Opinion
No. CV04 4000078-S
January 20, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
On July 5, 2004, the plaintiff, Edward Dudley, commenced this action by service of process on the defendants, William J. Brown and Denise Brown. On July 7, 2004, the plaintiff filed a three-count complaint against the defendants, his former landlords, seeking damages for injuries allegedly sustained "on or about July 7, 2002" as a result of the defendants' alleged forcible entry and removal of the plaintiff's belongings from his dwelling in Meriden, Connecticut.
In count one of the complaint, entitled "Forcible Entry and Detainer," the plaintiff requests double damages pursuant to General Statutes § 47a-46 as a result of the alleged forcible entry and detainer. In count two, the plaintiff alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., and requests "CUTPA damages pursuant to § 42-110 et seq." In count three, the plaintiff alleges a breach of the implied warranty of good faith and fair dealing relating to "the leasing contract."
The defendants have filed a motion to strike counts one, two and three of the complaint, and the corresponding requests for relief.
DISCUSSION
"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). "It is fundamental that in determining the sufficiency of a complaint all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). The court "must construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn.App. 351, 359, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). "(I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
The defendants move to strike counts one, two and three, and the relief related thereto, on the grounds that "each of the counts is based on an alleged forcible entry and detainer, and as such is barred by the statute of limitations period provided in General Statutes § 52-589." Alternatively, the defendants move to strike count three on the ground that "no contractual relationship existed at the time of the events complained of."
Relying on § 52-589, which provides that "[n]o complaint for a forcible entry and detainer shall be brought but within six months after the entry complained of," the defendants argue that because more than six months elapsed between the date of the alleged entry on July 7, 2002 and the commencement of this action on July 5, 2004, count one is time-barred.
"[A] claim that an action is barred by . . . the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . . [T]here are two exceptions to that holding . . . If all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted, a motion to strike would be allowed." (Citation omitted; internal quotation marks omitted.) Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).
It is true that the plaintiff entitles count one "Forcible Entry and Detainer" and claims, in language which tracks the entry and detainer statute, § 47a-43, that the "Defendant, with force and with a strong hand unlawfully and forcibly and without the consent or knowledge, and against the will of the Plaintiff, entered the . . . land which was leased to the plaintiff and which before such entry had been and was then in the actual possession of the plaintiff." The plaintiff, however, further alleges that the "Defendant proceeded to violently throw massive amounts of Plaintiff's belongings from the windows of the second floor of the building to the ground, and to otherwise unlawfully remove Plaintiff's belongings from the apartment" and that "as a result of Defendant's unlawful actions, Plaintiff suffered damages in injury to his belongings." The plaintiff seeks to recover damages for the loss of his personal property as a result of the defendants' alleged unlawful conduct.
Section 47a-43 provides in relevant part,
(a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.
(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint. (c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial. (d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present.
When construed in the manner most favorable to sustaining its legal sufficiency, the allegations contained in count one support a cause of action for common-law trespass to property. See State v. Sawyer, 95 Conn. 34, 35-36, 110 A.461 (1920). In Sawyer, our Supreme Court held that a landlady who entered a tenant's room and took possession of the tenant's handbag as security for a debt had not committed a larceny. Rather, the court labeled the landlady's conduct a "trespass." Id. Here, the plaintiff seeks money damages for the removal and destruction of his personal property for trespass, or in more modern parlance, for conversion. See Brewer v. Fathergill, 30 Conn.Sup. 607, 609, 318 A.2d 131 (1973).
"There is in our reported decisions no better definition and description of a conversion than that given by JUSTICE TORRANCE in Gilbert v. Walker, 64 Conn. 390, 394, 30 A. 132 [(1894)]: `Conversion is usually defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights. . . . It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.'" Coleman v. Francis, 102 Conn. 612, 615, 129 A. 718 (1925).
The plaintiff has alleged sufficient facts to state a claim for a conversion. Thus, this court need not reach a decision regarding the applicability and effect of the six-month statute of limitations in § 52-589 for forcible entry and detainer. The motion to strike count one is denied.
The motion to strike the claim for double damages under § 47a-46, however, is granted because not only is the plaintiff's claim under the entry and detainer statute untimely, but also this court has no jurisdiction to entertain such a claim since there is nothing in the record indicating that the plaintiff followed the procedures required by § 47a-43, namely, that the plaintiff exhibited his complaint to a judge of the Superior Court or that a Superior Court judge issued a summons to the defendants pursuant to the statute. "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised . . . by the court sua sponte, at any time." (Internal quotation marks omitted.) ABC, LLC v. State Ethics Commission, 264 Conn. 812, 822-23, 826 A.2d 1077 (2003). "The failure of the plaintiff to follow the statutory procedure [set forth in § 47a-43] deprives this court of jurisdiction over the first count." New England Astro Optics, Inc. v. Beatman, Superior Court, judicial district of Hartford, Docket No. CV H 5626 (February 24, 1999, Tanzer, J.); see also Zdanis v. Sekeret, Superior Court, judicial district of Litchfield, Docket No. CV 18 8494 (June 14, 2002, Moraghan, J.T.R.) (failure of plaintiff to follow procedures laid out in § 47a-43 deprived the court of subject matter jurisdiction). The motion to strike the claim for double damages pursuant to § 47a-46 is granted as "the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
See footnote 2, supra.
In support of their motion to strike count two, the defendants argue that the plaintiff's CUTPA claim merely incorporates the allegations of count one, relies on the same factual inquiry as the claim for forcible entry and detainer, and coexists with count one, which is barred by the six-month statute of limitations provided in § 52-589. For the reasons stated above, the complaint, when read in a light most favorable to the plaintiff, supports a claim for damages resulting from trespass to property. Moreover, count two does not merely re-allege claims of forcible entry and detainer; it alleges an independent violation of CUTPA. The plaintiff claims that, "[t]he defendants' repeated failure to fulfill their obligations by way of their statutory duties to remain outside the premises prior to the service of a proper execution is part of a pattern of doing business in a manner which is unscrupulous, immoral, and in violation of the Connecticut Unfair Trade Practices Act." Since an action for a violation of CUTPA is governed not by a six-month, but rather by a three-year statute of limitations; General Statutes § 42-110g(f) count two has been timely alleged. Furthermore, a plaintiff may re-allege "a violation of § 47a-43 . . . as a factual predicate for the invocation of a claim of a CUTPA violation pursuant to § 42-110a et seq." Freeman v. Alamo Management Co., 24 Conn.App. 124, 128, 586 A.2d 619 (1991), rev'd on other grounds, 221 Conn. 674, 607 A.2d 370 (1992). The Supreme Court has held that a CUTPA violation "certainly" can be found based on a violation of § 47a-43(a). Daddona v. Liberly Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988). Thus, the defendants' motion to strike count two on the ground that it is barred by the statute of limitations contained in § 52-589 is denied.
As to count three, the defendants set forth two separate grounds in support of their motion to strike the plaintiff's claim of breach of implied warranty of good faith and fair dealing. First, they argue that count three "depends on and coexists with the forcible entry and detainer claim" and, thus, is also barred by the six-month statutory time period in § 52-589. Alternatively, the defendants contend that the notice to quit and subsequent judgment for possession in the summary process action terminated the lease, "the contract in this case." As a result, they maintain, there "was not a contractual relationship between the parties at the time of the events complained of and there is no basis to apply the covenant of good faith and fair dealing."
The complaint alleges that on June 18, 2002, the defendants began an eviction action against the plaintiff and that on July 3, 2002, the defendants received a judgment against the plaintiff.
"[T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000). Even construing the allegations of the complaint in a light most favorable to the plaintiff, there is no allegation that a lease or contract existed between the parties at the time of the alleged incident on July 7, 2002. Thus, there is no basis for the implication of the duty of good faith and fair dealing or a claim for breach thereof.
The defendants' motion to strike count three of the plaintiff's complaint is granted.
CONCLUSION
The defendants' motion to strike counts one and two of the plaintiff's complaint and the relief requesting damages pursuant to CUTPA is denied. The defendants' motion to strike count three and the relief requesting double damages pursuant to § 47a-46 is granted.
BY THE COURT
Tanzer, J.