Opinion
HHDCVH8193
12-19-2012
Allan H. Schwartz v. Hartford Orthopedic
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Woods, Glenn A., J.
FACTS
On September 1, 2011, the plaintiff, Allan H. Schwartz d/b/a Allan Schwartz Realty and Schwartz Realty Corp, commenced this action arising from a landlord/tenant relationship with the defendants, Hartford Orthopedic, Plastic & Hand Surgeons, Inc. and H. Kirk Watson. The operative complaint is the plaintiff's three-count amended complaint, dated November 15, 2011. The counts are labeled: action for rent due under lease against Hartford Orthopedic, Plastic & Hand Surgeons, Inc. (count one), action on personal guaranty against H. Kirk Watson (count two) and Unfair Trade Practices against both defendants (count three).
The specific allegations are as follows: On January 7, 1993, the plaintiff, as landlord, entered into a written lease agreement for a period of five years with Connecticut Combined Hand Surgeons, Inc. for a premises located at Suite 319, 131 New London Turnpike, Glastonbury. The lease contained an option to renew for an additional five years and, on April 1, 1998, by lease addendum, the lease was extended for five years with Hartford Orthopedic, Plastic & Hand Surgeons, Inc. substituted as the tenant. On April 1, 2003, Hartford Orthopedic, Plastic & Hand Surgeons, Inc. executed an addendum to the lease to once again extend for five years, with the new term to run through March 31, 2008. Also on April 1, 2003, H. Kirk Watson, signed an unconditional guaranty of the lease. On October 6, 2007, Hartford Orthopedic, Plastic & Hand Surgeons, Inc. signed another addendum extending the agreement five years, to run from April 1, 2008 through March 31, 2013. On July 31, 2010, without any prior notice, Hartford Orthopedic, Plastic & Hand Surgeons, Inc. vacated the premises and ceased paying rent, late charges or its share of operating expenses as specified by the lease. Based thereon, the plaintiff seeks damages from Hartford Orthopedic, Plastic & Hand Surgeons, Inc. and H. Kirk Watson, as personal guarantor. The plaintiff also alleges an unfair trade practice because it claims the defendant's actions were a deliberate, unwarranted and wrongful withholding of money due to the plaintiff.
On December 27, 2011, the defendants filed an answer and special defenses. The defendants admitted that they vacated the property without prior notice on July 31, 2010, but denied that they had agreed to a lease extension from April 1, 2008 through March 31, 2013. The defendant asserted two special defenses. The first defense alleges that the plaintiff failed to mitigate its damages and the second defense alleges that the person who signed the lease extension from April 1, 2008 through March 31, 2013 was not an authorized agent of the defendants and therefore could not bind the defendants to the lease.
On January 10, 2012, the plaintiff filed a motion to strike the defendants' first special defense on the ground that it is not legally sufficient. On January 27, 2012, the defendants filed an opposition to the plaintiff's motion to strike. On September 5, 2012, the court heard oral argument on the motion.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011). " 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). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ... [The court is] limited ... to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).
In the present case, the plaintiff seeks to strike a special defense, which states: " To the extent the Plaintiff is entitled to any relief, which Defendants deny he is entitled to, Plaintiff has failed to mitigate his damages." It is first noted that, " [a]lthough ... failure to mitigate damages is not one of the enumerated defenses listed in [Practice Book] § 10-50, Superior Court cases have approved the use of a special defense to plead this claim ... Moreover, by allowing the failure to mitigate damages to be pled as a special defense, it is clear that the defendant bears the burden of proof on this issue." (Citations omitted.) Profitec, Inc. v. FKI Industries, Inc., Superior Court, judicial district of New Haven, Docket No. CV 99 0427490S (November 24, 2000, Devlin, J.) (28 Conn. L. Rptr. 619, 620).
Whether this special defense is legally sufficient is dependant on the nature of the plaintiff's action. The plaintiff argues that a party suing for rent due is under no obligation to mitigate its damages and, therefore, the defense is legally insufficient. The defendant argues that the complaint must be viewed in the light most favorable to the defendants, and that it is not clear whether this action is for breach of lease or for unpaid rent.
" Connecticut law is clear that [i]n an action for rent due, a lessor of commercial property is generally under no obligation to mitigate his damages after the lessee fails to pay rent ... Such an obligation arises only if the lessor manifests an intent to terminate the tenancy either by taking an unequivocal act showing this intent or by bringing an action for damages based on the tenant's breach of contract ... In other words, [w]hen the lessee breaches a lease for commercial property, the lessor has two options: (1) to terminate the tenancy; or (2) to refuse to accept the surrender ... Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease. Under this course of action, the landlord is under no duty to mitigate damages ... When the landlord elects to terminate the tenancy, however, the action is one for breach of contract ... and, when the tenancy is terminated, the landlord is obliged to mitigate his damages." (Citations omitted; internal quotation marks omitted.) Brennan Associates v. OBGYN Specialty Group, P.C., 127 Conn.App. 746, 754, cert. denied, 301 Conn. 917, 21 A.3d 463 (2011).
Therefore, the question before the court is whether the action is one for breach of lease or could be interpreted to be so. If it is, then the failure to mitigate would be a proper defense and therefore should not be stricken. In reviewing this issue, the court notes that: " Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ... The 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 the basic issues are not concealed until the trial is underway." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
Here, the plaintiff has labeled count one of the complaint: " non-payment of rent." In determining the nature of the claim the court is not bound by labels. See Eberle v. Ohlheiser, Superior Court, judicial district of Hartford, Docket No. CV 12 6029172 (September 27, 2012, Robaina, J.) [ 54 Conn. L. Rptr. 852] (" [I]n the context of a motion to strike, the factual allegations of the count, and not the label placed on the count, are dispositive." (Internal quotation marks omitted.)). Here, however, all of the allegations point to a collection of non-payment of rent action. The plaintiff alleges the following: On October 6, 2007, the parties agreed to a five-year lease extension to run from October 3, 2007 through March 31, 2013; on July 31, 2010, the defendants vacated the premises without prior notice; at no time have the defendants made payment of rent for any time after they vacated. The plaintiff sought damages for non-payment through the time of the writ, and noted that the contract would continue to run until its natural end point in 2013. Even interpreting the allegations in the complaint in the light most favorable to the defendant, the court can find no allegation that can be construed as stating that the plaintiff terminated the lease.
In ruling on a motion to strike a special defense in another matter, it was held that: " Viewing the pleadings collectively, the defendant provides no facts to support the conclusion that the plaintiff failed to take advantage of any opportunities provided by the defendant to avoid or reduce the harm. This special defense has conjunctive elements and the defendant fails to plead any facts to support the second element. Therefore, the facts alleged are legally insufficient to support the defendant's ... special defense ..." Samuels v. State, Superior Court, judicial district of New Haven, Docket No. CV 10 6011434 (December 1, 2010, Wilson, J.). Likewise here, the defendant would not merely need to prove that the plaintiff failed to mitigate, but would also need to prove that the plaintiff terminated the contract. There is no language in either the complaint or the special defense that could be interpreted to that effect. In fact, the plaintiff specifically only seeks payment of rent for months which have already occurred and seeks damages extending through the date the lease is to expire. It is clear from the complaint that this is a collection of rent complaint, not a breach of lease case. For the foregoing reasons, a special defense alleging a failure to mitigate is improper and legally insufficient.
The motion to strike the special defense is granted.
SO ORDERED.