Opinion
CV166031849S
07-31-2019
Susan E. DEVINE v. NATIONSTAR MORTGAGE, LLC et al.
UNPUBLISHED OPINION
PETER EMMETT WIESE, JUDGE
I
PROCEDURAL HISTORY
On January 17, 2019, the plaintiff, Susan E. Devine, filed a twenty-count "revised amended substituted complaint" against the defendants Nationstar Mortgage, LLC (Nationstar) and Safeguard Properties Management, LLC (Safeguard). (No. 220.)
The plaintiff’s "revised amended substituted complaint" delineates twenty counts. The plaintiff indicates, however, that counts three, four, and six as against Nationstar as well as counts nine, eleven, thirteen, and fourteen as against Safeguard have been stricken. Thus, the amended complaint actually alleges thirteen counts against the defendants. (See no. 220).
All references to "no." in this memorandum of decision are to the respective documents’ assigned Edison entry numbers.
The operative complaint alleges the following facts. The plaintiff is the record owner of real property located at 371 Emmett Street, Unit 90, Sandpiper Woods Condominium in Bristol, Connecticut (plaintiff’s Bristol Property). Nationstar is the successor in interest to the plaintiff’s mortgage loan lender and is the plaintiff’s mortgage loan owner and/or servicer. On December 20, 2014, Nationstar hired Safeguard to forcefully enter the plaintiff’s Bristol Property "without notice, possession, and/or authority," and on December 23, 2014, upon breaking in, the defendants shut down the water and plumbing systems and changed the lock on the front door.
Furthermore, the plaintiff resides at 53 Woodland Street, Plainville, Connecticut (plaintiff’s Plainville Residence). The plaintiff additionally alleges that on or about September 2017, Nationstar contacted the Tax Assessor’s Office for the Town of Plainville and knowingly, falsely communicated that it was the mortgage holder and/or servicer of the plaintiff’s Plainville Residence. Approximately one month later, Nationstar allegedly again contacted the town to notify it that Nationstar was in fact not the mortgage holder of the plaintiff’s Plainville Residence.
The plaintiff alleges ten causes of action against Nationstar sounding in breach of contract, trespass, violations of the Connecticut Unfair Trade Practices Act (CUTPA), fraudulent misrepresentation, negligent misrepresentation, negligence, invasion of privacy, and intentional infliction of emotional distress as reflected in counts one, two, five, seven, eight, and sixteen through twenty. The plaintiff further alleges three causes of action against Safeguard sounding in negligence, trespass, and a violation of CUTPA as reflected in counts ten, twelve, and fifteen. As a result of the defendants’ actions, the plaintiff has allegedly incurred repair and other expenses as well as loss of rental income and other monetary damages and has allegedly suffered embarrassment, harassment, and humiliation.
On February 20, 2019, Safeguard filed the present motion to strike the fifteenth count of the plaintiff’s amended complaint. (No. 222.) On February 21, 2019, Nationstar filed the present motion to strike the second, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth counts of the plaintiff’s amended complaint (no. 223) and an accompanying memorandum of law in support of its motion (no. 224). On March 22, 2019, the plaintiff filed an objection to Safeguard’s motion to strike (no. 226) and an objection to Nationstar’s motion to strike (no. 227). The court heard oral argument on the matters at short calendar on April 22, 2019.
II
DISCUSSION
A. Motion to Strike- Applicable Law
"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). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court] note[s] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
B. Analysis
Count Two: Breach of Contract (as against Nationstar)
The defendant Nationstar argues that the second count, sounding in breach of contract, is legally insufficient because (1) there is no existing contract between the parties that governs any alleged actions relating to the plaintiff’s Plainville Residence, and (2) the plaintiff fails to allege any cognizable harm or damages arising from the alleged breach. In response, the plaintiff argues that "Nationstar went beyond the bounds of the mortgage contract as to the Plaintiff’s Bristol Property, and interfered with the interest in her Plainville Residence, when it sought to have itself listed as a mortgagee for the Plainville Residence."
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). A mortgage contract is a contract and as such, is governed by contract law. See CHFA v. John Fitch Court Associates Ltd. Partnership, 49 Conn.App. 142, 149, 713 A.2d 900, cert. denied, 247 Conn. 908, 719 A.2d 901 (1998).
In the present case, the court finds that the plaintiff has failed to allege that any contract existed between the plaintiff and Nationstar with respect to her Plainville Residence. The existing mortgage agreement the plaintiff claims the defendant breached was executed as the security instrument for the plaintiff’s Bristol Property. The plaintiff has not alleged any facts to support that it in any way extended to or governed the plaintiff’s Plainville Residence. Accordingly, the defendant Nationstar’s motion to strike is granted as to count two.
Count Fifteen: CUTPA (as against Safeguard)
The defendant Safeguard argues that the fifteenth count, sounding in violations of CUTPA, is legally insufficient because the plaintiff’s allegations fail to rise to the level of extreme or outrageous conduct necessary to support a claim for unfair trade practices.
Safeguard argues that it was merely acting at the direction of Nationstar and its actions do not fit any of the three prongs of the cigarette rule, which the court describes below. In response, the plaintiff reiterates how all of her allegations "taken collectively together" reveal Safeguard’s alleged "immoral, unethical, oppressive, or unscrupulous" conduct toward the plaintiff and her property. The plaintiff further argues that the law of the case doctrine is applicable because the court has already addressed her CUTPA claim through numerous motions and objections to amendments.
CUTPA provides in relevant part: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). The statutory cause of action for damages is created by General Statutes § 42-110g(a). "It is well settled that in determining whether a practice violates CUTPA [Connecticut courts] have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise- whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695, 804 A.2d 823 (2002). "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 criteria or because to a lesser extent it meets all three." Id., 695-96. "Whether the defendant is subject to CUTPA is a question of law, not fact." (Emphasis in original; internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 521, 890 A.2d 140, cert. denied, 277 Conn. 298, 895 A.2d 798 (2006).
In the present case, the plaintiff alleges that Safeguard engaged in immoral, oppressive, and unscrupulous actions in the course of its business by: failing to provide the plaintiff with adequate notice prior to entry onto her Bristol Property, wrongfully and forcefully breaking and entering into the plaintiff’s property, failing to reasonably investigate the occupancy status of the plaintiff’s property, denying the plaintiff rightful access to her property, and failing to immediately remedy the damage done to the plaintiff’s property. The court finds that the plaintiff has sufficiently pleaded a CUTPA claim. Accordingly, the defendant Safeguard’s motion to strike is denied as to count fifteen.
Count Sixteen: Fraudulent Misrepresentation (as against Nationstar)
The defendant Nationstar argues that the sixteenth count, sounding in fraudulent misrepresentation, should be stricken on the grounds that the plaintiff fails to allege (1) that any alleged statement was made to induce her to act to her detriment, and (2) that she was, in fact, induced to act to her detriment as a result of any alleged false representation, which are two of the four essential elements of a fraud claim. Nationstar further argues that the alleged statements made by it were allegedly communicated to a third party, not to the plaintiff. The plaintiff responds that she need not prove that Nationstar allegedly made the false representation directly to her. She argues that Nationstar knowingly made the false representation to a third party, the town of Plainville, with the intention of inducing the plaintiff to act to her detriment and that as a result, the plaintiff was injured.
The essential elements of a cause of action for fraudulent misrepresentation are that "(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 that false representation to his [or her] injury." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010). "[T]he mere allegation that a fraud has been perpetrated is insufficient; the specific acts relied upon must be set forth in the complaint." Maruca v. Phillips, 139 Conn. 79, 81, 90 A.2d 159 (1952).
"While some connection, direct or indirect, between a party charged with making false representations and a party relying thereon must be shown, it is not essential, in support of a cause of action for damages resulting from false representations, that the false representations be shown to have been made directly to the party claiming to have relied upon them." (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn.App. 813, 842-43, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001). "The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved." (Internal quotation marks omitted.) Id., 842 n.24.
In the present case, the plaintiff has improperly pled a claim of fraudulent misrepresentation. The court finds that the plaintiff has sufficiently alleged that Nationstar made the false statement to the town of Plainville with the intent to induce the plaintiff to act to her detriment. Specifically, in count sixteen paragraph 10, the plaintiff alleges that "Nationstar knowingly represented to the Town of Plainville that it was the mortgage holder and/or servicer of the Plaintiff’s Plainville Residence, knowing that such representation was not true, to obtain leverage to coerce the Plaintiff to settle in this present litigation." The court finds, however, that the plaintiff has failed to sufficiently allege that she did indeed act upon this false representation to her detriment or injury. Accordingly, the defendant Nationstar’s motion to strike is granted as to count sixteen.
Although the plaintiff argues in her reply brief that she was forced to expend "more time, energy, and money to deal with issues resulting from Nationstar’s misrepresentation to the Town, especially as it relates to the real estate taxes upon her Plainville Residence," the plaintiff fails to allege any such detrimental actions taken in reliance upon the false misrepresentation within count sixteen. (No. 227, p. 7.) The plaintiff merely alleges that she suffered embarrassment and continued harassment, which does not satisfy the fourth element of a cause of action for fraudulent misrepresentation. The court also notes that earlier in her complaint, the plaintiff alluded to similar real estate tax consequences, such as the plaintiff paying a supplemental tax bill for her Plainville Residence out of pocket as a result of Nationstar’s alleged misrepresentation to the town. The plaintiff fails, however, to incorporate any such allegations in this sixteenth count.
Count Seventeen: Negligent Misrepresentation (as against Nationstar)
The defendant Nationstar argues that the seventeenth count, sounding in negligent misrepresentation, is legally insufficient because the plaintiff fails to allege reliance, which is an essential element of a negligent misrepresentation claim. Pursuant to her objection to the defendant’s motion to strike, the plaintiff concedes that she cannot properly plead her claim of negligent misrepresentation against Nationstar and, as such, the plaintiff voluntarily strikes this count from her complaint. (No. 227, p. 12.) Thus, the court will not address this issue.
Count Eighteen: Negligence (as against Nationstar)
The defendant Nationstar argues that the eighteenth count, sounding in negligence, is legally insufficient because there is no existent duty of care between Nationstar and the plaintiff, which is an essential element of a negligence claim. Pursuant to her objection to the defendant’s motion to strike, the plaintiff additionally concedes that she cannot properly plead her claim of negligence against Nationstar and, as such, the plaintiff voluntarily strikes this count from her complaint. (No. 227, p. 12.) Thus, the court will not address this issue.
Count Nineteen: Invasion of Privacy (as against Nationstar)
The defendant Nationstar argues that the nineteenth count, sounding in invasion of privacy, is legally insufficient because as a matter of law, the plaintiff allegedly "has no protected privacy interest in matters which are public." Specifically, Nationstar reiterates that any alleged communications with the town of Plainville involved publically available information. In response, the plaintiff argues that Nationstar went beyond the mere examination of public records when it allegedly contacted the town to falsely have itself listed as the mortgager and/or servicer of the plaintiff’s Plainville Residence.
The Connecticut Supreme Court first recognized a cause of action for invasion of privacy in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). The court 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 ... The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A 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 [b]efore the public." (Citation omitted; internal quotation marks omitted.) Id., 127-28.
The Supreme Court of the United States has specifically held that "the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); see also Doe v. New York, 15 F.3d 264, 268 (2d Cir. 1994) ("[c]ertainly, there is no question that an individual cannot expect to have a constitutionally protected privacy interest in matters of public record"); Swain v. Doe, United States District Court, Docket No. 3:04CV1020 (SRU) (D.Conn. September 24, 2009) ("[i]t is well-settled ... that any constitutional right to privacy does not apply to matters of public record"). The Connecticut case law on this subject is similarly clear. See, e.g., Tierinni v. Millinger, Superior Court, judicial district of Tolland, Docket No. CV-17-5007690-S (October 2, 2018, Farley, J.) (67 Conn.L.Rptr. 192) ("In general, where the information that has been allegedly disclosed about the plaintiff is a matter of public record, there is no invasion of privacy ... Matters of public record generally do not impute liability where the claim is alleged pursuant to a theory of intrusion upon seclusion ..." [citation omitted]); Brady v. Bickford, Superior Court, judicial district of New London, Docket No. CV-11-6007541 (March 13, 2015, Zemetis, J.) ("Where information about a plaintiff is already a matter of public record, this defeats a claim that his privacy has been invaded by the publicizing of that information ... There is no liability for the examination of a public record concerning the plaintiff ..." [internal quotation marks omitted]); Evans v. Blanchard, Superior Court, judicial district of Waterbury, Docket No. CV-03-0177251-S (October 2, 2006, Gallagher, J.) ("[n]o liability [for invasion of privacy] attaches to the examination of a public record").
Applying the law to the alleged facts in the present case, the court finds that the plaintiff’s allegations are legally insufficient to support a claim for invasion of privacy based on unreasonable intrusion upon seclusion. Any alleged communication between the defendant and the town of Plainville involved publically available information, such as municipal land and tax records. Thus, the plaintiff did not have a protected privacy interest in these public records. See Tierinni v. Millinger, supra, Superior Court, Docket No. CV-17-5007690-S ("where the information that has been allegedly disclosed about the plaintiff is a matter of public record, there is no invasion of privacy"). Accordingly, the defendant Nationstar’s motion to strike is granted as to count nineteen.
Count Twenty: Intentional Infliction of Emotional Distress (as against Nationstar)
The defendant Nationstar argues that the twentieth count, sounding in intentional infliction of emotional distress, should be stricken on the grounds that the plaintiff fails to allege (1) conduct that is extreme and outrageous, and (2) that the plaintiff suffered severe emotional distress. The plaintiff counters that (1) a reasonable person in the plaintiff’s situation or an average member of the community would find Nationstar’s actions extreme and outrageous, and (2) the continued embarrassment and harassment the plaintiff has suffered constitutes severe distress.
"In order for the plaintiff to prevail in a case for liability ... [alleging intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he [or she] knew or should have known that emotional distress was the likely result of his [or her] conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012). "Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his [or her] resentment against the actor, and lead him [or her] to exclaim, Outrageous! ... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Id., 527. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
"Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ... Only where reasonable minds disagree does it become an issue for the jury ... [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous." (Citation omitted; internal quotation marks omitted.) Cassotto v. Aeschliman, 130 Conn.App. 230, 235, 22 A.3d 697 (2011). "In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280 (2002), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). Similarly, whether a plaintiff’s resulting distress is sufficient to satisfy the severity element is also "a question, in the first instance, for [the] court." (Internal quotation marks omitted.) Ancona v. Manafort Bros, Inc., 56 Conn.App. 701, 712, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000). "In order for the alleged emotional distress to meet the fourth element of the [i]ntentional [i]nfliction of [e]motional [d]istress claim, the standard requires that the distress must be at a level which no reasonable [person] could be expected to endure ... [1 Restatement (Second), Torts § 46, comment (j) ]." (Internal quotation marks omitted.) Torniero v. Allingtown Fire District, Superior Court, judicial district of New Haven, Docket No. CV-06-5006174 (March 17, 2008, Robinson, J.) (45 Conn.L.Rptr. 298, 303). "In the absence of articulated standards by our appellate courts, most trial courts apply the standard set forth in the Restatement ... The Restatement provides that ‘emotional distress ... includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, nausea. It is only where it is extreme that the liability arises.’" (Citation omitted.) Id., 303-04.
Taking the facts as alleged in the operative complaint, the court concludes that the plaintiff has failed to set forth a viable cause of action for intentional infliction of emotional distress. Although the alleged underlying conduct may have been hurtful, distressing, and embarrassing to the plaintiff, as a matter of law, it does not rise to the level of extreme and outrageous behavior. See Perez-Dickson v. Bridgeport, supra, 304 Conn. 526-27. Additionally, the plaintiff has failed to plead facts sufficient to establish that the emotional distress she sustained was severe. See Torniero v. Allingtown Fire District, supra, Superior Court, Docket No. CV-06-5006174. Accordingly, because the facts as alleged are insufficient to support a cause of action for intentional infliction of emotional distress, the defendant Nationstar’s motion to strike is granted as to count twenty.
III
CONCLUSION
For the stated reasons, the court finds the following: counts seventeen and eighteen are voluntarily stricken by the plaintiff. The defendant Nationstar’s motion to strike counts two, sixteen, nineteen, and twenty is granted as to all four of those counts. The defendant Safeguard’s motion to strike count fifteen is denied.