Opinion
No. CV03-0347962 S
December 24, 2003
MEMORANDUM OF DECISION
Before the court are individual members of a zoning commission, and another town official, seeking to strike a complaint count alleging a civil conspiracy. Defendants contend no such cause of action exists in our law.
In September 2000, the plaintiff, Towne Brooke Development LLC, filed an application with the Zoning Commission (commission) for the Town of Brookfield regarding the development of an affordable housing project. On March 8, 2001, the plaintiffs attended a meeting before the commission to discuss their application. After the hearing concluded and without the plaintiff being present, the members of the commission engaged in further discussions about the plaintiff's application. On June 14, 2001, the commission struck down the plaintiff's application. The plaintiff then submitted a modified application and on March 14, 2002, the commission denied that application as submitted, but approved an application subject to certain conditions.
The plaintiff alleges that the Town of Brookfield is in violation of General Statutes § 8-30g, which requires Connecticut towns and cities to provide affordable housing equal to ten percent of the available housing. When the complaint was filed, the plaintiff alleges that two percent of Brookfield's housing qualifies as affordable housing.
The plaintiff alleges that the defendants did not act fairly, properly or impartially when conducting the hearing and in considering the plaintiff's application. Specifically, the plaintiff alleges that in the March 8, 2001 "ex parte" discussions, the defendants discussed methods to deny the plaintiff's application on health and safety grounds, and what defendant Cole should submit to justify their denial. The plaintiff further alleges that the conditions ultimately imposed on the modified application do not relate to any legitimate concern about health or safety, but rather, were intentionally created to render the project economically unfeasible.
The action sounds in two counts. Count one alleges that plaintiff has suffered damage to their business expectancy because of the defendants' interference with their application for the development of affordable housing. Count two alleges a civil conspiracy which is based on the interference stated in count one. The defendants have moved to strike count two arguing that it is legally insufficient because under Connecticut law there is no cause of action for a civil conspiracy. This court has concluded that the defendants' argument is misplaced.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "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.) Salemme v. Seymour, 262 Conn. 787, 792, 817 A.2d 636 (2003).
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
Our Supreme Court has stated that "[i]n order to survive a motion to strike a civil conspiracy count, the [plaintiff] must properly allege: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 647, 804 A.2d 180 (2002). In Macomber, the Supreme Court addressed the defendant's argument, which attacked the second element of a civil conspiracy, found that the defendants engaged in unlawful soliciting and selling of life insurance products, and held that the civil conspiracy count should not be stricken. Id., 647-48. The Supreme Court had an obvious opportunity to declare that there is no cause of action for a civil conspiracy and chose not to.
In the present case, the defendants rely on Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 140, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002) for the proposition that there is no cause of action in Connecticut for a civil conspiracy. In Litchfield it was held that "[a] claim of civil conspiracy . . . is insufficient unless based on some underlying cause of action." (Internal quotation marks omitted.) Id. There, the underlying cause of action was fraudulent conveyance, but because the "[t]he [trial] court made no specific finding as to whether the transfers were made fraudulently so as to meet . . . the test for conspiracy to defraud," the court reversed the trial court's finding of a civil conspiracy. Id., 142-43. The court did not hold that there was no cause of action for a civil conspiracy, instead it merely held that the trial court had employed the wrong standard of proof. Id.
The court articulated the test for conspiracy to defraud as (1) the defendants combined (2) to fraudulently transfer assets, and (3) that the defendants committed an act of fraud pursuant to the scheme (4) that resulted in damage to the plaintiff. Litchfield Asset Management Corp v. Howell, supra, 70 Conn. App. 141.
The court stated that "[b]ecause a finding of fraud in this case was a necessary underpinning to a finding of a civil conspiracy," the correct standard of proof was "clear, precise and unequivocal evidence,' not a preponderance of the evidence as the trial court had employed. Litchfield Asset Management Corp. v. Howell, supra, 70 Conn. App. 143.
This court is convinced that because the Supreme Court in Macomber pronounced the necessary elements for a civil conspiracy count to survive a motion to strike, a cause of action exists in Connecticut for a civil conspiracy. The defendants do not question whether the plaintiff's complaint sufficiently alleges each element of a civil conspiracy, but rather, that there is no such cause of action under Connecticut law. This analysis is incorrect. The motion to strike count two is denied.
NADEAU, JUDGE.