Opinion
No. LLI CV 05-4003946 S
August 11, 2006
MEMORANDUM OF DECISION
This is an action to partition property in Harwinton which is jointly owned by the plaintiff and the defendant. This is a motion to strike (#107) which tests the sufficiency of the answer, special defenses and counterclaim filed by the defendant.
A preliminary procedural issue must be addressed first. The plaintiff claims that the defendant is prohibited from filing this motion to strike because on March 9, 2006 the court granted the plaintiff's motion for default for failure to plead, and on March 30, 2006 the plaintiff filed a motion for judgment of partition by sale. The defendant's answer was not filed until April 5, 2006. Pursuant to Practice Book § 17-32 the filing of an answer will act to set aside a default only if it is filed before a motion for judgment has been filed. Thereafter, the default "may be set aside only by the judicial authority." No motion to set aside the default has been filed by the defendant.
The problem with the plaintiff's argument is that on March 21, 2006, after the default was granted, the plaintiff filed a request for leave to file an amended complaint. No objection was filed by the defendant. Therefore, pursuant to Practice Book § 10-60, the amendment became effective on April 5, 2006, the very day on which the motion to strike was filed. By amending her complaint, the plaintiff acted to provide the defendant with a new complaint to plead to. Pursuant to Practice Book §§ 10-61: "When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment . . ." Here, the amendment of the complaint by the plaintiff acted to withdraw the previous complaint and provide the defendant with fifteen days to file a pleading addressed to the amended complaint. The defendant's motion to strike was timely filed. Therefore, the motion to strike will be considered.
The Answer
The complaint is a standard three-paragraph partition complaint alleging that the plaintiff and defendant are co-owners of the property as joint tenants, and that the parties are unable to agree on the use and disposition of the property. The answer simply states that: "The Defendant lacks sufficient information and belief to form an answer and therefore leaves the Plaintiff to her proof." This sort of answer is insufficient and must be discouraged. Practice Book § 10-46 provides, in part, "the defendant in the answer shall specifically deny such allegations of the complaint as the defendant who intends to controvert, admitting the truth of the other allegations . . ." Practice Book § 10-47 provides, in part, "Denials must fairly meet the substance of the allegations denied . . . where any matter of fact is alleged with divers circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much of it as is true and material should be stated or admitted, and the rest only denied." The defendant has not followed the rule by filing a general "no knowledge" answer to the entire complaint, some of which should clearly have been admitted or denied. The motion to strike the answer is granted.
The Special Defenses
There are six special defenses: 1) the sale is unconscionable, 2) the plaintiff should be equitably estopped, 3) laches, 4) offset, 5) unclean hands, 6) fraud. These might be termed "kitchen sink" special defenses because the defendant seems to have simply thrown in any equitable defense he could think of, without any facts to support them. They are mere legal conclusions. In the absence of facts, the defenses are insufficient.
Furthermore, the defenses stated are not among the recognized defenses to a partition action. "The permissible defenses to the right to partition are those which would defeat [the plaintiff's] actual right to compel such a partition . . . Connecticut courts have recognized the following as permissible defenses to the right to partition: a claim of adverse possession of the property sought to be partitioned by the defendant, Harrison v. International Silver Co., 78 Conn. 417 [ 62 A. 342] (1905); the existence of a trust interest in the property if partition would defeat the purposes of the trust, Bauby v. Bauby, 14 Conn.Sup. 385 (Super.Ct. 1946); an agreement prohibiting partition, Rayhol Co. v. Holland, 110 Conn. 516 [ 148 A. 358] (1930); and a claim of invalidity in the plaintiff's procurement of title, Narowski v. Kichar, 181 Conn. 251 [ 435 A.2d 32] (1980). Our Supreme Court has held that difficulty in making a partition and resulting inconveniences to the parties are not sufficient defenses to the right of partition. Scovil v. Kennedy, 14 Conn. 349, 360-61 (1841). Although a partition by sale may obviate the need to order a partition in kind in cases of extreme difficulty or hardship, [ Delfino v. Vealencis, 181 Conn. 533, 537-38 (1980)], no Connecticut case law exists which recognizes such circumstances as defeating the very right to partition." Centerbank v. Curran, Superior Court, judicial district of Waterbury, Docket No. CV 0109612 (August 13, 1991, Murray, J.) ( 4 Conn. L. Rptr. 375, 375-76); See also Bratt v. Klein, Superior Court, judicial district of Stamford, Docket No. CV 05 4004611 (September 20, 2005, Tobin, J.T.R.)
In McCormick v. Maxwell, Superior Court, judicial district of Stamford, Docket No. CV 04 0200941 (August 5, 2005, Alfred, J.), disputing family members requested a partition by sale of a single-family home and property. The defendant filed two special defenses, unclean hands and exercise of equitable discretion to deny relief of involuntary sale, respectively. The plaintiffs moved to strike both special defenses on the ground that "they are legally insufficient and cannot be maintained as they are not recognized by Connecticut courts as permissible defenses to a partition action providing that "as the foregoing authorities attest, a special defense is not tested by the label affixed to it. It is tested by the facts alleged or necessarily implied, or facts fairly provable under the facts alleged in the special defense . . . [T]here have been limited cases allowing special defenses to partition cases, but the test remains whether or not the facts alleged in the special defense `. . . would defeat [the plaintiff's] actual right to compel a partition.'" (Citations omitted; emphasis added.) Id. The court, ultimately, granted the plaintiffs' motion to strike the defendant's two special defenses.
For the reasons stated, the motion to strike the special defenses is granted.
The Counterclaims The first count of the counterclaims alleges a breach of contract theory based on an alleged agreement that the parties would share equally in the expenses of the property. The plaintiff claims that the alleged agreement would violate the statute of frauds, C.G.S. § 52-550, although she does not specify why. In the absence of any legal analysis, the motion to strike this first count is denied. The second count of the counterclaims alleges unjust enrichment. The plaintiff's reason for the motion to strike is that there are insufficient facts alleged to state the three elements of this theory: 1) the defendant was benefitted, 2) the defendant unjustly failed to pay the plaintiff for the benefits, and 3) the failure of payment was to the plaintiff's detriment. The essential allegations of this second count are that the plaintiff and defendant agreed to share equally in the expenses of the property and that the plaintiff will be unjustly enriched in that she did not contribute in the agreed-upon manner. Although a bit sparse, these allegations satisfy the bare minimum for an unjust enrichment claim. The motion to strike this second count is denied.The third count allegedly sets forth a cause of action for fraud. The elements of fraud are: 1) a false representation was made as a statement of fact, 2) it was untrue and known to be untrue by the party making it, 3) it was made to induce the other party to act upon it, and, 4) the other party did so act upon that false representation. Billington v. Billington, 220 Conn. 212, 217 (1991). The defendant claims that she and the plaintiff represented to their grantor that she would be able to live in the property for as long as she was alive, and that the defendant has suffered damage as a result of the plaintiff's breach. These allegations do not set forth a cause of action. There is no allegation that a false representation was made by the plaintiff to the defendant and that he relied upon it to his detriment. The claim seems to be that a false representation was made to the grantor of the property and that she has been damaged. The grantor is not a party to this action. The defendant is not entitled to assert a claim of fraud on behalf of a non-party. The motion to strike the third count of the counterclaim is granted.