Opinion
No. FSTCV08-5008479S
July 8, 2011
Memorandum of Decision on Motion to Strike (No. 212)
FACTUAL/PROCEDURAL BACKGROUND
On August 20, 2008, the plaintiffs, Carmine A. Fusaro and Umberto Fusaro, filed an application for prejudgment remedy and a proposed writ, summons and complaint, against the defendants, Asif A. Malik, Malik's Financial, LLC and Attorney David A. Rogers. In the operative pleading, which is the revised complaint dated October 15, 2010, the plaintiffs allege the following facts that are relevant to the disposition of the motion that is presently before the court. The plaintiffs own three different properties located on West Main Street and Brodwood Drive in Stamford. Between 2001 and 2008, the plaintiffs refinanced the mortgage on these properties a number of times. Attorney Rogers provided the plaintiffs with legal representation regarding this mortgage refinancing, which was done through Malik, a mortgage broker, and his company, Malik's Financial, LLC. The plaintiffs allege that they relied on the advice given to them by Malik and Attorney Rogers because they were unsophisticated in financial matters. As a result of their reliance on Malik and Attorney Rogers regarding their mortgage refinancing, the plaintiffs contend that they have suffered grievous financial consequences and they are now unable to afford their mortgage payments. Consequently, in their revised complaint, the plaintiffs have brought twenty-seven counts against the three defendants. Counts nineteen through twenty-seven are directed at Attorney Rogers. Specifically, the claims levied against Attorney Rogers are: (1) count nineteen — breach of fiduciary duty; (2) count twenty — unjust enrichment; (3) count twenty-one — statutory theft pursuant to General Statutes § 52-564; (4) count twenty-two — violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a (CUTPA); (5) count twenty-three — conversion; (6) count twenty-four — negligent misrepresentation; (7) count twenty-five — fraud; (8) count twenty-six — negligence and (9) count twenty-seven — breach of the implied covenant of good faith and fair dealing.
In response to the operative complaint, on February 14, 2011, Attorney Rogers filed an amended answer that interposed ten special defenses. Attorney Rogers' special defenses simply state as follows: (1) as to count nineteen: "The plaintiffs' claims are barred, in whole or in part, by the statute of limitations contained in Connecticut General Statutes § 52-577"; (2) as to count twenty: "The plaintiffs' claims are barred, in whole or in part, by the statute of limitations contained in Connecticut General Statutes § 52-577" and "[t]he plaintiffs' claims are barred, in whole on in part, by the doctrine of laches"; (3) as to count twenty-one: "The plaintiffs' claims are barred, in whole or in part, by the statute of limitations contained in Connecticut General Statutes § 52-577"; (4) as to count twenty-two: "The plaintiffs' claims are barred, in whole or in part, by the statute of limitations contained in Connecticut General Statutes § 42-110g (f)"; and (5) as to counts twenty-three, twenty-four, twenty-five, twenty-six and twenty-seven: "The plaintiffs' claims are barred, in whole or in part, by the statute of limitations contained in Connecticut General Statutes § 52-577." There are no facts at all alleged in support of these special defenses.
On February 22, 2011, the plaintiffs filed a motion to strike all of Attorney Rogers' special defenses and a memorandum of law in support of their motion. The plaintiffs move to strike the special defenses on the ground that these defenses are legally insufficient because they do not allege sufficient facts as required by Practice Book §§ 10-1 and 10-50. On March 9, 2011, Attorney Rogers filed a memorandum of law in opposition to the plaintiffs' motion. The court heard argument in this matter at short calendar on March 14, 2011.
LEGAL DISCUSSION
Practice Book § 10-39 provides in relevant part: "(a) Whenever any party wishes to contest . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." "In . . . ruling on . . . [a] motion to strike [special defenses], the trial court . . . [must] take the facts to be those alleged in the special defenses and . . . construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Therefore, "[i]f facts provable in the [special defenses] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, "[a] motion to strike is properly granted if the [pleader] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) CT Page 15005 Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
The sole ground raised in the plaintiffs' motion to strike is that Attorney Rogers' "Special Defenses are legally insufficient [because he] did not allege sufficient facts in support of the Special Defenses, as required by Connecticut Practice Book § 10-50 and § 10-1." (Emphasis in original.) Furthermore, the plaintiffs contend that Attorney Rogers' special defenses are mere legal conclusions, and, as a result, they should be stricken. Attorney Rogers offers two arguments in opposition to the plaintiffs' motion. First, Attorney Rogers argues that a motion to strike is not the proper procedural mechanism to challenge a failure to plead adequate facts and that this should be addressed in a request to revise. Second, Attorney Rogers contends that his special defenses are legally adequate as they are currently pleaded. Each of these arguments will be addressed in turn.
As is reflected in the parties' respective memoranda of law, there is a split of authority in the Superior Court regarding whether a failure to plead facts in support of a special defense should be raised in a request to revise or a motion to strike. Nevertheless, this court has previously ruled on a motion to strike that is similar to the one that is currently before this court. In East Greyrock, LLC v. OGC Associates, Inc., Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X08CV 04-4002173 (June 6, 2008, Jennings, J.) ( 45 Conn. L. Rptr. 753), the plaintiffs moved to strike special defenses on the ground that the defendants' "special defenses [were] all insufficient as a matter of law under Practice Book § 10-1 for the failure of the defendants to plead adequate supporting facts to support their legal conclusions of doctrines of defense." Id., 754. This court analyzed the plaintiffs' argument in the context of a motion to strike and ordered some of the defendants' special defenses stricken.
The conclusion that the court can address the plaintiffs' argument via a motion to strike makes sense given the language of the applicable Practice Book provisions and the decisional law of this state. Practice Book § 10-50 provides in relevant part: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specifically alleged." (Emphasis added.) Practice Book § 10-1 further provides that Connecticut is a fact pleading state, and, as a result: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." (Emphasis added.) Moreover, as stated by the Connecticut Supreme Court, "[t]he fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Without a clear statement of the facts upon which a defendant is relying in furtherance of his defense, a plaintiff would not properly be on notice of the issues raised in the case. Accordingly, the court can examine the plaintiffs' argument regarding Attorney Rogers' failure to allege facts in support of his special defenses because without any factual basis, the special defenses do not comply with the rules of practice. See, e.g., Dominick v. Rivas, Superior Court, judicial district of New Haven, Docket No. CV 08 0313197 (March 6, 2009, Abrams, J.) ( 48 Conn. L. Rptr. 125, 126) (stating that "[the] defendant argues that [the] plaintiff waived [her] right to challenge the legal sufficiency of the special defenses at issue because she failed to file a request to revise. The court finds no authority in the Practice Book for the proposition that one who does not file a request to revise in the face of a legally insufficient pleading is precluded from prevailing on a motion to strike"). Nor can this court find any prejudice to the defendant in having the sufficiency of his special defenses tested by the vehicle of a motion to strike since, should any special defense(s) be stricken, the defendant would have fifteen days under Practice Book § 10-44 to file a substitute pleading, which presumably would be similar if not identical to the revision he would have filed in response to a request to revise.
Having made this determination, the court must now decide whether Attorney Rogers' special defenses are legally sufficient. As the special defenses in question simply state that "[t]he plaintiffs' claims are barred, in whole or in part, by the statute of limitations [found in § 52-577 and § 42-110g(f)]" and "[t]he plaintiffs' claims are barred, in whole or in part, by the doctrine of laches," there is little question that Attorney Rogers has alleged no facts in support of his special defenses. In his memorandum of law, Attorney Rogers argues that his special defenses are legally sufficient because "the defendant's special defenses specifically responded to each of the plaintiffs' claims and explicitly stated the applicable statute of limitations. Moreover, each statute of limitations cited as a defense is clear as to what conduct it governs and for how long such claims may be brought." In essence, Attorney Rogers' argument is that the court can look to the allegations of the plaintiffs' complaint in order to determine the factual underpinnings of his special defenses.
In its East Greyrock, LLC v. OGC Associates, Inc., supra, 45 Conn. L. Rptr. 753, decision, this court stated that: "in assessing the sufficiency of . . . special defenses, a court may look not only to the `few' facts specifically alleged in the special defenses themselves but also to the abundant, facts alleged in the counts of the complaint to which the special defenses are directed, and the paucity of factual allegations in the special defenses themselves is not a fatal procedural defect as claimed by the plaintiffs. It might have been better practice for the defendants to have incorporated into their special defenses those paragraphs of the complaint deemed to be key to sustaining the application of the pleaded theories of defense, but the failure to do so does not render the special defenses legally insufficient." Id., 754.
Given this court's previous ruling in East Greyrock, there is an argument to be made that Attorney Rogers' statute of limitations based special defenses are legally sufficient because the relevant issues in determining the applicability of the statute of limitations are the dates of the acts giving rise to the case and the date that the matter was legally commenced. As the operative complaint alleges that the defendants committed a series of malfeasances between 2001 and 2008 and this case was commenced in 2008, it is reasonable to assume that Attorney Rogers believes that the plaintiffs are time barred from pursing claims based on activities outside the applicable statute of limitations period. Nevertheless, the present case is distinguishable from East Greyrock because, in contrast to the East Greyrock defendants, Attorney Rogers has pleaded absolutely no facts in support of his special defenses. Obviously not all the plaintiffs' allegations of wrongdoing would be barred by any Connecticut statute of limitations since acts occurring in the latter stages of the alleged 2001-2008 time range could be within mere weeks or months prior to commencement of suit, yet the defendant has failed to plead any facts at all which would put the plaintiff on notice as to the alleged acts of wrongdoing claimed to be time-barred. Moreover, it is important to note the general rule that, "[a] motion to strike is properly granted if the [pleader] 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. A bald assertion that the plaintiffs' claims are barred by the statute of limitations, like the one made by Attorney Rogers in his special defenses, is certainly a legal conclusion without any factual support. As a result, the court will follow the line of Superior Court cases that have found similar special defenses to be legally insufficient. See, e.g., Larobina v. First Union National Bank, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 99 0170845 (January14, 2004, Hiller, J.) (granting motion to strike when the defendant merely "assert[ed] statute of limitations defenses, but provide[ed] no subordinate facts from which this legal conclusion can flow"); AA Electronic Security Engineering, Inc. v. Sonitrol Security Systems of Hartford, Inc., Superior Court, Judicial District of Hartford, Docket No. CV 97 0576149 (September 13, 2001, Peck, J.) (striking special defenses because the "special defenses allege only that the . . . counts of the complaint are barred by their respective statutes of limitation . . . [I]n the context of special defenses, defendants need to plead facts consistent with the allegations that nevertheless demonstrate that the plaintiff has no cause of action. [The defendant] has pleaded solely that the action is barred by the applicable statute of limitations. Thus, the allegations of the . . . special defenses amount to no more than legal conclusions"); Neylan v. Pinsky, Superior Court, Judicial District of New Haven, Docket No. CV 95 0375368 (October 9, 1997, Zoarski, J.T.R.) (stating that "[t]he plaintiffs' motion to strike the third special defense, the statute of limitations should be granted . . . [because] the defendant failed to allege any facts to support this legal conclusion"); French v. Domnarski, Superior Court, Judicial District of Windham, Docket No. CV 94 0048532 (September 15, 1995, Foley, J.) (holding that "[t]he Defendant's fifth special defense is . . . defective . . . [because it] asserts a statute of limitations defense, but provides no subordinate facts from which this legal conclusion can flow").
Similarly, Attorney Rogers' laches special defense does not allege any facts to support his conclusion that the present case is barred under that doctrine. "Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question." (Citations omitted; internal quotation marks omitted.) Riscica v. Riscica, 101 Conn.App. 199, 207-08, 921 A.2d 633 (2007). Consequently, by definition, laches is a highly fact intensive inquiry that involves an examination of the reasonableness of the plaintiffs' delay and whether the defendant experienced any prejudice as a result of that delay. With the laches special defense in its present form, the plaintiffs have no way of knowing what facts Attorney Rogers is relying on in order to establish these elements. Accordingly, the court will also strike Attorney Rogers' laches special defense because it violates Connecticut fact pleading standards. See., e.g., Senise v. Merritt Seven Venture, LLC, Superior Court, Judicial District of Fairfield, Docket No. CV 02 0397413 (February 17, 2006, Rodriguez, J.) ( 40 Conn. L. Rptr. 770, 771) (striking laches special defense that simply alleged: "The claims set forth in the third party's complaint are barred by the doctrine of laches"); Todd M v. Richard L., 44 Conn.Sup. 527, 541, 696 A.2d 1063 (1995) (stating that "[t]he defendants' sixth special defense raises the issue of laches in the following manner: `Plaintiff's claims are barred by the doctrine of laches.' The Connecticut courts have held that a special defense of laches must be stricken if it fails to plead facts sufficient to support the legal conclusion that the claim is barred by laches").
ORDER
For all of the reasons stated above, the motion to strike Attorney Rogers' special defenses is granted in its entirety.