Opinion
No. CV 05-4016132
November 6, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #117
The plaintiff, SNET Information Services, Inc. d/b/a SBC Yellow Pages (SNET), has filed a motion to strike the defendant's (Vecchitto) first special defense, paragraph three of the first counterclaim, and the second counterclaim. This case arises from an alleged contractual relationship in which SNET agreed to publish in its Yellow Pages, specific contact information regarding the defendant's plumbing and heating company.
In the first special defense, Vecchitto sets forth a claim for breach of contract against SNET for allegedly publishing information not agreed to by the parties. The plaintiff moves to strike the first special defense on the ground that the special defense, as pleaded, is legally insufficient because it: 1) fails to allege damages and 2) does not demonstrate that SNET has a cause of action for breach of contract and unjust enrichment, as alleged in SNET's complaint.
DISCUSSION
"The 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." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 718, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); see Practice Book § 10-50. "[A] plaintiff can [move to strike] a special defense. . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). The trial court has an obligation in ruling on a motion to strike to "take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "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 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, in pleading facts consistent with the allegations of the complaint, the defendant alleges that SNET's duty of publishing the information previously agreed to by the parties, qualified as a condition precedent to Vecchitto's duty to pay SNET. As such, SNET's alleged failure to sufficiently satisfy the condition, discharged Vecchitto from his obligation to pay SNET. Pursuant to well established caselaw, the defendant has satisfied the requirements for pleading a special defense. And accordingly plaintiff's motion to strike the defendant's special defense is denied as the defendant has properly pleaded a legally sufficient special defense.
II
The plaintiff also moves to strike paragraph three of the first counterclaim which addresses the defendant's set-off claim. In paragraph three of the first counterclaim, Vecchitto offers to setoff SNET's debt arguably owed to Vecchitto against SNET's demand for damages in the complaint. The plaintiff moves to strike on the ground that the claim does not arise from an unconditional legally enforceable obligation for the payment of money.
"General Statutes § 52-139 and Practice Book § 10-54 furnish our rules for pleading the right of setoff. Setoff is the right to cancel or offset mutual debts or cross demands . . . The concept of setoff allows [parties] that owe each other money to apply their mutual debts against each other, thus avoiding the absurdity of making A pay B when B in fact owes A . . . A set-off is made where the defendant has a debt against the plaintiff arising out of a transaction independent of the contract on which the plaintiff sues, and desires to avail himself of that debt, in the existing suit, either to reduce the plaintiff's recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance." (Citation omitted; emphasis added; internal quotation marks omitted.) Mariculture Products Ltd v. Certain Underwriters at Lloyd's of London, 84 Conn.App. 688, 703, 854 A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004). In order "[t]o constitute mutuality, the debts must be due to and from the same persons in the same capacity . . . Mutual debts . . . are cross debts in the same capacity and right and of the same kind and quality . . . Setoff may be employed only when a defendant requests that the court set off a judgment against a debt owed to the defendant by the plaintiff . . . It is the defendant's burden to demonstrate its right of setoff by affirmatively and adequately alleging such a claim in the pleadings." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 704. "A claim for a setoff must be for a debt presently due and owing in a liquidated amount unless the plaintiff is a foreign corporation or insolvent." (Emphasis added; internal quotation marks omitted.) Russell v. Williams, Superior Court, judicial district of Hartford, Docket No. CV 05 4006699 (June 9, 2005, Hale, J.T.R.).
In the present case, the allegations fail to allege any independent debt owed to Vecchitto by SNET and any amount by which the claimed sums should be set off. As such, the allegations do not sufficiently assert a set-off, but rather only amount to the pleading of the application of a credit to an alleged existing debt. See Mariculture Products Ltd v. Certain Underwriters at Lloyd's of London, supra, 84 Conn.App. 703. The plaintiff's motion to strike the defendant's set-off counterclaim is granted for failure to allege an independent mutual debt to be set off.
The plaintiff further moves to strike the defendant's second counterclaim, alleging a claim under the Connecticut Unfair Trade Practices Act, Sec. 42-110a (CUTPA). The plaintiff argues that the counterclaim should be stricken because it is predicated upon statements made in the course of judicial proceedings and therefore, are barred by absolute privilege.
"It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy . . . The privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding." (Citation omitted; internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 83, 837 A.2d 875 (2004). Absolute privilege applies regardless of whether the representations at issue could be characterized as false, extreme or outrageous. Petyan v. Ellis, 200 Conn. 243, 245-46, 251-52, 510 A.2d 1337 (1986).
Here, Vecchitto's counterclaim alleging the CUPTA claim is predicated on various representations by SNET regarding the amount of damages sought. It is undisputed that the representations uttered by the plaintiff were articulated during the course of a judicial proceeding. As those representations were essential to and published in the course of a judicial proceeding, they are protected by an absolute privilege. See Alexandru v. Strong, supra, 81 Conn.App. 83. "Our Supreme Court has emphasized the importance of cultivating a judicial process that encourages participants in legal proceedings to speak freely and without fear that they might later be subjected to judicial scrutiny or tort liability. See, e.g., DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991)." Alexandru v. Strong, supra, 81 Conn.App. 84.
The defendant relies on Law Offices of Ira B. Charmoy v. Lockery, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 380135 (January 21, 2003, Levin, J.), as support for the court to deny; that the motion to strike, the case is not dispositive of the issue at bar. While the court in that case denied the motion to strike the counterclaim pursuant to CUTPA, the facts of the case did not include any representations made during a judicial proceeding and therefore, the case did not address absolute privilege. This court guided by the holding in Alexandru and the Appellate Court's rationale is most persuasive on the issue confronting this court. Accordingly, the motion to strike defendant's second counterclaim is granted.
CONCLUSION
Plaintiff's motion to strike the first special defense is denied. Plaintiff's motion to strike paragraph three of the first counterclaim is granted. Plaintiff's motion to strike defendant's second counterclaim is granted.