Opinion
HHDCV196108439S
01-14-2020
Jay Maffe v. Heather Loranger
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.
MEMORANDUM OF DECISION RE MOTION TO STRIKE, NO. 106
CESAR A. NOBLE, J.
Before the court is the motion of the plaintiff, Jay Maffe (Maffe), to strike the counter and cross claims of the defendant, counter and cross-claim plaintiff, Heath Loranger (Loranger). Because the court concludes that Loranger’s failure to secure court permission to implead two non-parties and that the cross and counter claims do not arise out of the transactions which is the subject of the plaintiff’s complaint, the motion to strike is granted.
The following facts and procedural history are relevant to this decision. The plaintiff’s three-count complaint is grounded on a common nucleus of facts, that on August 13, 2015, in contemplation of their marriage, the plaintiff gave the defendant a six and a half carat diamond engagement ring valued at $132, 016.00. Following the defendant’s decision not to marry the plaintiff demanded the return of the ring. The defendant refused to return the ring. The first count asserts a claim of equitable entitlement to the return of the ring, the second unjust enrichment and the third conversion. Thereafter the defendant, without filing the requisite motion to implead mandated by Prac. Book § 10-11, served and filed an answer which contained a "cross claim" against the plaintiff, Jay Maffe, and "counter claims" Against two new defendants, Maffe Financial Group, Inc. (Maffe Financial) and Pristine Financial Services, LLC (Pristine Financial). The allegations of the five counts directed at Maffe refer to the romantic relationship and engagement between Maffe and Loranger but also include an additional history involving a business relationship and fraudulent representations by Maffe related thereto that caused Loranger to leave her job, become affiliated with Maffe Financial, co-found Pristine Financial, suffer a breach of a "Deferred Compensation Agreement" and damages related to "lost value in personal property; lost value in leased property; lost revenue in change of a professional position; lost investment in a retirement fund; lost economic opportunity; lost professional opportunity; lost ownership interest in Maffe Financial; lost ownership interest in Pristine Financial; lost deferred income; lost health care coverage and associated expenses; [and] lost life insurance ownership." These allegations are incorporated in all five counts against Maffe, which assert claims, respectively, for fraudulent misrepresentation, unjust enrichment, and breach of contract, fraud and detrimental reliance. The "counter claims" against Maffe Financial and Pristine Financial are identical to the claims against Maffe but add a claim for a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., in that they violate multiple sections of the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq.
The denomination of the pleading against Maffe as a "cross claim" and those against Maffe Financial and Pristine Financial as "counter claims" is, according to convention, incorrect. "Generally speaking, a counterclaim is a cause of action asserted by one or more defendants against one or more plaintiffs while a cross claim is asserted against one or more codefendants." Williams v. Dumais, Superior Court, judicial district of Hartford, Docket No . 207450, 34 Conn.Supp. 247, 250, 385 A.2d 686 (June 28, 1977, Grillo, J.).
Maffe moved to strike the cross and counter claims’ causes of action on several grounds including impropriety of failing to request court approval for the impleading of Maffe Financial and Pristine Financial and that, in any event, the claims against them and that against Maffe do not arise out of the transaction which is the subject of the plaintiff’s complaint. The court agrees.
Because the court agrees with the first two grounds to strike the three claims it need not, and does not, address the remaining grounds advanced by Maffe.
The addition of additional parties to an action not only lies within the discretion but also requires its prior approval. Loranger has not identified the authority upon which she relies for impleading Maffe Financial or Pristine Financial. The only basis to introduce a non-party into an action without court approval is pursuant to a claim of apportionment, not applicable in the present case, pursuant to General Statutes § 52-102b. General Statutes § § 52-102 and 52-102a, which address impleading non-parties, specifically require court approval of a motion to implead. Similarly, Practice Book § 10-11 requires a defendant "to move the court for permission ... to serve a write, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff’s claim against him or her. The actions against Maffe Financial and Pristine Financial, having been brought without prior court approval, are stricken.
Section 52-102 provides that "[u]pon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving, as the case may be ... (1) made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy." "By its plain language, § 52-102 conditions the right of a party to bring new parties into a pending action upon his filing and the court’s granting of a motion for permission to do so." Perrone v. Buttonwood Farm Ice Cream, Inc., 158 Conn.App. 550, 555, 119 A.3d 659 (2015).
Section 52-102a provides in pertinent part that "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded."
Maffe also asserts that the actions against Maffe, Maffe Financial and Pristine Financial, do not arise out of the same transaction, which is the subject of his complaint. The determination of whether the claims arise out of the same transaction "include whether the same issues of fact and law are presented by the complaint and the [cross and counterclaim[s] and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts." South Windsor Cemetery Association, Inc. v. Lindquist, 114 Conn.App. 540, 547, 970 A.2d 760 (2009).
In the present case, the "counterclaims" involve additional parties who played no role in the delivery of the engagement ring and are outside of the constellation of facts necessary to establish the underlying actions asserted for the return of the ring, unjust enrichment and conversion. The claims against Maffe, Maffe Financial and Pristine Financial by Loranger involve issues and proof unrelated to the engagement ring. These issues are business torts that, with the additional elements of Loranger’s claimed damages, rely upon separate and different facts and transactions in relation to the engagement ring. Our courts have used the motion to strike as the procedural vehicle to strike claims that do not arise out of the same transaction. See South Windsor Cemetery Association, Inc. v. Lindquist, supra, 114 Conn.App. 548-49. These claims are therefore stricken.
For the foregoing reasons, Loranger’s cross and counterclaims are stricken.