Opinion
No. CV02-0172369 S
July 21, 2004
MEMORANDUM OF DECISION
This is a decision on the plaintiff's motion to strike the defendant's Special defenses, dated February 19, 2004.
On July 3, 2002, the plaintiffs, Verdi Vejseli and Anife Vejseli, filed a thirteen-count complaint against the defendants, Gani Pasha, Mysejen Pasha, Richard Fusco, Joel Skilton and the town of Watertown (town), in which they allege that they purchased a single-family residence with numerous construction defects. The plaintiffs allege, in count nine, negligence and, in count ten, recklessness against Fusco and Skilton, the building official and assistant building inspector for the town, respectively, for representing that the residence at issue was in substantial compliance with applicable codes. In count eleven, the plaintiffs allege that the town violated General Statutes § 52-557n(b)(7) and (8). In the twelfth count, the plaintiffs allege the town was reckless in the performance of its duties.
Fusco, Skilton and the town are the only relevant defendants in the present action. Accordingly, all future reference to the defendants will be only to Fusco, Skilton and the town.
Section 52-557n(b) states, in part, "a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances . . ."
The defendants filed an answer with special defenses on February 13, 2004. The first special defense as to counts nine, ten, eleven and twelve states: "The plaintiffs have failed to state a claim upon which relief may be granted." The third special defense as to counts nine and twelve and the second special defense as to counts ten and eleven states: "The plaintiffs have failed to mitigate their damages." The fifth special defense as to the ninth and twelfth counts and the fourth special defense as to the tenth and eleventh counts states: "The plaintiffs fail to state a legally sufficient claim for punitive damages against these defendants." The fifth special defense as to counts ten and eleven and the sixth special defense as to count twelve states: "Punitive damages are not available against individuals sued in their official capacities."
On February 23, 2004, the plaintiffs filed a motion to strike the defendants' special defenses discussed above. Accompanying the motion is a memorandum of law. The defendants filed a memorandum of law in opposition on February 26, 2004. The motion to strike was heard on the CT Page 9515-k short calendar on May 3, 2004.
I.
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any compliant . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a)(5). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 263, 292, 842 A.2d 1124 (2004). "The court must construe the facts in the [challenged pleading] most favorable to the [pleading party]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Id., 588. "A motion to strike is properly granted if the [challenged pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 615 A.2d 1188 (2003).
II.
The plaintiffs, in their memorandum of law in support of their motion, argue that the defendants' special defenses alleging that the plaintiffs failed to state a claim upon which relief may be granted should be stricken because Connecticut is a fact pleading jurisdiction and there are no facts accompanying this legal conclusion. The plaintiffs further argue that the defendants' special defenses alleging that the plaintiffs have failed to mitigate their damages is not a valid special defense, but note there is a split of authority on this issue. Finally, the plaintiffs assert that the defendants' special defenses regarding punitive damages are conclusions of law and should be stricken because they are unsupported by factual allegations.
In opposition, the defendants assert that a special defense alleging that the plaintiffs' complaint fails to state a cause of action is proper, citing Scan Associates, Inc. v. Civitello Building Co., Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0350643 (January 24, 1994, Hodgson, J.) ( 10 Conn.L.Rptr. 646). In addition, the defendants argue that the Superior Court is divided as to whether it is proper for a defendant to plead mitigation as a special defense and the CT Page 9515-l factors weigh in favor of not striking the defense. Lastly, the defendants maintain that the facts alleged in the complaint do not support an award of punitive damages.
There are two lines of cases as to whether a special defense that alleges the plaintiff failed to state a claim upon which relief may be granted has to be supported by facts. The first line of cases rely on Scan Associates, Inc. v. Civitello Building Co., Inc., supra, 10 Conn.L.Rptr. 646, and hold that a special defense challenging the sufficiency of a complaint is valid without specific facts in support of that challenge. A contrary line of cases developed from Pozoukidis v. Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0346988 (February 13, 1998, Mottolese, J.) ( 21 Conn.L.Rptr. 382), and hold that a special defense must include the facts which were relied upon to withstand a motion to strike. See also Carney v. Federal Express Corp., Superior Court, judicial district of New Haven, Docket No. CV 02 0467894 (February 19, 2003, Arnold, J.), for a further discussion of the two lines of cases.
Pozoukidis and its progeny "turn on the common theme that our rules entitle a plaintiff to a reasonable factual basis as to the nature of the defense asserted." Ayala v. L.B.I. Acquisition Corp., Superior Court, judicial district of New Haven, Docket No. CV 98 0417420 (October 1, 1999, Devlin, J.), see also Rocque v. Goodhull's Garage, Inc., Superior Court, judicial district of Hartford, Docket No. CV 01 1803983 (February 4, 2002, Wagner, J.) ( 31 Conn.L.Rptr. 330) (striking the defendants' "affirmative defenses" because they did not assert facts but instead made only legal conclusions). Connecticut is a fact pleading state. ABB Automation, Inc. v. Zaharna, 77 Conn.App. 260, 267, 823 A.2d 340 (2003). Practice Book § 10-1 states, in part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." Furthermore, "[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." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999); Practice Book § 10-50.
In the present action, the defendants failed to support the challenged special defenses with a factual basis. The defendants' special defenses alleging failure to state a claim upon which relief can be granted does not even allege a cognizable legal conclusion. See Pozoukidis v. Bridgeport, supra, 21 Conn.L.Rptr. 382. The special defenses alleging failure to mitigate damages, failure to state a claim for punitive damages and that punitive damages are not available against individuals sued in their official capacities are nothing more than legal CT Page 9515-m conclusions. "A motion to strike is properly granted if the [challenged pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
"Several Superior Court decisions have held that [m]itigation of damages is properly pleaded as a special defense . . . Other decisions hold that mitigation of damages is not a valid special defense because . . . [f]ailure to mitigate damages does not meet the definition of a special defense as it does not address the issue of liability. Consequently, the special defense is improper." (Citations omitted; internal quotation marks omitted.) Kimball v. Timothy J. King Builder, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. CV 066390 (March 13, 2002, Foley, J.) ( 31 Conn.L.Rptr. 576). Irrespective of the split on whether mitigation of damages is a proper special defense, the defendants' mitigation special defense is unsupported by any facts.
In support of their mitigation special defense, the defendants cite Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 627 A.2d 443 (1993). That court held that the defendant was entitled to have the jury CT Page 9515-n charged on the issue of mitigation because the defendant asserted "as a special defense that the plaintiff aggravated his condition by not complying with the defendant's instructions to maintain bed rest and not to return to work." Id., 593. The special defense in Mauro was supported by facts, whereas in the present action no facts are alleged. It is submitted that the court need not address the defendants' remaining arguments because the foregoing discussion is dispositive of the motion.
Accordingly, the plaintiffs' motion to strike is granted.