Opinion
Docket No. NBSP-46216
November 16, 2006
MEMORANDUM OF DECISION MOTION TO STRIKE MOTION TO TRANSFER
I STATEMENT OF THE CASE
This is a summary process action based on lapse of time. The plaintiff seeks immediate possession of the premises. The defendants have filed a counterclaim alleging that the plaintiff is discriminating against the defendants due to their lawful source of income and familial status in violation of General Statutes §§ 46a-64c and 46a-98a. The defendants had sought an injunction enjoining the plaintiff from evicting the defendant, damages and/or any other relief the court deems just and suitable. The plaintiff seeks to strike the defendants' counterclaim because the defendants have vacated the premises and the issue is now moot. The defendants have objected to the motion to strike and have also filed a motion to transfer.
II DISCUSSION A Motion to Strike
"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 [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any . . . counterclaim . . . or . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39 (a).
"A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn. App. 495, 496, 495 A.2d 286 (1985). "Thus, [i]f facts provable in the [counterclaim] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772, 802 A.2d 44 (2002).
Both parties have alleged in their pleadings that the defendants have vacated the premises by midnight on August 31, 2006, and, therefore, possession of the premises is no longer an issue.
B Counterclaim
"[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action. See Ballentine's Law Dictionary (3d Ed.) p. 279." Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 160, 459 A.2d 525 (1983).
The defendants have alleged in their counterclaim discriminatory actions by the plaintiff in violation of General Statutes § 46a-64c and § 46a-98a. They argue that "Connecticut General Statutes 46a-64c holds in pertinent part that `it shall be a discriminatory practice to refuse to rent. . . . a dwelling to any person because of. . . . . . lawful source of income. . . . . familial status.'" The statute provides in relevant part:
a) It shall be a discriminatory practice in violation of this section:
(1) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income or familial status.
(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income or familial status. 46a-64c.
General Statutes § 46a-98a provides in relevant part:
Any person claiming to be aggrieved by a violation of section 46a-64c or 46a-81e or by a breach of a conciliation agreement entered into pursuant to this chapter, may bring an action in the Superior Court, or the housing session of said court if appropriate within one year of the date of the alleged discriminatory practice or of a breach of a conciliation agreement entered into pursuant to this chapter. . . . The court shall have the power to grant relief, by injunction or otherwise, as it deems just and suitable. In addition to the penalties provided for under subsection (g) of section 46a-64c or subsection (f) of section 46a-81e, the court may grant any relief which a presiding officer may grant in a proceeding under section 46a-86 or which the court may grant in a proceeding under section 46a-89. . . .
The plaintiff has moved to strike the counterclaim on the grounds that the defendants have vacated the premises and the issue before the court, immediate possession of the premises, is now moot.
"A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists." Domestic Violence Services of Greater New Haven v. FOIC, 240 Conn. 1, 7, 688 A.2d 314 (1997)). "Mootness implicates the subject matter jurisdiction of [the] court." Sadlowski v. Miller, 206 Conn. 579, 583, 538 A.2d 1052 (1988). A motion to strike is not designed to attack subject matter jurisdiction, but rather the legal sufficiency of a pleading. Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993) ("[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike. . . . the practical difference being that if a motion to strike is granted, the party whose pleading is stricken is given an opportunity to replead in order to avoid a harsh result.") A mootness challenge should be raised by a motion to dismiss. Westport v. State, 204 Conn. 212, 217-218, 527 A.2d 1177 (1987).
In this case, the plaintiff's motion to strike does not properly raise a mootness challenge. Mootness is not an issue of legal sufficiency, but rather of subject matter jurisdiction. A motion to dismiss would have been the proper vehicle to raise a mootness to the counterclaim. Nevertheless, the court will address the plaintiff's arguments in support of his motion to strike.
The plaintiff has challenged the legal sufficiency of the counterclaim. Because the defendants have vacated the premises, the plaintiff contends that the issue is now moot, and the defendants may no longer assert the counterclaim. The defendants have argued that they have a right to a file a counterclaim pursuant to General Statutes § 46a-64c and § 46a-98a. In Ansonia Acquisition I. LLC v. Francis, Superior Court, judicial district of Hartford, Docket No. HDSP-102429 (November 18, 1999, Tanzer, J.) ( 1999 Ct. Sup. 14795), the court denied a motion to strike a special defense of discriminatory practices based on General Statutes § 46a-64c and § 46a-98a. The trial court reasoned that:
In a direct action under General Statutes § 46a-98a, a tenant may seek to enjoin a wrongful eviction, in addition to making a claim for damages. Such an action, which is privileged, could be joined with the summary process action or asserted as a counterclaim. The concern expressed in the concurring opinion in Fellows v. Martin about impairment of the usefulness of the summary process procedure as an expeditious remedy was addressed in the majority opinion as follows:
We disagree that such a development is sanctioned by our opinion. First, it should be noted that our holding does not involve equitable considerations generally, but declares only that "equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding." (Emphasis added.) Second, even if we were to preclude such equitable defenses in the summary process action itself, a separate action raising the same equitable considerations could be filed in the housing court as a basis for enjoining the eviction and would presumably be tried with the summary process action, if the right to possession was at issue. To allow the same matters to be raised in the summary process action without the necessity of commencing a separate suit for injunctive relief should result in a' more expeditious resolution of all the issues relating to possession in a single action. . . — (Emphasis supplied.) Fellows v. Martin, 217 Conn. 57, 70, fn (9).
In asserting a claim of racial discrimination as a special defense, the tenant would be limited in the nature of the relief to the right to possession; whereas in an independent action, the tenant would be afforded a panoply of relief under the fair housing statute. Ansonia Acquisition I. LLC v. Francis, Superior Court, judicial district of Hartford, Docket No. HDSP-102429 (November 18, 1999, Tanzer, J.) ( 1999 Ct. Sup. 14795, 14800-14801).
In Fellows, the Supreme Court expressly held that "equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding. If, then, the tenant's equitable claim was properly raised, it was properly before the trial court." Fellows v. Martin, 217 Conn. 57, 62, 584 A.2d 458 (1991).
In the present case, the counterclaim was properly before the court. Although the defendants are no longer seeking "an injunction enjoining the plaintiff from evicting the defendants," the counterclaim still seeks damages and any other just and suitable relief for the alleged discriminatory actions of the plaintiff. While a motion to strike may be used to contest the legal sufficiency of a prayer for relief, the plaintiff seeks to strike the entire counterclaim. See Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 298 n. 4, 478 A.2d 257 (1984); Kelman v. Post, Superior Court, judicial district of New Haven, Housing Session, Docket No. CVNH 93055808 (September 17, 1993, Riddle, J.).
Taking the facts as alleged and construing them in the manner most favorable to the defendants, the court finds that the defendants have sufficiently stated a cause of action with respect to their counterclaim. The counterclaim has withstood the challenge to its legal sufficiency.
C Motion to Transfer
The defendants have moved to transfer the counterclaim to the regular civil docket. Both the statutes and the practice book allow for such a transfer. "Any action or the trial of any issue or issues therein may be transferred, by order of the court on its own motion or on the granting of a motion of any of the parties, . . . from the superior court for one judicial district to the superior court in another court location within the same district . . ." General Statutes § 51-347b (a). "Any cause, or the trial of any issue therein, may be transferred from a judicial district court location to any other judicial district court location . . . by order of a judicial authority (1) upon its own motion or upon the granting of a motion of any of the parties, . . ." Practice Book § 12-1.
The court has the authority to transfer a case to the housing civil docket or the regular civil docket. "Despite the familiar reference to the judicial district courtroom where the judge assigned to hear housing matters presides as the `housing court,' our statutes create no such special jurisdictional entity. `Housing matters' are included within the jurisdiction of the Superior Court, just as family relations matters, small claims matters and juvenile matters are so included. General Statutes 51-164s. The Superior Court, pursuant to General Statutes 51-164t and Practice Book 2, has been divided into four divisions: family, civil criminal and housing. The family, civil and criminal divisions have been subdivided into `parts,' but not the housing division. Practice Book 3, 4, 5 and 5A. The evident purpose of the statutes and rules relating to the divisions of the Superior Court was not to impose any jurisdictional limitation on judges but to achieve greater efficiency in the administration of the judicial department. The Superior Court judges assigned to each division or part thereof are authorized by Practice Book [12-1] to transfer cases to different court locations as well as between judicial district and geographical area courts. A judge assigned to the housing division at a particular judicial district is authorized by 47a-70 (a), after a case has first been placed on the housing docket, to `transfer such matter to the regular docket for a geographical area or judicial district if he determines that such matter is not a housing matter or that such docket is more suitable for the disposition of the case.' Savage v. Aronson, 214 Conn. 256, 262, 571 A.2d 696 (1990).
Clearly, the court has the authority to transfer the counterclaim pursuant to General Statutes § 51-347b (a) or § 47a-70 (a).
III CONCLUSION AND ORDER
For the above-stated reasons, the court denies the plaintiff's motion to strike the defendants' counterclaim. The defendants' motion to transfer is granted. The court orders the counterclaim transferred from the summary process docket to the housing civil docket.