Opinion
No. CV 10-6003662-S
September 20, 2011
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTIONS TO STRIKE, #108 and 109
The plaintiff filed identical motions to strike, #112 and #113, on September 19, 2011, with revised exhibits.
The plaintiff, Cugliari Realty, LLC ("Cugliari") moves to strike special defenses one and two filed by the defendant, Joseph Plante, on May 3, 2011, on the grounds that they are legally insufficient as a matter of law pursuant to res judicata. The plaintiff also is seeking to strike the defendant's counterclaim in its entirety on the same ground.
Cugliari and Plante entered into a written, five-year lease in August 2004, whereby Plante agreed to lease commercial space from Cugliari to use the premises to operate his business. Upon the expiration of the lease on August 29, 2009, Plante continued to occupy the premises on a month-to-month tenancy. On October 1, 2009, Plante sent a letter to Cugliari stating that he was terminating the lease effective November 15, 2009. As of November 16, 2009, Plante had not paid the November's rent, and as a result, Cugliari sent a letter to Plante and requested that he remove all of his items from the property. Cugliari also requested that Plante restore the premises to its original condition. On December 8, 2009, Plante sent a letter stating he was refusing to pay the November rent and would not agree to pay Cugliari to restore the property. Cugliari commenced this action on January 21, 2010, with a return date of February 23, 2010.
On January 28, 2010, Plante commenced a verified lockout complaint in the New Britain Housing Court, and a hearing was scheduled for February 4, 2010. On that date, the parties entered into an agreement, which agreement was entered as a stipulated judgment by the court.
The docket number for the action in Housing Court is 1 CVN-1001-2219.
The agreement only provided that Plante would receive his personal property that was remaining in the premises.
After the stipulation was entered in the lockout complaint, the plaintiff filed an amended complaint on March 16, 2010, in response to the defendant's request to revise. The defendant filed an answer, special defenses, and a counterclaim. The plaintiff is seeking to strike the special defenses and the counterclaim in its entirety based upon the legal principle of res judicata.
Under Practice Book § 10-39(a)(5), a motion to strike may challenge the legal sufficiency of the allegations of any answer to any complaint or any part of that answer, including any special defense contained therein. Mingachos v. CBS, Inc., 195 Conn. 91, 109, 491 A.2d 368 (1985).
A special defense is used by a defendant who seeks the admission of evidence that is not inconsistent with the claim of the plaintiff, but nevertheless tends to show that the plaintiff has no cause of action. See Practice Book § 10-50. Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); Pawlinski v. Allstate Insurance Co., 165 Conn. 1, 6, 327 A.2d 583 (1973).
"In ruling on a motion to strike, the court must accept as true the facts alleged in the special defense and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted, internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
The defendant's first special defense asserts that he was illegally locked out of the premises in violation of General Statutes § 47a-43a. Since the issue involving the defendant's claim of lockout has been adjudicated and a final judgment has entered, the plaintiff argues that the defendant should not be permitted to raise this issue once again via special defenses and counterclaim in this separate action. The defendant's second special defense asserts that the plaintiff's action in locking the defendant out constituted a violation of the Connecticut Unfair Trade Practices Act. Because this defense is directly related to the first special defense, to the extent that it is barred by res judicata, the second special defense must also be stricken.
The defendant's counterclaim count one asserts that the defendant was illegally locked out of the premises in violation of General Statutes § 47a-43a, and the allegations are identical to the allegations forming the basis for the defendant's verified lockout complaint dated January 28, 2010. Count two of the counterclaim is a derivative assertion, stemming from count one, and alleges that the plaintiff's actions in locking out the defendant constituted a violation of the Connecticut Unfair Trade Practices Act. The plaintiff contends that count one is barred by res judicata, and because count two is a derivative claim stemming from count one, it, too, must be stricken.
Res judicata must be specially pleaded when raised against special defenses pursuant to Practice Book § 10-57. Section 10-57 states in relevant part: "Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply." See Homeside Lending, Inc. v. Martin, Superior Court, judicial district of New London at New London, Docket No. 561110 (August 7, 2002, Martin, J.) (citing § 10-57 and denying motion to strike special defense on the ground of res judicata). It is submitted that the plaintiff's motion to strike the defendant's special defenses and counterclaim must be denied.
Similarly, res judicata cannot be the basis of a motion to strike the defendant's counterclaim because it must be specially pleaded pursuant to Practice Book § 10-50. Section 10-50 states in relevant part: "Facts which are consistent with [the plaintiff's] statements [of fact] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . res judicata must be specially pleaded." E.g., Statewide Grievance Committee v. Presnick, 216 Conn. 135, 137 n. 3, 577 A.2d 1058 (1990) (noting that raising res judicata by motion to strike is a "procedural irregularity"); Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994) ("Res judicata . . . is a special defense that is considered after any jurisdictional thresholds are passed"). "[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata . . ." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 867 n. 8, 675 A.2d 441 (1996).
For the foregoing reasons, the plaintiff's motion to strike the special defenses is denied. The plaintiff's motion to strike the counterclaim in its entirety is also denied.