No. FST CV 10 6007450 S
September 27, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (104.00)
On November 17, 2010, the plaintiff, Yellow Book Sales and Distribution Company, filed a two-count complaint against the defendant, John Kennelly. The first count alleges the following. On three different dates — April 20, 2007, April 23, 2008 and May 12, 2009 — the plaintiff and the defendant entered into an agreement whereby the plaintiff agreed to sell to the defendant certain advertising services. In the first two agreements, these advertising services were for the placement of an advertisement for the defendant's business, TLS Limousine Service, in the Yellow Books published as the Fairfield County, Greenwich and Stamford editions. In the last agreement, the advertising service was for the placement of an advertisement for the defendant's business on the Yellow Book Mid-Atlantic Web Reach internet directory. Pursuant to the agreements, the plaintiff was to invoice the defendant for the advertising services the plaintiff provided, and monthly payments were to be paid by the defendant to the plaintiff. The defendant failed to make monthly payments pursuant to the agreements, and $7,335.75 remains due and owing from the defendant to the plaintiff. Despite written demand from the plaintiff for payment of the unpaid balance, the defendant has not paid the balance, and consequently, the plaintiff has suffered damages. The second count further alleges that the defendant has been unjustly enriched by his nonpayment of the remaining balance due pursuant to the agreements.
On November 12, 2010, the pro se defendant filed an answer and counterclaim. In his answer, the defendant: (1) denies that he owes the plaintiff $7335.75; (2) denies that he failed, neglected or refused to resolve this dispute; and (3) alleges that he offered the plaintiff $2,500 in February 2010 and that the plaintiff refused this offer and has failed to contact the defendant since this offer was made. The defendant also pleaded a counterclaim in which he alleged that a representative of the plaintiff offered the defendant a program whereby the defendant would pay for only six months of the total agreement for the 2009 advertising season and that the plaintiff has failed to honor this agreement.
On June 30, 2011, the plaintiff filed a motion to strike the defendant's counterclaim on the grounds that the counterclaim fails to set forth any viable claim for which relief could be granted as a matter of law and that the allegations contained in the counterclaim are expressly contradicted by the plain and unambiguous terms of three written contractual agreements between the parties. The defendant filed an opposition to the motion on August 22, 2011, to which the plaintiff filed a memorandum in reply on September 2, 2011. This matter was taken on the papers by the court on the July 18, 2011 short calendar.
"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 admits all facts well pleaded; it 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). "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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "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.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
In support of its motion to strike, the plaintiff makes the following arguments. First, the defendant's counterclaim fails to state a viable claim upon which relief can be granted. The counterclaim alleges no specific cause of action and no damages caused by any acts or omission on the part of the plaintiff. Moreover, the terms of the contracts explicitly bar the defendant's counterclaim, as any alleged oral representations are merged into the written contracts. Specifically, nothing in any of the written contracts indicate that the defendant would have to pay for only six months of an advertising program in order to receive an entire year worth of advertising in exchange. Also, the integration clauses of the contracts prevent the introduction of parol evidence to vary, alter or add to the terms of the contracts. Accordingly, the defendant cannot rely on a purported oral representation to vary or to contradict the terms of the parties' fully-integrated contract representing the culmination of their agreement. In each contract, the defendant expressly agreed to be billed monthly over the course of twelve months. Finally, the contracts provide that a sales representative does not have the authority to alter, expand or commit the plaintiff in contradiction of the express terms of the written agreements, and that the parties' agreement can be changed only by a writing signed by both parties.
In opposition to the motion, the defendant only offers his affidavit. In reply, the plaintiff argues that the defendant's opposition to the motion: (1) completely fails to address any of the controlling legal authority contained in the plaintiff's memorandum of law; (2) improperly submits an irrelevant affidavit outside the pleadings; and (3) is devoid of any legal basis to support its position that the counterclaim should survive the plaintiff's motion.
The court cannot take into account the defendant's affidavit with regard to his opposition to the plaintiff's motion. See Avitable v. 1 Burr Road Operating Co. II, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5012806, n. 1 (June 4, 2010, Adams, J.) (applying the rule precluding external documents in motions to strike to oppositions to motions to strike). Because the defendant's opposition relies solely on his affidavit, the plaintiff's motion should be treated as if it is unopposed.
In determining a motion to strike a counterclaim, the court can look to pleadings other than the counterclaim itself. "[T]he motion to strike which is of course identical in purpose and scope to our late demurrer . . . searches the record of those pleadings which are implicated by the motion." (Citation omitted.) Oxer v. Milani, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0130487 (October 12, 1994, Mottolese, J.) Therefore, in deciding a motion to strike a counterclaim, the court can look to the complaint and answer as well as to the counterclaim itself. See id.
While the court cannot consider facts outside the pleadings in deciding a motion to strike, documents that have been incorporated by reference and attached to a pleading can be considered. Practice Book § 10-29(a) provides in relevant part: "Any plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length . . ." See also Alzheimer's Resource Center of Connecticut, Inc. v. Carlstrom, Superior Court, judicial district of New Britain, Docket No. CV 04 4002045 (September 30, 2005, Shapiro, J.) (holding that the defendant's "motion to strike is not a speaking motion. It does not raise facts which are outside the complaint. Rather, its arguments are based on the language of the amended complaint and that of the Agreement, which is part of the amended complaint, having been incorporated by reference therein and attached thereto"). In the present case, the plaintiff's complaint attached and "incorporated by reference" the three contracts allegedly entered into between itself and the defendant as Exhibits "A," "B" and "C." Accordingly, the court can consider the language of these contracts in deciding the plaintiff's motion to strike.
With this procedural framework in mind, it is necessary to discuss principles of contract law as they relate to the parol evidence rule. "[W]hen the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme." (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 502, 746 A.2d 1277 (2000).
"The parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract . . . The parol evidence rule does not apply, however, if the written contract is not completely integrated . . . As a threshold matter, therefore, a trial court must determine whether the written contract is a complete integration for purposes of the parol evidence rule." (Citations omitted; internal quotation marks omitted.) Benvenuti Oil Co., Inc. v. Foss Consultants, Inc., 64 Conn.App. 723, 727-28, 781 A.2d 435 (2001). An integrated writing is one that is "a final expression of one or more terms of an agreement." 2 Restatement (Second), Contracts § 209(1) (1981); Conn Acoustics, Inc. v. Xhema Construction, Inc., 88 Conn.App. 741, 745, 870 A.2d 1178 (2005).
"There are, however, several exceptions to this rule. Specifically, evidence extrinsic to an integrated contract may be introduced: (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud . . . These recognized exceptions are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract's terms, or (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud." (Internal quotation marks omitted.) Perricone v. Perricone, 292 Conn. 187, CT Page 20596 194-95, 972 A.2d 666 (2009).
"The intent of the parties determines whether the written agreement was the final repository of any oral agreements. If the court determines that the parties intended the writing to be an integrated agreement, the oral agreements are not considered when determining the contractual obligations of the parties . . . Whether a writing is a complete integration of an agreement, the final repository of the oral agreements and dealings between the parties depends on their intention, evidence as to which is sought in the conduct and language of the parties and the surrounding circumstances." (Internal quotation marks omitted.) Conn Acoustics, Inc. v. Xhema Construction, Inc., supra, 88 Conn.App. 746.
In the present case, the contract between the defendant and the plaintiff is completely integrated. Paragraph 12 of the contract provides in relevant part: "This agreement contains the entire understanding between the parties and shall bind the parties and their respective successors and assigns." Paragraph 14 further provides in relevant part: "The sales representative of Publisher has no authority to make any changes to this agreement or to commit Publisher in any manner whatsoever in contradiction to the provisions expressly set forth in this agreement." Finally, Paragraph 15(F) provides in relevant part: "This agreement supercedes any other verbal or written agreement between Customer and Publisher. This agreement may not be changed except by a writing signed by an authorized signatory of Customer and Publisher." Given this language, the court concludes that the parties intended the written contract to be a complete and final statement of their agreement. Thus, the parol evidence rule applies, and the defendant has not alleged or pointed to any exception that would make it inapplicable applies.
Regarding payment for services rendered, Paragraph 6 of the contract provides: "Customer agrees to pay the amounts listed on the reverse side of this agreement for print advertising in the Directory and/or Internet Services;" "[for print advertising, Publisher will bill Customer monthly for the issue period after each Directory;" and "[for Internet Services, Publisher may require full payment in advance or at its discretion may bill Customer monthly or annually . . ." Paragraph 4 of the contract further provides in relevant part: "The issue period for each directory is 12 months from the date of publication." Thus, the defendant's allegation that he entered into a separate agreement with a representative of the plaintiff in which the defendant was obligated to pay for only six months of the total agreement for the 2009 contract varies and contradicts the terms of the contracts between the plaintiff and the defendant. Accordingly, the defendant's counterclaim is barred by the parol evidence rule and, therefore, is legally insufficient.
For the foregoing reasons, the court grants the plaintiff's motion to strike the defendant's counterclaim on the grounds that the counterclaim fails to set forth any viable claim for which relief could be granted as a matter of law, and that the allegations contained in the counterclaim are expressly contradicted by the plain and unambiguous terms of three fully integrated written contractual agreements between the parties.