Opinion
No. CV 03-0827483
September 20, 2006
MEMORANDUM OF DECISION ON MOTION TO REARGUE
Defendant moves to reargue this court's decision dated May 2, 2006 sustaining plaintiff's objection to defendant's motion to strike plaintiff's special defenses dated February 6, 2006. The grounds for the court's decision was that the motion was untimely pursuant to Connecticut Practice Book § 10-8.
This case which involves a foreclosure based on defendant's alleged failure to pay common charges was started by a complaint dated July 16, 2003. The court has gone through the file and notes enumerable motions relating to pleadings, default and nonsuit, sanctions, and discovery. The defendant filed a counterclaim and special defenses to which the plaintiff filed an answer and special defenses on November 29, 2004. On January 20, 2006, fourteen months later, the plaintiff moved to strike the plaintiff's special defenses to his counterclaim. Practice Book Section 10-8 provides pleadings shall advance within thirty days from the return date, and motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading. Section 10-6 provides the order of pleadings. Although the court believes defendant waited too long to file the motion to strike it does deny the motion on that basis. Rather, the court turns to the substance of the motion to strike.
Defendant's First Count of its counterclaim alleges nonpayment of legal fees. Plaintiff's first special defense as to the First Count of defendant's counterclaim alleges that the plaintiff had no written agreement with the plaintiff in violation of the rules of professional conduct. This states a valid defense. DeSarbo Reichert, P.C. v. Cardow, 1996 Westlaw 72735 (1996). The second special defense to the Second Count of plaintiff's counterclaim alleges that any oral agreement between the parties is unenforceable as beyond the statute of limitations. That also states a valid defense. Defendant's legal services alleged to have occurred in 1998. Pertinent Connecticut Statute § 52-581 provides that no action upon an oral agreement shall be brought within three years after the cause of action accrues. The Third Count of defendant's counterclaim alleges unjust enrichment. Plaintiff's defense to that count is that it did not unjustly fail to pay the defendant. Since the plaintiff has claimed that the defendant did not have the required written fee agreement, the courts have indicated an unwillingness to enforce unwritten fee agreements. Freccia Plotkin v. Castro, 17 Conn. L. Rptr. 555 Sept. 9, 1996 (D'Andrea, J.); Kantrovitz Brownstein, P.C. v. Ruotola, Judicial District of New Haven at New Haven, docket no. CV 95-0371252 (December 20, 1996, Burns, JTR.). The plaintiff has clearly stated a valid defense to the counterclaim of unjust enrichment.
Defendant's Fourth Count of its counterclaim is that the plaintiff violated the Fair Debt Collection Practices Act, § 536a-649 et. seq. The plaintiff's special defense to that count is that it is barred by the Statute of Limitations applicable under the act. That is clearly a validly alleged defense.
Defendant's fourth count again alleges a violation of the same act. Plaintiff's special defense to that count is that that act does not authorize a private cause of action. Connecticut National Bank v. Montanan, Judicial District of Hartford-New Britain at Hartford, docket no. 517808 (January 26, 1994, Aurigemma, J.) 11 Conn. L. Rptr. 10 and Yale New Haven Hospital v. DeMatteo, 23 Conn. L. Rptr. 37 (August 12, 1998, Fracasse, J.).
The Fifth Count of defendant's counterclaim alleges damages for plaintiff illegally barring defendant's parking. Plaintiff does not oppose this count.
The sixth count of defendant's counterclaim alleges a violation of Connecticut Unfair Trade Practices Act. The plaintiff replies that the act does not apply to condominiums. Rafalowski v. Old County Road, 45 Conn.Sup. 341, aff'd. 245 Conn. 504 (1998); Sargis v. Seventy Grove Hill Condominium Ass'n, 1990 W.L. 289578, (July 19, 1990, Aronson, J.) ( 2 Conn. L. Rptr. 152); see also New Section Glen Oaks Condominium v. Glen Oaks Associates, 4 CSCR378 (March 17, 1989). That is clearly a valid defense.
The motion to reargue is granted and on reconsideration the defendant's motion to strike plaintiff's defenses to counts one, two, three, four, and six is denied and granted as to count five.