Opinion
FBTCV156048244
04-25-2016
Sacred Heart University v. Joseph Voll et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #105
Michael P. Kamp, J.
The motion before the court is a motion to strike filed by the defendants, Joseph Voll and Fitness 4000, LLC (Fitness), against the first and second counts of the revised complaint filed by the plaintiff, Sacred Heart University, Inc., on the grounds that the plaintiff has failed to sufficiently plead a cause of action for either abuse of judicial process (count one) or vexatious litigation (count two) against either of the defendants, and that the plaintiff's revised complaint should be stricken in its entirety.
FACTS
On January 30, 2015, the plaintiff commenced this action by service of process of its complaint on the defendants. The plaintiff filed a revised complaint--the operative pleading in this matter--on May 1, 2015. As it stands, the plaintiff alleges two counts in the revised complaint, the first for abuse of process, and the second for vexatious litigation. Each count is directed against both of the defendants. In support of its claims, the plaintiff alleges the following facts.
On July 15, 2013, Park Ave., LLC (Park), a nonparty, sold a property in Bridgeport (premises) to the plaintiff pursuant to the terms of a sale agreement (agreement). The defendant, Fitness, is an entity wholly owned by Park, and at the time of the sale, was a tenant on the premises. Voll is the sole member of Fitness, completely controlled Fitness, and is indistinguishable from Fitness. Under the terms of the agreement, Fitness was permitted to continue operating on the premises, now owned by the plaintiff, under a month to month tenancy subject to two important caveats. First, Fitness' tenancy was terminable by either the plaintiff or Fitness upon 90 days written notice, and, second, if Fitness remained on the premises for more than six months after the closing, Fitness would pay $20,000 per month in rent to the plaintiff. On July 16, the plaintiff provided Fitness with a 90-day notice in writing that its tenancy would be terminated. Fitness failed to leave within the 90-day timeframe.
Thereafter, the plaintiff began the eviction process. In October of 2013, the plaintiff served a notice to quit possession on Fitness that required Fitness to leave the premises by November 30. Fitness refused to leave, and accordingly, the plaintiff commenced a summary process action against Fitness in December to ensure the removal of Fitness. Judgment was entered in that summary process action in favor of the plaintiff on March 11, 2014, and from that judgment, Fitness filed an appeal to the Appellate Court on March 17. After the adverse ruling in the summary process action against Fitness, Voll posted a notice on the premises directed to the plaintiff that read: " I have been in constant court battles trying to fulfill my obligation to you and remain open. Unfortunately, the decision was not in my favor." Fitness then filed a variety of motions with the court in an attempt to stay the execution of the judgment pending the outcome of its appeal. The court (Rodriguez, J.) noted that the appeal filed by Fitness " was taken solely for delay, " and denied Fitness' motions for a stay, thereby evicting Fitness from the premises notwithstanding the outstanding appeal. On August 21, 2014, the plaintiff moved to dismiss the appeal filed by Fitness as moot, given that Fitness had already been evicted from the premises, and the Appellate Court dismissed the appeal on October 8.
After its eviction, Fitness filed two actions in the housing session at Bridgeport against the plaintiff. Both of the actions brought by Fitness pertain to the plaintiff's alleged interference with Fitness' possessory interest in the premises. While these actions have not yet been resolved, the plaintiff alleges that they are meritless, retaliatory, and brought by Fitness for the improper purpose of delaying the plaintiff from taking possession of the premises and to avoid Fitness' rent obligations under the agreement. Accordingly, the defendants' efforts constitute an abuse of the judicial process and vexatious litigation, and the plaintiff has suffered damages including lost rent, legal fees, and denial of access to the premises.
On June 1, 2015, the defendants filed a motion to strike counts one and two as they pertain to Voll, and the same as they pertain to Fitness. The defendant advances three grounds in support of its motion: (1) Voll has not been alleged to have been a party to any of the conduct detailed in the complaint, and the facts alleged by the plaintiff are not sufficient to pierce the corporate veil such that Voll could be held personally liable for the conduct of Fitness; (2) the plaintiff has not stated a claim for abuse of process in count one because the plaintiff has not alleged that Fitness had any ulterior motive for any of its filings that was unrelated to the purpose for which the filings were designed; and (3) the plaintiff has not stated a claim for vexatious litigation against Fitness because the two actions brought by Fitness against the plaintiff have not yet resolved, and the oniy other alleged action that could form the basis for an abuse of process claim, the appeal, was dismissed without a favorable resolution in the plaintiff's favor. The defendants' motion is accompanied by a memorandum of law. The plaintiff filed its objection to the defendants' motion on July 1, 2015. This matter was heard at short calendar on January 4, 2016.
Under our rules of practice, the defendants should have sought to separate counts one and two into four counts--two against each individual defendant--by way of a request to revise prior to filing this motion to strike. A line of Superior Court decisions have denied a defendant's motion to strike counts that are directed at multiple defendants on this basis alone, however, some Superior Court cases have allowed the defendants' motion to proceed notwithstanding the absence of the preferred request to revise when the issue was not raised by the plaintiff in its objection to the defendant's motion. See David Fuhrer Enterprises, Inc. v. Add the Flavor, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-13-6018002-S, (October 9, 2013, Adams, J.T.R.) (noting defendants' failure to separate plaintiff's counts against multiple defendants by request to revise, discussing split in Superior Court authority, and considering merits of defendants' motion to strike). In this case, the court is persuaded by those Superior Court decisions which have considered a defendants' motion to strike under similar circumstances, particularly given the fact that the plaintiff has not raised the issue in its objection. The court's conclusion is further bolstered by the fact that in this case, as the court will explain in this memorandum, the plaintiff's claims in counts one and two either succeed or fail as to both defendants, such that there is not a separate outcome for either defendant under either count.
DISCUSSION
" 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). " [A] a motion to strike . . . requires no factual findings by the trial court . . . [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 notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " 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.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court will address each of the three grounds advanced by the defendants in support of their motion, and the parties' arguments pertaining to them, in turn.
I. The Plaintiff's Claims Against Voll in his Personal Capacity
First, apart from challenging the merits of the plaintiff's claims, the defendants seek to strike both counts of the plaintiff's amended complaint to the extent that the plaintiff seeks to hold Voll personally liable for the conduct of Fitness. The defendants assert that the motions filed in opposition to the plaintiff's summary process action, the appeal taken from the outcome of that action, and the two actions filed against the plaintiff were all acts by Fitness, not Voll. The defendants contend that Voll has not personally commenced an action or made a claim against the plaintiff, and that accordingly, Voll could only be liable to the plaintiff in the event that the plaintiff had sufficiently pleaded allegations to support piercing the corporate veil of Fitness. The defendants argue that the plaintiff's complaint fails to allege sufficient facts to pierce the corporate veil under either the instrumentality or the identity rules, based on the thorough analysis of those doctrines conducted by the Superior Court in Ward v. RAK Construction, LLC, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-09-5010067-S, (April 7, 2010, Bellis, J.) (surveying decisions employing either doctrine to pierce corporate veil), such that Voll could be personally liable for the conduct of Fitness.
In response, the plaintiff argues that it has sufficiently pleaded the personal liability of Voll for the actions of Fitness based on the Appellate Court's recent decision in Joseph General Contracting, Inc. v. Couto, 144 Conn.App. 241, 250-52, 72 A.3d 413 (2013), rev'd in part, 317 Conn. 565, 119 A.3d 570 (2015) (Couto I) . The plaintiff asserts that the Couto decision has relaxed the standard for piercing the corporate veil of an LLC, such that allegations which assert an individual's participation in an act to be something beyond mere membership in an LLC are sufficient to allege a cause of action for a corporate officer's personal liability. The plaintiff notes that it has alleged that Voll completely controlled Fitness, and that Voll, in a note posted to the premises, admitted his primary role in directing Fitness' litigation strategy. The plaintiff contends that under the Couto analysis, its allegations are sufficient to implicate Voll's personal liability for the conduct of Fitness.
As a threshold matter, the court notes that the portion of the Appellate Court's decision in Couto that the plaintiff relies upon, which advanced the " joint action" theory for piercing the corporate veil of an LLC, is no longer good law. See Joseph General Contracting v. Couto, 317 Conn. 565, 577, 119 A.3d 570 (2015) (Couto II ) (" [t]he trial court and the Appellate Court did not cite any authority for this 'joint action' theory of liability. We disagree with the notion that proving 'joint action' between an entity and one of its owners and officers is the basis for finding [personal] liability"). More importantly, however, despite the parties' arguments to the contrary, a corporate veil analysis has no bearing on the sufficiency of the plaintiff's claims in this case because the plaintiff has alleged that Voll, through his entity, Fitness, engaged in tortious conduct.
It is well settled that when a plaintiff has alleged that a defendant agent has used the corporate form to commit a tort against the plaintiff, that agent may be exposed to personal liability notwithstanding the agent's use of the corporate form. " [A]n 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 acts on behalf of his principal or corporation, he is liable to third persons injured thereby . . . Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort." (Emphasis added; internal quotation marks omitted.) Cohen v. Roll-A-Cover, LLC, 131 Conn.App. 443, 468, 27 A.3d 1, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011). As recently as Couto II, our Supreme Court reaffirmed the potential for a corporate officer to become personally liable for his or her torts committed on behalf of or through the corporation. See Couto II, 317 Conn. 584 (noting previous decisions recognizing personal liability for tortious conduct by officer of corporation and extending principles to unfair trade practice claims against corporate officers and agents in certain circumstances).
Although decisions from our state have not used the same terminology, the theory underlying an agent or officer's personal liability for the torts he or she commits on behalf of a corporation is the same theory recognized by other jurisdictions as the " participation theory" of liability. See, e.g. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983) (" [u]nder the participation theory, the court imposes liability on the individual as an actor rather than as an owner. Such liability is not predicated on a finding that the corporation is a sham and a mere alter ego of the individual corporate officer. Instead, liability attaches where the record establishes the individual's participation in the tortious activity"); Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 788 A.2d 268 (2002) (" under the participation theory, the essential predicate for application of the theory is the commission by the corporation of tortious conduct, participation in that tortious conduct by the corporate officer and resultant injury to the plaintiff"). In this case, because the plaintiff's abuse of judicial process and vexatious litigation claims are both causes of action sounding in tort; see MacDermid, Inc. v. Leonetti, 310 Conn. 616, 631, 79 A.3d 60 (2013); the plaintiff may properly assert causes of action against Voll in his personal capacity under the participation theory of liability if the plaintiff has sufficiently pleaded Voll's personal involvement in the alleged tortious conduct of Fitness.
A review of the allegations of the plaintiff's complaint reveals that the plaintiff's claims are not subject to the defendants' motion to strike on the basis that the plaintiff has not sufficiently pleaded Voll's personal liability. In this case, the causes of action alleged by the plaintiff are based on the litigation strategy undertaken by Fitness in response to the plaintiff's summary process action. Voll has been alleged to be the sole member of Fitness, which gives rise to the inference that Voll is responsible for directing the conduct of Fitness. This allegation, when combined with the plaintiff's reference to the note Voll provided to the plaintiff regarding his personal participation in " court battles" against the plaintiff, is sufficient for the plaintiff to assert claims against Voll in his personal capacity. The plaintiff has pleaded that Voll directed the litigation strategy of Fitness, thereby using the corporate form to engage in tortious conduct against the plaintiff. Accordingly, counts one and two as to Voll are not subject to the defendants' motion to strike on that ground.
II. The Plaintiff's Abuse of Judicial Process Claim Against the Defendants in Count One
Next, the defendants challenge the merits of the plaintiff's allegations as to abuse of judicial process in count one. The defendants contend that the touchstone for an abuse of process claim under our Supreme Court's decision in Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987), is a party's use of legal process to accomplish a result that could not be achieved through the proper use of judicial process. In other words, the defendants assert, the primary purpose behind the use of legal process by one who may be liable for its abuse must be the use of legal process to accomplish a purpose unrelated to the underlying action. In this case, the defendants argue that the actions taken by the defendants in opposition to the plaintiff's summary process, and those taken afterwards, were used as they were designed--to oppose the plaintiff's attempts to evict the defendant and to seek redress for that eviction--and that the plaintiff has not alleged any other improper purpose to support its claim against the defendants.
In reply, the plaintiff argues that every action taken by the defendants, from the defendants' motion practice, to the defendants' filing of the summary process appeal and their assertion of claims against the plaintiff, was frivolous and used as a delay tactic against the plaintiff. Specifically, the plaintiff insists that the legal strategy employed by the defendants was used solely for the purposes of (1) preventing the plaintiff from taking possession of the premises, and (2) avoiding the defendants' rent obligations to the plaintiff. The plaintiff contends that under Mozzochi, employment of legal process to assert frivolous claims and defenses against a party constitutes an improper purpose that substantiates an abuse of judicial process claim, and accordingly, the plaintiff's abuse of judicial process claim against the defendants should be allowed to stand.
" 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 . . . [T]he addition of 'primarily' is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, supra, 204 Conn. 494.
In Mozzochi, our Supreme Court affirmed the trial court's decision to strike the plaintiff's claim for abuse of judicial process that was based on the defendant's litigation strategy against the plaintiff in a prior case. Id., 491. The plaintiff had alleged that the defendant had undertaken frivolous amendments to its pleadings and had pursued an action against the plaintiff despite the fact that the defendant knew his action was meritless. Id., 493. In affirming the trial court's decision to strike the plaintiff's claim, our Supreme Court explained: " it is useful to note . . . what the [plaintiff's] complaint does not allege. There is no claim that the defendants undertook any action outside of the normal course of proceedings in the [underlying] case itself. For example, there is no claim that the defendants used the pleadings or the process in the [underlying] case as leverage to coerce the plaintiff to pay a debt or surrender property unrelated to that litigation . Similarly, there is no claim that the defendants used unreasonable force, excessive attachments, or extortionate methods to enforce the right of action asserted in the [underlying] case. Finally, there is no claim that the defendants' purpose in pursuing the [underlying] case was to gain any collateral advantage extraneous to its merits . The only injury of which the plaintiff complains is that the defendants improperly continued to pursue the [underlying] case in order to enrich themselves . . . at the plaintiff's expense." (Emphasis added.) Id., 493-94. Against this backdrop, the Mozzochi court held that " [t]he [plaintiff's complaint] in no way distinguishes between the costs and benefits ordinarily associated with the pursuit of litigation and the burdens that the defendants in this case allegedly improperly inflicted upon the plaintiff . . . [Thus], the plaintiff failed to state a cause of action for abuse of process." Id., 497-98.
The court is of the opinion that Mozzochi supports the defendants' positon more than the plaintiff's in this case. The plaintiff's allegations are analogous to those that were before the court in Mozzochi when it affirmed the trial court's decision to grant a defendant's motion to strike. The plaintiff has alleged that the measures taken by the defendants in connection with the plaintiff's summary process action were " maliciously calculated to frustrate the [plaintiff's] efforts to take possession of the [p]remises, and to delay or avoid paying rent that was owed to [the plaintiff]." Even assuming the truth of that allegation with regards to the defendants' intent, however, the plaintiff has not alleged that the defendants' actions were taken for purposes unrelated to the defendants' eviction, or in order to gain leverage in a collateral dispute with the plaintiff. Put another way, a defendant who opposes a summary process action, by nature of the adversarial process, is usually attempting to frustrate the plaintiff's efforts to take possession of the premises or in some cases attempting to avoid the payment of rent to the plaintiff. In this case, even if it is assumed that the defendants had a dubious defense to the plaintiff's summary process action, or the defendants' actions commenced against the plaintiff are meritless, that is not indicative of the improper use of the judicial process for purposes of an abuse of process claim. The import from Mozzochi is that the relevant inquiry is whether the defendant used the judicial process for some ulterior motive unrelated to the action at hand, not whether the defendants' methods to oppose were weakly supported or otherwise lacking in merit. Accordingly, the defendants' motion to strike the plaintiff's abuse of process claim in count one against both defendants is granted.
III. The Plaintiff's Vexatious Litigation Claim Against the Defendants in Count Two
Lastly, the defendants move to strike the plaintiff's vexatious litigation claim, asserted against both defendants in count two, on the ground that the plaintiff has not pleaded that any action instituted by the defendants against the plaintiff has resulted in a favorable termination for the plaintiff a necessary prerequisite to a ripe vexatious litigation claim regardless of whether the plaintiff seeks to assert its cause of action under General Statutes § 52-568 or at common law. The defendants note that the actions that the defendants have commenced against the plaintiff are still outstanding, and that the only other action alleged in the plaintiff's complaint that could support a vexatious litigation claim--the appeal filed by the defendants from the trial court's decision in the summary process action--was dismissed, and therefore, similarly did not result in a favorable termination. Although asserted as an argument against the sufficiency of the plaintiff's pleadings in the defendants' motion to strike, the defendants' arguments appear to challenge the ripeness of the plaintiff's claim in count two, and are more properly characterized as a challenge to this court's subject matter jurisdiction.
General Statutes § 52-568 provides: " Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and 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 treble damages."
While matters of jurisdiction are generally addressed in a motion to dismiss, the issue of subject matter jurisdiction may be raised at anytime. See, e.g., Gramercy Advisors, LLC v. BDO USA, LLP, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 13-6020625-S (February 22, 2016, Lee, J.) (characterizing defendant's challenge to plaintiff's claim in motion to strike as one of ripeness, and dismissing rather than striking plaintiff's claim).
In response, the plaintiff concedes that the only action relevant to its vexatious litigation claim is the defendants' filing of the summary process appeal, and that the other allegations regarding the defendants' conduct were included by the plaintiff to adequately plead the requisite intent on the part of the defendants. Nevertheless, the plaintiff argues that its vexatious litigation claim is ripe because the dismissal of the defendants' summary process appeal by our Appellate Court is equivalent to a favorable termination for purposes of a vexatious litigation claim. Therefore, the plaintiff asserts that its vexatious litigation claim in count two has been sufficiently pleaded and is likewise ripe.
" The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages . . . In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. Both the common law and statutory causes of action [require] proof that a civil action has been prosecuted . . . Additionally, to establish a claim for vexatious litigation at common law, one must prove want of probable cause, malice and a termination of suit in the plaintiff's favor . . . The statutory cause of action for vexatious litigation exists under § 52-568, and differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages . . . In the context of a claim for vexatious litigation, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." (Citations omitted; footnote omitted; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553-54, 944 A.2d 329 (2008).
" Notwithstanding our recitation of the term ' favorable termination' (emphasis added) in [our prior decisions] . . . we have never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long as the proceeding has terminated without consideration." (Citations omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 251, 597 A.2d 807 (1991). Relying on DeLaurentis, a Superior Court held that the plaintiff had sufficiently pleaded a vexatious litigation claim based upon a prior action brought by the defendant that had been voluntarily dismissed, and denied the defendant's motion to strike. See Orgera v. Tarzia, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-11-6010464-S (February 10, 2012, Adams, J.T.R.) . Similarly, another Superior Court denied a defendant's motion for summary judgment against a plaintiff's vexatious litigation action, and held that dismissal of a defendant's prior action for defective notice was sufficient to constitute a favorable termination for the purposes of the plaintiff's vexatious litigation claim. See Taylor v. Convent of St. Birgitta, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-98-0164709-S, (September 8, 2000, Karazin, J.).
In its revised complaint, the plaintiff has pleaded that the summary process appeal filed by the defendants was dismissed on motion of the plaintiff, and the plaintiff has not pleaded that this dismissal was secured by providing consideration to the defendants. Dismissal of an action without a settlement is considered a favorable termination under our vexatious litigation jurisprudence. Thus, the plaintiff has sufficiently pleaded that the summary process action has been subject to a favorable termination, such that the plaintiff's vexatious litigation action based on the defendants' appeal is both adequately pleaded and ripe for adjudication. Accordingly, the defendants' motion to strike count two is denied as to both defendants.
CONCLUSION
Therefore, the defendants' motion to strike count one of the plaintiff's complaint, alleging abuse of process against the defendants, is granted as to both defendants, and denied against count two, alleging vexatious litigation, as to both defendants.