Opinion
FBTCV166059874
09-05-2017
Lorenzo Taylor v. East End Baptist Tabernacle Church, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #108
Michael P. Kamp, J.
The motion before the court is the defendant's motion to strike counts one and two of plaintiff's revised complaint, as well as the prayers for relief with respect to the order of attorneys fees and costs pendente lite and pursuant to General Statutes § 33-1038(c). For the reasons cited herein, the court denies the defendant's motion to strike as to counts one and two, and grants the motion to strike as to the prayers for relief concerning the order of attorneys fees and costs pendente lite and pursuant to General Statutes § 33-1038(c).
FACTS
On February 14, 2017, the plaintiff, Lorenzo Taylor, filed a two-count revised complaint against the defendant, East End Baptist Tabernacle Church, Inc. The plaintiff alleges that as a result of his refusal to sign the " Servant Leader's Stewardship Covenant, " he was removed from his active position as a member of the defendant's diaconate. The plaintiff further alleges that Article IV, Section E of the defendant's bylaws requires a two-third majority vote of the diaconate and joint board, or a simple majority vote of the congregation, to remove a member of the diaconate. The plaintiff alleges that the defendant did not remove the plaintiff from his position in accordance with the aforementioned provision. Thus, in counts one and two, the plaintiff asserts cause of action for ultra vires pursuant to General Statutes § 33-1038 and a writ of mandamus pursuant to General Statutes § 52-485, respectively. In his prayers for relief, the plaintiff requests, among other things, an order of attorneys fees and costs pendente lite and pursuant to General Statutes § 33-1038(c).
On May 8, 2017, the defendant filed the present motion to strike counts one and two of the plaintiff's revised complaint, as well as the prayers for relief with respect to the order of attorneys fees and costs pendente lite and pursuant to § 33-1038(c). The defendant also filed an accompanying memorandum in support. On July 7, 2017, the plaintiff filed a memorandum of law in opposition. The court heard oral argument at short calendar on July 24, 2017.
DISCUSSION
" 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.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). In addition, " Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." (Footnote omitted.) Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
I. COUNT ONE--ULTRA VIRES
First, the defendant argues that count one should be stricken because the plaintiff has failed to allege that all affected persons are parties to the proceeding pursuant to § 33-1038(c).
General Statutes § 33-1038(c) provides: " In a member's or director's proceeding under subdivision (1) of subsection (b) of this section to enjoin an unauthorized corporate act, the court may enjoin or set aside the act, if equitable and if all affected persons are parties to the proceeding, and may award damages for loss, other than anticipated profits, suffered by the corporation or another party because of the enjoining of the unauthorized act."
In response, the plaintiff contends that the defendant's argument would require the court to find facts that are outside of the four corners of the complaint. In his revised complaint, the plaintiff alleges that he alone refused to sign the " Servant Leader's Stewardship Covenant, " and that he alone was removed from his active position as a member of the church's diaconate. The plaintiff does not allege that any other deacons refused to sign the covenant and were thereafter removed. With respect to the applicable standard for a motion to strike, " [t]he trial court may not seek beyond the [challenged pleading] for facts not alleged, or necessarily implied, and this court will not." (Internal quotation marks omitted.) Beck & Beck, LLC v. Costello, 159 Conn.App. 203, 207, 122 A.3d 269 (2015). Since the plaintiff and the defendant are the only alleged affected persons, and because both are also parties to the present proceeding, the defendant's motion to strike count one of the plaintiff's revised complaint is denied.
II. COUNT TWO--WRIT OF MANDAMUS
Next, the defendant argues that count two should be stricken because the plaintiff has failed to plead a prima facie case for a writ of mandamus pursuant to § 52-485. Specifically, the defendant maintains that the plaintiff has failed to allege that (1) the law has imposed a mandatory duty on the defendant to remove a member of the diaconate in accordance with the bylaws and (2) that the plaintiff has a clear legal right to have the defendant abide by those bylaws. The defendant also argues that the alleged duties are derived from the King James Version of the Holy Bible and that the court may not evaluate church doctrine. In response, the plaintiff argues that the language of the bylaws creates a legal duty on the part of the defendant to act in accordance with that language and thus, because he has alleged the relevant language in his revised complaint, his cause of action for writ of mandamus is sufficient. The plaintiff further maintains that, as a deacon, he has an unambiguous legal right to the amount of due process afforded through the bylaws for the removal of a member of the diaconate. The plaintiff also argues that although the bylaws reference biblical verses, the crux of the bylaws are founded upon express contractual language and thus, the court may properly consider his claim.
General Statutes § 52-485(a) provides: " The Superior Court may issue a writ of mandamus in any case in which a writ of mandamus may by law be granted, and may proceed therein and render judgment according to rules made by the judges of the Superior Court or, in default thereof, according to the course of the common law."
" The writ [of mandamus] is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Greenfield v. Reynolds, 122 Conn.App. 465, 469, 1 A.3d 125, cert. denied, 298 Conn. 922, 4 A.3d 1226 (2010). " [M]andamus is often an appropriate remedy for the reinstatement of a member of an incorporated benevolent or social society, who has been unlawfully and unreasonably deprived of the enjoyment of the rights and privileges of membership in such societies . . . Such associations, although private corporations, are chartered by the State, and enjoy privileges and exercise powers expressly granted by the State, and for that reason the duties devolving upon them are regarded as of a public character, the performance of which may properly be compelled by writ of mandamus." (Internal quotation marks omitted.) Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 534, 450 A.2d 369 (1982).
In his revised complaint, the plaintiff alleges that the defendant is a domestic nonstock corporation with a principal place of business in Bridgeport. The plaintiff further alleges that Article IV, Section E of the defendant's bylaws governs the removal of members of the diaconate and that it provides, in relevant part: " A member of the diaconate may resign or be removed. Removal shall be by due process according to (Matt. 18: 15-17 KJV) and upon a two-third majority vote of the Diaconate and Joint Board, or a simple majority vote of the congregation at any church business meeting." The plaintiff alleges that the defendant did not remove him from his position as an active deacon in accordance with those bylaws and that he has no other adequate remedies at law or in equity.
" The defendant, as a nonstock corporation, has those powers permitted by the nonstock corporation statutes, its certificate of incorporation, and its bylaws. Where the corporation acts in excess of those powers, those acts may be enjoined by a member of the corporation." Sterner v. Saugatuck Harbor Yacht Club, Inc., supra, 188 Conn. 535. See also General Statutes § 33-1056(a) (" membership shall be governed by such rules of admission, retention, withdrawal and expulsion as the bylaws shall prescribe , provided all such bylaws shall be reasonable, germane to the purposes of the corporation, and equally enforced as to all members" [emphasis added]). Here, the plaintiff has sufficiently alleged that the defendant's bylaws govern the removal of a member of the diaconate, that the defendant has failed to act in accordance with those bylaws, and that he has no other adequate remedies at law or in equity. Moreover, although the cited bylaws make reference to biblical scripture, the determination of whether the plaintiff has sufficiently alleged that the defendant did not act in accordance with those bylaws for the purposes of a motion to strike does not require the court to review and to interpret religious doctrine and practices. See Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 671, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010). The plaintiff alleges that his removal was not voted upon by the Diaconate and Joint Board or by the congregation at any church business meeting and thus, the defendant did not abide by the governing bylaws. Accordingly, the defendant's motion to strike count two of the plaintiff's revised complaint is denied.
III. PRAYERS FOR RELIEF
Finally, as to the prayers for relief, the defendant argues that Connecticut does not allow for awards of attorneys fees and costs pendente lite with respect to an ultra vires action. In addition, the defendant maintains that § 33-1038 similarly does not provide for awards of attorneys fees and therefore, there is no legal basis for those prayers for relief. Although the plaintiff did not put forth any argument in his memorandum of law concerning this issue, he argued at short calendar that the court may only strike counts of a complaint, and not lines or paragraphs, and therefore the motion to strike with respect to the prayers for relief is improper.
Contrary to the plaintiff's argument at short calendar, the court may properly strike a prayer for relief as Practice Book § 10-39(a)(2) provides in relevant part: " A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint . . ." Thus, the court will evaluate the merits of the defendant's motion to strike as to the prayers for relief concerning the award of attorneys fees and costs. " [W]hen it comes to attorneys fees, Connecticut follows the American Rule . . . Pursuant to that rule, attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 326 Conn. 438, 451, 165 A.3d 1137 (2017). " Because [the court] must respect the legislative prerogative of choosing the special circumstances under which [attorneys fees] awards may be made . . . [the court requires] a clear expression of the legislature's intent to create a statutory exception." (Citation omitted; internal quotation marks omitted.) Fleming v. Garnett, 231 Conn. 77, 94, 646 A.2d 1308 (1994). " To put it simply, when the General Assembly [wants] to authorize the award of attorneys fees it [knows] how to do it." Chrysler Corp. v. Maiocco, 209 Conn. 579, 593, 552 A.2d 1207 (1989).
Here, § 33-1038(c) does not explicitly provide for awards of attorneys fees and costs. Rather the statute provides, in relevant part, that " the court . . . may award damages for loss, other than anticipated profits, suffered by the corporation or another party because of the enjoining of the unauthorized act." (Emphasis added.) " In various other statutes, when our legislature has utilized the phrase 'any loss, ' it has further provided that the term 'any loss, ' 'include[s] reasonable attorneys fees' or punitive damages." Ames v. Commissioner of Motor Vehicles, 70 Conn.App. 790, 801, 802 A.2d 126 (2002), aff'd, 267 Conn. 524, 839 A.2d 1250 (2004). Section 33-1038 is devoid of any express language authorizing awards of attorneys fees and costs in connection with the phrase " damages for loss" and thus, the court " will not presume that the legislature intended for [§ 33-1038(c)] to operate in derogation of our long-standing common-law rule disfavoring the award of attorneys fees to the prevailing party." Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 533, 839 A.2d 1250 (2004). Therefore, because the plaintiff cannot be legally awarded attorneys fees and costs under § 33-1038(c), the court grants the defendant's motion to strike the plaintiff's prayers for relief concerning the award of attorneys fees and costs pendente lite and pursuant to § 33-1038(c).
CONCLUSION
In light of the foregoing, the court denies the defendant's motion to strike as to counts one and two, and grants the motion to strike as to the prayers for relief concerning the order of attorneys fees and costs pendente lite and pursuant to General Statutes § 33-1038(c).