Opinion
No. CV 05 4004611 S
September 20, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( # 107)
FACTS
The plaintiff, Lisa Bratt, brought this action against the defendant, Jerrold S. Klein, seeking the partition of real property that she and the defendant own as joint tenants. The plaintiff alleges that because the property contains a single-family dwelling the property is not physically divisible, thus she is seeking a partition of the property by sale and a division of the proceeds between the parties according to their respective rights in the real estate, pursuant to General Statutes § 52-500.
Citibank Federal Savings Bank (Citibank) is also a defendant as it holds two mortgages on the subject property. As the motion to strike does not involve Citibank, for the purposes of this memorandum, any reference to the defendant is to Jerrold S. Klein only.
General Statutes § 52-500 provides in relevant part: "(a) Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners."
The defendant asserts three special defenses to the plaintiff's partition action. First, that the plaintiff should be denied the equitable relief she seeks based on the doctrines of unclean hands, laches and equitable estoppel. Second, that the plaintiff failed to contribute to the maintenance and upkeep of the property in accordance with the parties' agreement. Lastly, that the plaintiff's intentional misconduct interfered with the defendant's property rights, diminished its value, resulted in waste and damaged the defendant's credit standing.
Additionally, the defendant filed seven counterclaims for accounting, contribution, unjust enrichment, quantum meruit, conversion, theft and constructive fraud.
On July 13, 2005, the plaintiff filed a motion to strike the defendant's thee special defenses and the first, second, third and fourth counterclaims on the grounds that they are legally insufficient. The plaintiff also moved to strike the fifth, sixth and seventh counterclaims on the grounds that they are not properly united with this partition action. On August 10, 2005, the defendant filed an objection to the motion, accompanied by a memorandum of law.
DISCUSSION
A motion to strike is the proper method to contest the legal sufficiency of any special defense or counterclaim or the joining of two or more causes of action which cannot properly be united in one complaint. Practice Book § 10-39(a). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "[F]or the purpose of deciding a motion to strike, the court must accept the well pleaded facts as true." Connecticut Carpenters' Benefit Funds v. Burkhard Hotel Partners II, LLC, 83 Conn.App. 352, 362-63 n. 5, 849 A.2d 922 (2004). Additionally, the court "must construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Heinz v. California Federal Bank, 78 Conn.App. 351, 359, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
As previously mentioned, the plaintiff moves to strike the defendant's special defenses. "The permissible defenses to the right to partition are those which would defeat [the plaintiff's] actual right to compel such a partition." Centerbank v. Curran, Superior Court, judicial district of Waterbury, Docket No. 0109612 (August 13, 1991, Murray, J.) ( 4 Conn. L. Rptr. 375) ( 6 C.S.C.R. 804). "The right to partition is well settled and its history has been documented thoroughly . . . The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy." (Internal quotation marks omitted.) Fernandes v. Rodriguez, 255 Conn. 47, 55, 761 A.2d 1283 (2000).
"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 . . . the existence of a trust interest in the property if partition would defeat the purposes of the trust . . . an agreement prohibiting partition . . . and a claim of invalidity in the plaintiff's procurement of title." (Citations omitted.) Centerbank v. Curran, supra, 6 C.S.C.R. 804. There are no facts alleged in the defendant's special defenses that would defeat the plaintiff's right as a co-owner of the property to compel a partition. The plaintiff's motion to strike the defendant's special defenses is granted.
The plaintiff moves to strike the defendant's first counterclaim for an accounting on the grounds that this count is legally insufficient. The plaintiff argues that the defendant failed to allege that the plaintiff took the benefit of the property in greater proportion than the amount of her interest in the property, as specified in General Statutes § 52-404(b). The plaintiff is correct, there is no such allegation. The defendant, however, argues that he does not rely on § 52-404(b). Instead, the defendant alleges a partnership or joint venture with the plaintiff and seeks a partnership accounting. "In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties." (Internal quotation marks omitted.) Brace v. Solli, Superior Court, judicial district of Hartford, Docket No. CV 02 0817757 (August 8, 2005, Shapiro, J.). The plaintiff's motion to strike the defendant's first counterclaim is denied.
General Statutes § 52-404(b) provides in relevant part: "When two or more persons hold property as joint tenants, tenants in common or coparceners, if one of them occupies, receives, uses or takes benefit of the property in greater proportion than the amount of his interest in the property, any other party . . . may bring an action for an accounting or for use and occupation against such person and recover such sum or value as is in excess of his proportion."
The plaintiff moves to strike the defendant's second counterclaim on the grounds that it is legally insufficient. Reading the allegations broadly, the defendant has sufficiently alleged a counterclaim for contribution. He alleges that he incurred expenses for the necessary maintenance of the property, that these were common liabilities with respect to the property and, therefore, he is seeking contribution from the plaintiff. The plaintiff's motion to strike the second counterclaim is denied.
The plaintiff's argument regarding the defendant's third and fourth counterclaims is limited to one sentence: "Defendant's claims for unjust enrichment and quantum meruit mirror his claim for contribution." The court is "not required to review issues that have been improperly presented to [it] through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim . . . receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). The plaintiff's motion to strike the defendant's third and fourth counterclaim is denied.
With regard to the fifth, sixth and seventh counterclaims, the plaintiff moves to strike on the grounds that these claims are improperly joined with the present partition action. Practice Book § 10-10 requires that a counterclaim arise out of the transaction which is the subject of the plaintiff's complaint. The purpose of § 10-10 "is to enhance judicial economy, [to avoid] multiplicity of litigation, and [to avoid] piecemeal disposition of what is essentially one action . . . Whether those purposes are furthered by permitting a counterclaim is a matter of the court's discretion . . . The transaction test is one of practicality and rests on whether a duplication of judicial effort and resources would result if the subject of the complaint and counterclaim were tried in separate actions." (Citations omitted; internal quotation marks omitted.) Ceci Bros., Inc. v. Five Twenty-One Corp., 81 Conn.App. 419, 423, n. 3, 840 A.2d 578 (2004). The factual and legal issues raised by the defendant's counterclaims for conversion, theft and constructive fraud do not arise from the ownership of real property, which is the subject of the present partition action. The plaintiff's motion to strike the defendant's fifth, sixth and seventh counterclaims is granted.
For the foregoing reasons, the court grants the plaintiff's motion to strike the special defenses because they are irrelevant to the plaintiff's right to partition and strikes the fifth, sixth and seventh counterclaims because they are improperly joined with the present partition action. The court denies the motion as to the first, second, third and fourth counterclaims.
RICHARD J. TOBIN
JUDGE TRIAL REFEREE