Nicola Carusone v. Walter Silva et al. (2010)

MOTION TO STRIKE # 123

FACTS

This action arises out of an alleged assault.   Specifically, the plaintiff, Nicola Carusone, alleges that on or about September 6, 2008, while visiting a Wireless Zone store in Branford, Connecticut, he was assaulted by store employees Walter Silva and Justin Bruno, and suffered severe injuries as a result.

The plaintiff filed the original complaint in this action on June 23, 2009, against Silva, Bruno, New England Wireless Communications LLC, and Lam Properties LLC.¹ Subsequently, the plaintiff amended the complaint and moved to cite in the defendants New Communications 217 LLC (the owner of New England Wireless Communications LLC) and Susan Murphy, administratrix for the estate of Raymond Murphy (the owner of New Communications 217), respectively on February 5, 2010 and May 21, 2010.   The court granted the motions as to both.

On June 8, 2010, the plaintiff filed a second amended complaint containing a total of fourteen counts against Silva, Bruno, New Communications 217, and Murphy.²  In counts four and eight of the second amended complaint, which are the only counts currently at issue, the plaintiff alleges a malicious prosecution claim against Silva and Bruno.³  Specifically, the plaintiff alleges that the defendants, in a statement to police, “falsely and maliciously accused the plaintiff” of assaulting the defendants, and used their “influence” as store employees to “pressure and induce” the police to arrest the plaintiff.

On September 9, 2010, the defendants filed a motion to strike counts four and eight on the ground that the malicious prosecution cause of action cannot properly be united in one complaint with the plaintiff's various negligence and assault causes of action.   The defendants filed a memorandum of law in support of their motion.   On September 13, 2010, the plaintiff filed an objection to the motion, with an accompanying memorandum of law.   The motion was heard by the court on September 27, 2010.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “Practice Book § 10-39(a) provides:  ‘Whenever any party wishes to contest ․ the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts ․ that party may do so by filing a motion to strike the contested pleading or part thereof.’   “ Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256 n.20, 905 A.2d 1165 (2006).  “In 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).   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).

The defendants move to strike counts four and eight of the second amended complaint on the ground that these counts alleging malicious prosecution “do not arise out of the same transactions as those claims for negligence, assault and battery, and reckless and wanton conduct with respect to the altercation that occurred on September 6, 2008.”   Specifically, the defendants argue in their memorandum of law that the counts for malicious prosecution are “separate and distinct from the [underlying] tort” and, if the malicious prosecution claims are included, “it would be prejudicial to the defendants and serve to confuse the jury.”

The plaintiff, in its objection and memorandum of law in opposition to the motion, counters that the “malicious prosecution grew out of the same subject matter in regard to which the controversy has risen.”   In particular, the plaintiff claims that the charges brought against him, and ultimately entered as a nolle prosequi, were a result of the defendants falsely and maliciously naming the plaintiff as the “aggressor” in the exact same physical altercation that is the subject matter of the plaintiff's suit against the defendants for assault and battery, negligence, and reckless conduct.   Thus, the plaintiff contends that all claims, including those alleging malicious prosecution, are properly joined in one complaint as provided by the rules of practice.

Practice Book §§ 10-21 through 10-23 provide the rules for joining causes of action.  Practice Book § 10-21 provides, in relevant part, that “if several causes of action are united in the same complaint, they shall all be brought to recover ․ (3) for injuries to character, ․ or (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of the action ․” Practice Book § 10-22 further provides, in relevant part:  “Transactions connected with the same subject of action within the meaning of subdivision (7) of Section 10-21, may include any transactions which grew out of the subject matter in regard to which the controversy has arisen ․ Injuries to character, within the meaning of subdivision (3) of Section 10-21, may embrace ․ malicious prosecution.”  Practice Book § 10-23 provides, in relevant part:  “Where several torts are committed simultaneously against the plaintiff, as a battery accompanied by slanderous words, they may be joined, within the meaning of subdivision (7) of Section 10-21, as causes of action arising out of the same transaction ․”

“Transaction is a word of flexible meaning ․ The transaction test is one of practicality and the trial court should consider the interests of judicial economy in applying the test.”  (Internal quotations marks omitted.)   Slowick v. Morgan Stanley & Co., Superior Court, judicial district of New London, Docket No. CV 05 4003860 (February 21, 2006, Jones, J.).  “It is now an established principle in our law of civil procedure that two suits shall not be brought for the determination of matters in controversy between the same parties ․ when such determination can be had as effectually and properly in one suit.”  (Internal quotations marks omitted.)  Veits v. Hartford, 134 Conn. 428, 436, 58 A.2d 389 (1948).  “It is proper to join ․ different causes of action in one complaint, either if both arose out of the same transaction, or if while one arose out of one transaction, and the other out of another, both of these transactions were connected with the same subject of action.”   (Internal quotation marks omitted.)   Pohronezny v. Wilcox, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0070087 (July 20, 2004, Foley, J.) (37 Conn. L. Rptr. 502, 503), citing Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 560, 29 A.2d 76 (1893).   “Moreover, there exists a general policy of our law which favors as far as possible the litigation of related controversies in one action.”  (Internal quotations marks omitted.)  Slowick v. Morgan Stanley & Co., supra, Superior Court, Docket No. CV 05 4003860.

In the present case, the plaintiff has united in the same complaint a cause of action for malicious prosecution with counts alleging assault and battery, negligence, and reckless and wanton conduct.   The pleadings show that the malicious prosecution claims are related, both factually and temporally, to the other counts because the malicious prosecution allegations have their origins in the altercation on September 6, 2008.   Specifically, the plaintiff's basis for his malicious prosecution counts, alleging that the defendants' false and malicious statements directly led to his arrest, reference the same facts of the physical altercation, and occurred on the same evening, as the underlying claims in the plaintiff's complaint against the defendants.   Furthermore, the malicious prosecution claims will potentially raise common questions of fact with those of the assault claims and any potential special defenses, and it is in the interest of judicial economy to adjudicate all of the plaintiff's claims in one action.   In short, each of the counts in the plaintiff's complaint are connected with the same subject of action;  the alleged assault on September 6, 2008.   Accordingly, under the established rules of practice, counts four and eight of the plaintiff's second amended complaint are part of the same transaction and can be properly united in the same complaint.

CONCLUSION

For the foregoing reasons, the court denies the defendants' motion to strike.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. Lam Properties, LLC did not file an appearance and was subsequently removed.   New England Wireless Communications LLC was defaulted and the current amended complaint contains no counts against them..  FN1. Lam Properties, LLC did not file an appearance and was subsequently removed.   New England Wireless Communications LLC was defaulted and the current amended complaint contains no counts against them.

FN2. In counts one through four against Silva, the plaintiff alleges, respectively, claims for negligence, assault and battery, reckless and wanton conduct, and malicious prosecution.   Those claims are repeated against Bruno, in the same order, in counts five through eight.   Counts nine through eleven, against New Communications 217 LLC, allege, respectively, claims for negligence, vicarious negligence, and vicarious recklessness.   Those claims are repeated, in the same order, as to Murphy in counts twelve through fourteen..  FN2. In counts one through four against Silva, the plaintiff alleges, respectively, claims for negligence, assault and battery, reckless and wanton conduct, and malicious prosecution.   Those claims are repeated against Bruno, in the same order, in counts five through eight.   Counts nine through eleven, against New Communications 217 LLC, allege, respectively, claims for negligence, vicarious negligence, and vicarious recklessness.   Those claims are repeated, in the same order, as to Murphy in counts twelve through fourteen.

FN3. As the motion to strike only pertains to the malicious prosecution counts against Silva and Bruno, they have jointly filed their motion to strike, and as such, they are designated as “the defendants.”.  FN3. As the motion to strike only pertains to the malicious prosecution counts against Silva and Bruno, they have jointly filed their motion to strike, and as such, they are designated as “the defendants.”

Burke, Richard E., J.