Opinion
No. LLI CV 10 6001611S
September 24, 2010
MEMORANDUM OF DECISION
This is a motion to strike (#101) filed by the defendant seeking to strike the declaratory judgment paragraphs in counts one and two of the complaint and the corresponding prayers for relief. For the reasons given, the motion must be granted.
On February 4, 2010, the plaintiff, Wittman Battenfeld, Incorporated, filed a two-count complaint against the defendant, United Refrigeration, Incorporated, as a result of an allegedly defective compressor that was purchased by the plaintiff from the defendant for the purpose of selling it to a third party, Flex-N-Gate, LLC (FNG). The plaintiff also alleges the following facts. On June 9, 2009, the plaintiff sent a purchase order to the defendant to effectuate the sale of the compressor. The FOB term in the purchase order was "point of origin," and the purchase order specified where the defendant was to ship the compressor. In a June 15, 2009 Federal Express bill of lading, which was drafted by the defendant, the defendant did not specify the correct address for shipment of the compressor per the purchase order. The shipment was intended to be delivered to Secomex, LLC (Secomex), a warehouse. Ultimately, the compressor arrived at Secomex days after the specified date of delivery, but it was inoperable as a result of damage.
In count one of the plaintiff's complaint, which bears the heading "breach of contract," the plaintiff alleges that the defendant had a duty to form a contract with Federal Express or another carrier under General Statutes § 42a-2-504 for the appropriate transportation of the compressor to the address cited in the purchase order. The plaintiff alleges that the defendant did not form such a contract with Federal Express or another carrier and, as a result, it breached its contract with the plaintiff, as laid out in the purchase order. Additionally, the plaintiff alleges that the defendant bore the risk of loss at the time the compressor was damaged, pursuant to General Statutes § 42a-2-510. Within count one, the plaintiff also seeks a declaration pursuant to General Statutes § 52-29 that the defendant bore the risk of loss at the time the compressor was damaged.
Section 42a-2-504 provides: "Where the seller is required or authorized to send the goods to the buyer and the contract does not require him to deliver them at a particular destination, then unless otherwise agreed he must (a) put the goods in the possession of such a carrier and make such a contract for their transportation as may be reasonable having regard to the nature of the goods and other circumstances of the case; and (b) obtain and promptly deliver or tender in due form any document necessary to enable the buyer to obtain possession of the goods or otherwise required by the agreement by usage of trade; and (c) promptly notify the buyer of the shipment. Failure to notify the buyer under paragraph (c) or to make a proper contract under paragraph (a) is a ground for rejection only if material delay or loss ensues."
Section 42a-2-510 provides: "(1) Where a tender or delivery of goods so fails to conform to the contract as to give a right of rejection the risk of their loss remains on the seller until cure or acceptance. (2) Where the buyer rightfully revokes acceptance he may to the extent of any deficiency in his effective insurance coverage treat the risk of loss as having rested on the seller from the beginning. (3) Where the buyer as to conforming goods already identified to the contract for sale repudiates or is otherwise in breach before risk of their loss has passed to him, the seller may to the extent of any deficiency in his effective insurance coverage treat the risk of loss as resting on the buyer for a commercially reasonable time."
In count two of the plaintiff's complaint, which bears the heading "indemnification," the plaintiff alleges that the contract between the plaintiff and the defendant requires the defendant to indemnify the plaintiff for any liabilities arising out of the defendant's acts or omissions. Specifically, the plaintiff alleges that the purchase order provides: "16. INDEMNITY The seller agrees to indemnity [sic] and save the Buyer harmless against all liabilities, claims or demands for injuries or damages to any person or property arising out of Seller's acts or commissions [sic] in the performance of this contract." The plaintiff alleges that since the defendant failed to ship the compressor to the appropriate address, FNG, the third party purchasing the compressor from the plaintiff, was injured because the compressor ultimately arrived inoperable. Moreover, the plaintiff alleges that it has been injured because its relationship with FNG has been damaged, and it has incurred potential liability to FNG, including legal expenses preparing to defend a possible lawsuit brought by FNG. Within count two, the plaintiff also seeks a declaration under § 52-29 that the defendant must indemnify and hold the plaintiff harmless against all liabilities, costs and expenses incurred by the plaintiff arising out of the improper shipment of and/or damage to the compressor.
In its prayer for relief, the plaintiff seeks: (1) compensatory damages as to count one; (2) a declaratory judgment as to count one that the defendant bore the risk of loss at the time the compressor was damaged; (3) a declaratory judgment as to count two that the defendant must indemnify and hold the plaintiff harmless for any liabilities, costs, and expenses, including attorneys fees that it incurs; and (4) any other and further relief as the court deems proper.
On April 5, 2010, the defendant filed a motion to strike counts one and two "to the extent that those counts seek declaratory judgments" and the plaintiff's second and third prayers for relief relating to the declaratory judgments. The defendant also filed a memorandum of law with its motion. On May 13, 2010, the plaintiff filed a memorandum in opposition to the defendant's motion to strike, and on July 2, 2010, the defendant filed a reply memorandum. This matter was heard at the short calendar on July 12, 2010.
Practice Book § 10-39 provides in relevant part: "(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof. (b) A motion to strike on the ground of . . . noncompliance with Section 17-56(b) [procedure for a declaratory judgment action] must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action."
In its motion to strike, the defendant argues that, to the extent both the first and second counts of the complaint and their corresponding prayers for relief seek declaratory judgments, the counts and the respective prayers for relief should be stricken because the plaintiff has not joined or provided reasonable notice to all persons who have an interest in the subject matter of the requested declaratory judgments, as required by Practice Book § 17-56(b). First, the defendant argues that FNG, Federal Express and Secomex are not named as parties, nor have they been given notice of the action. The defendant lists all of their addresses in its motion to strike. Second, the defendant argues that the plaintiff has failed to append the required certificate to its complaint, which is also required by Practice Book § 17-56(b). Third, the defendant argues that there is no actual bona fide and substantial question or issue in dispute or substantial uncertainty that requires settlement between the parties, as required by Practice Book § 17-55(2), because FNG has not brought suit against the plaintiff, nor has the plaintiff sued FNG. Thus, the defendant asserts that any claims in the first and second counts are hypothetical, not ripe for consideration and nonjusticiable. Finally, although the plaintiff claims otherwise, the defendant argues pursuant to Practice Book § 17-55(3) that there is another proceeding to provide the plaintiff with immediate redress. Specifically, the defendant argues that the plaintiff could bring an action against FNG for nonpayment, and the defendant in the present matter could be joined as a third-party defendant.
In its memorandum in opposition, the plaintiff argues that the defendant's motion should be denied because the complaint concerns a contract for the sale of goods between the plaintiff and the defendant, and thus, they are the only parties with a direct and immediate interest in the subject matter. As a result, the plaintiff argues that there was no need to file a certificate of joinder or notice pursuant to Practice Book § 17-56(b) because there are no other parties with a direct, immediate and adverse interest to one or more of the parties in the present action. Additionally, the plaintiff argues that there are bona fide and substantial questions in dispute as to the risk of loss and the duty to indemnify. Finally, the plaintiff argues that there is no other form of proceeding that can provide it with immediate redress because it is concerned with the defendant's alleged breach of contract. As a result, a claim against a third party would not provide immediate redress against the defendant. Moreover, the plaintiff asserts that the motion to strike should not be granted on this ground because it is proper to claim alternative relief.
As an initial matter, the court notes several procedural issues in both the plaintiff's complaint and the defendant's motion to strike. First, the court notes that counts one and two appear to combine multiple causes of action. Count one appears to combine causes of action for breach of contract and a declaratory judgment, while count two appears to combine causes of action for indemnification and a declaratory judgment. Pursuant to applicable case law and the Practice Book, these combinations are improper. "[S]eparate causes of action must be pleaded in separate counts of a complaint." Falby v. Zarembski, 221 Conn. 14, 24, 602 A.2d 1 (1992). Moreover, Practice Book § 10-26 provides: "Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one."
The plaintiff's error is further complicated by the defendant's motion to strike. The defendant is moving to strike not only the prayers for relief seeking declaratory judgments, but also counts one and two to the extent that both counts request declaratory judgments. "The protocol is usually not to strike portions of a count, but rather all of the count, or none." Laperuta v. State, Superior Court, judicial district of New Britain, Docket No. CV 04 0525115 (October 2, 2007, Pittman, J.). Thus, on one hand, the court could deny the motion to strike as it is directed at counts one and two simply because the defendant did not file a request to revise to separate the counts before moving to strike. On the other hand, a single paragraph of a pleading may be subject to a motion to strike "when it attempts to set forth all of the allegations of a cause of action or defense." (Internal quotation marks omitted.) Maysonet v. Cogdell, Superior Court, judicial district of New Haven, Docket No. CV 08 5024267 (June 8, 2009, Wilson, J.). Since there are paragraphs in both the first and second counts of the plaintiff's complaint that attempt to set forth causes of action for declaratory judgments, the court concludes that these paragraphs are properly subject to the motion to strike. Thus, the court proceeds to the parties' substantive arguments.
Section 52-29(a) provides: "The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment." Practice Book § 17-54 et seq. also governs declaratory judgments. Practice Book § 17-55 provides: "A declaratory judgment action may be maintained if all of the following conditions have been met: (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure."
Practice Book § 17-56(b) provides in relevant part: "All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof . . . The party seeking the declaratory judgment shall append to its complaint or counterclaim a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof. If notice was given, the certificate shall list the names, if known, of all such persons, the nature of their interest and the manner of notice. (c) Except as provided in Sections 10-39 and 10-44, no declaratory judgment action shall be defeated by the nonjoinder of parties or the failure to give notice to interested persons. The exclusive remedy for nonjoinder or failure to give notice to interested persons is by motion to strike as provided in Sections 10-39 and 10-44 . . ."
In the present matter, the paragraphs of the first and second counts seeking declaratory judgments must be stricken as a result of the plaintiff's failure to comply with Practice Book § 17-56(b). The plaintiff has not appended a certificate to its complaint stating that all interested persons have been joined as parties to the action or have been given reasonable notice thereof. Moreover, although the plaintiff argues that FNG, Federal Express and Secomex do not have interests that are "direct, immediate and adverse" to either party in the present action, primarily because they are not parties to the contract between the plaintiff and the defendant, the court finds this argument unpersuasive. FNG is the ultimate beneficiary of the contract between the parties because it was the intended recipient of the compressor. Additionally, the plaintiff has alleged in its complaint that it is suing the defendant in part because it anticipates potential legal action against it by FNG, and the plaintiff also alleges that FNG was injured as a result of the defendant's failures. As a result, the court concludes that FNG has an interest that is direct, immediate and adverse to the plaintiff. As to Federal Express, the plaintiff alleges that Federal Express shipped the compressor and that the compressor was damaged during shipping. Thus, Federal Express appears to have an interest that is direct, immediate and adverse to the defendant. Finally, as to Secomex, it did not indicate on its delivery receipt form, which is attached to the complaint as exhibit c, that the compressor was damaged. Rather, a receiving party signed the receipt where it reads: "Shipment received in apparent order with wrap intact and unless otherwise noted," and the "damage" box listed beneath the signature line is not checked. This raises a question as to when the compressor was damaged. Thus, Secomex may have an interest that is direct, immediate and adverse to the defendant. As a result of the plaintiff's failure to join or give notice to all parties and attach a certificate to the complaint to that effect, the court grants the motion to strike the paragraphs of the first and second counts seeking declaratory judgments as well as their respective prayers for relief.
Although the court need not reach the parties' additional arguments, the court also concludes that the defendant's motion to strike should be granted on the ground that there is another form of proceeding that can provide the plaintiff with immediate redress, and the court is of the opinion that declaratory judgments are not appropriate in the present matter. "The appropriate vehicle for seeking a determination as to whether a plaintiff's declaratory judgment claim is appropriate under § 17-55(3) is a motion to strike. England v. Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981). To prevail on its motion, the defendant must show that the court could not in the exercise of sound discretion permit the action to proceed." (Internal quotation marks omitted.) Oxford Board of Education v. Environconsult, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 08 5011175 (March 12, 2010, Gallagher, J.). "It is well recognized that a declaratory judgment action is not designed to supplant established procedures except for good reason. Hartford Accident Indemnity Co. v. Williamson, 153 Conn. 345, 350, 216 A.2d 635 (1966). Thus, a declaratory judgment will not be rendered . . . where the court [is] of the opinion that the parties should be left to seek redress by some other form of procedure." (Internal quotation marks omitted.) Scottsdale v. Underwriters at Lloyds, Superior Court, judicial district of New Haven, Docket No. CV 06 4022710 (June 13, 2007, Holden, J.) ( 43 Conn. L. Rptr. 618, 618-19). "[W]hile a trial court is afforded such wide discretion to render a declaratory judgment, a court should not entertain an action for a declaratory judgment when an ordinary action affords a remedy as effective, convenient and complete . . . but unless that clearly appears, the matter rests within the discretion of the court. Leoni v. Water Pollution Control Authority, 21 Conn.App. 77, 83, [ 571 A.2d 153] (1990)." Mercury Ventures, Inc. v. Johnson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X05 CV 04 4002385 (February 7, 2006, Shay, J.).
By the plaintiff's own pleading, the plaintiff primarily characterizes this action as one based upon a breach of contract. If the plaintiff succeeds on its breach of contract and indemnification counts, there is no need for the court to declare the rights of the parties because those counts will provide immediate and complete relief to the plaintiff, and the court's interpretation of the contract will determine the parties' rights. Thus, the court concludes that the declaratory judgment paragraphs are superfluous and unnecessary and must be stricken on this ground, as well as on the ground of noncompliance with Practice Book § 17-56(b).
Although the defendant also claims that the declaratory judgment paragraphs and prayers for relief must be stricken on the ground that they are hypothetical and nonjusticiable and fail to state legally sufficient causes of action, the court declines to address this argument because justiciability implicates the court's subject matter jurisdiction. Thus, the question of justiciability is more appropriately raised on a motion to dismiss, not on a motion to strike. See generally Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008); Seymour v. Region One Board of Education, 261 Conn. 475, 803 A.2d 318 (2002) (reviewing the trial court's decision to grant a motion to dismiss a declaratory judgment action on the ground that the issue therein was nonjusticiable).
For the foregoing reasons, the court grants the motion to strike the declaratory judgment paragraphs of the first and second counts, as well as the respective prayers for relief.