LTD v. LLC (2013)

MEMORANDUM OF DECISION REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, NO. 114

The defendants, Nicola “Nick” Liuzzi, Liuzzi Real Estate Inc., and N.D.R. Liuzzi, move for summary judgment on the third count of a six-count complaint brought by the plaintiff, Print Source, Ltd. The count in question is grounded in a claim of contempt of court.   The defendants move for summary judgment with respect to this count on the ground that the allegations contained in the count fail to state a claim upon which relief can be granted, and that this defect cannot be cured by repleading pleading.   Specifically, the defendants argue that the plaintiff was not the opposing party to the earlier suit where the defendants were found in contempt of court, and that no independent cause of action for civil contempt exists.   In response, the plaintiff asserts that the court has broad discretion to award compensatory damages for conduct that is found to be in contempt of court.   The court grants the motion for summary judgment on the ground that no private cause of action, independent of the court's inherent power to manage its docket, for civil contempt exists.

FACTS

The plaintiff, Print Source, Ltd., commenced this action by writ, summons and complaint on April 16, 2012, against the defendants, Lighthouse Litho, LLC (Lighthouse Litho), Nicola “Nick” Liuzzi, Liuzzi Real Estate Inc., and N.D.R. Liuzzi, Inc. (Liuzzi defendants).   In the amended six-count complaint, the plaintiff alleges the following relevant facts.

Liuzzi Real Estate Inc., and N.D.R. Liuzzi (collectively the “Liuzzi corporations”) ¹ owned a piece of commercial property in Hamden, Connecticut, (“the premises”) which they leased to Lighthouse Litho.   The plaintiff, a graphic design and print brokering company, maintained a business relationship with Lighthouse Litho, which included Lighthouse Litho storing the plaintiff's artwork at the premises.   In September 2011, the Liuzzi defendants initiated an eviction proceeding against Lighthouse Litho for failure to pay rent.   During the course of those proceedings, the Liuzzi defendants and Lighthouse Litho entered into a stipulated agreement requiring Lighthouse Litho to pay certain sums of money in order to regain entry into the premises.   Failure by either party to perform under the stipulated agreement required further action by the court.   In January 2012, Lighthouse Litho failed to perform as specified in the stipulated agreement.   Shortly thereafter, without permission from the court authorizing access to the premises, Nick Liuzzi allegedly caused destruction and/or disposal of certain personal property retained at the leased premises, including the plaintiff's property.   In February 2012, the Liuzzi Corporations were found in contempt of court and a motion for inspection of the premises was granted.   Shortly thereafter, the plaintiff was notified by Lighthouse Litho that all of the plaintiff's property that was stored at the premises had been destroyed.

In count one, the plaintiff alleges conversion against all defendants.   Counts two through four are directed against the Liuzzi defendants, and are grounded in claims of negligence, contempt of court, and civil theft, respectively.   Counts five and six are directed against Lighthouse Litho and are grounded in claims for loss or damage to goods of bailor and constructive bailment.

On January 15, 2013, the Liuzzi defendants filed an answer and special defenses.   On January 29, 2013, the Liuzzi defendants filed a motion for summary judgment with respect to the third count of the plaintiff's amended complaint and the first special defense.²  On March 11, 2013, the plaintiff filed a memorandum in opposition to the motion for summary judgment.   The matter was heard at short calendar on March 25, 2013.

STANDARD OF REVIEW

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”   (Internal quotation marks omitted.)  Stewart v. Watertown, 303 Conn. 699, 709–10, 38 A.3d 72 (2012).

DISCUSSION

The Liuzzi defendants submit that they are entitled to judgment as a matter of law on the ground that there is no genuine issue of material fact that the allegations contained in the third count fail to state a claim upon which relief can be granted.   In response, the plaintiff asserts that the motion for summary judgment should be denied as:  (1) the proper motion for challenging the legal sufficiency of the pleadings is a motion to strike;  (2) the plaintiff has properly pleaded a private cause of action for damages caused by the Liuzzi defendant's conduct in contempt of court;  and (3) even if the court finds that the plaintiff has not properly pleaded a cause of action under count three, this motion should be treated as a motion on the pleadings and the plaintiff must be afforded an opportunity to replead.

The court first addresses the issue of whether it may consider a challenge to the legal sufficiency of the pleadings on a motion for summary judgment.   “[T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ․ [while the] granting of a motion to strike allows the plaintiff to replead his or her case.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).   Accordingly, “the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”  Wilton Meadows Ltd Partnership v. Coratolo, 299 Conn. 819, 832, 14 A.3d 982 (2011).   In the present case, the Liuzzi defendants have alleged that count three of the complaint fails to set forth a cause of action, and that this defect cannot be cured by repleading.   The court will therefore consider the motion for summary judgment, and the burden rests on the defendant to establish that the defect cannot be cured by the plaintiff repleading the count.

In support of their motion for summary judgment, the Liuzzi defendants assert that the third count of the amended complaint fails to state a claim upon which relief can be granted because Connecticut law does not recognize a cause of action brought by a third party to recover damages for contempt of court.   Specifically, they note that the plaintiff was not the opposing party in the previous eviction action, therefore the only way the plaintiff could possibly be entitled to any damages would be if there was an independent and legally recognized cause of action.   The Liuzzi defendants point to a federal Michigan case, Matter of Grand Jury Investigation (90–3–2), 748 F.Sup. 1188 (E.D.Mich.1990), to support the proposition that there is no such thing as an independent cause of action for civil contempt, and assert that, accordingly, there is no way for the plaintiff to cure the legal defect in the amended complaint by simply repleading.

In response, the plaintiff argues that it has pleaded a cause of action upon which relief can properly be granted.   The plaintiff notes that the Liuzzi defendants rely upon a single federal case for the proposition that “there is no such thing as an independent cause of action for civil contempt.”   Furthermore, the plaintiff argues that Matter of Grand Jury Investigation (90–3–2), supra, 748 F.Sup. 1188, is not dispositive as it was decided on the narrow question of whether Federal Rule of Criminal Procedure 6(e) gives rise to a private cause of action for contempt.   The plaintiff emphasizes that there is substantial case law supporting the broad discretion of the court to award compensatory damages for conduct that is found to be in contempt of court.   At oral argument, the plaintiff also asserted that parties routinely bring postjudgment civil contempt actions in family law cases;  however, no cases were cited in support of the plaintiff's assertion either at the oral argument or subsequent thereto.

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense ․ Contempt may be civil or criminal in character.”  (Internal quotation marks omitted.)  Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992).  “Our case law classifies civil contempt as conduct directed against the rights of the opposing party ․ “ (Emphasis added;  internal quotation marks omitted.)  In re Jeffrey C., 261 Conn. 189, 197, 802 A.2d 772 (2002).  “Civil contempt involves the wilful violation of an applicable court order.”  (Citations omitted.)  Campbell v. Campbell, 120 Conn.App. 760, 767, 993 A.2d 984 (2010).  “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes:  to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained.”  (Emphasis added;  internal quotation marks omitted.)  DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278, 471 A.2d 638 (1984).  “[I]n civil contempt proceedings, the contemnor must be in a position to purge himself ․ Otherwise the sanction imposed would cease to be remedial and coercive but would become wholly punitive in actual operation.”  (Citations omitted;  internal quotation marks omitted.)  Mays v. Mays, 193 Conn. 261, 266, 476 A.2d 562 (1984).  “A contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.”  (Emphasis added;  internal quotation marks omitted.)  DPF Financial Holdings, LLC v. Lyons, 129 Conn.App. 380, 385, 21 A.3d 834 (2011).  “[A] finding of contempt depends upon the facts and circumstances surrounding it.”  (Internal quotation marks omitted.)   Campbell v. Campbell, supra, 120 Conn.App. 767.

“Circumstances in which third parties may enforce court orders through civil contempt proceedings are limited, and such proceedings are disfavored.”   17 Am.Jur.2d, Contempt § 150.   In Connecticut, the courts have routinely found that third parties to actions lack sufficient standing to bring motions of contempt before the court, even when they have an arguable interest in the outcome of the case.   For example, in Cyr v. Cyr, Superior Court, judicial district of Hartford, Docket No. CV 79 0235814 (December 5, 1991, Norko, J.), the court was faced with a motion for contempt brought by the plaintiff, against a department of the State of Connecticut for its alleged failure to obey a superior court order to pay the plaintiff's wife a certain sum of money.  Id. The plaintiff argued that the State's failure to pay the money directly impacted his child support payments to his wife, the defendant.   Id. The court found the plaintiff's claim to be without merit, as the State's failure to pay was an issue solely between the plaintiff's wife and the State.  Id. The court concluded that “[t]he plaintiff is a third party to this action, and therefore lacks standing sufficient to allow him to bring this motion for contempt before the court.”  Id. More recently, in In re Leeanna B., 142 Conn.App. 60, 62 A.3d 1135 (2013), the Appellate Court was faced with the question of whether a grandmother had standing to bring a motion for contempt in a custody case.  Id., 65.   There, the grandmother had filed two motions to intervene in the custody case, and both had been denied without prejudice.  Id., 66.   She also filed a motion for contempt but, because she was not a party to that action, the court found that she had no standing to file a motion for contempt and determined that the motion for contempt should have been dismissed by the lower court.  Id.

If the ability to bring a motion for contempt is limited to those individuals who are party to an action then, by logical extension, the ability to recover under a motion for contempt must be equally limited to those same parties.   A broader reading is inconsistent with the immediate purposes of civil contempt:  coercing compliance with a valid court order and/or compensating the complainant/intended beneficiary for non-compliance in a pending case.   If non-parties to the case in which the civil contempt of court claim adverse effect consequential to the contempt, those non-parties may seek relief employing recognized causes of action, but civil contempt has not been recognized, nor has the plaintiff offered any compelling logic for this court to recognize such a cause of action, as a private cause of action for non-parties.   Accordingly, no private cause of action for civil contempt for non-parties to the underlying case is found to exist in Connecticut.

In the present case, the plaintiff was not a party to the previous eviction action that resulted in the finding of contempt.   The plaintiff is now attempting to assert a cause of action to recover compensatory relief for the defendant's contempt of court in that earlier action.   No private cause of action for civil contempt, by a non-party to the underlying case in which the civil contempt occurred, has been recognized in Connecticut.   Consequently, the plaintiff lacks a legally recognized cause of action, and this legal defect cannot be cured by repleading.   The Liuzzi defendants have therefore met their burden, and are entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the motion for summary judgment is GRANTED as to Count Three only.

Zemetis, J.

FOOTNOTES

FN1. Nick Liuzzi is alleged to be the president and owner of the Liuzzi corporations..  FN1. Nick Liuzzi is alleged to be the president and owner of the Liuzzi corporations.

FN2. As their first special defense, the Liuzzi defendants assert that the allegations contained in the third count of the amended complaint fail to state a claim upon which relief can be granted..  FN2. As their first special defense, the Liuzzi defendants assert that the allegations contained in the third count of the amended complaint fail to state a claim upon which relief can be granted.

Zemetis, Terence A., J.