Opinion
No. CV02 0466486S
December 8, 2004
MEMORANDUM OF DECISION MOTION TO STRIKE #110
The defendant has moved to strike the plaintiff's revised complaint dated February 10, 2003, arguing that the revised complaint fails to state a cause of action upon which relief can be granted. More particularly, the defendant claims that the oral agreement of the parties, which is the subject of this dispute, violates the Statute of Frauds, General Statutes § 52-550.
Sec. 52-550 reads as follows:
(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.
A brief summary of the revised complaint is appropriate. The plaintiff alleges between the dates of June 28, 2000 and September 19, 2001, she paid out a total of $104,932.82 for clothes, bills and other personal property items on behalf of the defendants Cindy Scaniffe, and her husband James Cox, as well as, a decedent Josephine Cox. The plaintiff further alleges that she purchased and loaned jewelry to the defendant Cindy Scaniffe and the decedent Josephine Cox in the amount of $56,593.42 during that same time period. The plaintiff alleges that return of personal property items and the repayment of monetary sums by the defendants to the plaintiff were to occur upon the death of Josephine Cox. Josephine Cox died intestate in September 2001. Following the death of Josephine Cox, the plaintiff made a demand on the defendants Scaniffe and James Cox for the repayment of the monetary sums and the return of the personal property items, but to date they have refused to do so.
The defendants set forth three reasons why the oral agreement between the parties violates the statute of frauds, General Statutes § 52-550. First, the defendants argue that the plaintiff, in effect, alleges that any loan was made to the decedent Josephine Cox and that the defendants were guarantors, which violates § 52-550(a)(2). Second, the amount claimed by the plaintiff exceeds $50,000 which violates § 52-550(a)(6). Third, the alleged agreement was not to be performed within one year of the making thereof, per § 52-550(a)(5).
The plaintiff in opposing the motion to strike argues that full performance by one party to a contract takes it out of the statute of frauds and even where there is only partial performance, enforcement of an oral agreement may be sought to avoid an injustice where there is a lack of compliance with General Statutes § 52-550. See, Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987); see also, Union Trust v. Jackson, 42 Conn.App. 413, 679 A.2d 421 (1996). Therefore, the plaintiff argues, the determination as to whether a party's actions constitute part performance, so as to take the contract out of the statute of frauds should be made by the trier of fact, Milazzo v. Schwartz, 44 Conn.App. 402, 690 A.2d 401 (1997), cert. denied 240 Conn. 926, 692 A.2d 1282 (1997), and not on a motion to strike.
Prior to determining the merits of the defendants' motion, the court first reviews the applicable standards of law pertaining to a motion to strike. "The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988). A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings" (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982). The issue of whether an agreement is voidable under the statute of frauds may be raised by a motion to strike. Breen v. Phelps, 186 Conn. 86, 439 A.2d 1066 (1982); Tallman v. Gawel, 11 Conn.App. 801, 526 A.2d 535 (1987).
The plaintiff argues that full performance and even partial performance by one party to a contract takes it out of the statute of frauds, and that the determination as to whether the plaintiff's actions in this matter constituted partial performance should be left to the trier of fact.
Our Supreme Court has set out an exception to the requirements of the Statute of Frauds. "We have held that acts on the part of the promisee may be sufficient to take a contract out of the statute if they are such as clearly refer to some contract in relation to the matter in dispute . . . The doctrine of part performance arose from the necessity of preventing the statute against frauds from becoming an engine of fraud . . . [T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract . . . and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or the knowledge of the other party, and be such acts as alter the relations of the . . . The acts must also be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute . . ." (Citations omitted; internal quotation marks omitted.) Milazzo v. Schwartz, 44 Conn.App. 402, 405, 690 A.2d 401 (1997); quoting Ubysz v. DiPietro, 185 Conn. 47, 54, 440 A.2d 830 (1981); see also, Union Trust Company v. Jackson, supra, 42 Conn.App. 418. The argument, therefore, regarding full or partial performance by the plaintiff relies upon the existence of a contract with the defendants.
It is an established proposition that a question about the existence of a contract is a question that must be decided by the finder of facts. Pagano v. Ippoliti, 245 Conn. 640, 654, 716 A.2d 848 (1998); 111 Whitney Ave. v. Comm. of Mental Retardation, 70 Conn.App. 692, 697, 802 A.2d 117. A review of the plaintiff's complaint leaves the court unable to discern whether the agreement of the parties involved one alleged oral contract commencing June 28, 2000 or a series of oral contracts, each commencing on a date when additional items or money was delivered to the defendants and the decedent. At the time items and monies were delivered by the plaintiff, the decedent's date of death was uncertain. A review of the revised complaint reveals that the exact date of death for the decedent Josephine Cox is never recited. As her date of death is the date relied upon for the performance by the defendants, it is not possible for the court to fix the exact time frame even contemplated by the parties whether it be more or less than one year. The court assumes that her age and state of health at the time of any agreement was an important factor considered by the parties in entering into any agreement. The contract or series of contracts could have been performed at any time and there is nothing in the pleadings that required performance at an express time outside of a one-year period from June 28, 2000 or the dates of any further deliveries of money and personalty by the plaintiff to the defendants and the decedent. See Pagano v. Ippoliti, supra at 647. "Compliance with the statute of frauds requires, as a minimum, proof of the essential terms of the agreement that is at issue." 111 Whitney Ave. v. Comm. Of Mental Retardation, supra, 70 Conn.App. 692, 705.
The statute of frauds only applies to a civil action in which a party seeks to enforce the terms of a contract. Homecare, Inc. v. Acquarulo, 38 Conn.App. 772, 663 A.2d 412 (1995). The rules of contract formation are well settled. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. If the minds of the parties have not truly met, no enforceable contract exists. An agreement must be definite and certain as to its terms and requirements. So long as any essential matters are left open for farther consideration, the contract is not complete. A contract requires a clear and definite promise. In order for an offer and acceptance to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 248, 268 A.2d 391 (1970); see also, Niantic Colonial, Inc. v. Bozzuto's, Inc., Superior Court, judicial district of New London at New London, No. 563138 (April 2, 2004, Gordon, J.). An agreement must be definite and certain as to its terms and requirements, Fortier v. Newington Group, Inc., 30 Conn.App. 505, 510, 620 A.2d 1321 (1993).
Therefore, before the court can reach the statute of frauds question, the plaintiff will need to make a case for the formation of an oral contract or a series of oral contracts. "The existence of a contract is a question of fact to be determined by the trier on the basis of the evidence." LR Realty v. Connecticut National Bank, 53 Conn.App. 524, 534, 732 A.2d 181 (1999). This court will not invoke the statute of frauds to bar the plaintiff's recovery prior to a trial on the issues. The defendants can maintain their position that the agreement violates the statute of frauds by pleading the statute of frauds as a special defense.
THE COURT
By Arnold, J.