Mozzochi v. Beck, 13118

CourtSupreme Court of Connecticut
Citation204 Conn. 490,529 A.2d 171
Decision Date28 July 1987
Docket NumberNo. 13118,13118
PartiesCharles J. MOZZOCHI v. Bruce S. BECK et al.

John R. Williams, New Haven, for appellant (plaintiff).

Joseph F. Skelley, Jr., with whom, on brief, was Carl F. Yeich, Hartford, for appellees (defendants).


PETERS, Chief Justice.

The principal issue in this case is whether a cause of action for abuse of process may be brought to recover damages from attorneys who allegedly pursued litigation despite their discovery that their client's claim lacked merit. The plaintiff, Charles J. Mozzochi, filed a five count complaint charging the defendants, attorneys Bruce S. Beck and Kathleen Eldergill and the law firm of Beck & Pagano, with unlawful conduct in the nature of vexatious litigation, abuse of process and malpractice. The trial court, concluding that the plaintiff had failed to state any cause of action, granted the defendants' motion to strike the complaint and subsequently, at the plaintiff's request, rendered judgment in favor of the defendants. The plaintiff's appeal to the appellate court was transferred to this court. We find no error.

In an appeal challenging a ruling on a motion to strike, we must take the facts to be those alleged in the plaintiff's complaint, and must construe the complaint in the manner most favorable to the plaintiff. Verdon v. Transamerica Ins. Co., 187 Conn. 363, 365, 446 A.2d 3 (1982); Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980). According to the complaint, at some time prior to May 7, 1982, the defendants instituted an action on behalf of Walter Muszynski against the present plaintiff. An amended complaint in the Muszynski action, filed on August 13, 1982, alleged that the plaintiff had falsely and maliciously accused Muszynski of having falsified his original job application with the Glastonbury police department and of having been arrested by federal agents for a felony. A subsequent amendment to the Muszynski complaint alleged that the plaintiff had falsely and maliciously accused Muszynski of having wrongfully obtained unemployment compensation benefits. The defendants persisted in filing these amended complaints and otherwise continued to pursue the Muszynski action despite the fact that they had learned that the plaintiff's statements about Muszynski were true and that the Muszynski action was without merit. The defendants pursued this course of conduct for the unlawful, ulterior purpose of inflicting injury upon the plaintiff and enriching themselves and their client, Muszynski.

The trial court determined that these allegations did not suffice to state a cause of action. With respect to a possible claim for vexatious litigation, the court determined that the complaint was defective for failure to allege that the underlying action "was initiated maliciously, without probable cause, and terminated in the plaintiff's favor." Blake v. Levy, 191 Conn. 257, 263, 464 A.2d 52 (1983); Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). The court held that the complaint did not state a claim for abuse of process because it failed to allege that the defendants had engaged in overt acts for a collateral purpose unrelated to the lawsuit that they were prosecuting. Varga v. Pareles, 137 Conn. 663, 667, 81 A.2d 112 (1951). Finally, the court concluded that the plaintiff's complaint could not support an action for legal malpractice grounded in the provisions of the Code of Professional Responsibility, because it did not allege that the plaintiff had ever been the foreseeable beneficiary of the legal services rendered by the defendants for their client, Muszynski.

The plaintiff's appeal does not contest the trial court's ruling on vexatious litigation. The plaintiff maintains, however, that the trial court erred in holding that his complaint failed to state a claim either for abuse of process or for legal malpractice. These claims of error warrant separate consideration.


The plaintiff asserts that he has stated a cause of action for abuse of process by alleging, in his complaint, that the defendants: (1) filed amendments to the pleadings in the Muszynski action when the defendants knew that the allegations of those amendments were false; and (2) refused to withdraw the Muszynski action after learning that it was utterly without merit. This conduct constituted abuse of process, according to the plaintiff, because it was allegedly undertaken for "an unlawful ulterior purpose, to wit: to inflict injury upon the plaintiff and to enrich themselves and their said client although they knew that their said lawsuit was without merit."

In our assessment of the viability of this complaint, it is useful to note at the outset what the complaint does not allege. There is no claim that the defendants undertook any action outside of the normal course of proceedings in the Muszynski case itself. For example, there is no claim that the defendants used the pleadings or the process in the Muszynski case as leverage to coerce the plaintiff to pay a debt or surrender property unrelated to that litigation. Similarly, there is no claim that the defendants used unreasonable force, excessive attachments or extortionate methods to enforce the right of action asserted in the Muszynski case. Finally, there is no claim that the defendants' purpose in pursuing the Muszynski case was to gain any collateral advantage extraneous to its merits. The only injury of which the plaintiff complains is that the defendants improperly continued to pursue the Muszynski case in order to enrich themselves and Muszynski at the plaintiff's expense.

An action for abuse of process lies against any person using "a legal process against another in an improper manner or to accomplish a purpose for which it was not designed." Varga v. Pareles, supra, 667, 81 A.2d 112; Schaefer v. O.K. Tool Co., 110 Conn. 528, 532-33, 148 A. 330 (1930). Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of "a legal process ... against another primarily to accomplish a purpose for which it is not designed...." (Emphasis added.) Comment b to § 682 explains that the addition of "primarily" is meant to exclude liability "when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed.1986) § 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed.1981) § 61; W. Prosser & W. Keeton, Torts (5th Ed.1984) § 121.

We have not previously considered the scope of the potential liability of an attorney for abuse of process arising out of the attorney's professional representation of the interests of his or her clients. Such a cause of action must be reconciled with our responsibility to assure unfettered access to our courts. Because litigants cannot have such access without being assured of the unrestricted and undivided loyalty of their own attorneys, we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings. Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986); see 2 F. Harper, F. James & O. Gray, supra, § 5.22, esp. pp. 191-92; 3 Restatement (Second), Torts § 586 (1977); R. Mallen & V. Levit, supra, § 65; W. Prosser & W. Keeton, supra, § 114. For other causes of action, however, the exigencies of the adversary system have not been deemed to require absolute immunity for attorneys. We have assumed, without discussion, that an attorney may be sued in an action for vexatious litigation, arguably because that cause of action has built-in restraints that minimize the risk of inappropriate litigation. Vandersluis v. Weil, supra, 176 Conn. at 361, 407 A.2d 982. 1 Other courts have held that immunity from libel actions should not carry over to provide an attorney with an absolute defense to liability for abuse of process. See, e.g., Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 728 P.2d 1202, 1209, 232 Cal.Rptr. 567 (1986); Hoppe v. Klapperich, 224 Minn. 224, 243, 28 N.W.2d 780 (1947); Peerman v. Sidicane, 605 S.W.2d 242, 245 (Tenn.App.1980). Accordingly, we conclude that an attorney may be sued for misconduct by those who have sustained a special injury because of an unauthorized use of legal process. In permitting such a cause of action, we must, however, take care "not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues." Morowitz v. Marvel, 423 A.2d 196, 197-98 (D.C.App.1980); Brody v. Ruby, 267 N.W.2d 902, 905 (Iowa 1978); Spencer v. Burglass, 337 So.2d 596, 601 (La.App.1976), writ of review denied, 340 So.2d 990 (La.1977).

State courts in other jurisdictions have undertaken the process of balancing these competing interests, prinicipally in cases arising out of medical malpractice litigation. The factual setting of these cases is a suit by a physician seeking vindication from an attorney after a malpractice claim brought on behalf of the physician's patient has ended in withdrawal, dismissal or settlement. Courts have struggled to determine under what circumstances such a complaint states a cause of action for abuse of process. The existing case law demonstrates that there is no bright line that clearly distinguishes between the ends ordinarily associated with litigation and the ulterior purpose that the tort of abuse of process is intended to sanction. Much turns on the specificity of the pleadings. In many of the cases, the complaints have alleged generally...

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