Gaide v. Flanagan, No. CV 03 0521353-S (CT 8/9/2004)
| Decision Date | 09 August 2004 |
| Docket Number | No. CV 03 0521353-S,CV 03 0521353-S |
| Court | Connecticut Supreme Court |
| Parties | Paul M. Gaide v. Lisa G. Flanagan et al. |
On January 7, 2004, Attorney Paul M. Gaide, the plaintiff, filed an amended complaint arising out of prior dealings he had had with the defendants, Lisa G. Flanagan and three attorneys: Robert G. Skelton,1 Bradley K. Cooney and Todd R. Bainer. Counts one, two and three of the amended complaint are claims for vexatious suit filed as a result of civil actions brought by Skelton and Cooney on behalf of Flanagan.
Count four alleges libel per se against Bainer. Here, the plaintiff claims that Bainer published various letters to other attorneys making defamatory statements about the plaintiff's fitness to practice law. He alleges that these statements were false and were made both to deter the plaintiff's ability to practice law and to benefit Flanagan who was Bainer's client.
The fifth, sixth, seventh and eighth counts of the amended complaint are against all the defendants. The fifth count alleges that the defendants engaged in a civil conspiracy to "attack the Plaintiff through the filing and prosecution of vexatious civil actions, through participation as counsel of record in frivolous grievance proceedings, and through writing libelous communications." The sixth count alleges that the defendants' conduct was intended to interfere with the plaintiff's business relationship with one of his clients. The seventh count alleges negligent infliction of emotional distress, and the eighth count alleges intentional infliction of emotional distress.
The ninth, tenth and eleventh counts are brought against the attorneys, Skelton, Cooney and Bainer. In the ninth count the plaintiff alleges that the attorneys breached the standard of care of a competent attorney by bringing civil actions against the plaintiff without probable cause and by publishing letters containing defamatory statements. The tenth count alleges that the deviations from the standard of care of a competent attorney amounted to negligent infliction of emotional distress. Gaide alleges, in the eleventh count, that the deviations from the standard of care of a competent attorney amounted to intentional infliction of emotional distress. In his prayer for relief, the plaintiff seeks, among other things, interest pursuant to General Statutes §37-3a.
On February 17, 2004, Skelton filed a motion with an accompanying memorandum seeking to strike counts five, nine, ten and eleven of the amended complaint as well as the prayer for relief seeking statutory interest. On March 5, 2004, Bainer filed a motion with an accompanying memorandum seeking to strike counts four, five, ten and eleven of the amended complaint as well as the prayer for relief seeking prejudgment interest. Thereafter, the plaintiff, on April 7, 2004, filed memoranda in opposition to both motions to strike.
"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 Conservatory, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "Practice Book . . . §10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
Bainer moves to strike the fourth count, libel per se, on the ground that it fails to state a cause of action upon which relief can be granted. He argues that the publications were made during the course of grievance proceedings before the Statewide Grievance Committee and are therefore protected communications. He also argues that the published statements were made in letters to attorneys who had prior dealings with the plaintiff and therefore had personal knowledge of the statements made therein.2 In addition, he argues that the statements made in the letters did not constitute libel per se.3
In response, Attorney Gaide argues that the issue of whether a communication is immune should be raised by way of special defense and not by a motion to strike. He also contends that count four is legally sufficient because the complaint contains the essential elements of a claim for libel per se.
While it is true that absolute immunity may exist for statements made during the course of a bar grievance proceeding; see Field v. Kearns, 43 Conn.App. 265, 270-71, 682 A.2d 148 (1996); a motion to strike is not usually the proper vehicle to raise such immunity. "Without articulating a rule on the matter, several Superior Court cases have considered absolute immunity on a motion to strike and have granted such motions when it was clear from the complaint that immunity barred recovery." Barese v. Clark, Superior Court, judicial district of New Haven, Docket No. CV 96 0389890 (November 6, 1996, McMahon, J.) (18 Conn. L. Rptr. 195, 197 n.1). It is not clear from the complaint whether the letters were published in the course of Bainer's representation of Flanagan, therefore it is not clear that the immunity applies. Since the plaintiff has alleged sufficient facts the motion to strike count four is denied.
In count five of his complaint, Gaide alleges that the defendants "entered into a combination of a singular scheme, namely, to attack the Plaintiff through the filing and prosecution of vexatious civil actions, though participation as counsel of record in frivolous grievance proceedings, and through writing libelous communications, all in an attempt to discredit the Plaintiff, harass the Plaintiff [and] subject the Plaintiff to [the] defense of numerous and frivolous claims against him." (Amended complaint, count five, ¶sixty-one.) Skelton moves to strike this count on the ground that it is legally insufficient. Bainer moves to strike this count on the ground that it fails to state a claim upon which relief can be granted. In his memorandum in support of the motion to strike, Skelton argues that a claim for civil conspiracy against an attorney and his client violates public policy because it interferes with the lawyer's duty to his client. In Bainer's memorandum in support of his motion, he incorporates the arguments made in Skelton's memorandum and argues that his participation in grievance proceedings against the plaintiff does not satisfy the element of civil conspiracy, which requires that the defendants conspire to commit an unlawful act or a lawful act by criminal or lawful means.4 He also argues that the only connection between Bainer and the other defendants is Flanagan.5
In response to the argument that imposing liability against Skelton and Bainer in this case would violate public policy, the plaintiff argues that because a claim for civil conspiracy is based on an underlying cause of action, imposition of liability would not interfere with a lawyer's duty to his client. The plaintiff argues that if he is permitted to bring the underlying cause of action against the attorney and his client, he should be allowed to bring the action for conspiracy.
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Harper v. King, 266 Conn. 747, 779, 835 A.2d 953 (2003). The plaintiff has alleged facts to satisfy all these elements.
The issue in the present case is whether the plaintiff, as a matter of public policy, should be precluded from making a claim for civil conspiracy. The Connecticut Supreme Court has taken care "not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues." Mozzochi v. Beck, 204 Conn. 490, 495, 529 A.2d 171 (1987). The Court has held that "[i]mposing liability under [the Connecticut Unfair Trade Practices Act] on attorneys for their representation of a party opponent in litigation would not comport with a lawyer's duty of undivided loyalty to his or her client." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 729, 627 A.2d 374 (1993). When determining whether a lawyer may be held liable to his client's opponent for abuse of process, the Connecticut Supreme Court balanced the interest in protecting a lawyer's duty to his client with upholding a lawyer's duty not to bring groundless lawsuits. Mozzochi v. Beck, supra, 204 Conn. 495-96. "An attorney may be sued for misconduct by those who have sustained a special injury because of an unauthorized use of legal process"; id., 495; however, the plaintiff is required to allege "specific claims of egregious misconduct, such as utter failure to investigate the validity of the underlying action, or unwarranted pursuit of inappropriate motions." Id., 496. Generally, a lawyer will not be held liable to a third party, unless, "the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." Id., 497.
Because holding a lawyer liable to a third party for abuse of process will...
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