Opinion
No. FST CV 08 5008443 S
October 30, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (106.00)
I. Facts
On August 13, 2008, the plaintiff, Clarke Builders, Inc., served a two-count complaint on the defendant, Richard Freeman d/b/a Custom Architectural Millwork. The complaint alleges the following facts. In August 2004, the plaintiff engaged the defendant "to do certain millwork in connection with the erection of a dwelling in the Town of Greenwich . . . In connection with said Order, [the plaintiff] sent to Custom Architectural Millwork a down payment check of $14,053.55 . . . Shortly thereafter David Dall, an officer of [the plaintiff], contacted the defendant . . . [and] inquired whether or not Custom Millwork had started any work in connection with this project and was told by [the defendant] that Custom Architectural Millwork had not started any millwork in connection with this project . . . At said time David Dall informed [the defendant] that the millwork was no longer required and requested that Custom Architectural Millwork return the down payment which [the defendant] assured him would be [returned] . . . Despite repeated requests, [the defendant], has refused and neglected to return said down payment."
In count two, the plaintiff alleges that "[i]f it is found that the Plaintiff is not entitled to the return of the down payment under Count 1, the Plaintiff is entitled to judgment against the Defendant under the Doctrine of Unjust Enrichment . . . The retention by the Defendant of the down payment on the contract which he did not perform, even though at the request of the Plaintiff, is inequitable and justice requires that the money delivered to the Defendant, who rendered no services on account of said monies, be returned to the Plaintiff rather than that the Defendant retain the benefit at the expense of the Plaintiff."
On April 7, 2009, the defendant filed an answer and three special defenses. The defendant's first special defense alleges that with respect to both counts of the complaint "the plaintiff is guilty of laches, in that it waited an unreasonable amount of time before bringing the present action." The second special defense alleges that "both counts accrued more than three years next prior to the commencement of this action and are therefore barred by the Statute of Limitations C.G.S. Sections 52-577 and 52-581, Subsection (a)." The third special defense to both counts "alleges that any payments made to him were made in his capacity as an employee of Custom Architectural Millwork, LLC, a Connecticut limited liability company, and not to him personally."
On June 16, 2009, the plaintiff moved to strike the defendant's first special defense on the ground that it "has failed to plead a necessary element of `laches,' i.e. that the alleged delay prejudiced the Defendant," and the second special defense on the grounds that "§ 52-577 applies to actions `founded in tort' and neither the First or Second Count of the Complaint is `founded in tort' . . . [Moreover] § 52-581(a) applies only to actions based on executory contracts and neither the First or Second Counts of the Complaint alleges an executory contract . . . [Finally] [n]either § 52-577 or § 52-581(a) is a defense to an equitable action such as the Second Count." The plaintiff filed a memorandum of law in support of its motion to strike. On July 8, 2009, the defendant filed a memorandum in opposition.
II. Scope of Review
"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 . . . A motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999). "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." (Internal quotation marks omitted.) Barasso v. Rear Still Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001); see also Practice Book § 10-39(a). In ruling on a motion to strike a special defense, the trial court has an obligation to take the facts alleged therein and construe them most favorably to sustaining the pleading. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Nevertheless, "[a] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion." Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
III. Discussion
The plaintiff argues in its memorandum that the first special defense "fails to incorporate one of the essential elements of the defense of laches, that the unreasonable delay `prejudiced the defendant.'" This is a correct statement of the law. See Bridgeport v. C.R. Klewin Northeast, LLC, 51 Conn.Sup. 1, 5-6 (2009) [quoting Bozzi v. Bozzi, 177 Conn. 232, 239 (1979)]. The defendant concedes this, and states in its memorandum that the motion to strike the First Special Defense may be granted. Dkt. Entry 108.00. Therefore, the motion to strike the First Special Defense is granted.
The defendant also concedes that the motion to strike may be granted as to that part of the Second Special Defense referring to General Statute § 52-577. Id. While it is generally, although not universally, held that only whole special defenses can be stricken, there is some authority that an individual paragraph of a pleading may be stricken when it contains an entire cause of action or defense, See Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, CV 06 5007079 (May 21, 2007, Tanzer, J.), ( 43 Conn. L. Rptr. 458); Zamstein v. Marvasti, 240 Conn. 549, 553 (1997) (noting that a trial court struck a single paragraph of a complaint because it was construed as a separate cause of action). In this case, the claim that the two counts of the complaint are barred by General Statute § 52-577 should have been pleaded as a separate special defense, and not included in the same special defense as General Statutes § 52-581(a). Therefore, based on defendant's concession the reference to Section 52-577 will be ordered stricken.
The court now turns to the issue of General Statutes § 52-581(a) raised in the Second Special Defense. In Tierney v. American Urban Corp., 170 Conn. 243 (1976) and earlier cases, the Connecticut Supreme Court restricted the applicability of the statute of limitations in Section 52-581(a) to executory contracts. A contract is executory when neither party has fully performed its obligations and is executed when at least one party has fully performed its obligations. Tierney v. American Urban Corp., supra; Bagoli v. Riccio, 102 Conn.App. 792, 799 (2007). Since the pleadings do not set forth facts sufficient to determine whether the alleged contract was executory or executed, the motion to strike Section 52-581(a) as a special defense is denied.
The plaintiff also argues that the Second Count, sounding in unjust enrichment, is not a contract claim and therefore Section 52-581(a) is not applicable. The plaintiff cites no authority whatsoever for this proposition, and this court has no duty to review an argument made without citation or analysis. Indeed, unjust enrichment is an equitable doctrine, but statutes of limitation are often at least referred to in determining whether an equitable claim is untimely. In this case, Section 52-581(a) is clearly applicable to the First Count, and whether it is directly applicable or not to the Second Count, the court declines to strike the defense as it is pleaded.
SO ORDERED.