Opinion
No. FST CV 04 0200508 S
July 9, 2008
MEMORANDUM OF DECISION
The plaintiffs brought this action seeking damages from the defendant, a certified public accountant. They claim that the defendant improperly assisted their brother, Kenneth Stuart, Jr., who was the executor and trustee of their father's trust and estate, in utilizing trust and estate money for the personal benefit of Kenneth Stuart, Jr. The first count alleges fraud. The second count alleges negligent misrepresentation. The third count alleges accounting malpractice. The fourth count alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. ("CUTPA"). On April 27, 2006, the court (Downey, J.) granted the defendant's motion to strike all four counts of the complaint. Thereafter judgment entered in favor of the defendant which the plaintiffs appealed. In Stuart v. Freiberg, 102 Conn.App. 857 (2007), the Appellate Court reversed the decision of the trial court and "remanded with direction to deny the defendant's motion to strike and for further proceedings in accordance with law." The Appellate Court held that the trial court should not have granted the motion to strike because the motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41.
Following remand the defendant filed a motion for leave to file a new motion to strike (#117), a new motion to strike specifying the grounds of insufficiency claimed with respect to each count of the plaintiffs' complaint (#116), objection to the revised motion to strike (#118) and an objection to the motion for leave to file a memorandum in support of the motion to strike (#115). The plaintiffs filed a new motion to strike (#119). The plaintiffs' objections were based primarily on the claim that the defendant cannot be allowed to file successive motions to strike the same causes of action.
In addressing these pleadings the court is required to first determine whether, under the circumstances of this case, successive motions to strike are proper. If so, the court must then determine whether each count of the plaintiffs' complaint is legally insufficient as claimed in the motion to strike.
DISCUSSION I. Successive Motions to Strike
The plaintiffs argue that defendant's motion is inappropriate. Specifically, they maintain that the defendant is precluded by our rules of practice from filing successive motions to strike. In response, the defendant argues that his present motion to strike falls within an exception to the rule precluding successive motions. Essentially, the defendant insists that his first motion was denied on procedural grounds and that the merits of his claims have not yet been addressed. He further argues that his present motion does not raise new grounds and that the court should find that his present motion is appropriate and address its merits. Similar issues have been the subject of a number of Superior Court decisions.
Most courts which have considered the issue have found that successive motions to strike are not appropriate. "Although the appellate courts have not ruled on the issue, in numerous cases, the judges of the Superior Court have concluded that the rules of practice preclude a party from filing successive motions to strike when the grounds raised in a later motion could have been raised in the initial motion . . . [T]he judges reason that Practice Book [ § 10-41] provides that each motion to strike shall set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each claimed insufficiency . . . Practice Book [ § 10-43] provides that a judge deciding a motion to strike in which more than one ground is asserted shall specify the ground relied upon in striking a claim . . . [Because] [t]he Practice Book provides for pleading multiple grounds in a single motion to strike and, further, provides that pleadings are to advance after the adjudication of each enumerated pleading, a defendant may not impede the progress of the suit by dividing his grounds and pleading them in consecutive motions to strike . . . [Therefore], a defendant who has failed to raise all grounds for striking a complaint may not [later] file a second motion to strike asserting additional grounds . . . However, [a] second motion to strike may be appropriate in limited circumstances. For example, when a plaintiff pursuant to Practice Book § 10-44, files a subsequent pleading alleging new facts . . . Additional motions to strike, however, are not allowed when the grounds asserted therein could have been raised in an earlier motion." (Citation omitted; internal quotation marks omitted.) Sivilla v. Leidel, Superior Court, judicial district of Litchfield, Docket No. 07 5001487 (February 6, 2008, Pickard, J.) (44 Conn. L. Rptr 732); see also Grazioli v. Nichols, Superior Court, judicial district of New Haven, Docket No. CV 06 5001604 (October 2, 2007, Lopez, J.) (44 Conn. L. Rptr. 273); Wright Brothers Builders, Inc. v. East Haven Building Supply, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 054006387 (March 30, 2007, Nadeau, J.) (43 Conn. L. Rptr. 144) (denying a second motion to strike because grounds asserted in the second motion could have been raised in the initial motion).
However, at least three superior courts have addressed circumstances that are similar to those presently before the court. See Irahieta v. Donaldson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182260 (December 12, 2001, Adams, J.); Knickerbocker v. Village Apartments Properties, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 0058389 (September 23, 1992, Pickett, J.) [7 Conn. L. Rptr. 414]; Gillette v. New Milford, Superior Court, judicial district of Litchfield, Docket No. 0054791 (September 16, 1992, Pickett, J.) [7 Conn. L. Rptr. 820]. Specifically, those courts were presented with successive motions to strike in which the defendants' previous motions had been denied for failing to articulate the grounds of the motion in violation of the Practice Book rules. In each of these cases, the court determined that successive motions were appropriate.
In Knickerbocker v. Village Apartments Properties, Inc., supra, Superior Court, Docket No. CV 0058389, the court noted that the "Practice Book . . . [does] not prohibit [a party] from filing a second motion to strike." Further, in Irahieta v. Donaldson, supra, Superior Court, Docket No. CV 01 0182260, the court found that "[t]he defendant's . . . [successive] motion to strike was prompted by . . . a failure of the [the previous motion] on a matter of form. [The defendant] thus is not improperly attempting to assert additional or different grounds in each successive motion. To the contrary, each successive motion and memorandum are substantively identical to the ones filed previously. Moreover, the plaintiff has not been subject to any delay or prejudice. [The defendant] wasted no time in addressing the defect in form of the second motion, indeed, the third motion is dated the very same day that the second motion was denied, and, within one week, the defendant's third motion, his supporting memorandum and the plaintiff's opposition memorandum had all been filed. Finally, the plaintiff has suffered little prejudice, if any, in terms of the time and effort required to respond to each successive motion, the plaintiff herself having filed each time a substantively identical opposition memorandum. For these reasons, this court rejects the plaintiff's claim of procedural impropriety and considers [the defendant's] motion on the merits."
The court finds that the reasoning of the second line of cases is more persuasive with respect to the issues before the court. First, the latter cases addressed circumstances that are similar to the procedural posture of the present case. Moreover, the cases that have precluded successive motions generally addressed circumstances in which the moving party asserted new grounds in a successive motion. Unlike those cases, however, the defendant in the present case is not attempting to assert new grounds. Instead, he merely seeks to rectify a mistake regarding the form of his earlier motion. Indeed, the new motion is almost identical to the previous motion and does not require the plaintiffs to exert or expend additional time or effort in addressing the defendant's arguments.
The court recognizes that this action has remained stagnant for several years. Nevertheless, the court is also aware that the sufficiency of the plaintiffs' complaint can and must be resolved at some point. For example, the defendant can address the sufficiency of the plaintiffs' complaint in the form of a summary judgment motion. See Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). While the fact that there are alternative procedural vehicles for attacking a complaint's legal sufficiency might appear to weigh in the plaintiffs' favor, such mechanisms also make it clear that the legal sufficiency of the plaintiffs' complaint will be addressed at some point. Accordingly, concerns regarding judicial economy weigh in favor of the court addressing the defendant's present motion to strike.
Finally, "[t]he design of [the] rules [of practice] being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. Practice Book § 1-8. Further, the [r]ules of practice must be construed reasonably and with consideration of this purpose . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding." (Internal quotation marks omitted.) Shapero v. Mercede, 77 Conn.App. 497, 508 n. 18, 823 A.2d 1263 (2003).
If the court were to deny the defendant's motion to strike based upon procedural grounds business would not be facilitated, nor justice advanced. Instead, the court would simply be delaying an inevitable examination of the sufficiency of the plaintiffs' complaint. This delay might well require both parties to expend needless time, effort and money. As such a result appears to contradict the purpose of the Practice Book rules, the court finds that it is appropriate to entertain and decide the defendant's motion to strike.
CT Page 11266
II. Consideration of the Merits of the 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). Finally, " conclusory statements absent supportive facts [are] insufficient to survive [a] motion to strike . . ." (Emphasis added.) Melfi v. Danbury, 70 Conn.App. 679, 686, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).First Count — Fraud
Regarding the first count, the defendant argues that the plaintiffs have failed to plead, with the required specificity, the necessary elements for a cause of action sounding in fraud. The defendant maintains that the plaintiffs have failed to allege how they relied upon any of his representations. In response, the plaintiffs insist that they have met the requirements for an action sounding in fraud and point to specific paragraphs in their complaint.
It should be noted that none of the plaintiffs' most recent memoranda address the defendant's substantive arguments. Nevertheless, at oral argument, the plaintiffs' attorney did reference her initial memorandum of law that was filed on July 22, 2005. As the plaintiffs apparently rely upon their initial memorandum, and because the defendant's new motion to strike is virtually identical to his previous motion to strike, the court will rely upon the arguments set forth in the plaintiffs' initial memorandum opposing the defendant's motion to strike.
"Under the common law . . . it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . All of these ingredients must be found to exist." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 681, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). Additionally, "[b]ecause specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). Finally, in Visconti v. Pepper Partners Ltd. Partnership, 77 Conn.App. 675, 683, 825 A.2d 210 (2003), the court noted that "the plaintiff must . . . [allege] sufficient facts to demonstrate his reliance on the statement made by [the defendant]."
In their first count, the plaintiffs have failed to allege, with any specificity, the manner in which they relied upon any of the defendant's alleged representations. Instead, they merely allege that "the plaintiffs did rely upon the aforementioned representations to their detriment and suffered damages." This conclusory allegation is insufficient to support a cause of action sounding in fraud. As the elements of fraud must be alleged with some specificity, the court grants the defendant's motion with regard to the first count.
Third Count — Malpractice
The defendant argues that the plaintiffs' malpractice count is insufficient because they fail to claim that the defendant owed them a duty of care. The defendant also asserts that the plaintiffs' failure to allege that the defendant caused the plaintiffs' injuries renders their third count legally insufficient. The plaintiffs respond by identifying the elements necessary for a cause of action sounding in malpractice and then provide the court with specific examples of where they have alleged each of those elements in the complaint.
"There are four essential elements to a malpractice action. They are: (1) the defendant must have a duty to conform to a particular standard of conduct for the plaintiff's protection; (2) the defendant must have failed to measure up to that standard; (3) the plaintiff must suffer actual injury; and (4) the defendant's conduct must be the cause of the plaintiff's injury." (Emphasis added.) LaBieniec v. Baker, 11 Conn.App. 199, 202-03, 526 A.2d 1341 (1987).
In their third count, the plaintiffs claim that the defendant provided them with misleading, inaccurate and incomplete financial statements. They also allege that, as a result, they relied upon those statements. Finally, the plaintiffs claim that, because of the defendant's "failure to act in accordance with the standards of his industry, the plaintiffs suffered damages." These allegations are conclusory and thus not sufficient to survive a motion to strike. See Melfi v. Danbury, supra, 70 Conn.App. 686 (2002).
Indeed, it is almost impossible to discern the manner in which the plaintiffs relied upon the financial statements provided by the defendant. Additionally, the plaintiffs omit any allegation regarding the connection between their reliance and their actual injuries. Finally, the plaintiffs fail to articulate the nature or specific cause of their injuries. For these reasons, the court finds that the plaintiffs have failed to allege sufficiently that the defendant caused the plaintiffs' injuries. The court grants the defendant's motion to strike the third count.
As the plaintiffs have failed to allege that the defendant caused their injuries, the court need not address whether the defendant owed the plaintiffs a duty of care.
Second Count — Negligent Misrepresentation
In addressing the plaintiffs' second count, the defendant's argument is similar to his argument regarding the plaintiffs' third count. Specifically, he maintains that the plaintiffs' negligent misrepresentation count is legally insufficient because of the plaintiffs' failure to allege that the defendant owed them a duty of care. The defendant also insists that, because the plaintiffs have not alleged that they justifiably relied upon the defendant's representations, the third count must fail. In addressing these arguments, the plaintiffs again provide the court with relevant case law and then, without more, assert that their allegations conform to the requirements necessary to state a cause of action sounding in negligent misrepresentation.
Additionally, the defendant maintains that any conduct occurring prior to April 1, 2001, is barred, pursuant to General Statutes § 52-577, by the statute of limitations. The court notes, however, that "[a] claim that an action is barred by . . . the statute of limitations must be pleaded as a special defense, not raised by a motion to strike. (Internal quotation marks omitted.) Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). As such, the court will not address this portion of the defendant's argument.
"Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." (Emphasis added.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). The courts have "long recognized liability for negligent misrepresentation . . . One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Petitte v. DSL.net, Inc., 102 Conn.App. 363, 372, 925 A.2d 457 (2007).
In their second count, the plaintiffs merely allege that they relied, "to their detriment," upon the defendant's negligent misrepresentations. This claim is conclusory and fails to explain, in any way, the manner in which they relied upon the defendant's representations. The court finds that the allegations of the plaintiff's second count are legally insufficient and accordingly grants the defendant's motion as to the second count.
Again, because the plaintiffs do not allege how they relied upon the defendant's representations the court need not resolve whether the defendant owed the plaintiffs a duty of care.
Fourth Count — CUTPA
Finally, the defendant argues that the plaintiffs' fourth count is not legally sufficient because malpractice claims are not covered by CUTPA. The defendant notes that, in actions involving professional negligence, CUTPA counts are appropriate only where those cases also include an entrepreneurial aspect of the professional practice. In response, the plaintiffs maintain that they have pleaded the requisite elements necessary to satisfy a cause of action sounding in CUTPA.
In Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997), the court held "that professional negligence — that is, malpractice — does not fall under CUTPA. [Instead] . . . only the entrepreneurial or commercial aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by CUTPA." In Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002), the court, in examining whether attorneys were subject to CUTPA, held that "it is important to note that, although all lawyers are subject to CUTPA, most of the practice of law is not. The `entrepreneurial' exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities-advertising and bill collection, for example."
In their fourth count, the plaintiffs fail to allege or argue that the defendant's conduct falls within the entrepreneurial exception to CUTPA. Instead, the defendant simply claims that the defendant's behavior "constitutes unfair or deceptive trade practices . . . in that his actions were immoral, oppressive, unscrupulous and caused substantial injury and . . . ascertainable losses to the plaintiffs . . ." As the plaintiffs' fourth count omits any reference to an entrepreneurial aspect of the defendant's conduct, the court grants the defendant's motion to strike the fourth count.