Opinion
No. CV 01 0075380 S
February 2, 2007
MEMORANDUM OF DECISION ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT STATEMENT OF THE CASE
The plaintiffs, Shelton Yacht and Cabana Club, Inc., doing business as Pinecrest County Club (Pinecrest), and Jonathan Zuckerman, instituted this action by a summons and complaint having a return date of September 4, 2001. Zuckerman is the liquor permittee and sole stockholder of Cabana and is the company's chief operating officer. The defendants are Robert A. Voccola, John Hubyk, Richard Arsenault and the city of Shelton (city). Voccola is the city's chief of police and Hubyk and Arsenault are city police officers. On December 21, 2001, the plaintiffs filed a revised seven-count complaint. On May 3, 2006, the plaintiff's withdrew counts four, five and six only as to the city and withdrew count seven as to all the defendants.
The first count of the revised complaint alleges violation of 42 U.S.C. § 1983 based on the claim that the defendants deprived the plaintiffs of their rights under the first and fourteenth amendments of the United States Constitution. In paragraph 25 of the first count, the plaintiffs allege that the individual defendants, acting under the color of state law and with the authority of the city, "intentionally, negligently and with complete and deliberate indifference for the plaintiffs' rights," engaged in a policy of harassing the plaintiffs in order to put the Pinecrest facility out of business, and that they eventually conspired with the chief state's attorney's office to commence a statutory public nuisance action against the plaintiffs pursuant to General Statutes § 19a-343 (public nuisance action). According to the revised complaint, the defendants' actions deprived the plaintiffs of their rights to equal protection of the laws, deprived the plaintiffs and their customers of their rights to peacefully assemble, placed a prior restraint on the rights of plaintiffs and their customers to freedom of speech, and intentionally caused adverse and false publicity to be generated about the plaintiffs. This conduct caused the plaintiffs to incur legal fees and to lose business income, reputation and good will.
42 U.S.C. § 1983 provides the following in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ."
See State v. Zuckerman, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 01 0074184 (June 20, 2001, Arnold, J.) [30 Conn. L. Rptr. 426].
In the first count, the plaintiffs have also joined various common law tort claims with their constitutional claims. The plaintiffs allege "tortious behavior under Connecticut law, including vexations suit, abuse of process, interference with contract rights and financial expectations, trade libel and damages resulting from acts committed pursuant to a formed conspiracy." Revised Complaint, ¶ 1. Although indicated by the rules of practice, the plaintiffs neither separate these varied causes of action into separate counts, nor identify what specific facts support each particular cause of action. See Practice Book § 10-1 and § 10-26. The defendants filed a request to revise, but the request did not seek revision of the complaint as to these issues.
The second count of the revised complaint is against Voccola alleging that he violated the plaintiffs' rights under the first and fourteenth amendments of the constitution. Although not expressly asserted, this count also appears to be based on § 1983. This count alleges that Voccola, acting as chief of police and under color of law, "intentionally and negligently and with complete and deliberate indifference" to plaintiffs' first and fourteenth amendment rights failed to properly supervise the conduct of officers Hubyk and Arsenault, approved or condoned the police department's policy of harassing and intimidating the plaintiffs, and approved or condoned the commencement of the public nuisance suit.
The third count is against the city of Shelton. In this count, too, the plaintiffs do not expressly state what legal theory their claim is based on, but it again appears to be § 1983. In this count, the plaintiffs allege that the city, acting under the color of law, "intentionally, negligently, and with complete and deliberate indifference to plaintiffs' rights, authorized, permitted and tolerated the custom or practice of the unconstitutional and excessive use of the police department to harass and intimidate the plaintiffs and their customers." Specifically, the plaintiffs allege that the city failed to restrain the harassment, failed to require Voccola to treat the plaintiffs fairly and equally, and failed to correct the police department's policy of treating Pinecrest as a nuisance.
The fourth count is a claim by Zuckerman only for intentional infliction of emotional distress asserted against all the defendants. The fifth count is asserted by both plaintiffs against all the defendants alleging that the institution of the public nuisance action constituted an abuse of process. Finally, in the sixth count, the plaintiffs allege that the defendants' conduct in initiating the public nuisance action constituted negligence.
On July 16, 2002, the defendants filed an answer and six special defenses. On September 13, 2005, the defendants filed a motion for summary judgment, a memorandum of law in support as required by Practice Book § 11-10(5), and a copy of Zuckerman's deposition. On January 3, 2006, the plaintiffs filed a memorandum in opposition, accompanied by an affidavit from Zuckerman. The defendants filed a reply, accompanied by a copy of the plaintiffs' answers to defendants' second set of interrogatories.
The first special defense alleges that the defendants' actions were objectively reasonable and that the defendants "enjoy qualified immunity from liability." The second special defense alleges that the defendants did not violate any clearly established constitutional or statutory right and that they are entitled to both "qualified and absolute immunity." The third special defense asserts that the plaintiffs' common law claims are barred by "governmental immunity." The fourth special defense denies that any actions of the defendants proximately caused Zuckerman's emotional distress. The fifth special defense states that the city cannot be held vicariously liable for the alleged acts of the individual defendants. The sixth special defense claims that under General Statutes § 52-577n, governmental immunity bars liability against the city for the intentional acts of its employees.
The plaintiffs attached the following documents to Zuckerman's second affidavit: a photocopy of a police report dated May 19, 1996; a photocopy of a letter dated June 30, 1996 to Zuckerman regarding one of the alleged incidents of harassment; and a photocopy of a letter dated April 16, 1998 from a Shelton police lieutenant to the liquor control commission. The defendants objected to Zuckerman's second affidavit on the ground that the plaintiffs had not received leave from the court to file the affidavit. This objection was overruled.
On May 23, 2006, the defendants filed an objection to Zuckerman's second affidavit. In an order issued on September 14, 2006, the court directed the parties to file additional memoranda on two issues. First, the parties were requested to address whether Zuckerman had standing to assert a cause of action under § 1983 in his capacity as the "permittee of the liquor permit for the premises [owned by Cabana] and the sole stockholder of Cabana." The parties were also requested to address more specifically exactly what constitutional right was allegedly violated by the filing of the nuisance abatement action as alleged in the revised complaint. These supplemental briefs were filed in October 2006. For the following reasons, the defendants' motion for summary judgment is granted as to count four and is denied as to counts one, two, three, five and six.
DISCUSSION
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).
"An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229-30, 899 A.2d 738 (2006).
A Procedural Issues
The court will first address certain procedural issues raised by the defendants' motion. The plaintiffs contend that the motion for summary judgment must be denied because the defendants have not filed a supporting affidavit. This argument is rejected. Although affidavits are often ideal, a motion for summary judgment may be properly supported by documents other than affidavits. See Practice Book § 17-45 ("A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.")
The next procedural issues emanate from the multiple causes of action asserted by the plaintiffs in each count of the revised complaint (particularly in count one which, in turn, is incorporated fully or partially into all the other counts). For example, as previously indicated, the first count of the complaint joins constitutional claims with common-law tort claims, and these claims are further confounded with joint allegations of negligent and willful conduct. The defendants argue that summary judgment should be granted in their favor as to the entire complaint because of the conflicting allegations and disparate causes of action asserted in each count of the complaint. In short, these defendants seek summary judgment because the plaintiffs have improperly pleaded multiple claims in individual counts of the complaint. See Practice Book § 10-21 and § 10-26. Although the rules of pleading are important and should be followed, there is no authority for the defendants' argument. The legal sufficiency of a cause of action is not defeated merely because it is joined with another claim in a single count. The appropriate way to address this procedural problem is through a request to revise, not a dispositive motion such as a motion for summary judgment. See generally, Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988) (as "there is nothing to prevent . . . two possible causes of action from being joined in the same [count] complaint . . . the proper way to cure any confusion [regarding the complaint] is to file a motion to revise, not a motion to strike.")
The next issue is that because of the multiplicity of claims asserted by the plaintiffs in each count, the defendants have proceeded to seek summary judgment separately as to specific claims within a single count. For example, as previously discussed, the defendants seek summary judgment as to particular paragraphs of count one, two and three, and even as to particular subparagraphs of these counts. The case law is conflicting on the availability of summary judgment based on a motion only addressing part of a single count of a complaint. See generally, Electrical Contractors, Inc. v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 0831259 (March 17, 2006, Scholl, J.); Pelletier v. Sordoni/Skanska Co., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 95 0155184 (May 5, 2005, Alander, J.). The court gleans the following principles from this case law. First, summary judgment cannot be entered as to an entire count when the count contains multiple causes of action and all of them are not addressed as part of the judgment. Telesco v. Telesco, 187 Conn. 715, 718-19, 447 A.2d 752 (1982). Second, summary judgment is unavailable as to particular allegations in a count when such an adjudication does not dispose of an entire cause of action. Electrical Contractors, Inc. v. Hartford, supra. Third, summary judgment may be entered as to a single cause of action within a count containing multiple claims when the allegations are sufficiently distinct and discrete so that this cause of action can be severed from the remaining claims. Thus, in this last situation, it must be "practical to enter final judgment with respect to that part of the claim for which summary judgment is sought and sever it from the remainder of the claim." Pelletier v. Sordoni/Skanska Co., supra; contra, Cave v. Farm Family Mutual Insurance Co., No. CV 95 0125978, Superior Court, judicial district of Waterbury, (Dec. 31, 1996, Vertefeuille, J.)
B Substantive Claims I Zuckerman's Standing
The court, sua sponte, raised a jurisdictional issue which will be addressed next. Most of the alleged, wrongful acts supporting the plaintiffs' § 1983 claims were committed only against the corporate plaintiff, Cabana, and the law is established that Zuckerman, as a shareholder of Cabana, does not have standing to assert a § 1983 action on behalf of this corporation. Ramirez v. Alequin, 357 F.Sup. 201 (D.P.R. 2006). Nevertheless, all the allegations do not solely involve Cabana. Furthermore, the complaint does not clearly or fully identify whether the defendants' acts were committed against one or both of the plaintiffs. For example, a focus of the complaint is the institution of the public nuisance action, and both plaintiffs were named as defendants in that action. In the context of a summary judgment motion, the allegations of the complaint should be viewed in a manner most favorable to the plaintiffs. Although the factual allegations supporting the § 1983 claims of Zuckerman and Cabana are not clearly differentiated, there are allegations involving both plaintiffs. Because Zuckerman asserts facts involving himself which are not solely premised on claims of the corporation, the court concludes that it has jurisdiction over Zuckerman's § 1983 claims.
2 Qualified Immunity under § 1983
The defendants Voccola, Hubyk and Arsenault seek summary judgment as to count one of the revised complaint and Voccola seeks summary judgment as to count two on the ground that they are entitled to qualified immunity as to the plaintiffs' constitutional claims. The city contends that because these defendants are entitled to summary judgment as to the first two counts, it is entitled to summary judgment as to the third count because the claims of the third count are derivative of the claims of these earlier counts.
Our Supreme Court has recognized, "a claim for qualified immunity from liability for damages under § 1983 raises a question of federal law . . . and not state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials." (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, 230 Conn. 735, 742-43, 646 A.2d 152 (1994). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), "the [United States Supreme Court] formulated an objective standard for immunity from liability under § 1983 . . . `We . . . hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have . . .' Harlow v. Fitzgerald, supra, 457 U.S. 817-18. Furthermore, `[e]ven where the law is clearly established and the scope of an official's permissible conduct is clearly defined, the qualified immunity defense also protects an official if it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful.' Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987) . . . In sum, federal qualified immunity shields a public official performing discretionary acts from liability if the law was not clearly established at the time of the performance of his or her conduct, or, in the case of clearly established law, it was objectively reasonable for the public official to believe that his or her acts were lawful in light of the clearly established law." (Citations omitted.) Schnabel v. Tyler, supra, 230 Conn. 746-47.
Specifically as to police officers, the court has stated "[a]s a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." (Internal quotation marks omitted.) Crone v. Connelly, 74 Conn.App. 788, 798, 813 A.2d 1084 (2003), aff'd., 267 Conn. 581, 840 A.2d 552 (2004), citing, inter alia, Ham v. Greene, 248 Conn. 508, 519-20, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S.Ct. 326, 145 L.Ed.2d 254 (1999).
As previously stated, the first issue in evaluating the defendants' qualified immunity defense is whether the defendants' alleged conduct violated clearly established statutory or constitutional rights. The court directed the parties to file supplemental briefs on this issue because the complaint is unclear as to the exact constitutional rights allegedly violated and neither party squarely or fully addressed this issue in their initial memoranda. The plaintiffs' response may be summarized as follows. The plaintiffs contend that there existed a policy of the city and its police department to harass the operation of the Pinecrest and to drive it out of business based on a view that its functions were noisy, overcrowded and unruly. To pursue this policy, the defendants either engaged in or allowed excessive or harassing police enforcement activity and the institution of the public nuisance action. The plaintiffs argue that these actions violated their first amendment right of freedom of speech and assembly and their fourteenth amendment right of equal protection.
In support of their first amendment claim, the plaintiffs rely on Heimbach v. Village of Lyons, 597 F.2d 344 (2d Cir. 1979). In Heimbach, the plaintiffs alleged that village officials took illegal actions against the plaintiffs to evict them from their homes for redevelopment purposes. To further this goal, the officials allegedly violated the plaintiffs' first amendment rights, including their rights to freedom of speech and to assemble, through a series of harassments and illegal evictions and arrests. The District Count dismissed the complaint, concluding that the defendant officials were entitled to qualified immunity. The Court of Appeals, accepting the truth of the complaint's allegations of bad faith, reversed. In the present case, the plaintiffs argue that the revised complaint alleges intentional, bad faith actions sufficient to withstand summary judgment under the Second Circuit's reasoning in Heimbach.
In response, the defendants make two arguments. The first is that other than the public nuisance complaint, the plaintiffs have not identified "one single act by any of the individual defendants that constitute this claim of continued harassment" (Defendants' Responsive Memorandum, p. 5). However, the plaintiffs contest this position and describe some events involving these defendants in Zuckerman's affidavit and the plaintiffs' responses to interrogatory responses. The defendants have not responded to these claims through affidavits or any other admissible evidence to support their claim that they were not involved in these events.
The defendants correctly note that most of the events described by the plaintiffs are outside the three-year statute of limitations of General Statutes § 52-577 governing claims for violation of § 1983. See Williams v. Walsh, 558 F.2d 667 (2d Cir. 1977). The defendants concede, however, that at least some of these incidents occurred within this limitation period.
The defendant officers' second argument appears to be that even assuming arguendo the violation of a clearly established constitutional right under the first amendment, they are nevertheless entitled to qualified immunity because under the circumstances, their actions were objectively reasonable. Memorandum of Law dated September 8, 2005, p. 11. The defendants base this argument on their contention that there is no dispute that none of them misled or lied to the state's attorney when information was provided to her regarding the initiation of the public nuisance action. However, the accuracy and credibility of the information provided to the state's attorney appear to be very much at issue in this case, and in turn, a factual determination of these issues is critical to a determination of the defendants' qualified immunity claims. See generally Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). ("[Q]ualified immunity shields [police officers] from suit for damages if a reasonable officer believed [the arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.") Qualified immunity does not provide protection for knowing or intentional violations of clearly established constitutional rights. See Malley v. Briggs, 475 U.S. 335, 341, 1068, Ct. 1092, 89 L.Ed.2d 271 (1986) ("As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.").
For example, in the public nuisance action the court discussed the evidence offered by the state to prove that there were a sufficient number of arrests or arrest warrants involving Pinecrest to satisfy the criteria necessary to establish a nuisance under General Statutes § 19a-343. The court stated the following:
No evidence was ever established for any arrests or issuance of arrest warrants for the criminal activities specified in the General Statute [§ 19a-343], other than the four arrests which occurred on July 29 and July 30, 2000. This is despite the allegation in [the state's] complaint which stated that the Shelton Police, over the past several years, had received numerous calls for drug possession, robberies, assaults, intoxicated individuals, motor vehicle accidents and violations requiring the assistance of surrounding police departments and the State Police Riot Control. These allegations against [Zuckerman and Cabana] were also repeated in the sworn affidavit signed by Officer Hubyk pursuant to General Statute § 19a-343a(2).State v. Zuckerman, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 01 0074184 (June 20, 2001, Arnold, J.).
The defendants have not provided any evidence concerning their personal knowledge about the activities at Pinecrest, or about the accuracy or truthfulness of the information provided to the state's attorney who instituted the public nuisance action. These issues present disputed, material factual issues and preclude the court from fully addressing the objective reasonableness of the defendants' conduct based on a totality of the circumstances. A motion for summary judgment asserting a qualified immunity defense to a § 1983 claim may be properly denied by a trial court when disputed issues of fact exist as to the defendants' conduct. See Johnson v. Jones, 515 U.S. 304, 313-17 (1995).
In regard to the fourteenth amendment, the plaintiffs claim that their equal protection rights were violated because although the public nuisance statute is so broad that it can be applied to virtually any bar in the city, the city selectively sought enforcement of the statute against Pinecrest. In support of this claim, the plaintiffs rely on Glicker v. Michigan Liquor Control Commission, 160 F.2d 96 (6th Cir. 1947). In response, the defendants contend that this argument fails because the plaintiffs do not allege that they were treated differently from others who were similarly situated to them in a manner sufficient to assert an equal protection violation. Although the defendants' argument finds support in the case law; see Bianco v. Darien, 157 Conn. 548, 560, 254 A.2d 989 (1969); Alexander v. Commissioner of Administrative Services, 86 Conn.App 677, 685-86, 862 A.2d 851 (2004); Tuchman v. State, 89 Conn.App 745, 760, 878 A.2d 384, cert. denied, 883 A.2d 1252 (2005); for the following reasons, the court declines to reach this issue on the basis of the procedural posture of the pleadings.
The plaintiffs heavily rely on the following comments in Glicker v. Michigan Liquor Control Commission, supra, 160 F.2d 100:
We recognize the right of a state to regulate, or even prohibit, through the exercise of its police power, the pursuit of certain businesses and occupations which because of their nature may prove injurious or offensive to the public. Such regulation is not prohibited by the Fourteenth Amendment . . . But it is equally well settled that such regulation is not unlimited in scope, but is subject to the limitations imposed by that amendment. While the federal government does not have the right to regulate such matters, which are exclusively under the control and regulation of the state, yet it does have the right, by virtue of the Fourteenth Amendment, to prevent such regulation from being arbitrary or discriminatory. Id. (Citations omitted.)
As discussed previously, the court cannot grant summary judgment as to a count of a complaint, leaving other claims in the count remaining. Telesco v. Telesco, supra, 187 Conn. 718-19. The two counts of the complaint for which the defendants seek summary judgment based on qualified immunity allege both constitutional claims and common law torts. On the basis of the parties' arguments and the decision of Heimbach v. Village of Lyons, supra, 597 F.2d 344, the court is not inclined to grant the defendants' summary judgment motion on the plaintiffs' first amendment claims, and the defendants have not fully or sufficiently addressed why they are entitled to summary judgment as to all the alleged tort claims. The claims in counts one and two are too numerous, overlapping and intertwined for the court to enter summary judgment. See Electrical Contractors, Inc. v. Hartford, supra; Pelletier v. Sordoni/Skanska Co., supra. As the city seeks summary judgment as to count three based solely on the merits of the defendants' motion as to counts one and two, summary judgment should also be denied as to the third count against the city.
As described earlier, the first paragraph of the revised complaint states that the plaintiffs are not only asserting constitutional violations, but also common law claims "including vexatious suit, abuse of process, interference with contract rights and financial expectations, trade libel and damages resulting from acts committed pursuant to a formed conspiracy."
3 Intentional Infliction of Emotional Distress
In count four, the plaintiffs allege that the defendants' conduct, which include acts of police harassment and the institution of the public nuisance action, "constituted the intentional infliction of emotional harm" on Zuckerman. "In order for the plaintiff to prevail in a case for liability under . . . [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 knew or should have known that emotional distress was the likely result of his 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.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). The defendants contend that they are entitled to summary judgment as to this count because their conduct was not, as a matter of law, sufficient to satisfy the second element.
"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." Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). "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 resentment against the actor, and lead him to exclaim, Outrageous!" (Citation omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443. "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.
During his deposition, Zuckerman testified that his emotional distress began when he received notice of the public nuisance suit. Indeed, most of the Zuckerman's complaints appear to be premised on the defendants' involvement in the public nuisance suit which was instituted in May 2001. For example, Zuckerman emphasizes that after the court denied the state's application for relief in the public nuisance action, Voccola is alleged to have said that "[t]he hearing was useful even though the state was not victorious . . . it got the rave parties scheduled for this year stopped."
In his second affidavit, however, Zuckerman explains that the individual defendants also engaged in other actions that caused him distress. See Affidavit in Opposition to Summary Judgment, dated May 15, 2006. This suit was instituted in September 2001, and the three-year limitation period of General Statutes § 52-577 governs the filing of claims for intentional infliction of emotional distress. See Smulewicz-Zucker v. Zucker, 98 Conn.App. 419, 909 A.2d 76 (2006). As previously mentioned, most of the incidents described in Zuckerman's affidavit occurred outside this three-year period. The incidents occurring within the limitations period are as follows.
On July 29, 2000, a "rave" party was held at Pinecrest. Two thousand three hundred people were expected to attend this event, but five thousand people "showed up." Affidavit in Opposition to Motion for Summary Judgment, dated May 15, 2006, p. 6. The police had about six undercover officers present off the Pinecrest property, including the defendants Hubyk and Arsenault. Three incidents requiring police involvement occurred either off the Pinecrest property or outside the building where the party was being held, including one incident where "trespassers stabbed security guards." Id., at 6-7. In a second event, on July 22, 2001, several Jamaican families held a reunion on the Pinecrest picnic grounds, and about three thousand people attended. According to Zuckerman's affidavit, "police cars drove through the parking lot constantly during the day," and after an apparent noise complaint from a neighbor, "[s]everal police cars arrived and parked in the middle of the drive into Pinecrest at about 6:00 p.m. One of the officers held a German Shepard on a leash. The dog barked constantly at patrons arriving at Pinecrest and walking through the parking area." Id., at 7-8.
The court also notes that in the plaintiffs' discovery responses, three other incidents are mentioned that occurred within the statute of limitations period, but they are not identified in Zuckerman's affidavit as causing him emotional distress. In response to the defendants' interrogatories, the plaintiffs stated that the defendants' policy of harassment against them was evidenced by active and aggressive discouragement of the use of Pinecrest by minorities or peaceful motorcyclists at the following events: at Hip Hop Latino Dances held between September through November 1998; at so-called "Phenomenon" events held on March 18, 1999, and April 29, 1999; and at a "Cablevision Christmas party" held on December 8, 2000. See the plaintiffs' December 30, 2005 Answers to Defendants' Request for Interrogatories (Second Set), Answer 1.f. (Attached as Exhibit A to the defendants' January 6, 2006, "Reply to Objection to Motion For Summary Judgment and Supplementary Issues Supporting Summary Judgment" (#124)).
In evaluating the defendants' motion for summary judgment, the court assumes the truth of these events as described by Zuckerman. The plaintiff has characterized these activities as reflecting a "policy of harassment"; however, as this court has noted before, a claim for intentional infliction of emotional distress must be evaluated more by the actual conduct on which the claim is based, rather than by the generalized characterizations of this conduct. Zuckerman was named as a defendant in the public nuisance action and was required to defend himself in that case, but the filing of a lawsuit is not "extreme or outrageous" conduct, even when the court ultimately determines that the basis of the suit lacks merit or credibility. Similarly, the heightened or increased police activity as described above would be disconcerting and stressful, but it nevertheless fails "to go beyond all possible bounds of decency" so as "to be regarded as atrocious, and utterly intolerable in a civilized community." Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.
"An evaluation of whether a plaintiff has asserted a cause of action for intentional infliction of emotional distress sufficient to withstand a motion for summary judgment must be premised on properly supported evidence of the events that occurred; see Practice Book § 17-45; and not on the plaintiff or her counsel's histrionic characterizations or hyperbolic conclusions." Smulewicz-Zucker v. Zucker, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0076353 (June 28, 2005; Stevens, J.); aff'd., Smulewicz-Zucker v. Zucker, 98 Conn.App. 419, 909 A.2d 76 (2006).
Thus, the defendants' motion for summary judgment as to the fourth count alleging intentional infliction of emotional distress is granted.
4 ABUSE OF PROCESS
In count five, the plaintiffs allege that the defendants instituted the public nuisance suit in order to stop any further techno dance parties from occurring at Pinecrest and ultimately to shut down the plaintiffs' business. As such, the plaintiffs allege that the defendants misused the nuisance suit to accomplish an unlawful ulterior purpose. The defendants argue that they are entitled to summary judgment on this count because they cannot be held responsible for the actions of the state's attorney's office in bringing the public nuisance action.
Although the parties address this claim as a cause of action for abuse of process, it is apparent that it is actually a claim for vexatious litigation. Our Supreme Court has explained the difference between causes of action for abuse of process and malicious or vexatious suit as follows: "Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose. The gravamen of the complaint is the use of process for a purpose not justified by law. The distinction between malicious prosecution or vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceedings, not in the issue of process but in its abuse." Schaefer v. O.K Tool Co., 110 Conn. 528, 532, 148 A. 330 (1930); see also QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 360-61 n. 16, 773 A.2d 906 (2001). As to the two types of malicious suit, "[a] vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint." Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); see also Verspyck v. Fairfield, 274 Conn. 105, 112 n. 7, 874 A.2d 249 (2005). In the present case, the plaintiffs' claim is for vexatious litigation and not abuse of process because the gravamen of the plaintiffs' complaint concerns the initiation of the public nuisance action without legal justification, and not the improper use or abuse of process after the commencement of the action. See Schaefer v. O.K. Tool Co., supra, 110 Conn. 533-34; Barbiero v. Chiocca, Superior Court, judicial district of New Haven, Docket No. CV05 4013929 (January 31, 2006, Corradino, J.) (40 Conn. L. Rptr. 694, 695).
"The distinction in the elements essential for recovery in each tort is that in the action for abuse of process the plaintiff is not bound to allege or prove the termination of the original proceeding nor, in most jurisdictions, the want of probable cause, while both of those must be proven in an action for malicious prosecution or vexatious suit." Schaefer v. O.K. Tool Co., supra, 110 Conn. 532-33.
Recently, in Barbiero v. Chiocca, Superior Court, judicial district of New Haven, Docket No. CV 05 4013929 (January 31, 2006, Corradino, J.) (40 Conn. L. Rptr. 694, 695), the court noted the following: "Prosser On Torts, 5th ed., further explains the distinction between abuse of process and malicious prosecution. At § 121, page 897 he says: `Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance.' . . . All of this reflects the commentary to § 682 of Restatement (2d) of Torts defining abuse of process, there at page 474 it says: `A. The gravamen of the misconduct for which the liability stated in this section is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process no matter how properly obtained, for any purpose other than that which it was designed to accomplish.'"
In an action for vexatious suit, a plaintiff is required to prove that: (1) the defendant initiated or procured the institution of a civil action against the plaintiff; (2) the civil action terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice. See McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982); and Hebrew Home Hospital, Inc. v. Brewer, 92 Conn.App. 762, 766, 886 A.2d 1248 (2005). The defendants have not met their burden of proving that they are entitled to summary judgment as a matter of law as to the fifth count. Neither party has fully addressed the elements of a vexatious litigation claim, but the arguments they have presented establish that summary judgment should not be granted.
The defendants argue that the state's attorney, not the individual defendants, decided to institute the public nuisance action, and neither in the complaint nor in Zuckerman's deposition "is there any indication that any of the defendants lied to the State's Attorney or withheld facts from the State's Attorney." Defendants' Memorandum of Law dated September 8, 2005, p. 24. In response, the plaintiffs argue that the defendants "conspired" with the state's attorney to commence the public nuisance action for which the three individual defendants provided information.
In the criminal context, a vexatious litigation claim is referred to as malicious prosecution. See Hebrew Home Hospital, Inc. v. Brewer, supra, 92 Conn.App. 766-67. In a claim for malicious prosecution, "a private person can be said to have initiated a criminal proceeding if he has insisted that the [defendant] should be prosecuted, that is, if he has brought pressure of any kind to bear upon the public officer's decision to commence the prosecution . . . But a private person has not initiated a criminal proceeding if he has undertaken no more that to provide potentially incriminating information to a public officer. In such a case, if the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution." (Citations omitted.) McHale v. W.B.S. Corp., supra, 187 Conn. 448. Further, "[it is conceded that a private person cannot escape liability if he knowingly presents information that is false; false information necessarily interferes with the intelligent exercise of official discretion. The problem arises when the information proves to be false, although the informer in good faith believed it to be true." Id., 449. In such cases, "the informer is not liable though the information proves to be false [and] his belief was one that a reasonable man would not entertain." (Internal quotation marks omitted.) Id. Furthermore, "no action will lie against a person who fully and fairly states all the material facts within his knowledge to the prosecuting attorney and in good faith abides his decision as to whether they constitute probable cause for believing that a crime has been committed . . ." (Internal quotation marks omitted.) Id. these principles discussed in the context of malicious prosecution appear equally applicable to vexatious litigation. See generally, Hebrew Home Hospital, Inc. v. Brewer, supra, 92 Conn.App. 766.
As previously stated, the defendants have the burden of proving the absence of any disputed material facts, and "it is only once [the defendants'] burden in establishing [their] entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff[s] to show that a genuine issue of fact exists justifying a trial." Rockwell v. Quintner, supra, 96 Conn. 229-30. In the present case, the extent of the individual defendants' involvement in the initiation and prosecution of the public nuisance action is at issue in this case [see footnote 6], and the defendants have not presented any evidence as to what information they presented to the state's attorney, let alone any evidence as to whether they fully and fairly stated all the material facts within their knowledge to the state's attorney and, in good faith, believed the information to be true.
The defendants, therefore, have not satisfied their burden of establishing that no issues of material fact exist and the defendants' motion for summary judgment as to count five should be denied.
5 NEGLIGENCE
In the sixth count, the plaintiffs allege that the defendants' participation in the institution of the public nuisance action constitutes negligence because the defendants knew or should have known that the conduct that formed the basis for that action did not constitute a "pattern of criminal activity" as defined by § 19a-343. The defendants again argue that they are entitled to summary judgment because they cannot be held responsible for the state's attorney's decision to bring the public nuisance action. As stated above, the defendants have not provided the court with any evidence about the extent or nature of their participation in the initiation of the public nuisance action. Therefore, they have not met their burden of establishing their entitlement to summary judgment as to count six. See generally, Rockwell v. Quintner, supra, 96 Conn. 229-30.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted as to count four and is denied as to counts one, two, three, five and six.
So ordered this 30th day of January 2006.