Larobina v. McDonald

• Decision Date: 12 July 2005
• Docket Number: (SC 17263).
• Citation: 876 A.2d 522,274 Conn. 394
• Court: Connecticut Supreme Court
• Parties: VINCENT P. LAROBINA v. ANDREW MCDONALD ET AL.

274 Conn. 394

876 A.2d 522

VINCENT P. LAROBINA v. ANDREW MCDONALD ET AL.

(SC 17263).

Supreme Court of Connecticut.

Argued January 3, 2005.

Officially released July 12, 2005.

Sullivan, C. J., and Borden, Norcott, Katz and Zarella, Js.

Vincent P. Larobina, pro se, the appellant (plaintiff).

William J. Wenzel, with whom, on the brief, was Brian C. Roche, for the appellees (defendants).

Opinion

SULLIVAN, C. J.

The plaintiff, Vincent P. Larobina, appearing pro se, brought a four count amended complaint against the defendants, Andrew McDonald, Peter Olson, Pullman and Comley, LLC (Pullman), and First Union National Bank (First Union), alleging abuse of process (count one), civil conspiracy (counts two and three) and negligent infliction of emotional distress (count four). The trial court granted the defendants' motion for summary judgment as to all counts, and the plaintiff appeals from the judgment rendered thereon.¹ We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In 1999, the plaintiff brought an action against First Union (first action).² The plaintiff alleged in the first action that, on September 25, 1986, he established a line of credit with Union Trust Bank (Union Trust) in the amount of $55,000, secured by a second mortgage on property known as 113 Grove Street, Stamford. The plaintiff further alleged that during 1991, Union Trust assigned the note and mortgage to First Fidelity Bank of Connecticut (First Fidelity). The plaintiff claimed that, on November 3, 1994, he entered into a mortgage extension agreement with First Fidelity, referred to as a "re-age agreement," under which First Fidelity agreed to extend the maturity date of the note and to allow the plaintiff to pay a monthly installment until the existing balance was paid in full. Thereafter, First Fidelity assigned the note and mortgage to First Union. The plaintiff claimed that First Union breached the re-age agreement by demanding payment in full, by disavowing the existence of the agreement and by reporting to credit agencies that the plaintiff was in default under the note and mortgage. He also made the following claims: negligence; defamation; violations of 15 U.S.C. § 1647 (a) and General Statutes § 36a-678 (a); violations of 18 U.S.C. § 1961; negligent infliction of emotional distress; violation of the covenant of fair dealing; violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.; negligent misrepresentation; and promissory estoppel. He sought compensatory damages, punitive damages, an order voiding the note, an order requiring First Union to return the money paid by the plaintiff under the note, and specific performance of the re-age agreement. McDonald and Olson, attorneys with Pullman, represented First Union in connection with the first action.

In 2002, the plaintiff brought the present action against First Union, Pullman, McDonald and Olson, in which he alleges that, in defending First Union in the first action, the defendants engaged in abuse of process, civil conspiracy and wilful conspiracy, and negligent infliction of emotional distress. After the pleadings were closed, the defendants filed a motion for summary judgment pursuant to Practice Book § 17-44,³ claiming that: (1) the action constituted an improper attempt to circumvent the authority of the trial court in the first action; (2) defending First Union in the first action could not constitute abuse of process as a matter of law; (3) there is no cause of action for wilful conspiracy under Connecticut law and, even if there were, the plaintiff's claim would be barred by the applicable statute of limitations; (4) the plaintiff could not establish the elements of a claim of negligent infliction of emotional distress; and (5) summary judgment was warranted on the basis of the prior pending action doctrine.

In his objection to the motion for summary judgment, the plaintiff stated that the motion challenged the legal sufficiency of the complaint and, therefore, was actually the equivalent of a motion to strike, but he did not object to the motion on that ground. Instead, he argued that the allegations of his complaint were legally sufficient and that there were genuine issues of material fact regarding whether the re-age agreement was legitimate, whether a conspiracy existed, whether the statute of limitations barred his claim and whether the defendants' conduct was sufficiently egregious to impose liability for negligent infliction of emotional distress. The plaintiff further argued that the prior pending action doctrine was inapplicable to this case.

The trial court granted the defendants' motion for summary judgment. In the order granting the motion, the court stated that a motion for summary judgment may be used to challenge the legal sufficiency of a complaint. It concluded that the plaintiff's allegations failed to implicate any abuse of process and did not support a claim for negligent infliction of emotional distress. The court also concluded that the plaintiff's conspiracy claims were without any factual support.

On appeal, the plaintiff claims that: (1) the trial court improperly permitted the defendants to use a motion for summary judgment to test the legal sufficiency of the complaint; (2) the defendants are not entitled to summary judgment because genuine issues of material fact existed; and (3) the trial court, upon finding that the complaint was legally insufficient, improperly rendered summary judgment in favor of the defendants instead of permitting the plaintiff to replead. The defendants argue that the trial court properly treated their motion for summary judgment as a challenge to the legal sufficiency of the complaint and properly determined that the complaint was legally insufficient. They also claim, as an alternate ground for affirmance, that the complaint was barred by the prior pending action doctrine. We conclude that, under the circumstances of this case, the trial court properly permitted the defendants to use a motion for summary judgment to test the legal sufficiency of the complaint. We further conclude that the trial court properly rendered judgment for the defendants on the plaintiff's abuse of process claim on the alternate ground that the claim is premature. With respect to the plaintiff's claims of civil conspiracy and negligent infliction of emotional distress, we affirm the judgment of the trial court on the alternate grounds that the claims against First Union are barred by the prior pending action doctrine and the claims against McDonald, Olson and Pullman are premature.

We first address the plaintiff's claim that a motion for summary judgment is an improper vehicle by which to test the legal sufficiency of a complaint.⁴ "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. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]." (Citations omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746 A.2d 753 (2000).

In contrast, "[a] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003).

Our case law addressing the question of whether a motion for summary judgment may be used instead of a motion to strike to challenge the legal sufficiency of a complaint and, if so, under what circumstances, requires some clarification. In Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-409, 279 A.2d 540 (1971), this court suggested that, in light of the similarities between the procedures, the use of a motion for summary judgment for such a purpose is proper. See also Pane v. Danbury, 267 Conn. 669, 674 n.7, 841 A.2d 684 (2004) (allowing use of motion for summary judgment to challenge legal sufficiency of complaint when plaintiff did not raise objection in trial court); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32 n.17, 699 A.2d 964 (1997) (treating motion for summary judgment as motion to strike); Hossan v. Hudiakoff, 178 Conn. 381, 382 n.1, 423 A.2d 108 (1979) (court declined to consider whether use of motion for summary judgment instead of motion to strike was procedurally proper when motion to strike properly would have been granted); Gaudino v. East Hartford, 87 Conn. App. 353, 357-58, 865 A.2d 470 (2005) (motion for summary judgment may be used to challenge legal sufficiency of complaint); but see Burke v. Avitabile, 32 Conn. App. 765, 772, 630 A.2d 624 (purpose of motion for summary judgment is not to test legal sufficiency of complaint but to test for presence of contested factual issues), cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). We also have...