Opinion
No. CV04 400 18 62
October 14, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#112)
On September 3, 2004, the plaintiff, Meehan, Meehan Gavin, LLP, filed a one-count complaint against the defendant, Domenic Paniccia. This action arises out of the plaintiff's representation of Domenic Paniccia's son on various criminal charges. The plaintiff alleges that the defendant provided a retainer of $20,000 to the firm. The plaintiff further alleges that at the completion of the firm's services, an additional balance of $9,164.25 remained due and owing. The plaintiff alleges that, despite demands, the defendant has neglected to pay the money it owes the plaintiff.
The complaint was also against Patricia Paniccia but the action against her has been withdrawn.
The defendant answered the complaint on September 14, 2004. The plaintiff filed a certificate of closed pleadings on November 19, 2004. The trial list claim was filed on October 12, 2004. Trial began on July 20, 2005. The defendant thereafter filed a two-count counterclaim on August 5, 2005, alleging in the first count that the plaintiff breached the retainer agreement, and in the second count that the plaintiff violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-100 et seq.
On August 19, 2005, the plaintiff filed a motion to strike both counts of the defendant's counterclaim, accompanied by a memorandum of law in support. The defendant did not file a memorandum in opposition.
"[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 . . . 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." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
The plaintiff moves to strike the counterclaim on the grounds that the counterclaim is untimely because it was filed ten months after the filing of the certificate of closed pleadings and fifteen days after the start of evidence in trial.
In support of the motion, the plaintiff argues that a defendant may interpose a counterclaim at any time before the pleadings are closed. Although it is within the discretion of the trial court to allow for the amendment of various pleadings after the pleadings are certified as closed, the court should not allow the submittal of entirely new pleadings adding new causes of action at that time. The plaintiff also notes that the defendant did not allege the counterclaim in his answer as required in Practice Book § 10-54. To prevent prejudice to the plaintiff and needless delay of the resolution of this matter, the plaintiff requests that the defendant's counterclaim be struck in its entirety.
It is neither unreasonable, nor contrary to the law, for the court to determine that pleadings filed after the pleadings have been closed, and after trial has commenced, have been untimely filed. Ivimey v. Watertown, 30 Conn.App. 742, 745, 622 A.2d 603, cert denied, 226 Conn. 902, 625 A.2d 1375 (1993). In Ivimey, the trial court ordered the pleadings to be closed by December 10, 1991. Subsequent to that date, the parties filed various pleadings, which the trial court denied. On appeal, the Appellate Court upheld the trial court's denials. Id.
It should be noted that the plaintiff cited a footnote in Moore v. Sergi, 38 Conn.App. 829, 832 n. 2, 664 A.2d 795 (1995), in arguing that a counterclaim is untimely if filed after the pleadings are closed. The footnote in Moore refers to General Statutes § 52-584 and Practice Book § 168 (now § 10-54). General Statutes § 52-584 provides the statute of limitations for actions to recover damages for injury to the person, or to real or personal property, caused by negligence, or by recklessness or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium. The language in General Statutes § 52-584 permitting the interposition of a counterclaim any time before the pleadings in such action are finally closed, thus, does not appear to apply to the present case, which is an action in fee collection. The plaintiff's reasoning, therefore, does not appear to be correct, although the plaintiff's conclusion is correct. It should be further noted that courts have granted motions to strike the defendant's counterclaim where the counterclaim was filed after the pleadings were closed, reasoning that the defendant had not complied with General Statutes § 52-584. Fernandes v. Lee, Superior Court, judicial district of Fairfield, Docket No. CV 97 0346664 (April 7, 1999, Skolnick, J.) (court granted the plaintiff's motion to strike the defendant's counterclaim in automobile accident case because the defendant filed the counterclaim outside of the two-year statute of limitations and after the pleadings were closed, and thus, did not comply with General Statutes § 52-584).
The defendant's failure to file a memorandum in opposition to the plaintiff's motion to strike may also support granting the plaintiff's motion to strike. In DaPonte v. Rowe, Superior Court, judicial district of New Haven, Docket No. CV 04 4000495 (June 17, 2005, Arnold, J.), the court noted numerous decisions in which Superior Court judges held it mandatory to file a memorandum in opposition to a motion to strike and that the court would deem failing to do so as consent to the granting of the motion to strike. The court did note, citing to Doe v. Board of Education, 76 Conn.App. 296, 298 n. 5, 819 A.2d 289 (2003), that despite the Superior Court decisions, the Appellate Court has yet to rule on whether failing to file a memorandum in opposition remains a sufficient ground for granting the motion to strike.
For the foregoing reasons, the plaintiff's motion to strike the defendant's counterclaim in its entirety is hereby granted.