Opinion
No. CV03-0349100 S
January 28, 2004
MEMORANDUM OF DECISION
Before the court is whether the defendant's motion to strike should be granted on the grounds of confusion, relevancy, or improperly joining a second cause of action. The court holds that the defendant's motion to strike should be denied because the defendant asserts grounds proper for a request to revise, but not a motion to strike. The plaintiff does not improperly join a second cause of action, but rather, pleads factual allegations in order to pursue an appeal under General Statutes § 12-117a.
On May 12, 2003, the plaintiff, Scholastic Inc., filed a three-count complaint in which it appeals the decision of the defendant, the city of Danbury's board of assessment appeals. The defendants are the city of Danbury (city), Catherine Skurat, tax collector for the city of Danbury, and Colleen Velez, assessor for the city of Danbury. In the first count, which the plaintiff brings pursuant to General Statutes § 12-117a, the plaintiff asserts that the reassessment that the board placed on its property does not represent seventy percent of the true and actual value of the property. The second count asserts that the defendants are barred by the doctrines of res judicata and/or collateral estoppel from revaluing the plaintiff's property in excess of an October 1, 1999 valuation of the property. The third count, which the plaintiff brings pursuant to General Statutes § 12-119, states that the reassessment was manifestly excessive and arrived at by disregarding the statutory provisions for determining the valuation of the property. In each count the plaintiff prays for the relief of a reassessment, a refund of interest and penalties, interest, and other legal and equitable relief it may be entitled to.
On June 25, 2003, the city filed a motion to strike and a memorandum of law in support of that motion. On July 8, 2003, the city filed a revised motion to strike, in which it contends that the sixth paragraph of the first count of the complaint is confusing and improperly joins unrelated tax appeals, and that paragraphs ten, eleven, and twelve of the second and third count are irrelevant. On August 11, 2003, the plaintiff filed a memorandum of law in opposition to the city's 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, 215 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
In its motion to strike, the city alleges that paragraph six of the plaintiff's first count is confusing. The city does not assert that the plaintiff has failed to plead a legally sufficient cause of action, but rather, states that it is uncertain as to the correctness of the fair market value and assessment cited by the plaintiff and is confused by paragraph six. This is not a proper ground for a motion to strike. See Practice Book § 10-39(a). Instead the city should have requested the plaintiff to revise their complaint per Practice Book § 10-35.
Practice Book § 10-39(a) provides:
Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) 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, that party may do so by filing a motion to strike the contested pleading or part thereof.
"The request to revise is a [request] for an order directing the opposing party to revise his pleading in the manner specified . . . Although the request to revise may not ordinarily be used to substantively challenge a pleading, it may be used to delete otherwise improper allegations from a complaint . . . The motion to strike, on the other hand, challenges the legal sufficiency of the pleading by testing whether the complaint states a cause of action on which relief can be granted." (Internal quotation marks omitted.) Melfi v. Danbury, 70 Conn. App. 679, 683-84, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).
Accordingly, "[a] motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations. The proper vehicle would be a request to revise." (Internal quotation marks omitted.) LaBaire v. Blumenthal, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0069892 (July 9, 2003, Potter, J.). "[T]he proper way to cure any confusion regarding the nature of what is being pleaded in the complaint is to file a [request] to revise, not a motion to strike." (Internal quotation marks omitted.) Handex Environmental, Inc. v. Hardman, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166462 (November 18, 2002, Wolven, J.).
Practice Book § 10-35 provides in relevant part: "Whenever any party desires to obtain . . . (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading, or . . . (4) any other appropriate correction in an adverse party's pleading, the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading."
In addition, the city argues that in paragraph six, the plaintiff improperly joins two unrelated tax appeals. In paragraph six, the plaintiff states the amount of the assessed value of the property in 1999 and the value of the property as previously determined by the court and compares these values to the current assessment. The plaintiff is not attempting to state a separate cause of action in this paragraph, but rather, relies, on the facts included in this paragraph to establish a cause of action under General Statutes § 12-117a. In order to pursue a viable appeal under § 12-117a, the plaintiff must establish that its property has been overassessed. See Konover v. West Hartford, 242 Conn. 727, 734, 699 A.2d 158 (1997) (stating that plaintiff must first establish that it has been aggrieved by the board in that its property has been overassessed). Referring to a prior court-determined valuation of the property is a proper factual allegation.
Connecticut General Statutes § 12-117a provides in relevant part: "The court shall have the power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . . If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and any costs awarded by the court, or, at the applicant's option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and any costs awarded by the court."
The city moves to strike paragraphs ten, eleven, and twelve of counts two and three of the plaintiff's complaint as irrelevant. Again, the city does not assert that the plaintiff has failed to plead a legally sufficient cause of action. Relevancy is a proper ground for a request to revise, but not a motion to strike. See LaBaire v. Blumenthal, supra, Superior Court, Docket No. CV 03 0069892. The city's motion to strike is denied.
RICHARDS, JUDGE.