Opinion
No. X08-CV04-4002173S
June 6, 2008
Memorandum of Decision on Motion to Strike Special Defenses ( No. 217.00)
Procedural Background
On September 21, 2007 the plaintiffs filed their amended substituted complaint against the defendants concerning injuries and damages the plaintiffs allegedly sustained from environmental contamination of real property located at 23 Platt Street in Norwalk (the "Property") purchased by the plaintiffs from the defendants in October 2002. As amended, the complaint now consists of eighteen counts, two of which (Counts V and XIII) have been stricken by the Court (Adams. J.) but are mentioned and left blank to preserve appellate rights. The active counts are: Count I: fraudulent misrepresentation (against the defendants OBC Associates, Inc., R G Industries, Inc., Dickmonth Realty Associates, LLC and Richard Scalise); Count II: fraudulent nondisclosure; Count III: negligent misrepresentation; Count IV: violation of the Transfer Act (2002 sale); Count VI: CUTPA violations; Count VII: violation of the Water Pollution Control Act; Count VIII: common-law indemnification; Count IX: private nuisance; Count X: wanton wilful and reckless misconduct; Count XI: negligence; Count XII: negligence per-se; Count XIV: Nondisclosure as required by the Common Interest Ownership Act (CIOA); Count XV: Breach of CIOA warranties; Count XVI: piercing the corporate veil (against the defendant Richard Scalise); Count XVII: recoupment of distributions of dissolved corporations, Conn. Gen. Stat. § 33-887 (against the defendants Richard Scalise, Eleanor Mihailidis, and Donald Scalise); and Count XVIII: imposition of constructive trust (against the defendants Richard Scalise, Eleanor Mihailidis, and Donald Scalise). On October 29, 2007 the defendants filed their Answer and Special Defenses to Plaintiff's Amended Substituted Complaint in which they plead thirteen special defenses: (1) contributory negligence; (2) causation by conduct of others; (3) causation by independent unforeseeable, superceding and/or intervening causes; (4) statutes of limitation; (5) failure to mitigate damages; (6) waiver, estoppel, and laches; (7) assumption of risk; (8) failure to state a claim upon which relief can be granted; (9) claims precluded by terms of contract and condominium public offering statement; (10) caveat emptor; (11) unclean hands; (12) setoff from collateral sources; (13) As to counts I, II, IV, VI, X, XIV, and XV — failure to state a cause of action for attorneys fees, punitive damages, and/or exemplary damages; as to Count VII — lack of entitlement to reimbursement of costs pursuant to Conn. Gen. Stat. § 22a-452 as to costs which have not yet been expended.
Unless otherwise indicated all the active counts are directed against those defendants: OBC Associates, Inc., R G Industries, Inc., Dickmonth Realty Associates, LLC and Richard Scalise.
Eschewing a precision strike for a broad frontal assault the defendant has directed the first twelve special defenses to all sixteen active counts of the complaint. Only the thirteenth special defense is directed to limited counts as indicated. All special defenses are made on behalf of all six defendants. No requests to revise any special defenses have been filed. Now before the court is the plaintiffs' motion of November 13, 2007 to strike all thirteen special defenses.
Discussion A. Lack of Factual Allegations
The plaintiff's motion to strike is largely based on procedural grounds, specifically claiming that the special defenses are all insufficient as a matter of law under Practice Book § 10-1 for the failure of the defendants to plead adequate supporting facts to support their legal conclusions of doctrines of defense. The plaintiffs also claim that the First Special Defense is improper in that it alleges facts inconsistent with the facts alleged in the Amended Substituted Complaint in violation of the rule of Practice Book § 10-50, and that the Eighth Special Defense is insufficient by judicial precedent. The defendants maintain that they have alleged some facts to support their special defenses and point out that the plaintiffs concede in their memorandum of law that some of the special defenses allege ". . . few, if any, supporting facts . . ." (Plaintiff's Memorandum of Law p. 8.) The defendants' position is that their special defenses are factually based on the allegations "in the pleadings before the Court" (Defendants' Memorandum of Law, p. 6) which the court takes as a reference to the allegations of the complaint in addition to the "few" facts alleged in the special defenses, and that there is no need to allege additional facts in the special defenses themselves to support the application of the various theories of defense upon which they rely. They also dispute the plaintiffs' position on the first and eighth special defenses.
Practice Book § 10-1 requires that "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . ."
Practice Book § 10-50 provides, in part, that "Facts which are consistent with [the allegations of the complaint] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged."
The issue of the sufficiency or insufficiency of special defenses is properly raised by the vehicle of plaintiffs' motion to strike. Practice Book § 10-39(5); Nowak v. Nowak, 175 Conn. 112, 116 (1978). In ruling on a motion to strike special defenses the court has an obligation to take the facts as alleged and to construe the defenses in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536 (1992). The procedural issue herein presented is whether or not special defenses filed by defendants who are relying largely or totally on the facts alleged in the complaint as the factual bases of their legal theories of defense must repeat in their special defenses those same factual allegations as the plaintiffs have made in their complaint. For the reasons herein set forth, the court holds that such repetition is not required.
It is well established that a motion to strike ". . . admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinion stated in the pleadings." Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985). In addressing the legal sufficiency of a special defense, those facts well pleaded may include factual allegations of the count(s) of the complaint to which the special defense is directed as well as factual allegations of the special defense itself. Id. In Mingachos, the plaintiff's decedent had died as a result of injuries sustained in a chemical explosion on the Danbury premises of his employer, CBS, Inc. The first two counts of the complaint were directed to CBS and alleged that the decedent's injuries and death were caused by certain "willful" and "reckless" employer violations of certain state and federal safety statutes and regulations. The defendant CBS filed a special defense asserting the exclusivity of the Workers' Compensation Act as a bar to those counts. The plaintiff's motion to strike the special defense was overruled (denied) by the trial court (Sullivan, J.) who ". . . pointed out that the plaintiff has merely alleged `wilful' and `reckless' violations of safety statutes [and] . . . has not alleged an `intentional' injury." Id. at 94, note 4. In affirming, the Supreme Court said: "Where, as in this instance, the motion to strike challenges the legal sufficiency of the special defense of the act to the original complaint, we must consider the complaint in the same posture as did the trial court . . . Because the act provides the exclusive remedy to the employee for conduct alleged in the original complaint, the trial court's denial of the plaintiff's motion to strike the special defense was not clearly erroneous." (Emphasis added.) Id. at 109, 110. Clearly, then, in assessing the sufficiency of the defendants' thirteen special defenses, a court may look not only to the "few" facts specifically alleged in the special defenses themselves but also to the abundant facts alleged in the counts of the complaint to which the special defenses are directed, and the paucity of factual allegations in the special defenses themselves is not a fatal procedural defect as claimed by the plaintiffs. It might have been better practice for the defendants to have incorporated into their special defenses those paragraphs of the complaint deemed to be key to sustaining the application of the pleaded theories of defense, but the failure to do so does not render the special defenses legally insufficient. This ruling is in keeping with the recognized precept that "The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." Bennett v. Automobile Insurance Co. Of Hartford, 230 Conn. 795, 802 (1994).
Except for the first and eighth special defenses discussed below, the parties have not briefed substantively the sufficiency of the alleged special defenses to each of the counts of the complaint to which they are directed. For instance and by way of example only, there is no analysis whether or not contributory negligence or assumption of risk can be a defense to fraudulent misrepresentation, or to an action under the Transfer Act; or whether or not "the doctrine of caveat emptor" can be a defense to any of the plaintiffs' claims. Some of those determinations simply cannot be made without more specificity which the plaintiff has failed to seek by request to revise. For instance, there is no citation to any specific statute of limitations claimed to bar any of the sixteen active counts of the complaint. In the absence of any substantive briefing by the parties, and in face of a record which in many cases is inadequate for decision, the court declines to attempt those many substantive rulings in response to this motion. If not addressed sooner those decisions will necessarily have to made by the arbitrator.
Although Practice Book § 10-3 provides in relevant part that ". . . when any claim made in special defense . . . is grounded on a statute, the statute shall be specifically identified by its number," that requirement has been held to be directory rather than mandatory. Rowe v. Godou, 209 Conn. 273, 275 (1988). See also, Burns v. Landers, Docket No. 61671, Superior Court, Judicial District of Rockville (November 21, 1997, Sullivan, J.) (1997 Conn.Super.LEXIS 3157) [21 Conn. L. Rptr. 24] ("Although a proper pleading should set forth the particular statute(s) upon which the [pleading party] relies, the failure to do so does not effect the viability of the pleading but may be the proper subject of a request to revise."). In keeping with this concept it has been held that a special defense that "the plaintiff's claims are barred by the applicable statute of limitations" has been upheld. Freshnex, Inc. v. Mount Vernon Strategies, Inc., Docket No. CV00-0437778S, Superior Court, Judicial District of New haven at New Haven, (January 19, 2001, Devlin, J.) (2001 Conn.Super.LEXIS 171).
This motion was submitted by agreement on the briefs only, without oral argument.
With twelve special defenses directed to the sixteen counts and two other special defenses directed to eight specified counts, there are 200 potential decisions to be made, even assuming that there is no distinction among the six defendants as to applicability of the various theories of defense.
The court has bifurcated the issues of liability and damages and the parties have agreed to submit to binding arbitration any liability issues remaining after the court rules on a pending motion for summary judgment filed by the defendants.
B. First Special Defense.
The First Special Defense reads:
The losses and damages alleged to have been occurred were caused in whole or in part by the Plaintiffs' own negligence, omissions and culpable conduct. Specifically, plaintiffs failed to perform appropriate pre-purchase due diligence and investigations with respect to the Oysterbend Properties. Defendants provided plaintiffs with all information of which they were aware with respect to the environmental history and condition of the Oysterbend Properties.
(Emphasis added).
With particular reference to the bolded language, the plaintiffs claim that the First Special Defense runs afoul of the rule that a valid special defense must be based on "Facts which are consistent with such statements [plaintiff's allegations] but show, notwithstanding, that the plaintiff has no cause of action." Practice Book § 10-50. See Danbury v. Dana Investment Corp., 249 Conn. 1, 17 (1999). (Striking of special defense premised on allegations outside the scope of the municipal plaintiff's foreclosure complaint, affirmed.). The court agrees that the allegation that the defendants provided plaintiffs with all information of which they were aware with respect to the environmental history and condition of the Property is not "consistent with" the allegations of the complaint but rather is in direct conflict with several allegations of the complaint wherein it is alleged that the defendants failed to turn over letters and reports or information claimed to be relevant to the environmental condition of the Property, such as Amended Substituted Complaint ¶ 32 (failure to provide the Testwell Craig Letter); ¶ 52 (Failure to disclose in the public offering statement that the Property was listed on the CERCLIS or the Connecticut Inventory of Hazardous Waste Sites); and ¶ 70 (failure to disclose that barrels containing metal shavings, chemicals and/or oil were discovered during excavation and reburied on the Property, and failure to disclose the July 2000 letter from the DEP to defendant Richard Scalise that the Property was listed on CERCLIS and that the Property had been or would be investigated by EPA to determine the need for cleanup). The First Special Defense therefore must be stricken.
C. Eighth Special Defense
The Eighth Special Defense reads simply: "The Plaintiffs have failed to state a claim upon which relief can be granted." The plaintiffs claim this is not a valid special defense in Connecticut; the defendants claim that it is a valid special defense. It seems to the court that it is of little or no moment whether or not this can be raised as a special defense, since the very same argument can obviously be made as part of a motion for directed verdict in a jury trial or part of a motion to dismiss for failure to state a prima facie case in a bench trial or, for that matter, can be argued to the trier of facts at the conclusion of any trial. Nonetheless the motion to strike has been made and the parties are entitled to a ruling.
One possible consequence of allowing this claim as a special defense might be a reversal of the burden of proof. "Under our practice, when a defendant pleads a special defense, the burden of proof on the allegations contained therein is on the defendant." DuBose v. Carabetta, 161 Conn. 254, 262 (1971). The burden of proof issue has not been addressed by the parties and the court makes no ruling in that regard.1 1 Here the defendants have failed to specify such reasons either in the special defense itself or in their memorandum of law.
Although there is no appellate precedent, there are two conflicting lines of Superior Court decisions on the validity of this particular special defense. The cases relied upon by the plaintiffs hold that the "failure to state a claim upon which relief can be granted" special defense must be stricken because it fails to allege facts to support the legal conclusion made. This line of cases has come to be known as the Pozoukidis line named after Pozoukidis v. City of Bridgeport, Docket No. 346988, Superior Court, Judicial District of Fairfield at Bridgeport (February 13, 1998, Mottolese, J.) (21 Conn. L. Rptr. 382) where Judge Mottolese said:
. . . Rules of pleading hold defendants to the same standards of definiteness with respect to special defenses that plaintiffs are held to in their complaints . . . The special defense must therefore inform the plaintiff with reasonable clarity of the nature of the defense asserted. To allow . . . an indefinite special defense is to return to the days when litigation was somewhat of a blindman's bluff.
(Internal quotation marks and citations omitted.)
Other cases in the Pozoukidis line include decisions by Judges Zoarski, Ballen, Skolnick, Klaczak, and Gordon. Judge Gordon cites those cases in her summary of both lines in Cluney, PPA v. Regional School District No. 13 et al., Docket No CV99-0089468, Superior Court, Judicial District of Middlesex at Middletown (June 19, 2000, Gordon, J.) (2000 Conn.Super.LEXIS 1663) [27 Conn. L. Rptr. 415]. Another cases in this line includes Ayala v. LBI Acquisition Corp., Docket No. 417420, Superior Court, Judicial District of New Haven at New Haven (October 1, 1999, Devlin, J.) (1999 Conn.Super.LEXIS 2675).
The opposing line of cases has come to be known as the Scan Associates line named after Scan Associates v. Civitello Building Co., Inc., Docket No. 350643, Superior Court, Judicial District of New Haven at New Haven (January 24, 1994, Hodgson, J.) (1994 Conn.Super.LEXIS 178) [10 Conn. L. Rptr. 646] where the court upheld this special defense, citing footnote 5 of the Supreme Court's opinion in Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535 n. 5 (1988) which says: "it is incumbent on a plaintiff to allege some recognizable cause of action in the complaint. If he fails to do so, it is not the burden of the defendant to attempt to correct the deficiency, either by motion [motion to strike] or otherwise." Other cases in the Scan Associates line include decisions by Judges Moraghan, Lewis, and Levine, also cited in Judge Gordon's Cluney summary. Other cases in this line include Kadlick v. Barrett, Docket No. CV00 0176156S, Superior Court, Judicial District of Stamford-Norwalk at Stamford (March 19, 2001, Karazin, J. (2001 Conn.Super.LEXIS 806) and Smart v. Corbitt, Docket No. CV05-4002591S, Superior Court, Judicial District of New Haven at Meriden, (July 7, 2006, Shluger, J.) (2006 Conn.Super.LEXIS 2068.)
After consideration of both lines of cases, this court reaches the same result as the Pozoukidis v. City of Bridgeport line of cases for this particular special defense (motion to strike special defense must be granted) but not for exactly the same reasons as the Pozoukidis cases (failure to allege supporting facts). By borrowing from the Scan Associates cases the close analogy between this special defense and a motion to strike, and thereby applying motion to strike pleading requirements to the special defense, the insufficiency of this special defense becomes apparent. Scan Associates is premised on footnote 5 of Robert S. Weiss Associates, Inc. v. Wiederlight, quoted, supra, where the Supreme Court said that a defendant is not obliged to educate a plaintiff as to the deficiencies in his complaint by filing a motion to strike the complaint or count of the complaint (thereby giving the plaintiff the right to replead to correct the deficiency.) The Scan Associates cases extend this to hold that the deficiency in the complaint can then be brought out by a special defense. This special defense therefore has been allowed in the Scan Associates cases as an alternative to a motion to strike. But it has recently been held by the Appellate Court that a motion to strike all the counts of a complaint "on the grounds that they are legally insufficient and fail to allege any facts that would indicate [that the] defendant is liable to the plaintiffs" is fatally defective because it fails to specify the reason or reasons for the claimed insufficiency (which might be a pointing out of lack of facts — not necessarily the Pozoukidis requirement of making factual allegations), even if those reasons are articulated in the defendant's accompanying memorandum of law. Stuart v. Freiberg, 102 Conn.App. 857 (2007), citing Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13-14 (2001). A defendant such as the defendants in this case who might have raised the insufficiency of a plaintiff's complaint by motion to strike, but chooses for strategy reasons per Weiss Associates, Inc. to delay doing so and then raises the identical issue as a special defense, should not thereby be allowed to avoid the requirement of specifying in the special defense itself, the reason or reasons why the complaint is defective. Since the special defense at issue in this case totally fails to allege any such reasons, it should be stricken as insufficiently pleaded under the principles of Stuart and Barasso.
Order
For the foregoing reasons, the Plaintiff's Motion to Strike Special Defenses is:
Granted as to the First Special Defense;
Granted as to the Eighth Special Defense; and
Denied as to all other special defenses.
So ordered.