Nancy E. Forsstrom v. Robert E. Smanik (2013)

MEMORANDUM OF DECISION (DEFENDANT, ROBERT E. SMANIK'S, MOTION TO STRIKE # 110.00)

The defendant, Robert E. Smanik, moves to strike the first and second counts of the plaintiff's complaint for failing to state a claim on which relief can be granted pursuant to Practice Book § 10–39 because Smanik was not a “party” to the underlying lawsuit upon which the plaintiff's claim of “vexatious defense” is based.   The first and second counts of the complaint allege that the defendant violated General Statutes § 52–568 in his “official capacity” (count one) and his “personal capacity” (count two).

I BRIEF STATEMENT OF FACTS

The plaintiff, Nancy E. Forsstrom, commenced this action on August 20, 2012.   In her complaint, the plaintiff alleges the following facts.   From 2007 to 2009, the plaintiff served as the vice president for philanthropy for the defendant, Day Kimball Hospital (the hospital).   In 2009, the plaintiff and Smanik, the president and chief executive officer of the hospital, agreed that the plaintiff would resign from her position with the hospital only if the hospital's board of directors (the board) would provide her with an enhanced severance package that reflected her total years of service with the hospital.   Smanik agreed and told the plaintiff he would speak to the board to try and convince them to grant the plaintiff an enhanced severance package.   However, five days later Smanik fired her without any severance package at all.   Smanik informed the Board that the plaintiff had quit voluntarily and, thus, was owed no severance pay at all.   Smanik misled both the plaintiff and the board with regard to the plaintiff's removal, and did so with malicious intent and to benefit and enrich himself.

Thereafter, the plaintiff successfully sued the hospital for six months of severance in June of 2011.   At trial, the hospital asserted two defenses.   The first was that there was no clear and definite promise in the personnel policy manual for severance pay.   The second was that the plaintiff was terminated for cause and, therefore, was not entitled to severance pay.   Both defenses were false and were pursued and initiated by Smanik in bad faith, without probable cause, and with malicious intent to vex and trouble the plaintiff.   Smanik was responsible for the hospital interposing these vexatious defenses to the plaintiff's lawsuit.

II LEGAL STANDARD

“The purpose and scope of a motion to strike are identical to those of a demurrer under the old rules of practice.”  (Internal quotation marks omitted.)  Brennan v. Fairfield, 255 Conn. 693, 699 n.4, 768 A.2d 433 (2001).  “[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “Practice Book ․ § 10–39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).

“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.”   (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike, however, “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”   (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747.

III DISCUSSION

Plaintiff's complaint alleges a violation of § 52–568 for vexatious defenses against both the hospital and Smanik.   Count one is alleged against the hospital and Smanik, in his “official capacity” as president and chief executive officer of the hospital.   Count two alleges a violation of § 52–568 against only Smanik in his “personal capacity.”   The alleged violations of § 52–568 against both the hospital and Smanik resulted from defenses raised by the hospital during a previous jury trial between the plaintiff and the hospital in Case No. 10–6001074S, in the judicial district of Windham.

“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 ․ Vexatious suit is the appellation given in this State to the cause of action created by statute (General Statutes § 6148 [now General Statutes § 52–568] ) for the malicious prosecution of a civil suit ․ which we have said was governed by the same principles as the common-law action of malicious prosecution.”   (Citation omitted;  internal quotation marks omitted.)  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 89 Conn.App. 459, 467, 874 A.2d 266, cert. granted on other grounds, 275 Conn. 908, 882 A.2d 670 (2005).

Section 52–568 provides as follows:  “ § 52–568.   Damages for groundless or vexatious suit or defense.   Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

“In a malicious prosecution or vexatious litigation action, it is necessary to prove want of probable cause, malice and a termination of [the] suit ․ [Establishing] a cause of action for vexatious suit requires proof that a civil action has been prosecuted not only without probable cause but also with malice ․ It must also appear that the litigation claimed to be vexatious terminated in some way favorable to the defendant therein.”  (Citations omitted;  internal quotation marks omitted.)  QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001).

Smanik argues that liability pursuant to a claim of vexatious litigation is limited to the named parties from the original action.   Specifically the defendant argues that the only named entity in the original action that “asserted” any defenses was the hospital.   Therefore, Smanik argues that since he was not a named party in the original action and was only assisting with the defense in his official capacity and not a party to the underlying lawsuit, he cannot be sued in his official capacity or his personal capacity under § 52–568.   This court disagrees.

It is well-settled under Connecticut law that a person may be held liable for vexatious litigation if he contributes materially to vexatious prosecution or defenses after the case is brought, even if that person was not a named party in the original action.  “Under our law of vexatious suit, a person maintains and/or prosecutes a civil action when he either initiates the action personally;  Zenik v. O'Brien, 137 Conn. 592, 596, 79 A.2d 769 (1951);  or contributes materially to its prosecution after it is brought.  Fusario v. Cavallaro, 108 Conn. 40, 43, 142 A. 391 (1928).”  (Emphasis added.)   Spear v. Summit Med. Ctr., Inc., Superior Court, judicial district of New Britain, Docket No. CV 93 0525939 (April 16, 1998, Sheldon, J.).   The Connecticut Supreme Court has held unequivocally that, “[a] person is deemed to have initiated a proceeding if his direction or request, or pressure of any kind by him, was the determining factor in the officer's decision to commence the prosecution.”  Zenik v. O'Brien, supra, 137 Conn. 596.

It is clear, “[u]nder this definition, potential liability for vexatious suit extends both to each named plaintiff in a challenged civil action, and to each other person who played a material role in the bringing of the action. ”  (Emphasis added.)  Spear v. Summit Med Ctr., Inc., supra, Superior Court, Docket No. CV 93 0525939.   Relying on Supreme Court precedent, the court in Spear affirmed that principle, explaining that a person is liable under a vexatious litigation count if he “voluntarily conspire[d] and maliciously join [ed] in the prosecution without probable cause after the action was brought.”   Id. (quoting Fusario v. Cavallaro, supra, 108 Conn. 43).   In addition, “all who knowingly procure, direct, aid, abet or assist in” the claims or defenses made in the original action “are liable as joint tortfeasors for the damage done.”  McGann v. Allen, 105 Conn. 177, 185, 134 A. 810 (1926).

Furthermore, “[i]t is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position.   Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby ․ Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort.”   Sturm v. Harb Development, LLC, 298 Conn. 124, 132, 2 A.3d 859 (2010);  see also Kilduff v. Adams, Inc., 219 Conn. 314, 331–32, 593 A.2d 478 (1991).

In the present case, the plaintiff's complaint sufficiently alleges that Smanik played an individual, personal and material role in causing the hospital to assert vexatious defenses in the prior civil action that was ultimately decided in the plaintiff's favor.   The facts allege that Smanik caused such defenses to be asserted without probable cause and with a malicious intent in both his official and personal capacities.   Further, nothing precludes the plaintiff from proceeding against Smanik in either capacity in a claim for vexatious defenses.   Accordingly, plaintiff has sufficiently alleged a claim under § 52–568.

For the foregoing reasons, the defendant's motions to strike counts one and two are denied.

THE COURT

CALMAR, J.

Calmar, Harry E., J.