Opinion
No. KNL-CV-07-5003832
October 22, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #106
FACTS
On July 5, 2007, the plaintiffs, Theodore Hiscox, Ellen Tinturin and Laura Burdick, filed a three-count complaint against the defendants, Carl and Catherine M. Peru. The plaintiffs allege that they own an easement and right of way over a certain parcel of land for the purpose of access to the shore. The plaintiffs further allege that the defendants improperly claim that they have a fee simple title to the subject parcel of land, when in actuality the defendants merely have a right of access to the shore through the parcel. The plaintiffs further contend that the defendants have wrongfully interfered with the plaintiffs' easement by demolishing a boat ramp and launch, and by changing the physical character of the subject premises. The plaintiffs also claim that, as a result of the defendants' wrongful interference, they have suffered a devaluation of their home. Accordingly, the plaintiffs argue that the defendants should be permanently enjoined from wrongfully interfering with the easement, ordered to rebuild the boat ramp and launch, and ordered to restore the premises to its prior state. In their claims for relief the plaintiffs also seek attorneys fees.
On June 26, 2008, the defendant, Carl Peru, filed a motion to strike the plaintiffs' claims for a permanent injunction and attorneys fees. The defendant argues that the plaintiffs' claim for a permanent injunction should be stricken because the plaintiffs have failed to provide verification, under oath, of the facts which are the basis of the claim for injunctive relief, pursuant to General Statutes § 52-471(b). The defendant also argues that the plaintiffs' claim for attorneys fees should be stricken because they have failed to allege any contractual or statutory basis for the recovery of such.
DISCUSSION
"Practice Book § 10-39(a) provides: Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or . . . the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike . . ." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256 n. 20, 905 A.2d 1165 (2006). Accordingly, "a claim for relief [may] be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 996, 325, 709 A.2d 1089 (1998).
"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). "[C]onsequently, [such motion] requires no factual findings by the trial court." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). "In . . . ruling on [a] . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the [complaint] and to construe the [complaint] in the manner most favorable to sustaining [its] legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Thus, "[i]f facts provable in the complaint 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).
I Permanent Injunction
The defendant argues that the plaintiffs' claim for a permanent injunction is legally insufficient because the plaintiffs have failed to comply with the statutory requirements set forth in General Statutes § 52-471(b), by failing to verify the complaint by the oath of the plaintiffs or of some competent witness. General Statutes § 52-471(b) provides: "No injunction may be issued unless the facts stated in the application therefor are verified by the oath of the plaintiff or of some competent witness." The statute does not state, however, specifically how or when the facts need to be verified. "In contrast, [General Statutes § 52-473] states, in pertinent part, that [n]o temporary injunction may be granted without notice to the adverse party unless it clearly appears from the specific facts shown by affidavit or by verified complaint that irreparable loss or damage will result to the plaintiff before the matter can be heard on notice.
"[T]he difference between a temporary and permanent injunction may explain the requirement of an oath for each. The purpose of a preliminary injunction is to maintain the status quo, pending a final determination on the merits . . . It would seem to follow, therefore, that the court would require the plaintiff to attest by oath to the truth of his claim, before it issued a temporary injunction, or heard the case on its merits. Before a permanent injunction may be issued, it must be decided upon facts proved at trial . . . The facts and statements to be proved at trial would be given, under oath, at the time of the trial." (Internal quotation marks omitted.) DeMartino v. DiSora, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 90 030509 (November 27, 1990, Curran, J.). See Gerdis v. Bloethe, 39 Conn.Sup. 53, 55, 467 A.2d 689 (1983). Accordingly, "[w]hile [General Statutes § 52-471(b)] requires the facts stated in an application for injunction to be verified by the oath of the plaintiff or some competent witness before the court may grant an injunction, it does not require the plaintiff to file a verified complaint or affidavit before the court may exercise jurisdiction over an action for an injunction." (Internal quotation marks omitted.) Corcoran v. German Social Society Frohsinn, Inc., Superior Court, judicial district of New London, Docket No. CV 562775 (May 20, 2003, Hurley, J.). See Weinberg v. Helfand, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 95 0144935 (September 22, 1995, Karazin, J.) ( 15 Conn. L. Rptr. 141); DeMartino v. DiSora, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 90 030509 (November 27, 1990, Curran, J.). "A party seeking injunctive relief may be allowed to verify its allegations at the time of trial and a verified complaint or affidavit is only required when a party is seeking a temporary injunction without notice pursuant to [General Statutes § 52-473]." (Internal quotation marks omitted.) Weinberg v. Helfand, supra, 15 Conn. L. Rptr. 142.
"The plain language of 52-471 prohibits the court from issuing an injunction if the verification is lacking, but it does not deprive the court of jurisdiction to entertain the lawsuit or to issue process to defendants." Endyke v. Haverly, Superior Court, judicial district of New Haven, Docket No. CV 97 0401549 (October 1, 1997, Pittman, J.) ( 20 Conn. L. Rptr. 414).
In the present case, the plaintiffs have not asked for a temporary injunction, rather they seek a permanent injunction. As previously stated, this will require the plaintiffs to give proof, under oath, at trial. Although the complaint was not verified by oath, the plaintiffs are not required to submit a verified complaint or affidavit, at the outset, because the defendants in this action had notice of the claim. Therefore, since General Statutes § 52-471(b) does not require the plaintiffs to file a verified complaint or affidavit before the court may exercise jurisdiction over the action for a permanent injunction, the plaintiffs' claim for injunctive relief is legally sufficient. Thus, the defendants' motion to strike the plaintiffs' claim for a permanent injunction is denied.
II
CT Page 16764
Attorneys Fees
The defendant also argues that the plaintiffs' claim for attorneys fees is legally insufficient because the plaintiffs have failed to identify any contractual or statutory basis for the claim. "[T]he common law rule in Connecticut, also known as the American Rule, is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . Because we must respect the legislative prerogative of choosing the special circumstances under which [attorneys fees] awards may be made . . . we require a clear expression of the legislature's intent to create a statutory exception [to the rule]." (Internal quotation marks omitted.) Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 695, 945 A.2d 464 (2008). Here, the plaintiffs' complaint fails to allege any contractual or statutory basis for their claim for attorneys fees. Thus, the defendants' motion to strike the plaintiffs' claim for attorneys fees is granted.CONCLUSION
Based on the foregoing, the court hereby denies the defendants' motion to strike the plaintiffs' claim for a permanent injunction, and grants the motion to strike the claim for attorneys fees.