No. CV 09 4008201S
August 7, 2009
MEMORANDUM OF DECISION
On March 4, 2009, David Welles and Lori Welles (the plaintiffs), commenced this action by serving an original writ, summons and complaint upon Chester Lichaj and Nicole Lichaj (the defendants). The one-count, twenty-four paragraph complaint, which was filed on March 13, 2009, alleges that the defendants caused significant damage to a right of way across the plaintiffs' property after using a tractor to plow snow from it on multiple occasions. Specifically, the complaint alleges that: (1) the defendants and the plaintiffs became adjoining land owners after the former purchased their property in West Cornwall, Connecticut, in 2003; (2) the defendants have a right of way across the plaintiffs' property for the purpose of entering and exiting their property from Ballyhack Road; (3) the parties were to share the costs of maintaining the right of way; (4) the plaintiffs employed a plow service to clear the right of way after a snowfall of three inches or more, at the service's discretion or at the defendant's instruction; (5) the plow service is prompt, and is able to clear the right of way in a matter of minutes; (6) the defendants, nonetheless, used their tractor to plow the right of way, thereby causing extensive damage to the right of way and surrounding property owned by the plaintiffs; (7) the plaintiffs politely asked the defendants several times to cease and desist from plowing the right of way with their tractor, but to no avail; and (8) the defendants neither contributed to the cost of the plow service, nor paid the plaintiffs for any of the aforementioned damage to their property.
On April 27, 2009, the defendants filed a two-paragraph answer in which they deny nine paragraphs of the complaint and "leave the plaintiffs to their proof with respect to" fourteen others. The answer also separately asserts four special defenses. On May 11, 2009, the plaintiffs filed the present motion to strike the defendants' answer and special defenses, arguing that both are legally insufficient and improperly pleaded. The defendants filed their memorandum in opposition to the motion on May 26, 2009. Argument was heard before this court at short calendar on the same date.
The defendants' answer fails to address paragraph four of the plaintiffs' complaint.
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, that party may do so by filing a motion to strike the contested pleading or part thereof." (Emphasis added.) "In . . . ruling on [a] motion to strike, the trial court [is obligated] 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." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
In the present case, the plaintiffs argue that the defendants' answer and special defenses are legally insufficient and improperly pleaded. With respect to the answer, they argue that the defendants have improperly used "insufficient knowledge" as a response to several allegations in the complaint, specifically: (1) paragraphs one and two, which merely allege the parties' respective addresses; and (2) paragraph three, which alleges that the defendants have a right of way across the plaintiffs' property, when they themselves allege the same in their first special defense. Additionally, they argue that the special defenses are improper and legally insufficient "because they do not allege facts that are consistent with the allegations of the complaint, but show notwithstanding, that recovery should be limited." The court addresses each claim in order.
Additionally, the plaintiffs argue that it is improper for the defendants to answer a twenty-four count complaint in two paragraphs. This argument, however, pertains to the structural propriety of the defendants' answer, which would be more properly addressed through a request to revise. See Practice Book § 10-35. Accordingly, the court does not consider this argument, and will proceed to address the legal sufficiency of the defendants' answer as it relates to the allegations contained in paragraphs one, two and three of the plaintiffs' complaint.
A. Motion to Strike the Defendants' Answer
The Supreme Court has held that "[t]he pleading of no knowledge or information to . . . allegations is in effect a denial." Postemski v. Watrous, 151 Conn. 183, 185, 195 A.2d 425 (1963). "[T]he plaintiff has the burden of proof to establish any allegations that are denied by the defendant." Connecticut National Bank v. N.E. Owen II, Inc., 22 Conn.App. 468, 472, 578 A.2d 655 (1990). The fact that the defendants have answered that they have insufficient knowledge as to certain allegations places no more burden upon the plaintiffs or the court than if they had denied the allegations of those paragraphs. Moreover, "[a] defendant has no duty to accept the statement of facts alleged by a plaintiff or to admit the allegations merely because the plaintiff has declared them to be true." (Internal quotation marks omitted.) Merrill Lynch Credit Corp. v. Doria, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV000177409S (July 3, 2001, Hickey, J.).
The Appellate Court has held, however, that it is improper to answer "insufficient knowledge" to an allegation in a complaint if the answer is within the personal knowledge of the defendant. Tolland Bank v. Larson, 28 Conn.App. 332, 336, 610 A.2d 720 (1992). "[U]nless the defendant is incapacitated or otherwise unavailable to his attorney, such information is within his knowledge so as to require an admission or denial." Id. In Tolland Bank v. Larson, supra, 336, the Appellate Court noted that "the defendant's answer claimed insufficient knowledge on which to form a belief as to each and every paragraph of the complaint, including allegations that the defendant had signed the promissory note and mortgage deed." The Appellate Court went on to note that the defendant's sole purpose in filing such an answer was to delay the proceedings in the case. Id., 337.
In the present case, it is apparent from the facts alleged in the defendants' first special defense that they have personal knowledge as to the parties' respective addresses and whether or not they have a right of way over the plaintiffs' property. Furthermore, the defendants do not claim that they are incapacitated or unavailable to their attorney. Therefore, an admission or denial as to these allegations is warranted.
Accordingly, the motion to strike is granted as to the defendants' answers to paragraphs one, two and three of the plaintiffs' complaint. The motion is denied as to the remaining pleadings contained within the answer, as these are in effect denials, and will be so construed. Additionally, the defendants are instructed to respond to paragraph four of the plaintiffs' complaint in their revised answer.
B. Motion to Strike the Defendants' Special Defenses
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Emphasis added.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." Practice Book § 10-50.
In the present case, the plaintiffs argue that the special defenses as pleaded by the defendants are legally insufficient, and as such, must be stricken. Specifically, they argue that the allegations contained therein are contrary to those asserted in the complaint. The defendants counter, and with no actual legal analysis, argue that each special defense alleges facts "which are consistent with the allegations of the complaint but show, notwithstanding, that the plaintiffs have no cause of action." After careful examination of the applicable law, special defenses and both of the legal arguments presented, the court agrees with the plaintiffs.
The defendants' four special defenses allege, respectively, that: (1) the defendants' actions were in furtherance of exercising their legal right to use the right of way; (2) the plaintiffs failed to adhere to their admitted obligation to keep the right of way free from obstruction, "leaving the roadway unplowed on various occasions and thus . . . interfered with the [defendants'] egress rights to and from their property and . . . the use and enjoyment of their property"; (3) "the [plaintiffs], by their false accusations . . . and interference with the [defendants'] rights to the quiet use and enjoyment of their property, have caused a breach of defendants' peace, and caused an interference with the [defendants'] full and complete enjoyment of their property and possessory rights"; and (4) "the plaintiffs have engaged in oppressive, aggressive, and abusive acts of reprisal and have interfered with the [defendants'] rights of egress to their house over a mutual right of way at various times during which the defendant, Chester Lichaj attempted to plow the driveway so that" the defendants could safely exit their property."
In summary, the defendants allege, through their special defenses, that: (1) the plaintiffs did not keep the right of way clear, thereby violating the defendants' right to enter and exit their property; and (2) the defendants thus acted legally in plowing the property with their tractor. These facts, however, are not consistent with the allegations contained in the complaint: namely, that the plaintiffs kept the right of way clear by employing a plow service, which was "prompt," to remove snow in a timely fashion during the winter months, and that they politely and repeatedly requested that the defendants cease and desist from damaging the right of way with their tractor. Indeed, if the facts contained in the complaint were true, the defendants would not need to plow the right of way with their tractor in order to use it. Accordingly, the motion to strike the defendants' special defenses is granted.
For the foregoing reasons, the plaintiffs' motion to strike is granted in part with respect to the defendants' answer, and in its entirety with respect to their special defenses. The defendants are also instructed to respond to paragraph four of the plaintiffs' complaint in their revised answer.