Parnoff v. Town of Stratford

• Decision Date: 15 November 2022
• Docket Number: AC 44491
• Citation: 216 Conn.App. 491,285 A.3d 802
• Parties: Laurence V. PARNOFF v. TOWN OF STRATFORD, et al.
• Court: Connecticut Court of Appeals

216 Conn.App. 491

285 A.3d 802

Laurence V. PARNOFF

v.TOWN OF STRATFORD, et al.

AC 44491

Appellate Court of Connecticut.

Argued September 7, 2022

Officially Released November 15, 2022

Laurence V. Parnoff, self-represented, Stratford, filed a brief as the appellant (plaintiff).

Ryan P. Driscoll, Milford, for the appellees (named defendant et al.).

Alexander J. Florek, for the appellee (defendant Melinda Fonda).

Moll, Clark and DiPentima, Js.

CLARK, J.

The plaintiff, Laurence V. Parnoff, appeals from the judgment of the trial court rendered following the granting of motions to strike filed by the defendants, the town of Stratford (town), Melinda Fonda, Berchem Moses PC (Berchem Moses), and Laura Hoydick. On appeal, the plaintiff argues that (1) his claims under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and his negligent infliction of emotional distress claims, all stemming from a public records request he made pursuant to the Freedom of Information Act (act), General Statutes § 1-200 et seq., were improperly stricken because he pleaded allegations sufficient to support those claims, and (2) the court improperly granted the motions to strike with prejudice. We affirm the judgment of the trial court.

We begin by setting forth the facts, as alleged in the plaintiff's operative complaints,¹ and the procedural history of this case. On April 2, 2019, the plaintiff sent a records request to Fonda, the then tax assessor of the town, regarding the plaintiff's real property located at 3392 Huntington Road in Stratford. The plaintiff requested, inter alia, "the complete [assessor's] file from 2014 through the date hereof, including all correspondence, tax disclosure forms, inspection reports, assessments, notes and records of the board of assessment appeals, tax bills and payment records." Two days later, on April 4, 2019, Berchem Moses, counsel for the town, replied to the plaintiff's letter with a letter stating that it would review the plaintiff's request and the records requested to determine whether any common-law or statutory exemptions to the act's production requirement apply. Berchem Moses indicated in its letter that the town was committed to providing prompt access to all records subject to disclosure under the law. The plaintiff replied to that letter on April 11, 2019, seeking clarification as to which requests might be exempt.

On or about July 13, 2019, the plaintiff commenced this action by way of a two count complaint against the town, Fonda, Berchem Moses, and Hoydick, the town's mayor. The plaintiff alleged in count one that the defendants failed to comply with the act. In count two, the plaintiff alleged that the defendants were liable for violations of CUTPA and for negligent infliction of emotional distress stemming from their failure to comply with the act.

On July 29, 2019, Berchem Moses provided the plaintiff with the documents sought in the records request. Although the documents requested by the plaintiff were produced, the plaintiff did not withdraw the underlying action. Instead, on August 15, 2019, the plaintiff filed an amended complaint pursuant to Practice Book § 10-59, adding a few allegations but maintaining both counts. Soon thereafter, the town, Hoydick, and Berchem Moses (collectively, town defendants) and Fonda separately filed motions to dismiss directed to count one of the amended complaint, arguing that the plaintiff failed to exhaust his administrative remedies.

On September 4, 2019, before the court ruled on the defendants’ motions to dismiss, the plaintiff filed a second amended complaint, which set forth the same claims that were contained in his prior amended complaint. On September 12, 2019, the town defendants and Fonda filed motions to dismiss directed to the first count of the second amended complaint, again asserting that the plaintiff failed to exhaust his administrative remedies.

On October 28, 2019, the court dismissed the first count of the second amended complaint as to all the defendants, concluding that it lacked subject matter jurisdiction over that count because the plaintiff had failed to exhaust his administrative remedies by filing a complaint with the Freedom of Information Commission before filing suit. The plaintiff has not appealed from that dismissal.

On November 6 and 14, 2019, the town defendants and Fonda, respectively, filed motions to strike directed to the second count of the second amended complaint. Both motions asserted that the defendants were exempt from CUTPA under General Statutes § 42-110c (a) (1)² and that the plaintiff had failed to allege that the defendants were engaged in trade or commerce, as is required in order to state a claim under CUTPA. Fonda's motion also argued that the plaintiff failed to sufficiently plead facts supporting a claim of negligent infliction of emotional distress. The plaintiff objected to the town defendants’ motion to strike on November 21, 2019, and to Fonda's motion to strike on December 2, 2019. On December 9, 2019, the trial court granted both motions to strike. The court concluded that Fonda's and Hoydick's activities were exempt from CUTPA under § 42-110c (a) (1) and that the defendants were not engaged in trade or commerce. The trial court did not articulate its basis for granting Fonda's motion to strike as to the plaintiff's negligent infliction of emotional distress claim, which was set forth in the same count as the CUTPA claim against her.

The plaintiff filed a substituted complaint on December 16, 2019 (first substituted complaint), which included five counts but left the first count blank as a result of the previously granted motions to dismiss. The second count alleged that Hoydick and Fonda were liable for negligent infliction of emotional distress. The third count alleged that Hoydick and Fonda violated CUTPA. The fourth count was directed at Berchem Moses and alleged that the firm was liable for negligent infliction of emotional distress. The fifth count alleged that Berchem Moses violated CUTPA.³

The town defendants⁴ and Fonda filed separate motions to strike on December 23, 2019. The town defendants sought to strike all counts of the first substituted complaint, arguing that the allegations merely restated allegations from previously stricken counts without addressing the deficiencies therein. Fonda sought to strike counts two and three of the first substituted complaint with prejudice on the same basis and also because the plaintiff asserted new causes of action in violation of Practice Book §§ 10-44 and 10-60. The plaintiff objected to both motions to strike on January 6, 2020. The trial court, Hon. Dale W. Radcliffe , judge trial referee, granted the motions to strike on February 10, 2020, and further ruled that the motions were granted with prejudice as to all CUTPA claims.

The plaintiff filed a second substituted complaint on February 20, 2020, expressly stating that the first, third, and fifth counts were not repleaded. On the basis of substantially the same factual allegations made in his previously filed complaints, he asserted negligent infliction of emotional distress claims against the town, Fonda, and Hoydick in the second count and against Berchem Moses in the fourth count.

The town defendants filed a motion to strike the second and fourth counts of the second substituted complaint on February 27, 2020. Fonda filed a motion to strike the entirety of the complaint on March 2, 2020. The town defendants argued that the challenged counts failed to state a cognizable cause of action and that the counts reasserted both the records request claims, which the court had dismissed, and the CUTPA claims, which the court had stricken with prejudice. Fonda argued that the second substituted complaint should be stricken in its entirety because the plaintiff had failed to address the pleading deficiencies that caused the trial court to strike the plaintiff's negligent infliction of emotional distress claims in the first substituted complaint and, as a result, failed to allege facts sufficient to support a claim of negligent infliction of emotional distress. The plaintiff objected to both motions on April 24, 2020.

On November 30, 2020, the trial court, Hon. Dale W. Radcliffe , judge trial referee, granted both motions to strike with prejudice in written orders citing the transcript of the hearing on the motions. In that transcript, the court characterized the conduct alleged as the act of responding to a public records request with the assistance of counsel. The court cited our decision in Stancuna v. Schaffer , 122 Conn. App. 484, 998 A.2d 1221 (2010), for the proposition that litigation alone is not enough to support a claim of negligent infliction of emotional distress and extended that reasoning to the public records request alleged in the plaintiff's second substituted complaint. The court concluded that the complaint failed to state a claim for negligent infliction of emotional distress because actors engaged in the conduct alleged could not reasonably "have foreseen that [their] behavior would likely cause a harm of a specific nature, emotional distress, and that that emotional distress would likely result in bodily harm."

On December 17, 2020, the court rendered judgment for the defendants pursuant to Practice Book § 10-44. This appeal followed.⁵ Additional facts will be set forth as necessary.

We begin by setting forth our standard of review. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling ... is plenary. ... We take 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, we note that [w]...