Jennifer Norberg et al. v. Richard Hurlburt et al. (2011)

MEMORANDUM OF DECISION

The issue before the court is whether to grant the defendant's motion (# 102) to dismiss the plaintiffs' complaint.   For the reasons given, the motion will be treated as a motion to strike which must be granted.

I

FACTS

On September 12, 2011, the plaintiffs, Jennifer Norberg and Mark Hurlbert,¹ filed a five-count complaint against the defendant, Richard Hurlburt, alleging malicious prosecution and/or abuse of process.   Norberg and the defendant were formally husband and wife.   On October 7, 2009, Norberg and the defendant entered into a divorce settlement agreement.   Thereafter, Norberg and the defendant entered into “binding agreements” concerning custody, support and healthcare for their children.

The complaint alleges that, from September 2010 through June 2011, the defendant filed ten separate “actions” ² against the plaintiffs, Jennifer Norberg and Mark Hurlbert, “for issues relating to the same [divorce settlement agreement] entered into on October 7, 2009,” all of which were filed “in an attempt to maliciously harm, torment, and defame [the] plaintiffs and to legally harass them.”   Moreover, the complaint alleges that the “defendant failed to legally address or provide any evidentiary basis pertinent to the terms of the [divorce settlement agreement] regarding validity of claims ․ [and][the] defendant filed each action separately in an attempt to legally harass and to cause financial hardship to [the] plaintiffs.”

On September 19, 2011, the defendant filed the present motion to dismiss.   The plaintiffs filed an opposition on September 23, 2011.

II

DISCUSSION

Both parties are representing themselves, and “[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party ․ The modern trend ․ is to construe pleadings broadly and realistically, rather than narrowly and technically ․ The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience.”  (Internal quotation marks omitted.)   Oliphant v. Commissioner of Correction, 274 Conn. 563, 569, 877 A.2d 761, (2005).

The defendant's motion, although entitled “motion to dismiss complaint,” does not assert the grounds that may properly be asserted in a motion to dismiss.³  “In due solicitude for the rights of pro se parties and recognizing that courts should treat the substance of a pleading rather than the nomenclature used in its caption”;  Stanley v. Stanley, Superior Court, judicial district of Tolland, Docket No. FA 09 4011831 (December 29, 2010, Frazzini, J.);   this court will treat the motion to dismiss as a motion to strike the plaintiffs' complaint.

“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).  “The role of the trial court [in ruling on a motion to strike] [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).   When “the issues concern the granting of a motion to strike, [the court is] limited to and must accept as true the facts alleged in the ․ complaint.”  (Internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 315 n.4, 813 A.2d 1003 (2003).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Rizutto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006).  “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  (Internal quotation marks omitted.)  Oliphant v. Commissioner of Correction, supra, 274 Conn. 569 n.5.

The defendant argues that every motion he filed was done in good faith and for the purpose of clarification.   Moreover, the defendant contends that the plaintiffs' action would require a rehearing on all the motions filed and decided, and a retrial of the parties' divorce.   In opposition, the plaintiffs argue that they have properly pleaded the action, and the defendant's motion is based on matters irrelevant to the plaintiffs' complaint.⁴

All five counts of the complaint are labeled “malicious prosecution.”   Because the plaintiffs' complaint is based on a prior civil action, not a criminal complaint, the court will treat the plaintiffs' complaint as one alleging vexatious suit.  “A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint.”   (Internal quotation marks omitted.)  Cadle Co. v. D'Addario, 131 Conn.App. 223, 237, 26 A.3d 682 (2011).

“Vexatious litigation requires a plaintiff to establish that (1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice (3) the defendant acted without probable cause and (4) the proceeding terminated in the plaintiff's favor ․ As to the requirement of malice:  ․ [the] defendant is said to have acted with ‘malice’ if he acted primarily for an improper purpose;  that is for a purpose other than that of securing the proper adjudication of the claim on which (the proceedings) are based ․ thus while malice may be inferred from lack of probable cause, lack of probable cause may not be inferred from malice ․” (Citations omitted;  internal quotation marks omitted.)   Spilke v. Spilke, Superior Court, judicial district of New Haven, Docket No. CV 07 5008955 (July 18, 2011, Corradino, J.T.R.).⁵

“The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages.”  Bernhard–Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553, 944 A.2d 329 (2008).  “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.”  (Citation omitted;  internal quotation marks omitted.)  Zeller v. Consolini, 235 Conn. 417, 424, 667 A.2d 64 (1995).

In the present case, the plaintiffs' complaint indicates that all ten motions, which serve as the basis for the vexatious litigation claims, were filed in docket number LLI FA 08 4006982, which is the docket number assigned to the parties' divorce action.   As such, the underlying lawsuit upon which the vexatious litigation claim can be based is the parties' divorce action, not the postjudgment motions related to custody, child support, or healthcare.⁶  The complaint, however, does not allege facts sufficient to state a cause of action for vexatious litigation based on the underlying divorce proceedings.   First, the complaint indicates that the parties entered into a divorce settlement agreement.  “[N]o claim for vexatious litigation can be based upon the bringing of litigation that has been resolved by a negotiated settlement.   When a party chooses to settle a claim brought against him instead of defending himself against the suit until it terminates in his favor, he must accept the results of his own agreement as the final resolution of that claim.   Thus, he cannot later attempt to litigate that claim in a lawsuit claiming vexatious litigation or its equivalent.   This conclusion[,] ․ recognizes that the law favors settlements, which conserve judicial resources and minimize the parties' transaction costs, and avoids burdening such settlements with the threat of future litigation ․ [A] claim of vexatious litigation [cannot] be maintained when the underlying lawsuit whose propriety is at issue terminated in a good faith negotiated settlement.”   Wes–Garde Components Group, Inc. v. Carling Technologies, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 5028121 (March 10, 2010, Sheldon, J.) (49 Conn. L. Rptr. 671).

Moreover, the defendant noted that Norberg was the party who brought the underlying divorce action, not the defendant.   As such, the plaintiffs have not and cannot allege that the previous action was initiated by the defendant against the plaintiffs.   Finally, the plaintiffs have not alleged that the divorce proceedings terminated in the plaintiffs' favor.   As Judge Cosgrove has stated, it “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.”   Davidson v. Morris, Superior Court, judicial district of New London, Docket No. CV 08 5008443 (October 28, 2010, Cosgrove, J.).   The plaintiff has alleged only that the various post-judgment motions were decided in Norberg's favor.

The allegations in the complaint are insufficient to state a cause of action for vexatious litigation.

Alternatively, although all five counts in the complaint are labeled “malicious prosecution,” and treated by this court as vexatious litigation claims, the plaintiffs' complaint is entitled “complaint for abuse of process and malicious prosecution.”   As such, the court will now address the complaint in the context of alleging claims for abuse of process.

“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).

“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, 360–61 n.16, 773 A.2d 906 (2001).

In essence, the complaint alleges that the defendant's motions were unfounded and filed for the purpose of harassing and causing financial harm to the plaintiffs.⁷  The plaintiffs, however, have failed to allege facts sufficient to show that the defendant's primary purpose in bringing his motions was to accomplish a purpose for which the motions were not designed.   See Cadle Co. v. D'Addario, supra, 131 Conn.App. 236–37.   The fact that the motions were ultimately decided against the defendant is insufficient to show that the primary purpose of the motions was improper.

Accordingly, the plaintiffs' complaint fails to state facts sufficient to establish a cause of action for vexatious litigation, or alternatively, for abuse of process.   As such, the plaintiffs' complaint is stricken.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The complaint identifies Mark Hurlburt as one of the children of Norberg and the defendant, who was a minor at the time of the dissolution.   The complaint identifies another minor child, Matthew Norberg–Hurlburt, who is not a named plaintiff..  FN1. The complaint identifies Mark Hurlburt as one of the children of Norberg and the defendant, who was a minor at the time of the dissolution.   The complaint identifies another minor child, Matthew Norberg–Hurlburt, who is not a named plaintiff.

FN2. The plaintiffs' complaint is based on ten post-judgment motions filed by the defendant..  FN2. The plaintiffs' complaint is based on ten post-judgment motions filed by the defendant.

FN3. “A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”   (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31..  FN3. “A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”   (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

FN4. In their objection, the plaintiffs also include a section labeled “Intentional Infliction of Emotional Distress,” noting that the plaintiffs believe that the complaint shows that the defendant's actions were abusive and intentional, that society would find those actions extreme and abusive and the acts caused distress.   It is unclear to the court whether the plaintiffs are attempting to plead an additional cause of action or if this is an additional argument in support of their malicious prosecution claims.   Because an objection is not the proper vehicle to assert a cause of action, the court considers the intentional infliction of emotional distress section in the objection to be an argument in opposition to the motion to dismiss..  FN4. In their objection, the plaintiffs also include a section labeled “Intentional Infliction of Emotional Distress,” noting that the plaintiffs believe that the complaint shows that the defendant's actions were abusive and intentional, that society would find those actions extreme and abusive and the acts caused distress.   It is unclear to the court whether the plaintiffs are attempting to plead an additional cause of action or if this is an additional argument in support of their malicious prosecution claims.   Because an objection is not the proper vehicle to assert a cause of action, the court considers the intentional infliction of emotional distress section in the objection to be an argument in opposition to the motion to dismiss.

FN5. “To establish a claim for vexatious litigation of common law one must prove want of probable cause, malice and a termination of suit in the plaintiff's favor ․ the statutory cause of action for vexatious litigation exists under [General Statutes] § 52–568 and differs from the common-law action only in that a finding of malice is not an essential element but will serve as a basis for higher damages.”   Spilke v. Wicklow, Superior Court, judicial district of New Haven, Docket No. CV 07 5008955 (October 2, 2008, Cosgrove, J.).   In the present case, the plaintiffs' complaint does not mention General Statutes § 52–568, and, thus, appears to allege common law vexatious litigation..  FN5. “To establish a claim for vexatious litigation of common law one must prove want of probable cause, malice and a termination of suit in the plaintiff's favor ․ the statutory cause of action for vexatious litigation exists under [General Statutes] § 52–568 and differs from the common-law action only in that a finding of malice is not an essential element but will serve as a basis for higher damages.”   Spilke v. Wicklow, Superior Court, judicial district of New Haven, Docket No. CV 07 5008955 (October 2, 2008, Cosgrove, J.).   In the present case, the plaintiffs' complaint does not mention General Statutes § 52–568, and, thus, appears to allege common law vexatious litigation.

FN6. The plaintiffs' complaint does not allege when a judgment of dissolution was entered or whether the divorce settlement agreement was incorporated into the dissolution decree..  FN6. The plaintiffs' complaint does not allege when a judgment of dissolution was entered or whether the divorce settlement agreement was incorporated into the dissolution decree.

FN7. Count one relates to motions to terminate child support and medical insurance and to allow access to restricted records.   The complaint alleges that the defendant's motions were contrary to the terms of the divorce settlement agreement and with no belief that the terms of the divorce settlement agreement had been breached.   Count two relates to a motion requesting visitation to the parties' minor children, and requesting a court order for mandatory counseling for both parties and the children.   The complaint alleges that the minor children had expressed an intent not to exercise their rights to visitation as set forth in the divorce settlement agreement.   Count three relates to a motion requesting termination of spousal support.   The complaint alleges that the motion was based on the false allegation that Norberg was living with another man, as husband and wife.   Count four relates to motions filed concerning an exchange of tax returns and Norberg's income status.   The complaint alleges that, at the hearing on the motions, Norberg provided evidence that she had, in fact, provided the defendant with the documents and that she met the threshold for taxable income to claim a minor child.   Finally, Count five relates to a motion filed seeking repayment of child support on behalf of the co-plaintiff in the present case because of financial abuse by the plaintiff.   The complaint alleges that the court found that the defendant did not have standing to bring the motion on behalf of the minor child..  FN7. Count one relates to motions to terminate child support and medical insurance and to allow access to restricted records.   The complaint alleges that the defendant's motions were contrary to the terms of the divorce settlement agreement and with no belief that the terms of the divorce settlement agreement had been breached.   Count two relates to a motion requesting visitation to the parties' minor children, and requesting a court order for mandatory counseling for both parties and the children.   The complaint alleges that the minor children had expressed an intent not to exercise their rights to visitation as set forth in the divorce settlement agreement.   Count three relates to a motion requesting termination of spousal support.   The complaint alleges that the motion was based on the false allegation that Norberg was living with another man, as husband and wife.   Count four relates to motions filed concerning an exchange of tax returns and Norberg's income status.   The complaint alleges that, at the hearing on the motions, Norberg provided evidence that she had, in fact, provided the defendant with the documents and that she met the threshold for taxable income to claim a minor child.   Finally, Count five relates to a motion filed seeking repayment of child support on behalf of the co-plaintiff in the present case because of financial abuse by the plaintiff.   The complaint alleges that the court found that the defendant did not have standing to bring the motion on behalf of the minor child.

Pickard, John W., J.