Michael Bradley v. Heath Comley (2012)

MEMORANDUM OF DECISION RE DEFENDANT COMLEY'S MOTION TO DISMISS [# 270]

The defendant, Heath Comley, filed a motion to dismiss counts three and six of the third revised complaint filed by the plaintiff, Michael Bradley, dated February 22, 2012.   Comley also filed a memorandum of law in support of his motion.   Bradley objected to the motion by pleading dated February 28, 2012, together with his memorandum of law.   The court heard argument on the motion on March 3, 2012.

I

BACKGROUND

The present matter arises from a familial dispute over certain real property located at 4 Pirates Island in Westerly, Rhode Island (the property).   In his third revised complaint, Bradley alleges the following facts.   In 2005, the property was owned by Joan Kelly and her two sisters, Paula Moran and Anne Moran (the Moran defendants), as tenants in common.   In late October 2005, Kelly contacted Bradley, indicating that she wanted to sell her interest in the property because she was facing financial hardship and the Moran defendants would not allow her to leverage her interest in the property to obtain a loan.   Bradley suggested that she discuss the matters further with the Moran defendants and, failing a resolution, he would consider buying her interest in the property.

Several days later, Kelly informed Bradley that the property was being put on the market and that she wanted to sell her interest as soon as possible.   Kelly further informed Bradley that the property was appraised at $995,000, but the recent addition of a bathroom raised the property's value to $1,000,000.   Bradley agreed to pay Kelly $320,000 for her interest in both the property and the property's rental proceeds fund that was valued at approximately $30,000.   As a result, Bradley received a warranty deed for one-third interest in the property and became a tenant in common with the Moran defendants.

In January 2006, Bradley filed a partition action against the Moran defendants in Rhode Island Superior Court.   The Moran defendants retained Comley as their attorney in the partition action.   Without contacting Kelly, Comley filed an answer and special defense alleging that Bradley unduly influenced Kelly during the negotiations of the property conveyance and coerced her into selling her interest to him.   Bradley then sought an order for the sale of the property pursuant to the partition action.   The Rhode Island Superior Court ordered a sale of the property, and Bradley entered a bid for $1,050,000.

On May 10, 2006, the Moran defendants, with Comley's assistance, wrote a letter to Kelly falsely misrepresenting that Bradley had appraised the property in excess of $2,000,000 and made disparaging comments about their father.   In the letter, the Moran defendants encouraged Kelly to contact Comley to better understand her legal options with regard to the sale of her interest in the property to Bradley.   With ten days remaining in the partition sale period, Kelly filed suit against Bradley alleging undue influence.   As a result, the Rhode Island Superior Court enjoined the sale of the property pending the outcome of the suit.   Kelly subsequently withdrew her lawsuit against Bradley, the partition sale instituted by Bradley was renewed and the Moran defendants outbid him on the property.

On February 14, 2012, Bradley filed a twelve-count third revised complaint against the Moran defendants and Comley for damages allegedly sustained as a result of the property dispute.   Counts three and six, which are at issue here, allege claims against Comley for tortious interference with a contract and tortious interference with a business expectancy, respectively.   Comley now moves to dismiss counts three and six on the grounds that the court lacks subject matter jurisdiction over the present case because Bradley lacks standing to bring the claims against him.

II

DISCUSSION

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  Id., 544.

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “The burden rests with the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 20 Conn. 435, 443, 797 A.2d 1081 (2002).

A

Comley first argues that Bradley's claims against him should be dismissed for lack of subject matter jurisdiction because an adverse party ordinarily lacks standing to assert a tort claim against his opponent's counsel.   Bradley counters that the facts of the present case fall within the exception to the general rule, wherein liability for tortious interference with a contract or business expectancy may be imputed to a third-party adversary where it is established that the attorney actively participated in fraudulent or malicious conduct.

“[A]n attorney has no general duty to [an] opposing party, and therefore, a third party does not ordinarily have standing to pursue a claim for tortious interference against his adversary's attorney.”  Toste Farm Corp v. Hadbury, Inc., 798 A.2d 901, 907 (R.I.2002).¹  However, the courts “have recognized that an attorney can be liable for injuries to third parties when his conduct is fraudulent or malicious ․ Specifically, an attorney owes a duty to an adverse party not to participate actively in fraudulent conduct.”  (Citation omitted;  internal quotation marks omitted.)  Id.

Fraudulent conduct involves “a false or misleading statement of material fact that was known by the defendant to be false and was made with intent to deceive, upon which the plaintiff justifiably relies to its detriment.”   Nisenson v. Sadowski, 689 A.2d 1037, 1046 n.11 (R.I.1997).   Malicious conduct involves behavior that is “wrongful and done intentionally without just cause or excuse or as a result of ill will.”   Black's Law Dictionary (6th Ed.1990).

In the present case, Bradley alleged that Comley assisted the Moran defendants in persuading Kelly to file a rescission suit against Bradley by knowingly making false statements indicating that Bradley had taken undue advantage of Kelly during the contract negotiations for the sale of Kelly's interest in the property.   Bradley further alleged that Comley was involved in drafting the letter from the Moran defendants to Kelly, which directed Kelly to contact Comley for assistance in obtaining legal representation to file the rescission litigation.   The letter also contained allegations that the plaintiff possessed an appraisal of the property at $2,000,000, twice the property value used in their negotiations, and that Bradley made disparaging remarks towards Kelly's father.   Bradley alleges that although Comley knew that the allegations contained in the letter were false, he reviewed and approved the letter with the Moran defendants before it was sent.

In light of the foregoing, and mindful of the court's obligation to indulge every presumption favoring jurisdiction, this court finds that Bradley sufficiently alleged behavior by Comley that was, at a minimum, “wrongful and done intentionally without just cause or excuse or as a result of ill will;” Black's Law Dictionary (6th Ed.1990);  and would therefore constitute malicious conduct.   As a result, Bradley has standing to pursue his claims against Comley because the allegations fall under the exception to the general rule preventing a third party from pursuing a claim for tortious interference against his adversary's attorney.   Therefore, Comley's motion to dismiss counts three and six of Bradley's complaint for a lack of subject matter jurisdiction on this ground must be denied.

B

Comley also argues that Bradley lacks standing to bring the claims at issue pursuant to the remoteness doctrine because Bradley's claims are too remote, indirect and derivative with respect to Comley's alleged behavior, and therefore, Bradley is not the proper party to assert the claims.   Bradley counters that the damages he suffered as a result of Comley's conduct are direct in nature.

“The doctrine of remoteness bars recovery in tort for indirect harm suffered as a result of injuries directly sustained by another person.”   State v. Lead Industries Assn., Inc., Superior Court, Providence, Docket No. 99–5226 (April 2, 2001, Silverstein, J.).  “[A] plaintiff who complain[s] of harm flowing merely from the misfortunes visited upon a third person by the defendant's acts [is] generally said to stand at too remote a distance to recover.  Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268–69, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992).   In support of the directness of relationship requirement, the Holmes Court articulated a three factor rationale:  First, the less direct an injury is, the more difficult it becomes to ascertain the amount of the plaintiff's damages attributable to the [defendant's wrongdoing], as distinct from other, independent factors.   Second, quite apart from problems of proving factual causation, recognizing claims of the indirectly injured would force courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the [wrongdoing], to obviate the risk of multiple recoveries.   And, finally, the need to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct, since directly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely.”  (Internal quotation marks omitted.)  Id.

In the present case, Bradley brought claims against Comley for tortiously interfering with a contract and a business expectancy.   In his claims, Bradley alleged that Comley interfered by participating in efforts made, through fraudulent misrepresentations about Bradley, to persuade Kelly to revoke the real estate contract and file a rescission suit against Bradley.   As a result, Kelly then filed a rescission suit against Bradley, and the Rhode Island Superior Court did not confirm a partition sale for the property to Bradley.   Bradley also expended attorneys fees in defending Kelly's lawsuit allegedly initiated as a result of the fraudulent misrepresentations made by Comley.   Pursuant to the foregoing, and mindful of the court's obligation to indulge every presumption favoring jurisdiction, this court finds that the damages alleged by Bradley are not too remote, indirect and derivative with respect to Comley's alleged behavior, and therefore, the remoteness doctrine does not bar Bradley's claims against him.   As a result, Comley's motion to dismiss counts three and six for a lack of subject matter jurisdiction on this ground must be denied.

III

ORDER

Based on the foregoing, the court hereby denies Comley's motion to dismiss counts three and six of Bradley's third revised complaint.

Devine, J.

FOOTNOTES

FN1. It has been established that Rhode Island law controls the present case.   Bradley v. Comley, Superior Court, judicial district of New London, Docket No. CV 07 5005136 (December 2, 2009, Cosgrove, J.)..  FN1. It has been established that Rhode Island law controls the present case.   Bradley v. Comley, Superior Court, judicial district of New London, Docket No. CV 07 5005136 (December 2, 2009, Cosgrove, J.).

Devine, James J., J.