Opinion
FSTCV166029866S
09-19-2017
Shawna Giancola v. Kevin Lindquist dba
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#114.00)
Kenneth B. Povodator, J.
Background
This is a proceeding arising from a home improvement " situation" --and the word " situation" is in quotation marks because of the somewhat unusual posture of at least some of the claims. The plaintiffs are the homeowners, and the first count of their multi-count complaint asserts a breach of the agreement between the parties, an agreement that the plaintiffs themselves claim does not satisfy the Connecticut Home Improvement Act (hereafter, the Act) requirements for an enforceable/valid home improvement contract. In other words, the plaintiffs are seeking, inter alia, to enforce an agreement that the defendant cannot (generally) seek to enforce due to alleged (and generally conceded) noncompliance with the Act.
Additionally, the plaintiffs are claiming negligence, unjust enrichment, fraud/misrepresentation, and violation of the Connecticut Unfair Trade Practices Act (CUTPA).
In response to the complaint, the defendant has filed an answer and special defenses, along with counterclaims. The plaintiffs have moved to strike all of the special defenses and counterclaims. In responding to the motion to strike, the defendant has acknowledged that the counterclaims are legally insufficient for the reasons stated, such that the motion to strike should be granted in that regard. The defendant however contends that the motion to strike should be denied with respect to the special defenses.
At the outset, the court notes a technical deficiency in the plaintiffs' motion. A motion to strike is required to specify the grounds on which the moving party relies, with some specificity. Stuart v. Freiberg, 102 Conn.App. 857, 927 A.2d 343 (2007). Here, however, the motion to strike simply states that the counterclaims and special defenses should be stricken " because: (1) Defendant's failure to have the requisite contract requirements precludes same as a matter of law pursuant to Connecticut's Home Improvement Act (C.G.S.A. § 20-429); and, (2) Defendant has not properly plead in accordance with the rules of practice." The existence or absence of the " requisite contract requirements" is germane to the viability of the counterclaims, but has no direct/apparent linkage to the sufficiency of special defenses. A claim that the defenses have not been asserted " in accordance with the rules of practice" is not compliant with the requirement of specificity; it is at best conclusory.
The defendants have not raised this technical deficiency, and given the large number of defenses that have been asserted, the court believes it to be appropriate to address the sufficiency of the defenses on the merits, in an effort to narrow the issues that remain to be adjudicated. The special defenses are indicated to be applicable to the claims of breach of contract and unjust enrichment that have been asserted by the plaintiffs. Necessarily, the failure to identify the defenses as applicable to the other causes of action (fraud/misrepresentation, negligence and violation of CUTPA) can only be interpreted as the absence of a claim that any of the defenses are applicable to such causes of action (although in some instances, the nature of the defense indicates that it can only be applicable to one of the non-identified defenses).
The court will not recite in detail the well-established standards applicable to a motion to strike, except as specific circumstances require, e.g., the above reference to Stuart and the principle articulated in that decision.
Discussion
I. First Special Defense
The first special defense simply asserts that the plaintiffs have " failed to properly state a cause of action." The court agrees that that is not a proper special defense. In Connecticut practice, that is essentially a definition of a motion to strike. Practice Book § 10-39 uses seemingly mandatory language: " (a) A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . ." Although the failure to challenge the legal sufficiency of a count or complaint does not preclude a party from challenging, at or after trial, a party's satisfaction of its burden of proving a cause of action (Tedesco v. Stamford, 215 Conn. 450, 457-58, 576 A.2d 1273 (1990)), it is the proper and seemingly exclusive means for doing it by way of pleadings. A motion to strike would allow any pleadings defect to be cured, after a motion is granted, assuming the deficiency were capable of being cured.
See, also, Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535 n.5, 546 A.2d 216 (1988).
Further, the defense does not satisfy the definition of a special defense. Practice Book § 10-50 effectively defines a special defense--" facts which are consistent with [the statements in the plaintiff's complaint] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." This special defense asserts no facts, nor does it imply any facts.
Further, to the extent of that a defendant has the burden of proof with respect to a special defense, what is the burden of proof with respect to a special defense of legal insufficiency? If the case were to be submitted to a jury, how would the jury be instructed on the burden of proof of legal insufficiency, particularly as assigned to a defendant?
The motion to strike is granted as to the first special defense.
II. Second Special Defense
The second special defense asserts that " Plaintiff ordered the Defendant off the job mid-project. Plaintiff is in breach of the agreement between the parties." The court already has noted that the plaintiffs' did not specify the grounds for their motion to strike in the motion with requisite specificity; here, the grounds as articulated in the brief remain insufficiently precise.
The chief argument appears to be derived from the earlier (and conceded) claim that the defendant cannot assert an affirmative claim against the plaintiffs, given the alleged level of noncompliance with the requirements of the Act. After alluding to the definition of a special defense as described in the court's discussion of the first special defense, the plaintiff states: " Additionally, based on Section B, supra, Defendant may not assert any contractual claims against Plaintiffs having not complied with the Home Improvement Act." The plaintiffs have cited no authority, nor provided any logical/legal analysis, as to why the inability of the defendant to assert an affirmative claim under the legally-deficient agreement between the parties (legally deficient in the sense of non-compliance with the Act), prevents any defensive use of that agreement in defending a claim brought by the plaintiffs under that same agreement. Under this theory, once such an " illegal" agreement is signed, the homeowners would be able to sue to enforce performance by the contractor, but the contractor would be unable to say anything related to the utter lack of payment or other compliance by the parties seeking to enforce the agreement.
The plaintiffs then stated that the burden is on the defendant to state a cognizable defense. Once the claimed illegality is put aside, being thrown off the job would seem to be precisely the type of additional facts that are consistent with a claim of failure to complete a contract or failure to complete it properly, but state additional facts that act as a defense.
The motion to strike is denied as to the second special defense.
III. Third Special Defense
The third special defense states that " Plaintiff is estopped by Plaintiff's own conduct--as more fully set forth in Count 1: Paragraph 5, Count 2: Paragraph 7, and Count 3: Paragraphs 5 through 9 of the Counterclaim--from recovering any damages in this action." Those paragraphs effectively stated that the plaintiffs assured the defendant that the defendant would be paid for the work, but that the defendant was not, in fact, paid as required under the agreement.
The plaintiffs correctly recite the requirements for estoppel, but conclusorily state that they are lacking in the defense as alleged. This purported defense is both legally and factually insufficient. 'There are two essential elements to an estoppel: the party must do or say something which 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 something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist.' Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 236, 842 A.2d 1089 (2004). Neither bad faith nor misleading conduct has been sufficiently plead by Defendant, as discussed supra . Additionally, Defendant fails to properly plead any facts tending to show prejudice and, as such, this Special Defense should also be stricken.
The court is required to give the non-moving party the benefit of reasonable (favorable) inferences. Can there be any doubt that the claimed promise to pay for the work to be performed was (if made) intended to induce the defendant to act on that statement, the expectation that there would be payment, and can there be any doubt that the actual work done (of whatever value) was done in reliance on that representation? To the extent that the plaintiffs effectively are seeking to enforce the claimed agreement, or otherwise hold the defendant responsible for the failure to complete the job, is not an unfulfilled promise to pay for the work a proper response, especially given the defendant's inability to treat the contract as enforceable?
It might have been preferable if the defendant had framed the defense to align more directly with the required elements, but the court cannot say that, getting the pleadings a commonsense interpretation, the necessary allegations have been made, explicitly and/or implicitly.
A more pointed question--not identified by the plaintiffs and therefore outside the allowable scope of this decision--would be: estopped from what? Presumably the plaintiffs are seeking the difference between what they paid and the value of what they received (shortfall), which would not seem to be amenable to an estoppel analysis as suggested by this defense. If the plaintiffs are seeking compensation for goods and services beyond what they paid, that would be a matter of contract law as to the breach of contract claim, and would be a prominent factor in any unjust enrichment claim (negative if not preclusive).
The motion is denied as to the third special defense.
IV. Fourth Special Defense
The fourth special defense asserts that the plaintiffs failed to mitigate their damages. Somewhat puzzlingly, the plaintiffs assert that " the failure to mitigate should not be a valid, cognizable special defense because such a claim does not address the sufficiency of the pleadings, but the damages resulting therefrom." A special defense is not intended to " address the sufficiency of the pleadings, " but rather is intended to assert additional facts as contemplated by Practice Book § 10-50.
The plaintiffs rely, in part, upon a trial court decision, Perry v. Perry, No. X10CV126022945S, 2014 WL 2922504, at *7 (Conn.Super.Ct. May 16, 2014). Although quoting from that decision, and that decision's quoting of another decision, the plaintiffs failed to note the introductory language in which the court explicitly noted " that there is a split of authority" on this issue.
To the extent that there is reliance on the absence of mitigation of damages from the list of defenses requiring explicit assertion, the court does not construe Practice Book § 10-50 as containing an exhaustive list. For example, res judicata is identified but not collateral estoppel. Nor are any equitable defenses identified, such as unclean hands or equitable estoppel. Municipal governmental immunity (common law in the past, now General Statutes § 52-557n) is, at least in theory, required to be alleged--and the same would appear to be true of other forms of statutory immunity such as the good samaritan law--even though not contained in the list. What about a claim of waiver?
Nor is the court persuaded by the notion that the defense only goes to extent of damages, rather than negating the viability of the claimed cause of action. Although the language of Practice Book § 10-50 is couched in terms of the existence of a cause of action (" facts which . . . show . . . that the plaintiff has no cause of action"), comparative/contributory negligence may defeat a claim but it also may reduce the damages available. (This may be statutory, but it comes within the scope of defenses that do not necessarily wholly defeat a claim, and must be alleged.) Payment is explicitly identified as a special defense--is it only a defense that must be alleged if the claim is full payment, rather than partial payment (less than full satisfaction of the obligation)?
In Bennett v. Automobile Insurance Co. of Hartford, 230 Conn. 795, 806, 646 A.2d 806, 812 (1994), after recognizing that insurance policy limits and credits often were not matters in dispute and therefore often (as determined in that case) did not have to be alleged by way of defense, as a matter of exercise of supervisory authority, the court mandated that such matters should be raised by special defense going forward, even if not in dispute. Thus, aside from mandating assertion of a defense that does not implicate the existence of a cause of action, there also was the implicit recognition that when in dispute, such matters, even prior to that decision, would likely have been required to be asserted by special defense. Again, these are/were not issues going to the existence of a cause of action but rather limitations on the right of recovery.
Probably the most compelling factor is a practical one. The burden of proof as to failure to mitigate is assigned to the defendant; see, Preston v. Keith, 217 Conn. 12, 584 A.2d 439 (1991). Whether perceived as cause or effect, a special defense is the recognition of a contention for which the defendant bears the burden of proof. In that sense, the failure to mitigate is not distinguishable from other defenses with respect to the burden of proof, with the consequential necessity of charging a jury that the burden of proof lies with the defendant.
To the extent that pleadings are intended to put the opposing party on notice of the claims to be pursued (and for which that party has the burden of proof), there is no legally-cognizable advantage to precluding a defendant from asserting such a defense. It may not be required, but what is the possible--especially practical--harm from its assertion? The failure to assert such a defense, although technically permissible, can only disadvantage a plaintiff, if such a defense were not foreseen. The only advantage to a plaintiff from precluding the defense would seem to be somewhat psychological in nature--the perception of no explicit defense (even though it may be one in function).
Appellate cases have recognized that a party may choose to allege, affirmatively, facts and claims that the party is not required to allege, thereby potentially assuming the burden of proof on such facts or claims; Atlantic Richfield Co . v. Canaan Oil Co., 202 Conn. 234, 237-38, 520 A.2d 1008 (1987); Janow v. Ansonia, 11 Conn.App. 1, 8, 525 A.2d 966 (1987). A concrete and occasionally-arising situation can be found in negligence cases, where, by statute, the burden of proof is on the defendant to allege and prove contributory negligence (General Statutes § 52-114)--while it therefore is unnecessary for a plaintiff to do so, is it legally " wrong" for a plaintiff to assert due care in the complaint? Here, the burden already is on the defendant, and if a party may (inferentially) plead facts that it does not have to prove or disprove (absent such an allegation), there is no reason to preclude the pleading of facts that the party does have the burden of proving.
The court rejects the application for " pleading purity" inherent in a request to strike a defense that is the defendant's to prove, whether or not it is explicitly alleged.
The motion to strike the fourth special defense is denied.
V. Fifth Special Defense
The fifth special defense asserts unclean hands, referring to allegations asserting that the plaintiffs did not pay the defendant notwithstanding promises that the defendant would be paid, that the defendant was thrown off the job, etc. In moving to strike this defense, the plaintiffs identify the nature of such a defense, and then aptly point out that " [t]he facts incorporated by Defendant in support of this [defense] allege nothing other than those which may, en arguendo, support a breach of contract for nonpayment."
The court returns to its observation at the outset--the defenses asserted are directed only to the claims of breach of contract and unjust enrichment. Unclean hands, as an equitable defense, rarely has any role in a contract/breach of contract claim, and there is no indication as to why it might be applicable here. With respect to unjust enrichment, unjust enrichment already requires the court to undertake an equitable analysis of the situation, and as correctly noted by the plaintiffs, there is nothing alleged that is affirmatively inequitable in the behavior of the plaintiffs as alleged. Under the analysis of the defendant, every claimed breach of a contractual obligation, especially nonpayment, would be susceptible to automatic conversion into an equitable claim of unclean hands.
The motion to strike the fifth special defense is granted.
VI. Sixth Special Defense
The sixth special defense relies upon the claimed bad faith of the plaintiffs. That defense, in turn, incorporates an allegation in the now-stricken counterclaim: " Plaintiff/Defendant-in-Counterclaim refused to properly compensate Defendant/Plaintiff-in-Counterclaim pursuant to the agreement(s) between the Parties." The defense then goes on to state that such conduct " precludes Plaintiff from repudiating the agreement between both parties."
The mere failure/refusal to pay, especially in the context of an agreement that is invalid under the Act, is not inherently bad faith. More critically here, the defendant seems to adopt a hybrid circular-bootstrap (if not a non-sequitur) argument--the failure to pay in accordance with an unenforceable contract " precludes Plaintiff from repudiating the agreement between both parties." Somewhat simplistically, the defendant is arguing that the failure to honor an unenforceable contract precludes claiming that the contract is unenforceable.
Whether the plaintiffs should have paid the defendant more than was paid, and the proper treatment of what was paid, are considerations that will need to be addressed in connection with a determination of any damages that the plaintiffs may be entitled to receive. However, the nonpayment of more than was paid, framed in terms of a bar against repudiation of an unenforceable agreement, is not a defense in this context.
The motion is granted as to the sixth special defense.
VII. Seventh Special Defense
The seventh special defense states that the plaintiffs have " not suffered any actual injury or loss as a result of the alleged violations of the Connecticut Unfair Trade Practices Act, codified in C.G.S. § 42-110a et seq." This appears to be an attempt to negate or deny the existence of an ascertainable loss, a requirement of a claim arising under CUTPA.
To the extent that the defendant seems to want the plaintiffs to quantify all of their damages, that is not a requirement of a CUTPA claim. The defendant claims that the defense is based on the plaintiffs' failure to " cite a dollar amount of actual damages incurred by Plaintiff due to the fault of the Defendant." That is not a requirement of CUTPA, especially as a matter of pleading. The defendant has not cited any authority for such a requirement, and there is clear Supreme Court authority to the contrary. To the extent that the Appellate Court affirmed the judgment of the trial court on the ground that the plaintiff's failure specifically to produce an " itemization" of her damages was fatal to her CUTPA claims, however, we disagree with such reasoning. Black's Law Dictionary defines the verb " itemize" as " [t]o list in detail; to state by items, " and gives the example of " an itemized bill." Black's Law Dictionary (9th Ed. 2009). Requiring a plaintiff to list her " damages in detail, " however, would be tantamount to requiring her to provide proof of damages in the form of a specific dollar amount, something this court has expressly--and repeatedly--declined to do . . . Proof of actual damages in the form of a specific dollar amount is not required to sustain a CUTPA claim. Marinos v. Poirot, 308 Conn. 706, 716-17, 66 A.3d 860, 867-68 (2013).
If specificity as to damages is not required as a matter of proof, it cannot be required as a matter of pleading.
However, as noted earlier, cases such as Atlantic Richfield and Janow recognize the right of a party to make assertions implicating assumption of a burden otherwise assigned to the adverse party, so the issue is whether the court should strike this defense or instead treat this as an assumption by the defendant of the burden of disproving the existence of an ascertainable loss.
The court suspects that the plaintiffs did not perceive this consequence of the assertion of this defense, and might well be content to allow the defendant to disprove the existence of an ascertainable loss--effectively creating a presumption that there was an ascertainable loss, subject to disproof by the defendant.
The court is denying the motion as to this defense, but notes that it would entertain a request for reconsideration if the plaintiffs wish to argue that they prefer retaining the burden of proof as to ascertainable loss.
As noted earlier, the introductory language to the special defenses seems to have limited them to the claims of breach of contract and unjust enrichment (" If the Plaintiff suffered Breach of Contract and Unjust Enrichment, as alleged in the Complaint, it was caused by Plaintiff's own Failure to Perform in accordance with contract. Defendant asserts the following Special Defenses:"). It is clear, however, that this defense has no bearing on those claims and can only be applicable to the CUTPA count of the plaintiffs' complaint.
VIII. Eighth Special Defense
The eighth special defense states that the plaintiffs have " not alleged any intent on the part of Defendant, providing a complete defense to any claim of fraud." Yet again, the defendant is negating a claimed element of a particular claim being advanced by the plaintiffs (and not the breach of contract claim or the unjust enrichment claim). There is the additional problem of negating something that is not truly an element of the claim. The court will reproduce the defendant's argument in its entirety. Connecticut's Appellate Court ruled in Citino v. Redevelopment Agency, 51 Conn.App. 262, 275-76, 721 A.2d 1197 (1998), " The essential elements of a cause of action in fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal." (Citations omitted; internal quotation marks omitted.) Count 4: Paragraph 17 of the Complaint alleges the Defendant " knew or should have known" a representation reportedly made to the Plaintiff to be false. This grossly expands the Citino elements of fraud. If intent is not alleged by the Plaintiff, and Defendant reiterates it has not been alleged, such a Special Defense may be invoked to defeat a claim of fraud. For this reason, Plaintiff's motion to strike the eighth Special Defense should be denied.
Although there is a conclusory assertion of a failure to assert required elements, with a corollary claim that allowing the allegations to stand would " grossly expand" the elements of fraud as identified in Citino, the actual complaint tracks the elements identified in Citino closely. After incorporating earlier paragraphs, paragraphs 16-20 of the fraud count state:
16. The Defendant made a false representation of fact when he advised the Plaintiffs that the patio was 1016 square feet.
17. The Defendant knew or should have known this representation to be false and contrary to Connecticut law.
18. The representation was made to induce the Plaintiffs to pay more for improvements to their residence.
19. The false representation caused the Plaintiffs to act to their detriment.
20. The Defendant's conduct was intentional and/or done with conscious disregard for the truth and therefore, the Plaintiff is entitled to punitive damages.
In addition to language that tracks Citino, the plaintiff correctly notes that if there were a deficiency in the way that the fraud count is worded, that is a matter properly addressed by motion to strike, not special defense. As discussed in connection with the first special defense, identifying pleading irregularities is not a factual matter to be raised as a defense but rather can be raised by motion to strike, and if a required element of a cause of action is not proven (without regard to whether alleged), there are post-evidence remedies that can be invoked.
The motion to strike is granted as to the eighth special defense.
IX. Ninth Through Eleventh Special Defenses
The court will treat the ninth through eleventh special defenses in the aggregate because they do not come within the scope of anything subject to characterization as a defense--they identify, at most, evidentiary issues.
9. Contract between the parties noted that the scope of the work was subject to change. All verbal and/or written changes were agreed to by the parties before being executed.
10. Plaintiff continually harassed Defendant with text messages and emails at unreasonable hours of the day regarding the project.
11. Plaintiff willfully and repeatedly directed Defendant and Defendant's workers to do tasks completely outside the scope of the agreement between the parties.
The ninth special defense identifies factors that would go into determination of the scope of the agreement that the plaintiffs seek to enforce; the allegations do not negate a cause of action nor even suggest a diminution in damages allowable.
The eleventh count seems to be the opposite in focus, asserting that the plaintiffs directed the defendant's workers to do work outside the agreement. Aside from the lack of clarity as to whether such work was done or simply requested, it is not clear how or why this would not be part of any presentation relating to scope of work done, in connection with claims of breach of contract and/or unjust enrichment.
The tenth count appears to be simply a matter of venting. Nothing more needs to be said.
In the opposition to the motion to strike, the defendant qualifiedly acknowledges problems with the tenth and eleventh special defenses, suggesting that they are matters of less-than-artful pleading. The court need not address the possibility of there being a pleading-based cure to the deficiencies in those defenses, it being sufficient to determine that they are, as presently framed, deficient.
Conclusion
Only seeking to preserve the factual allegations of the counterclaims to the extent that they are incorporated by reference into special defenses, the defendant has conceded the legal insufficiency of the counterclaims; the counterclaims are barred and therefore they are stricken.
This type of situation is addressed in Practice Book § 10-45.
The court has identified the deficiencies in a number of the defenses. Some are borderline matters, implicating the question of a party's ability to assume the burden of proof on an issue otherwise presumptively assigned to the adverse party. Some are simply not cognizable as defenses.
Accordingly, the motion to strike is granted with respect to the counterclaims. The motion to strike further is granted with respect to the first, fifth, sixth, and eighth through eleventh special defenses. The motion is denied as to the second through fourth and seventh special defenses.