Opinion
No. CV04-0490409S
October 20, 2004
MEMORANDUM OF DECISION RE: MOTION TO STRIKE
In his pro se complaint, the plaintiff, Vincent Juliano (Juliano) alleges that the defendant, Attorney Robert C. Levine, was somehow responsible for a fraudulent and improper transfer of Juliano's interest in real property known as 14 Thill Street, West Haven, Connecticut. Attached to the original complaint are the relevant deeds both of which are dated January 19, 1983. Following the filing of a request to revise the complaint, Juliano filed a pleading entitled Complaint #2. The defendant has moved to strike this complaint asserting (1) it contains no prayer for relief; (2) it does not adequately plead a cause of action for either fraud or legal malpractice; and (3) the action is barred by the applicable statute of limitations. Juliano did not file a memorandum in opposition to the motion nor did he appear for oral argument.
For the reasons set forth below, the motion is granted.
PRAYER FOR RELIEF
Neither the original complaint nor the revised complaint (Complaint # 2) contains any prayer for relief. To state a cause of action, a complaint must contained a claim for relief. Chapin v. Chapin, 155 Conn. 691, 693 (1967).
The complaint must be striken because it contains no prayer for relief.
LEGAL SUFFICIENCY
It is not possible, with confidence, to determine the cause or causes of action that Juliano is asserting in his revised complaint. Juliano may be alleging legal malpractice, fraud, both, or neither. Construing the revised complaint in Juliano's favor, it does not adequately allege legal malpractice because it fails to allege any of the four elements of that tort. See Mayer v. Biafore, Florack O'Neill, 245 Conn. 88, 92 (1988) (four elements of legal malpractice are: (1) an attorney-client relationship; (2) wrongful act/omission by the attorney; (3) causation; and (4) damages). Moreover, construing the revised complaint in Juliano's favor, it also does not sufficiently allege fraud because it fails to allege any of fraud's elements. See Suffield Development Associates, Ltd. Partnership v. National Own Investors, L.P., 260 Conn. 766, 777-78 (2002) (four elements of fraud are: (1) false statement of fact; (2) statement was untrue and known to be untrue by party making it; (3) statement made to induce another to act; and (4) other party acted on fraudulent statement to his detriment.)
The complaint must be striken because it does not sufficiently allege a cognizable cause of action.
STATUTE OF LIMITATIONS
The deeds pertaining to the property transfer that is the subject matter of the complaint were executed in 1983. The return date and date of service for the present lawsuit were in 2004. In other words, the present lawsuit has been filed over 20 years after the date when the allegedly tortious acts were committed. The defendant asserts that the complaint is barred by General Statutes § 52-577 which requires actions in tort to be brought within three years of the act or omission complained of.
As a general matter, a claim that an action is barred by the statute of limitations must be raised by a special defense and not a motion to strike. Forbes v. Ballaro, 31 Conn.App. 235, 239 (1993). An exception to this rule exists for situations where all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true. Girard v. Weiss, 43 Conn.App. 397, 415 (1996).
In the present case, it is unclear whether all the facts pertinent to the statute of limitations are pleaded in the complaint. This is a pro se lawsuit. While Juliano has not filed an opposing memorandum, the court cannot assume that there are no facts that could be plead in avoidance of the statute.
On the present record, the motion to strike on this ground is denied.
CONCLUSION
For the reasons set forth above, the motion to strike is granted.
So Ordered at New Haven, Connecticut this 20th day of October 2004.