Opinion
No. CV 07-5013871 S
April 10, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #112
FACTS
The plaintiffs' complaint dated August 21, 2007 alleges that on September 3, 2005, the plaintiff, Frennis Walden, sustained personal injuries and losses as a result of the defendant's negligent operation of a motor vehicle. On November 5, 2007, the defendant answered the plaintiffs' complaint which included a special defense alleging comparative negligence. By reply dated January 2, 2008 (filed January 3, 2008), the plaintiffs replied to the defendant's special defense and claimed the case for trial. The pleadings closed with the plaintiffs' reply to the defendant's special defenses. On January 17, 2008, the defendant filed a counterclaim for property damage to his vehicle as a result of the alleged motor vehicle collision.
DISCUSSION
"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). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
"A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
"In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading] . . ." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); See also Saucier v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177767 (December 5, 2003, Matasavage, J.) ( 36 Conn. L. Rptr. 110) (looking to facts alleged in the apportionment complaint on a motion to strike). The court must "construe the [challenged pleading] in the manner most favorable to sustaining its legal sufficiency." Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
The plaintiffs move to strike the defendant's counterclaim filed January 17, 2008, for the reason that said counterclaim is barred by the statute of limitations set forth in General Statutes § 52-584 and cannot be cured by amendment. The plaintiffs contend that the two-year statute of limitations for negligence claims under § 52-584 had run when the counterclaim was filed on January 18, 2008. [Unquestionably, if the two-year limit controls, this request is untimely, as the accident happened on September 3, 2005.].
The defendant, however, avers that a counterclaim need not be brought within the statute of limitations of underlying counterclaim so long as it falls within the counterclaim exception provided in § 52-584. The counterclaim exception allows a defendant to interpose a counterclaim, "anytime before the pleadings in such action are finally closed." The defendant asserts that amendments to pleadings are within the discretion of the court and thus, the pleadings are not "finally closed." Using this reasoning, the defendant asserts that although the plaintiffs replied to the defendant's special defenses on January 3, 2008, the pleadings were never "finally closed," and the counterclaim is timely.
The plaintiffs argue that the pleadings were closed when the plaintiffs filed their reply to the defendant's special defenses on January 3, 2008. In the plaintiffs' view, once the pleadings were closed, the defendant was forever foreclosed from utilizing the counterclaim exception of § 52-584.
Section 52-584 states: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, . . . except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed." "The word `such' has been construed as a related adjective referring back to and identifying something previously spoken of and that it naturally, by grammatical usage, refers to the last precedent." Nichols v. Warren, 209 Conn. 191, 197, 550 A.2d 309 (1988). "The last precedent to `such action' in § 52-584 is: action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice. Thus, pursuant to General Statutes § 52-584 . . . a defendant may interpose a counterclaim in an action for injury to person or property [caused by negligence] at any time before the pleadings are finally closed." Moore v. Sergi, 38 Conn.App. 829, 832 n. 2, 664 A.2d 795 (1995).
The defendant is correct in stating that a counterclaim set forth before the pleadings are closed need not fall within the statute of limitations, as such a counterclaim falls within the exception. However, the defendant does not provide support for the position that once the pleadings are closed pursuant to Practice Book § 10-6, the court can open the pleadings and allow a counterclaim to be filed that would otherwise be barred by the statute of limitations. Neither the defendant nor the court has found a single case where a court has used its power to allow the drastic action of permitting a party to circumvent the applicable statute of limitations and file a counterclaim which otherwise could have been pleaded with the answer and special defenses.
As sole support for its position, the defendant cites Ideal Financing Assoc. v. Labonte, 120 Conn. 190, 180 A. 300 (1935), which provides that a court can permit an amendment at any time, even after judgment. In Ideal Financing, the defendants challenged the trial court's refusal to reopen the judgment and allow the defendants to file an amended answer setting forth the invalidity of the underlying claim. The defendants failed to specially plead a defense, that upon proper pleadings, would have been a complete bar to the action. By failing to specially plead the defense, judgment was rendered in favor of the wrong party. In allowing the defendants to file an amended answer after judgment was already rendered, the court stated: "to refuse [the amendment] and allow the judgment to stand would apparently result in the miscarriage of justice." Id., 196.
The procedural posture of the present action allows it to be easily distinguished from Ideal Financing. In the instant matter, the defendant is asking the court to reopen the pleadings in order to assert a counterclaim that would otherwise be barred by the statute of limitations. This was not the case in Ideal Financing, where the defendants asked the court to reopen the pleadings to amend their answer to include a complete defense to the underlying cause of action. This court cannot say that the defendant will suffer a "miscarriage of justice" as a result of being barred from filing this counterclaim.
In Seletsky v. Roy, 23 Conn.Sup. 139, 144, 177 A.2d 805 (1961), Judge Harry Lugg observed that "the intendment of § 52-584" as to when pleadings are, "finally closed" remained undecided. In Seletsky, "the trial court noted that the defendant, who was seeking permission to amend the answer to add a counterclaim, clearly acknowledged that the pleadings were previously closed because that same party had filed a jury claim predicated on the closure of the pleadings. That court held that the mere procedural possibility of a later amendment which might necessitate the reopening of the pleadings was insufficient to undermine the finality of the closed pleadings and to invoke the counterclaim exception of § 52-584 . . . To allow that [circular] argument to prevail . . . would be to reduce the Statute of Limitations . . . to a meaningless pulp." (Citations omitted; internal quotation marks omitted.) Aka v. Provencher, Superior Court, judicial district of Tolland, Docket No. CV 05 5000143 (March 1, 2007, Sferrazza, J.)
In Aka v. Provencher, supra, the court held that the pleadings were never "finally closed" as a result of the "state of flux in the pleadings" and allowed the defendants to add a counterclaim even though the statute of limitations had run on the negligence claim. The court found that the counterclaim fell within the exception provided in § 52-584. In finding that the counterclaim fell within the exception, the court stated that the "adverb finally must modify the word closed in some meaningful way. Otherwise, the statute would have read `any time before the pleadings in such action are closed,' rather than `any time before the pleading in such action are finally closed.' The court infers from the use of `finally' that the legislature recognized that pleadings often are closed temporarily but without having achieved a settled state of repose in the minds of the parties." Id. However, the court emphasizes that "when the answer was amended to add the special defense . . . the two-year limitation period had not yet run out. That is the pleadings in the case were never closed as to bar use of the counterclaim exception." Id.
In Fernandes v. Lee, Superior Court, judicial district of Fairfield, Docket No. CV 97 0346664 (April 7, 1999, Skolnick, J.), the plaintiffs moved to strike the defendant's counterclaim in its entirety on the ground that the counterclaim is untimely since it was neither brought within two years from the date of the injuries nor before the pleadings were closed. The defendant answered the plaintiffs' complaint and raised a special defense. The court held that the plaintiffs' reply to the special defense closed the pleadings. The court stated that "when a defendant raises a special defense, the plaintiff's reply to the special defense closes the pleadings." See Griggs v. BG Land, Inc., 24 Conn.App. 610, 612, 590 A.2d 982 (1991). In striking the defendant's counterclaim, the court held that counterclaim was not only filed after the statute of limitations had run, but also after the pleadings were closed.
The reasoning in Fernandes is equally applicable to the present case. It is clearly set forth in Practice Book § 10-6 that when a defendant raises a special defense, the plaintiff's response closes the pleadings. Thus, there is no reason why the parties should not have been aware that the pleadings closed on January 3, 2008, when the plaintiffs responded to the defendant's special defenses. The defendant had the opportunity to file a counterclaim with his answer and special defense but chose not to do so. Instead, the defendant waited to file a counterclaim after the pleadings were closed and the statute of limitations had run.
The purpose of the statute of limitations is well settled in our law. The enactment of a such a statute reflects a policy of law, as declared by the legislature, that after a given length of time a party should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability. See Beebe v. East Haddam, 48 Conn.App. 60, 67, 708 A.2d 231 (1998).
CONCLUSION
This court will not exercise its authority to reopen the pleadings and allow a party to circumvent the applicable statute of limitations as set forth by the legislature, in order to file a counterclaim that would otherwise be time barred. The pleadings closed when the plaintiffs replied to the defendant's special defenses. Therefore, the phrase in § 52-584 referring to "any time before the pleadings in such case are finally closed," as applied to this case, precludes the filing of a counterclaim at this time.
Consequently, the defendant's counterclaim is deemed untimely and the plaintiffs' motion to strike the defendant's counterclaim is granted.