TASSMER v. McMANUS, No. CV08-501 89 61 S (Oct. 1, 2008)

BELLIS, J.

The plaintiffs, Kenneth Tassmer and Richard Perillo, filed a one-count complaint against the defendant, Vincent McManus. The following facts are alleged therein. The plaintiffs were involved in an adverse possession proceeding where the defendant was the attorney representing the opposing parties. In that proceeding, on July 31, 2007, the parties signed a contingent settlement agreement that has yet to be approved by the court. The defendant in the present case, however, recorded the settlement agreement on the land records in the town of Wallingford on September 14, 2007 as a "Boundary Agreement." As of the time of this complaint, there has not been a judgment on the adverse possession claim and the recording of the contingent agreement as a "Boundary Agreement" impaired the plaintiffs' pecuniary interest in the property. The plaintiffs are damaged in the amount of the full market value of the property due to the defendant's intentional and malicious tortious interference with the plaintiff's title which impaired their property's value and their ability to sell it.

On July 11, 2008, the defendant filed a supplemental motion to strike on the ground that the complaint does not state a cause of action for tortious interference. More specifically, the defendant argues that the complaint fails to allege at least four of the five elements of this tort in that: (1) it does not identify the contractual relation; (2) it does not indicate that the defendant knew of the contractual relationship or the identity of the persons who were party to the relationship; (3) it does not allege that the defendant intended to interfere with an extant, advantageous contractual relationship; and (4) it does not allege damages resulting from the defendant's interference because the complaint fails to allege an interference with a contractual relationship. CT Page 16309

The plaintiffs counter, in their memorandum in opposition to the supplemental motion to strike filed on July 16, 2008, that: (1) a specific contract with a ready and willing buyer is not required for a claim of tortious interference; (2) the document filed by the defendant was not a false lien or a false mortgage, but was a boundary agreement not containing metes or bounds and without variance approval, which is necessary for the transfer; (3) the financial benefit from any potential buyers was permanently damaged, which caused a permanent loss equal to that of the appraised value of the property, which is in excess of $300,000; (4) the defendant has impeded their ability to sell their property with clear title, which is necessary to its marketability; and (5) the defendant knew the effect of recording the boundary agreement because he has practiced real estate law for many years. The motion was heard on the short calendar on July 28, 2008.

"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 624, 910 A.2d 209 (2006). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 625. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Violano v. Fernandez, supra, 280 Conn. 318.

The defendant argues that the plaintiffs have not identified the contractual relationship with which the defendant interfered and have not alleged that he knew of the contractual relationship or the identity of the parties involved. The defendant further argues that, although the plaintiffs allege that the defendant acted intentionally and with malice, they do not allege that he intended to interfere with an existing contractual relationship. In response, the plaintiffs assert that a specific contract with a ready and willing buyer is not required CT Page 16310 for a claim of tortious interference.

"A claim for tortious interference with contractual relations requires the plaintiff to establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant's knowledge of that relationship; (3) the defendant's intent to interfere with the relationship; (4) that the interference was tortious; and (5) a loss suffered by the plaintiff that was cause[d] by the defendant's tortious conduct." Rioux v. Barry, 283 Conn. 338, 351, 927 A.2d 304 (2007). "Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss . . . it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers actual loss . . . [T]he tort is not complete unless there has been actual damage suffered." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 213, 757 A.2d 1059 (2000).

"Thus, it must appear that, except for the tortious interference of the defendant, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit . . . Such a determination is a question for the trier of fact, as is the question of whether the plaintiff has suffered an actual loss . . . If the question is whether the plaintiff would have succeeded in attaining a prospective business transaction in the absence of [the] defendant's interference, the court may, in determining whether the proof meets the requirement of reasonable certainty, give due weight to the fact that the question was made hypothetical by the very wrong of the defendant." (Citations omitted; internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 97, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).

Each of the defendant's arguments in his supplemental motion to strike focus on the lack of an existing contractual relationship at the time of the alleged tortious conduct. As stated above, however, our Appellate Court has ruled that a reasonable probability of such a contract is sufficient for a claim of tortious interference with a business relationship. The plaintiffs' complaint alleges that the defendant's conduct caused the title to their property and their ability to sell it to be impaired. Also, as stated above, our Appellate Court has also held that whether the plaintiff would have attained the business transaction is a question for the finder of fact. Thus, the plaintiff's complaint, although admittedly lacking, is sufficient to survive a motion to strike on these grounds.

For the foregoing reasons, the defendant's motion to strike is denied.

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