Opinion
No. MMX CCV 10-6003531-S
June 23, 2011
MEMORANDUM OF LAW RE MOTION TO STRIKE NO. 112
I. Procedural History
On November 23, 2010, the plaintiff, Borough of Fenwick historic district commission, filed a one count amended complaint against the defendants, Frank Sciame, Barbara Sciame, 273 Water Street, LLC and Fenwick Acquisition, LLC. The plaintiff alleges that granite posts located at the end of the defendants' driveway violate the certificate of appropriateness granted to the defendants by the plaintiff on the condition that the height of the posts were shortened to forty-eight inches. The plaintiff further alleges that since the defendants did not appeal the decision to approve the application for a certificate of appropriateness with that condition, the decision became final and, pursuant to General Statutes § 7-147h, the plaintiff may enforce its decision by filing an action in Superior Court.
Section 7-147h provides in relevant part: "(a) If any provision of this part or any action taken or ruling made by the historic district commission pursuant to the provisions of said sections or of any regulation or ordinance adopted under said sections has been violated, the commission may, in addition to other remedies, institute an action in the superior court for the judicial district wherein such violation exists, which court shall have jurisdiction to restrain such violation and to issue orders directing that the violation be corrected or removed . . ."
On January 13, 2011, the defendants filed an amended answer asserting six special defenses and two counterclaims. The plaintiff filed a motion to strike the first, second, third, fifth and sixth special defenses, as well as the defendants' two counterclaims, on January 13, 2011. The motion was accompanied by a memorandum of law. On February 18, 2011, the defendants filed a memorandum in opposition to the plaintiff's motion to strike. The defendants filed a reply on February 23, 2011. The matter was heard at the short calendar on March 21, 2011.
The defendants' first special defense asserts that the certificate of appropriateness issued by the plaintiff is in violation of General Statutes § 7-147e and is, therefore, unenforceable. The second special defense asserts that the plaintiff is barred from recovery under the doctrine of unclean hands because it coerced the defendants into applying for a certificate when it was not required. The defendants' third special defense argues that General Statutes § 7-147e is in violation of the due process clause of the constitution. The fourth special defense asserts that the court lacks jurisdiction to impose monetary sanctions in the present action. The fifth special defense argues that the certificate of appropriateness at issue in the present case is unenforceable because the granite posts are not `structures' as that term is defined by town regulations. Finally, the sixth special defense claims that the issuance of the certificate of appropriateness was an ultra vires act in violation of § 7(b) of the Borough of Fenwick historic preservation regulations.
II. DISCUSSION
"Whenever any party wishes to contest . . . 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 . . . 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 . . ." Practice Book § 10-39.
"[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008). The court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
Likewise, in ruling on a motion to strike special defenses, "the trial court [has an] 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). "[T]he total absence of any factual allegations specific to [the] dispute renders [the special defense] legally insufficient . . ." U.S. Bank National Ass'n. as Trustee v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009, Abrams, J.) ( 48 Conn. L. Rptr. 345).
At the outset, the court must address the defendants' objection to the form of the motion to strike. The defendants have raised a procedural objection to the plaintiff's motion, arguing that the motion should be denied because it simply cites to case law and, therefore, fails to set forth the legal grounds upon which the motion is based with specificity. Accordingly, the defendants argue, the motion has failed to comply with Practice Book § 10-41. "Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn. App. 857, 861, 927 A.2d 343 (2007).
Although the defendants object to the form of the motion to strike with regard to the plaintiff's general citation to Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992), their argument makes no mention of the grounds, or lack thereof, set forth in paragraph nine of the motion, which states: "Second counterclaim on the grounds that it fails to state a claim for which relief can be granted for the intentional infliction of emotional distress." While this paragraph fails to comply with Practice Book § 10-41 in that does not set forth the legal basis of the motion with specificity, since the defendants made no objection to the form of this ground, and § 10-41 is not jurisdictional in nature, the court will consider the merits of the motion to strike the second counterclaim in the form presented. See Morris v. Hartford Current Co., 200 Conn. 676, 683, 513 A.2d 66 (1986).
Although the Appellate Court has held that "[s]imply stating that all of the counts `are legally insufficient' and that they `fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10-41," Id., 862, "[t]here is one decision by [the Appellate Court] in which [it] concluded that it was proper for the trial court to consider the reason proffered in the motion to strike together with additional information provided in the supporting memorandum of law." Id., 862 n. 3. In that case, Rowe v. Godou, 12 Conn.App. 538, 539, 532 A.2d 978 (1987), rev'd on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988), "the defendants requested the court to strike the plaintiff's complaint on the ground that the action was `barred by statute,' but they failed to cite the statutory authority. The supporting memorandum of law identified the applicable statute as General Statutes § 7-308 . . . [The court] concluded that a motion to strike that lacks specificity but which adequately submits the material issue to the court is sufficient to comply with Practice Book § 10-41 (then § 154)." (Citation omitted.) Id., 862-63, citing Rowe v. Godou, supra, 12 Conn.App. 540.
In the present case, the plaintiff's motion states that the special defenses and second counterclaim fail "to state a claim for which relief can be granted under Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96 (1992)." The defendants argue that, given that Upjohn is a complicated case with numerous holdings, simply citing to it does not set forth a legal basis for the motion to strike. Here, however, the defendants have not merely stated that the special defenses and counterclaims are legally insufficient, but have included a case citation on the face of the motion and described in detail how that case applies to the present matter in their accompanying memorandum of law. The court finds that the specificity that may be lacking on the face of the motion is adequately contained in the memorandum in support of the motion. Therefore, the court will address the merits of the motion to strike.
A. Special Defenses
The plaintiff argues that five of the defendants' special defenses and its second counterclaim must be stricken because the Supreme Court has clearly stated that if a party has failed to exhaust the statutory remedies available to challenge an agency decision, that decision is final and no longer subject to review by the court. The plaintiff asserts that the defendants failed to exercise their statutory right to appeal the decision at issue in the present case and, therefore, the named special defenses and two counterclaims, which seek to attack the validity of the underlying decision, are precluded. The plaintiff further argues that the defendants' first counterclaim is barred by General Statutes § 52-557n, which gives municipalities and its employees, agents and officers immunity from claims for damages alleged to have been caused by its denial of a certificate, unless doing so constitutes a reckless disregard for health or safety. The plaintiff also contends that the second counterclaim should be stricken because the defendants have failed to allege facts which describe extreme and outrageous conduct.
The defendants assert that the plaintiff seeks to challenge the court's subject matter jurisdiction improperly by bringing a motion to strike rather than a motion to dismiss. The defendants further argue that, even if properly brought, the contention that the court is without subject matter jurisdiction is without merit. The defendants note that their special defenses and counterclaims assert that the plaintiff's decision was void, which is a recognized exception to the requirement of exhaustion of administrative remedies and, therefore, the court does in fact have jurisdiction to hear these claims.
In its reply brief, the plaintiff retorts that subject matter jurisdiction can be raised at any time and that the court is free to treat the motion to strike as a motion to dismiss, or address the issue of subject matter jurisdiction sua sponte. The plaintiff also argues that Upjohn specifically dismisses the notion that a void decision can be collaterally attacked, and that the defendants rely upon case law that predates Upjohn in making that assertion.
The Supreme Court has "uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal . . . [The court has] also consistently held that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test . . . Moreover, [the court has] ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court . . . All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties — the interested property owner, any interested neighbors and the town — on the decisions of the zoning authorities." (Citations omitted; internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992).
In Upjohn, the court also held "that there are limits to the notion that subject matter jurisdictional defects may be raised at any time . . . [T]he modem law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal . . . Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so." (Citation omitted; internal quotation marks omitted.) Id., 103-104.
In the present case, any purported lack of jurisdiction of the Borough of Fenwick to grant the certificate of appropriateness for the defendants' posts is far from obvious. Moreover, the defendants had the opportunity to challenge the certificate and its conditions on appeal, and there are no strong policy reasons to give them a second opportunity to do so. As the first, second, fifth and sixth special defenses in the present case attempt to challenge the validity of the certificate of appropriateness on the grounds that it was outside of the jurisdiction of the defendant to issue the certificate, that no certificate was required for the posts and that the certificate violates zoning regulations, all of which should have been raised on appeal and are, therefore, precluded by Upjohn, and are stricken.
Notably, the court also recognized in Upjohn that "there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy." Id., 104-105. In the present case, however, the defendants have not plead facts in their first, second, fifth or sixth special defenses that would satisfy this difficult standard. Therefore the court grants the motion to strike as to those special defenses.
The defendants' third special defense, however, does fall within an exception to the Upjohn holding. In the present case, the third special defense challenges the constitutionality of General Statutes § 7-147e, arguing that this section violates the due process clause in that it does not provide for adequate notice when an application is approved with stipulations. In Upjohn, the Supreme Court recognized "the principle that certain actions of zoning authorities may be attacked in an independent action after the time period for an appeal has passed. The application of this principle, however, has generally been confined to cases of defective statutorily required published notice to the public." Id., 101. Accordingly, the court denies the motion to strike the third special defense because, to the extent that the defendants are claiming that their constitutional rights were deprived because they were not provided with proper notice of the plaintiff's decision due to a defective statute, it is akin to this recognized exception to Upjohn.
B. Counterclaims
The plaintiff moves to strike the defendants' first counterclaim on the ground of governmental immunity, as provided for by General Statutes § 52-577. Section 52-557n(b) provides in relevant part: "[A] political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety . . ."
As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because "governmental immunity must be raised as a special defense in the defendant's pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] . . . Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006); see also Vejseli v. Pasha, 282 Conn. 561, 566 n. 6, 923 A.2d 688 (2007).
In the present case, the first counterclaim alleges that the plaintiff was acting in excess of its authority under General Statutes § 7-147a in demanding the application and issuing the certificate, all to the financial detriment of the defendants. It is clear from the face of the counterclaim that, when the plaintiff was engaging in these acts, it was performing a governmental function, namely enforcement of local land use regulations. Moreover, the issuance of a certificate of appropriateness is a discretionary function. See Bruno v. BBC Corporation, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 0071634 (May 22, 2002, Lager, J.) ("[T]he enforcement of zoning regulations is a quintessential discretionary government function . . . Enforcement of zoning regulations, including subdivision approval, requires the appropriate municipal official to exercise his or her judgment as to whether a violation exists and, if so, what enforcement action, if any, to take."). The requirements for governmental immunity under § 7-147a having been satisfied, it is incumbent upon the defendants to plead facts which would, if proven, show that the plaintiff's actions fall under the exception to that statute. Bonington v. Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5008124 (July 27, 2009, Adams, J.). Since the defendants do not allege that the plaintiff's actions constitute a reckless disregard for health or safety, the motion to strike the first counterclaim is granted.
Finally, as to the defendants' second counterclaim, sounding in intentional infliction of emotional distress, the defendants' allegations include only a conclusory statement that the plaintiff's conduct was extreme and outrageous. It is well recognized that "[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., CT Page 14007 supra, 240 Conn. 588. "In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Citation omitted, internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn. App. 484, 491-92, 998 A.2d 1221 (2010). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Id., 492-43.
The defendants' allegation that the plaintiff harassed, intimidated and annoyed them when demanding that they file for, and later comply with, the certificate of appropriateness, without more, does not amount to extreme and outrageous conduct. Since the defendants have failed to allege facts in support of their conclusory statement that the conduct complained of was extreme and outrageous, they have failed to state a legally sufficient cause of action for which relief can be granted. Also, given that paragraphs six, seven, nine and sixteen of the defendants' counterclaims, which are incorporated by reference into the second count, challenge the validity of the plaintiff's underlying decision, which is impermissible under Upjohn as discussed above, it is ordered stricken. Accordingly, the motion to strike the second counterclaim is granted.
In their memorandum in opposition to the plaintiff's motion to strike, the defendants claim, in a footnote, that their second counterclaim does not seek to collaterally attack the plaintiff's order, but is instead based upon the plaintiff's post-order conduct. This, however, is not clear on the face of the pleading, which is all that the court may consider in ruling on a motion to strike. See Faulkner v. United Technologies Corp., supra, 240 Conn. 580 ("In ruling on a motion to strike, the court is limited to the facts alleged in the complaint").
III. Conclusion
For the foregoing reasons, the court denies the plaintiff's motion to strike as to the defendants' third special defense, and grants the motion as to the first, second, fifth and sixth special defenses and two counterclaims.
SO ORDERED.