ABB, INC. v. TATE RENNER.

2008 Ct. Sup. 14466, 46 CLR 345
No. CV 08 4023893 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
September 8, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION MOTION TO STRIKE
BY JUDGE RICHARD E. ARNOLD.

The defendant has moved to strike the plaintiff’s complaint dated January 29, 2008 bearing a return date of March 4, 2008. The motion to strike is filed pursuant to Practice Book § 10-39. The complaint contains two counts. The first count alleges an abuse of process, and the second count alleges a violation of the Connecticut Unfair Trade Practice Act (“CUTPA”).

The plaintiff alleges that the defendant law firm, in its representation of a client in connection with the client’s employment law claims, improperly named the plaintiff in complaints filed with the United States Occupational and Safety and Health Administration (“OSHA”) and the United States Department of Labor (“DOL”).

The plaintiff alleges that on or about February 15, 2007, the defendant filed an OSHA complaint against his client’s employer, ABB Transmission and Distribution LTD. and ABB LTD. of Zurich, Switzerland. The plaintiff alleges that OSHA issued a ruling indicating that no OSHA jurisdiction existed for employment outside the United States. The plaintiff further alleges that the defendant filed additional complaints with OSHA on May 2, 2007, adding the plaintiff as a respondent to the OSHA complaint. The plaintiff further alleges that on July 2, 2007, the defendant filed a Supplemental Complaint naming the plaintiff as a respondent. The plaintiff thereafter, alleges that on September 24, 2007, the Administrative Law Judge dismissed the complaint ruling that the employment occurred outside the United States and, therefore, was not covered by the statutes relied upon by the defendant in filing the claim with OSHA. The plaintiff alleges the Administrative Law Judge ordered that no timely claims were filed against the plaintiff.

In the First Count, the plaintiff claims the filing of the claims were “without proper purpose and can only be to harass and for improper purposes; were undertaken for improper purpose, including a transparent attempt apparently to pressure plaintiff into causing monies to be paid CT Page 14467 which are not due and owing; that the defendant’s attempts to add the plaintiff were for improper purposes, including, but not limited to, harassment and intimidation to encourage a result in favor of defendant’s claims after two adverse Orders had already been issued against the claims filed by the defendant.”

In the Second Count of the plaintiff’s complaint, the plaintiff claims the actions of the defendant law firm, as alleged in the First Count, constitute unfair trade practices under CUTPA.

The defendant moves to strike the First Count for the following reasons:

1. The plaintiff fails to allege specific misconduct that would show the actions of the defendant in filing the claims against the plaintiff were taken primarily for a purpose for which they were not designed;
2. The filing of claims to an administrative body such as OSHA is not the use of a judicial process to support an abuse of process claim;
3. The claim is premature since there is no allegation that the Orders of OSHA referred to in the complaint are final, and, in fact, the plaintiff alleges that the defendant continued to file appeals.

The defendant argues that the Second Count should be stricken because the plaintiff cannot maintain a CUTPA action against a lawyer unless the claim involves the entrepreneurial aspect of the legal profession, and this claim does not.

In opposing the motion to strike, the plaintiff argues that a claim for abuse of process may arise from an abuse of an administrative process, and that the defendant’s motion to strike is, in fact, a motion for summary judgment because the defendant’s motion “relies on facts, factors, documents, information and pleading outside the record.” The plaintiff additionally argues that its complaint contains appropriate allegations to plead causes of action in for both abuse of process and CUTPA For the reasons discussed herein, the motion to strike the First and Second Counts is granted.

I Legal Standard
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“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.” Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if “the plaintiff’s complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law.” Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).

A motion to strike “admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis omitted.) Id. “A motion to strike is properly granted where a plaintiff’s complaint alleges legal conclusions unsupported by facts.” Id. Furthermore, “[i]n ruling on a motion to strike, the court is limited to the facts alleged in the complaint.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). A motion to strike “is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged.” (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).

Upon deciding a motion to strike, the trial court must construe the “plaintiff’s complaint in [a] manner most favorable to sustaining its legal sufficiency.” Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). The court “assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder.” (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). “In doing so, morever, [the court] read[s] the allegations broadly, rather than narrowly.” Id. “The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail.”Mingachos v. CBS, Inc., supra, 196 Conn.108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).

I Abuse of Process A.
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Allegations of Specific Misconduct
The defendant first argues that the plaintiff has failed to allege specific misconduct that would show the actions of the defendant in filing the claims against the plaintiff were taken primarily for a purpose for which they were not designed. “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. 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 . . . 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.” (Citations omitted.) (Internal quotation marks omitted.) Laborina v. McDonald, 274 Conn. 394, 403-04, 876 A.2d 522 (2005).

“Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose. The gravamen of the complaint is the use of process for a purpose not justified by law. The distinction between malicious prosecution or vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceedings, not in the issue of process but in its abuse.” (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 360 n. 16, 773 A.2d 906 (2001). As further explained by the court in Barbiero v. Chiocca, Superior Court, judicial district of New Haven, Docket No. CV 05 40139295 (January 31, 2006, Corradino, J.) (40 Conn. L. Rptr. 694, 695): “Abuse of process differs . . . from in that the gist of the tort is not . . . causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish.” (Internal quotation marks omitted.)

When reviewing a claim for abuse of process against an attorney, the court looks to the case of Mozzochi v. Beck, 204 Conn. 490, 497, 529 A.2d 171 (1987) for guidance. “In Mozzochi, our Supreme Court established a specific test to determine the scope of potential liability of an attorney for abuse of process arising out of his or her professional representation of the interest of his or her clients. The court noted that this cause of action competed against the policy of ensuring unfettered access to the courts.” (Citation omitted.) CT Page 1447 Bernhard-Thomas Building Sys. v. Dunican, 100 Conn.App. 63, 77-78, 918 A.2d 889 (2007). In an effort to avoid adoption of “rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues”; (internal quotation marks omitted) Mozzochi v. Beck supra, 204 Conn. 495. Our Supreme Court concluded that “although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney’s primary duty of robust representation of the interests of his or her client.” Id., 497. Therefore, when the defendant is an attorney, the “viability of an abuse of process claim turns on the specificity of the allegation.” Id. At 497, n. 2.

The plaintiff’s complaint fails to allege specific misconduct by the defendant law firm that was intended to cause specific injury outside the normal contemplation of private litigation. The court agrees with the defendant that the plaintiff does not allege that the primary purpose of the defendant’s filing of the claim with OSHA was to cause the plaintiff injury outside the normal course of litigation. There is no allegation that the defendant’s actions were being used as leverage to gain any collateral advantage extraneous to the merits of the claim which was filed. Rather the allegations, read in a light most favorable to the plaintiff, do no more than allege that the defendant’s motive was to benefit its client in the client’s claim with OSHA and not some extraneous matter not connected to the substance of the claim.

B. Judicial Process and Administrative Claims
The defendant next argues that the filing of a claim to an administrative body such as OSHA is not the use of a judicial process to support an abuse of process claim. Accordingly, the defendant argues, there are no allegations in the plaintiff’s complaint that a judicial process has been abused. “[A]lthough the definition of process may be broad enough to cover a wide range of judicial procedures, to prevail on an abuse of process claim, the plaintiff must establish that the defendant used a judicial process for an improper purpose.” (Internal citations omitted.) Larobina v. McDonald, 274 Conn. 394, 406-07, 876 A.2d 522 (2005). In support of its position the defendant cites Stolz v. Wong Communications Limited Partnership, 25 Cal.App.4th 1811, 1822-23, 31 Cal. Rptr.2d 229 (1994) which states: CT Page 14471

[T]he essence of the tort “abuse of process” lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. We have located no authority extending the tort of abuse of process to administrative proceedings. Application of the tort to administrative proceedings would not serve the purpose of the tort, which is to preserve the integrity of the court.

(Citations omitted.) Id.

The decision in Stolz, supra, was recently cited in Moore v. Western Forge Corporation, 06CA0229 (Colo.App. 11-15-2007) where the court declined to extend abuse of process to a workers’ compensation proceeding because such claims did not involve any contact with a judicial forum. The court in Moore, supra stated:

Moore cites no case, and we have found none, extending the abuse of process tort to actions taken in the administration of workers’ compensation claims, such as filing a Notice of Contest. Nor has any Colorado appellate case accepted an abuse of process claim based on action taken in an administrative proceeding. The vast majority of jurisdictions decline to recognize abuse of process in non-judicial proceedings. See, e.g., Stolz v. Wong Commc’ns Ltd. P’ship, 25 Cal.App. 4th 1811, 31 Cal. Rptr.2d 229
(1994) (misuse of the Federal Communications Commission broadcast licensing process failed to state a cause of action for abuse of process because no actionable abuse of judicial process was alleged) . . . [W]e decline to extend abuse of process to a workers’ compensation proceeding because such claims do not involve any contact with a judicial forum. Cf. Brodeur at (discussing differences between workers’ compensation and judicial proceedings).

(Internal citations omitted.) (Internal quotations marks omitted.)Id. at 28-30.

The plaintiff argues that the abuse of process action applies to administrative proceedings, as well as, court proceedings. The plaintiff points to Zeller v. Consolini, 235 Conn. 417, 666 A.2d 64 (1995) and CT Page 1447 DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991) in support of its position. (See also. Rioux v. Barry, 283 Conn. 338
(2007). The plaintiff argues that both Zeller, supra, and DeLaurentis supra, establish that misconduct, whether in an administrative or judicial proceeding is subject to liability for abuse of process. “We have . . . recognized that, for purposes of the tort of vexatious litigation, the previous litigation that terminated in the plaintiff’s favor may be an administrative, rather than a judicial, proceeding.”Zeller v. Consolini, supra, 235 Conn. 424, quoting, DeLaurentis v. New Haven, supra, 220 Conn. 248-49. The plaintiff in support of its position also cites Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 852 A.2d 703 (2004). However, in Label Systems Corp., supra, the court never directly addressed this issue.[1]
Zeller, supra, and DeLaurentis, supra, are distinguishable from the present case. They were claims for vexatious litigation and not for an abuse of process. Zeller v. Consolini, supra, 235 Conn. 41; (claim for vexatious litigation permitted based on zoning application and Superior Court appeal) and DeLaurentis v. New Haven, supra, 220 Conn. 225
(vexatious litigation claim permitted based on administrative hearing). In Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 561-63, 944 A.2d 329 (2008),2 the court discussed the decisions in bot Zeller and DeLaurentis in determining that it would not permit vexatious litigation claims to be based on an unsuccessful prejudgment remedy application. In Bernhard-Thomas, the court stated:

Zeller does not support a cause of action for vexatious litigation in the present case for two reasons. First, there was a civil action brought to court in that the defendants had appealed from the denial of their zoning application to the Superior Court and lost that appeal. Second, the issue in Zeller turned on the plaintiffs’ party status and not on whether the zone change proceedings and the subsequent Superior Court appeal constituted a civil action.

Bernhard-Thomas Building Systems, LLC v. Dunican, supra 286 Conn. 562.

In discussing DeLaurentis, supra, the court in Bernhard-Thomas, supra, stated:

In DeLaurentis, the plaintiff, the former chairperson of the New Haven parking authority commission, sought damages from the defendants, the city of New Haven and CT Page 14473 its then mayor, for, inter alia, vexatious litigation arising out of the mayor’s having instituted, and then abandoned, administrative proceedings against the plaintiff to remove him from his public office. This court rejected the defendants’ argument that, because the removal proceeding at issue was administrative in nature, it did not constitute a civil action and thus could not give rise to a claim for vexatious litigation. Specifically, this court concluded that the plaintiff was not barred from bringing a vexatious litigation action simply because the proceeding did not take place in a courtroom. The court emphasized that these removal proceedings, which were prescribed in the New Haven city charter, might have resulted in depriving [the plaintiff] of his position as a parking authority commissioner. Thus, the administrative proceeding could have resulted in a final determination of the plaintiff’s job status.

(Internal citations and internal quotation marks omitted.)Bernhard-Thomas Building Systems, LLC v. Dunican, supra 286 Conn. 562-63.

In furtherance of its argument that an abuse of process action applies to administrative proceedings, as well as, court proceedings, the plaintiff relies on Velez v. City of New London, 903 F.Sup. 286
(D.Conn. 1995). However, this reliance is misguided. Velez, supra, involved a New London police officer who alleged he had been the victim of racial discrimination, harassment, intimidation, false criminal complaints, and adverse employment actions including multiple suspensions and subsequent reinstatements. The defendants in Velez argued that Velez’s claims should be dismissed due to the statute of limitations or for inadequate pleading. The court refused to dismiss the abuse of process count of the complaint stating that it sufficiently alleged a tort action for abuse of process. The court’s decision contains no analysis as to whether an abuse of process action applies to administrative proceedings, and does not acknowledge that such an issue was ever raised by the Velez defendants.” Id. at 291.

The plaintiff has also directed the court’s attention to Cignetti v. Healy, 967 F.Sup. 10, 18 (D.Mass. 1997) and Hillside Associates v. Stravato, 642 A.2d 664 (R.I. 1994), which directly address the issue at hand. In Cignetti v. Mealy, supra, the court acknowledged that there was no Massachusetts case-law as to whether a civil service hearing constituted “process” for the purpose of an abuse of process claim. Id., 18. Cignetti, in finding that such a hearing constituted “process” for CT Page 14474 the purpose of an abuse of process claim, relied on the decision from Rhode Island in Hillside Associates v. Stravato, supra, (a hearing before a zoning board was sufficient to constitute “process.”) The Cignetti
court found that a civil service proceeding which compelled the parties to submit to the jurisdiction of the Civil Service Commission, to retain counsel, to provide testimony, and to abide by the decision of the Commission, was a quasi-judicial administrative hearing sufficient to state an abuse of process claim.

In Hillside Associates, supra, the court concluded that, in “the proper circumstances,” claims for malicious prosecution and/or abuse of process may arise from a party’s malicious use or abuse of an administrative process. (Quotation marks added.) Id. at 666. The court found that while historically such causes of action arose from misuse of court proceedings or judicial processes, “the continually expanding role of administrative bodies that perform quasi-judicial functions created the setting for the abuse of administrative proceedings. Id. at 667.

Thus judicial proceedings need not be construed as uniquely those proceedings before divisions of the Judiciary. Rather, the term comprises the quasi-judicial proceedings of administrative bodies that in essence determine legal rights outside the traditional court of law.

(Internal citations omitted.) Id. at 668.

Consequently, we conclude that the misuse of an administrative proceeding may give rise to claims for malicious prosecution and/or abuse of process. We caution, however, that only quasi-judicial contested administrative determinations or proceedings that establish the legal rights, duties, or privileges of a party after a hearing and that embody sufficient attributes of judicial proceedings may generate causes of action for malicious prosecution or for abuse of process. Specifically, such administrative proceedings should include at least (1) notice to the parties in interest, (2) the presentation of evidence and/or testimony under oath, and (3) a timely recorded decision by duly appointed or elected officials.

Id. at 669.

While recognizing that Hillside Associates v. Stravato, supra, CT Page 14475 642 A.2d 664, establishes that the misuse of administrative proceedings may give rise to an abuse of process claim in Rhode Island in certain administrative proceedings, the plaintiff has not overcome the statement of our Supreme Court in Laborina v. McDonald, supra, 274 Conn. 394, 407-08, that “to prevail on an abuse of process claim, the plaintiff must establish that the defendant used a judicial process for an improper purpose.” (Emphasis added.) Id., 407-08.

In Laborina the court did not reach the issue of “the scope of the term process” as it relates to an abuse of process claim because it concluded that such an action was premature. Id., 408. The Laborina court commented that “most of the acts alleged by the plaintiff in support of his abuse of process claim did not involve a judicial procedure and, therefore, as a matter of law, do not support an abuse of process claim.” Id. at 407 n. 1.

Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 562-63, notes that “[t]he court in Larobina makes clear that the use of legal or judicial process is the predicate act necessary to support a claim for abuse of process, notwithstanding that it did not determine the issue of exactly what is meant by the term process.” Id.;
See Laborina v. McDonald, supra, 274 Conn. 404-08.

General Statutes § 52-45a defines a legal process as follows:

“Civil actions shall be commenced by a legal process consisting of a writ of summons, or attachment, describing the parties, the court to which it is returnable, the return day, the date, time and place for filing an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff’s complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.”
General Statutes § 52-45a; Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554-55.[2]

Based on the guidance provided by Laborina v. McDonald, supra, 274 Conn. 394, and Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, this court will not expand the scope of judicial proceedings or legal process to include administrative proceedings. That task is more appropriate for our Supreme Court and our Appellate Court. CT Page 14476 Accordingly, the court determines that legal process as it relates to an abuse of process claim is judicial in nature to the extent it implicates the court process.

II CUTPA
The defendant law firm argues that the court should strike the second count of the plaintiff’s complaint alleging a violation of CUTPA because CUTPA does not apply to the non-business aspects of the practice of law. The court agrees as a review of the second count reveals that it is not based upon the defendant’s conduct in the operation of law firm business, such as billing, advertising and the like. The second count is related solely to the defendant’s capacity as legal counsel in the context of the factual allegations. The allegations regard the defendant’s actions in representing its client. They are not based on the “entrepreneurial aspects of the practice of law.” Beverly Hills Concepts, Inc. v. Schatz, Schatz, Ribicoff Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998), quoting, Haynes v. Yale New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997). “[T]he mere fact that the actions of the attorney and the law firm might have deviated from the standards of their profession does not necessarily make the allegations entrepreneurial in nature.” Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 793, 802 A.2d 44 (2002).

III Conclusion
For the reasons set forth herein, the defendant’s motion to strike the First and Second Counts of the plaintiff’s complaint are hereby granted.[1a]

[1] In Label Systems Corp. supra, 270 Conn. 300 n. 8 the court stated:

In the present case, the defendants initiated the administrative action by filing for unemployment benefits, from which the plaintiffs then appealed based on an allegation of wilful and felonious misconduct by the defendants. The plaintiffs have not challenged the application of DeLaurentis to the present case, and, therefore, we need not decide CT Page 14477 whether a defense asserted in an appeal from an administrative action instituted by another party can give rise to a claim of vexatious litigation.
(Emphasis added.) Id.

[2] Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 561-63, 944 A.2d 329 (2008) was also a claim regarding vexatious litigation.[2a]
[1a] The court has not addressed the defendant’s third claim that the plaintiff’s action is premature because of any appellate procedures applicable to the rulings regarding the OSHA claims. Further information regarding any appeals would be beyond the allegations of the complaint and will not be considered on a motion to strike. The court has addressed the defendant’s remaining claims and finds them dispositive of the motion.
[2a] The citation that is used to commence an administrative appeal is analogous to the writ used to commence a civil action.” Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 542 n. 1, 610 A.2d 1260
(1992).

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