Suffield Dev. Assoc. v. National Loan Investors

• Decision Date: 10 July 2001
• Docket Number: 21253
• Citation: Suffield Dev. Assoc. v. National Loan Investors, 779 A.2d 822 (Conn. App. 2001)
• Court: Connecticut Court of Appeals
• Parties: SUFFIELD DEVELOPMENT ASSOCIATES LIMITED PARTNERSHIP v. NATIONAL LOAN INVESTORS, L.P., ET AL. AC 21253 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

SUFFIELD DEVELOPMENT ASSOCIATES LIMITED PARTNERSHIP v NATIONAL LOAN INVESTORS, L.P., ET AL.

AC 21253

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 2, 2001

July 10, 2001

Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellant (plaintiff).

Kerry R. Callahan, with whom, on the brief, were Donald C. Mahoney and Drew S. Graham, for the appellees (defendant Berman and Sable et al.).

Foti, Mihalakos and Peters, Js.

Foti, J.

Opinion

The plaintiff, Suffield Development Associates Limited Partnership, appeals from the judgment of the trial court in favor of the defendants, National Loan Investors, L.P. (National Loan),¹ the law firm of Berman and Sable, and attorney James W. Oliver, rendered after the court granted the defendants' motions to strike the plaintiff's original and amended complaints.² On appeal, the plaintiff claims that the trial court improperly granted the motions to strike (1) the first count of the complaint, which alleged abuse of process based on the defendants' misrepresentations to the Superior Court when the defendants obtained and carried out an execution on a judgment in an amount in excess of that authorized by the judgment, (2) the second count of the complaint, which alleged a cause of action based on the defendants' fraudulent misrepresentations to the Superior Court regarding their entitlement to an execution on a judgment and the amount thereof, thereby causing damage to the plaintiff, (3) the third count of the amended complaint, which alleged tortious interference with a settlement agreement between the plaintiff and BankBoston, thereby depriving the plaintiff of its right to the enjoyment and the benefit of that contract, (4) the fourth count of the amended complaint, which alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a et seq., based on the defendants' misrepresentations and fraud on the court when the defendants obtained and carried out an execution on a judgment in an amount in excess of that authorized by the judgment and (5) the prayer for relief, which sought common-law punitive and exemplary damages, statutory punitive damages and attorney's fees. We affirm the judgment of the trial court.

The following facts as alleged in the plaintiff's original and amended complaints are necessary for our resolution of this appeal. The plaintiff entered into a stipulated judgment with National Loan. The law firm of Berman and Sable and attorney James W. Oliver represented National Loan.

On April 22, 1999, the plaintiff resolved a dispute with Society for Savings when it settled with BankBoston, the successor to Society for Savings, by agreeing to pay Richard Weinstein, Trustee, the sum of $1.5 million in settlement of the plaintiff's claims. The stipulation between the plaintiff and National Loan provided, inter alia, that National Loan would be given a sum or percentage of the proceeds received by the plaintiff from a "certain lender liability judgment" against Society for Savings. That judgment, however, was reversed by our Supreme Court; Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 846, 708 A.2d 1361 (1998); and a new trial was ordered on an alternate cause of action.

After reaching a settlement with BankBoston, the plaintiff notified National Loan's counsel of the settlement. The plaintiff further expressed to National Loan's counsel that under the terms of its stipulation with National Loan, because there were no proceeds from the "certain lender liability judgment," no moneys were due and owing. Nevertheless, the plaintiff offered to escrow an amount of money until a judicial determination could be made as to whether the stipulation applied to the settlement.

The defendants demanded payment and threatened to undo the stipulation if payment was not made, even though the dispute existed. Further, the plaintiff alleged that, in an effort to pressure the plaintiff, the defendant attorneys, acting on behalf of National Loan and on their own behalf, wrongfully applied to the Superior Court for an execution of judgment in an attempt to seize part of the settlement proceeds from Bank-Boston.³

The execution application allegedly misrepresented National Loan's right as a matter of law to the amounts due and further misrepresented the amount of any such claim. The complaint further alleged that the defendants wrongfully directed a sheriff to execute on the settlement and that the defendants have continued to attempt to enforce the execution, fully aware that the application for execution was false, that the amount of the execution was inflated and that National Loan's right to the execution was disputed. Finally, the defendants' actions were claimed to be malicious.

The first count of the complaint alleged a cause of action for abuse of process. The second count alleged fraud. The third count of the amended complaint alleged tortious interference with the contractual rights of the plaintiff. The fourth count of the amended complaint alleged a violation of CUTPA. Additional facts will be provided as needed.

"We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. 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 on the [defendants' motion] is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232±n33, 680 A.2d 127 (1996) [cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997)].... 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. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108±n109, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996).... Itisfundamental 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.... Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.... Edwards v. Tardif, 240 Conn. 610, 620, 692 A.2d 1266 (1997)." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260±n61, 765 A.2d 505 (2001).

I.

The plaintiff first claims that the court improperly granted the motions to strike the first count of its original complaint because that count alleged sufficient facts to support a cause of action for abuse of process. Specifically, the plaintiff argues that the defendants made misrepresentations to the Superior Court when they obtained and carried out the execution in an amount in excess of that authorized by the judgment. Thus, the plaintiff argues that the defendants misused process in an attempt to seize property in excess of that to which they were entitled. In response, the defendants argue that the first count of the complaint fails to state a cause of action for abuse of process because it does not allege that the defendants used the legal process in a manner for which it was not intended. We agree with the defendants.

"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, [137 Conn. 663, 667, 81 A.2d 112 (1951)]; Schaefer v. O. K. Tool Co., 110 Conn. 528, 532±n33, 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....

"[A] cause of action [for abuse of process arising out of an attorney's professional representation of his or her clients' interests] 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±n46, 510 A.2d 1337 (1986); see 2 F. Harper, F. James & O. Gray, supra, §§ 5.22, esp. pp. 191±n92; 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. ...