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.
The record reveals the following facts and procedural history. In 1999, the plaintiff brought an action against First Union (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,
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
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.
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 recognized, however, that the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because "[t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ... [while the] granting of a motion to strike allows the plaintiff to replead his or her case." (Citation omitted; internal quotation marks omitted.) Pane v. Danbury, supra, at 674 n. 7, 841 A.2d 684, quoting Rivera v. Double A Transportation, Inc., 248 Conn. 21, 38 n. 3, 727 A.2d 204 (1999) (Berdon, J., dissenting); cf. Kroll v. Steere, 60 Conn.App. 376, 384 n. 6, 759 A.2d 541 (motion for summary judgment may be treated as motion to strike when plaintiff did not claim that she should have been allowed to replead), cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).
With these authorities in mind, we conclude that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading. See Boucher Agency, Inc. v. Zimmer, supra, 160 Conn. at 410, 279 A.2d 540. If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to
In addition, we will not reverse the trial court's ruling on a motion for summary judgment that was used to challenge the legal sufficiency of the complaint when it is clear that the motion was being used for that purpose and the nonmoving party, by failing to object to the procedure before the trial court, cannot demonstrate prejudice. A plaintiff should not be allowed to argue to the trial court that his complaint is legally sufficient and then argue on appeal that the trial court should have allowed him to amend his pleading to render it legally sufficient. "Our rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him.... To rule otherwise would permit trial by ambuscade." (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 207, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).
In the present case, the plaintiff stated in his brief to the trial court that the defendants were using the motion for summary judgment to challenge the legal sufficiency of his complaint. He then argued that the complaint was legally sufficient. We conclude, therefore, that he has waived any objection to the use of the motion for that purpose and any claim that he should be permitted to replead. Moreover, it is clear that the plaintiff has no further facts to allege that would cure the legal defects identified in this complaint. Accordingly, we consider the merits of the trial court's determination that the complaint was legally insufficient. "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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
We first address the plaintiff's claim that the trial court improperly rendered judgment for the defendants on his abuse of process claim. "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, 532-33, 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
In the present case, the first count of the plaintiff's revised complaint alleges that the following specific acts by the defendants constituted abuse of process: (1) McDonald contemporaneously maintained an appearance on behalf of First Union in the first action and an appearance on behalf of the city of Stamford in a separate foreclosure action against the plaintiff, and this "dual representation" was a conflict of interest; (2) McDonald requested an extension of time to plead in the first action "due to the demands of his public office"; (3) the defendants failed to proceed on their objection to the plaintiff's amended complaint for eighteen months until ordered to do so by way of a motion to compel; (4) the defendants removed the first action to the United States District Court after three years of litigation in state court; (5) the defendants requested another extension of time to answer the complaint in the United States District Court; (6) the defendants failed to send a representative from First Union who had settlement authority to a settlement conference; (7) the defendants ignored the order of the United States District Court to file a written settlement proposal; (8) the defendants continued to tell the plaintiff that, if he failed to pay all money purportedly due on the original mortgage, First Union would impose fees, interest, penalties and other charges on him; (9) the defendants have continued to deny the existence of the re-age agreement despite voluminous evidence to the contrary produced by the plaintiff; (10) the defendants have continued to maintain that Roderick Williams, who allegedly signed the re-age agreement, was never employed by First Union; and (11) the defendants have continued to deny any knowledge of Shelter Products, the corporate entity referred to in the re-age agreement.
The plaintiff alleges that this conduct demonstrated "an effort to use legal process for the undesigned purpose of waging a war of attrition against the plaintiff in order to coerce the plaintiff by unethical and extortionary means into surrendering his legal rights and assets." He further alleges that the defendants engaged in this conduct "to conceal and avert the consequences of fraudulent conduct; namely, the bank's original representation that the [r]e-age [a]greement constituted a valid mortgage term extension agreement ...."
This court previously has not considered the question of whether an abuse of process claim may be predicated on conduct other than the institution and prosecution of a legal action for an improper purpose. Our review of the case law from other jurisdictions reveals that most courts that have considered the issue have construed the term process broadly. See, e.g., Hopper v. Drysdale, 524 F.Supp. 1039, 1042 (D.Mont.1981) (under Montana law, notice of deposition is process for purpose of tort of abuse of process); Nienstedt v. Wetzel, 133 Ariz. 348, 352, 651 P.2d 876 (1982) (process has been interpreted broadly to encompass entire range of procedures incident to litigation process); Twyford v. Twyford, 63 Cal.App.3d 916, 923, 134 Cal.Rptr. 145 (1976) (same); Kensington Land Co. v. Zelnick, 94 Ohio Misc.2d 180, 184, 704 N.E.2d 1285 (1997) (process includes all acts of court from beginning to end of action); Foothill Industrial Bank v. Mikkelson, 623 P.2d 748, 757 (Wyo.1981) (process has been interpreted broadly to encompass entire range of procedures incident to litigation process); cf. Gordon v. Community First State Bank, 255 Neb. 637, 648, 587 N.W.2d 343 (1998) (process means "any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property" [internal quotation marks omitted]), cert. denied, 528 U.S. 814, 120 S.Ct. 50, 145 L.Ed.2d 44 (1999). The court in Twyford v. Twyford, supra, at 923, 134 Cal.Rptr. 145, explained that "[t]his broad reach of the `abuse of process' tort can be explained historically, since the tort evolved as a `catch-all' category to cover improper uses of the judicial machinery that did not fit within the earlier established, but narrowly circumscribed, action of malicious prosecution." All of these courts agree, however, that, although 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. See Hopper v. Drysdale, supra, at 1041; Nienstedt v. Wetzel, supra, at 353, 651 P.2d 876; Twyford v. Twyford, supra, at 923, 134 Cal.Rptr. 145; Kensington Land Co. v. Zelnick, supra, at 184, 704 N.E.2d 1285; Foothill Industrial Bank v. Mikkelson, supra, at 757.
In the present case, 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.
We next address the plaintiff's claim that the trial court improperly rendered judgment for the defendants on his claims of civil conspiracy. "The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 779, 835 A.2d 953 (2003). "[T]here is no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself.... Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citation omitted; internal quotation marks omitted.) Id., at 779 n. 37, 835 A.2d 953.
The plaintiff alleges that the defendants entered into a civil conspiracy designed "to fraudulently conceal an unlawful scheme on the part of [First Union] in which it exacted $50.00 from the plaintiff, and others similarly situated, in consideration of a mortgage extension agreement; which mortgage extension agreement(s) the defendants now wilfully and fraudulently refuse to either acknowledge or honor." With respect to the allegation of an unlawful scheme, the plaintiff has not made any allegations or referred us to any evidence as to the nature or purpose of any such scheme, or how or why the defendants are attempting to conceal it. See footnote 5 of this opinion. Accordingly, we decline to consider the claim. With respect to the allegation that the defendants have conspired to refuse to
We next address the plaintiff's claim that the trial court improperly rendered judgment for the defendants on his claim for negligent infliction of emotional distress. "[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.... This ... test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003).
We conclude that the trial court properly rendered judgment for the defendants on the plaintiff's negligent infliction of emotional distress claim for the same reasons that we have cited in connection with the plaintiff's other claims, namely, the claim is duplicative of the negligent infliction of emotional distress claim against First Union in the first action, allowing such claims would subject the courts to a flood of collateral actions arising from aggressive litigation tactics and would effectively chill the vigorous
We emphasize that although we have concluded that the trial court properly rendered judgment for the defendants on all counts of the plaintiff's complaint, we express no opinion as to whether the plaintiff may seek a remedy in the first action for his underlying claims of dilatory, bad faith and harassing litigation conduct by First Union and its attorneys. The trial court in the first action has authority to address any such claims and to order appropriate sanctions against the defendants if such conduct is found. See CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996).
The judgment is affirmed.
In this opinion the other justices concurred.