Deborah Fox v. Diane Haskell et al. (2014)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (102.00)

By her complaint dated August 27, 2013, the plaintiff Deborah Fox sued the defendants, Diane Haskell and 78 Ridgewood Avenue, LLC, in six counts for, respectively, slander per se, slander, intentional infliction of emotional distress (Haskell only), negligent infliction of emotional distress (Haskell only), violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1612 et seq., and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a ¹ (Haskell only).   On October 3, 2013, the defendants moved to strike all counts except count two for one common reason, i.e., that the plaintiff's allegation relating to only one communication cannot support any of the five challenged counts.   See Practice Book § 30–41.   The plaintiff filed an opposing brief on October 15, 2013.   The motion was argued on November 12, 2013.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.   See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically).   A motion to strike does not admit legal conclusions or the correctness of opinions.   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   Viewing the allegations of count four in this light, the essential facts are as follows.

The first count, for slander per se, alleges that, between October 2011 and January 2012, the plaintiff, Deborah Fox, was a residential tenant of the defendant 78 Ridgewood Avenue, LLC (“defendant landlord”), pursuant to a term lease.   During the plaintiff's tenancy, she discovered that the heater in the dwelling she was renting had a hole in its firewall.   The hole posed a danger to the health of the plaintiff and her three children.   It also posed a fire hazard.   Because of this situation, the plaintiff and the defendant landlord, acting through the defendant Diane Haskell, agreed to terminate the lease early, with no penalties or further rent and fees to be assessed to the plaintiff.²  Pursuant to the release from the lease, the plaintiff and her children vacated the rented premises.

On February 8, 2012, Haskell called the plaintiff's place of business and spoke to a receptionist.   Haskell left a message for the plaintiff with the receptionist.   The message was a demand that the plaintiff pay unpaid rent and sewer fees and an itemized list of the unpaid rent and fees—all of which Haskell had agreed not to seek.³

The content of Haskell's communication ⁴ to the receptionist was false and malicious because Haskell knew that she had previously released the plaintiff from responsibility for such charges.   Haskell's actions were for, and were ratified and approved by, the defendant landlord.   Haskell's communication to the receptionist, a co-worker of the plaintiff, harmed the plaintiff's reputation.

Other facts alleged in subsequent counts will be noted as those counts are discussed.

DISCUSSION

“A motion to strike shall be used whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim ․” Practice Book § 10–39(a).  “[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”   Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).

The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint or count to state a claim upon which relief can be granted.   See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   In determining the sufficiency of a pleading, all well-pleaded facts and all necessarily implied facts are taken as admitted.  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike must be decided based only on the challenged pleading.  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   Grounds not specified in the motion may not be considered.  Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001);  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).   In ruling on a motion to strike, the court must construe the challenged pleading in the manner most favorable to sustaining its legal sufficiency.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

Returning to the first count, which is against both defendants, the elements of a cause of action for slander per se are that the defendant published to at least one other person a false statement of fact which charged the plaintiff with (a) incompetence or dishonesty in the workplace;  (b) general incompetence in a trade, business or profession;  or (c) theft or a crime punishable with imprisonment.  Miles v. Perry, 11 Conn.App. 584, 602, 529 A.2d 199 (1987);  Battista v. United Illuminating Co., 10 Conn.App. 486, 492–93, 523 A.2d 1356, cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987).   Count one does allege publication to another person (the receptionist) of a statement of fact (the implied statement that the plaintiff owed rent and sewer fees) which was false.   However, count one does not allege facts showing that the false statement amounted to a charge that the plaintiff was incompetent or dishonest or guilty of theft or a crime of moral turpitude.   The allegation that the “representations ․ were slanderous per se, in that they accused the Plaintiff of dishonest, immoral, and/or criminal conduct” is of no help here because it is merely an interpretation of the facts—that the defendant Haskell left a message with a demand that the plaintiff pay unpaid rent and sewer fees which Haskell had agreed not to seek—and therefore a conclusion of law, which is not admitted for present purposes.   The interpretation of pleadings is a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   The motion to strike count one must be granted.

Count three is against Haskell only for intentional infliction of emotional distress.   Count three adds few facts to those alleged in count one.   Count three adds, from count two, that, as a result of the words in the message Haskell left with the receptionist, the plaintiff's reputation suffered and she “lost the good will and trade at her place of business.”   Count three adds that Haskell's “acts described hereinabove” were done with the intent to cause the plaintiff emotional distress, and actually did cause such distress.⁵  The elements of an action for intentional infliction of emotional distress are:  (1) the defendant had the intent to cause or knew or should have known that her conduct would cause emotional distress;  (2) her conduct was extreme and outrageous;  (3) her conduct caused the plaintiff's emotional distress;  and (4) the plaintiff's emotional distress was severe.  Perez–Dickson v. Bridgeport, 304 Conn. 483, 526–27, 43 A.3d 69 (2012).   The court finds that the allegations—that Haskell left a message for the plaintiff with the receptionist at her place of employment demanding that the plaintiff pay a list of claimed rent and fees all of which Haskell had agreed not to seek—sufficiently allege outrageous conduct.   In reaching this conclusion, the court finds that the tort of intentional infliction of emotional distress, though not applicable to trifling matters, is not limited to matters of life-changing import or devastating health effects.   If the plaintiff can prove that Haskell left the message knowing the “demand” was baseless because it had been released, and can prove the other elements of this tort, which the court finds are sufficiently pleaded, she should be able to recover her damages.⁶  If any facts provable under the stated and implied allegations support a cause of action, the motion must be denied.  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Such is the case as to count three.

Count four claims negligent infliction of emotional distress by Haskell.   The only material fact added to those alleged in count three is that Haskell knew or should have known that her conduct would result in emotional distress.   The elements of negligent infliction of emotional distress are:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2005).   Count four is legally insufficient because, though the added fact adequately alleges foreseeability, the plaintiff does not allege that the foreseeable distress was so serious as to risk illness or bodily harm.   The motion must be granted as to count four.

Count five alleges that both defendants violated the federal Fair Debt Collection Practices Act, 15 U.S.C.A. § 1692 (FDCPA).⁷  Disregarding conclusions of law, the only new facts added in count five are that Haskell's actions were as servant or agent of defendant 78 Ridgewood Avenue, LLC, and ratified and approved by that defendant.⁸  The FDCPA prohibits many types of acts.   For present purposes, only one element of a violation of the FDCPA is pertinent:  the FDCPA only regulates conduct of debt collectors, as defined in 15 U.S.C.A. § 1692a(6).   That statute provides, in pertinent part, as follows:  “(6) The term ‘debt collector’ means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another ․ The term does not include (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor ․” Taking the properly pleaded facts in count five as true, of course including facts incorporated from prior counts, it is apparent that—assuming the defendant 78 Ridgewood Avenue, LLC, had a separate legal existence apart from Haskell ⁹ —Haskell completely controlled that company for purposes of this case.   As alleged in the complaint, Haskell made the agreement with the plaintiff terminating the lease with the company “with no penalties, or further rent and fees.”   The complaint further alleges that “Haskell ․ released Plaintiff ․ from responsibility for these charges.”   The demand conveyed by Haskell to the receptionist at the plaintiff's place of work was not, as far as can be told from the complaint, on behalf of the company and was despite Haskell's—not the company's—agreement not to seek more rent.   Count five does allege that Haskell's slander was “done with [the company's] ratification and approval, at its behest, and by its agent or servant” and that does imply that Haskell was only doing the company's bidding.   However, considering all the facts, the court cannot conclude that Haskell was a debt collector within the meaning of the FDCPA.   Specifically, on the facts alleged, Haskell was excluded either by 15 U.S.C. § 1692a(6), in that Haskell was not collecting a debt “owed or due or asserted to be owed or due another,” or by 15 U.S.C. § 1692a(6)(A), in that Haskell was an officer or employee of the company.   The motion must be granted as to count five.

Count six, which alleges violation by Haskell of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110b (CUTPA), adds no new facts to those incorporated from the plaintiff's preceding counts and summarized previously.   Count five fails to state sufficient facts for a cause of action for violation of CUTPA.  General Statutes § 42–110b(a) states, “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  General Statutes § 42–110a(4) defines “trade” and “commerce” as “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.”   That is a very broad definition, but the plaintiff has not claimed, let alone alleged facts to show, that Haskell was engaged in trade or commerce in this state, let alone engaged in unfair or deceptive acts or practices in such trade or commerce.   Count five must be stricken.

For the reasons stated, the defendants' motion to strike is denied as to count three and granted as to counts one, four, five and six.

Cole–Chu, J.

FOOTNOTES

FN1. Count six alleges violations of General Statutes § 42–110, which was repealed in 1975.   Since count six refers to the Connecticut Unfair Trade Practices Act and “CUTPA,” the intended citation is clearly General Statutes § 42–110a et seq..  FN1. Count six alleges violations of General Statutes § 42–110, which was repealed in 1975.   Since count six refers to the Connecticut Unfair Trade Practices Act and “CUTPA,” the intended citation is clearly General Statutes § 42–110a et seq.

FN2. The complaint, at paragraph 5, alleges, “with no ․ further rent and fees, to be assessed to the Plaintiff.”   The word “further” makes this phrase ambiguous.   The interpretation of pleadings is a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   Construing this allegation in favor of its legal sufficiency in the context of this case;  New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747;  the court finds the plaintiff is alleging an agreement, when the lease was terminated, that nothing at all was due from the plaintiff to the defendant landlord.   For present purposes, the alternative construction—that there would be no “further rent and fees” after the date of termination but there was past rent and/or there were past fees which continued to be due—is rejected..  FN2. The complaint, at paragraph 5, alleges, “with no ․ further rent and fees, to be assessed to the Plaintiff.”   The word “further” makes this phrase ambiguous.   The interpretation of pleadings is a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   Construing this allegation in favor of its legal sufficiency in the context of this case;  New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747;  the court finds the plaintiff is alleging an agreement, when the lease was terminated, that nothing at all was due from the plaintiff to the defendant landlord.   For present purposes, the alternative construction—that there would be no “further rent and fees” after the date of termination but there was past rent and/or there were past fees which continued to be due—is rejected.

FN3. This paragraph is the court's summary of the facts alleged in paragraph 7 of the complaint, construed most favorably to the plaintiff.   Paragraph 7 alleges all the actions of the defendants on which all counts of the complaint are based.   Paragraph 7 does not allege that Haskell mentioned the plaintiff's name to the receptionist, that Haskell left a message with the receptionist for the plaintiff, or that Haskell conveyed to the receptionist, or to the plaintiff through the receptionist, a demand that the plaintiff pay unpaid rent and fees..  FN3. This paragraph is the court's summary of the facts alleged in paragraph 7 of the complaint, construed most favorably to the plaintiff.   Paragraph 7 alleges all the actions of the defendants on which all counts of the complaint are based.   Paragraph 7 does not allege that Haskell mentioned the plaintiff's name to the receptionist, that Haskell left a message with the receptionist for the plaintiff, or that Haskell conveyed to the receptionist, or to the plaintiff through the receptionist, a demand that the plaintiff pay unpaid rent and fees.

FN4. The court regards “representations [published to a third party]” in paragraph 8 of the complaint to be a conclusion of law..  FN4. The court regards “representations [published to a third party]” in paragraph 8 of the complaint to be a conclusion of law.

FN5. Count three also alleges that Haskell's actions were “malicious, extreme and outrageous.”   The adjective “malicious” is factual because it alleges malice in the plaintiff's mind—but it is not new, having been alleged in count one.   The court finds “extreme and outrageous” to be conclusions of law.   In particular, though outrageousness is a part of the elements of intentional infliction of emotional distress, just alleging conduct is outrageous does not make it so.   The plaintiff must allege facts from which the jury could conclude the defendant's conduct was outrageous.   See Practice Book § 10–1 (“Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies ․”);  see also Santorso v. Bristol Hospital, supra, 308 Conn. 349 (motion to strike must be denied where provable facts alleged in the complaint support a cause of action)..  FN5. Count three also alleges that Haskell's actions were “malicious, extreme and outrageous.”   The adjective “malicious” is factual because it alleges malice in the plaintiff's mind—but it is not new, having been alleged in count one.   The court finds “extreme and outrageous” to be conclusions of law.   In particular, though outrageousness is a part of the elements of intentional infliction of emotional distress, just alleging conduct is outrageous does not make it so.   The plaintiff must allege facts from which the jury could conclude the defendant's conduct was outrageous.   See Practice Book § 10–1 (“Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies ․”);  see also Santorso v. Bristol Hospital, supra, 308 Conn. 349 (motion to strike must be denied where provable facts alleged in the complaint support a cause of action).

FN6. In support of their motion, the defendants cite Deutsche Bank v. Lichtenfels, Superior Court, judicial district of New Haven, Docket No. CV–04–4003402–S (June 17, 2009, Corradino, J.) (48 Conn. L. Rptr. 133), in which the court determines that intentional infliction of emotional distress claims in the context of debt collection must involve pervasive harassment.   Deutsche Bank is distinguishable from the present case because, as already discussed, the plaintiff alleges that she was released from payments and owed no debt to the defendants..  FN6. In support of their motion, the defendants cite Deutsche Bank v. Lichtenfels, Superior Court, judicial district of New Haven, Docket No. CV–04–4003402–S (June 17, 2009, Corradino, J.) (48 Conn. L. Rptr. 133), in which the court determines that intentional infliction of emotional distress claims in the context of debt collection must involve pervasive harassment.   Deutsche Bank is distinguishable from the present case because, as already discussed, the plaintiff alleges that she was released from payments and owed no debt to the defendants.

FN7. See Section 801 of title VIII of Pub.L. 90–321, as added by Pub.L. 95–109, Sept. 20, 1977, 91 Stat. 874 (“This title [enacting subchapter V of Chapter 41 ‘Consumer Credit Protection’] may be cited as the ‘Fair Debt Collection Practices Act’ ”)..  FN7. See Section 801 of title VIII of Pub.L. 90–321, as added by Pub.L. 95–109, Sept. 20, 1977, 91 Stat. 874 (“This title [enacting subchapter V of Chapter 41 ‘Consumer Credit Protection’] may be cited as the ‘Fair Debt Collection Practices Act’ ”).

FN8. Although the premise of count five is that, in telephoning the plaintiff's place of work, Haskell was collecting a debt owed to the plaintiff's lessor and that premise is inconsistent with the plaintiff's claim that the debt had been released, inconsistent pleading is permitted.  Vidiaki, LLC v. Just Breakfast and Things!!!, LLC, 133 Conn.App. 1, 24, 33 A.3d 848 (2012)..  FN8. Although the premise of count five is that, in telephoning the plaintiff's place of work, Haskell was collecting a debt owed to the plaintiff's lessor and that premise is inconsistent with the plaintiff's claim that the debt had been released, inconsistent pleading is permitted.  Vidiaki, LLC v. Just Breakfast and Things!!!, LLC, 133 Conn.App. 1, 24, 33 A.3d 848 (2012).

FN9. According to the summons and return of service in this case, the company's address is different from Haskell's and Haskell is not the company's agent for service of process..  FN9. According to the summons and return of service in this case, the company's address is different from Haskell's and Haskell is not the company's agent for service of process.

Cole–Chu, Leeland J., J.