Opinion
MMXCV166015309
09-13-2016
VRM (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UNPUBLISHED OPINION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 (#107)
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 almost 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. In response, the self-represented litigant Peter P. Zackowski, IV filed a document entitled " Cross Motion to Remove Pleading from the Docket" which purports to address the plaintiff's Motion to Strike. The court will treat the defendant Peter P. Zackowski, IV's " crossmotion" as an objection to the plaintiff's Motion to Strike. The defendants David and Jovana Zackowski have not filed a responsive pleading with regard to the plaintiff's Motion to Strike.
Oral argument on the plaintiff's motion was heard September 12, 2016. Peter P. Zackowski, IV, appeared for argument along with David Zackowski. Jovana Zackowski did not appear for argument.
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).
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).
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).
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 ten " Special Defenses, " raising nearly identical general claims. Their claims are not models of clarity. The overarching theme with respect to many 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 Third, Fourth, Fifth, Seventh, Eighth, and Ninth " Special Defenses." Preliminarily, and problematically, most of the " Special Defenses" fail to plead sufficient facts in support of the claims asserted. These " Special Defenses" as asserted are mere legal conclusions without specifically pleaded facts. See Santorso v. Bristol Hospital, supra . Most significantly, however, the Third, Fourth, Fifth, Seventh, Eighth and Ninth " Special Defenses" are barred by the doctrines of res judicata and collateral estoppel . The court concludes that in addition to alleging mere 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 re-litigate perceived wrongs in the foreclosure action that related 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 addressing a foreclosure action that has been fully litigated.
As such, res judicata applies and precludes these issues from 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 Cafe, 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." The defendants are attempting to litigate 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 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.
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 to the First " Special Defense, " the defendants allege that an incorrect or absent juris number on the complaint means that " the complaint is not properly placed before the court and cannot be recognized." The defendants have not provided the court with any authority in support of said conclusion. An absent or incorrect juris number does not create confusion or a lack of understanding of something essential to this summary process action. Further, such claim appears to be inconsistent with the nature of a Special Defense. See e.g., Practice Book § 10-50; Danbury v. Dana Investment Corp., supra .
If defendants' argument is construed as raising a claim of lack of jurisdiction over the person as the result of insufficiency of process, that claim is deemed waived pursuant to P.B. § 10-32.
The defendants have not explained how this alleged defect has materially prejudiced them. See C.G.S. § 52-123; Landry v. Spitz, 102 Conn.App. 34, 925 A.2d 334 (2007). Further, Attorney Eileen O'Shaughnessy's signature on the complaint is in conformity with P.B. § 4-2(a).
As to the Second " Special Defense, " termed by the defendant as " unconscionable acts, " and construing the defendants' claim to be an assertion of the equitable doctrine against forfeiture, the infirmities previously discussed are again at issue. In addition to merely stating legal conclusions, the claim appears to be legally insufficient in that it lacks sufficient facts to support its application to this case.
The defendants argue that their eviction would be " unconscionable" due to the age of Jovana Zackowski, alleged to be " aged greater than sixty-five (65) years." By definition, every eviction creates a forfeiture. Nevertheless, the policy against forfeiture is only available to a tenant when " the conscience is shocked or the forfeiture unconscionable." Housing Authority v. Lamothe, 27 Conn.App. 755, 762, 610 A.2d 695 (1992), rev'd on other grounds, 225 Conn. 757, 627 A.2d 367 (1993).
Specifically, Connecticut courts have utilized the equitable doctrine against forfeiture to prevent a tenant's eviction in a summary process action for failure to pay rent. Fellows v. Martin, 217 Conn. 57, 66, 584 A.2d 458 (1991). The Appellate Session of the Superior Court has stated: " It is elementary that a court of equity, even in the absence of fraud, accident or mistake may grant relief to prevent a forfeiture resulting from the breach of a covenant to pay rent upon payment or tender of all arrears of rent with interest. Thompson v. Coe, 96 Conn. 644, 655, 115 A. 219 (1921)." Zitomer v. Palmer, 38 Conn.Supp. 341, 345, 446 A.2d 1084 (1982). " Equity will intervene where 'the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally' the conditions of the lease. Nicoli v. Frouge Corporation, 171 Conn. 245, 247, 368 A.2d 74 (1976), quoting F.B. Fountain Co. v. Stein, 97 Conn. 619 626-27, 118 A.47 (1922); see Galvin v. Simons, 128 Conn. 616, 620, 25 A.2d 64 (1942). (Internal quotation marks omitted.) Zitomer v. Palmer, supra, at 345, 446 A.2d 1084. " The doctrine against forfeiture cannot be dilatorily invoked to eviscerate the statutory mandate of our summary process laws. Under circumstances, however, where the conscience is shocked or the forfeiture unconscionable, the doctrine against forfeiture should be an available shield to the tenant. Mobilia, Inc. v. Santos, 4 Conn.App. 128, 131, 492 A.2d 544 (1985), quoting Zitomer v. Palmer, [ supra, at 346, 446 A.2d 1084]." (Internal quotation marks omitted.) Housing Authority v. Lamothe, 27 Conn.App. 755, 762, 610 A.2d 695 (1992), rev'd on other grounds, 225 Conn. 757, 627 A.2d 367 (1993).
However, our Supreme Court has noted that " (t)he doctrine against forfeitures applies to a failure to pay rent in full when that failure is accompanied by a good faith intent to comply with the lease or a good faith dispute over the meaning of a lease." Fellows v. Martin, supra . See also Savin Gasoline Properties, LLC v. CCO, LLC, Superior Court, judicial district of Hartford, Docket No. CV09-4046742, (January 31, 2011, Prescott, J.).
As noted previously, the complaint alleges that the defendant(s) originally had the right or privilege to occupy the premises at issue but such right or privilege has terminated. The present action arises out of a fully litigated foreclosure action. It did not involve a lease or failure to pay rent. The Second Special Defense does not allege facts sufficient to invoke the equitable doctrine against forfeiture. There is no factual basis to support a conclusion that the present action is unconscionable.
The Sixth " Special Defense" is legally insufficient. The defendants contend that the address contained on the Notice to Quit for the plaintiff is " invalid" and hence the plaintiff is unable to " commence and maintain" any civil action. The address listed on the Notice to Quit is that of the plaintiff's attorney, rather than plaintiff itself. The defendants do not cite to any authority for their contention. Construing this claim as an argument that this alleged " defect" deprives the court of subject matter jurisdiction, the court concludes it is without merit.
C.G.S. Section 47a-23(a) requires that a notice to quit be given by an " owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact . . ." " In order to demonstrate [their] compliance with the notices required for a proper termination, [the plaintiffs] must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction." Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987). The defendants neither dispute that the plaintiffs' law firm legally represented the plaintiffs, nor claim that they failed to receive sufficient information from the notices to quit. The defendants take issue only with the fact that the law firm's address appeared on the notice to quit rather than the plaintiff's. See Getty Properties Corp. v. ATKR, LLC, 315 Conn. 387, 400, 107 A.3d 931 (2015). U.S. Bank National Association v. Karl, 128 Conn.App. 805, 18 A.3d 685 (2011).
Although the Eighth " Special Defense" was referenced in the Court's previous discussion of res judicata and collateral estoppel, the specific claim of " unjust enrichment" will be briefly addressed. " A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). The essential elements in an unjust enrichment claim are: (1) that the defendant was benefitted; (2) that the defendant unjustly did not pay the plaintiff for the benefit; and (3) that the failure of payment was to the plaintiff's detriment. Id.
The foregoing demonstrates that, in the context of the present summary process action and the allegations of the complaint, the defendants' claim of " unjust enrichment" is legally insufficient as a special defense as well as factually unsupported.
Finally, as to the Tenth " Special Defense, " the defendants allege that " the plaintiff is not a duly authorized agent for the Secretary of Veterans Affairs" and has no authority to act in the present action as its " agent." 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 assigns . . ." In essence, the defendants allege that there is nothing in the notice to quit purporting to demonstrate the actual agency of VRM to bring the instant action on behalf of the owner of the property.
As previously discussed, 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. Once again, there is no factual basis to support this allegation and this claim in the court's view is not properly characterized as a " Special Defense."
For the foregoing reasons, the Plaintiff's Motion to Strike Defendants' Special Defenses is granted as to all defendants.