Opinion
No. LLI CV 10 6002895
April 29, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE #131
The issue before the court is whether to grant the defendants' motion to strike counts nine (9) through twelve (12) alleging intentional infliction of emotional distress, seventeen (17) through twenty (20) alleging violations of Connecticut's Unfair Trade Practices Act, and twenty-one (21) through twenty-four (24) alleging injurious falsehood on the ground that each count is legally insufficient because it fails to state a claim upon which relief may be granted.
I FACTS
On January 26, 2011, the plaintiffs, Time Was Garage, LLC (Time Was Garage), CCM Holding, LLC (CCM Holding), Michael O'Brien, Christopher Kerr and Constance Fialkiewicz, filed a revised second amended complaint against the defendants, Giants Steps, Inc. (Giant Steps), 425 P.M., LLC, Cathy Hinman and Howard Hinman, containing twenty-four counts and alleging six separate causes of action. On February 17, 2011, the defendants filed the present motion to strike (1) counts nine through twelve alleging intentional infliction of emotional distress; (2) counts seventeen through twenty alleging violations of Connecticut's Unfair Trade Practices Act (CUTPA); and (3) counts twenty-one through twenty-four alleging injurious falsehood. The defendants argue that each count is legally insufficient because it fails to state a claim upon which relief may be granted. On April 1, 2011, the plaintiffs filed an objection to the defendants' motion to strike.
CCM Holding is the owner of property at 417 Main Street in New Hartford, Connecticut. CCM Holding leases the 417 Main Street property to Time Was Garage. O'Brien and Kerr are members of Time Was Garage and CCM Holding. Fialkiewicz is a member of CCM Holding.
Cathy and Howard Hinman are the majority shareholders of Giant Steps, which is owned by 425 P.M., LLC. Cathy and Howard Hinman are members of 425 P.M., LLC.
Rista Malance, zoning enforcement officer, is also a named defendant but is not a party to the present motion to strike.
The matter was heard on the April 4, 2011 short calendar. Additional facts will be presented as necessary.
II
CT Page 10276
DISCUSSION A Motion to Strike Standard
"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 takes] the facts to be those alleged in the complaint that has been stricken and we construe 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 . . . [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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010)."A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Golden v. Hamer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5008396 (August 25, 2009, Pavia, J.).
B Background
The plaintiffs and defendants operate neighboring businesses. Plaintiff Time Was Garage is a used car dealership and automobile repair shop, specializing in the restoration of classic automobiles, that began operating a business at 417 Main Street in New Hartford, Connecticut in 2004. Defendant Giant Steps owns and operates a day care facility at 425 Main Street in New Hartford, Connecticut. The complaint alleges that as far back as 2003 until early 2009, the defendants engaged in conduct aimed at defaming the plaintiffs. According to the plaintiffs, the defendants designed and carried out a campaign of harassment aimed at the plaintiffs which included making false accusations to neighbors and local, state and federal authorities of contamination of the air and ground as well as violations of local ordinances and state and federal laws. The plaintiffs allege that the defendants' conduct was aimed at making the plaintiffs lose their property by making it difficult for the plaintiffs to maintain their business operations because of increasing costs, lost business and destroyed relationships with neighbors, police and governing officials.
C Analysis
The complaint alleges twenty-four (24) counts of which the defendants move to strike (1) counts nine (9) through twelve (12) alleging intentional infliction of emotional distress; (2) counts seventeen (17) through twenty (20) alleging violations CUTPA; and (3) counts twenty-one (21) through twenty-four (24) alleging injurious falsehood. The court will address each cause of action in turn.
1 Counts Nine (9) Through Twelve (12) : Intentional Infliction of Emotional Distress
The defendants move to strike counts nine through twelve alleging intentional infliction of emotional distress on the ground that the counts are legally insufficient because they fail to allege extreme and outrageous conduct by the defendants. According to the defendants, the intentional infliction of emotional distress claims are based on the defendants' allegedly defamatory conduct, namely reporting alleged violations of local ordinances and environmental laws to the appropriate authorities, and that such conduct does not go beyond all possible bounds of decency so as to state a claim for intentional infliction of emotional distress.
The plaintiffs object arguing that the complaint alleges that "the defendants knowingly and intentionally carried out a vicious harassment campaign of lies (slander and libel) over a period of at least five years, with the goal of causing the plaintiffs to lose their business and lose their real estate" and that this conduct is sufficiently extreme and outrageous.
"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 . . . 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! . . . 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." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119, 127 (2003).
"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." (Internal quotation marks omitted.) Benton v. Simpson, 78 Conn.App. 746, 753, 829 A.2d 68, 73 (2003). "[T]here is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." (Internal quotation marks omitted.) Craddock v. Church Community Supported Living Assn., Superior Court, judicial district of Hartford, Docket No. CV 99 0592711 (November 13, 2000, Hennessey, J.).
In Hunt v. Pelliccia, Superior Court, judicial district of New Haven, Docket No. CV 03 0479776 (February 20, 2004, Arnold, J.), the plaintiffs alleged that the defendants engaged in a pattern of harassing and annoying conduct over a period of one year and the alleged conduct included "complaints to the local governmental authorities by the defendants that the plaintiffs have been violating local zoning laws and/or ordinances. Additionally, the plaintiffs allege that the defendants have directed vulgar language and obscene gestures toward the plaintiffs. The plaintiffs also allege that the defendants have taken pictures of the plaintiffs' property; `stared' at the plaintiffs' property; and looked over the fence at the plaintiffs' property. The plaintiffs concede that various complaints to the local authorities by the defendants regarding the condition of the plaintiffs' property and their violation of local laws and/or ordinances are, in fact, valid. However, the plaintiffs dispute that all of the defendants' complaints are valid, and that the defendants' continued actions are meant to annoy and harass the plaintiffs." The court granted the motion to strike the intentional infliction of emotional distress count finding that "[t]he defendants' alleged conduct of complaining to governmental authorities about violations of local laws or ordinances regarding the plaintiffs' property, and the allegations concerning the defendants' use of vulgar language and obscene gestures do not constitute intentional infliction of emotional distress or extreme or outrageous behavior. The court agrees with the defendants that the defendants' conduct, viewed in a light most favorable to the plaintiffs, amounts at most to annoyances arising from a property and/or zoning enforcement dispute." Id.
Likewise, in Fetzer v. Rywolt, Superior Court, judicial district of Fairfield, Docket No. CV 94 0310956 (March 31, 1995, Gormley, J.), the court granted a motion to strike an intentional infliction of emotional distress claim finding that none of the conduct was extreme or outrageous where the plaintiffs alleged that the defendants complained to zoning officials, police officers and a selectman, photographed the plaintiffs' property with a telephoto lens and the defendants advertised that they were selling their house because of numerous zoning violations.
In the present case, the plaintiffs allege that the defendants "made many false complaints to local and state authorities with the intent to frustrate the plaintiff's business ventures [and the defendants] made many complaints to local agencies, which complaints, although having a veneer of truth, were done with the ulterior motives of causing the plaintiffs to go out of business and ultimately lose the 417 Main Street property." Like in Hunt and Fetzer, the allegations in the plaintiffs' complaint do not rise to the high threshold necessary to allege a cause of action for intentional infliction of emotional distress. As best explained by the court in Fetzer v. Rywolt, supra, Superior Court, Docket No. CV 94 0310956, the plaintiffs' allegations merely reflect "annoyances arising from a property and/or zoning enforcement dispute." Accordingly, the motion to strike counts nine (9) through twelve (12) is granted.
2 Counts Seventeen (17) Through Twenty (20): CUTPA
The defendants move to strike counts seventeen through twenty alleging violations of CUTPA on the ground that the counts are legally insufficient because they fail to allege any consumer, trade or other business relationship between the parties. According to the defendants, the plaintiffs allege that the defendants violated CUTPA by making false complaints to local and state authorities. The defendants argue, however, that the parties' relationship as neighboring landowners is insufficient to establish the requisite relationship required for a CUTPA claim. Moreover, with respect to defendants Cathy and Howard Hinman, the defendants argue that the complaint is unclear whether the claims against the Hinmans allege personal liability or liability as shareholders of Giant Steps. In either case, however, the defendants contend that the motion to strike should be granted because the Hinmans were not engaged in a trade or commerce at the time of the alleged actionable conduct.
The plaintiffs object arguing that, liberally construed, the complaint alleges that CCM Holding and 425 P.M., LLC are in the same business, i.e. investing in real estate and leasing that real estate to commercial tenants, Giant Steps and Time Was Garage specifically. Therefore, according to the plaintiffs, CCM Holding and 425 P.M., LLC are competing for real estate, in general, and for a specific piece of real estate, in particular. According to the plaintiffs, the complaint alleges that the defendants' motives were to cause the plaintiffs to go out of business and ultimately lose the 417 Main Street property where Time Was Garage is located. The plaintiffs contend, therefore, that the parties are competing for the 417 Main Street property and these allegations are sufficient to satisfy the requirements of CUTPA. With respect to the Hinmans, the plaintiffs argue that because the allegations against 425 P.M., LLC are sufficient and the Hinmans are owners of both 425 P.M., LLC and Giant Steps the complaint sufficiently alleges the trade or commerce element of a CUTPA claim.
CUTPA, General Statutes § 42-110b(a), states that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Trade or commerce is defined as "the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state." General Statutes § 42-110a(4).
"[I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002). "Although our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Citation omitted; emphasis in original.) Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269, cert. denied, 280 Conn. 929, CT Page 10281 909 A.2d 958 (2006).
CUTPA "was designed to protect two classes or deal with two sets of problems. First, there is the protection of consumers from unfair or deceptive acts or practices. Then there is a concern with ensuring fair competition and in order to accomplish that end, competitors and other business people can bring a CUTPA action. But at the very least, other business people, who are not direct competitors, must have some type of commercial relationship with the alleged wrongdoer — commercial relationship not being so much a business relationship but some kind of relationship in the marketplace so that the particular acts of wrongdoing alleged will interfere with fair and open competition in that particular marketplace." (Emphasis in original.) Marr v. WMX Technologies, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 96 0071542 (November 6, 1998, Sheldon, J.) ( 23 Conn. L. Rptr. 220, 224), aff'd. on other grounds, 244 Conn. 676, 711 A.2d 700 (1998).
In the present case, the plaintiff's allegations simply cannot be read to allege either a business or consumer relationship with the defendants. Giant Steps and Time Was Garage are neighboring businesses, one a day care and the other an automotive repair shop. The complaint alleges that CCM Holdings and 425 P.M., LLC are limited liability companies which own the property leased to Time Was Garage and Giant Steps, respectively. The complaint, however, does not alleged that either CCM Holdings or 425 P.M., LLC are competing in the real estate market. The plaintiffs argue that because the allegations state that the defendants' motives are to obtain the plaintiffs' property that this is sufficient to allege that the parties are competing in the same real estate market. This argument, although inventive, is simply too tenuous. The plaintiffs failed to allege that the parties were in a consumer relationship, that they were in direct competition in the same marketplace or that they had any other relationship in the same marketplace.
Likewise, the plaintiffs failed to allege the requisite relationship with the Hinmans to sustain a CUTPA claim. Although "[t]he limited liability statutes `do not shield' a member or manager of a limited liability company from personal liability under CUTPA"; Sentry Construction Corp. v. Revolation Enterprise, LLC, Superior Court, judicial district of New Haven, Docket No. CV 06 5000790 (December 5, 2008, Rubinow, J.); the plaintiffs failed to allege that the Hinmans, as agents of Giant Steps, were engaged in a trade or commerce with the plaintiffs. Moreover, the complaint contains no allegations that the Hinmans, individually, were engaged in a trade or commerce with the plaintiffs.
Therefore, the motion to strike counts seventeen (17) through twenty (20) is granted.
3 Counts Twenty-One (21) Through Twenty-Four (24): Injurious Falsehood
The defendants move to strike counts twenty-one (21) through twenty-four (24) alleging injurious falsehood on the ground that they fail to state a claim upon which relief may be granted because Connecticut does not recognize injurious falsehood as a distinct tort and the allegations contained therein are duplicative of the plaintiffs' defamation claims. The defendants rely on QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 773 A.2d 906 (2001) for the argument that injurious falsehood is merely a species of defamation.
The plaintiffs object arguing that Connecticut does recognize a cause of action for injurious falsehood. The plaintiffs rely on Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 945 A.2d 955 (2008) in which, according to the plaintiffs, the court cited with approval Jonap v. Silver, 1 Conn.App. 550, 557, 474 A.2d 800 (1984) which included an injurious falsehood claim. Additionally, the plaintiffs argue that the injurious falsehood claims are not duplicative of the defamation claims because the injurious falsehood counts contain allegations that the defendants intended to interfere with several of the plaintiffs' beneficial relations, which allegations are not contained in the defamation counts.
The Restatement sets forth the elements of the tort of injurious falsehood as follows: "One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity." Restatement (Second) of Torts § 623A, p. 334 (1977). "The action for injurious falsehood is obviously similar in many respects to the action for defamation. Both involve the imposition of liability for injuries sustained through publication to third parties of a false statement affecting the plaintiff. Despite their similarities, however, the two torts protect different interests and have entirely different origins in history. The action for defamation is to protect the personal reputation of the injured party; it arose out of the old actions for libel and slander. The action for injurious falsehood is to protect economic interests of the injured party against pecuniary loss; it arose as an action on the case for the special damage resulting from the publication.
"From the beginning, more stringent requirements were imposed upon the plaintiff seeking to recover for injurious falsehood in three important respects — falsity of the statement, fault of the defendant and proof of damage. At common law a defamatory statement was presumed to be false and truth was a matter to be proved by the defendant; in an action for injurious falsehood, the plaintiff must plead and prove that the statement is false. At common law, a defendant in a defamation action was held to strict liability insofar as falsity of the statement was concerned; in an action for injurious falsehood he was subject to liability only if he knew of the falsity or acted with reckless disregard concerning it, or if he acted with ill will or intended to interfere in the economic interests of the plaintiff in an unprivileged fashion. In defamation, it was only in limited number of situations that a plaintiff was required to prove special damages; in injurious falsehood, pecuniary loss to the plaintiff must always be proved. The recent changes in the law of defamation produced by the First Amendment . . . have narrowed the distinctions set forth above, but they still retain some significance . . ."
"Although the torts of defamation and injurious falsehood protect different interests, they may overlap in some fact situations. This happens particularly in cases of disparagement of the plaintiff's business or product. If the statement reflects merely upon the quality of what the plaintiff has to sell or solely on the character of his business, then it is injurious falsehood alone. Although it might be possible to imply some accusation of personal incompetence or inefficiency in nearly every imputation directed against a business or a product, the courts have insisted that something more direct than this is required for defamation. On the other hand, if the imputation fairly implied is that the plaintiff is dishonest or lacking in integrity or that he is perpetrating a fraud upon the public by selling something that he knows to be defective, the personal defamation may be found. In this case, it is common to sue in defamation because the damages are more comprehensive. Action may be brought in the same suit for both torts, however, so long as the damages are not duplicated." Restatement (Second), supra, § 623A, comment (g), p. 340-41.
In QSP, Inc. v. Aetna Casualty Surety Co., supra, 256 Conn. 343, our Supreme Court examined the relationship between defamation, commercial disparagement, injurious falsehood and trade libel. The court stated that "[d]efamation or disparagement of a business' goods and services may be considered trade libel . . . and is recognized by Connecticut . . . courts as a species of defamation." (Citations omitted.) Id., 358. The court explained that "[t]he terminology in this area is somewhat confusing. False communications which damage or tend to damage the reputation as to quality of goods or services are variously described as disparagement, product disparagement, trade libel, or slander of goods. False communications which impugn the plaintiff's title to goods or to real property are usually denominated slander of title. In the law of defamation, slander connotes oral and libel written communication but trade libel, slander of goods, and slander of title are used without regard to the manner of publication.
"Product disparagement and slander of title are grouped together in the Restatement (Second) of Torts § 623A . . . under the more general term `injurious falsehood,' defined as any false communication which results in harm to interests of another having pecuniary value; the definition is broad enough to cover some cases of defamation. Other authorities use injurious falsehood as a synonym for product disparagement while still others suggest that injurious falsehood be defined as communications of false matter which result in harm to interests of another having pecuniary value but which do not constitute defamation, disparagement, or slander of title . . ."
"[D]efamation and disparagement in the commercial context are allied in that the gravamen of both are falsehoods published to third parties . . . [More specifically, however] [w]here a statement impugns the basic integrity or creditworthiness of a business, an action for defamation lies and injury is conclusively presumed. [But] [w]here, however, the statement is confined to denigrating the quality of the business' goods or services, it could support an action for disparagement . . ." (Citations omitted; internal quotation marks omitted.) Id., 359 n. 15.
In National Distributor Systems, Inc. v. Steinis, Superior Court, judicial district of New Haven, Docket No. CV 98 415780 (June 25, 1999, Levin, J.), the court chose to disregard the plaintiff's labeling of a claim as "trade libel" because trade libel has not been recognized as separate cause of action in Connecticut. Rather, the court determined that the substance of the count alleged a claim for defamation, a cause of action recognized in Connecticut. Id.
Furthermore, the court in Steinis, without recognizing a distinct cause of action for injurious falsehood, granted the motion to strike that count on the ground that it did not allege special damages. Id. In exploring the elements of an injurious falsehood claim, the court explained that "[l]ike trade libel, injurious falsehood has not been treated as a distinct tort by Connecticut appellate courts. Indeed . . . the tort of injurious falsehood has received little treatment in the opinions of Connecticut trial judges." (Internal quotation marks omitted.) Id.
In the present case, the plaintiffs' reliance on Dimmock v. Lawrence Memorial Hospital, Inc., supra, 286 Conn. 789 in support of their argument that Connecticut has recognized the tort of injurious falsehood is unpersuasive. According to the plaintiffs, the court in Dimmock cited with approval Jonap v. Silver, supra, 1 Conn.App. 557 in which an injurious falsehood claim was alleged. In Dimmock, however, the court cited to Jonap in a string citation as support for the proposition "that allegations that assert an alternative basis for liability arising from the same facts can relate back to the original complaint." Dimmock v. Lawrence Memorial Hospital, Inc., supra, 806, 808. In Jonap, the court held "that the acts which gave rise to a claim for injurious falsehood [were] not separate and distinct from the acts which gave rise to the alleged invasion of privacy claims. All of the plaintiff's theories of liability [arose] from a single group of facts . . . [T]herefore . . . the court did not abuse its discretion in allowing the amendment to the complaint." Jonap v. Silver, supra, 557.
The plaintiffs are correct that counts twenty-one through twenty-four contain allegations beyond those contained in the defamation counts in that counts twenty-one through twenty-four allege that the defendants intended to interfere with several of the plaintiffs' beneficial relations. The import of that distinction, however, does not vitiate the fact that Connecticut has not yet recognized the tort of injurious falsehood.
The plaintiffs did not argue that the court should disregard the plaintiffs' labeling of the claim and interpret the complaint to allege an existing cause of action. See Home Oil Co., Inc. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985) ("[T]he construction of a pleading is a question ultimately for the court . . . When a case requires [the] court to determine the nature of a pleading filed by a party, [the court is] not required to accept the label affixed to that pleading by the party." (Citations omitted.)). "Connecticut has long recognized a cause of action for tortious interference with business relations . . . The necessary elements of a cause of action in tortious interference with business relations are the existence of a business relationship, an intentional and improper interference with that relationship and a resulting loss of benefits of the relationship . . . [N]ot every act that disturbs a contract or business expectancy is actionable . . . A defendant is guilty of tortious interference if he has engaged in improper conduct . . . [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Holler v. Buckley Broadcasting Corp., 47 Conn.App. 764, 768-69, 706 A.2d 1379 (1998). This court, however, has not been asked, and declines to, determine whether the plaintiffs' complaint sufficiently alleges a cause of action for tortious interference with business relations or any other recognized tort in Connecticut.
Therefore, the motion to strike counts twenty-one (21) through twenty-four (24) is granted.