Michael Davidson v. John Morris (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE, # 116

In this case the plaintiff, Michael Davidson, asserts the defendant, John Morris, an attorney, improperly placed a lis pendens on his real property and thereby deprived him of and delayed his receipt of the proceeds from the sale of the property.   The defendant now moves to strike all five counts of the plaintiff's complaint as legally insufficient.

FACTS

On May 6, 2010, the plaintiff, Michael Davidson, filed a five-count second amended complaint against the defendant, John Morris.   The plaintiff alleges the following facts.   On or about November 3, 1986, the plaintiff purchased real property known as 16 Fawn Hill, Burlington, Connecticut.   In 1986, the plaintiff provided his brother, Philip E. Davidson, with a power of attorney to perform the real estate transaction regarding that property.   Legal title to the property, however, “was placed in the name of the plaintiff's brother, ‘Philip E. Davidson,’ rather than ‘Philip E. Davidson, Trustee.’  “ Since November 3, 1986, the plaintiff has occupied the property exclusively and paid all costs and expenses related thereto.   On August 15, 2007, the plaintiff entered into a contract for sale of the property and moved out.

The plaintiff further alleges that the defendant represented Philip's former wife, Susan Davidson, in her action for dissolution of marriage.   Susan had actual knowledge of the fact that Philip held the property in trust for the plaintiff, and the defendant knew, or with reasonable investigation should have known, the same.   Nevertheless, the defendant filed a notice of lis pendens against the property, which was recorded on August 31, 2007.   On that same date, a closing of title for the sale of the property took place and the net sale proceeds were disbursed to Philip.   Philip then endorsed the check to his attorney's clients' funds account for the benefit of the plaintiff.   Neither the plaintiff nor his brother were aware of the lis pendens until September 4, 2007, when it was discovered by the purchaser's attorney.   Consequently, the plaintiff's sale proceeds were ordered into escrow pending the conclusion of Philip and Susan's divorce action.

The plaintiff claims that the defendant had no good faith basis to file the notice of lis pendens, and no good faith basis to refuse to discharge the notice after receiving the plaintiff's written request to do so.   As a result, the plaintiff was deprived of his sale proceeds for over eight months and has incurred substantial expense, costs, and attorneys fees.

In count one of the plaintiff's second amended complaint, he alleges that the defendant filed the lis pendens for the purpose of slandering the title to the plaintiff's real property.   In count two, the plaintiff alleges abuse of process, in that the defendant sought to improperly “leverage payment of money from the plaintiff herein to [the] defendant's client;  or alternatively to obtain under duress a settlement in the pending divorce action ․” Count three alleges vexatious suit, noting that the divorce action terminated in favor of Philip and the plaintiff with regard to the property and alleging that the filing of the notice of lis pendens was in bad faith.   In count four, the plaintiff alleges tortious interference with his “financial expectancies, specifically, his ownership interest in and to the Fawn Hill property, his entitlement to the proceeds of sale thereof, his ability to sell and convey such property, and his ability to use and/or invest such proceeds of sale as he was entitled.”   Finally, in count five, the plaintiff alleges that the defendant's actions violated General Statutes § 49-8.¹

On June 21, 2010, the defendant filed a motion to strike all five counts of the second amended complaint on the ground that each count is legally insufficient for various reasons.   The defendant has submitted a memorandum of law in support of the motion.   The plaintiff filed a memorandum of law in opposition to the motion to strike on August 9, 2010.   The defendant filed a reply to the objection on August 17, 2010, and the plaintiff filed a surreply on August 19, 2010.²

DISCUSSION

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof ․” Practice Book § 10-39.   In ruling on the motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency ․” (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   In its consideration, “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).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120.

“Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental 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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

A. Count One

The defendant argues that count one of the plaintiff's second amended complaint is legally insufficient to state a claim for slander of title because the plaintiff has no interest in the title to the property and the plaintiff has failed to allege that he has suffered any pecuniary harm.³  The defendant argues, first, that “the [plaintiff's complaint] alleges that legal title [to the property] was placed solely in the name of his brother” and the plaintiff's undocumented trust relationship with Philip does not create an interest for purposes of a slander of title action.   The defendant also claims that the fact that the plaintiff's sale proceeds were held in escrow for over eight months does not constitute a proper basis for pecuniary loss since the plaintiff eventually received the proceeds in full.   The plaintiff contends that the damages alleged in the second amended complaint are sufficient, and further, that “the law does not require the allegations claimed by the defendant.”

“A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties.   The publication must be false, and the plaintiff must have an estate or interest in the property slandered.   Pecuniary damages must be shown in order to prevail on such a claim.”  (Internal quotation marks omitted.)  Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn.App. 663, 672-73, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).  “[C]louded title, alone, does not constitute damages per se.   Rather, a plaintiff must present evidence of how the clouded title resulted in some pecuniary loss.”  Id., 673.  “Injuries, in the sense of wrongful invasions of a right, may be considered as of two kinds:  (1) pecuniary, and (2) non-pecuniary.   Pecuniary injuries are such as can be, and usually are, without difficulty estimated by a money standard.   Loss of real or personal property, or of its use, loss of time, and loss of services, are examples of this class of injuries.”  (Emphasis added, internal quotation marks omitted.)  Id., 674, citing Broughel v. Southern New England Telephone Co., 73 Conn. 614, 621, 48 A. 751 (1901).

In the instant case, the plaintiff has pleaded that he was deprived of his sale proceeds for over eight months as a result of the defendant's actions.   Connecticut jurisprudence has made clear that the inability to use one's property does constitute pecuniary loss.  Gilbert v. Beaver Dam Assn. of Stratford, Inc., supra, 85 Conn.App. 674.   Regardless of whether, as the defendant argues here, the plaintiff eventually received the proceeds in full, his inability to use that money for a period of time, if proven, would satisfy the pecuniary loss requirement.

Furthermore, in paragraph five of the plaintiff's second amended complaint, he alleges that “[i]n or about 1986, plaintiff, as principal, provided his brother Philip E. Davidson, as agent, with a power of attorney to perform all acts therein set forth on behalf of plaintiff, including without limitation, the real estate transaction to purchase 16 Fawn Hill, Burlington, Connecticut.”   The plaintiff has, therefore, alleged that he had an interest in the property at issue when the lis pendens was filed.   Although the defendant argues that the trust relationship is “undocumented,” the plaintiff need only allege, not prove, the existence of a valid interest in the property to survive a motion to strike.   The plaintiff need not plead that the defendant had notice of this ownership interest by virtue of official documentation.4  For the foregoing reasons, the court denies the motion to strike count one of the plaintiff's second amended complaint.

B. Count Two

The defendant argues that count two is legally insufficient to state a cause of action for abuse of process because it fails to allege that the defendant's primary, rather than merely incidental, motive in filing the lis pendens was to accomplish an improper purpose.⁵  Additionally, the defendant argues that count two should be stricken because the plaintiff fails to allege a specific injury outside the contemplation of litigation.   The plaintiff retorts that “the gravamen of the complaint is that [the defendant] intentionally used process for a purpose not justified by the law” and this is sufficient to survive a motion to strike.

“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;  emphasis in original.)  Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).

While an action for abuse of process may lie against an attorney, the Supreme Court has restricted the circumstances under which a third party may commence such an action, noting that care must be taken to avoid “a chilling and inhibitory effect on would-be litigants of justiciable issues.”  (Internal quotation marks omitted.)  Id., 495.   The 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.”  (Emphasis added.)  Id., 497.   Examples of actions sufficient to create a cause of action for abuse of process include “unreasonable force, excessive attachments or extortionate methods ․” See id., 493.

The Supreme Court has made clear that in deciding whether an action constitutes abuse of process it is essential to examine the purpose of the process at issue.  Suffield Development Associates Limited Partnership v. National Loan Investors, L.P., 260 Conn. 766, 773, 802 A.2d 44 (2002).   The purpose of filing a lis pendens is “to put potential buyers of the real estate and creditors of its owners on notice that the real estate may be subject to pending adverse interests that may affect the title or right to the property.”  Garcia v. Brooks Street Associates, 209 Conn. 15, 22, 546 A.2d 275 (1988).   A notice of lis pendens is properly filed in “actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property ․ [and] actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.”  General Statutes § 52-325(b).

In the present case, the plaintiff has alleged that “[the] defendant sought to employ the cloud on the title to the Fawn Hill property to prevent or to hold up its sale, and as a result, improperly to leverage payment of money from the plaintiff herein to [the] defendant's client;  or alternatively, to obtain under duress a settlement in the pending divorce action of his client.”   This does not, however, rise to the level of unreasonable force or extortion.   Given that, as the plaintiff alleges, the property was placed in Philip's name only, the defendant was using the lis pendens for the proper purpose-namely to give notice that the property may be affected by the court's determination as to whether it would be subject to dispersal in the underlying divorce action.   Furthermore, the plaintiff's allegation that the defendant “used the privilege of recording notices of lis pendens for the purpose of slandering the title to the plaintiff's real property and recorded the lis pendens for that purpose only” is a conclusory statement and is insufficient when read in the context of the other allegations.   As a result, the plaintiff fails to allege that any improper, ulterior motive was the defendant's primary purpose in filing the notice.   The court therefore grants the defendant's motion to strike count two.

C. Count Three

The defendant argues that count three is legally insufficient to state a cause of action for vexatious suit because the plaintiff has not alleged that the defendant commenced an action that ultimately terminated in the plaintiff's favor.   The defendant asserts that the filing of a lis pendens is akin to moving for a prejudgment remedy, which does not constitute the commencement of an action for purposes of a suit for vexatious litigation.   The defendant argues further that the fact that the divorce proceeding terminated in favor of the plaintiff's brother, Philip, is also insufficient in this regard.   The plaintiff counters that “notice of lis pendens” means “notice of litigation pending,” which unambiguously indicates that a civil action was pending and is therefore not comparable to a prejudgment remedy.

“[A] claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit was initiated maliciously, without probable cause, and terminated in the plaintiff's favor ․ In suits for vexatious litigation, it is recognized to be sound policy to require the plaintiff to allege that prior litigation terminated in his favor.   This requirement serves to discourage unfounded litigation without impairing the presentation of honest but uncertain causes of action to the courts ․ The requirement furthermore serves the interest of finality of judicial decisions, by preventing a person who was unsuccessful in the original proceeding from relitigating the same issues in a subsequent action for vexatious litigation.”  (Citations omitted;  internal quotation marks omitted.)  Zeller v. Consolini, 235 Conn. 417, 424, 667 A.2d 64 (1995).

The only ground for striking count three raised by the defendant is that the plaintiff has failed to allege that an underlying civil suit terminated in the plaintiff's favor.   The defendant, in his memorandum of law in support of the motion, focuses on the fact that the filing of a lis pendens is not a civil action.   In the second amended complaint, however, the plaintiff alleges that the underlying divorce proceedings of Davidson v. Davison terminated in favor of the plaintiff.⁶  As divorce proceedings are indeed “civil actions,” ⁷ the articulated ground for striking this count is insufficient.   The court denies the motion to strike count three of the second amended complaint.⁸

D. Count Four

Count four of the plaintiff's second amended complaint alleges that the defendant tortiously interfered with his “financial expectancies, specifically, his ownership interest in and to the Fawn Hill property.”   The defendant argues that this count is legally insufficient because the plaintiff has not alleged the existence of a business relationship.   The plaintiff counters that “financial expectancies and [the plaintiff's] ability to invest his money are unambiguously business relationships.”

“It is well established that the elements of a claim for tortious interference with business expectancies are:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”  (Emphasis added.)  Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268, 1273 (2000).   In the present case, the plaintiff has only alleged an interference with his personal ability to access funds and invest his property.   No business relationship with a party other than the plaintiff is alleged.   The motion to strike count four is granted.

E. Count Five

The defendant claims that count five of the second amended complaint is legally insufficient because the plaintiff fails to allege facts supporting the assertion that the lis pendens was “of no effect.”   Specifically, the defendant argues that the plaintiff needed to have alleged that there was a procedural deficiency in the filing of the lis pendens, that the underlying action no longer affected real property, or that the lis pendens did not comport with the requirements of General Statutes § 52-325 in some other respect.   The plaintiff argues that he requested that the defendant release the lien to no avail, and the court later confirmed that the claim made by the lis pendens was baseless.   The plaintiff further asserts that he is entitled to prove his right to damages pursuant to General Statutes § 49-8 at trial.

General Statutes § 49-8(c) provides for damages when a party fails to execute or deliver a release of a lien within sixty days of receiving written demand.  Section 49-8 states in relevant part:  “(b) The plaintiff or the plaintiff's attorney shall execute and deliver a release when an attachment has become of no effect pursuant to section 52-322 or section 52-324 or when a lis pendens or other lien has become of no effect pursuant to section 52-326.(c) The mortgagee or plaintiff or the plaintiff's attorney, as the case may be, shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance ․ The mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiff's attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorneys fees.”  General Statutes § 52-326 incorporates § 52-322 and § 52-324, which provide that a lien must be discharged immediately upon written demand when “the [party who filed the lien] has received satisfaction for [his] claim, or final judgment has been rendered against [him], or when for any reason such attachment has become of no effect ․”

At least one Superior Court decision has held that a party claiming damages due to a violation of § 49-8 must allege facts which, if proven, would show “that the lien in question falls within any of the enumerated circumstances that call for immediate execution and delivery of a release of a lien.”   Fitzpatrick v. Hall-Brook, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 98 0353724 (November 13, 2000, Skolnick J.).

In the present case, the plaintiff has alleged only that the defendant knew or should have known that the lis pendens at issue was of no effect.   The plaintiff does not allege specific facts supporting that assertion.   Although the plaintiff contends that he is entitled to bring his proof at trial, Practice Book Section 10-1 requires that “each pleading contain a plain and concise statement of the material facts upon which a pleader relies.”   Here, the allegation that the defendant violated General Statutes § 49-8 is a legal conclusion for which the plaintiff provides no support.  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   The court grants the defendant's motion to strike count five of the second amended complaint.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to strike as to counts one and three, and grants the motion to strike as to counts two, four, and five of the second amended complaint.

Cosgrove, J.

FOOTNOTES

FN1. General Statutes § 49-8 provides:(a) The mortgagee or a person authorized by law to release the mortgage shall execute and deliver a release to the extent of the satisfaction tendered before or against receipt of the release:  (1) Upon the satisfaction of the mortgage;  (2) upon a bona fide offer to satisfy the mortgage in accordance with the terms of the mortgage deed upon the execution of a release;  (3) when the parties in interest have agreed in writing to a partial release of the mortgage where that part of the property securing the partially satisfied mortgage is sufficiently definite and certain;  or (4) when the mortgagor has made a bona fide offer in accordance with the terms of the mortgage deed for such partial satisfaction on the execution of such partial release.(b) The plaintiff or the plaintiff's attorney shall execute and deliver a release when an attachment has become of no effect pursuant to section 52-322 or section 52-324 or when a lis pendens or other lien has become of no effect pursuant to section 52-326.(c) The mortgagee or plaintiff or the plaintiff's attorney, as the case may be, shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee, plaintiff or plaintiff's attorney at the person's last-known address by registered or certified mail, postage prepaid, return receipt requested, or (2) was received by such mortgagee, plaintiff or plaintiff's attorney from a private messenger or courier service or through any means of communication, including electronic communication, reasonably calculated to give the person the written request or a copy of it.   The mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiff's attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorneys fees..  FN1. General Statutes § 49-8 provides:(a) The mortgagee or a person authorized by law to release the mortgage shall execute and deliver a release to the extent of the satisfaction tendered before or against receipt of the release:  (1) Upon the satisfaction of the mortgage;  (2) upon a bona fide offer to satisfy the mortgage in accordance with the terms of the mortgage deed upon the execution of a release;  (3) when the parties in interest have agreed in writing to a partial release of the mortgage where that part of the property securing the partially satisfied mortgage is sufficiently definite and certain;  or (4) when the mortgagor has made a bona fide offer in accordance with the terms of the mortgage deed for such partial satisfaction on the execution of such partial release.(b) The plaintiff or the plaintiff's attorney shall execute and deliver a release when an attachment has become of no effect pursuant to section 52-322 or section 52-324 or when a lis pendens or other lien has become of no effect pursuant to section 52-326.(c) The mortgagee or plaintiff or the plaintiff's attorney, as the case may be, shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee, plaintiff or plaintiff's attorney at the person's last-known address by registered or certified mail, postage prepaid, return receipt requested, or (2) was received by such mortgagee, plaintiff or plaintiff's attorney from a private messenger or courier service or through any means of communication, including electronic communication, reasonably calculated to give the person the written request or a copy of it.   The mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiff's attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorneys fees.

FN2. In his reply brief, the defendant argues that the plaintiff's objection should not be considered by the court because it was not timely filed.   The plaintiff likewise argues in his surreply that the defendant's reply should not be considered because it too was untimely.   The court, in its discretion, may consider a motion or memorandum despite it being untimely.   See, e.g., Betances v. Allstate Property & Casualty Ins. Co., Superior Court, judicial district of Danbury, Docket No. CV 07 6000516 (May 5, 2009, Sommer, J.).   Moreover, the court may decide the substantive issues on their merits without considering these briefs.   Although the rules of practice “previously provided that a party who failed to file [a memorandum in opposition to a motion to strike] ‘shall be deemed by the court to have consented to the granting of the motion’ “;  Doe v. Board of Education, 76 Conn.App. 296, 298 n.5, 819 A.2d 289 (2003);  that language has since been removed and “a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike.”   Thompson v. Home Depot, U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5006389 (June 22, 2007, Holden, J.)..  FN2. In his reply brief, the defendant argues that the plaintiff's objection should not be considered by the court because it was not timely filed.   The plaintiff likewise argues in his surreply that the defendant's reply should not be considered because it too was untimely.   The court, in its discretion, may consider a motion or memorandum despite it being untimely.   See, e.g., Betances v. Allstate Property & Casualty Ins. Co., Superior Court, judicial district of Danbury, Docket No. CV 07 6000516 (May 5, 2009, Sommer, J.).   Moreover, the court may decide the substantive issues on their merits without considering these briefs.   Although the rules of practice “previously provided that a party who failed to file [a memorandum in opposition to a motion to strike] ‘shall be deemed by the court to have consented to the granting of the motion’ “;  Doe v. Board of Education, 76 Conn.App. 296, 298 n.5, 819 A.2d 289 (2003);  that language has since been removed and “a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike.”   Thompson v. Home Depot, U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5006389 (June 22, 2007, Holden, J.).

FN3. The face of the defendant's motion to strike only contains the grounds regarding the failure to allege pecuniary loss.   Ordinarily, “grounds other than those specified should not be considered by the trial court in passing upon a motion to strike.”  Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).   Absent objection from the plaintiff, however, the court may, in its discretion, consider additional grounds raised in the memorandum in support of the motion to strike.   Nevertheless, as the court noted, “[i]f the plaintiffs had not objected to the form of the motion to strike, we would have considered the motion in the form presented to the trial court because Practice Book § 10-41 is not jurisdictional in nature.”   See Bouchard v. People's Bank, 219 Conn. 465, 468 n.4, 594 A.2d 1 (1991).   Given that the plaintiff's objection did not take issue with the defendant including arguments in his memorandum that were not included on the face of the motion, the court may consider the argument that the plaintiff lacks legal title..  FN3. The face of the defendant's motion to strike only contains the grounds regarding the failure to allege pecuniary loss.   Ordinarily, “grounds other than those specified should not be considered by the trial court in passing upon a motion to strike.”  Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).   Absent objection from the plaintiff, however, the court may, in its discretion, consider additional grounds raised in the memorandum in support of the motion to strike.   Nevertheless, as the court noted, “[i]f the plaintiffs had not objected to the form of the motion to strike, we would have considered the motion in the form presented to the trial court because Practice Book § 10-41 is not jurisdictional in nature.”   See Bouchard v. People's Bank, 219 Conn. 465, 468 n.4, 594 A.2d 1 (1991).   Given that the plaintiff's objection did not take issue with the defendant including arguments in his memorandum that were not included on the face of the motion, the court may consider the argument that the plaintiff lacks legal title.

FN4. As previously noted, a cause of action for slander of title does require the plaintiff to allege that the defendant acted with malice, which “has been defined by our courts as with knowledge that [the statement was] false or with a reckless disregard of the truth or falsity of the facts stated ․” (Internal quotation marks omitted.)   R.A. Villanova & Company v. Chatfield, Superior Court, judicial district of Waterbury, Docket No. CV 04 0182702 (February 8, 2005, Agati, J.).   Here, the plaintiff has alleged that “Susan Davidson had actual knowledge of the fact of plaintiff's beneficial ownership of the property ․ At all relevant times, defendant knew, or with reasonable investigation would have known, of plaintiff's beneficial ownership.”   These allegations, if proven, are sufficient to satisfy the malice element..  FN4. As previously noted, a cause of action for slander of title does require the plaintiff to allege that the defendant acted with malice, which “has been defined by our courts as with knowledge that [the statement was] false or with a reckless disregard of the truth or falsity of the facts stated ․” (Internal quotation marks omitted.)   R.A. Villanova & Company v. Chatfield, Superior Court, judicial district of Waterbury, Docket No. CV 04 0182702 (February 8, 2005, Agati, J.).   Here, the plaintiff has alleged that “Susan Davidson had actual knowledge of the fact of plaintiff's beneficial ownership of the property ․ At all relevant times, defendant knew, or with reasonable investigation would have known, of plaintiff's beneficial ownership.”   These allegations, if proven, are sufficient to satisfy the malice element.

FN5. The defendant makes his arguments regarding the abuse of process claim in section (c) of his memorandum of law in support of his motion to strike.   Although that section refers to “count four” of the amended complaint, when read in context it becomes clear that the defendant did so mistakenly, as the abuse of process allegations are contained in count two..  FN5. The defendant makes his arguments regarding the abuse of process claim in section (c) of his memorandum of law in support of his motion to strike.   Although that section refers to “count four” of the amended complaint, when read in context it becomes clear that the defendant did so mistakenly, as the abuse of process allegations are contained in count two.

FN6. The defendant does not raise the issue of whether a proceeding to which the plaintiff is not a party can in fact terminate in the plaintiff's favor, therefore it is not necessary for the court to consider this in ruling upon the motion to strike.   It should be noted, however, that the Supreme Court has “assume[d], without deciding, that in order for a plaintiff successfully to assert that previous litigation terminated in its favor, it is necessary that the plaintiff had been a ‘party’ to that litigation.”  Zeller v. Consolini, 235 Conn. 417, 425 n.8, 667 A.2d 64 (1995).   Further the court is uncertain whether divorce litigation is a type of proceeding where it can clearly be stated that one side or the other was the prevailing party..  FN6. The defendant does not raise the issue of whether a proceeding to which the plaintiff is not a party can in fact terminate in the plaintiff's favor, therefore it is not necessary for the court to consider this in ruling upon the motion to strike.   It should be noted, however, that the Supreme Court has “assume[d], without deciding, that in order for a plaintiff successfully to assert that previous litigation terminated in its favor, it is necessary that the plaintiff had been a ‘party’ to that litigation.”  Zeller v. Consolini, 235 Conn. 417, 425 n.8, 667 A.2d 64 (1995).   Further the court is uncertain whether divorce litigation is a type of proceeding where it can clearly be stated that one side or the other was the prevailing party.

FN7. General Statutes § 52-45a, which governs the commencement of divorce proceedings, states in relevant part:  “A proceeding for annulment, dissolution of marriage, or legal separation shall be commenced by the service and filing of a complaint as in all other civil actions in the superior court for the judicial district in which one of the parties resides ․” (Emphasis added.).  FN7. General Statutes § 52-45a, which governs the commencement of divorce proceedings, states in relevant part:  “A proceeding for annulment, dissolution of marriage, or legal separation shall be commenced by the service and filing of a complaint as in all other civil actions in the superior court for the judicial district in which one of the parties resides ․” (Emphasis added.)

FN8. While the plaintiff has only alleged that the filing of the lis pendens was initiated with malice and without probable cause, this issue, too, is not raised by the defendant in his motion to strike, and therefore the court cannot grant the motion on this ground.   See Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001)..  FN8. While the plaintiff has only alleged that the filing of the lis pendens was initiated with malice and without probable cause, this issue, too, is not raised by the defendant in his motion to strike, and therefore the court cannot grant the motion on this ground.   See Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).

Cosgrove, Emmet L., J.