Opinion
No. FST CV 06 5001213 S
May 1, 2008
MEMORANDUM OF DECISION
The plaintiff in this action seeks to foreclose a mechanics lien which was filed against property owned by defendants, Richard Collender and Sarah Ashkinaze. At issue is the plaintiff's motion to strike the defendant's third special defense and the second count of the defendant's counterclaim. Arguments on the motion were heard at short calendar on April 28, 2008.
The first count of the defendant's counterclaim alleges the plaintiff's breach of a contract. The second count of the defendant's counterclaim incorporates the allegations of the first count and claims damages under a theory of unjust enrichment. In argument the defendant's counsel conceded that an unjust enrichment claim could not include an allegation of a contract between the parties. Accordingly, plaintiff's motion to strike the second count of the defendant's counterclaim is granted. Rosick v. Equipment Maintenance Service, Inc., 33 Conn.App. 25, 37 (1993).
The Defendant's third special defense alleges that the plaintiff violated the Connecticut Unfair Trade Practices Act ("CUTPA"). In moving to strike that defense the plaintiff asserts that while claims of CUTPA violations may furnish a basis for a counterclaim, they cannot be asserted as a special defense in a foreclosure action. In response, the defendant claims that the Connecticut Supreme Court held in Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486 (1994), that CUTPA violations "may be asserted as a defense in a foreclosure action."
Pursuant to Practice Book § 10-39(a)(5) "a motion to strike may be used to contest the legal sufficiency of any answer to any complaint, counterclaim, or any part of that answer including any special defenses . . ." The purpose of a motion to strike is to challenge the legal sufficiency of a complaint, counterclaim or special defense. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). A motion to strike admits all facts well pleaded, but it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. In testing the sufficiency of a pleading challenged by a motion to strike the allegations of pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail. Mingachos v. CBS, Inc., 191 Conn. 91, 108, 109 (1985); Alarm Applications Co. v. Simsbury Volunteer Fire Company, 170 Conn. 541, 545 (1980). The role of the trial court in ruling on a motion to strike is to examine the contested pleading, construed in favor of the pleader, to determine whether the pleading party has stated a legally sufficient cause of action or defense. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). In testing the sufficiency of a pleading it has been said that the factual allegations of the pleading must be deemed to have been admitted by the party moving to strike, R.K. Constructors, Inc. v. Fusco Corp., 224 Conn. 201, 215 (1992), and must be construed most favorably to the party having filed the challenged pleading. Faulkner v. United Technologies Corp., 240 Conn. 576 (1997). But the legal conclusions and opinions stated in a challenged special defense are not deemed admitted but must rather flow from the subordinate facts provided. County Federal Savings and Loan Association v. Eastern, 3 Conn.App. 582, 586 (1985); McAdam v. Sheldon, 153 Conn. 278, 283 (1965).
The plaintiff correctly points out that in assessing the validity of special defenses to a mortgage foreclosure proceeding Connecticut courts have recognized that a valid foreclosure defense must address the "making, validity or enforcement of the mortgage and/or note." Southbridge Associates, LLC v. Garafalo, 53 Conn. 11, 17 (1999), cert. denied, 249 Conn. 919 (1999). In applying that test it has been held that the making of the note and subsequent default is the "transaction at issue," Norwest Mortgage v. Edwards, 22 Conn. L. Rptr. 123, 1998 WL 246484 (Conn.Super. 1998, Curran, J.), and that defenses cannot attack some act or procedure of the lienholder. Webster Bank v. Linsley, 2001 WL1042581 (Conn.Super. 2001, Booth, J.).
In this case, however, the plaintiff seeks to foreclose a mechanics lien rather than a mortgage. The defendant's third special defense asserts that work performed by the plaintiff was not performed in satisfactory manner, that the plaintiff was overcharged and that the contract, pursuant to which the plaintiff performed the work did not comply with the Home Improvement Act. The court finds that the allegations of the third special defense relate to the "transaction at issue" — the work allegedly performed by plaintiff which gives rise to his mechanic's lien. The court finds that special defense is legally sufficient. The motion to strike the defendant's third special defense is accordingly denied.
In opposing the motion to strike, the defendant incorrectly claimed that Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, stands for the proposition that a CUTPA claim may be asserted as a special defense in a foreclosure action. The defendant is incorrect. Normand Josef Enterprises involved the failure of the defendant to honor a judicial execution on a judgment. The plaintiff included a count asserting that the defendant bank had acted in violation of CUTPA by claiming a right of offset against funds on deposit belonging to the judgment debtor. The Supreme court reversed the trial court as to the CUTPA count, finding that the actions of the defendant did not amount to a deceptive trade practice. Nothing in that case is relevant to the issue presently before the court.