Opinion
No. CV 08-4034372S
December 10, 2009
MEMORANDUM OF DECISION
In this case the plaintiff has filed a complaint in several counts seeking damages and injunctive relief against two neighbors, the Lettieris and the Vasso/Guarinos who are represented by different counsel. The plaintiff's allegations are all based on his claim that each set of defendants have obstructed his right of way over a portion of land owned by the defendants and have maintained a malicious structure in the form of a steel rebar driven in the ground in the plaintiff's right of way.
The basis of the plaintiff Grant's claim is set forth in several paragraphs of the first count.
4. The deed to the Grant Property includes, as an appurtenance, an express easement granting a "right of way for all purposes whatsoever" over an eight (8) foot wide strip of land over a portion of the Lettieri Property.
5. The right of way in favor of the Grant Property is depicted on a survey attached hereto as Exhibit D.
6. The right of way in favor of the Grant Property runs from Cosey Beach Avenue in a generally southerly direction a distance of 100 feet.
7. The westerly boundary of the right of way is along the westerly boundary line of the Lettieri Property.
8. The westerly boundary of the southernmost 10.10 feet runs along with westerly boundary line of the Lettieri Property and the easterly boundary of the Grant Property.
9. The Plaintiff accesses his lot by way of the same driveway which provides egress and ingress to the Lettieri Property.
The counts lie in (1) Intentional Obstruction of the Right of Way (2) Negligent Obstruction of the Right of Way (3) Trespass (4) Nuisance (5) Malicious Erection of Structure (6) Quiet Title and as to Guarino/Vasso (7) Overburdening of Easement.
The Lettieris and Guarino/Vasso family have filed several counterclaims based on the same allegations but in differently numbered paragraphs following their answer and special defenses. The court will now list them: (A) It is alleged that the plaintiff's dogs urinate and defecate on the respective defendant's properties; the Lettieris claim this subjects them to noxious fumes and odors and they are required to clean and disinfect their properties; the Vasso/Guarino claim this canine activity has resulted in the destruction and deterioration of their property. The allegations are in trespass. (B) The second count of the Lettieris and Vasso/Guarino claim this canine activity lies in nuisance. (C) The Third Lettieri Count and the Fifth Count of Guarino/Vasso allege that the plaintiff "continually leaves his house to walk his dogs and perform other activities in the plain view of the counterclaim defendants without wearing pants or underwear, typically wearing a sweater only."
(1)
The plaintiff has filed a motion to strike arguing that counterclaims are only permitted in compliance with Practice Book Section 10-10 which states that a counterclaim may be filed "provided that such counterclaim . . . arises out of the transaction . . . which is the subject of the plaintiff's complaint."
Before addressing the merits of the plaintiff's motion the court must address a procedural issue raised by the Lettieris. The court file reflects that on April 21, 2009 counsel, on behalf of the Lettieris, filed a motion for default for failure of the plaintiff to plead to their special defenses and counterclaims. Practice Book § 17-32(a) states that "where a defendant is in default for failure to plead pursuant to Section 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar." That was not done here. The motion was not acted upon by the clerk until May 15, 2009; it was granted but on June 1, 2009 a clerk filed a corrected order and denied the motion because of the May 7, 2009 filing of a motion to strike by the plaintiff (counterclaim defendant). The Lettieris argue that the motion to strike is not viable since if their motion for default had been acted upon when filed, no motion to strike could have been properly filed.
But the plaintiff cannot be faulted for clerk's failure to act; he did not receive notice of the initial granting of the motion for default until after the motion to strike had been filed. It could be argued that having been certified as receiving a copy, plaintiff's counsel should be held to be aware of the Practice Book provision requiring that motions for default for failure to plead be granted upon filing. But that hardly seems reasonable since it would be the granting of such a motion that would prevent filing a motion to strike — should plaintiff's counsel be required to assume that the motion for default was actually filed?
In any event the Practice Book is not a straight jacket and not affording a hearing on the motion to strike the Lettieri counterclaims would result in an odd posture to the case. The Vasso/Guarino counterclaim plaintiffs cannot raise the same procedural objections to the court hearing the motions to strike three counterclaims which mirror those filed by the Lettieri counterclaim plaintiffs. Why should the plaintiff be deprived of his right to press the motion to strike against the Vasso/Guarino counterclaims?
Perhaps a simpler way of looking at the procedural issue is just to say that if a motion for default is granted, logically a motion to strike cannot be filed. Where it has not been granted for failure of the clerk's office to act upon it, further motion practice by the party against whom the default motion is directed cannot be barred.
3.
The court will now try to address the merits of the motion to strike. As previously noted the question raised by the motion to strike is whether the Lettieri and Vasso/Guarino counterclaims arise out of the transaction which is the subject of the plaintiff's complaint. That is the only permissible counterclaim practice under our rules of practice, specifically Section 10-10 of the Practice Book.
The court will attempt to review the cases interpreting "transaction" for counterclaim purposes. In Springfield-DeWitt Gardens, Inc. v. Wood, 143 Conn. 708, 713, 714 (1956) the court relied on an 1893 case Craft Refrigerator Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 560 et seq. for a definition of "transaction." The Wood case said there is an analogy "between the situation presented by counterclaims . . . and that presented by joinder of causes of action." Craft Refrigerator was a CT Page 910 joinder case but the Wood court relied on its definition of transaction for its counterclaim analysis. Craft Refrigerator like Wood said the word "transaction" must be given a liberal interpretation, this is necessary if joinder and counterclaim practice is to be rescued from pigeon hole common-law pleading requirements. But the interesting thing to note is that both these cases did not sanction an indiscriminate mix in one case of all claims or contentions the parties might have with each other. The Craft Refrigerator case as pages 560-61 said: "As the word is employed in American codes of pleadings and in our own Practice Act a transaction is something which has taken place whereby a cause of action has arisen. It therefore must consist of an act or agreement, or several acts or agreements having some connection with each other, in which more than one person is concerned and by which the legal relations of such persons between themselves are altered." (Emphasis by this court.)
Wood itself although stating it followed the "liberal" view of Craft Refrigerator, a joinder case, in deciding whether a counterclaim should be allowed seemed to adopt the just quoted language from Craft Refrigerator when it held the counterclaim was not appropriate. At 143 Conn. pages 714-15 the court said:
In the instant case the matter in controversy under the complaint arises out of a contract, the written lease, while the counterclaims concern tortious neglect of the plaintiff in performing certain duties owed because the parties stood in a landlord and tenant relationship. Although we subscribe to the view that our Practice Act and the rules under it should be liberally construed, we do not consider that the subject matter of the counterclaims is so connected with the matter in controversy under the complaint as to make its consideration necessary to a full determination of the rights of the parties. The liability which the counterclaims seek to enforce does not arise out of the written lease relied upon in the complaint but out of a tort flowing from the neglect of the landlord to keep the portion of the premises used in common by all the tenants in a reasonably safe condition.Jackson v. Conland, 171 Coun. 161 (1976) appears to sum up this prior law at pages 166-67. It analyzed the permissibility of a cross claim under Section 78 of the then existing Practice Book which is the precursor of our Section 10-10. Although ascribing to the view that "transaction" is a word of "flexible" meaning, it referred to federal case law which allowed cross claims "arising out of the transaction which is the subject matter . . . of the original action." The court went on to say that:
Relevant considerations in determining whether the "transaction test" has been met include whether the same issues of fact and law are presented by the complaint and the cross claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts. See Great Lakes Rubber Corporation v. Herbert Cooper Co., 286 F.2d 631, 634, (3d Cir.). Where the underlying purposes of Practice Book 78, to wit, judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action, are thwarted rather than served by the filing of a cross claim, the cross claim may properly be expunged.
In the present case, the Register filed its cross claim almost two years after the original action had been pending. The issues framed by the complaint and cross claim raise substantially different factual and legal questions. Those presented by the complaint can be decided, for the most part, by reviewing the actions of the trustees in light of the terms of the John Day Jackson trust. In contract, the cross claim alleges forty pages of wrongdoing by Gannett concerning the Register's purchase of the Times. Extensive evidence unrelated to the plaintiffs' action would be required to substantiate those allegations. Those circumstances, as well as the remainder of the record before us, disclose that the court in no way abused its discretion in expunging the Register's cross claim.
More recent cases employ the same tests in deciding whether a counterclaim can be filed. In Northwestern Electric v. Rozbicki, 6 Conn.App. 417, 426 (1986), the court cited earlier cases saying: "Even in the older cases, a counterclaim sounding in tort could be filed in a contract action if `the subject matter of the counterclaim is so connected with the matter controversy under the original complaint that its consideration is necessary for a full determination of the rights of the parties.'" Also see JP Morgan Chase Bank Trustee v. Rodrigues, 109 Conn.App. 125, 131 (2008), where the court upheld the trial court's granting the plaintiff's motion to strike the defendant's counterclaim. This case, like others, cited language to the effect that joinder for trial in one case is to be permitted for the purposes of "judicial economy." Id., page 131. But the court also said that the judicial economy must occur in the context of a finding that the counterclaim arises out of or is related to the subject matter of the plaintiff's complaint. Thus at page 133 the court said of one of the counterclaims: "The disparity between the subject matter of the plaintiff's complaint and that of the defendant's counterclaim warranted the court's conclusion that the counterclaim did not arise from the same transaction." Or to look at it from another perspective, the courts seem to be saying that where the legal claim of the complaint and the evidence to prove it is completely different from the claims of the counterclaim and the evidence that will be used to establish it, there really is no judicial economy to be achieved.
It is also helpful to underline the limitations inherent in the transaction test as not sanctioning joinder or counterclaims reflecting all claims the litigants may have between each other by referring to the Federal Rules of Civil Procedure. Rule 13 deals with counterclaims and cross claims and in subsection (a) says under the heading "Compulsory Counterclaim" that "A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." But then in subsection (b) it says "Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory . . ." We do not have the federal practice, "permissive counterclaims not arising out of the transaction plead on a plaintiff's complaint are not permissible under PB § 10-10."
4.
The court will try to apply these principles to the issue before it. As noted both defendants as counterclaim plaintiffs make the same counterclaims that are subject to the motion to strike.
In opposition to the motion to strike it is argued that this is a dispute between neighbors. It is said that it is in the parties' and the court's best interest to try all aspects of the dispute, all claims and counterclaims in one litigation. These considerations may suffice under Federal Rule 13a to establish the right to assert a permissive counterclaim. Standing alone they will not suffice under our Section 10-10 rules of practice. What must be kept in mind, at least in the court's opinion, is that the transaction which is the subject of the plaintiff's complaint is the predicate for any analysis under PB § 10-10. The counterclaim must arise out of the transaction which is the subject of the plaintiff's complaint. The plaintiff's complaint as to all its counts rests simply on an alleged granting of a right of way over a portion of the Lettieri property and the alleged interference by defendants with that right of way. That is, to prevail the plaintiff must establish a (1) right of way and (2) interference with that right of way all of which gives rise to the several causes of action asserted.
It is suggested that between the complaint and the counterclaim there is a commonality of law and facts which should permit all the claims being tried together. But the particularities of the commonality are not alluded to by the defendants. How can the fact that the plaintiff's dogs engage in free will urination and defecation or that the plaintiff may be proven to walk around in the nude have anything to do — either separately or together — with rebutting the right of way claim or the interference claim which are the bases of the plaintiff's complaint? Or to turn the argument around, if the plaintiff could crushingly rebut the allegations of the counterclaims how will this aid him in establishing his right of way claim or claim of interference with the right of way which have nothing to do with his dogs or how he is attired when walking them? Nor can it be suggested, for example, that the plaintiff is only bringing this suit because his neighbors expressed annoyance at his dogs' actions or his attire or lack thereof. Even if that were true from the point of view of motive for initiating the litigation, it has nothing to do with whether the plaintiff should prevail on the subject matter of the complaint he has filed.
The court grants the motion to strike counts one, two, and three of the Vasso/Guarino counterclaims and counts one, two, and five of the Lettieri counterclaims.