McCullough v. Town of Rocky Hill

Stephen C. MCCULLOUGH v. TOWN OF ROCKY HILL

No. CV155016831S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

January 31, 2018

UNPUBLISHED OPINION

OPINION

PETER EMMETT WIESE, JUDGE

I PROCEDURAL HISTORY

On September 11, 2015, the plaintiff, Stephen C. McCullough filed his writ, summons and complaint against the defendant the Town of Rocky Hill (town). On July 18, 2016, the plaintiff filed a twelve-count amended complaint against the defendant, asserting claims for abuse of process and various intentional torts. On August 17, 2016, the defendant filed a motion to strike all counts in the amended complaint on the grounds that the abuse of process claims were legally insufficient and the intentional torts were barred by governmental immunity. By a decision dated January 24, 2017 the court, Wiese, J., granted the motion to strike counts two through twelve. With regards to count one, the motion to strike was denied as to the abuse of process claim, but was granted as to the claim of selective enforcement of laws also alleged in count one.

On April 24, 2017, the plaintiff filed a twelve-count substituted complaint against the defendant, which re-alleged most of the counts previously stricken by the court. This court articulated the factual allegations underlying the plaintiff’s claims against the defendant in a previous memorandum of decision (Docket No. 123) that addressed the defendant’s motion to strike and does not restate them here. Additional facts will be set forth later in this memorandum as necessary. Count one alleges abuse of process and count two alleges intentional infliction of emotional distress. Count three still asserts a claim for invasion of privacy but now also contains a single allegation that it was an illegal search in violation of article first, § 7 of the Connecticut constitution and the fourth amendment to the United States constitution. Count four was previously titled " Intentional Tort," but is now titled " Abuse of Process." Count five was previously entitled " Trespass," it is now entitled " Inverse Condemnation." Count six and count seven continue to allege trespass and trespass to chattels, respectively; however count seven now includes an allegation of an illegal search and seizure. Count eight is entitled abuse of process. Count nine alleges intentional infliction of emotional distress. Count ten is entitled " Fraud by Non-Disclosure." Count eleven is now entitled " Municipal Ordinance in violation of the Thirteenth Amendment," rather than " Abuse of Process." Finally, count twelve, which previously alleged trespass, is now entitled Illegal Search.^[1]

The defendant filed a motion for summary judgment as to the entire substituted complaint on June 21, 2017. The plaintiff filed a memorandum in opposition to the motion and an affidavit on September 25, 2017. On October 11, 2017, the plaintiff filed a supplemental memorandum in opposition to the motion and a second affidavit. The parties appeared and argued the motion and opposition at short calendar on October 16, 2017.

II APPLICABLE LAW

A. Standard of Review

" [S]ummary judgment shall be rendered forthwith if the 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. 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.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).

" Once the moving party has met its burden ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).

" In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). Additionally, " the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).

B. Governmental Immunity

Subdivision (2) of § 52-557n(a) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, actual malice or wilful misconduct ..." General Statutes § 52-557n(a)(2)(A).

Under our law, there is no distinction between " intentional" and " wilful" ; see O’Connor v. Board of Education, 90 Conn.App. 59, 65, 877 A.2d 860 (2005); accordingly, claims asserting an intentional tort are barred by governmental immunity as a matter of law. See id., 65-66; see also Pane v. Danbury, 267 Conn. 669, 685, 841 A.2d 684 (2004), overruled on other grounds by Grady v. Somers, 294 Conn. 324, 330, 984 A.2d 684 (2009); Martin v. Westport, 108 Conn.App. 710, 729-30, 950 A.2d 19 (2008). This includes intentional infliction of emotional distress; Martin v. Westport, supra ; and invasion of privacy. O’Connor v. Board of Education, supra, 65 (finding that in asserting claim for invasion of privacy, plaintiff alleged violation of intentional tort, thus: " plaintiff’s allegations of invasion of privacy amount to ‘wilful misconduct’ under the statute and, therefore, § 52-557n(a)(2) provides defendant immunity" ).

C. Abuse of Process

" An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed ... Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process ... the gravamen of the action for abuse of process is the use of a legal process ... against another primarily to accomplish a purpose for which it is not designed ... [T]he addition of primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citations omitted; emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). " The import from Mozzochi is that the relevant inquiry is whether the defendant used the judicial process for some ulterior motive unrelated to the action at hand, not whether the defendants’ methods to oppose were weakly supported or otherwise lacking in merit." Sacred Heart University v. Voll, Superior Court, judicial district of Fairfield, Docket No. CV- 15-6048244-S (April 25, 2016, Kamp, J.) (62 Conn.L.Rptr. 220, 224). " Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish." (Internal quotation marks omitted.) Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn.App. 168, 170-71, 526 A.2d 532 (1987).

In affirming the decision of the trial court striking the plaintiff’s abuse of process claim, our Supreme Court in Mozzochi discussed instances where an abuse of process claim might lie, listing as examples " [using] the pleadings or the process in the [underlying] case as leverage to coerce the plaintiff to pay a debt or surrender property unrelated to that litigation," or " [using] unreasonable force, excessive attachments or extortionate methods ..." (Emphasis added.) Mozzochi v. Beck, supra, 204 Conn. 493. An excessive attachment was at issue in Suffield Development Associates Ltd Partnership v. National Loan Investors, L.P., 97 Conn.App. 541, 544, 905 A.2d 1214 (2006). In that case, the Appellate Court affirmed the judgment of the trial court, which found that the defendants had engaged in an abuse of process: " The court concluded that the defendants had engaged in an abuse of process by improperly obtaining the execution in an excessive amount and primarily for the inappropriate purpose of securing moneys in which their clients had no known or established right or interest. According to the court, the execution was intended to prevent the lender liability settlement funds from disappearing while an active dispute about their...