Opinion
No. CV 10 6011417 S
April 11, 2011
MEMORANDUM OF DECISION
FACTS
The plaintiff, Central Connecticut Acoustics, Inc., filed a summons and complaint against the defendants, New York-Connecticut Development Corp. (New York-Connecticut) and Dylwesky, Goldberg Brenner, LLC (DGB), on May 25, 2010. The complaint alleges that as a result of New York-Connecticut's failure to pay for services that were fully performed on the premises leased by DGB, New York-Connecticut is liable for breach of contract, unjust enrichment and CUTPA violations, and DGB is liable for unjust enrichment.
The plaintiff filed a motion to withdraw DGB on August 12, 2010. The defendant filed an answer and twenty-one special defenses on December 10, 2010. The plaintiff filed a motion to strike the defendant's special defenses on January 13, 2011 on the grounds that: (1) all of the special defenses are legally insufficient because they state mere legal conclusions and fail to allege any facts in support thereof; (2) the second and twenty-first special defenses are brought using an improper procedural vehicle; (3) the eighth, eleventh, twelfth and nineteenth special defenses constitute improper denials; and (4) the twelfth, seventeenth and twentieth special defenses are inappropriate special defenses. The defendant did not file an objection. The matter was heard at short calendar on January 31, 2011.
New York-Connecticut is the sole remaining defendant.
The defendant was not present at short calendar.
In order to be more efficient, the analysis of the special defenses are not in numerical order, rather they are grouped based on the plaintiff's arguments.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "Whenever a party wishes to contest . . . the legal sufficiency of any answer to any 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 . . . part thereof." Practice Book § 10-39. "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and [construes] 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).
I
The plaintiff avers that the first, third through seventh, ninth, tenth, thirteenth through sixteenth and eighteenth special defenses are legally insufficient solely because they are mere legal conclusions which are not admissible. "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." Grant v. Bassman, 221 Conn. 465, 472-73, 604 A.2d 814 (1992). Special defenses are intended "to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Internal quotation marks omitted.) Whalen v. Gathoni, Superior Court, judicial district of New Haven, Docket No. CV 07 5012497 (February 8, 2010, Wilson, J.). "Connecticut is a fact pleading state." Vejseli v. Pasha, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172369 (July 21, 2004, Matasavage, J.), aff'd on other grounds, 282 Conn. 561, 923 A.2d 688 (2007). "[T]he total absence of any factual allegations" specific to the dispute "renders [the special defense] legally insufficient." U.S. Bank National Assn. v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009, Abrams, J.) ( 48 Conn. L. Rptr. 345, 346).
A
The defendant alleges in its first special defense that the plaintiff fails to state a cause of action. The court recognizes that "there 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." CT Page 9058 Carney v. Federal Express Corp., Superior Court, judicial district of New Haven, Docket No. CV 02 0467894 (February 19, 2003, Arnold, J.). "[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." Vejseli v. Pasha, supra, Superior Court, Docket No. CV 02 0172369. 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." Coss v. Steward, Superior Court, judicial district of New London, Docket No. CV 08 5007541 (May 20, 2009, Martin, J.). "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." Pozoukidis v. Bridgeport, supra, Superior Court, Docket No. CV 97 0346988.
This court is 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." 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]. The motion to strike as to the first special defense is denied.
B
The defendant's third, fifth and thirteenth special defenses assert that the plaintiff has breached the contract between the two parties. Its fourth special defense asserts a defense of non-conforming goods while its sixth special defense alleges waiver and/or estoppel. The defendant's seventh special defense alleges unclean hands on the part of the plaintiff. The defendant's fourteenth through sixteenth and eighteenth special defenses allege defenses based on documentary evidence, justification, the proposition that any damages are unrelated to the defendant's actions and the proposition that damages are not recoverable as a matter of law, respectively.
The above special defenses alleged by the defendant are not supported by any facts. They are mere legal conclusions which fail to apprise the court or opposing counsel of the issues to be tried. The defendant does not provide any factual allegations to demonstrate the veracity of its legal conclusions. Mere assertions of legal conclusions unsupported by factual allegations are legally insufficient to plead a special defense. Therefore, the motion to strike the third through seventh, thirteenth through sixteenth and eighteenth special defenses are granted.
C
The ninth and tenth special defenses also assert breach of contract. Not only must a special defense plead facts which support its legal assertions, see Practice Book § 10-1 ("Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies"), those facts must be consistent with the allegations of the plaintiff's complaint. See Practice Book § 10-50 ("No facts may be proved under either a general or special denial except such as show that the plaintiff's statements are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged"). If a special defense fails to allege facts that the plaintiff has no cause of action for reasons other than the inaccuracy of the facts alleged in the complaint, the defendant has failed to assert a legally sufficient special defense. See Rocque v. Goodhall's Garage, Inc., Superior Court, judicial district of Hartford, Docket No. CV 01 1803983 (February 4, 2002, Wagner, J.T.R.) ( 31 Conn. L. Rptr. 330).
In the present case, the facts alleged in the ninth and tenth special defenses controvert facts alleged in the plaintiff's complaint, namely that the plaintiff fully complied with the terms of the contract. The defendant's facts are not consistent with the plaintiff's statements and, thus, are not sufficient to assert a legally sufficient special defense. Therefore, the motion to strike the ninth and tenth special defenses are granted.
III
The plaintiff avers that the second and twenty-first special defenses, which assert a defense of lack of jurisdiction and lack of subject matter jurisdiction, respectively, are brought improperly. Rather, the plaintiff argues, the appropriate vehicle to assert lack of jurisdiction is a motion to dismiss, which, the plaintiff argues, was waived by the defendant's filing of an answer. A motion to dismiss is the appropriate vehicle for asserting a claim of lack of personal jurisdiction. See Practice Book § 10-31. That claim, however, is waived if not raised by a motion to dismiss within thirty days of filing an appearance and prior to the filing of an answer to the complaint. Practice Book §§ 10-30, 10-32 and 10-6.
The court assumes that the defendant is asserting a special defense of lack of personal jurisdiction when it states that the "Court lacks jurisdiction over New York-Connecticut Development Corporation."
"[A] motion to dismiss is [also] the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Accordingly, a claim of lack of subject matter jurisdiction is not properly brought by way of a special defense . . ." Buddington v. Sterling Winthrop, Inc., Superior Court, judicial district of New Haven, Docket No. CV 92 0327296 (November 12, 1993, Zoarski, J.) [ 10 Conn. L. Rptr. 358]. The proper manner in which to raise the issue of subject matter jurisdiction is a motion to dismiss and not a special defense.
In the present case, the defendant avers both lack of jurisdiction and lack of subject matter jurisdiction. In addition to the fact that a special defense is the improper vehicle to raise a claim of lack of jurisdiction, an appearance was filed by the defendant on October 20, 2010 and its answer was filed on December 10, 2010. Since the claim of lack of jurisdiction was raised more than thirty days after filing an appearance and the defendant has filed an answer, the second special defense fails. Since the proper vehicle to bring a lack of subject matter jurisdiction claim is a motion to dismiss and not a special defense, the twenty-first special defense fails. Even if the court could properly consider jurisdiction as a special defense, the defendant fails to allege any facts to support its legal conclusions. Therefore, the second and twenty-first special defenses are legally insufficient and the motion to strike as to those special defenses is granted.
IV
The plaintiff avers that the eighth, eleventh, twelfth and nineteenth special defenses constitute improper denials and that they fail to provide an adequate factual basis in support of them. Practice Book § 10-52 states that: "No special defense shall contain a denial of any allegation of the complaint or counterclaim unless that denial is material to such defense."
The eighth special defense reads: "Plaintiff has not sustained any damages as a result of the complained of conduct of Defendant New York-Connecticut Development Corp., which conduct is expressly denied." The nineteenth special defense reads: "Any allegations or prayers for relief set forth in the Complaint that are not expressly admitted, denied, or otherwise responded to are hereby denied." Both the eighth and nineteenth special defenses constitute denials of the plaintiff's allegations that it sustained damages as a result of the defendant's conduct and is entitled to relief for such damages. As such, they are prohibited by Practice Book § 10-52. Moreover, the defendant fails to allege any facts to support its legal conclusions which renders the special defenses legally insufficient. Thus, the motion to strike the eighth and nineteenth special defenses are granted.
The eleventh special defense reads: "The damages, if any, incurred by Plaintiff, which damages are expressly denied, have been expressly caused by the action or inaction of the plaintiff." Though technically a denial of the plaintiff's allegations, a claim of contributory negligence is proper, as it is a requirement of Practice Book § 10-53. The defendant, however, has failed to "specify the negligent acts or omissions on which the defendant relies" as directed by the section. Without such specifics, the defendant has failed to allege any facts upon which the claim of contributory negligence is based and the plaintiff has no notice of the issues to be tried. Without any facts, the defendant has failed to provide any support of its legal conclusion. Therefore, the motion to strike as to the eleventh special defense is granted.
Practice Book § 10-53 states: "If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies."
The twelfth special defense reads: "Plaintiff failed to take any steps to mitigate damages allegedly sustained." Though there is a split of authority as to whether mitigation of damages is appropriately pleaded as a special defense, the majority of Superior Court judges have held that it is appropriate. See Rosario v. Sikorsky Aircraft, supra, Superior Court, Docket No. CV 10 6006454. Thus, the special defense is not a mere denial. The defendant, however, merely asserts the legal conclusion that the plaintiff failed to mitigate its damages without alleging any facts that demonstrate any act or omission committed by the plaintiff. The defendant's failure to plead any facts demonstrating the plaintiff's failure to mitigate damages renders the defendant's twelfth special defense legally insufficient. Therefore, the motion to strike as to the twelfth special defense is granted.
V
The plaintiff argues that the seventeenth and twentieth special defenses, in addition to being legally insufficient for merely asserting legal conclusions, are not properly pleaded as special defenses. The seventeenth special defense asserts: "At all relevant times, Defendant New York-Connecticut Development Corp. acted in good faith and fulfilled [its] duties under any contract or agreement entered into with Plaintiff." Though the court has not found case law to support the plaintiff's argument that good faith is not an appropriate issue to be specially pleaded, the special defense must fail nonetheless for its failure to provide any facts to support the defendant's legal conclusions. As is discussed above, the failure to provide facts renders a special defense legally insufficient. Therefore, the motion to strike as to the seventeenth special defense is granted.
The twentieth special defense states: "Defendant New York-Connecticut Development Corp. reserves the right to amend and to assert any additional separate defenses based upon the discovery of additional facts ascertained through continuing ongoing investigation and discovery." As discussed previously, a special defense must plead facts which are consistent with the plaintiff's allegations but which show that he has no cause of action, Practice Book § 10-50, and must inform the plaintiff of the position being taken by the defendant.
In the present case, the twentieth special defense does not demonstrate that the plaintiff does not have a cause of action, rather it merely asserts a right that any defendant has under the Practice Book. Lasser v. Leisure-Lift, Inc., Superior Court, judicial district of New Haven, Docket No. 327342 (March 11, 1993, Stanley, J.) [ 8 Conn. L. Rptr. 501]. "If facts are discovered which suggest the right to add a special defense not now alleged, then the proper procedure is to make a motion to amend the answer and special defense." Torres v. State, Superior Court, judicial district of New Haven, Docket No. CV 05 4011817 ( 42 Conn. L. Rptr. 513) (December 11, 2006, Corradino, J.). Therefore the motion to strike as to the twentieth special defense is granted.
CONCLUSION
For the foregoing reasons, the motion to strike is denied as to the first special defense and is granted as to all other special defenses.