Opinion
No. CV 05-5004501
April 18, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this case an action has been brought in two counts; the first count alleges breach of contract, the second count makes a claim of unjust enrichment. The basis of the claim is a demand by the plaintiff for allegedly unpaid fees for snow and ice removal at a condominium complex.
The defendant has filed an answer and a special defense directed at both counts. The plaintiff filed a motion to strike, there was an objection based in part on the fact that the motion itself did not articulate the basis for the motion. The plaintiff has now filed a revised Motion to Strike which attempts to satisfy this procedural requirement. The defendant objects to the revised motion arguing the plaintiff "has no authority under the Practice Book to revise its motion to strike." On the other hand, there is nothing the Practice Book barring such a motion and a too technical reading of the rules of practice would turn them into a straight-jacket.
In this case there has been no argument held on the original motion to strike and the procedural objection to the filing of the revised motion consists of one paragraph in three sentences; no great or unfair burden is placed on the party opposing the revised motion by the mere fact of allowing it to go forward. The substantive objection to this revised motion relies on the same brief filed against the original motion to strike. Under the circumstances, the court concludes it should address the legal issues raised by the revised motion on the merits.
(1)
The defendant first argues that the plaintiff's motion to strike its special defense is a "speaking" motion to strike and is thus not permitted, since in addressing such a motion, the court must confine itself to pleadings and not import facts outside the pleadings. To address this aspect of the objection to the motion to strike and provide a setting for further discussion by the court, the court will set forth the relevant portions of the pleadings.
In the first count alleging breach of contract, paragraph 3 states the following:
"3. On or about October 4, 2005, the parties entered into a binding contract whereby the plaintiff agreed to provide snowplowing and related services for the defendant condominium complex and the defendant agreed to pay the plaintiff $19,000 plus tax for said services during the 2005 and 2006 season."
A copy of the alleged contract is attached to the complaint. Paragraph 4 claims the "defendant received the benefit of the plaintiff's services and has failed to pay for the plaintiff's snow plowing services in full."
The second count lies in unjust enrichment and contains by incorporation the above quoted paragraphs 3 and 4.
The answer denies paragraphs 3 and 4 in both the counts then asserts the following special defense which is the pleading under attack:
" First Special Defense At the time plaintiff alleges to have entered into a contract with the defendant, plaintiff Cheshire Services, LLC was a dissolved limited liability company having no legal status to enter into binding contracts. The contract alleged to have been entered into by the parties is void and unenforceable."
In its motion to strike the special defense, the plaintiff in part clearly relies on facts outside of the pleadings to rebut the allegations of the special defense. For example, in one of its briefs it states:
Cheshire Services, LLC is now and has been doing business as Cheshire Construction Services, LLC since February 2004. The line of business, principals and agents for service are the same for both Cheshire Services, LLC and Cheshire Construction Services, LLC. The defendant is aware of this fact and it knowingly and voluntarily entered into a contract with the plaintiff for the removal of snow and related services on or about October 4, 2005. The exact trade name under which the contract was entered is immaterial, as it did not prejudice the defendant. The defendant knew with whom it was bargaining and it accepted the benefits of that bargain.
Based on its acceptance of services from Cheshire Construction, the defendant should be estopped from asserting a defense that challenges the corporate existence and legal authority of the plaintiff to enter into the contract.
Clearly this aspect of the plaintiff's argument turns its motion into that bane of the common law — a speaking demurrer.
The facts just referred to are stated nowhere in the pleadings. They refer to facts outside the special defense to rebut that special defense. Therefore they do not test the "legal sufficiency" of the special defense, a prerequisite for any P.B. § 10-39 motion to strike, no matter the pleading at which it is aimed, but rather import facts outside the pleadings to undermine the factual basis for the legal proposition stated in the special defense. This factual attack on the special defense is a "speaking demurrer." It should be noted that to support its position that this aspect of its motion is not a speaking demurrer the plaintiff cites State v. Bashura, 37 Conn.App. 745 (1981, Shea, J.); plaintiff's counsel purports to quote from that case by including the following language from it at page 478: "It is elementary that (a motion to strike) must rely wholly upon the factual allegations of the pleadings addressed." The quote is ended with a period, but counsel neglects to render the full sentence which reads:
"It is elementary that (a motion to strike) must rely wholly on the factual allegations of the pleading addressed and may not contain affirmative factual allegations which could only be proved by evidence." (Emphasis by court.) The excluded language rebuts the plaintiff's suggestion that its factual assertion to support the motion to strike is anything more than a "speaking demurrer."
Finally, it should be noted that the motion to strike is the modern name for a common-law demurrer. The Supreme Court has said as noted in Horton and Knox commentary to P.B. § 10-39, that "the purpose and scope of a motion to strike are identical to those of a demurrer." Cavallo v. Derby Savings Bank, 188 Conn. 281, 283 (1982). In fact, Rochon v. Preferred Accident Insurance Co., 114 Conn. 313, 315 (1932) held that in that case "the demurrer admitted the facts alleged in the special defense and other facts could not be assumed or imported into it to affect the decision upon the demurrer." That is not surprising since the logic of a demurrer or special defense is that it admits the facts set forth in the pleading under attack whether that pleading is a complaint or special defense but says that despite that admission, the pleading is legally insufficient. In McNich v. The American Brass Co. et al, 139 Conn. 44, 48 (1952), the court again recognized this in saying, "the plaintiff's demurrer admitted facts well pleaded in the special defenses." Thus, a plaintiff cannot go outside the pleading under attack such as a special defense to rebut the facts pleaded therein, as the plaintiff seeks to do here. All of this is not an unfair restriction on plaintiffs facing what they believe is a special defense that cannot be factually substantiated. As Horton Knox point in Conn. Superior Court Civil Rules in their commentary to P.B. § 17-45, several cases support the proposition that, "a court may consider special defenses if the facts entitle the plaintiff to judgment on the underlying claim and the defenses have no merit."
If the plaintiff's position were to be accepted then in deciding a motion to strike a special defense, the court should consider facts outside the pleadings unsupported by affidavit apparently. Should the defendant be allowed to file affidavits or documentation challenging such facts? A motion to strike cannot be turned into a watered down summary judgment procedure. This is not what the common-law demurrer had in mind. The court therefore agrees with the defendant to the extent and only to the extent that the plaintiff cannot oppose the special defense, as it does, by importing facts outside the pleadings.
(2)
The court, however, is constrained to grant the motion to strike on the basis of language in City v. Dana Investment Corp., 249 Conn. 1, 17 (1999). There the court said, "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."
The court would refer to the previously quoted operative paragraph of the complaint (para. 3), the denial thereof in the answer and the special defense.
This special defense does not pleading facts consistent with the complaint's contract allegations, it denies the existence of a viable contract.
Another way of looking at it is to say that by its answer denying the contract claim in paragraph 3, the defendant is denying there was a viable contract. The special defense merely reiterates a particular way in which paragraph 3 does not assert a viable contract claim which can be raised under the general denial. In Barr v. Norwalk First Taxing District, 151 Conn. 53 (1963) domestic water customers filed suit against the defendant district claiming the rates they were charged were unfair. At page 60-61 the court said the following:
The defendant filed two special defenses to the complaint in addition to an answer which in effect amounted to a general denial. These defenses alleged that the rates charged the plaintiffs did not produce an unfair or exorbitant return to the defendant and that they were similar in amount to those charged other suburban consumers similarly situated. The court overruled the demurrer to the special defenses. As the plaintiffs alleged that the rates were unreasonable and discriminatory, it was incumbent upon them to prove those allegations, and the defendant under its general denial could offer counter evidence of the reasonableness and fairness of the rates. Practice Book 102. The special defenses were unnecessary. The error in overruling the demurrer is harmless, however, in the light of the trial court's conclusion that the plaintiffs had not proved that the rates were unreasonable and discriminatory.
The special defense here is also unnecessary and is not a true special defense. The motion to strike is granted.