Suffield Development Associates Limited Partnership v. National Loan Investors, L.P., et al.

The plaintiff, Suffield Development
Associates Limited Partnership, appeals from the judgment
of the Appellate Court affirming the trial court's
judgment in favor of the defendants, National Loan
Investors, L.P. (National), the law firm of Berman and
Sable, and attorney James W. Oliver.1 Suffield Development
Associates Ltd. Partnership v. National Loan
Investors, L.P., 64 Conn. App. 192, 194, 779 A.2d 822
(2001). The trial court rendered judgment for the defendants
granting the defendants' motions to strike the
plaintiff's original and amended complaints.2 The complaint
and amended complaint were based on the defendants'
alleged fraud and misrepresentation when
obtaining an execution that the plaintiff alleges was
for an amount in excess of the amount due under a
stipulated judgment between the parties. The amended
complaint alleged: (1) abuse of process; (2) fraudulent
misrepresentation; (3) tortious interference with a settlement
agreement between the plaintiff and a third
party; and (4) a violation of the Connecticut Unfair
Trade Practices Act (CUTPA); General Statutes § 42-
110a et seq.; and sought common-law punitive and
exemplary damages, punitive damages under CUTPA
and attorney's fees. We reverse the judgment of the
Appellate Court with regard to the first count and affirm
the judgment with regard to the other counts.

This litigation arises from a previous dispute between
the plaintiff and National (National litigation). In the
National litigation, National was represented by Oliver
and the law firm of Berman and Sable. Suffield Development
Associates Ltd. Partnership v. National Loan
Investors, L.P., supra, 64 Conn. App. 195. The National
litigation was resolved by a stipulated judgment
between the parties that contained a provision that the
judgment could ‘‘be satisfied only by proceeds from
a certain Lender Liability Judgment in favor of [the
plaintiff] . . . .''

The term ‘‘certain Lender Liability Judgment'' in the stipulated judgment referred to a judgment that the
plaintiff previously had obtained against Society for
Savings and its successor bank, BankBoston, as a result
of a damages action instituted by the plaintiff (Society
for Savings litigation). At the time that the stipulated
judgment containing this term was entered in the
National litigation, the judgment that the plaintiff had
obtained in the Society for Savings litigation was on
appeal. The Society for Savings judgment was vacated
on appeal and a new trial was ordered. See Suffield
Development Associates Ltd. Partnership v. Society for
Savings, 243 Conn. 832, 846, 708 A.2d 1361 (1988). Prior
to the new trial, the plaintiff settled the Society for
Savings litigation with BankBoston for $1.5 million. Suffield
Development Associates Ltd. Partnership v.
National Loan Investors, L.P., supra, 64 Conn. App.
195–96.

Essentially, under the stipulated judgment in the
National litigation, National could recover from the
plaintiff only out of funds that the plaintiff recovered
from BankBoston in the Society for Savings litigation.
The stipulated judgment entitled National to 15 percent
of the amount recovered by the plaintiff in the Society
for Savings litigation if that amount exceeded
$1,333,333.33.

After the plaintiff and BankBoston agreed to settle
the Society for Savings litigation for $1.5 million, the
plaintiff notified the defendants in the present action
of the settlement. The plaintiff stated that it did not
believe it had any duty under the stipulated judgment
and offered to place in escrow some of the funds
received from the settlement. The plaintiff then instituted
an action seeking a declaratory judgment that it
did not have a duty to pay a portion of the $1.5 million
settlement to National. Id., 196 n.3; see Suffield Development
Associates Ltd. Partnership v. National Loan
Investors, L.P., 60 Conn. App. 842, 844–46, 763 A.2d
1049 (2000). The plaintiff alleged that the phrase ‘‘certain
Lender Liability Judgment'' applied to the first
award in the Society for Savings litigation, which had
been vacated, and not to the eventual $1.5 million settlement.
Essentially, the plaintiff alleged that because it
had not recovered any money under the original judgment
against Society for Savings, it owed no money to
National in the National litigation.3

In response, the defendants applied to the trial court
for an execution in the National litigation to seize
$375,000 of settlement funds received by the plaintiff
from BankBoston. The trial court granted the application,
and the defendants directed a sheriff to carry out
the execution.

The plaintiff then instituted the present action alleging
that: (1) the defendants' execution overstated the
amount due them under the stipulated judgment
between the parties and was an abuse of process; (2) the defendants committed fraud on the court by misrepresenting
the amount owed them under the stipulated
judgment; (3) the defendants' execution on the settlement
proceeds constituted tortious interference with
the contractual relationship between the plaintiff and
BankBoston; (4) the defendants were engaged in the
conduct of trade or commerce and their actions were
immoral, oppressive, unethical and unscrupulous, and
therefore violated CUTPA. After the trial court granted
the defendants' motions to strike the amended complaint,
the plaintiff appealed to the Appellate Court. The
Appellate Court affirmed the judgment of the trial court;
Suffield Development Associates Ltd. Partnership v.
National Loan Investors, L.P., supra, 64 Conn. App.
195; and the plaintiff petitioned this court for certification
to appeal. We granted the plaintiff's petition for
certification to appeal, limited to the following question:
‘‘Did the Appellate Court properly conclude that the
plaintiff had not sufficiently alleged facts constituting
causes of action for: (1) abuse of process; (2) fraudulent
misrepresentation; or (3) violation of [CUTPA]?'' Suffield
Development Associates Ltd. Partnership v.
National Loan Investors, L.P., 258 Conn. 922, 782 A.2d
1252 (2001).

‘‘A motion to strike challenges the legal sufficiency
of a pleading, and, consequently, requires no factual
findings by the trial court. As a result, our review of
the court's ruling is plenary. Napoletano v. CIGNA
Healthcare of Connecticut, Inc., 238 Conn. 216, 232–33,
680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.
Ct. 1106, 137 L. Ed. 2d 308 (1997). We take the facts to
be those alleged in the complaint that has been stricken
and we construe the complaint in the manner most
favorable to sustaining its legal sufficiency. Bohan v.
Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also
Mingachos v. CBS, Inc., 196 Conn. 91, 108–109, 491
A.2d 368 (1985). Thus, [i]f facts provable in the complaint
would support a cause of action, the motion to
strike must be denied. Waters v. Autuori, 236 Conn.
820, 826, 676 A.2d 357 (1996).'' (Internal quotation marks
omitted.) Jewish Home for the Elderly of Fairfield
County, Inc. v. Cantore, 257 Conn. 531, 537–38, 778
A.2d 93 (2001).

I.

The judgment of the Appellate Court is reversed as to count one of the plaintiff’s complaint alleging abuse
of process and the case is remanded to that court with
direction to remand it to the trial court with direction
to deny the motion to strike as to that count and for
further proceedings according to law; the judgment of
the Appellate Court is affirmed in all other respects.

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