Opinion
CV166013920S
06-02-2017
Thomas O'Connell et al. v. Stephen Zehring et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#104)
Hon. John D. Moore, J.
The defendants, Stephen Zehring and Donna Zehring (defendants), moved to strike the amended complaint filed by the plaintiffs, Thomas O'Connell and Lorraine O'Connell (plaintiffs), claiming that certain indispensable parties need to be added to this case (#104). The plaintiffs filed a memorandum in opposition thereto (#106). The defendants filed a reply brief (#107). The court heard argument at short calendar on February 14, 2017. For the reasons set forth below, the court grants the defendants' motion to strike.
FACTS AND ARGUMENTS OF THE PARTIES
The plaintiffs' amended complaint sounds in three counts: intentional private nuisance; negligent private nuisance; and trespass. Its fourth count seeks a permanent injunction on the basis of the factual allegations of the first count. Generally, the amended complaint claims that the defendants' maintenance of a drainage system on their property has resulted in substantial damage to the plaintiffs' property, which both abuts, and is downhill from, the defendants' property.
The amended complaint (#101), which is the operative complaint, is entitled " Second Amended Complaint."
The second and third counts also incorporate the factual allegations of the first count.
The plaintiffs also make the following specific allegations. The defendants' drainage system has altered the natural flow of water, as well as other debris and discharge (collectively, discharge) from the defendants' property and adjoining properties and has both concentrated and directed this discharge onto the plaintiffs' property. The discharge has caused and will continue to cause a wide variety of extensive damage to the plaintiffs' real property. The defendants lack a legal right to allow them to drain the discharge onto the plaintiffs' property. Despite requests by the plaintiffs to prevent the direction of discharge onto their property, the defendants have failed to control the discharge. The direction of the discharge onto the plaintiffs' property has caused them irreparable harm by denying them the full use and enjoyment of their property.
The plaintiffs seek legal damages for their claims of nuisance and trespass, as well as permanent injunctive relief enjoining and prohibiting the defendants from maintaining the drainage system so that the discharge is directed onto the plaintiffs' property.
On November 14, 2016, the defendants moved to strike the plaintiffs' amended complaint in its entirety on the basis of nonjoinder of indispensable parties. In support of their motion, the defendants attached a memorandum, as well as copies of affidavits from each of the two defendants.
The defendants swear, in their affidavits, that the street on which they live, Good Hill Lane, is owned by the Good Hill Lane Association (association). The defendants also swear that the drainage system at issue is not owned individually by them but, rather, is owned collectively by the association. The defendants further avow that they comprise two of the six members of the association and that their neighbors, Jeremy and Marni Selman and Cornelius and Greta Kennedy (collectively, other association members)--none of whom are parties, are the other four members of the association. The defendants additionally swear that the other association members live on Good Hill Lane. The defendants certify that any decisions regarding the drainage system must be made by all members of the association.
The affidavits also provide the exact street addresses on Good Hill Lane of the other association members.
On the basis of these sworn statements, the defendants argue that the other association members are indispensable to the present action because they each have a property interest in the drainage system that could potentially be adversely affected if the court were to grant the plaintiffs' request for a permanent injunction requiring changes to the design of the drainage system. The defendants further contend that, if the court were to order injunctive relief requiring a modification to the drainage system, the defendants would be unable to comply with such order because the other association members have a right to participate in all decision-making regarding the drainage system. Additionally, the defendants claim that the financial impact arising from changes ordered to the drainage system would fall upon all of the association's members. Several of the arguments in the defendants' memorandum in support and their reply brief thus focus on the necessity of adding the missing parties in regard to the permanent injunctive relief requested in count four. However, the motion to strike itself and the supporting memoranda are not entirely so limited. Both the motion to strike and the memorandum in support argue that " [t]he allegations set forth in the Complaint cannot be properly adjudicated without the joinder of additional indispensable parties." (Defs.' Mot. Strike p. 1; Defs.' Mem. Support p. 1.) Additionally, during the short calendar argument, the defendants argued that the financial impacts of any awards under the tort counts would devolve upon the other association members. Therefore, argue the defendants, the missing parties are indispensable for the additional reason that the relief demanded by the plaintiffs cannot be effectuated unless the other association members are joined.
The plaintiffs filed a memorandum in opposition to the motion to strike on December 19, 2016. In their memorandum in opposition, the plaintiffs contend that the court should deny the motion to strike because it is an improper " speaking" motion to strike. In other words, the plaintiffs argue that the defendants are relying on facts not alleged in the amended complaint to support their motion to strike. The plaintiffs also claim that the defendants do not clearly set forth the specific legal right or property interest held by the purportedly indispensable parties pertaining to the defendants' land and, by extension, the interest of these persons in this lawsuit. The plaintiffs further argue that the interests of the other association members are different from those of the existing defendants and that the other association members do not qualify under the law as indispensable parties. Finally, the plaintiffs posit that the defendants have claimed that the other association members are indispensable only in regard to the claim for injunctive relief, and the plaintiffs thus contend that the tort claims can be decided without the necessity of adding the other association members as parties to the lawsuit.
The defendants filed a reply brief on January 31, 2017. In the reply brief, the defendants posit that the court has allowed an exception to the general prohibition of the " speaking" motion to strike in the context of a claim that indispensable parties need to be added to a lawsuit. The defendants also specify the interest of the other association members in the drainage system and in the lawsuit.
As mentioned above, the court heard oral argument on the motion on February 14, 2017.
DISCUSSION
" [T]he exclusive remedy for nonjoinder of parties is by motion to strike." Practice Book § 11-3. More specifically, " [a] motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of any . . . complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party . . ." Practice Book § 10-39(a)(3). " A motion to strike on the ground of the nonjoinder of a necessary party . . . must give the name and residence of the missing party . . . or such information as the moving party has as to the identity and residence of the missing party . . . and must state the missing party's . . . interest in the cause of action." Practice Book § 10-39(d).
As a threshold matter, the plaintiffs contend that the motion should be denied outright because the defendants' reliance upon facts extrinsic to the amended complaint renders the motion an improper " speaking motion." " A speaking motion to strike is one improperly importing facts from outside the pleadings . . . [They] have long been forbidden by our practice . . ." (Citations omitted.) Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008). This is so because " a motion to strike must be considered within the confines of the pleadings and not external documents." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). In the context of a motion to strike for nonjoinder of a necessary party, however, this rule is inapplicable.
Our Appellate Court, relying on Practice Book § 10-39, decided this issue in Bloom v. Miklovich, 111 Conn.App. 323, 958 A.2d 1283 (2008). The trial court in Bloom granted the defendants' motion to strike two of the plaintiffs' partition claims on the ground that the owners of certain other parcels of real property were indispensable parties but had not been joined. Bloom v. Miklovich, supra, 331-33. On appeal, the plaintiffs argued that the motion should have been denied as " an impermissible 'speaking motion' because it relied on evidence outside of the complaint to show the existence of the other properties." Id., 332 n.6. The Appellate Court rejected this argument: " Evidence of the other properties . . . was admitted properly under Practice Book § 10-39(b) [now § 10-39(d)], which provides: 'A motion to strike on the ground of nonjoinder of a necessary party . . . 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.' The defendants satisfied these requirements in its motion to strike. The defendants' motion to strike on the basis of nonjoinder was, therefore, not an impermissible 'speaking motion' . . . in the context of this case." Bloom v. Miklovich, supra, 332 n.6.
It is thus apparent from Bloom that courts " may examine facts outside of the pleadings for purposes of satisfying [the] prerequisite [contained in § 10-39(d)] . . . for a motion to strike based upon nonjoinder of a necessary or indispensable party." Phelps v. Hadden, Superior Court, judicial district of Litchfield, Docket No. CV-15-6012518-S, (November 2, 2015, Moore, J.) (citing Bloom ); accord Saybrook Manor Cove Ass'n, Inc. v. Saybrook Manor Beach, Inc., Superior Court, judicial district of Middlesex, Docket No. CV-16-6015953-S, (March 7, 2017, Aurigemma, J.) (relying on Bloom and § 10-39[d] to conclude that motion to strike based on absence of necessary parties was not improper speaking motion).
The plaintiffs in the present case do not address Bloom in their memorandum in opposition. Instead, they rely on a pre- Bloom Connecticut Supreme Court decision that held that, although " [e]xtraneous facts may exist which would disclose a deficiency of necessary parties . . . these [cannot] be taken advantage of by demurrer." Hardy v. Scott, 127 Conn. 722, 723, 19 A.2d 420 (1941) (per curiam). Most of the Superior Court decisions that have rejected the existence of an exception to the rule against speaking motions reached that conclusion on the basis of this statement in Hardy . See, e.g., Chin v. 355 Greenwich, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4006579-S, (September 24, 2008, D'Andrea, J.T.R.); National Mortgage Co. v. Temkin, Superior Court, judicial district of Litchfield, Docket No. CV-94-0065542-S, (May 23, 1995, Pickett J.); Beacon Hill Condominium Assn., Inc. v. Beacon Falls, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-92-039725-S, (December 21, 1992, McGrath, J.). Reliance on Hardy is improper, however, as Hardy was decided before the Practice Book was amended to include what is now § 10-39(d), the provision that formed the basis for the Appellate Court's later decision in Bloom . It was not until the publication of the 1951 revision of the Practice Book that parties moving to strike for nonjoinder of a necessary party were required to provide the name and address of the purportedly missing party and that party's interest in the pending cause of action. See Practice Book (1951 Rev.) § 96. Consequently, the Hardy court's 1941 decision is no longer good law with respect to this particular issue; Bloom now provides the applicable rule of decision.
The rest of the Superior Court decisions not relying on Hardy appear to have simply been applying the general rule against speaking motions to strike. See, e.g., Longmoor v. Langer, Superior Court, judicial district of Litchfield, Docket No. CV-00-0082632-S, (August 22, 2000, DiPentima, J.) (quoting Liljedahl Bros. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 [1990], for general proposition that, " [w]here the legal grounds for [a motion to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied" [internal quotation marks omitted]); Economic Development v. Cititrust, Superior Court, judicial district of Litchfield, Docket No. 0052665 (November 21, 1990, Dranginis, J.) (2 Conn.L.Rptr. 815, 817, ) (appearing to rely on general proposition stated in Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 719, 443 A.2d 922 [1982], that " the facts giving rise to [a motion to strike] must be taken from the complaint").
The court notes that each of the preceding Superior Court cases was decided before Bloom .
In the present case, the defendants rely on facts outside the pleadings--their affidavits--in an effort to comply with § 10-39(d) by providing the names and residences of the missing or interested persons and such persons' interests in this case. In this context, the defendants' motion to strike does not constitute an improper speaking motion.
The plaintiffs next contend that the defendants only " nakedly assert" the existence of the other association members' rights or interests and that the defendants do not identify " any specific legal right or property interest held by the [other association members] with respect to the defendants' land, including the drainage system that exists and is maintained upon the defendants' land." (Pls.' Mem. Opp'n p. 4.) The plaintiffs proceed to argue that this failure should doom the motion to strike. The plaintiffs do not, however, offer any authority for the proposition that the missing parties' rights or interests must be pleaded with particularity. The court has uncovered no such authority and, in the absence thereof, reviews the defendants' affidavits to see if they supply the information required under § 10-39(d). Upon review of the defendants' affidavits, the court finds that they do.
The defendants' affidavits provide evidence that: (1) the defendants live on Good Hill Lane, as do the other association members; (2) Good Hill Lane is owned by the association; (3) the defendants and the other association members constitute the members of the association; (4) the drainage system at issue is owned collectively by the association; and (5) decisions concerning the drainage system are required to be made by all members of the association. The defendants also present a statement, necessarily inferred from the sworn facts of the affidavits, that any financial consequences concerning this drainage system will be borne by the association members.
The defendants also argue that the drainage system at issue is part of a larger drainage basin that impacts all of Good Hill Lane. This fact, however, is not sworn to, and the court will not consider it in this opinion.
Section 10-39(d) states, in pertinent part, that a motion to strike claiming nonjoinder of a necessary party " must give the name 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." The defendants provide in their affidavits the names and addresses of the other association members and swear that: (1) Good Hill Lane itself is owned by the association; (2) the other association members comprise four of the six members of the association; (3) the drainage system at issue is owned collectively by the association; and (4) any decisions regarding the drainage system must be made by all members of the association. The court has also found, by necessary inference, that any financial impacts resulting from the drainage system will be borne by the association. As mentioned above, the amended complaint presents allegations of nuisance and trespass arising from the drainage system at issue and requests legal damages and injunctive relief pertaining thereto. In the context of these allegations and prayers for relief, the defendants' allegations satisfy the requirements of § 10-39(d).
It is not clear if the plaintiffs have sufficiently briefed this issue. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) " [The Connecticut Supreme Court] repeatedly [has] stated that [it is] not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court ." [Citation omitted; emphasis added; internal quotation marks omitted.] However, in an abundance of caution, the court has addressed it. Nothing in this memorandum of decision, however, should be construed as requiring any specific level of particularity when a party seeks to strike a complaint for nonjoinder of necessary or indispensable parties under § 10-39(d).
The defendants also contend that the other association members are neither necessary nor indispensable to the present action, claiming that their interests are separable from those of the defendants and that the court can enter a final decree without the addition of the other association members.
" Necessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties." (Internal quotation marks omitted.) In re Devon B., 264 Conn. 572, 579-80, 825 A.2d 127 (2003). " In short, a party is necessary if its presence is absolutely required in order to assure a fair and equitable trial." (Internal quotation marks omitted.) Biro v. Hill, 214 Conn. 1, 6, 570 A.2d 182 (1990). A missing party's presence may be " absolutely required" in a given action where that party has an interest that would be affected by the relief being sought; see Graham v. Zimmerman, 181 Conn. 367, 372, 435 A.2d 996 (1980) (" [a]nyone having a present interest in the property in question is a necessary party to [a foreclosure action] . . . because he or she holds a known interest in the land which would be affected by the relief sought"); or if that party's absence would hinder the court's ability to provide complete relief among the existing parties. See Biro v. Hill, supra, 7 (holding, that missing party's presence was not necessary for court to proceed to decree and do complete and final justice because plaintiff could " obtain full relief on the three tort counts without joining [the missing party]").
" In the past, there had been a distinction between 'necessary' and 'indispensable' parties. See Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1855) (defining both terms). Over time, however, this distinction has become less pronounced; see Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983) (recognizing that misleading nature of terms 'has resulted in a blurring of the distinction typically drawn between them'); and provisions of our Practice Book and General Statutes currently refer only to necessary parties. See, e.g., Practice Book § § 9-6 and 9-24; General Statutes § § 8-8(f) and 12-638n." In re Devon B., 264 Conn. 572, 580 n.12, 825 A.2d 127 (2003). The effect of this blurring is that our appellate courts appear to no longer recognize any distinction. See, e.g., Izzo v. Quinn, 170 Conn.App. 631, 635 n.5, 155 A.3d 315 (2017) (quoting In re Devon B., supra, 580 n.12, and noting, " [w]e use those terms interchangeably throughout this opinion").
In the present case, the plaintiffs seek legal damages and permanent injunctive relief on the basis of facts giving rise to nuisance and trespass claims. The permanent injunctive relief requested seeks to enjoin the defendants from continuing to maintain the subject drainage system so that it directs discharge onto the plaintiffs' property. In other words, the plaintiffs seek a court order requiring the defendants to change the way in which they are currently maintaining the drainage system. As established by the defendants' affidavits, however, (1) the drainage system at issue is owned collectively by the association, and (2) the other members of the association have a right to participate in any decisions made regarding this system, including those pertaining to or arising from the subject matter and claim for injunctive relief found in the amended complaint. Any financial fallout from the amended complaint, whether sums incurred in modifying the drainage system if injunctive relief were granted, or by way of compensating the plaintiffs for legal damages, would be borne by the association's members.
Therefore, the other association members are " [n]ecessary parties" because they " are . . . [p]ersons having an interest in the controversy, and [they] ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it." (Internal quotation marks omitted.) In re Devon B., supra, 264 Conn. 579. Moreover, the other association members' presence in this case is absolutely required both to ensure a " fair and equitable trial"; (internal quotation marks omitted) Biro v. Hill, supra, 214 Conn. 6; and because they have interests that will be affected by the relief the plaintiffs seek. Graham v. Zimmerman, supra, 181 Conn. 372. Further, if the other association members are not added as parties, their absence would hinder the court's ability to provide complete relief as between the existing parties. Biro v. Hill, supra, 6. For these reasons, the court finds the other association members both necessary and indispensable to this action.
The plaintiffs' final argument is that the defendants' motion to strike addresses only the claim that the other association members are indispensable to the injunctive relief count, and not to the entire amended complaint. The plaintiffs cite several Superior Court cases for the proposition that, " [i]nsofar as [a] motion to strike is directed at the entire complaint, it must . . . fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Whelan v. Whelan, 41 Conn.Supp. 519, 520, 588 A.2d 251 (1991). The plaintiffs argue that the present motion to strike should therefore be denied because the defendants do not contest the legal sufficiency of the tort claims. The court disagrees.
As mentioned above, the plaintiffs are factually mistaken as to the breadth of the motion to strike; the motion to strike is actually addressed to the entire complaint, and not just to the claim for injunctive relief. Further, as a legal matter, the plaintiffs' argument is based on a faulty presumption that their request for a permanent injunction is a separate count. It is not.
" It is well settled that an injunction is an equitable remedy, not an independent cause of action." Terlecki v. Stewart, 278 Mich.App. 644, 663, 754 N.W.2d 899, cert. denied, 482 Mich. 1057, 758 N.W.2d 244 (2008); see, e.g., Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1127 (11th Cir. 2005) (" [A]ny motion or suit for either a preliminary or permanent injunction must be based upon a cause of action, such as a constitutional violation, a trespass, or a nuisance. There is no such thing as a suit for a traditional injunction in the abstract" [internal quotation marks omitted]); Stefan v. P.J. Kids, LLC, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-04-0185513-S, (March 1, 2005, Sheedy, J.) (" An injunction is a form of equitable relief. It is not a 'cause of action'"); McDowell v. Watson, 59 Cal.App.4th 1155, 1159, 69 Cal.Rptr.2d 692 (1997) (" [i]njunctive relief is a remedy and not, in itself, a cause of action" [internal quotation marks omitted]); Quadrant Structured Products Co., Ltd. v. Vertin, 102 A.3d 155, 203 (Del.Ch. 2014) (" [i]njunctions are a form of relief, not a cause of action"); Long v. Dell, Inc., 93 A.3d 988, 1004 (R.I. 2014) (" [a]n injunction is a remedy, not a cause of action"); Cooper v. Litton Loan Servicing, LP, 325 S.W.3d 766, 769 (Tex.App. 2010) (" [a] permanent injunction is not a cause of action but an equitable remedy"), cert. denied, Docket No. 11-0029, (Tex. March 18, 2011); 43A C.J.S., Injunctions § 2 (2017) (" [a]n injunction is a form of relief based on the underlying claim, not an independent cause of action"). Thus, " [a]lthough it [may be] permissible to plead a cause of action for a permanent injunction . . . permanent injunctive relief is, at its core, a remedy that is dependent on the merits of the substantive claims asserted." (Internal quotation marks omitted.) Weinreb v. 37 Apartments Corp., 97 App.Div.3d 54, 59, 97 A.D.3d 54, 943 N.Y.S.2d 519 (2012). In the present case, the plaintiffs seek a permanent injunction as a remedy for conduct that forms the basis of each of the first three counts of their amended complaint. As such, the defendants' arguments regarding the potential effects of ordering such injunctive relief necessarily implicate the legal sufficiency of the amended complaint as a whole, thus making the entire amended complaint susceptible to being stricken.
The plaintiffs' permanent injunction count incorporates by reference the general allegations in count one of the amended complaint. These allegations form the basis for the two other tort claims, and they are thus incorporated by reference into each of these counts as well. The request for a permanent injunction may therefore be construed as a prayer for relief for the complaint as a whole.
Finally, as mentioned above, the other association members are indispensable as to the tort counts as well as for the prayer for a permanent injunction. Accordingly, the plaintiffs' assertion--that the motion must be denied because the defendants have not attacked each individual claim--is unpersuasive.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to strike the plaintiffs' amended complaint.
SO ORDERED.