Opinion
No. CV 07-5011649
April 15, 2008
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE
PROCEDURAL HISTORY
The plaintiff has brought this action in two counts. The first count claims that the plaintiff and the defendant entered into a written contract whereby the plaintiff agreed to provide linen supplies and services to the defendant in exchange for the defendant's promise to pay for same. It is further alleged that the defendant terminated the agreement by refusing to accept and pay for linen services and supplies under the terms of the contract. The plaintiff then terminated the contract and demands one-half of the aggregate weekly service charge for each unfulfilled week of the contract term, unpaid invoices and unreturned/damaged merchandise plus costs and attorneys fees. In addition, the plaintiff claims, inter alia, that the defendant is obligated to pay $15,600.00 in liquidated damages. The second count of the complaint is a claim for unjust enrichment.
The defendant responded by filing an answer and eight special defenses as well as a counterclaim alleging in the first count, Fraudulent Inducement, the second count, a claim for a Declaratory Judgment, and in the third count, a claim that the plaintiff violated the Connecticut Unfair Trade Practices Act ("CUTPA"). The plaintiff then filed the instant motion to strike the fourth, fifth, seventh, and eighth special defenses as well as the second counterclaim.
A hearing was held on the motion to strike on April 14, 2008.
STANDARD OF REVIEW
"The purpose of a motion to strike is to contest . . . the legal insufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996). These principles of law apply to special defenses and counterclaims.
ISSUES AND FINDINGS
1. As to the fourth special defense, the claim is that the contract is unconscionable, void and unenforceable in that it offends public policy and that there is an unenforceable penalty clause (liquidated damages) which is also against public policy. The dispute between the parties is whether or not the contract is against public policy. The plaintiff does not seem to object to the claim that the liquidated damages clause as a penalty would be against public policy but claims that the contract is not against public policy merely because the liquidated damages clause may be against public policy. However, what is notable in the fourth special defense is that it incorporates paragraphs 1 through 9 of the first special defense which has not been challenged, and that makes a case for fraudulent inducement of the contract, which itself would be allegedly against public policy. Therefore, the fourth special defense does set forth a claim that both the contract and the liquidated damages provision are both against public policy. Accordingly, the motion to strike count four is denied.
2. The fifth special defense claims that "[t]he plaintiff has failed to mitigate its damages, if any." Plaintiff contends that this special defense is invalid because it does not go to whether or not the basic cause of action as to liability is denied. There is a split of authority among superior court judges as to whether mitigation of damages is a valid special defense. Preston v. Keith, 217 Conn. 12 (1991), does indicate that mitigation of damages is a valid special defense. The burden of proving a failure to mitigate damages is on the defendant. In Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 593-94 (1993), the court held that the defendant was not entitled to a jury charge of contributory negligence because it did not raise it as a special defense, but since it did raise a failure to mitigate damages as a special defense, it was entitled to such a charge. Accordingly, this Court finds that failure to mitigate damages is a valid special defense, and the motion to strike count five is denied.
3. As to the motion to strike the seventh special defense which is that the plaintiff's claims are barred by the Doctrine of Waiver inasmuch as it has waived its rights to enforcement of the alleged contract because of its conduct, it also incorporates paragraphs 1 through 9 of its first special defense. In oral argument, however, the parties agreed that that special defense should be stricken. Accordingly, the seventh special defense is stricken.
4. The eighth special defense incorporates paragraphs 1 through 9 of the first special defense and then alleges that "the plaintiff's claims are barred by the Doctrine of Laches because of the plaintiff's inexcusable six-month delay in contacting Crown regarding the claims set forth in the complaint, with no delivery of linens or other indication of the existence of a contract between plaintiff and defendant and that unduly prejudiced defendant's rights to promptly initiate a declaratory judgment action, contest the existence of the alleged contract, or cancel the alleged contract and avoid the accrual of interest allegedly due under the alleged contract." The plaintiff claims that defendant has not alleged sufficient facts to support a laches defense and that this special defense is available only in equitable actions and not in breach of contract actions. However, the second count of the complaint alleges unjust enrichment, which is an equitable action. As can be seen by the special defense, the defendant claims there has been an inexcusable delay that has prejudiced the defendant. That is sufficient for a laches defense. See John H. Kolb Sons, Inc. v. G. L. Excavating, Inc., 76 Conn.App. 599, 612, 613 (2003). Accordingly, the motion to strike the eighth special defense is denied.
5. The plaintiff has moved to strike the counterclaims second count for declaratory judgment saying in effect that it is unnecessary because the matter can be resolved based upon the complaint and the special defenses. Both parties agree that whether or not to strike a declaratory judgment complaint is within the discretion of the Court. The defendant is concerned it will have no cause of action if the plaintiff should withdraw its complaint at some time. If that happens, the special defenses may be moot because you cannot have special defenses to a non-existing complaint. Therefore, in order to maintain an action against the plaintiff on the issue of whether or not the alleged contract is valid, the declaratory judgment count of the counterclaim is necessary. Accordingly, the motion to strike count two, declaratory judgment, of the counterclaim is denied.