Opinion
FSTCV146021406S
06-28-2016
Irena Kobylanska v. Northstar Condominium Association, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
David R. Tobin, Judge Trial Referee.
In her complaint, dated January 27, 2014, plaintiff, Irena Kobylanska, alleges that she is the owner of Unit 504, which is part of the condominium association represented by defendant, Northstar Condominium Association, Inc. (Northstar). The plaintiff claims that, in 2008, Northstar undertook an exterior renovation project of the building (the project) in which all the units of the condominium were located with an announced budget of $1,200,000. Upon completion of the project, the total costs amounted to $1,940,000. The plaintiff alleges that she questioned the costs incurred in the project and did not receive satisfactory answers from the defendant. In the sole count of her complaint, the plaintiff requests that the court order an accounting of all disbursements made in connection with the project.
On January 7, 2016, the plaintiff moved to have her husband, Aleksandr Yu Tarasyuk, added as a party plaintiff, alleging that he became a 50 percent owner of Unit 504 on December 18, 2015 The court granted that motion on January 25, 2016 and Aleksandr Yu Tarasyuk entered his appearance as a plaintiff.
On February 18, 2016, the defendant filed a request to file an amended answer, special defenses, and counterclaim. The court overruled the plaintiffs' objection to the request. The sole count of the defendant's counterclaim alleges that the plaintiffs' complaint constituted an abuse of process. Presently before the court is the plaintiffs' motion to strike the defendant's counterclaim on the grounds that: 1) the " counterclaim is not legally sufficient to state a claim upon which relief can be granted since it fails to allege 'that the complaint Plaintiffs used a legal process in an improper manner or to accomplish a purpose for which it was not designed; and 2) the " original complaint has not been adjudicated so under Connecticut law the bringing of a counterclaim based on abuse of process at this time is premature."
DISCUSSION
Practice Book § 10-39 provides in relevant part: " A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . ." " [I]t 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 . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " 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). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Id., 588. " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
PRELIMINARY ISSUE--DEFENDANT'S CLAIM THAT PLAINTIFF'S MOTION TO STRIKE IS PRECLUDED BY PRIOR ORDER OF THE COURT.
In its objection to the motion to strike, dated May 26, 2016, the defendant first points out that in the order overruling the objection to the filing of the amended answer, special defenses, and counterclaim, the court (Mottolese, J.T.R.) included in this order the following language: " Legal sufficiency of new counts or defenses may not be considered." The defendant claims that this language constitutes a " clear mandate" barring the filing of any challenge to the legal sufficiency of the defendant's counterclaim. The court disagrees. Read in context, the order does not bar the filing of a motion to strike, it simply lets the parties know that in overruling the objection to the motion to amend, the court did not consider the legal sufficiency of any counts or defenses, leaving the plaintiffs free to challenge the legal sufficiency of any portion of the amended answer by a timely motion to strike.
FIRST GROUND-FAILURE TO ALLEGE IMPROPER PURPOSE
In support of their claim that the defendant's counterclaim fails to allege that plaintiffs' process was used for an improper purpose, the plaintiffs do not address the factual allegations of the counterclaim, but, nevertheless, claim that the allegations are insufficient.
In response, the defendant rather pointlessly recites and repeats each and every one of the seventy-five paragraphs in its counterclaim without addressing the deficit in pleading identified by the plaintiffs. The court finds such an approach to be unhelpful in dealing with the claim of legal insufficiency raised by the motion to strike. The defendant could have made a more focused response by referring the court to paragraphs 72 and 73 of the counterclaim and avoiding sixteen pages of needless duplication of their counterclaim, which was already on file.
In paragraph 72 of the counterclaim the defendant alleges that the plaintiffs " have issued legal process and/or used judicial procedures in their civil action against Northstar in one or more of the following ways:
(a) By serving Their Summons and Complaint upon Northstar on January 31, 2014;
(b) By serving their First Set of Requests for Admission upon Northstar on June 12, 2014;
(c) By filing their Motion for Order of Compliance on August 25, 2014;
(d) By serving their Notices and Re-Notices of Deposition of The Milford Bank and accompanying Subpoenas on April 24, April 27 and August 21, 2015;
(e) By filing their Motion for Default on August 26, 2015;
(t) By filing their Reply to Northstar's Special Defenses on September 2, 2015;
(g) By filing their Certificate of Closed Pleadings on September 3, 2015;
(h) By serving their Notices and Re-Notices of Deposition of CPLLC and accompanying Subpoenas on October 14, 2015 and February 9, 2016; and
(i) By filing their Motion to Add Party Plaintiff on January 7, 2016."
The sixth subparagraph of paragraph 72 is, in fact labeled " (t)" not " (f)."
In Paragraph 73 of its counterclaim, the defendant alleges that the plaintiffs " issued the above described process primarily for the following improper and ulterior purpose or purposes for which such process was not designed, primarily to obtain the following benefit or benefits that [plaintiffs] could not have achieved by the proper and successful use of such process:
(a) To harass and vex Northstar and the BOD in retaliation for the BOD's handling of Defendants' various complaints and grievances concerning the exterior renovation project;
(b) To force Northstar to replace the new sliding balcony doors installed in Defendants' unit with sliding balcony doors that open in the opposite direction, and/or to force Northstar to repair Defendants' other alleged deficiencies in the performance of the exterior renovation project;
(c) To extort from Northstar a reduction in Defendants' common charges and/or assessments;
(d) To avoid making payments for Defendants' portion of the construction loan from The Milford Bank to Northstar;
(e) To extract from Northstar documents to be used to support Defendants' efforts to convince the Stamford Police Department to criminally prosecute the BOD; and
(f) To extort from Northstar an accounting to which Defendants are not entitled pursuant to the Declaration, the Bylaws, or the Common Interest Ownership Act, Conn. Gen. Stat. § 47-200 et seq. "
The court notes that many of the allegations of improper motivation are apparently based on positions that one or both of the plaintiffs took during settlement negotiations. It is very doubtful that evidence of such positions can be considered by the trial court. See Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 198, 602 A.2d 1011 (1992). However, in considering the motion to strike, a court does not make factual findings. Instead, the court is charged only with determining the legal sufficiency of the pleading in question. See Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005). The court finds that the allegations of the counterclaim sufficiently allege that the plaintiffs used legal processes in an improper manner or to accomplish a purpose for which they were not designed. The court accordingly finds that the plaintiffs' first ground for striking the counterclaim is insufficient because the defendant's claim was sufficiently pleaded.
SECOND GROUND--THE COUNTERCLAIM IS PREMATURE BECAUSE THE UNDERLYING LITIGATION IS STILL PENDING
" [A]n abuse of process requires the plaintiff to show (1) the defendant instituted legal proceedings or process against the plaintiff and (2) the defendant used the proceedings primarily to obtain a wrongful purpose for which the proceedings were not designed." (Internal quotation marks omitted.) Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 191, 117 A.3d 876 (2015).
In the memorandum of law filed in support of the motion to strike, the plaintiffs rely on the Supreme Court's holding in Larobina v. McDonald, 274 Conn. 394, 876 A.2d 522 (2005), in which the court affirmed the decision of the trial court to strike the plaintiff's claim that the defendants had abused process in a still pending mortgage foreclosure action. The Supreme Court noted that " most of the acts alleged by the plaintiff in support of his abuse of process claim did not involve a judicial procedure, and, therefore, as a matter of law, do not support an abuse of process claim. With respect to the acts that involved the use of judicial power, namely [the defendant's] request to the trial court in the first action for an extension of time, the removal of the first action to federal court and the motion for a mandatory settlement conference to which First Union allegedly failed to send a representative with settlement authority, we conclude that the abuse of process claim is premature." (Footnote omitted.) Larobina, supra, 407.
" Vexatious litigation claims may not be brought until the underlying action that is the source of the alleged misconduct has concluded. [U]nder Connecticut law, a counterclaim alleging vexatious litigation may not be brought in the same action as that which the defendant claims is vexatious . . . In suits for vexatious litigation, it is recognized to be sound policy to require the plaintiff to allege that prior litigation terminated in his favor. This requirement serves to discourage unfounded litigation without impairing the presentation of honest but uncertain causes of action to the courts . . . This favorable termination requirement is an essential element of a vexatious litigation claim.
Similarly, the tort of abuse of process also provides a cause of action against the improper use of the judicial system. An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . .
" Although abuse of process claims do not include favorable termination as an essential element, the cause of action is still considered premature until the underlying litigation has been completed. In Larobina, our Supreme Court concluded that an abuse of process claim was properly dismissed as premature when the underlying action was still pending . . . In reaching this conclusion, the court stated: Although we do not suggest that success in the first action would be a prerequisite for an abuse of process claim . . . it is apparent that the eventual outcome of that action and the evidence presented by the parties therein would be relevant in litigating an abuse of process claim . . . Moreover, allowing the [abuse of process] claim could . . . effectively chill the vigorous representation of clients by their attorneys." (Citations omitted; emphasis altered; internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 158 Conn.App. 176, 183-85, 118 A.3d 158 (2015).
In this case, where the defendant's allegations of improper purposes is based in large part on positions taken during settlement negotiations, it is particularly important that the issues in the plaintiffs' underlying case be determined prior to any determination as to whether the positions taken by one or both the plaintiffs during settlement negotiations can be considered on the issue of improper purpose. The court finds that the issues raised by the counterclaim are, under the circumstances, premature and, accordingly, grants the plaintiffs' motion to strike the defendant's counterclaim on the second ground.