Opinion
No. FST CV 07 4010609 S
August 17, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #176
FACTS
On December 4, 2006, the plaintiff, Norwalk Preservation Trust, Inc., commenced this action against the defendants, Norwalk Inn Conference Center, Inc. and 93 East Avenue, LLC. On April 30, 2009, the defendant, 93 East Avenue, LLC, filed an answer, special defenses and counterclaim. On May 21, 2009, the plaintiff filed a motion to strike the defendant's first, second and third special defenses. The plaintiff's motion was supported by a memorandum of law. On June 4, 2009, the defendant filed a memorandum in opposition to the plaintiff's motion to strike. The parties were heard at short calendar on June 9, 2009.
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 [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged . . ." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
"A motion to strike is the proper vehicle by which to contest the legal sufficiency of any special defense contained in an answer to the complaint." Doran v. Waterbury Parking Authority, 35 Conn.Sup. 280, 281, 408 A.2d 277 (1979). "In ruling on the motion to strike, the trial court [has an] obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency . . . 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." (Citations omitted; internal quotation marks omitted.) GMAC Mortgage Corp. v. Nieves, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0164925 (January 29, 1999, Tobin, J.).
"A defendant's failure to plead a special defense precludes the admission of evidence on the subject. It would be fundamentally unfair to allow any defendant to await the time of trial to introduce an unpleaded defense. Such conduct would result in `trial by ambuscade' to the detriment of the opposing party . . ." (Citations omitted; internal quotation marks omitted.) Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn.App. 432, 436-37, 651 A.2d 281 (1994).
First Special Defense
The defendant's first special defense states that there is no feasible and prudent alternative to the demolition of the structure at 93 East Avenue, and the demolition is consistent with the reasonable requirements of the public health, safety and welfare. The plaintiff moves to strike the first special defense on the grounds that it fails to refer to any specific statute as required by Practice Book § 10-3. In response, the defendant contends that the defense arises out of General Statutes § 22a-17 and the use of language contained in the statute is sufficient to apprise the plaintiff of the defendant's special defense. Section 22a-17 provides: "The defendant may also prove, by way of an affirmative defense, that, considering all the relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant's conduct and that such conduct is inconsistent with the reasonable requirement of the public health, safety, and welfare."
Practice Book § 10-3(a) provides in relevant part: "When any claim made in a . . . special defense . . . is grounded on a statute, the statute shall be specifically identified by its number." "The purpose of the rule is to promote the full and open disclosure of legal claims by identifying and narrowing the issues before the court . . . While the court is often times left to guess at the basis of a cause of action, as here, such a defect is not fatal as the use of `shall' has been held to be directory rather than mandatory . . ." (Citations omitted.) Fair v. Woodstock, Superior Court, judicial district of Windham, Docket No. CV 07 5001986 (December 16, 2008, Riley, J.). Therefore, although the defendant fails to cite to § 22a-17 in its special defense, such a failure is only fatal to the defendant's special defense if the plaintiff is not otherwise sufficiently apprised of the applicable statute. See Spears v. Garcia, 66 Conn.App. 669, 675-76, 785 A.2d 1181 (2001), aff'd on other grounds, 263 Conn. 22, 818 A.2d 37 (2003); Benchmark Investments, LLC v. Elms at Mystic, LLC, Superior Court, judicial district of New London, Docket No. 555579 (January 11, 2002, Hurley, J.T.R.) (stating that our courts "have excused noncompliance with § 10-3(a) where the record discloses that neither the opposing party nor the trial court [was] confused or misled as to the statutory basis of the party's claim").
In Spears v. Garcia, supra, 66 Conn.App. 669, the court found that, although the plaintiffs had failed to cite to General Statutes § 52-557n in their complaint as statutory authority abrogating the defendants' governmental immunity, the defendants had subsequently become sufficiently apprised of the plaintiffs' reliance on the statute by way of subsequent pleadings and argument. The court stated that "the plaintiffs . . . relied on the statute in their memorandum of law in opposition to the motion . . . and in oral argument before the trial court. That sufficiently apprised the defendants that the plaintiffs were relying on § 52-557n to abrogate governmental immunity. Under the circumstances of this case, the defendants cannot complain of unfair surprise." Id., 676.
Thus, the question before this court is whether the defendant has sufficiently apprised the plaintiff of its intent to rely on the affirmative defense allowed by § 22a-17. In the present case, the defendant's first special defense recites the language used in § 22a-17 and states: "Considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the demolition of the structure at 93 East Avenue, and the demolition is consistent with the reasonable requirements of the public health, safety and welfare." Additionally, similar to the plaintiffs in Spears, the defendant in the present case cited the applicable statute in its memorandum of law in opposition to the motion to strike and in oral argument before the court. Further, during oral argument, the defendant affirmed that the first special defense arose out of § 22a-17 and the plaintiff acknowledged that such a special defense is valid in the present case. Thus, the court finds that the plaintiff is sufficiently apprised of the statute relied on by the defendant in its first special defense.
Accordingly, the plaintiff's motion to strike the defendant's first special defense is denied.
Second Special Defense
The defendant's second special defense alleges that the "application of CEPA in the present matter is confiscatory, arbitrary and inequitable inasmuch as the costs of restoring the building at 93 East Avenue is extraordinary and prohibitive, and requires the LLC to spend money uselessly, not for its benefit, but for the plaintiff's benefit." The plaintiff moves to strike the second special defense on the grounds that the defendant fails to plead facts supporting the special defense, fails to refer to any specific statute, and improperly states legal conclusions. In its memorandum in support, the plaintiff merely restates the grounds found on the face of the motion, without providing any case law or meaningful analysis. The plaintiff simply claims that the defendant's argument is one that will be raised at trial, and is, therefore, not a proper special defense.
Connecticut Environmental Protection Act, General Statutes § 22a-14 et seq.
"[This court is] not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract reasoning, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted . . . but thereafter received only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed abandoned." (Emphasis added; internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); see also Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995) (holding that "[w]here an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived"); State v. Bashura, 37 Conn.Sup. 745, 748-49, 436 A.2d 785 (App.Sess. 1981) (treating two issues relied on in the motion to strike that were not briefed, as abandoned).
It is not the province of this court to formulate arguments for the parties. As the plaintiff has failed to provide any case law or analysis in support of its motion to strike the defendant's second special defense, the court denies the plaintiff's motion to strike.
Third Special Defense
Lastly, the defendant's third special defense alleges laches. Specifically, the defendant alleges that the plaintiff knew of the defendant's intent to demolish the building in 2001, but took no action until 2006. Further, as a result of the plaintiff's inaction, the defendant expended resources obtaining the necessary zoning approvals and preparing detailed plans for the proposed expansion.
"Laches consists of an inexcusable delay which prejudices the defendant Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . Absent prejudice to the defendant, the mere lapse of time does not constitute laches." (Citations omitted; internal quotation marks omitted.) Giordano v. Giordano, 39 Conn.App. 183, 213, 664 A.2d 1136 (1995). "A laches defense is not . . . a substantive right that can be asserted in both legal and equitable proceedings. Laches is purely an equitable doctrine, is largely governed by the circumstances and is not to be imputed to one who has brought an action at law within the statutory period . . . It is an equitable defense allowed at the discretion of the trial court in cases brought in equity." (Citations omitted; internal quotation marks omitted.) Id., 214. "The defense of laches, if proven, bars a plaintiff from seeking equitable relief." Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987).
The plaintiff's claims are based upon CEPA, General Statutes § 22a-14, et seq., which imposes statutory obligations upon certain persons with respect to certain protected resources within the state of Connecticut. The plaintiff maintains that laches is not an available defense against its claims under CEPA, because the plaintiff brought this claim, at law, within the applicable statute of limitations. As support, the plaintiff cites to an excerpt from Giordano v. Giordano, supra, 39 Conn.App. 214, which states: "Laches is purely an equitable doctrine, is largely governed by the circumstances, and is not to be imputed to one who has brought an action at law within the statutory period." (Citation omitted; emphasis added; internal quotation marks omitted.)
"Courts have routinely referred to laches as an equitable defense, that is, a defense to equitable remedies but not a defense available to bar a claim of legal relief . . . In Florian v. Lenge, [ 91 Conn.App. 268, 282, 880 A.2d 985 (2005)], for instance, this court held that [l]aches is purely an equitable doctrine . . . not to be imputed to one who has brought an action at law . . . Although courts have not settled fully on any firm approach for determining whether a claim sounds in equity rather than at law, [i]n general, a case will be treated as equitable if an equitable, coercive remedy is invoked such as injunction, otherwise not . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) Caminis v. Troy, 112 Conn.App. 546, 557, 963 A.2d 701, cert. granted on other grounds, 291 Conn. 909 (2009).
In the present case, the plaintiff brought this action pursuant to § 22a-14 et seq. The remedy provided by CEPA is temporary or permanent equitable relief. General Statutes § 22a-18(a). Thus, although the present case is brought pursuant to a statutory right provided by CEPA, it is viewed as an action in equity, not at law, as the only relief that can be granted is equitable.
It follows that, as this is an action in equity, laches is a valid special defense. Accordingly, the motion to strike the defendant's third special defense is denied.
CONCLUSION
In conclusion, the plaintiff's motion to strike the defendant's special defenses is denied in its entirety.