LAURENCE V. PARNOFF v. TOWN OF STRATFORD ET AL.
(AC 44491)
Moll, Clark and DiPentima, Js.
Argued September 7-officially released November 15, 2022
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Syllabus
The plaintiff sought to recover damages from the defendant town, its mayor, H, its former tax assessor, F, and its counsel, B Co., for violations of the Freedom of Information Act (
- The plaintiff‘s allegations of CUTPA violations against the defendants in the first substituted complaint were insufficient:
- The trial court properly struck the CUTPA claims against F and H because the alleged conduct that served as the basis of those claims clearly fell within the scope of the exemption set forth in
§ 42-110c (a) (1) : F‘s and H‘s conduct was authorized and regulated by state statute and regulations, as they were acting as representatives of the town at all times, F‘s role as tax assessor and H‘s role as mayor were governed by statute, and, in responding to the plaintiff‘s public records request, F and H were acting pursuant to the Freedom of Information Act; moreover, F‘s and H‘s decision to involve B Co. in their response to the plaintiff‘s request did not convert their authorized and regulated activity into activity outside the scope of the CUTPA exemption; furthermore, F and H were not engaged in trade or commerce within the meaning of§ 42-110a (4) because the town‘s obligation to fulfill the records request served a purely governmental function and did not constitute trade or commerce. - The trial court properly struck the CUTPA claims against B Co. because those claims did not involve the commercial or entrepreneurial aspect of the practice of law under Haynes v. Yale-New Haven Hospital (243 Conn. 17) and, instead, were directed at the manner in which B Co. provided legal representation to the town.
- The trial court properly struck the CUTPA claims against F and H because the alleged conduct that served as the basis of those claims clearly fell within the scope of the exemption set forth in
- The plaintiff failed to allege facts in his second substituted complaint that, if true, would have created a reasonably foreseeable risk of severe emotional distress and, therefore, the trial court properly struck the plaintiff‘s claims for negligent infliction of emotional distress: it was not reasonably foreseeable that the plaintiff would suffer severe emotional distress as a result of B Co. allegedly providing an insufficient response to the plaintiff‘s records request or as a result of F and H allegedly wrongfully incurring legal expenses at the expense of the town‘s taxpayers; moreover, this court has previously held that claims of negligent infliction of emotional distress based on allegations of misconduct during the course of litigation were insufficient because that misconduct did not create a reasonably foreseeable risk that a plaintiff would suffer severe emotional distress, and the trial court extended that reasoning to the defendants’ allegedly unsatisfactory response to the plaintiff‘s public records request.
- The plaintiff‘s claim that the trial court violated his right to due process by granting the motions to strike with prejudice instead of requiring the defendants to move for summary judgment was inadequately briefed and deemed to be abandoned, as the plaintiff failed to cite to any authority in support of his claim or to provide any meaningful analysis.
Procedural History
Action to recover damages for, inter alia, violations of the Freedom of Information Act, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Hon. Dale W. Radcliffe, judge trial referee, granted the defendants’ motions to dismiss; thereafter, the court granted the defendants’ motions to strike; subsequently, the plaintiff filed a substituted complaint; thereafter, the court granted the defendants’ motions to strike; subsequently, the plaintiff filed a second substituted complaint; thereafter, the court, Hon. Dale W. Radcliffe, judge trial referee, granted the defendants’ motions to strike with prejudice and rendered judgment for the defendants, from which the plaintiff appealed to this court. Affirmed.
Laurence V. Parnoff, self-represented, filed a brief as the appellant (plaintiff).
Alexander J. Florek, for the appellee (defendant Melinda Fonda).
Opinion
CLARK, J. The plaintiff, Laurence V. Parnoff, appeals from the judgment of the trial court rendered following the granting of motions to strike filed by the defendants, the town of Stratford (town), Melinda Fonda, Berchem Moses PC (Berchem Moses), and Laura Hoydick. On appeal, the plaintiff argues that (1) his claims under the Connecticut Unfair Trade Practices Act (CUTPA),
We begin by setting forth the facts, as alleged in the plaintiff‘s operative complaints,1 and the procedural history of this case. On April 2, 2019, the plaintiff sent a records request to Fonda, the then tax assessor of the town, regarding the plaintiff‘s real property located at 3392 Huntington Road in Stratford. The plaintiff requested, inter alia, “the complete [assessor‘s] file from 2014 through the date hereof, including all correspondence, tax disclosure forms, inspection reports, assessments, notes and records of the board of assessment appeals, tax bills and payment records.” Two days later, on April 4, 2019, Berchem Moses, counsel for the town, replied to the plaintiff‘s letter with a letter stating that it would review the plaintiff‘s request and the records requested to determine whether any common-law or statutory exemptions to the act‘s production requirement apply. Berchem Moses indicated in its letter that the town was committed to providing prompt access to all records subject to disclosure under the law. The plaintiff replied to that letter on April 11, 2019, seeking clarification as to which requests might be exempt.
On or about July 13, 2019, the plaintiff commenced this action by way of a two count complaint against the town, Fonda, Berchem Moses, and Hoydick, the town‘s mayor. The plaintiff alleged in count one that the defendants failed to comply with the act. In count two, the plaintiff alleged that the defendants were liable for violations of CUTPA and for negligent infliction of emotional distress stemming from their failure to comply with the act.
On July 29, 2019, Berchem Moses provided the plaintiff with the documents sought in the records request. Although the documents requested by the plaintiff were produced, the plaintiff did not withdraw the underlying action. Instead, on August 15, 2019, the plaintiff filed an amended complaint pursuant to Practice Book § 10-59, adding a few allegations but maintaining both counts. Soon thereafter, the town, Hoydick, and Berchem Moses (collectively, town defendants) and Fonda separately filed motions to dismiss directed to count one of the amended complaint, arguing that the plaintiff failed to exhaust his administrative remedies.
On October 28, 2019, the court dismissed the first count of the second amended complaint as to all the defendants, concluding that it lacked subject matter jurisdiction over that count because the plaintiff had failed to exhaust his administrative remedies by filing a complaint with the Freedom of Information Commission before filing suit. The plaintiff has not appealed from that dismissal.
On November 6 and 14, 2019, the town defendants and Fonda, respectively, filed motions to strike directed to the second count of the second amended complaint. Both motions asserted that the defendants were exempt from CUTPA under
The plaintiff filed a substituted complaint on December 16, 2019 (first substituted complaint), which included five counts but left the first count blank as a result of the previously granted motions to dismiss. The second count alleged that Hoydick and Fonda were liable for negligent infliction of emotional distress. The third count alleged that Hoydick and Fonda violated CUTPA. The fourth count was directed at Berchem Moses and alleged that the firm was liable for negligent infliction of emotional distress. The fifth count alleged that Berchem Moses violated
The town defendants4 and Fonda filed separate motions to strike on December 23, 2019. The town defendants sought to strike all counts of the first substituted complaint, arguing that the allegations merely restated allegations from previously stricken counts without addressing the deficiencies therein. Fonda sought to strike counts two and three of the first substituted complaint with prejudice on the same basis and also because the plaintiff asserted new causes of action in violation of Practice Book §§ 10-44 and 10-60. The plaintiff objected to both motions to strike on January 6, 2020. The trial court, Hon. Dale W. Radcliffe, judge trial referee, granted the motions to strike on February 10, 2020, and further ruled that the motions were granted with prejudice as to all CUTPA claims.
The plaintiff filed a second substituted complaint on February 20, 2020, expressly stating that the first, third, and fifth counts were not repleaded. On the basis of substantially the same factual allegations made in his previously filed complaints, he asserted negligent infliction of emotional distress claims against the town, Fonda, and Hoydick in the second count and against Berchem Moses in the fourth count.
The town defendants filed a motion to strike the second and fourth counts of the second substituted complaint on February 27, 2020. Fonda filed a motion to strike the entirety of the complaint on March 2, 2020. The town defendants argued that the challenged counts failed to state a cognizable cause of action and that the counts reasserted both the records request claims, which the court had dismissed, and the CUTPA claims, which the court had stricken with prejudice. Fonda argued that the second substituted complaint should be stricken in its entirety because the plaintiff had failed to address the pleading deficiencies that caused the trial court to strike the plaintiff‘s negligent infliction of emotional distress claims in the first substituted complaint and, as a result, failed to allege facts sufficient to support a claim of negligent infliction of emotional distress. The plaintiff objected to both motions on April 24, 2020.
On November 30, 2020, the trial court, Hon. Dale W. Radcliffe, judge trial referee, granted both motions to strike with prejudice in written orders citing the transcript of the hearing on the motions. In that transcript, the court characterized the conduct alleged as the act of responding to a public records request with the assistance of counsel. The court cited our decision in Stancuna v. Schaffer, 122 Conn. App. 484, 998 A.2d 1221 (2010), for the proposition that litigation alone is not enough to support a claim of negligent infliction of emotional distress and extended that reasoning to the public records request alleged in the plaintiff‘s second substituted complaint. The court concluded that the complaint failed to state a claim for negligent infliction of emotional distress because actors engaged in the conduct alleged could not reasonably “have foreseen that [their] behavior would likely cause a harm of a specific nature, emotional distress, and that that emotional distress would likely result in bodily harm.”
On December 17, 2020, the court rendered judgment for the defendants pursuant to Practice Book § 10-44. This appeal followed.5 Additional facts will be set forth as necessary.
I
The plaintiff argues on appeal that he sufficiently alleged CUTPA claims against all of the defendants in the first substituted complaint6 because he alleged that the town made unnecessary payments to Berchem Moses for legal services in connection with the town‘s response to the plaintiff‘s records request. We disagree.
A
With respect to Fonda and Hoydick, the plaintiff claims that the trial court erred in striking the CUTPA claims against them because (1) they acted “in [abuse] of power and outside their authority” by consulting Berchem Moses, which rendered the CUTPA exemption in
Section 42-110c (a) provides in relevant part: “Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States . . . .” In addition, “[t]o successfully state a claim for a CUTPA violation, the [plaintiff] must allege that the defendant‘s acts occurred in the conduct of trade or commerce.” Cenatiempo v. Bank of America, N.A., 333 Conn. 769, 789, 219 A.3d 767 (2019). “‘Trade’ and ‘commerce’ means 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.”
The plaintiff alleged that Fonda and Hoydick violated CUTPA by referring the plaintiff‘s records request to Berchem Moses. The trial court struck these counts for failure to state a claim on the ground that Fonda and Hoydick were exempt from CUTPA pursuant to
We subsequently applied this exemption in Neighborhood Builders, Inc. v. Madison, 142 Conn. App. 326, 331-32, 64 A.3d 800, cert. denied, 309 Conn. 905, 68 A.3d 660 (2013), concluding that the town of Madison‘s practice of setting and collecting building permit fees was exempt from CUTPA under
Here, Fonda and Hoydick were acting as representatives of the town at all relevant times, and Fonda‘s role as tax assessor is governed by statute; see
Although the plaintiff takes issue with Fonda and Hoydick‘s decision to involve Berchem Moses, municipalities carrying out their statutory obligations may, and often do, utilize the services of legal counsel. Doing so does not convert the authorized and regulated activity—here, responding to a public records request—into an activity outside the scope of the CUTPA exemption set forth in
Moreover, as the trial court correctly noted, even if Fonda and Hoydick were not exempt from CUTPA pursuant to
With respect to Berchem Moses, the plaintiff claims that the trial court erred when it struck the CUTPA claims against the law firm because he alleged that it had engaged in trade or commerce. In granting the motion to strike with prejudice, the trial court stated that the claims against Berchem Moses “[did] not involve the commercial or entrepreneurial aspect [of the practice of law] under Haynes v. Yale-New Haven Hospital, [243 Conn. 17, 699 A.2d 964 (1997)].” We agree with the trial court.
Our Supreme Court “has stated that, in general, CUTPA applies to the conduct of attorneys. . . . The statute‘s regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law. . . . Nevertheless, [the court has] declined to hold that every provision of CUTPA permits regulation of every aspect of the practice of law . . . . [The court has] stated, instead, that, only the entrepreneurial aspects of the practice of law are covered by CUTPA.” (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002). “[A]lthough all lawyers are subject to CUTPA, most of the practice of law is not. The ‘entrepreneurial’ exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities—advertising and bill collection, for example.” Id., 782. “[T]he most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney‘s professional representation of a client or is part of the entrepreneurial aspect of practicing law.” Id., 781.
The plaintiff argues that his claims against Berchem Moses were based on allegations arising from conduct that was commercial or entrepreneurial in nature. That argument is belied by a simple review of the first substituted complaint. The complaint alleged that Hoydick and/or Fonda “retained” Berchem Moses to assist the town in complying with his records request and that Berchem Moses provided unnecessary legal services to the town. Those allegations were directed at the manner in which Berchem Moses provided legal representation to the town, not the commercial or entrepreneurial aspects of practicing law. See Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35 (“[t]he noncommercial aspects of lawyering—that is, the representation of the client in a legal capacity—should be excluded [from CUTPA] for public policy reasons” (internal quotation marks omitted)). As a result, the trial court properly struck the CUTPA claim against Berchem Moses.
II
The plaintiff next argues that he sufficiently pleaded claims of negligent infliction of emotional distress against the defendants in the second substituted complaint. Specifically, he claims that the trial court‘s November 30, 2020 ruling incorrectly concluded that the emotional distress he alleged was not a reasonably foreseeable consequence of the defendants’ alleged conduct. We disagree.7
In the present case, the plaintiff alleges that Berchem Moses provided an insufficient response to the plaintiff‘s records request on the town‘s behalf and that Fonda and Hoydick wrongfully incurred legal expenses at the expense of the town‘s taxpayers, including him. Even taking the allegations in the complaint as true, as we must on a motion to strike; Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398; it was not reasonably foreseeable that the plaintiff would suffer severe emotional distress as a result of this conduct.
In striking these counts, the trial court noted that this court has previously held that negligent infliction of emotional distress claims based on allegations of misconduct during the course of litigation are insufficient because the misconduct did not create a reasonably foreseeable risk that a plaintiff would suffer severe emotional distress. See Stancuna v. Schaffer, supra, 122 Conn. App. 490-91 (allegations that defendant intentionally forced mistrial in prior litigation were insufficient to state claim for negligent infliction of emotional distress); Wilson v. Jefferson, 98 Conn. App. 147, 162-63, 908 A.2d 13 (2006) (allegations that defendant previously had brought meritless summary process actions were insufficient to state claim for negligent infliction of emotional distress). The court extended the reasoning of those decisions to the allegedly unsatisfactory public records request in the present case and concluded that such conduct did not create a reasonably foreseeable risk of severe emotional distress.
We agree with the trial court that the plaintiff failed to allege facts that, if true, would create a reasonably foreseeable risk of severe emotional distress and, therefore, conclude that the court properly struck the plaintiff‘s claims for negligent infliction of emotional distress.
III
The plaintiff‘s last contention on appeal is that the trial court violated his right to due process by granting the motions to strike with prejudice instead of requiring the defendants to move for summary judgment.
The defendants argue that the plaintiff failed to adequately brief this claim on appeal because he failed to cite any authority in support of his due process argument. The plaintiff‘s argument on this point is less than one page long with no citations or meaningful analysis. We agree with the defendants that this claim is inadequately briefed and, thus, deem it to be abandoned. Bongiorno v. J & G Realty, LLC, 211 Conn. App. 311, 323, 272 A.3d 700 (2022) (“[when] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived” (internal quotation marks
The judgment is affirmed.
In this opinion the other judges concurred.