Opinion
FBTCV166056848S
12-15-2016
Fitzgerald Management, LLC v. Barbara Fitzgerald
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE SPECIAL DEFENSES AND COUNTERCLAIMS
Edward T. Krumeich, J.
Plaintiff Fitzgerald Management, LLC has moved to strike the special defenses and counterclaims alleged by defendant Barbara Fitzgerald on the ground of the statute of frauds, 52-550(a)(5). Plaintiff has also moved to strike the claims for attorneys fees in the claims for relief.
Plaintiff has not moved to strike the special defense based on alleged forgery of a quitclaim deed into the LLC.
In this action plaintiff seeks to eject defendant from certain real property located in Fairfield where she has resided since 1983. Defendant's father is the co-managing member of the plaintiff. Defendant alleges in her special defenses and counterclaims that she had an agreement with her father, whereby, in exchange for taking care of her grandmother and maintaining certain properties owned by her father, she was promised that title to her residence would be transferred to her. In reliance on this promise defendant alleges that she performed substantial improvements on the property and provided receipts for the work requested by her father so he could benefit from tax deductions for the work.
For the reasons stated below, the motion to strike is denied as to the special defense and counterclaims, but is granted as to the claims for award of attorneys fees.
The Standards for Deciding a Motion to Strike
" 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 . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
The Special Defense States a Claim for Equitable Estoppel
Plaintiff's motion to strike the special defense and counterclaims asserts defendant has failed to state a defense and claims premised on an oral agreement to convey real estate because they are barred by the statute of frauds, C.G.S. § 52-550(a)(4). Defendant argues plaintiff is estopped to deny the agreement and invoke the statute of frauds and also argues the statute of frauds does not apply to bar equitable claims.
The Appellate Court restated the elements of equitable estoppel in Blackwell v. Mahmood, 120 Conn.App. 690, 694-95, 992 A.2d 1219 (2010):
The doctrine of equitable estoppel is well established. " [W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time." . . ." Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct . . . In its general application, we have recognized that [t]here are two essential elements to an estoppel--the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done . . . [Our courts] previously [have] applied the doctrine of equitable estoppel to bar a party from asserting the statute of frauds as a defense so as to prevent the use of the statute itself from accomplishing a fraud . . ."
Read most favorably to defendant, the special defense alleges that plaintiff was deeded the property recently by a forged deed to avoid the promises her father made to her " multiple times" that in exchange for caring for her grandmother and maintaining various properties owned by him she would receive title to the subject property. Defendant is asserting an equitable interest in the property and right to possession in defense of plaintiff's claim that her father and his successors would be estopped to deny if proven. See e.g., Robbins v. Physicians for Women's Health, LLC, 311 Conn. 707, 715, 90 A.3d 925 (2014) (successor liability); Kendall v. Amster, 108 Conn.App. 319, 332, 948 A.2d 1041 (2008).
This defense, if proven, also would estop plaintiff from invoking the statute of frauds because defendant alleges she performed her duties under the agreement by maintaining the properties and caring for her grandmother in reliance on her father's promise to convey title to the property on which defendant reasonably relied. See, St. Germain v. St. Germain, 135 Conn.App. 329, 334-36, 41 A.3d 1126 (2012); Naugatuck Valley Savings and Loan, 2004 WL 341808 *3 (2014) (Tyma, J.) (denied motion to strike estoppel special defense). Compare, Sovereign Bank v. Licata, 116 Conn.App. 483, 977 A.2d 228 (2009) (statute of frauds did not preclude tort claim based on oral agreement).
At oral argument plaintiff's counsel referred to " facts" outside the pleadings in support of the motion to strike the special defense and counterclaims. Courts do not look favorably on " speaking" motions to strike and these extra-pleading assertions were not considered by the court in its rulings. See, Mercer v. Cosley, 110 Conn.App. 283, 292, 955 A.2d 550 (2008).
" 'When estoppel is applied to bar a party from asserting the statute of frauds, however, we also require that the party seeking to avoid the statute must demonstrate acts that constitute part performance of the contract . . . Specifically, [t]he acts of part performance . . . must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties . . . The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute . . . In the context of the statute of frauds, therefore, we sometimes have referred to the application of estoppel as the doctrine of part performance . . .'
'[A]lthough [our courts] on occasion [have] used the terms interchangeably, we never have intended that the doctrine of equitable estoppel and the doctrine of part performance operate as independent exceptions to the statute of frauds . . . Rather, part performance is an essential element of the estoppel exception to the statute of frauds . . .'
'Indeed, our review of cases since the [mid-1800s] reveals no instance in which this court has concluded that a party was estopped from asserting the statute of frauds without evidence of part performance. We recognize that some other jurisdictions apply the doctrine of equitable estoppel even in the absence of part performance or when evidence of part performance may be insufficient . . . In our view, however, this approach is unwise when an independent cause of action or other remedial measures may be available to address such conduct . . .'
'Thus, in sum, the elements required for part performance are: (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract; (2) knowledge or assent to the party's actions in reliance on the contract; and (3) acts that unmistakably point to the contract . . . Under this test, two separate but related criteria are met that warrant precluding a party from asserting the statute of frauds . . . First, part performance satisfies the evidentiary function of the statute of frauds by providing proof of the contract itself . . . Second, the inducement of reliance on the oral agreement implicates the equitable principle underlying estoppel because repudiation of the contract by the other party would amount to the perpetration of a fraud.'" Blackwell, 120 Conn.App. at 695 (citations omitted).
Defendant has alleged that she maintained the properties in question and took care of her grandmother in reliance on her father's promise he would transfer title to the subject property to her. If proven, those facts would be sufficient in equity to estop the present owner, her father's LLC, from denying the promises made by him or from invoking the statute of frauds under C.G.S. § 52-550(a)(4). See, St. Germain, 135 Conn.App. at 334-36. See generally, Breen v. Phelps, 186 Conn. 86, 94, 439 A.2d 1066 (1982).
Defendant alleged that she possessed the subject property and made substantial improvements thereon, both of which support performance of the oral agreement sufficient to take her claims outside the statute of frauds. See e.g., Breen, 186 Conn. at 94 (improvements and possession are " significant circumstances" to prove performance sufficient to take case outside statute of frauds). Accord, Chotkowski v. Downey, 2015 WL 4775968 *4 (Conn.Super. 2015) (Tanzer, J.); Keiser v. Hanrahan, 2004 WL 2095220 *1 (Conn.Super. 2004) (Dewey, J.).
The motion to strike the special defense is denied.
The Counterclaims State a Claim for Unjust Enrichment
In Town of New Hartford v. Conn. Resources Recovery Authority, 291 Conn. 433, 451, 970 A.2d 592 (2010), the Supreme Court reiterated the well-settled principles underlying a claim for unjust enrichment:
We begin with an overview of general principles. " [W]herever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract, restitution of the value of what has been given must be allowed." 26 S. Williston, Contracts (4th Ed. 2003) § 68:4, p. 57. Under such circumstances, " the basis of the plaintiff's recovery is the unjust enrichment of the defendant." Id., § 68:5, at p. 58. " A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." " This doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated . . . The question is: Did [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?"(Citations omitted; internal quotation marks omitted.)
As an equitable remedy based on restitution principles, the claim of unjust enrichment does not depend on the enforceability of the oral contract alleged; the statute of frauds is not a defense. See, Reed v. McCready, 2014 WL 2854001 *5 (Conn.Super. 2014) (Sommers, J.). See generally, Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).
In New Hartford, 291 Conn. at 454, the Supreme Court observed: " [A]n implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . . . It is based on equitable principles to operate whenever justice requires compensation to be made . . . An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party . . . Accordingly, an implied in law contract is another name for a claim for unjust enrichment." (Citations omitted.) The New Hartford Court also noted a constructive trust to convey title to the subject property may be an appropriate remedy for unjust enrichment. 291 Conn. at 466-67.
Plaintiff is an entity of the defendant's father, who benefitted from inducing his daughter to provide services in maintaining the properties he owned and in caring for his aging mother. As his successor in interest controlled by the father, plaintiff took subject to claims of defendant relating to the property if the defendant proves that the transfer was to avoid her claims or was a mere continuation of her father's control and operation of the properties. See, Robbins, 311 Conn. at 715; Kendall, 108 Conn.App. at 332.
The motion to strike the counterclaim for unjust enrichment is denied.
The Counterclaims State a Claim for Quantum Meruit
The statute of frauds also does not apply to the quantum meruit claim. See e.g., Evans v. Evans Cooling Systems, Inc., 2014 WL 1568603 *5 (Conn.Super. 2014) (Dooley, J.) citing Gianetti v. Gerardi, 2002 WL 377523 *3 (Conn.Super. 2002) [31 Conn.L.Rptr. 409, ] (Gallagher, J.) (statute of frauds does not apply to quantum meruit claim, which is based on equitable principle of restitution not enforcement of an oral contract).
" Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . . The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to her that she would be compensated in the future, impliedly promised to pay her for the services she rendered." Total Aircraft, LLC v. Nascimento, 93 Conn.App. 576, 582 n.5, 889 A.2d 950 (2006), quoting Burns v. Koellmer, 11 Conn.App. 375, 383-84, 527 A.2d 1210 (1987).
Defendant's counterclaim satisfies the elements for pleading a claim for quantum meruit. The motion to strike the Second Counterclaim is denied.
The Counterclaims Do Not Allege a Basis for Award of Attorneys Fees
" Generally, attorneys fees may not be recovered, either as costs or damages, absent contractual or statutory authorization . . . Attorneys fees may be awarded, however, as a component of punitive damages . . . To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Stohlts v. Gilkinson, 87 Conn.App. 634, 646, 867 A.2d 860 (2005) (citation omitted).
Defendant's counterclaims allege breach of an oral agreement to convey property and equitable claims relating thereto; they do not describe the sort of willful, wanton or reckless conduct that could support an award of attorneys fees. See e.g., Reed, 2014 WL 2854001 *7
The motion to strike the request for award of attorneys fees is granted.