Guy Mungs v. Peter Cowell (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE [# 101]

FACTS

On April 19 2010, the plaintiff, Guy Mangs, filed a two-count complaint against the defendant, Peter Cowell, for claims arising from the loss of certain items of personal property.   The plaintiff's complaint alleges the following facts.   In or around October 2007, the plaintiff left items of personal property with the defendant, who agreed to store the plaintiff's personal property at no charge to the plaintiff.   The defendant has taken exclusive custody and control of the plaintiff's personal property, and refuses to disclose the location in which the personal property is stored.   The defendant further refuses to return the property to the plaintiff unless the plaintiff pays the defendant storage fees, which had never been previously discussed or agreed upon.   Count one alleges a claim for conversion, and count two alleges a claim for replevin pursuant to General Statutes § 52-515.

On May 13, 2010, the defendant filed a motion to strike count two of the plaintiff's complaint on the ground that the claim is legally insufficient.   The defendant filed a memorandum of law in support of the motion.   On June 8, 2010, the plaintiff filed an objection to the defendant's motion, accompanied by a memorandum of law in support of the objection.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “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.)   Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Coun. 576, 588, 693 A.2d 293 (1997).

The defendant argues that the plaintiff's claim for replevin should be stricken on the ground that the plaintiff has failed to meet the necessary requirements for asserting such a claim pursuant to General Statutes § 52-518.   Specifically, the defendant argues that the plaintiff's cause of action should fail because the plaintiff did not attach a signed affidavit to his complaint, or post the requisite bond.   The plaintiff counters that the present action was commenced pursuant to a writ of summons, and therefore, the statutory requirements needed to commence an action by a writ of replevin under § 52-518 are not applicable in this case.

Replevin actions are governed by General Statutes § 52-515 et seq.   General Statutes § 52-515 provides:  “The action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention.”   In order to prevail on the merits of such an action, the plaintiff must plead and prove that “(1) the [items in question] are goods or chattels within the meaning of § 52-515;  (2) [the plaintiff] has a property interest in the [items];  (3) [the plaintiff] has a right to immediate possession of the [items];  and (4) the defendant has wrongfully detained the [items].”  Cornelio v. Stamford Hospital, 246 Conn. 45, 49, 717 A.2d 140 (1998).

The court in Rock Landscaping, LLC v. Georgetti, Superior Court, judicial district of Hartford, Docket No. CV 09 5030972 (September 23, 2009, Sheldon, J.) recently addressed a similar set of factual circumstances as the present case.

An action for replevin may be commenced in one of two ways-by serving the defendant either with a writ of summons or with a writ of attachment ․ When the action is commenced by a writ of summons, the plaintiff must serve the defendant with a complaint duly pleading his claim or cause of action for replevin, describing the parties, the court to which it is returnable and the time and place of appearance[,] must cause copies of the original writ of summons and complaint to be returned to court and must thereafter prosecute the action like any other civil action.   When, by contrast, the action is commenced by a writ of attachment, whereby the plaintiff seeks to secure his claimed interest in the subject property by taking immediate possession of it, before final judgment, under a writ or order of replevin, the plaintiff must also comply with certain additional pleading and service requirements.

The first such requirements are set forth in General Statutes § 52-516(b), which generally provides that any plaintiff who seeks a prejudgment remedy of replevin upon the commencement of his action for replevin must comply with the general requirements for all prejudgment remedies set forth in General Statutes § 52-278a to 52-278f, inclusive ․ The other such requirements are set forth in [§ ]52-518 the statute here at issue which provides, in relevant part, that [a] writ of replevin shall not be issued:  (1) Until the plaintiff ․ subscribes an affidavit annexed to the writ stating the true and just value of the goods which it is desired to replevy, and that the affiant believes that the plaintiff is entitled to the immediate possession of the goods, and (2) until some person, known to the authority signing the writ to be of sufficient responsibility, has entered into a recognizance before him, with at least one sufficient surety, in a sum at least double the sworn value of the property, conditioned (A) that the plaintiff shall prosecute his action to effect, (B) for the payment of any judgment that may be recovered by the defendant in the action, and (C) for the return of property to the defendant, and payment to the defendant of all damages sustained by the replevy of the property if the plaintiff fails to establish his right to its possession.

The plain language of [§ ]52-518 makes it clear that the affidavit and bond requirements set forth therein only apply to the writ of replevin, when applied for as a prejudgment remedy, not to the underlying claim for replevin.   The statute thus conditions the recognizance, inter alia, on the return of the property to the defendant, and payment to the defendant of all damages sustained by the replevy of the property if the plaintiff fails to establish his right to its possession ․ General Statutes § 52-518(2)(C).  That, of course, can only occur when a plaintiff who has taken possession of property prior to judgment fails to establish his claim on the merits at trial.   Manifestly, it does not apply to a plaintiff who has not sought a prejudgment remedy of replevin, for he never can or will take possession of the subject property until his entitlement to it is finally adjudicated at trial.   The manifest purpose of the bond requirement is thus to protect the interests of the defendant in the return of property replevied prior to judgment if the plaintiff fails to prove his claim at trial.

Lastly, General Statutes § 52-523, the statutory section describing the requirements for a complaint in a replevin action makes no mention of the affidavit and bond requirements.   From this, it can be inferred that a complaint that satisfies [§ ]52-523 is sufficient on its face to bring a cause of action for replevin.

(Citations omitted, emphasis in original, internal quotation marks omitted.)   Rock Landscaping v. Georgetti, supra, Docket No. CV 09 5030972.

In the present case, the plaintiff has not attached a signed affidavit to the complaint, or posted a bond.   However, the plaintiff's complaint seeks to bring a substantive claim for replevin, without seeking a prejudgment remedy of replevin.   Pursuant to the case law discussed herein, neither a affidavit nor a bond is therefore required to bring the present action.   As a result, the defendant's motion to strike count two of the plaintiff's complaint on this ground cannot be granted.

CONCLUSION

Based on the foregoing, the court hereby denies the defendant's motion to strike count two of the plaintiff's complaint.

Martin, J.

Martin, Robert A., J.