Opinion
No. HHD-CV-07-5009448
February 25, 2009
MEMORANDUM OF DECISION MOTION TO STRIKE
I STATEMENT OF CASE
On March 12, 2007, the plaintiff filed a two-count complaint alleging breach of contract and unjust enrichment.
"The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party and (4) damages [and] causation." Greco Properties, LLC v. Popp, Superior Court, judicial district of Hartford, Docket No. CVH 7628 (February 15, 2008, Bentivegna, J.), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).
"Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). "Unjust" is defined as "contrary to justice; not just." Black's Law Dictionary (8th ed. 2004). "Parties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims." Stein v. Horton, 99 Conn.App. 477, 485, 914 A.2d 606 (2007).
On January 18, 2008, the defendant filed an answer/special defenses/counterclaim. The defendant alleges the following special defenses: (1) no actual loss; (2) waiver; (3) estoppel; (4) laches; (5) unclean hands; (6) failure to mitigate; (7) unenforceable contract as defendant is improper party; (8) unenforceable contract as unauthorized execution; and (9) liquidated damages clause violates public policy. The defendant alleges as a counterclaim: (1) violation of CUTPA.
On January 23, 2008, the plaintiff filed a request to revise the answer/special defenses/counterclaim. The defendant's objections to the request to revise, dated February 13, 2008, were sustained on March 3, 2008.
On October 22, 2008, the plaintiff moved to strike the first, second, third, fourth, fifth and sixth special defenses. On January 13, 2009, the defendant filed a memorandum in opposition to the motion to strike. As to all the special defenses at issue, the defendant argues that same arguments were made in the request to revise that was denied, and the plaintiff cannot now attempt by a motion to strike that which it was unable to achieve by a request to revise.
II DISCUSSION
CT Page 4182
A Motion to Strike
`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 . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. "If a party wants to challenge the legal sufficiency of a complaint, the proper procedural vehicle is the motion to strike." Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007)."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 . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the [pleading] . . . and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); see Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002).
"It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "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., 240 Conn. 576, 588, 693 A.2d 293 (1997).
"[A] special defense is not an independent action; rather, it is an attempt to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 447 n. 10, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). "Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Practice Book § 10-50, entitled "Denials; Special Defenses," provides: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged."
"The fundamental purpose of a special defense, like other pleadings, is 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." Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). "Under our practice, when a defendant pleads a special defense, the burden of proof on the allegations contained therein is on the defendant." DuBose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971). "Whoever asks the court to grant judgment regarding any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense." C. Tait E. Prescott, Tait's Handbook of Connecticut Evidence (4th Ed. 2008) § 3.3.1, p. 114.
"A defendant's failure to plead a special defense precludes the admission of evidence on the subject . . . Therefore, the defendant's failure to assert [a defense] in his pleadings constituted a waiver of that defense and it should not have been considered by the trial court . . . It would be fundamentally unfair to allow any defendant to await the time of trial to introduce an unpleaded defense. Such conduct would result in `trial by ambuscade' to the detriment of the opposing party." (Citations omitted.) Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn.App. 432, 436-37, 651 A.2d 281 (1994).
Under Practice Book § 10-39, a motion to strike properly applies to special defenses, and because the plaintiff's motion to strike attacks the legal sufficiency of the special defenses, it is procedurally proper. See JP Morgan Chase Bank v. Rodrigues, 109 Conn.App. 125, 130-31 (2008) (reasoning that because the legal sufficiency of a counterclaim is properly challenged by a motion to strike, the defendant could not prevail on its claim that a request to revise should have been filed instead of a motion to strike).
B No Actual Loss
The plaintiff moves to strike the first special defense on the grounds that the defense goes to the measure or mitigation of damages and not liability and is not properly raised by a special defense. The defendant argues that this defense is legally sufficient.
A special defense serves the purpose of informing the court and opposing counsel as to what is at issue; Bennett v. Automobile Ins. Co. of Hartford, supra, 230 Conn. 802; thus, by claiming that the plaintiff suffered no actual loss, the defendant sufficiently informs the court that it intends to contest whether the plaintiff has suffered any actual losses. The motion to strike the first special defense is, therefore, denied.
C Waiver
The plaintiff seeks to strike the second special defense on the ground that it is merely conclusory and does not plead supporting material facts. The defendant contends that this defense is legally sufficient.
"Waiver is the intentional relinquishment of a known right Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 72 Conn.App. 408, 414, 805 A.2d 745 (2002).
In the second special defense, the defendant has sufficiently informed the court and opposing counsel that waiver will be in issue at trial. Waiver must be alleged as a special defense; Del Vecchio v. Del Vecchio, 146 Conn. 188, 195, 148 A.2d 554 (1959); and, by so pleading, the defendant assumes the burden of proof with regard to this issue. The motion to strike the second special defense is denied.
D Estoppel
The plaintiff seeks to strike the third special defense on the ground that it is merely conclusory and does not plead supporting material facts. The defendant argues that this defense is legally sufficient.
"There are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." (Internal quotation marks omitted.) Fadner v. Commissioner of Revenue Services, 281 Conn. 719, 726, 917 A.2d 540 (2007). "[S]ilence will not operate as [an] estoppel absent a duty to speak." (Internal quotations marks omitted.) Celentano v. Oaks Condominium Ass'n., 265 Conn. 579, 615, 830 A.2d 164 (2003).
Unlike waiver, estoppel need not be asserted as a special defense, and, instead, may be asserted by the defendant through a general denial. Del Vecchio v. Del Vecchio, supra, 146 Conn. 195. But see Connecticut National Bank v. Voog, 233 Conn. 352, 367, 659 A.2d 172 (1995) (noting that the defendant bears the burden of proof with regard to equitable estoppel). Though the defendant is not required to specially assert estoppel, it is nonetheless permitted to assert estoppel as a special defense; Glover v. Sheldon, 14 Conn.Sup. 271 (1946); and assume the burden of proving the two elements of estoppel. The defendant's short and plain statement sufficiently informs the court and opposing counsel that the defendant intends to prove estoppel as a defense at trial. The motion to dismiss the third special defense is denied.
E Laches
The plaintiff seeks to strike the fourth special defense on the ground that it is merely conclusory and does not plead supporting material facts. The defendant argues that this defense is legally sufficient.
"Laches occurs when neglect or omission to assert a right taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party so as to operate as a bar to relief in equity . . . Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The mere lapse of time does not constitute laches." (Citations omitted; internal quotation marks omitted.) Traggis v. Shawmut Bank of Connecticut, N.A., 72 Conn.App. 251, 262, 805 A.2d 105 (2002).
In the second count of the complaint, the plaintiff seeks to recover on the equitable theory of unjust enrichment. As such, the defendant appropriately asserts the equitable defense of laches. See Crown Linen v. Apple East of Danbury, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5011649 (April 15, 2008, Rittenband, J.T.R.) (allowing the defense of laches where the plaintiff also brought an equitable claim). The special defense contains sufficient information to apprise opposing counsel and the court as to what will be in issue at trial. The motion to strike the fourth special defense is denied.
F Unclean Hands
The plaintiff seeks to strike the fifth special defense on the ground that it is merely conclusory and does not plead supporting material facts. The defendant contends that this defense is legally sufficient.
The clean hands doctrine is "[t]he principle that a party cannot seek equitable relief or assert an equitable defense if that party has violated an equitable principle, such as good faith. Such a party is described as having `unclean hands.'" Black's Law Dictionary (8th ed. 2004).
"Application of the doctrine of unclean hands rests within the sound discretion of the trial court . . . The doctrine generally should not be employed to insulate the party who asserts it from the consequences of his own wrongdoing." (Citation omitted; internal quotation marks omitted.) A B Auto Salvage, Inc. v. Zoning Board of Appeals, 189 Conn. 573, 578, 456 A.2d 1187 (1983). The party who seeks to invoke the unclean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation. DeCecco v. Beach, 174 Conn. 29, 35, 381 A.2d 543 (1977).
"The doctrine of unclean hands expresses the principle that where a [complainant] seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied . . . for the advancement of right and justice." (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005).
In evaluating a claim of unclean hands, the court must consider "the equitable maxim that one who seeks to show that he is entitled to the benefit of equity must demonstrate that he comes to court with clean hands." (Internal quotation marks omitted.) Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980). The clean hands doctrine "is a legal euphemism which expresses the principle that where a party comes into equity for relief he must show his conduct has been fair, equitable and honest as to the particular controversy in issue." Collens v. New Canaan Water Co., 155 Conn. 477, 492, 234 A.2d 825 (1967). "The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked." Polverari v. Peatt, 29 Conn.App. 191, 202, 614 A.2d 484 (1992).
In the fifth special defense, the defendant adequately informs the court and opposing counsel that it intends to put the doctrine of unclean hands in issue. As the defendant bears the burden to prove that the plaintiff has engaged in willful misconduct, it is appropriately raised as a special defense. The motion to strike the fifth special defense is denied.
G Failure to Mitigate
The plaintiff moves to strike the sixth special defense on the grounds that the measure or mitigation of damages is not properly raised by a special defense. The defendant argues that this defense is legally sufficient.
In breach of contract actions, "[t]he plaintiff clearly ha[s] a duty to exercise reasonable conduct to minimize the damages occasioned by the defendant's breach . . . and the court will measure damages as though [the plaintiff] had acted reasonably . . . The logical corollary of this rule is that the plaintiff was entitled to recover the cost of its reasonable efforts to mitigate the damages occasioned by the breach . . . The injured party is not precluded from recovery . . . to the extent that he has made reasonable but unsuccessful efforts to avoid loss." (Citations omitted; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 332, 514 A.2d 734 (1986).
"Although . . . failure to mitigate damages is not one of the enumerated defenses listed in [Practice Book] § 10-50, Superior Court cases have approved the use of a special defense to plead this claim . . . Moreover, by allowing the failure to mitigate damages to be pled as a special defense, it is clear that the defendant bears the burden of proof on this issue." (Citations omitted.) Profitec, Inc. v. FKI Industries, Inc., Superior Court, judicial district of New Haven, Docket No. CV 99 0427490S (November 24, 2000, Devlin, J.) [ 28 Conn. L. Rptr. 619]. "The defendant bears the burden of proving that the plaintiff failed to exercise reasonable care to mitigate damages." Id. "In a breach of contract action, the defendant bears the burden of proving that the plaintiff failed to exercise reasonable care to mitigate damages." Lynch v. Granby Holdings, Inc., 37 Conn.App. 846, 850, 658 A.2d 592 (1995).
In the present case, the defendant asserts that the plaintiff has a duty to mitigate its damages. The language used by the defendant sufficiently apprises the plaintiff and the court that it intends to argue mitigation as a defense; Bennett v. Automobile Ins. Co. of Hartford, supra, 230 Conn. 802; and, furthermore, the defendant bears the burden of proof regarding the plaintiff's alleged failure to mitigate. The motion to strike the sixth special defense is denied.
CONCLUSION AND ORDER
For the above-stated reasons, the court enters the following orders:
First special defense, no actual loss, the motion to strike is denied.
Second special defense, waiver, the motion to strike is denied.
Third special defense, estoppel, the motion to strike is denied.
Fourth special defense, laches, the motion to strike is denied.
Fifth special defense, unclean hands, the motion to strike is denied
Sixth special defense, failure to mitigate, the motion to strike is denied.