Opinion
No. CV06-4021341S
November 7, 2007
MEMORANDUM OF DECISION MOTION TO STRIKE NO. 114
On February 15, 2007, the plaintiffs, William Neidig and Marion Neidig, filed a four-count substitute complaint alleging, respectively, breach of contract, equitable relief, declaratory judgment, and tortious interference with business expectancies. The plaintiffs allege that they are unable to sell a parcel of land that they purchased from the defendants, Clifford Heilig and the Heilig Realty Company, because the defendants have unreasonably withheld approval of sale in the exercise of a restrictive covenant contained in the deed to their property.
On February 28, 2007, the defendants filed a motion to strike the four counts of the plaintiffs' complaint on the grounds that the breach of contract count is inadequately pleaded, the equitable relief count fails to contain allegations of irreparable harm and lack of an adequate legal remedy, the declaratory judgment count is procedurally defective, and the tortious interference count contains no allegations of bad faith. On March 26, 2007, the plaintiffs filed a memorandum of law in opposition. The matter was heard at the short calendar on May 29, 2007.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [The court must] take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court must] assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court must] read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged." In re Michael D., 58 Conn.App. 119, 122, 752 A.2d 1135 (2000).
Count One
The defendants argue that the court should strike count one on two grounds: (1) it does not state a recognizable cause of action for breach of contract because it fails to identify either the contract allegedly breached or the elements thereof, and (2) a breach of contract claim is an inappropriate method of attacking a restrictive covenant. The plaintiffs counter that they have pleaded all of the necessary elements of a breach of contract claim.
"Because [the court is] bound by the four corners of the plaintiff's complaint, [it] must examine the specific language to determine the particular [cause] of action alleged." Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992). "The titles which a plaintiff assigns to his causes of action in his complaint are not determinative." Blardo v General Security Indemnity Co. of Arizona, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.).
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). The plaintiffs allege that they have proposed to sell the lot that they purchased from the defendants "to bona fide purchasers in accordance with the applicable provisions and restrictions affecting the subject property in accordance with the deed" to their property. They further allege that "[t]he defendants . . . have refused to grant approval of the sale as requested by the plaintiffs" and that "[t]he defendants . . . have failed to act in good faith and in a reasonable manner with respect to the request for approval of the transfer and sale of the property."
Thus, it appears that, in the first count, the plaintiffs attempt to allege a claim in either breach of contract or breach of the implied covenant of good faith and fair dealing. If count one is construed to allege a claim of breach of contract, it is, nonetheless, insufficient, for the plaintiffs fail to allege sufficient facts from which it could be inferred that the defendants' conduct in disapproving the sale proposed by the plaintiffs amounts to a breach under the terms of the restrictive covenant. Without allegations of any of the terms of the covenant relative to the defendants' approval of any sale by the plaintiffs, the plaintiffs' allegation that the defendants' conduct violates the terms of the restriction that are duly applicable to the subject property, and, thus, is impliedly a breach of contract, is a mere conclusion of law.
To the extent that the plaintiffs also attempt to allege a claim for breach of the implied covenant of good faith and fair dealing in count one, their allegations are also insufficient. "Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). "Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; internal quotation marks omitted.) Id., 237. A bad faith claim requires allegations of more than mere unreasonableness, allegations that the plaintiffs in this action have failed to make.
The plaintiffs have failed to allege sufficient facts to state a claim in breach of contract or breach of the covenant of good faith and fair dealing, the court therefore grants the defendants' motion to strike count one.
Count Two
The defendants move to strike count two, which alleges a claim for equitable relief, on the ground that it contains no allegations of either irreparable harm or the lack of an adequate remedy at law. The plaintiffs counter that they have alleged both elements and that, under Practice Book § 10-1, the details of the alleged irreparable harm are matters for proof at trial. They argue that the implication of their allegation that they have a bona fide purchaser for their property, when read with their other allegations, "is that the plaintiffs lost the benefit of the sale as a result of the defendants' unfairly withholding their consent in accordance with the terms of the agreement . . ." The plaintiffs further argue that "they will suffer irreparable harm due to the sensitivity of the real estate market."
Practice Book § 10-1 provides in relevant part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . ."
"An injunction is a harsh remedy . . . and when an equitable injunction is the specific relief claimed, it is incumbent upon the party seeking relief to allege facts showing irreparable damage and the lack of an adequate remedy at law . . . `Adequate remedy at law' means a remedy vested in the complainant, to which he may, at all times, resort, at his own option, fully and freely, without let or hindrance . . . If the plaintiffs have an adequate remedy at law then they are not entitled to the injunction." (Citations omitted; internal quotation marks omitted.) Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967).
"The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." Karis v. Alexandra Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980). "A finding that a substantial probability of irreparable harm exists requires a two part analysis: (1) whether there is a substantial probability that the alleged harm will result; and (2) whether the harm, if it occurs, will be irreparable." International Ass'n. of Firefighters, Local 786 v. Serrani, 26 Conn.App. 610, 616, 602 A.2d 1067 (1992). Harm is "irreparable" when it "cannot be adequately compensated in damages, or cannot be measured by any pecuniary standard." New London v. Perkins, 87 Conn. 229, 235, 87 A. 724 (1913). "The `irreparability' of an injury depends more upon the nature of the right injuriously affected than the pecuniary measure of the loss." Local 818 v. East Haven, 42 Conn.Sup. 227, 238, 614 A.2d 1260 (1992) [ 5 Conn. L. Rptr. 400].
Contrary to the plaintiffs' arguments, there are no allegations in count two expressly or reasonably implied regarding the "sensitivity of the real estate market." Moreover, the plaintiffs have failed to allege that there is a substantial probability that but for the issuance of an injunction their proposed sale will fail or that the failure of this sale would result in irreparable harm. Thus, the plaintiffs have failed to allege the material facts upon which their legal conclusion that they have been irreparably harmed is based. Similarly, they have failed to plead facts demonstrating that they cannot be adequately compensated in damages. The defendants' motion to strike count two is granted.
Count Three
In count three, the plaintiffs seek a declaratory judgment. The defendants move to strike count three on the grounds that (1) the plaintiffs have not provided notice to all affected property owners, and (2) the plaintiffs have failed to certify that such notice was provided. The plaintiffs counter that: (1) failure to join parties is not a proper ground for a motion to strike; (2) a declaratory judgment does not bind interested nonparties; (3) the defendants' motion is a speaking motion; and (4) the only interested parties are the plaintiffs and the defendants, and both have notice.
Alternatively, the plaintiffs offer to provide published notice to the general community, if necessary.
"The purpose of a declaratory judgment action . . . is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties . . . and to make certain that the declaration will conclusively settle the whole controversy." (Citations omitted; internal quotation marks omitted.) Mannweiler v. LaFlamme, 232 Conn. 27, 33, 653 A.24 168 (1995). Practice Book § 17-56 establishes the procedures for bringing a declaratory judgment, and provides, in relevant part, in subsection (b) that "[a]ll persons who have an interest in the subject matter of the requested declaratory judgment . . . shall be made parties to the action or shall be given reasonable notice thereof . . . The party seeking the declaratory judgment shall append to its complaint . . . a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof. If notice was given, the certificate shall list the names, if known, of all such persons, the nature of their interest and the manner of notice." Practice Book § 17-56(b). Practice Book § 10-39(a) provides, in relevant part, that "[w]henever any party wishes to contest . . . (3) the legal sufficiency of any complaint . . . because of . . . the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person . . . that party may do so by filing a motion to strike." (Emphasis added.) Thus, the plaintiffs' argument that the failure to join parties is not a proper ground for a motion to strike is unavailing.
"A motion to strike on the ground of the nonjoinder of a necessary party or noncompliance with [§]17-56(b) [however] must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action." (Emphasis added.) Bender v. Bender, Superior Court, judicial district of Windham, Docket No. CV 05 4001704 (October 24, 2005, Riley, J.), quoting Practice Book § 10-39(b). See also Big East Equipment Co., Inc. v. Ohio Casualty Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 05 4015860 (July 3, 2006, Zoarski, J.T.R.) ( 41 Conn. L. Rptr. 576, 577-78), and cases cited therein. The defendants' motion to strike the third count of the plaintiffs' complaint is denied as the defendants has failed to comply with the rules of practice, that is, to give the name and residence or any information that the defendants may have as to the identity of any person allegedly interested in this action, as well as that party's interest in the action.
Count Four
In count four, the plaintiffs allege tortious interference with business expectancies. The defendants move to strike count four on the ground that the plaintiffs have not alleged bad faith, malice or improper motive. The defendants also move to strike the fourth count on the ground that the defendants are indirect parties to the proposed sale and the plaintiffs are, therefore, estopped from alleging tortious interference.
"[The Supreme Court] has long recognized a cause of action for tortious interference with contract rights or other business relations . . . The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the defendant(s), knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss . . .
"[F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious . . . The burden is on the plaintiff to plead and prove at least some improper motive or improper means . . . on the part of the defendants." (Citations omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 364-65, 493 A.2d 193 (1985). "[N]ot every act that disturbs a contract or business expectancy is actionable." (Internal quotation marks omitted.) Holler v. Buckley Broadcasting Corp., 47 Conn.App. 764, 769, 706 A.2d 1379 (1998). "[T]o raise an allegation of wilful conduct, the plaintiff must clearly plead that the [harm] was caused by the wilful or malicious conduct of the defendants." (Internal quotation marks omitted.) Id. "Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the defendants' interference resulted from the defendant's commission of a tort." (Internal quotation marks omitted.) Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129 (2001).
In count four, the plaintiffs incorporate the allegations of count one and further allege that the defendants "wrongfully, unreasonably and intentionally withheld approval by attaching additional conditions to such approval, to wit: the defendants required the plaintiffs to agree to the construction/improvement of an access road for the benefit of the defendant Clifford Heilig's adjacent property and, further, required that the plaintiffs reimburse the defendants for the cost of the same." The plaintiffs further allege that these "additional conditions . . . were not part of the recorded restrictions and imposing such conditions represents the defendant's intentional act interfering with the plaintiffs' business expectancy in order for benefits not contemplated by the restriction to inure to the defendants."
The defendants argue that by virtue of their right to approve or not approve any sale by the plaintiffs, they are indirect parties to any such sale and, thus, the plaintiffs are per se estopped from alleging tortious interference because it is impossible from the pleading to distinguish the intent to assert rights under the covenant from any improper motive on the part of the defendants. The law cited by the defendants in support of their argument that there can be no interference of contractual relations by someone who is a direct or indirect party to the contract, Appleton v. Board of Education, 53 Conn.App. 252, reversed in part, 254 Conn. 2005 (2000) is, however, not persuasive because Appleton deals with agency relationships that are not alleged in the present case.
Nevertheless, it is submitted that even if this court were to assume, arguendo, that the defendants' exercise of its rights under the restrictive covenant would not, given the right set of circumstances, preclude a claim of tortious interference with business expectations, the plaintiff has not alleged sufficient facts to support such a cause of action in the present case.
As was stated in the discussion of count one, the plaintiffs have failed to allege any terms of the covenant relative to the defendants' approval of any proposed sale of the plaintiffs' property. Though it may well be that the additional conditions attached by the defendants to their approval of the plaintiffs' proposed sale were not part of the recorded restrictions and that their imposition represents an intentional act by the defendants to interfere with the plaintiffs' business expectancy, as alleged by the plaintiffs, absent allegations of the material facts of the covenant itself, these allegations constitute legal conclusions. Count four does not contain sufficient allegations from which it could be found that the defendants' conduct was wilful, intentional or malicious.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to strike counts one, two and four and denies the motion to strike count three.