Opinion
No. CV 04 0200941 S
August 5, 2005
MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' SPECIAL DEFENSES
Procedural Background
This case involves a dispute among family members as to the requested partition by sale of a single-family home and property known as 37 Westcott Road, Stamford, Connecticut, occupied by the defendant William H. McCormick. It is undisputed that the property is owned in undivided one-fifth interests as tenants in common by: (1) the plaintiff James A. McCormick, Jr; (2) the plaintiff Stefan A. McCormick, Jr. as Ancillary Administrator of the Estate of Francis C. McCormick, Jr. deceased; (3) the defendant Lynn Rogers Maxwell as Executrix of the Estate of Ann T. McCormick, deceased; (4) the defendant Katherine R. Mitros, formerly known as Katherine R. McCormick; and (5) the defendant Andrea E. McCormick individually and/or as trustee under the will of James E. McCormick. William H. McCormick is joined as a defendant because of certain contractual claims and recorded positions he has against the property, and against certain of the co-tenants owning the property, to be discussed herein. Claiming that a partition in kind would be impractical because of the physical characteristics of the property as a single-family dwelling, the plaintiffs request a partition by sale pursuant to Conn. Gen. Stat. § 52-500.
Stefan A. McCormick individually, and the plaintiff Annette Hedblom are beneficial owners of this one-fifth interest.
§ 52-500 provides, in subsection (a): "Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale [as opposed to a partition in kind under § 52-495] will better promote the interests of the owners."
The defendants Andrea McCormick, individually and/or as trustee, Kathryn R. Mitros, and William H. McCormick have filed two special defenses to which the plaintiffs' CT Page 11769-fm instant motion to strike is directed. The First Special Defense claims that the plaintiffs should be denied the relief of partition because "they have unclean hands" in that: (a) the plaintiffs Stefan A. McCormick and Annette Hedblom have breached an agreement to sell their interests in the property to the defendant William H. McCormick for which he has sued them for breach of contract requesting money damages and the remedy of specific performance of the contract in a separate civil action pending before this court; and (b) the defendant James A. McCormick, Jr. tortiously interfered with the foregoing contractual relationship between the defendant William H. McCormick and the plaintiffs Stefan A. McCormick and Annette Hedblom by persuading them to breach said contract and that a count for tortuous interference with a contractual relationship against James A. McCormick, Jr. is included in the foregoing separate civil action.
The case is captioned William H. McCormick v. Stefan Arne McCormick et al., Docket No. CV03-0196643S.
The Second Special Defense entitled "Exercise of equitable discretion to deny relief of involuntary sale" is premised on factual allegations that the defendant William H. McCormick has encumbrances against the property recorded on the Stamford land records prior to the initiation of this partition action, consisting of recorded purchase and sale agreements with the defendants Lynn Rodgers Maxwell, Executrix, Kathryn R. Mitros, and Andrea D. McCormick to sell William H. McCormick their interests in the property, and recorded notices of lis pendens against the interests in the property of the plaintiffs Stefan Arne McCormick and Annette Hedblom, filed in conjunction with the service of the foregoing breach of contact civil action against them by William H. McCormick. It is claimed that these recorded encumbrances against the property are prior in right to the notice of lis pendens recorded at the commencement of this partition action, and that any court-ordered sale of the property would therefore be subject to the rights of William H. McCormick under those earlier recorded documents, thereby depressing the value of the property in the eyes of potential bidders to the point that it would be inequitable if the plaintiffs were granted the relief of involuntary partition by sale. CT Page 11769-fn
The plaintiffs have moved to strike both special defenses on the ground that they are legally insufficient and cannot be maintained as they are not recognized by Connecticut courts as permissible defenses to a partition action. The defendants object to the motion to strike, responding that there is no appellate Connecticut authority exempting equitable actions seeking partition of real estate from these fundamental principles of equitable jurisprudence.
Discussion
A motion to strike is the proper vehicle to test the legal sufficiency of a special defense. Practice Book § 10-39. Nowak v. Nowak, 175 Conn. 112, 116 (1978). In ruling on a motion to strike, the court has an obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536 (1992). "Moreover . . . what is necessarily implied in an allegation need not be expressly alleged." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000). This includes the facts necessarily implied and fairly provable under the allegations. It does not include, however, the legal conclusions or opinions alleged in the challenged pleading. S.M.S. Textile v. Brown, Jacobson, Tillinghast, Lahan King, P.C., 32 Conn.App. 786, 796 (1993) cert. denied 228 Conn. 903 (1993).
In this case the parties have focused their briefs and arguments on whether or not "unclean hands" and "exercise of equitable discretion" are recognized special defenses to a partition action. But, as the foregoing authorities attest, a special defense is not tested by the label affixed to it. It is tested by the facts alleged or necessarily implied, or facts fairly provable under the facts alleged in the special defense. Under our statutes, a partition in kind is said to be a matter of right, Penfield v. Jarvis, 175 Conn. 463, 468 (1978), while partition by sale, which is the relief requested in this case, is a discretionary remedy which may be ordered when it better promotes the interests of the owners than actual division. Borzencki v. Estate of CT Page 11769-fo Stakum, 195 Conn. 368, 372-74 (1985). Against that backdrop, there have been limited cases allowing special defenses to partition cases, but the test remains whether or not the facts alleged in the special defense ". . . would defeat [the plaintiffs'] actual right to compel a partition." Centerbank v. Curran, 1991 Ct.Sup. 7307, 6 CSCR 804 (No. 0109612, J.D. of Waterbury, August 13, 1991 Murray, J.) Construing the facts alleged in the so-called "unclean hands" special defense most favorably to the defendants, the defendant William H. McCormick has a valid claim for breach of contract in litigation against the plaintiff Stefan A. McCormick, which will result in a an order of specific performance compelling that interest to be conveyed to the defendant William H. McCormick pursuant to the contract. That, coupled with his uncontested contract right to purchase the three one-fifth interests held by other defendants would give the defendant William H. McCormick ownership of an 80% undivided interest in the property, with the other 20% undivided interest continuing to be owned by James A. McCormick, Jr. James A. McCormick, Jr. is a plaintiff in this case, actively seeking a judgment of partition. There is no claim that he has ever entered into or breached any contract to sell his interest in the property. The only fact alleged in the special defense regarding him is that he has been sued for tortuous interference with a contractual relationship involving another one-fifth interest in the property (that owned by the plaintiff Stefan A. McCormick, Executor), which is a tort claim for money damages against James A. McCormick, Jr. not giving rise to any in rem remedy against the property interest he holds in his own name. There is no fact alleged in the First Special Defense, then, which would defeat his actual right as a 20% owner of the property to compel a partition, and the special defense therefore does not allege facts which would totally bar this action. The court has considered and rejected defendants' argument that claim for partition of the plaintiff James A. McCormick, Jr. should be barred on general equitable principles under the doctrine of "unclean hands" because of his alleged act of persuading Stefan A. McCormick and Annette Hedblom to breach their contract to sell their interests in the property to William H. McCormick. The party seeking to invoke the unclean hands doctrine to bar CT Page 11769-fp equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation, and the court enjoys broad discretion whether or not to invoke the doctrine. Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, cert. denied, 261 Conn. 933 (2002). There is no allegation in this special defense that James A. McCormick, Jr. acted willfully toward the defendants. Construing the facts most favorably to the defendants, the alleged misconduct of James A. McCormick Jr. blocked the sale of the interests of Stefan A. McCormick and Annette Hedblom to William H. McCormick, thereby giving them standing to be plaintiffs in this partition action. But, as previously discussed, their standing to sue is not essential to the case. The alleged misconduct was not "rewarded" by enabling the partition case. See, Eldridge v. Eldridge, 244 Conn. 523, 537 (1998) (defendant wife's misconduct in failing to disclose increased earnings was rewarded by an award of attorneys fees in her favor; award set aside under the doctrine of "unclean hands"). See, also Thompson v. Orcott, 257 Conn. 301, 314-18 (2001) (Doctrine of unclean hands applied to bankruptcy fraud by foreclosure plaintiff who misled bankruptcy trustee into abandoning mortgage in question thereby making it possible to start foreclosure case in Superior Court) where the Supreme Court quoted from Bird v. Plunkett, 139 Conn. 491, 496-97 (1953) "No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim on his own iniquity . . ." The alleged misconduct of James A. McCormick Jr., in the court's view, does not measure up to these standards and does not merit the forfeiture of his right to seek a partition of this property.
For instance, in Centerbank v. Curran, 1991 Ct.Sup. 7307, 6 CSCR 804 (No. 0109612, J.D. of Waterbury, August 13, 1991) (4 Conn. L. Rptr. 375)Judge Murray was able to identify only four recognized defenses to partition cases: a claim of adverse possession against the property; the existence of a trust CT Page 11769-fr interest in the property if partition would defeat the purposes of the trust; an agreement prohibiting partition; and a claim of invalidity in the plaintiff's procurement of title.
The Second Special Defense relies upon the recorded purchase and sale agreements and a notice of lis pendens against this property filed by the defendant William H. McCormick prior to the commencement of this partition action. Those encumbrances against the title to the property have priority over the partition claims, and any sale ordered in this case would have to respect that priority under Conn. Gen. Stat. § 47-10 and offer the property to bidders subject to the recorded contracts in favor of William H. McCormick and the notice of lis pendens filed in connection with his breach of contract CT Page 11769-fq action against Stefan A. McCormick and Annette Hedblom. This no doubt would have a chilling effect on the foreclosure auction, but it is well established that the difficulty of making a partition is not grounds for denying the remedy. Scovil v. Kennedy, 14 Conn. 349, 360 (1841); Johnson v. Olmstead, 49 Conn. 509 (1881); Penfield v. Jarvis, supra. These arguments are more appropriate as to whether or not a sale should be confirmed by the court, or whether or not this case should be stayed pending the outcome of the breach of contract/tortuous interference case. See, Centerbank v. Curran, supra, at p. 2.
Order
For the foregoing reasons the Plaintiffs' Motion to Strike Defendants' Special Defenses dated December 2, 2004 (No. 106) is granted.
Alfred J. Jennings, Jr., Judge