Opinion
No. LLI CV 11 6004695S
September 28, 2011
MEMORANDUM OF DECISION RE SHORT CALENDAR SEPTEMBER 26, 2011 MOTION TO STRIKE #111
The issue before the court is whether to grant the plaintiff's motion to strike the defendant's first, second and third special defenses on the ground that they are legally insufficient.
On August 15, 2011, the plaintiff, Gayle Bellini, filed a revised complaint against the defendant, The Patterson Oil Company, alleging that the defendant breached a commercial lease by abandoning the premises prior to the expiration of the extended lease term. The complaint alleges the following relevant facts. By lease agreement dated November 1, 1989, the plaintiff as lessor, and the defendant, as lessee, agreed to the lease of commercial real estate. The defendant took possession of the premises on or about November 1, 1989. The parties executed an addendum to the lease agreement on October 16, 1990. Without otherwise modifying the lease agreement, including the addendum, the parties modified the rent from time to time. Pursuant to the lease and the addendum, the initial term was to be automatically extended for five-year terms absent ninety days written notice of intent to terminate the lease. On or about April 22, 2011, the plaintiff received written notice from the defendant of its intention to abandon the premises on April 30, 2011. On or about April 30, 2011, the defendant abandoned the premises. According to the plaintiff, the defendant breached the lease by abandoning the premises prior to the expiration of the extended lease term, which expires on October 31, 2014. A copy of the lease and the addendum are attached to the revised complaint along with two letters, dated August 31, 1994, and October 10, 1995.
On August 29, 2011, the defendant filed an answer and special defenses. In its first special defense, the defendant alleges that the lease and addendum terminated when it expired as of April 30, 1996, and the defendant became a month-to-month tenant. The defendant vacated the premises as a month-to-month tenant. In its second special defense, the defendant asserts that there was no requirement that it provide ninety days written notice under the terms of the month-to-month tenancy. The third special defense asserts that the plaintiff has failed to state a claim upon which relief can be granted. The fourth special defense alleges that the plaintiff failed to mitigate her damages by failing to take reasonable steps to relet the subject premises.
On September 7, 2011, the plaintiff filed the present motion to strike the defendant's first, second and third special defenses. The defendant filed a memorandum of law in opposition to the motion on September 20, 2011. The plaintiff filed a reply on September 22, 2011. The matter was heard on the September 26, 2011 short calendar.
II DISCUSSION A Motion to Strike Standard
General Statutes § 10-39 states, in pertinent part: "(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint . . . or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof."
"[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on the . . . motion to strike, the trial court [recognizes] its obligation to 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 purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged . . . [T]he total absence of any factual allegations specific to the dispute renders [the special defense] legally insufficient." (Citations omitted; internal quotation marks omitted.) Cabala v. JP Morgan Chase Bank, Superior Court, judicial district of New Haven, Docket No. CV 10 6008853S (August 5, 2010, Zoarski, J.T.R.).
B Analysis
The plaintiff moves to strike the defendant's first, second and third special defenses. Each will be addressed in turn.
I First Special Defense
In its first special defense, the defendant alleges that the lease and addendum terminated when it expired as of April 30, 1996, and the defendant became a month-to-month tenant. The defendant vacated the premises as a month-to-month tenant.
The plaintiff moves to strike this special defense on the ground that it is legally insufficient because it pleads a bare legal conclusion, and fails to plead facts that are consistent with the plaintiff's statements of fact, but nonetheless show that the plaintiff has no cause of action. According to the plaintiff, the defendant admitted in its answer that the lease and addenda attached to the revised complaint constitute the agreement which gave rise to the parties' relationship as landlord and tenant. Section 18 of the lease agreement provides in relevant part: "This lease shall be automatically renewed for an additional five-year term with monthly rental to be negotiated ninety (90) days prior to the renewal date." Thus, according to the plaintiff, the defendant's special defense is a bare legal conclusion made without supporting facts.
The defendant contends, first, that the plaintiff's argument that the defendant's answers constitute admissions that the defendant agrees with the plaintiff's interpretation of the effect of the lease is inaccurate. According to the defendant, its answers reveal that the documents presented as exhibits to the revised complaint were the documents which constituted a lease between the parties and addenda to that lease. The defendant specifically left the plaintiff to her proof regarding any allegation beyond that.
Next, the defendant argues that the allegations of the special defense are entirely consistent with the allegations of the revised complaint and rely upon its allegations and exhibits. Specifically, the last addendum to the lease, i.e. the letter dated October 10, 1995, provides that the lease is for a period of six months, ending on April 30, 1996. No additional oral or written agreements are alleged. Therefore, the defendant contends, it has alleged sufficient facts to support its allegation and conclusion that the lease expired on April 30, 1996. Furthermore, the defendant argues that it is implied in the plaintiff's allegations that the plaintiff permitted the defendant to continue to possess the premises and accepted rent from the defendant. Therefore, the defendant contends, it has pleaded sufficient facts to support the conclusion that it was a tenant-at-will, on a month-to-month basis.
In reply, the plaintiff argues that the letters dated August 31, 1994, and October 10, 1995, which are attached to the revised complaint, modify the lease only with regard to rental payments, not the renewal option term contained in section 18 of the lease.
"[O]rdinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . Several Connecticut Superior Court decisions have held that contractual interpretation, being a question of fact, is inappropriate for a motion to strike." (Citation omitted; internal quotation marks omitted.) MBMB, LLC v. Alpha Abatement, LLC, Superior Court, judicial district of New Haven, Docket No. CV 10 6008253 (February 7, 2011, Wilson, J.).
In the present case, the plaintiff's motion to strike is based on her interpretation of the written lease and addenda between the parties. The defendant relies on the documents attached to the revised complaint and has alleged facts that are consistent with the plaintiff's facts, but simply asserts a different interpretation of the agreement between the parties. As such, the plaintiff is asking the court to engage in contract interpretation, which is inappropriate on a motion to strike. Therefore, the motion to strike the first special defense is to be denied.
2 Second Special Defense
In its second special defense, the defendant asserts that there was no requirement that it provide ninety days written notice under the terms of the month-to-month tenancy.
The parties' arguments as to this special defense are essentially identical to those concerning the first special defense. For the reasons previously stated, the motion to strike the second special defense is to be denied.
3 Third Special Defense
The third special defense asserts that the plaintiff has failed to state a claim upon which relief can be granted.
The plaintiff moves to strike this special defense on the ground that it is legally insufficient and invalid. According to the plaintiff, the defendant should have raised the legal insufficiency of the complaint by way of a motion to strike, not as a special defense. The plaintiff acknowledges that there is a split of authority among the superior courts as to whether a special defense which alleges the bare legal conclusion of legal insufficiency should be stricken. The plaintiff urges the court to follow the line of cases originating from Pozoukidis v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 97 0346988 (February 13, 1998, Mottolese, J.) ( 21 Conn. L. Rptr. 382).
In contrast, the defendant contends that the more logical approach supports allowing the special defense to survive, and urges the court to follow the line of cases originating from Scan Associates, Inc. v. Civitello Building Co., Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0350643 (January 24, 1994, Hodgson, J.) ( 10 Conn. L. Rptr. 646).
"[T]here is a split of authority in the Superior Court as to whether a special defense is valid when it alleges that the plaintiff's complaint fails to state a cause of action . . . [One] line of cases rel[ies] on Scan Associates, Inc. v. Civitello Building Co., Superior Court, judicial district of New Haven, Docket No. CV 93 0350643 (January 24, 1994, Hodgson, J.) ( 10 Conn. L. Rptr. 646), and hold that a special defense challenging the sufficiency of a complaint is valid without specific facts in support of that challenge . . . Another line of cases, relying on Pozoukidis v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 97 0346988 (February 13, 1998, Mottolese, J.) ( 21 Conn. L. Rptr. 382), hold that [a] mere expression of the deficiency of the plaintiffs' statements fails to assert facts which show that the plaintiffs have no cause of action . . . A special defense which alleges nothing more than that the complaint (or a count thereof) `fails to allege a cause of action upon which relief can be granted' fails to . . . allege any facts [and] it does not even allege a cognizable legal conclusion." (Citations omitted; internal quotation marks omitted.) Central Connecticut Acoustics, Inc. v. New York-Connecticut Development Corp., Superior Court, judicial district of New Haven, Docket No. CV 10 6011417 (April 11, 2011, Woods, J.).
"The Pozoukidis . . . line of cases find that a special defense must also include facts alleged which support the challenge in order to withstand a motion to strike. In Pozoukidis. the court stated that rules of pleading hold defendants to the same standard of definiteness with respect to special defenses that plaintiffs are held to in their complaints . . . The special defense must therefore inform the plaintiff with reasonable clarity of the nature of the defense asserted . . . To allow . . . an indefinite special defense is to return to the days when litigation was somewhat of a game of blindman's bluff . . .
"In contrast, the Scan Associates . . . line of cases find that merely challenging the sufficiency of the complaint by way of a special defense is appropriate. Specific facts in support of the challenge are not necessary . . . In Scan Associates . . . the court relied on footnote 5 in Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535 n. 5, 546 A.2d 216 (1988) as a basis for finding that a motion to strike survives if the special defense challenges the sufficiency of the complaint . . . In Robert S. Weiss Associates, Inc. v. Wiederlight footnote 5, the court stated [that] [i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint. If he fails so to do, it is not the burden of the defendant to attempt to correct the deficiency, either by motion, [motion to strike] or otherwise." (Citations omitted; internal quotation marks omitted.) Cluney v. Regional School District No. 13, Superior Court, judicial district of Middlesex, Docket No. CV 99 0089468 (June 19, 2000, Gordon, J.) ( 27 Conn. L. Rptr. 415).
The court in Central Connecticut Acoustics was "persuaded by the reasoning in Scan Associates, Inc. because [t]he proposition that a complaint fails to state a claim upon which relief could be granted accepts as accurate and relies in its entirety on the facts alleged in the complaint . . . The allegations succeed or fail on their own, independent of any additional allegations." Central Connecticut Acoustics, Inc. v. New York-Connecticut Development Corp., supra, Superior Court, Docket No. CV 10 6011417, citing Rosario v. Sikorsky Aircraft Corp., Superior Court, judicial district of Fairfield, Docket No. CV 10 6006454 (December 28, 2010, Dooley, J.) ( 51 Conn. L. Rptr. 217).
This court is also persuaded by the reasoning in Scan Associates, Inc. v. Civitello Building Co., Inc., supra, 10 Conn. L. Rptr. 646, and that court's reliance upon Robert S. Weiss Associates, Inc. v. Wiederlight, supra, 208 Conn. 525. Therefore, the third special defense is legally sufficient and the motion to strike is to be denied.