Opinion
KNLCV156024549S
06-20-2017
Raymond E. Paradis, Jr. et al. v. Keith Burns et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#122)
Leeland J. Cole-Chu, J.
This action arises out of a dispute between neighbors regarding the location of their common boundary and a driveway located on the defendants' property that plaintiffs claim a right to use. On January 7, 2016, the plaintiffs, Raymond E. Paradis, Jr., and Tammy M. Paradis, filed a seven-count revised complaint (the complaint) against the defendants, Keith Burns and Raina M. Spaziani. The complaint alleges adverse possession, quiet title, prescriptive easement, obstruction of right of way, malicious erection of a structure, easement by implication, and malicious erection of a structure in violation of General Statutes § 52-570. On January 9, 2017, the defendants filed an answer including the subject special defenses and counterclaim. Before the court is the plaintiffs' motion to strike all of the defendants' special defenses and their second counterclaim.
General Statutes § 52-570 provides: " An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land."
FACTS
For the present purposes, the court takes the facts to be those alleged in the pleadings sought to be stricken, construed in favor of its legal sufficiency. See New London County Mutual Ins., Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012); see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true; pleading is construed broadly and realistically). The interpretation of pleadings is a question of law for the court. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). Viewing the allegations of the challenged pleadings in this light, the facts will be set forth in the discussion of, first, the special defenses and then the second counterclaim.
1. The Motion as to the Special Defenses
A motion to strike is the proper vehicle for a party to challenge the legal sufficiency of a special defense. Practice Book § 10-39(a)(5); Brasso v. Rear Still Road, LLC, 64 Conn.App. 9, 13-14, 779 A.2d 198 (2001). A motion to strike admits all facts well pleaded but does not admit legal conclusions or the veracity of alleged opinions. Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
The purpose of a special defense is to establish, through facts alleged in the complaint, that the plaintiff has no cause of action. Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999). " Practice Book § 10-50 provides that [f]acts which are consistent with [the claimant's allegations] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until trial is underway." (Internal quotation marks omitted.) Martino v. Scalzo, 113 Conn.App. 240, 245, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). As with a complaint, the failure to allege any fact essential to a defense renders a special defense legally insufficient. See Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 212-13, 32 A.3d 296 (2011) (motion to strike properly granted if complaint alleges conclusions of law unsupported by facts alleged); see also Bank of New York v. Saquinaula, Superior Court, judicial district of Fairfield, Docket No. CV-08-5017454-S (July 14, 2011); see also Ferraiuolo v. Dean, Superior Court, judicial district of New Haven, Docket No. CV-14-6047444-S (Feb. 26, 2015) (same); Central Connecticut Acoustics Inc. v. New York-Connecticut Development Corp., Superior Court, judicial district of New Haven, Docket No. CV-10-6011417-S (April 11, 2011) (same).
Though the defenses are separately alleged by count, the defendants' first special defense to counts one, two, three, four, and six of the complaint is that " [t]he plaintiffs' claims are illegal, including illegality not apparent on the face of the complaint, because they have failed to join a necessary party which may claim a title or interest in the defendants' property that this action may affect." The defendants' second special defense to counts one, three, four, five, six and seven is that " [t]he [p]laintiffs have failed to set forth a claim upon which relief can be granted." The defendants' second special defense to count two is that " [t]he [p]laintiffs have come to equity with unclean hands." The plaintiffs move to strike all three of these special defenses on the ground that they are legally insufficient, as pleaded, because they fail to contain any supporting facts.
The court agrees that each of the defendants' four special defenses is legally insufficient because it consists only of a conclusion of law unsupported by any allegation of fact. See Bank of New York v. Saquinaula, Superior Court, judicial district of Fairfield, Docket No. CV-08-5017454-S (July 14, 2011).
2. The Motion as to the Second Counterclaim
A motion to strike is a proper way to contest the legal sufficiency of a counterclaim. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Although the court takes the facts to be those alleged; Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252-53; opinions and legal conclusions are not taken as true and do not substitute for the failure to allege necessary facts. See Faulkner v. United Technologies Corp., supra, 240 Conn. 588.
The second of the defendants' seven counterclaims, entitled " [e]asement by [p]rescription under [c]laim of [t]itle, " alleges an easement by prescription over the driveway owned by the plaintiffs. The plaintiffs' motion strike challenges the second counterclaim on the ground that it does not plead a prima facie case for a prescriptive easement.
The counterclaim alleges exhibits A and B, describing the defendants' property, and exhibit C, describing the plaintiffs' property, are attached to the counterclaim. There are no such attachments, but this decision is not based on that omission.
General Statutes § 47-37 provides that: " No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued interrupted for fifteen years." To determine if an easement has been acquired by prescription, the court must determine whether the claimant adversely used the property. (Footnote omitted.) It is well established that one claiming a prescriptive easement over land must plead, as well as prove, his use of the land for a continuous period of fifteen years. See Reynolds v. Soffer, 190 Conn. 184, 187, 459 A.2d 1027 (1983); Dalton Enterprises, Inc. v. Boston & Maine Corp., 48 Conn.App. 251, 252, 707 A.2d 347, cert. denied, 245 Conn. 903, 719 A.2d 1163 (1998); Gioielli v. Mallard Cove Condominium Assn., Inc., 37 Conn.App. 822, 829, 658 A.2d 134 (1995); Smith v. Muellner, 283 Conn. 510, 536, 932 A.2d 382 (2007) (analyzing difference between prescriptive easement and ownership of land by adverse possession).
The second counterclaim essentially acknowledges that the plaintiffs claim an interest in the defendants' property--the subject driveway--or some part thereof, by adverse possession and seeks a judgment that whatever ownership the plaintiffs are found to have is subject to a prescriptive easement serving land owned by the defendants. The counterclaim, especially paragraphs 8 through 11, focuses on the manner in which the defendants acquired their property. In paragraph eight, the defendants allege that, " [d]efendant Keith Burns and his successors and assigns have had a right to pass and repass over the driveway for purposes of occupying the [d]efendants' property and for other purposes consistent with the use and enjoyment thereof." In paragraph eleven, the defendants allege, " [t]he [d]efendants and their immediate predecessors in title have been in actual and exclusive possession of the right to access the [d]efendants' [p]roperty over all or any part of the said driveway to which the [p]laintiffs now assert a legal right and title, for more than fifteen years under color of title thereto."
The defendants allege that they have, and have had, the right " to pass and repass over the driveway for purposes of occupying [their] property and for other purposes consistent with use and enjoyment thereof." They do not allege that they actually use the driveway at issue, let alone that they have done so for fifteen continuous years, as required by § 47-37. See Cirinna v. Kosciuszkiewicz, 139 Conn.App. 813, 819, 57 A.3d 837 (2012). For the failure to allege an element necessary to establish a prescriptive easement claim, the second counterclaim is legally insufficient.
For the stated reasons, the plaintiffs' motion to strike the defendants' special defenses and second counterclaim is granted.