Opinion
No. CV04 041 04 21 S
August 25, 2004
MEMORANDUM OF DECISION MOTION TO STRIKE (MOTION 104 DATED APRIL 29, 2004)
By amended complaint dated April 16, 2004, the plaintiff commenced this action to enforce an oral contract for the conveyance of real estate. The defendant had filed a motion to strike, arguing that the plaintiff's recovery is precluded by the statute of frauds, Connecticut General Statutes 52-550.
Connecticut General Statutes 52-550 provides:
(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.
(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.
"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. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "What is necessarily implied [in an allegation] need not be expressly alleged. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . ." (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 593 A.2d 293 (1997).
The statute of frauds, General Statutes § 52-550, requires that every agreement or memorandum of an agreement for the sale of real property or any interest in or concerning real property be in writing. LR Realty v. Connecticut National Bank, 53 Conn.App. 524, 541, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). Since the plaintiff's cause of action concerns the transfer of real estate, the alleged agreement between the plaintiff and defendant falls within the statute and thus he defendant's motion to strike is proper in this case. However, "Courts [will] permit the [s]tatute of [f]rauds to be raised by a motion to strike only when the alleged agreement falls squarely within those categories of agreements required to be in writing." (Internal quotation marks omitted.) Guillette v. McAlpine, Superior Court, judicial district of Windham at Putnam, Docket No. CV 020068940 (March 24, 2003, Foley, J.); see Breen v. Phelps, 186 Conn. 86, 93-94, 439 A.2d 1066 (1982). Thus, in order for the plaintiff to survive a motion to strike a count that would otherwise be barred by the statute of frauds, it is incumbent on the plaintiff to plead sufficient facts to take the claim out of the statute of frauds.
In the present case, the plaintiff has alleged performance with a contract for the conveyance of realty. "Full or part performance of an agreement gives rise to equitable considerations removing the oral agreement from the operation of the [s]tatute of [f]rauds . . ." (Citations omitted.) Dore v. Devine, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 000176933 (October 6, 2000, D'Andrea, J.) ( 28 Conn. L. Rptr. 313); see Stanley v. M.H. Rhodes, Inc., 140 Conn. 689, 695, 103 A.2d 143 (1954). Presuming, as this court must, that the plaintiff's allegations are true, equitable considerations require presentation of her claim. Barrett Builders v. Miller, 215 Conn. 316, 331, 576 A.2d 455 (1990); Urda v. Sahl, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 02 0468800, (April 17, 2003, Arnold, J.). The defendant's motion to strike the first count is denied.
DEWEY, J.