David Cummings v. LLC (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION # 111

On April 19, 2013, the plaintiff, David Cummings (Cummings), filed a second revised fifteen-count complaint against the defendants Chesson & Schweickert, LLC, Robert W. Chesson, Kathy Riding, Susan Lane Cree Barry, Devcon Enterprises, Inc. and Cornfield Associates, LP.¹ In count one, Cummings alleges the following facts in support of his claim against the law firm for intentional infliction of emotional distress.   Cummings represented himself in a lawsuit instituted by Cornfield Associates, the owner of the property where Cummings resided.²  The defendant law firm represented Cornfield Associates in that pending case.   While at the courthouse on October 21, 2010, Cummings noticed a pleading on the judicial branch website filed in connection with that case.   During the proceedings, Cummings asked Attorney Robert W. Chesson, the law firm's employee, for a copy of this pleading.   Chesson did not respond to Cummings' request.   During a recess, Cummings again asked Chesson for a copy of the unknown pleading and Chesson ignored his request.   Cummings alleges that the law firm, knowing that Cummings was disabled and represented himself, intended to inflict emotional distress by ignoring his request or should have known that emotional distress was a likely result of ignoring his request.

In counts two and three of the second revised complaint, Cummings alleges the following facts in support of his claims against the law firm for negligent misrepresentation.   On May 13, 2010, Cummings received from the law firm two separate copies of a written objection and response to Cummings' first request for admission in the 2008 case involving Cornfield Associates.   Upon review of the documents, Cummings noticed that the notary's signature and the signature of Kathy Riding, one of the law firm's clients, were not original despite their affirmations that the document's contents were subscribed and sworn before them on May 10, 2010.   Cummings alleges that the law firm had control over and was, therefore, liable for the false representation made by the notary and Riding, upon which Cummings relied and acted to his injury.   On May 28, 2010, Cummings received another set of written responses from the law firm regarding his second request for admission.   Upon review of those documents, Cummings noticed that Riding's signature was not original despite her affirmation that she personally appeared, was deposed and duly swore to her statements in the document in the presence of the law firm's employees on May 29, 2010.   Cummings alleges that the law firm falsely represented to him that Riding was in their presence when signing the documents and that he relied on this representation to his injury.

In counts four, five and six of the second revised complaint, Cummings alleges the following facts in support of his claims against Chesson for malicious prosecution, intentional infliction of emotional distress and slander.   During a court recess on October 21, 2010, Chesson complained to a judicial marshal that Cummings threatened and assaulted him and requested that the marshal contact the state police in order to press charges.   Chesson thereafter provided a sworn written statement to the state police describing Cummings' actions.   Cummings was subsequently arrested and charged with breach of peace in the second degree, in violation of General Statutes § 53a–181.³  Cummings alleges that the charge was false and that there was no probable cause for the prosecution.   He further alleges that Chesson's statements to the marshal and the state police were slanderous and were made with malice for the purpose of inflicting emotional distress on him.

Counts one through six are the subject of this pending motion to strike.   It is necessary, however, to also review the remaining counts of the operative complaint because the motion to strike alleges misjoinder of parties and causes of action.

In counts seven, eight and nine of the second revised complaint, Cummings alleges the following facts in support of his claims against Riding for malicious prosecution, intentional infliction of emotional distress and slander.   On October 21, 2010, Riding provided a sworn written statement to the state police that she saw Cummings confront Chesson and ask him three times in a loud aggressive manner if he had the document that Cummings requested.   Riding also stated that she thought she saw Cummings strike Chesson.   As a result of Riding's statement, Cummings was arrested and charged with breach of peace in the second degree.   Cummings alleges that Riding's statement was slanderous and was made with malice for the purpose of inflicting emotional distress on him.

In count ten of the second revised complaint, Cummings alleges facts similar to counts two and three in support of his claim against Riding for negligent misrepresentation.   Specifically, he alleges that by signing the affidavits in response to his requests for admissions, Riding affirmed that she swore to the truth of her statements in the presence of the notary on May 10, 2010 and in Chesson's presence on May 27, 2010.   Cummings alleges that both affidavits contained false statements and that Riding's affirmations in the presence of the notary and Chesson were untrue.   Cummings further alleges that he relied on Riding's statements and affirmations to his injury.

In counts eleven through fifteen of the second revised complaint, Cummings alleges the following facts in support of his claims against Riding, Susan Lane Cree Barry, Devcon Enterprises, and Cornfield Associates for negligent misrepresentation, intentional infliction of emotional distress, and violation of the Connecticut Unfair Trade Practices Act (CUTPA).   Cummings has been a tenant on the property known as Cornfield Apartments since 1995.   Cornfield Associates is the owner of the property and a subsidiary of Devcon Enterprises.   Barry is an employee of Devcon Enterprises.   Riding is the on-site manager for Cornfield Apartments.   In 2005, Cummings was injured on the property resulting in out of pocket medical expenses.   Subsequently, Cornfield Associates refused to renew his lease and he was forced to find a comparable housing unit at Autumn Chase Apartments.   Autumn Chase informed Cummings that they would hold the unit for ten days pending the receipt of a renter's history verification from Cornfield Apartments.   Cummings alleges that Cornfield Associates and Riding refused to provide a renter's history verification and, as a result, he lost his hold on the Autumn Chase property.

In those same counts, Cummings alleges that Cornfield Associates initiated a summary process action against him in April of 2008 despite receiving full payment for a new rental agreement.   He also alleges that in June of 2012, Barry, Riding, Devcon Enterprises, and Cornfield Associates refused to order necessary repairs for his rental unit and falsely accused him of making threats toward the superintendent.

On February 20, 2013, the law firm and Chesson moved, with accompanying memorandum, to strike counts one through six from the revised fifteen-count complaint filed on December 21, 2012 on the grounds that Cummings improperly joined claims and parties and, alternatively, that counts two and three are barred by the applicable statute of limitations.⁴  On March 19, 2013, after the motion to strike was filed, the remaining four defendants, Riding, Barry, Devcon Enterprises and Cornfield Associates, filed a request to revise counts seven through fifteen of the December 21, 2012 complaint.   Cummings subsequently filed a second revised complaint on April 19, 2013.

Counts one through six of the April 19, 2013 complaint against the movants are identical to those of the December 21, 2012 complaint.   Counts seven through fifteen of the April 19, 2013 complaint contain revisions that are considered in this memorandum.⁵

On March 19, 2013, Cummings filed an objection and a memorandum in opposition to the motion to strike.   Oral argument was heard on March 25, 2013.

“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.”  Practice Book § 10–39(a)(4).   A motion to strike may also be used to contest the joining of two or more parties.  Practice Book § 11–3.  “The exclusive remedy for misjoinder of parties is by motion to strike.”  Zanoni v. Hudon, 42 Conn.App. 70, 73, 678 A.2d 12 (1996).

In the present case, the movants argue, correctly, that Cummings has improperly joined claims and parties in the complaint.   Specifically, the movants argue that there are no common questions of law or fact between Cummings' allegations against them and those against Barry, Devcon Enterprises, Cornfield Associates and certain claims against Riding.   Cummings argues to the contrary.   This decision analyzes the motion to strike in the light of the most recent complaint filed on April 19, 2013 because the claims against the movants are essentially identical in both complaints and the current allegations against the remaining defendants are relevant to the misjoinder of parties issue.⁶

Joinder of parties is permitted if the claims on behalf of each plaintiff or against each defendant arose from the same common questions of fact and would essentially involve the same evidence and testimony at trial.   Financial Consulting, LLC v. Illinois Mutual Life Ins. Co, Superior Court, judicial district of New London, Docket No. CV 09 5013143 (October 28, 2010, Cosgrove, J.).   If, however, the crucial facts differ for each party in the complaint, then the parties were not properly joined.  McCart v. Shelton, 81 Conn.App. 58, 62, 837 A.2d 872 (2004).   The revised complaint fails this test.

In the present case, Cummings has brought fifteen claims against six different defendants.   The allegations in counts one through six, which pertain to the misrepresentation of documents and events that occurred at the courthouse on October 21, 2010, are entirely different from the allegations in counts eleven through fifteen, which describe a series of events from 2005 to 2012 that caused Cummings to leave his rental property.   There are no common questions of fact between the claims against the movants and the claims against Barry, Devcon Enterprises and Cornfield Associates.   With respect to these two groups of parties, Cummings has essentially combined two entirely different cases with no factual relation.

There is only some factual overlap between the six claims against the movants and the claims against Riding.   The allegations in counts seven, eight and nine against Riding all relate to the series of events that took place at the courthouse on October 21, 2010 where Cummings was arrested for breach of peace, as do the allegations in counts four, five and six against Chesson.   The allegations in counts two and three against the law firm and the allegations in count ten against Riding all relate to allegedly false representations made in the written responses that were sent to Cummings in May 2010.   The allegations against Riding in count eleven, however, are unrelated to any of the counts against the movants.

Similarly, joinder of multiple claims in one complaint against a party is permitted if the claims “[arose] out of the same transaction or transactions connected with the same subject of action.”  Practice Book § 10–21(7).   A transaction within the meaning of § 10–21(7) “is something which has taken place whereby a cause of action has arisen.   It must therefore consist of an act or agreement, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered.”  (Internal quotation marks omitted.)   Brown v. Riverside Health, Superior Court, judicial district of Hartford at New Britain, Docket No. CV 94 0534043 (November 22, 1995, Wagner, J.).  “Transactions connected with the same subject of action within the meaning of [§ 10–21(7) ] may include any transactions which grew out of the subject matter in regard to which the controversy has arisen ․” (Internal quotation marks omitted.)   Lofts on Lafayette Condominium Assn., Inc. v. Lancaster Gate, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09 4027725 (February 17, 2010, Tobin, J.).   The revised complaint fails this test, as well.

There are stark differences within the first six counts against the movants.   The allegations in counts one, four, five and six, which pertain to events that took place at the courthouse on October 21, 2010, do not arise from the same transaction or even the same subject matter as the allegations in counts two and three, which pertain to the documents sent to Cummings in May 2010.   Cummings has joined two unrelated sets of claims with respect to the movants.   The joinder of these two sets of claims would not serve the interests of judicial economy because the evidence presented at trial as to each set would be entirely different.

In sum, Cummings has placed into his revised complaint a parade of claims against multiple defendants, many of which bear no evidentiary or transactional connection to one another.   Because of both a misjoinder of parties and a misjoinder of claims, the motion to strike is granted.

James Graham

Superior Court Judge

FOOTNOTES

FN1. The defendant Chesson & Schweickert, LLC will hereinafter be referred to as “the law firm.”   The law firm and Robert W. Chesson will hereinafter be referred to collectively as “the movants.”   Devcon Enterprises, Inc. and Cornfield Associates, LP will hereinafter be referred to as Devcon Enterprises and Cornfield Associates, respectively..  FN1. The defendant Chesson & Schweickert, LLC will hereinafter be referred to as “the law firm.”   The law firm and Robert W. Chesson will hereinafter be referred to collectively as “the movants.”   Devcon Enterprises, Inc. and Cornfield Associates, LP will hereinafter be referred to as Devcon Enterprises and Cornfield Associates, respectively.

FN2. The case in which Cummings was previously involved was Cornfield Associates v. Cummings, Superior Court, judicial district of Hartford, Docket No. CV 08 4041035..  FN2. The case in which Cummings was previously involved was Cornfield Associates v. Cummings, Superior Court, judicial district of Hartford, Docket No. CV 08 4041035.

FN3. “A person is guilty of breach of peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ․ [e]ngages in fighting or in violent, tumultuous or threatening behavior in a public place;  or assaults or strikes another ․” General Statutes § 53a–181(a)(1) and (2)..  FN3. “A person is guilty of breach of peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ․ [e]ngages in fighting or in violent, tumultuous or threatening behavior in a public place;  or assaults or strikes another ․” General Statutes § 53a–181(a)(1) and (2).

FN4. Because it is not necessary to the disposition of this motion, the court does not reach the statute of limitations issue..  FN4. Because it is not necessary to the disposition of this motion, the court does not reach the statute of limitations issue.

FN5. The differences between the revised complaints of December 12, 2012 and April 19, 2013 as to the nonmoving defendants are insignificant for purposes of this motion..  FN5. The differences between the revised complaints of December 12, 2012 and April 19, 2013 as to the nonmoving defendants are insignificant for purposes of this motion.

FN6. Trial courts have reviewed a subsequently filed amended complaint for purposes of deciding a previously filed motion to strike.   See, e.g., Nieves v. Housing Authority, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 0200048 (November 7, 2007, Karazin, J.) (44 Conn. L. Rptr. 493, 494 n.2) (operative complaint for the purpose of deciding defendant's motion to strike was the most recent complaint despite the fact that it had been filed subsequent to the motion to strike)..  FN6. Trial courts have reviewed a subsequently filed amended complaint for purposes of deciding a previously filed motion to strike.   See, e.g., Nieves v. Housing Authority, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 0200048 (November 7, 2007, Karazin, J.) (44 Conn. L. Rptr. 493, 494 n.2) (operative complaint for the purpose of deciding defendant's motion to strike was the most recent complaint despite the fact that it had been filed subsequent to the motion to strike).

Graham, James T., J.