Opinion
No. X04 HHD CV-08-5034822 S
September 16, 2010
MEMORANDUM OF DECISION
The court heard argument on September 7, 2010 concerning the plaintiffs' motion to strike (#175) the defendant's counterclaims (#174). After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is denied.
The plaintiffs also filed a supplement to their motion to strike (#180), which the court has considered.
I BACKGROUND
In their four-count revised complaint (#135), the plaintiffs, Luther Thurlow, Anthony Denning, and Steven Pelletier, allege that they own landlocked real property in Canterbury, Connecticut to which they have access via easement, and purchased a title insurance policy (title policy) from defendant Ticor Title Insurance Company (Ticor) concerning the property. In count one, the plaintiffs allege that Ticor was obligated to provide coverage for two title claims which they presented, but denied the claims. The plaintiffs allege that, as a result, they were forced to incur attorney fees in prosecuting a claim against a third party in order to protect and defend their rights and interests in the property, and that they suffered loss in the valuation of the property.
In count two, the plaintiffs seek a declaratory judgment. They allege that Ticor has continuing obligations: to indemnify them for loss caused by the third party's assertion of ownership and blockage of plaintiffs' access, to provide legal representation for the plaintiffs, to pay legal fees and costs, and to otherwise protect their rights and interests. In count three, based on the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110a et seq. (CUTPA), and the Connecticut Unfair Insurance Practices Act, General Statutes §§ 38a-315 (CUIPA), the plaintiffs allege that Ticor engaged in unfair or deceptive practices by utilizing misleading and deceptive methods of excluding or attempting to exclude matters from coverage, and utilized a deceptive and unfair method of selling and soliciting the sale of insurance policies.
In count four, the plaintiffs allege bad faith breach of contract. They allege that Ticor routinely utilizes a pre-printed affidavit, which they did not complete, to exclude coverage for proper claims and to delay payment, reduce payment, or to deny payment for valid claims. The plaintiffs seek damages, a declaratory judgment, and reasonable attorneys fees.
In its counterclaims, Ticor alleges fraudulent nondisclosure and breach of the implied duty of good faith and fair dealing. Ticor alleges that the plaintiffs were aware or should have been aware of the existence of a right of way/easement and/or a dispute concerning it, and/or they knew or should have known that they had commenced litigation against their neighbors (Hulten litigation), relating to the property, prior to the time when they purchased the property and/or prior to the issuance of the title policy. Ticor also alleges that the plaintiffs were aware or should have been aware that the fact that the property may not have access to a public highway was disclosed to them prior to or at the time of closing of title and/or prior to the issuance of the title policy.
Ticor alleges that the plaintiffs had a duty to Ticor to disclose, in writing, their knowledge of the right of way/easement dispute and/or the fact that the property may not have access to a public highway and/or the fact that they had commenced the Hulten litigation, prior to their purchase of the title policy and/or prior to the issuance thereof. Ticor alleges that the plaintiffs failed to disclose the pending Hulten litigation and/or any of the known facts to Ticor prior to their payment of a premium to purchase the title policy and/or prior to the issuance thereof.
Also, Ticor alleges that the plaintiffs fraudulently induced Ticor to issue the title policy, and later made demands on Ticor for coverage, which Ticor denied. Thereafter, the plaintiffs commenced this action. Ticor alleges that it has expended money for attorney fees and costs to defend itself. In addition, Ticor alleges that the plaintiffs' conduct in not disclosing to Ticor the right of way/easement dispute and/or that the property may not have access to a public highway, and/or that they had commenced the Hulten litigation, was wanton or willful malicious misconduct.
In the second count of the counterclaim, Ticor incorporates allegations from the first count and alleges that the plaintiffs have violated the implied covenant of good faith and fair dealing. Ticor seeks damages, attorneys fees, and punitive and/or exemplary damages.
In the motion to strike, the plaintiffs, citing Practice Book § 10-54, claim that the counterclaims are legally insufficient because they are untimely, since they were not pleaded in Ticor's answer and filed four days late. In the supplement to their motion, the plaintiffs argue that neither count of the counterclaim states a legally sufficient cause of action.
Practice Book § 10-54 provides, in relevant part, "[i]n any case in which the defendant has either in law or in equity or in both a counterclaim, or right of setoff, against the plaintiff's demand, the defendant may have the benefit of any such setoff or counterclaim by pleading the same as such in the answer, and demanding judgment accordingly; and the same shall be pleaded and replied to according to the rules governing complaints and answers."
The court's docket reflects that Ticor filed two motions for extension of time to respond to the revised complaint; an extension of time until March 18, 2010 was sought in the second motion. See ##171, 172. Ticor's answer and special defenses (#173) (answer) was filed on March 18, 2010. On March 22, 2010, Ticor filed its counterclaims. No pleadings were filed between the answer and the counterclaims. The motion to strike was filed on March 25, 2010. On April 1, 2010, the plaintiffs filed their reply to Ticor's special defenses (#179). On the same date, they filed their supplement to their motion to strike (#180).
In response to the motion to strike, Ticor argues: (1) that the plaintiffs, by filing their reply to the special defenses, waived their right to an adjudication of the motion to strike; (2) that its counterclaims were timely filed; (3) that the first count of the counterclaims pleads all the elements of a claim of fraudulent nondisclosure; and (4) that the second count of the counterclaims pleads all of the elements of a claim of breach of the implied covenant of good faith and fair dealing.
II DISCUSSION
Ticor argues that, if it was required to file its counterclaims with its answer, then the plaintiffs waived their right to an adjudication of their motion to strike by filing a reply to Ticor's special defenses. In particular, Ticor relies on Practice Book §§ 10-6 and 10-7.
In relevant part, Practice Book § 10-6, concerning the order of pleading, provides the following order: (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; and (8) the plaintiff's reply to any special defenses.
Practice Book § 10-7 provides, "[i]n all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." "Under our rules of practice, the filing of a responsive pleading waives the right to file a motion to strike." American Progressive Life Health Insurance Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
Concerning counterclaims, Practice Book § 10-10 provides, in relevant part, "[i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint . . ."
In contrast to the Federal Rules of Civil Procedure, Connecticut does not have a compulsory counterclaim rule. See Gattoni v. Zaccaro, 52 Conn.App. 274, 280, 727 A.2d 706 (1999); Hansted v. Safeco Insurance Co. of America, CT Page 18208 19 Conn.App. 515, 520 n. 4, 562 A.2d 1148, cert. denied, 212 Conn. 819, 565 A.2d 540 (1989).
As discussed above, Practice Book § 10-54 states, in relevant part, that counterclaims shall be "replied to according to the rules governing complaints and answers." Practice Book § 10-6 requires that a motion to strike a complaint must precede a reply to special defenses. Since counterclaims are, according to Practice Book § 10-54, to be replied to according to the rules governing complaints, it follows that a motion to strike a defendant's counterclaims must precede replies to that defendant's special defenses, and that the filing of such replies waives the right to pursue a motion to strike. See Practice Book § 10-7.
The decisional law cited by the defendants does not discuss the filing of a reply to special defenses after the filing of a motion to strike counterclaims. See Mulcahy v. Mossa, 89 Conn.App. 115, 128, 129, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005) (terming an argument that the counterclaim was defective since it was not filed with the answer as an attack on the "technical propriety of the defendant's counterclaim" and stating that the "alleged defect" could be cured by request for leave to amend, if granted); J.E. Robert Co. v. Signature Properties, LLC, Superior Court, Complex Litigation Docket at Hartford, Docket No. X04 HHD CV 07 5026084 (March 1, 2010, Shapiro, J.), n. 4; Meehan, Meehan Galvin v. Paniccia, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 4001862 (October 14, 2005, Rodriguez, J.); Cohen v. Griffin, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 97 0404769 (April 7, 1998, Silbert, J.); Holland v. East Coast Tile and Marble Co., Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 91 0282208 (June 24, 1993, Leheny, J.).
Here, the plaintiffs filed their reply to Ticor's special defenses after they filed their motion to strike the counterclaims. According to Practice Book § 10-7, this operated as a waiver of their motion to strike the counterclaims. See American Progressive Life Health Insurance Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120. Therefore, the motion to strike became moot. See DiLieto v. County Obstetrics Gynecology Group, P.C., 297 Conn. 105, 111, 998 A.2d 730 (2010) (where no practical relief can be afforded mootness is applicable). Since this issue is dispositive of the plaintiffs' motion to strike, the court need not consider other arguments raised by the parties.
CONCLUSION
For the reasons stated above, the plaintiffs' motion to strike is denied. It is so ordered.