Opinion
CV186087137
05-20-2019
Mamsco LLC v. WBC Services, Inc. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Blue, Jon C., J.T.R.
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTION TO STRIKE COUNTS I, IV, V AND CERTAIN CLAIMS IN THE PRAYER FOR RELIEF (NO. 107)
Jon C. Blue, Judge Trial Referee
The Motion To Strike now before the court challenges the legal sufficiency of three counts and certain prayers for relief in the Revised Complaint (No. 106). For reasons set forth below, the Motion must be granted in part and denied in part.
This action was commenced by service of process on November 30, 2018. Mamsco, LLC ("Mamsco") is the sole plaintiff. The summons describes the named defendant as "WBC Services, Inc. f/k/a WB Construction Services, Inc." (hereinafter referred to as "WBC Services"). Wendel S. Bueno is named as an additional defendant.
The Revised Complaint consists of five counts, three of which (the First, Fourth, and Fifth Counts) are challenged by the Motion To Strike. The First Count alleges breach of contract against WBC Services. The Second Count alleges unjust enrichment. The Third Count alleges quantum meruit. The Fourth Count alleges "successor liability" against WBC Services. The Fifth Count alleges "guaranty" against Bueno. The prayer for relief claims: (1) money damages, (2) prejudgment interest, (3) reasonable attorneys fees, (4) costs, and (5) postjudgment interest. Two exhibits attached to the Revised Complaint are incorporated by reference: (1) A contract between Mamsco and an entity referred to as "WB Construction, LLC," and (2) a "Continuing Personal Guaranty" signed by Bueno.
The Motion To Strike now before the Court was filed on March 22, 2019. The Motion seeks to strike the First, Fourth, and Fifth Counts of the Revised Complaint "because they are legally insufficient" and the prayers for relief for attorneys fees and costs "as Plaintiff has no basis in which to put forth such claim for relief." The Motion and Mamsco’s Objection were submitted to the court on May 20, 2019.
Although the Motion and the Objection formally clash on the intricacies of the law of successor liability, the principal problem is an apparent confusion of corporate names in the Revised Complaint and its attachments. The summons, as mentioned, describes the named defendant as "WBC Services, Inc f/k/a WB Construction Services, Inc." Paragraph 1 of the First Count of the Revised Complaint (incorporated by reference in the Fifth Count) likewise states that WBC Services was "formerly known as WB Construction Services, Inc." But the contract incorporated by reference into the Revised Complaint; P.B. § 10-29(a); describes the (possibly third) entity with which Mamsco originally contracted as "WB Construction, LLC."
A "complaint includes all exhibits attached thereto." Altima, LLC v. Nepal Motors, Inc., 181 Conn.App. 151, 156, 186 A.3d 78 (2018). The mixture of corporate names in the Revised Complaint and its exhibits creates what the New Yorker sometimes refers to as the "Department of Utter Confusion." Under these circumstances, it is impossible to determine whether Mamsco has pleaded a legally sufficient claim against the named defendant and its alleged guarantor. The First and Fifth Counts must be repleaded to clear up this confusion.
The Fourth Count, alleging "successor liability," does not contain this confusion, at least to this degree. That count straightforwardly alleges that the named defendant "is the successor entity to the business assets" of "WB Construction, LLC." Citing several alleged factors, the Fourth Count claims that the named defendant "is a mere continuation" of "WB Construction, LLC."
Broadly construed, as it must be at this stage, the Fourth Count is not legally insufficient to state a cause of action against the named defendant. Although "the general rule is that where a corporation sells or otherwise transfers all of its assets, its transferee is not liable for the debts and liabilities of the transferor," that rule "is nonetheless subject to four well established exceptions." Robbins v. Physicians For Women’s Health, LLC, 311 Conn. 707, 714-15, 90 A.3d 925 (2014). (Internal quotation marks, brackets, and citations omitted.) One such exception is when "the transferee corporation is a mere continuation or reincarnation of the old corporation." Id., at 715 (Internal quotation marks and citations omitted.) Broadly speaking, the Fourth Count has alleged the existence of this exception in a legally sufficient manner. Whether the exception applies in the present case is a question of fact to be tested at summary judgment or trial.
The legal sufficiency of the challenged prayers for relief must now be considered.
The defendants’ attack on Mamsco’s prayer for "costs" is difficult to understand. If, hypothetically, Mamsco is the "prevailing party," it will be entitled to the recovery of certain costs pursuant to Conn. Gen. Stat. § 52-257. There is nothing legally insufficient in such a prayer for relief.
Mamsco’s prayer for "reasonable attorneys fees" is more problematic. The contract attached to the Revised Complaint agrees that "all attorney fees ... will be added to the amount due." That contract, as mentioned, binds an entity referred to as "WB Construction LLC." Although this particular entity is not referred to (at least with precision) in the First and Fifth Counts, it is specifically referred to in the Fourth Count. Consequently, the prayer for attorneys fees is legally sufficient, at least with respect to the Fourth Count.
For the reasons stated above, the Motion To Strike is granted as to the First and Fifth Counts of the Revised Complaint. It is denied as to the Fourth Count and the prayers for relief.