Opinion
No. 07-5009365
February 14, 2011
MEMORANDUM OF DECISION ON MOTION TO STRIKE PLAINTIFF'S DEFENSES TO DEFENDANT'S COUNTERCLAIM (#176)
By way of background, this action is a sequel to Lucille Hrostek v. Daniel Massey, Superior Court, judicial district of Fairfield, No. CV 03 0407894, in which Hrostek (there the plaintiff, here the defendant) claimed that when she and Massey began a nearly ten-year romantic, cohabiting relationship, they agreed that they would share all of the assets they acquired during the course of their relationship on an equal basis. Hrostek claimed that Massey breached that agreement at the end of their relationship, by which time Massey's net worth was over seven million dollars. Hrostek also asserted a claim for unjust enrichment as well as negligent and intentional misrepresentation. During the course of that litigation, Massey filed a counterclaim that he withdrew prior to trial. The case was tried to the court, Radcliffe, J., which filed a characteristically comprehensive opinion on May 25, 2007, finding for Massey on all counts.
The present lawsuit is brought by Massey against Hrostek in three counts and alleges that Hrostek's prior lawsuit against him was "specious, disingenuous and without any basis in fact," and "prosecuted without probable cause." As a result, the plaintiff contends that he sustained damages. Massey claims that Hrostek's prior lawsuit constituted a statutory; General Statutes § 52-568; and common-law vexatious suit.
The original complaint contains a scrivener's error misidentifying the relevant statute in the pleading heading as General Statutes § 52-268. The correct statutory citation is General Statutes § 52-568, entitled "Damages for groundless or vexatious suit or defense," and which provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
Hrostek has asserted a bevy of special defenses and also a counterclaim alleging common-law and statutory vexatious suit. Her counterclaim is directed against the counterclaim Massey asserted and subsequently withdrew in the prior litigation. Hrostek alleges that in his counterclaim, Massey alleged that during their cohabitation, Hrostek misused credit cards that Massey had provided to her and used them to convert money to her own use in order to defraud Massey. Hrostek further contends that Massey alleged in his counterclaim that she issued checks to various entities from Massey's checkbook without his permission, to defraud him and to misappropriate funds received to her own use. Hrosek alleges that these allegations were untrue and that she had Massey's permission to use the credit cards and checkbook. Specifically, she alleges in paragraph five of the counterclaim currently before the court that the parties "had made an agreement that throughout the course of their cohabitation and as partners in a joint venture, the plaintiff would pay for the charges on said credit cards and which included payment of the credit card in the defendant's name." Hrostek alleges that Massey brought his counterclaim without probable cause and with malice. Moreover, Hrostek alleges that Massey withdrew his counterclaim without consideration and without a settlement to the plaintiff.
The defendant filed a second counterclaim that she claimed had been previously withdrawn, but which, in any event, she withdrew at oral argument on the instant motion.
Massey, in turn, has filed a special defense in response to the counterclaim that alleges:
1. The parties never had an agreement regarding the Plaintiff's assets and credit cards as alleged in Counterclaim One. It was determined in Lucille Hrostek v. Dan Massey, DOCKET NUMBER CV 03 04077894S that no such agreement existed. Any claim premised on the existence of said agreement is barred by res judicata.
2. The plaintiff brought his counterclaim in the Lawsuit with a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.
3. The Defendant is barred from her recovery by virtue of her own unclean hands.
The plaintiff also filed a second special defense which, the court understands, was addressed to the defendant's second counterclaim which she has now withdrawn.
The defendant, who appears pro se, moves to strike this special defense for the following reasons: (1) it mischaracterizes and falsely alleges an agreement between the parties and is "not consistent with the Defendant's statement of facts of her Counterclaim One . . ., "(2) the agreement between the parties concerning credit cards and checks is distinct from the agreement at issue and in Hrostek v. Massey and, therefore, is not barred by res judicata, and (3) the defense fails to plead legally sufficient facts and fails to show that the defendant has no cause of action upon which relief can be granted.
The plaintiff responds that "the Defendant alleges that the parties had a joint venture agreement during their relationship and said agreement allowed the Defendant the use of the Plaintiff's credit cards. The Plaintiff asserted the existence of this joint venture agreement in her previous lawsuit against the Plaintiff, Lucille Hrostek v. Dan Massey . . . After trial on the merits, the Court, (Radcliffe, J.) determined that no such joint venture agreement existed. Therefore, to the extent the Plaintiff's allegations rely on the existence of said agreement, the Plaintiff's First Special Defense to this counterclaim alleges that the claim is barred by res judicata. This is a legally sufficient claim that has been properly pled. The plaintiff may dispute the facts underlying the Special Defense but such a dispute is immaterial for purposes for a motion to strike as the court must accept well pled facts as true." (Emphasis added.)
Pursuant to Practice Book § 10-39(a)(5), when a party seeks to contest the "legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, the party may do so by filing a motion to strike the contested pleading or part thereof."
"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); Practice Book § 10-50. In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992); Melanson v. West Hartford, 61 Conn.App. 683, 687, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001).
"A motion to strike challenges the legal sufficiency of a pleading . . . We take the facts to be those alleged in the [pleading sought to be] . . . stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552-53, 944 A.2d 329 (2008). Thus, "[i]n determining whether a motion to strike should be granted, the sole question is whether, if the facts alleged are taken to be true, the allegations provide a cause of action or a defense. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985); Greene v. Metals Selling Corporation, 3 Conn.App. 40, 42, 484 A.2d 478 (1984). The legal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided." County Federal Savings Loan Ass'n. v. Eastern Associates, 3 Conn.App. 582, 585-86, 491 A.2d 401 (1985).
"To establish [a claim of vexatious litigation under the common law], it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor . . . A statutory action for vexatious litigation under General Statutes § 52-568 . . . differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages." (Citations omitted; internal quotation marks omitted.) Falls Church Group v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007).
The defendant's first argument is that the plaintiff's special defense "mischaracterizes and falsely alleges an agreement between the parties and is not consistent with the Defendant's statement of facts of her Counterclaim One." As observed supra, on a motion to strike the court is constrained to take the facts alleged in the defense to be true. With respect to the facts alleged in the defense being "not consistent with the Defendant's statement of facts of her Counterclaim One," it is true that Practice Book § 10-50 provides that a principal purpose of a special defense is to assert "[f]acts which are consistent with [the complaint or counterclaim] but show, notwithstanding, that the plaintiff has no cause of action . . ." The plaintiff's special defense seemingly violates this rule by alleging: "The parties never had an agreement regarding the Plaintiff's assets and credit cards as alleged in Counterclaim One." However, the gist of paragraph one of the special defense is that, as a matter of law, the parties had no such agreement because the court in Hrostek v. Massey found that there was none. In other words, the gist of the defense is res judicata.
"`[C]laim preclusion [or res judicata] prevents a litigant from reasserting a claim that has already been decided on the merits . . . Under claim preclusion analysis, a claim — that is, a cause of action — includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made.' (Citations omitted; internal quotation marks omitted.) Scalzo v. Danbury, 224 Conn. 124, 127-28, 617 A.2d 440 (1992); see DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991); Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 43, 526 A.2d 1329 (1987). `The doctrine of res judicata [applies] . . . as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction; ` Wade's Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980); and promotes judicial economy by preventing relitigation of issues or claims previously resolved." Commissioner of Environmental Protection v. Connecticut Bldg. Wrecking Co., 227 Conn. 175, 188, 629 A.2d 1116 (1993). Res judicata is a proper defense and, in fact, must be specially pleaded. Practice Book § 10-50.
Essentially, Hrostek seeks to have the court determine that the agreement alleged in her counterclaim is not within the ambit of the agreement she alleged and which was found not to exist by the court in the earlier action. Compare Brady v. Anderson, 110 Conn. 432, 148 A. 365 (1930) (judgment in action for breach of promise to marry not res judicata as to subsequent action for breach of contract to reconvey house after marriage), with Lehto v. Sproul, 9 Conn.App. 441, 445, 519 A.2d 1214 (1987) (action for extras barred by judgment in prior contract action). That would put the court knee deep into adjudicating the merits of the defense of res judicata on its facts. This is not the proper office of the motion to strike. The motion to strike is designed to have limited utility. Cf. Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-09, 279 A.2d 540 (1971) (noting that a motion for judgment, which operated like a demurrer, the predecessor to the motion to strike, "is of limited utility . . ."). This follows from the canon that "[i]n ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). "Of course, there is no reason why, in an appropriate case, once the defense of res judicata has been raised the issue may not be resolved by way of summary judgment." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985) (holding that motion to dismiss is not the proper procedural vehicle for raising and adjudicating the defense of res judicata.).
The point here is not that it would be impossible to adjudicate the issue of res judicata on a motion to strike, although that may be the case. Cf. Salem Park, Inc. v. Salem, 149 Conn. 141, 145, 176 A.2d 571 (1961) (plea in abatement not to be used to raise res judicata and, moreover, "the memoranda of decision filed by the court are not clear as to the real basis on which the case was decided."). Rather, the point is that the rules of practice, which the court is bound to apply, do not authorize the use of a motion to strike for this purpose.
The cases of Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 520 A.2d 1008 (1987), overruled by Santopietro v. New Haven, 239 Conn. 207, 682 A.2d 106 (1996), and Brockett v. Jensen, 154 Conn. 328, 225 A.2d 190 (1966), in which the court determined that res judicata or collateral estoppel was not a legally sufficient defense, are distinguishable because in those cases the court simply determined that the party sought to be bound by a judicial determination in a prior action had not been a party or privy to that action. Atlantic Richfield Co. v. Canaan Oil Co., supra, 202 Conn. 251-52; Brockett v. Jensen, supra, 154 Conn. 340; or that they were not adverse parties and the party sought to be bound did not have the opportunity of litigating the issue against the party who would subsequently assert it against her. (These cases arose prior to the abrogation of the rule requiring mutuality or parties in order to invoke the doctrine of res judicata or collateral estoppel. See Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 302, 596 A.2d 414 (1991). In neither Atlantic Richfield nor Brockett did the court undertake a determination of whether an agreement upon which one action was based included an agreement upon which a subsequent action was based.)
Finally, the court disagrees with the defendant that the plaintiff has failed to plead legally sufficient facts and fails to show that the defendant has no cause of action upon which relief can be granted. The burden rests on the plaintiff to allege a recognizable defense to the defendant's counterclaim. Cf. Lombardi v. J.A. Bergren Dairy Farms, Inc., 153 Conn. 19, 22, 213 A.2d 449 (1965). "The legal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided." County Federal Savings Loan Ass'n. v. Eastern Associates, supra, 3 Conn.App. 586. Practice Book § 10-1 provides in relevant part: "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, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation." The court finds that the plaintiff's special defense easily satisfies this procedural minima. Beyond this, "[i]f the defendant wanted a more particularized statement of the facts, [she] should have filed a request to revise before [she] filed the present motion to strike." Stabell v. Prudential Insurance Company, Superior Court, judicial district of Fairfield, Docket No. CV 95 0319568 (August 4, 1995, S. Freedman, J.).
The court has considered the other arguments of the defendant and finds them unpersuasive.
Paragraph two of the special defense which indeed is suspect in light of Practice Book § 10-50 has not been challenged. Nor has paragraph three.
The defendant's motion to strike the plaintiff's special defense to her counterclaim is denied.