice;
(4) the action must have terminated in the plaintiff's favor.
220 Conn. at page 248. Also see Vandersluis v. Weil, 176 Conn. 353, 356 (1978).
Further aspects of such a claim should be also mentioned given the allegations of the revised complaint. It has been the law in our state that, "Malice may be inferred from lack of probable cause . . . The want of probable cause, however, cannot be inferred from the fact that malice was proven." Norse Systems, Inc., 49 Conn. App. at page 594, quoting from Vandersluis, 176 Conn. at page 356. Also see Ancona v. Manafort Bros., 56 Conn. App. 701, 708 (2000). The article "Malicious Prosecution" in 59 Am.Jur.2d at § 49, page 174, refines this notion by saying: "Though malice may not be presumed from proof of a lack of probable cause, it may be inferred from such proof. Such an inference is not a conclusion of law, but an inference of fact to be drawn by the jury. (The Ancona case is cited in a footnote.)
Also, it has been noted that an attorney may be sued for vexatious litigation. Heim v. California Federal Bank, 78 Conn. App. 351, 368 (2003); Suffield Development Association v. National Loan, Inc., 64 Conn. App. 192, 199 (2001); Mozzochi v. Beck, 204 Conn. 490, 495 (1987) (dicta, abuse of process case). Except in dicta in Mozzochi, our appellate courts have not discussed whether there are any special pleading or proof requirements when a vexatious litigation suit is filed against an attorney. Again, the 52 Am.Jur.2d article is instructive on the law in other jurisdictions as to malicious prosecution or vexatious litigation when an attorney is the defendant. At § 92, pages 200-01, it is said that, "An attorney who acted on behalf of a client in filing a proceeding that is the subject of a malicious prosecution claim is not immune from liability for malicious prosecution solely by reason of his or her status as an attorney. However, an attorney is not liable for malicious prosecution if he or she has acted in good faith in the prosecution of a client's rights." It then goes on to say that, "An attorney is entitled to rely in good faith on the statement of facts made to him or her by the client and may not be held liable for malicious prosecution except upon his or her actual knowledge that the client's charge against another was groundless."
Section 2 of 52 Am.Jur.2d article at pages 141-42, indicates it applies to our tort of vexatious suit, see reference to Ancona in footnote 5 on page 142.
Given these observations, are the counts legally sufficient? It must generally be kept in mind that every reasonable inference must be given to a complaint that is subject to a motion to strike. Amodio v. Cunningham, 182 Conn. 80, 82 (1980). Also in this particular case, the legal sufficiency of the vexatious suit claims at common law and by statute can be tested by the allegations of the revised complaint and in light of Judge Leuba's opinion which is made an exhibit to the complaint.
Let us turn then to the allegations made here in the Fourth and Eighth Counts alleging statutory and common-law vexatious suit and see whether they are legally sufficient.
The allegations are certainly made that there was a prior civil action terminating in the present plaintiff's favor.
The complaint alleges in the Second Count (§ 52-568), paragraph 7, that the defendant knew that the action he commenced and prosecuted knowing that the contract his clients sought to enforce through litigation had expired. As plaintiff's counsel notes, referring to Judge Leuba's opinion, the option agreement for the purchase of the land "specifically provided that it could only be modified in a writing signed by the party against whom enforcement was sought." The option agreement had a specific expiration date which expired prior to the suit being brought by the defendants. A lawyer would presumably have access to the documents forming the basis of the litigation which he or she brought so that a lawyer would have known that any option had expired at the time suit was brought. The allegations set forth a legally sufficient claim of lack of probable cause to bring the suit. From this, malice can be inferred without even having to allude to the ancillary allegations in the complaint that all of the foregoing was proceeding at a time when the defendant knew that the subject real estate had a Conservation Permit for Development and that the defendant knew the plaintiff intended to develop the land.
Of course, all of these matters are only allegations, which must be proven, but they are legally sufficient to support the claims made in Counts Four and Eight.
The court therefore denies the motion to strike of the defendants Landmark Development, Russo and Demady. As to Michael Dowley's motion, it strikes Count Sixteen (the CUTPA count) and Count Twelve (tortious interference count), but does not strike any other counts directed against that defendant.
Corradino, J.