Harmony Healthcare International, Inc. v. PARCC (2010)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 169)

This is the plaintiff's fourth motion to strike counts seven and eight of the defendant's counterclaims to its action seeking enforcement of a foreign judgment.   On three prior occasions the court has granted the motion to strike counts seven and eight of the counterclaim.   The plaintiff again moves to strike the counterclaims on the ground that they have not been newly repleaded as required by Practice Book § 10-44.

This court's prior decision of September 30, 2009 amply explained its reasoning in granting the motion to strike.   Harmony Healthcare International, Inc. v. PARCC Healthcare, Superior Court, judicial district of New Haven, Docket No. CV 07 5009225 (September 30, 2009, Keegan, J.).   In short, the court held that counterclaim seven, alleging fraudulent misrepresentation, failed to allege facts that the court in Massachusetts acted upon any false representation to its detriment.  Id. Moreover, in a different prior decision on May 28, 2009, the court reasoned that the pursuit of the counterclaim as an ordinary action would afford a remedy as effective, convenient and complete as a declaratory judgment.   Harmony Healthcare International, Inc. v. PARCC Healthcare, Superior Court, judicial district of New Haven, Docket No. CV 07 5009225 (May 28, 2009, Keegan, J.).   As to counterclaim eight, alleging a CUTPA violation, the court held that the defendant failed to allege any facts in support thereof.  Id. Subsequent to the court's ruling, the defendant refiled counterclaims seven and eight.   The plaintiff argues that the counterclaims are refiled but are not newly repleaded.   The court agrees with the plaintiff.

As a preliminary matter, the court is well aware that a party is entitled to ask the court to reconsider a ruling, such as on a motion to strike.   However, “[n]ew pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ․ But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause.”  (Internal quotation marks omitted.)  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).  “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”  (Internal quotation marks omitted.)  Carothers v. Capozziello, 215 Conn. 82, 107, 574 A.2d 1268 (1990);  Westbrook v. Savin Rock Condominiums Assn, Inc., 50 Conn.App. 236, 241, 717 A.2d 789 (1998).   The importance of reconsidering a point made by a patty is illustrated in Martins v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 98 0356984 (October 6, 1999, Nadeau, J.).   In Martins the court concluded that the second amended complaint was not materially different from the first amended complaint and upheld its ruling that the amended complaint did not fully allege facts sufficient to support the stated claim.

The present case is distinguishable from Martins v. Bridgeport Hospital in the number of times a repetitious pleading has been filed.   Certainly, there are times when the court will reverse its decision.   In the present case, however, the defendants have raised the same counterclaims in the same manner as the prior ones that had been stricken three times.   This goes well beyond any reconsideration that a court should countenance.   This court's prior decisions enunciated the legal insufficiencies of the counterclaims;  the defendant's failure to remedy those insufficiencies was done at its own peril.   The first ruling striking these counterclaims was issued on May 14, 2008 by Judge Cosgrove.   Harmony Healthcare International, Inc. v. PARCC Healthcare, Superior Court, judicial district of New Haven, Docket No. CV 07 5009225 (May 14, 2008, Cosgrove, J.).   This court has twice struck the counterclaims.   The failure to replead in accordance with the reasoning of the court leads the court to conclude that the defendant cannot do so in a legally sufficient manner.   The time for this case to move forward has arrived.   See, e.g., Bristol Savings v. C. Miller Chevy-Isuzu, Superior Court, judicial district of Hartford, Docket No. CV 91 514407 (June 1, 1993, Aurigemma, J.)(repleaded answer and counterclaim that differed only in “legal gloss” constituted unconscionable delay).

Counterclaim seven attempts to plead fraudulent misrepresentation.   It bears repeating that fraudulent misrepresentation is adequately pleaded if the pleading contains facts which support the following elements:  “(1) that a false representation was made as a statement of fact;  (2) that it was untrue and known to be untrue by the party making it;  (3) that it was made to induce the other party to act on it;  and (4) that the latter did so act on it to his injury.”  (Internal quotation marks omitted.)  Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 643 (2004).   In reviewing number seven, filed under date of October 22, 2009, the court notes the following “differences” between it and the counterclaim last struck by the court on September 30, 2009.   Of the twenty-seven paragraphs set forth in counterclaim seven, twenty-six paragraphs remain identical.   The defendant has attempted to remedy the lack of factual sufficiency of the fourth element now alleging that “courts have an interest in entering decrees based upon the accuracy of the information provided and/or based upon information that is not false, and/or based upon facts which are not fraudulent or which have not been misrepresented, since such matters go to the very heart of the judicial process ․” The defendant's attempt at further defining fraudulent misrepresentation does not mean that it is a “fact” in the case.   The court again holds that this counterclaim fails as a matter of law.

In counterclaim eight, the defendants have added language that the plaintiff, in the course of its actions, was engaged “in the conduct of a trade or commerce which consisted of providing services for hire in this state, and collecting payments for such services, which would include the filing of suits for collection of the amounts it claimed to be due for the providing of such services.”   This inclusion still fails to remedy the dearth of facts to support a claim under CUTPA.  General Statute § 42-110b et seq.   In determining whether a practice violates CUTPA, the court uses the following criteria:  “(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [ (competitors or other businessmen) ].”  Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 254 (1988).   Regardless of the defendants' allegations, they have failed to provide facts to support these allegations.   Furthermore, they have failed to allege that the practices of the plaintiff are against public policy as established by statute, common law or otherwise.

Additionally, the defendant's attempt at raising a counterclaim under CUTPA is impermissible.   As the court noted in its earlier decisions, a foreign judgment, once registered, has the same effect and is subject to the same procedures for reopening or vacating a judgment of this state.  General Statutes § 52-605.   To comply with federal constitutional law, the only defenses that a Connecticut court should consider by an out-of-state judgment debtor are those that implicate the personal or subject matter jurisdiction of the out-of-state court.  Roe v. Klein, 87 Conn.App. 337, 347-48 (2005).   Accordingly, the plaintiff's motion to strike count eight of the counterclaim is granted.

Due to the repetitive nature of the defendants' filings in this regard, the court rules that the motion to strike is granted with prejudice.

Maureen M. Keegan, J.

Keegan, Maureen M., J.