Opinion
No. CV03-0482647S
February 16, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
FACTS
On October 7, 2003, the plaintiff, Triton Environmental, Inc., brought this breach of contract action against the defendant, Dalton Enterprises, Inc., alleging that the defendant failed to pay the plaintiff for services rendered. On June 3, 2004, the defendant filed an amended answer, pleading, inter alia, a four-count counterclaim sounding in breach of contract, negligence, misrepresentation, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA). On January 10, 2005, the court, Levin, J., ruled on the plaintiff's motion to strike the defendant's counterclaims for negligence, misrepresentation and a CUTPA violation. The court determined that the negligence and misrepresentation counterclaims survived the plaintiff's motion to strike because neither counterclaim was barred by the economic loss rule. In addition, the counterclaim alleging a CUTPA violation survived the motion because CUTPA applies to professionals. See Triton Environmental, Inc. v. Dalton Enterprises, Inc., Superior Court, judicial district of New Haven, Docket No. 3482647 (January 10, 2005, Levin, J.) ( 38 Conn. L. Rptr. 518), and the court's order entered on July 12, 2005.
On August 17, 2006, after failing to strike the negligence, misrepresentation and CUTPA violation counterclaims, the plaintiff filed an answer and special defenses to these counterclaims. One special defense asserts that the economic loss rule bars the negligence and misrepresentation counterclaims. The other special defense asserts that CUTPA does not apply to professionals such as the plaintiff.
On September 15, 2006, the defendant filed a motion to strike the plaintiff's special defenses. The defendant argues in its memorandum of law that these defenses are insufficient because they reassert what the court already heard and denied in the prior decision by Judge Levin. Besides that decision, the defendant cites no legal authority in support.
Practice Book § 10-42(a) provides: "Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies."
On September 29, 2006, the plaintiff filed a memorandum in opposition. In it, the plaintiff argues that the motion to strike is fatally deficient for failure to cite supporting legal authority. The plaintiff also argues that the court's prior decision does not concern the sufficiency of the special defenses because the court was faced with a challenge to the defendant's counterclaims.
On November 20, 2006, the defendant filed a memorandum in reply to the plaintiff's memorandum in opposition, arguing that the law of the case doctrine prevents the plaintiff from attempting by way of special defenses what it could not accomplish by way of its previous motion to strike. The matter was heard on the short calendar on November 27, 2006.
DISCUSSION
"[F]acts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the [opposing party] has no cause of action." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005); see also Practice Book § 10-50. "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). In ruling on a motion to strike special defenses, the court must "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). "The burden of alleging recognizable special defenses . . . rests upon the defendant." Cowart v. Grimaldi, 46 Conn.Sup. 248, 250, 746 A.2d 833 (1997) [ 18 Conn. L. Rptr. 682].
The issue here is, whether the law of the case doctrine should apply. The doctrine provides that when "a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). Although "[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings . . . [a judge] should be . . . reluctant to overrule . . . another judge . . . Judge shopping is not to be encouraged and a decent respect for the views of his brethren on the bench is commendable in a judge. Nevertheless, if the case comes before him regularly and he becomes convinced than the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." (Emphasis added; citations omitted; internal quotation marks omitted.) Id., 98-100. The doctrine "has been frequently applied to an earlier ruling during the pleading stage of a case such as that upon [a] motion to strike . . ." Id., 98.
In its memorandum in opposition, the plaintiff contends that the doctrine is inapplicable. Specifically, the plaintiff argues: "By denying [the plaintiff's motion to strike the defendant's counterclaims], [the] court [Levin, J.] did not find the plaintiff's arguments were without merit. Rather, [the] court found that, when viewed in the light most favorable to [the defendant], [the defendant's] counterclaims were legally sufficient to survive the motion to strike. [The defendant] now asks [this] court to strike [the plaintiff's] special defenses as insufficient simply because [the defendant's] counterclaims have been determined legally sufficient to withstand a motion to strike. Such an argument is without any basis in Connecticut law — in fact [the defendant] cites none — and must be rejected."
In the present case, while it is true that the defendant's memorandum accompanying the motion to strike cites no authority in support of applying the doctrine, the plaintiff, for its part, cites no authority in support of the legal distinction it appears to draw between Judge Levin's ruling and the one now before the court. In other words, under Breen, the court simply is not "convinced than the view of the law previously applied by [Judge Levin] was clearly erroneous . . ." Breen v. Phelps, supra, 186 Conn. 100.
CONCLUSION
The defendant's motion to strike the plaintiff's first special defense to the second and third counts of the counterclaim is granted. The defendant's motion to strike the plaintiff's first special defense to the fourth count of the counterclaim (CUTPA) is granted.