Opinion
CV116011442S.
11-16-2012
CACH, LLC v. Elissa SPEER, et al.
UNPUBLISHED OPINION
COSGROVE, J.
FACTS
On November 29, 2011, the plaintiff, CACH, LLC, filed a two-count complaint against the defendants, Elissa Speer and Sheco Developments, LLC, alleging default on an open end credit account and account stated. On July 2, 2012, the court, Martin, J., denied the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction. Presently before the court is a motion to strike the complaint filed by the defendant Speer.
In his July 2, 2012 memorandum of decision, Judge Martin set forth the following facts as alleged by the plaintiff in its complaint. " The plaintiff, as successor in interest to Bank of America, N.A., holds title to a credit account held by the defendants. The defendants are currently in default of their payment obligations because they have failed to pay the outstanding amount of $9, 916.74, in addition to interest and costs of suit. Prior to initiating the present suit, the plaintiff purchased and/or was assigned the credit account from Bank of America, N.A. or from a successor of Bank of America, N.A. Moreover, the defendants were sent account statements that set forth the charges and amounts due on the defendants' credit account. The defendants received the account statements and did not object to the account statements or indicate that the account statements were erroneous. The final account statement indicates that a balance is due and owing."
On July 10, 2012, Speer moved to strike the complaint in its entirety. On July 26, 2011, the plaintiff filed its memorandum of law in opposition, and the plaintiff additionally moved for sanctions in the form of reasonable attorneys fees. The motion was on the short calendar on July 30, 2012. Counsel for the plaintiff was present, but Speer did not appear.
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). " [I]t 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.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation mark omitted.) Connecticut Coalition of Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).
Speer sets forth five grounds in her motion to strike. First, Speer argues that the complaint does not set forth facts that allege subject matter jurisdiction. Second, Speer argues that the plaintiff failed to join or to give notice to an interested party. Third, Speer argues that the complaint does not set forth sufficient facts to state a claim that the plaintiff may recover. Fourth, Speer argues that the complaint does not adequately apprise her of the nature of the claims against her. Fifth, Speer argues that the complaint is deficient for the purposes of General Statutes § 52-91. The plaintiff counters that the court has already addressed these arguments in its memorandum of decision regarding motion to dismiss number 102. The plaintiff argues that Speer is precluded from bringing this motion under the doctrines of collateral estoppel and law of the case.
With respect to Speer's first argument regarding subject matter jurisdiction, this court, Martin, J., already determined that this court has subject matter jurisdiction. See CACH, LLC v. Speer, Superior Court, judicial district of New London, Docket No. CV 116011442 (July 2, 2012, Martin, J.) (" Further, a review of the complaint reveals that the plaintiff has alleged facts establishing the court's subject matter jurisdiction over its claims"). Accordingly, Speer's motion to strike is not granted on this ground.
With respect to Speer's second argument regarding the failure to join a necessary party, she argues that the complaint " ambiguously attempts to say that both Bank of America and someone else transferred the debt alleged to the [p]laintiff." Speer argues that this ambiguity requires the court to " logically assume that the [c]omplaint alleges a partial transfer of debt with a significant portion somehow owned or controlled by someone else." In the complaint, the plaintiff has alleged that it " holds the right, title and interest and is [the] bona fide owner of a credit account held by the [d]efendants." In determining the legal sufficiency of the complaint, the court must take the plaintiff's allegation that it is the holder of the credit account as admitted. See Coe v. Board of Education, supra, 301 Conn. at 116-17. Reading the complaint broadly and realistically, the plaintiff has alleged that it was transferred the entire credit account. See Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. at 253. Therefore, the plaintiff has not failed to give notice to an interested party, and Speer's motion to strike is not granted on this ground.
With respect to Speer's third and fourth arguments, she argues that the plaintiff does not allege an account number, does not state whether it is seeking prejudgment or postjudgment interest and does not specify a specific statute in the prayer for relief. Speer further argues that the complaint fails to adequately apprise her of the nature of the allegations against her in the following ways: by failing to provide detail that specifically identifies the claim; by failing to specify the exact nature of the default; by failing to allege where the facts in the complaint occurred; and by providing only a nebulous claim as to whom may have transferred the debt to the plaintiff.
" [I]t is well settled that [t]he failure to include a necessary allegation in the complaint precludes recovery by the plaintiff under that complaint ... As a result, [i]t is incumbent on the plaintiff to allege some recognizable cause of action in his complaint." (Citation omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010). In count one of the plaintiff's complaint, the plaintiff alleges a claim for default on an open end credit account. " The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Hawley Avenue Associates, LLC v. Robert D. Russo, M.D. & Associates Radiology, P.C., 130 Conn.App. 823, 832, 25 A.3d 707 (2011). In the present case, the plaintiff has alleged that Speer accepted a credit account from Bank of America, N.A., the credit account was purchased and/or assigned to the plaintiff, and Speer has defaulted in her payment obligations, which resulted in a balance due and owing to the plaintiff. Therefore, the plaintiff has alleged facts supporting the elements of a breach of contract claim.
In count two of the plaintiff's complaint, the plaintiff alleges a claim for account stated. " The theory of account stated is described as follows: ‘ The delivery by the [creditor] to the [debtor] of each statement of the latter's account, with the [documentation] upon which the charges against [the debtor's account] were based, [is] a rendition of the account so that the retention thereof for an unreasonable time constitute[s] an account stated which is prima facie evidence of the correctness of the account.’ " Citibank (South Dakota), N.A. v. Evvard, 128 Conn.App. 843, 844 n. 2, 18 A.3d 682 (2011). In the present case, the plaintiff has alleged that account statements, which set forth the charges and amounts due, were sent to Speer, that Speer received the statements and did not protest timely, nor indicate that the account statements were erroneous, and the final account statement indicated that a balance is due and owing. Therefore, the plaintiff has alleged facts supporting the elements of a claim for account stated.
Speer's arguments seeking more specificity in the allegations of the complaint are not properly addressed through a motion to strike. See, e.g. Practice Book § 10-35 (" Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading ... the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading"). Accordingly, the plaintiff has set forth cognizable causes of actions in both counts that apprise Speer of the allegations against her, and Speer's motion to strike is not granted on these grounds.
With respect to Speer's fifth argument regarding the prayer for relief's failure to comply with § 52-91, she argues that the plaintiff's claim is based on a contract theory but the plaintiff does not articulate whether it is based on an express or implied contract. Section 52-91 provides in relevant part: " [I]n a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum." In the present case, the plaintiff has pleaded two claims in its complaint, specifically default on an open end credit account and account stated. Under the account stated theory, a defendant's obligation arises from receiving monthly statements, not protesting or objecting timely to the statements and the statements reflecting an amount due. See Citibank (South Dakota), N.A. v. Evvard, supra, 128 Conn.App. at 844 n. 2. As discussed above, the plaintiff has pleaded facts supporting a prima facie claim for account stated against Speer. Where, as here, the plaintiff has pleaded in the alternative, the cited language of § 52-91 does not require a finding that the prayer for relief is legally insufficient. Accordingly, Speer's motion to strike is not granted on this ground. Speer's motion in its entirety must be denied.
With respect to the plaintiff's request for sanctions, the plaintiff argues that Speer should be sanctioned for filing a frivolous motion that attempts to relitigate issues previously decided by the court. The plaintiff argues that Speer's motion to strike is an attempt to delay adjudication and lacks merit. Although Speer makes similar arguments in both her motion to dismiss and her motion to strike, Speer's motion to dismiss challenged the court's subject matter jurisdiction whereas Speer's motion to strike challenges the legal sufficiency of the complaint, which was not decided in the memorandum of decision regarding the motion to dismiss. Given the different procedural posture of the motions, the court does not believe that sanctions are merited.
CONCLUSION
Based on the foregoing, Speer's motion to strike is denied.