Opinion
CV165031461S
02-02-2017
Robert Pritsker v. Andrew Bowman
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 108.00
Barbara N. Bellis, J.
The plaintiff, Robert Pritsker, commenced this action in contract and tort against his former attorney, the defendant, Andrew Bowman. The plaintiff's complaint consists of five counts: breach of contract, fraudulent/intentional misrepresentation, legal malpractice, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing.
On July 13, 2016, the defendant filed his answer and eight special defenses as to all counts of the plaintiff's complaint. The special defenses are as follows: (1) " [t]he plaintiff's complaint fails to state a cause of action or a claim upon which relief may be granted, " (2) " [a]t all times defendant fulfilled his constitutional duty to represent and to defend the plaintiff, " (3) " [a]t all times defendant acted in good faith in the performance of his duties as a criminal defense attorney for the plaintiff, " (4) " [a]fter a thorough review of the case, the arrest warrant affidavit satisfied the probable cause requirements, " (5) " [a]fter a thorough review of the case, there was no factual or legal basis to support a Franks Motion to Dismiss, " (6) " [t]he plaintiff applied for and was granted Accelerated Rehabilitation with a subsequent attorney which was the exact course of action recommended by the defendant to the plaintiff during the course of defendant's legal representation of the plaintiff and therefore the plaintiff has suffered no damage whatsoever, " (7) " [p]laintiff's claims are barred by the Doctrine of Issue Preclusion, " citing Pritsker v. Keating, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-5014277-S, (May 26, 2016, Lee, J.), and (8) " [p]laintiff's claims are barred by the applicable statutes of limitations."
On August 12, 2016, the plaintiff moved to strike each of the defendant's eight special defenses. Thereafter, the defendant filed a memorandum of law in opposition to the plaintiff's motion to strike. On September 26, 2016, the plaintiff filed a reply. Oral argument was heard on October 11, 2016.
At oral argument, the defendant stated that he may not be able to prove his eighth special defense at trial but did not concede that the defense should be stricken. The plaintiff chose to rest on his papers.
DISCUSSION
" A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001); Practice Book § 10-39(a). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). " On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient." (Internal quotation marks omitted.) Smith v. Jackson, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024411-S (August 21, 2015, Roraback, J.) (59 Conn.L.Rptr. 864, ). Finally, " the trial court is limited to considering the grounds specified in the motion [to strike]." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
Practice Book § 10-39(a) provides in relevant part that " [a] motion to strike shall be used whenever any party wishes to contest . . . 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."
The plaintiff has filed his motion to strike as a self-represented party. " [I]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party . . ." (Internal quotation marks omitted.) Multilingual Consultant Associates, LLC v. Ngoh, 163 Conn.App. 725, 734, 137 A.3d 97 (2016). Although the courts " allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Id. " Furthermore, it is axiomatic that this court may not act as an advocate for any party." Keating v. Ferrandino, 125 Conn.App. 601, 604, 10 A.3d 59 (2010).
A. First Special Defense
The plaintiff moves to strike the first special defense on the grounds that it is not a proper special defense and violates the order of pleading rule, Practice Book § 10-6. In his opposition memorandum, the defendant does not properly address the plaintiff's argument. Rather than addressing the plaintiff's argument pertaining to the adequacy of the special defense, the defendant puts forth an argument as to its merits, contending that the evidence at summary judgment or trial will demonstrate that the plaintiff's complaint fails to state a cause of action or a claim upon which relief may be granted. The defendant makes this same argument in opposition with regard to every other special defense.
Practice Book § 10-6 provides that " [t]he order of pleadings shall be as follows: (1) The plaintiff's complaint. (2) The defendant's motion to dismiss the complaint. (3) The defendant's request to revise the complaint. (4) The defendant's motion to strike the complaint. (5) The defendant's answer (including any special defenses) to the complaint. (6) The plaintiff's request to revise the defendant's answer. (7) The plaintiff's motion to strike the defendant's answer. (8) The plaintiff's reply to any special defenses."
The court recognizes that there remains a split of authority within the Superior Court as to the validity of a special defense that asserts only that the complaint fails to state a cause of action or claim upon which relief may be granted. See Cluney v. Regional School District No. 13, Superior Court, judicial district of Middlesex, Docket No. CV-99-0089468-S (June 19, 2000, Gordon, J.) (27 Conn.L.Rptr. 415, ) (discussing Superior Court split); see also, Segal v. Brownstone Exploration & Discovery Park, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-13-6021132-S, (May 13, 2014, Roche, J.) (same).
" The Pozoukidis v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV-97-0346988-S (February 13, 1998, Mottolese, J.) (21 Conn.L.Rptr. 382, ), line of cases finds that a special defense [asserting legal insufficiency] must also include facts alleged which support the challenge in order to withstand a motion to strike. In Pozoukidis, the court stated that rules of pleading hold defendants to the same standard of definiteness with respect to special defenses that plaintiffs are held to in their complaints . . . The special defense must therefore inform the plaintiff with reasonable clarity of the nature of the defense asserted . . . To allow . . . an indefinite special defense is to return to the days when litigation was somewhat of a game of blindman's bluff . . .
" In contrast, the Scan Associates, Inc. v. Civitello Building Co., Superior Court, judicial district of New Haven, Docket No. CV-93-0350643-S (January 24, 1994, Hodgson, J.) (10 Conn.L.Rptr. 646, ), line of cases finds that merely challenging the sufficiency of the complaint by way of a special defense is appropriate. Specific facts in support of the challenge are not necessary . . . In Scan Associates, Inc., the court relied on footnote five in Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 535 n.5, 546 A.2d 216 (1988), as a basis for finding that a motion to strike [fails] if the special defense challenges the sufficiency of the complaint . . . In Robert S. Weiss & Associates, Inc., footnote five, the court stated '[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint. If he fails so to do, it is not the burden of the defendant to attempt to correct the deficiency, either by motion, [motion to strike] or otherwise.' . . . Other courts have also followed this line of reasoning." (Citations omitted; internal quotation marks omitted.) Cluney v. Regional School District No. 13, supra, 27 Conn.L.Rptr. 416, .
Nevertheless, the court agrees with the line of cases that finds, in light of the requirements of Practice Book § § 10-1 and 10-50, that a special defense must include facts that support the challenge in order to withstand a motion to strike. See, e.g., Cluney v. Regional School District No . 13, supra, 27 Conn.L.Rptr. 416, . This reasoning is bolstered by the Supreme Court's recognition that " [t]he purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Emphasis added; internal quotation marks omitted.) GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 181, 73 A.3d 742 (2013); see Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995) (noting purpose of affirmative pleading of defenses is to apprise court and opposing party of issues to be tried and to prevent concealment of issues until trial is underway). Accordingly, the bare assertion that the complaint fails to state a cause of action or a claim upon which relief may be granted is a legally insufficient special defense, and the court grants the motion to strike the first special defense.
Practice Book § 10-1 provides in relevant part that " [e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ."
Practice Book § 10-50 provides in relevant part that " [f]acts which are consistent with [the plaintiff's] statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged."
B. Second Special Defense
In his supporting memorandum of law, the plaintiff essentially claims that the second special defense, which alleges that the defendant " [a]t all times fulfilled his constitutional duty to represent and defend the plaintiff, " is not a proper special defense because it is irrelevant and fails to show that he does not have a cause of action. In opposition, the defendant claims that the evidence at summary judgment or trial will show that, at all times, he fulfilled his constitutional duty to represent and defend the plaintiff.
A special defense is comprised of facts which are consistent with the allegations in the complaint but, nevertheless, show that the plaintiff has no cause of action. Practice Book § 10-50. The defendant's claim that he fulfilled his constitutional duty to represent and defend the plaintiff is inconsistent with the plaintiff's allegations, which basically assert that the defendant failed to fulfill his duties for a variety of reasons while serving as the plaintiff's attorney. Consequently, the court grants the motion to strike the second special defense.
C. Third, Fourth, & Fifth Special Defenses
The plaintiff's core argument in support of his motion to strike with respect to the third, fourth, and fifth special defenses is that these special defenses are legally insufficient because they consist of the defendant's unsupported opinions and do not set forth facts. Again, the defendant argues that the evidence at summary judgment or trial will show that he acted in good faith, the arrest warrant satisfied the probable cause requirements, and that there was no factual or legal basis to support a Franks motion to dismiss.
The court agrees with the plaintiff in that the third, fourth, and fifth special defenses consist of the defendant's legal opinions with respect to his conduct as the plaintiff's former attorney and the substantive aspects of the plaintiff's case. See Faulkner, supra, 240 Conn. 588 (stating motion to strike does not admit legal conclusions or truth or accuracy of opinions in pleadings). Further, the special defenses do not set forth any factual allegations. Thus, the court grants the motion to strike these three special defenses.
D. Sixth Special Defense
As to the sixth special defense, the plaintiff again argues that this defense is simply the defendant's self-serving opinion and does not bear on the question of the defendant's liability. The plaintiff maintains that the issue of whether he suffered damages cannot be resolved by the defendant's opinion of " no harm, no foul" and contends that this defense is an attempt to side-step the issue of why the plaintiff accepted accelerated rehabilitation. As with the prior special defenses, the defendant contends that the evidence at summary judgment or trial will demonstrate that the plaintiff applied for and was granted accelerated rehabilitation, which was the exact course of action that the defendant recommended to the plaintiff.
The court disagrees with the plaintiff The defendant has alleged facts, not opinions, pertaining to the plaintiff's accelerated rehabilitation to support his claim that the plaintiff has not suffered any damages. Moreover, the plaintiff's argument attacks the merits of the special defense rather than its legal sufficiency. See Hamet v. Vincent, judicial district of Stamford-Norwalk, Docket No. CV-07-5005312-S, (April 29, 2011, Adams, J.) (denying plaintiff's motion to strike defendant's special defenses of res judicata and collateral estoppel on grounds that both doctrines are properly pleaded as special defenses and plaintiff's arguments went to merits and not legal sufficiency of those defenses). Accordingly, the motion to strike the sixth defense fails.
E. Seventh Special Defense
The plaintiff moves to strike the seventh special defense on the ground that the trial court decision cited by the defendant; Pritsker v. Keating, supra, Docket No. CV-14-5014277-S; addresses an issue irrelevant to the issues raised in the present case, and, therefore, the doctrine of issue preclusion does not serve to bar the plaintiff's action. The plaintiff also asserts that he has since filed an appeal in that case, and final judgment has not yet been rendered by the Appellate Court. In opposition, the defendant argues that the evidence at summary judgment or trial will show that the trial court's prior decision denying the plaintiff a Franks hearing precludes the plaintiff from claiming that he was entitled to such a hearing.
Essentially, the plaintiff is seeking a determination on the merits of the special defense rather than attacking its legal sufficiency. For the reasons discussed in Hamel v. Vincent, supra, Docket No. CV-07-5005312-S, the doctrine of issue preclusion is " conspicuously fact bound, " and, further, " it would seem virtually impossible for the court to make a determination as to the applicability of these doctrines by only examining the pleadings." Thus, the court denies the motion to strike the seventh special defense.
F. Eighth Special Defense
The plaintiff argues that the defendant cannot avail himself of a statute of limitations defense to any of the plaintiff's claims because he continuously represented the plaintiff until March 5, 2013. Additionally, the plaintiff maintains that he served the defendant on February 21, 2016, well within the applicable three-year and six-year statute of limitations for the plaintiff's tort and contract claims, respectively. The defendant contends that he " will present the defense of statute of limitations which will depend factually upon when the alleged torts actually occurred within the meaning of [General Statutes] § 52-577 . . ."
As with the seventh special defense, the plaintiff is asking this court to make a determination on the merits of the eighth special defense rather than challenging its legal sufficiency. Therefore, the court must deny the plaintiff's motion to strike it.
CONCLUSION
In sum, the plaintiff's motion to strike is granted as to the first, second, third, fourth, and fifth special defenses and denied as to the sixth, seventh, and eighth special defenses.