Opinion
MMXCV176016941
08-10-2017
Vendor Resource Management v. The Estate of Peter P. Zackowski, III et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S SPECIAL DEFENSES (#116)
Elpedio N. Vitale, J.
Pursuant to P.B. § 10-39(a)(5), the plaintiff VRM moves to Strike the Special Defenses filed by the defendants Peter P. Zackowski, IV, David Zackowski, and Jovana Zackowski. The present matter is a summary process action which follows a foreclosure action entitled Wells Fargo Bank v. Jovana D. Zackowski, Administratrix of the Estate of Peter P. Zackowski, III, MMX-CV-12-6007087. The plaintiff alleges that the Special Defenses " are void of legal sufficiency and should be stricken." The three defendants have filed essentially identical Answers and Special Defenses. In the Complaint, VRM alleges that the defendant(s) originally had the right or privilege to occupy the premises at issue but such right or privilege has terminated. Judicial Notice has been taken of court records that reveal that in Docket Number MMX-CV-12-6007087 a judgment of Strict Foreclosure entered with regard to the subject premises upon the complaint of Wells Fargo Bank, N.A. The judgment of strict foreclosure entered in the Superior Court for the judicial district of Middlesex at Middletown on October 13, 2015. The defendants herein were also named parties in said foreclosure action. The plaintiff alleges that the defendants nonetheless continue in possession although a notice to quit possession has been served. The plaintiff submitted a brief in support of its motion. The defendants filed an objection.
Oral argument on the plaintiff's motion was heard July 3, 2017. Peter P. Zackowski, IV, appeared for argument along with David Zackowski and Jovana Zackowski.
Discussion
" [W]henever 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, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). " 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.) Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013). " In addition to challenging the legal sufficiency of a complaint or counterclaim, our rules of practice provide that a party may challenge by way of a motion to strike the legal sufficiency of an answer, 'including any special defenses contained therein . . .' " GMAC Mortgage, LLC. v. Ford, 144 Conn.App. 165, 179-80, 73 A.3d 742 (2013).
" In . . . ruling on [a] . . . motion to strike, the trial court [is obligated] 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). " [W]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).
Although the court reads the allegations of a pleading favorably to the nonmoving party, a motion to strike only " admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
With regard to special defenses, our Supreme Court has stated that " 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." (Internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Practice Book § 10-50 provides: " No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." " 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.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999).
Preliminarily, although the defendants have entitled their claims as " special defenses, " it appears that procedurally the arguments that are advanced may not satisfy the requirements of a " special defense." Practice Book § 10-50 states, inter alia, that " facts which are consistent with [plaintiff's statements of fact] but show, not withstanding, that the plaintiff has no cause of action must be specially alleged."
Practice Book § 10-50 enumerates several particular special defenses. " [T]he list of special defenses in § 10-50 is illustrative rather than exhaustive." Kosinski v. Carr, 112 Conn.App. 203, 209 n.6, 962 A.2d 836 (2009). Although the court is not necessarily persuaded that as alleged, all of the claims advanced fall within. the Practice Book definition of a " special defense, " and are thus vulnerable to a motion to strike on that basis, it will nonetheless address the substantive issues raised therein.
Superior Court cases have held that a defendant's failure to specially allege facts in support of a special defense is a ground for that defense to be stricken. See Lamothe v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV05-4002893, (April 10, 2006, Taylor, J.) (failing to plead specific facts in support of special defense is ground for special defense to be stricken); McRea v. Davis, Superior Court, judicial district of Fairfield, Docket No. CV02-0401037, (May 5, 2004, Dewey, J.) (holding allegation of mere legal conclusions without specifically pleaded facts is not a properly plead special defense); Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488 (a motion to strike must be considered within the confines of the pleadings and not external documents).
In order to ensure that self-represented parties such as the defendants continue to have access to our courts, " it is the established practice 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 ." Flater v. Grace, 291 Conn. 410, 424, 969 A.2d 157 (2009); Markley v. DPUC, 301 Conn. 56, 74-75, 23 A.3d 668 (2011). (Emphasis added.)
" Summary Process is a special statutory procedure designed to provide an expeditious remedy." (Internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, 284 Conn. 1, 5, 931 A.2d 837 (2007). " A summary process action is aimed at deciding the simple question of who is entitled to possession." Yarbrough v. Demirjian, 17 Conn.App. 1, 3, 549 A.2d 283 (1988). " Because of the summary nature of [summary process], the statute granting it has been narrowly construed and strictly followed." (Internal quotation marks omitted.) Ossen v. Wanat, 217 Conn. 313, 317, 585 A.2d 685 (1991). " The ultimate issue in a summary process action is the right to possession . . . and the relief available in summary process action is possession of the premises." (Citations omitted; emphasis in original; internal quotation marks omitted.) Aguinaldo v. Warner, 140 Conn.App. 264, 270, 58 A.3d 373 (2013). " While in certain cases complex issues may necessarily be part of the action . . . the ordinary summary pace cannot be stalled by defendant's simply raising the spectre of a complexity which is not . . . rooted in the nature of the relationship between landlord and tenant and in the basis of the landlord's claim to possession; or simply by the defendant's threat to raise complex defenses which are not likely to be asserted in good faith . . ." (Citation omitted; internal quotation marks omitted.) Ossen v. Wanat, supra , Centrix Management Co., LLC v. Valencia, 145 Conn.App. 682, 691-92, 76 A.3d 694 (2013). In the present case, the plaintiff seeks only possession of the premises.
The defendants have each alleged eight " Special Defenses, " raising identical general claims. Their claims are not models of clarity. The overarching theme with respect to most of the claims, however, suggests an effort to re-litigate the aforementioned foreclosure action that was previously adjudicated. This effort is most apparent with respect to the allegations contained in the Second, Third, Fourth, Sixth, Seventh, and Eighth " Special Defenses." First, and problematically, the " Special Defenses" fail to plead sufficient facts in support of the claims asserted and additionally, raise claims irrelevant and immaterial to this summary process action. These " Special Defenses" as asserted are mere irrelevant legal conclusions without specifically pleaded facts. See Santorso v. Bristol Hospital, supra . Additionally, the court concludes that the Second, Third, Fourth, Sixth, Seventh, and Eighth " Special Defenses" are barred by the doctrines of res judicata and collateral estoppel . The court concludes that in addition to alleging irrelevant legal conclusions and omitting factual support in their " Special Defenses, " the defendants have attempted to interpose said " Special Defenses" as a mechanism by which to litigate perceived wrongs in the foreclosure action that relate to the subject premises. The defendants were each parties to the foreclosure action according to the official court file. More succinctly, the defendants attempt to defend the instant summary process action by regurgitating and referencing arguments connected to a foreclosure action that has been fully litigated. The only issue before the court in the present action is whether the plaintiff can demonstrate that the defendant(s) originally had the right or privilege to occupy the premises at issue, but such right or privilege has terminated. The " termination" of the defendant(s) " right or privilege" has been litigated in the foreclosure proceeding. A certificate of foreclosure as to the subject property was recorded in the Middletown Land Records on January 14, 2016 as alleged in paragraph one of plaintiff's complaint and attached thereto as Exhibit " A."
The plaintiff's Motion is directed to the Special Defenses, and does not reference the so-called " counterclaims" also filed by each defendant.
Consistent with paragraph two of plaintiff's complaint, Exhibit " B" attached to said complaint is a " Statutory Form Warranty Deed" granting to the Secretary of Veterans Affairs, and its successors and assigns, a warranty deed to the subject property.
In the court's view, res judicata applies and precludes issues necessarily related to the prior foreclosure action from now being raised as special defenses in a summary process action . Our Supreme Court summarized the preclusionary effect of the doctrine of res judicata in Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 811-12, 695 A.2d 1010 (1997), as follows:
Because res judicata or collateral estoppel, when properly raised and established, will preclude a claim or issue, respectively, the defendant's invocation of this principle must first be resolved. We have recently had an opportunity to address these two doctrines, their similarities and their differences. Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712-13, 627 A.2d 374 (1993), and cases cited therein. Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988) (quoting Gionfriddo v. Gartenhaus Café, 15 Conn.App. 392, 401-02, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989)). (Internal quotation marks omitted.) Crochiere v. Bd. of Ed., 227 Conn. 333, 342-43, 630 A.2d 1027 (1993).
The two doctrines " protect the finality of judicial determinations, conserve the time of the court and prevent wasteful relitigation." (Internal quotations marks omitted.) Virgo v. Lyons, supra, 209 Conn. at 501, 551 A.2d 1243. " Res judicata, or claim preclusion, is distinguishable from collateral estoppel, or issue preclusion. Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim. Slattery v. Maykut, 176 Conn. 147, 156-57, 405 A.2d 76 (1978). In contrast, collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991)." Weiss v. Statewide Grievance Comm., 227 Conn. 802, 818, 633 A.2d 282 (1993). Furthermore, " [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 297, 596 A.2d 414 (1991)." Crochiere v. Bd. of Ed., supra, 227 Conn. at 345, 630 A.2d 1027. Both issue and claim preclusion " express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985).
In short, when an issue has been litigated between two parties, they may not re-litigate the issue and the party or its privies may not assert it as a defense to a subsequent action. Res judicata applies when a claim has been actually litigated.
An issue is " actually litigated" if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. (Emphasis added.) 1 Restatement (Second). Judgments § 27, comment (d) (1982). An issue is necessarily determined if, " in the absence of a determination of the issue, the judgment could not have been validly rendered." F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19. Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 714-15, 627 A.2d 374 (1993).
The record establishes that the foreclosure action with respect to the subject property has been " actually litigated." A judgment of strict foreclosure entered with respect to the subject property. It seems apparent that the defendants are once again attempting to litigate arguments and actions that occurred during a previously litigated foreclosure matter. The plaintiff's right to possession of the premises has already been necessarily determined in the foreclosure action. Not only are the issues previously determined or raised in the prior matter irrelevant to this summary process action, but the foreclosure matter was actually litigated and a judgment of foreclosure was ultimately entered. Any defenses the defendants had in the foreclosure action could have been raised there. Indeed, the official court file in the related foreclosure action reveals that the defendant(s) raised thirty-nine (39) " Special Defenses" in the foreclosure action.
Further, the court considers the foregoing " Special Defenses" as an impermissible collateral attack on the prior judgment of foreclosure. " A collateral attack is an attack upon a judgment, decree or order offered in an action or proceeding other than that in which it was obtained, in support of the contentions of an adversary in the action or proceeding, as where the judgment is offered in support of a title or as a foundation for applying the doctrine of res judicata." (Emphasis added.) Gennarini Constr. Co. v. Messina Painting & Decorating Co., 15 Conn. 504, 15 Conn.App. 504, 512, 545 A.2d 579 (1988). (citing 46 Am.Jur.2d, Judgments § 630; see also F. James, Civil Procedures § 11.5, p. 533-34.) The defendants have asserted the foregoing " Special Defenses" in this summary process action in an attempt to have evidence from the prior foreclosure action heard again. The defendants have already had the opportunity to raise said issues in the independent foreclosure action. The defendants were not without appellate recourse if they wished to challenge the determinations of the court in the foreclosure action. The present summary process action, however, is not an appropriate venue to raise such issues.
It is well-settled that courts have greatly " disfavored collateral attacks upon judgments because such belated litigation undermines the important principle of finality." Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979); Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969).
Turning next to the First " Special Defense, " the defendants allege that the " summons was not issued by a capable entity" and has " no ability to commence litigation in Connecticut." The defendants have not provided the court with any factual or legal authority in support of this claim. Attached to plaintiff's complaint as Exhibit " B" is a copy of a warranty deed describing the conveyance of 515 Hunting Hill Avenue, Middletown, from Wells Fargo Bank, N.A. to " Secretary of Veterans Affairs, an officer of the United States of America, and its successors and assigns . . ." The defendants appear to allege that there is nothing in the complaint or notice to quit purporting to demonstrate the actual agency of VRM to bring the instant action on behalf of the owner of the property.
The notice to quit statute does not require that the owner of the premises must issue the notice to quit. See C.G.S. § 47a-23(a); Scott v. Heinonen, 118 Conn.App. 577, 578-79, 985 A.2d 358 (2009).
Further, there is nothing in that statute, or in the requirements of a writ, summons, and complaint that compel proof of agency in order to commence a summary process action. The word " owner" is described in C.G.S. § 47a-1(e), and is applicable to notices to quit issued under C.G.S. § 47a-23. There is no factual basis to support this allegation and this claim is a mere conclusion of law.
However, at the time of trial, proof of agency may be required. See Beechmont Condominium Ass'n Inc. v. Correia, Superior Court, judicial district of Fairfield, Docket No. CV14-6045733, (March 28, 2016, Jennings, J.T.R.).
As to the Fifth Special Defense, the defendants allege that the " notice to quit [is] defective." The defendants offer no factual or legal basis to support this bald assertion.
For the foregoing reasons, the Plaintiff's Motion to Strike Defendants' Special Defenses is granted as to all defendants.