Jerrick Brown et al. v. Sarah Morant et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 113)

PROCEDURAL AND FACTUAL BACKGROUND

On March 8, 2010, the plaintiffs, Jerrick Brown, Helen Losier, Catessa Pittman and Caressa Pittman, filed a four-count complaint against the defendants, Sarah Morant and Avelo Mortgage, LLC.¹ In their four-count amended complaint,² the plaintiffs allege the following.   On October 17, 2007, the defendant brought a foreclosure action against Morant and filed a notice on the land records that it was the owner of the first mortgage on property located at 237 Goodrich Street in Hamden by virtue of an assignment from the original mortgage holder.   At all times, Morant was the owner of the equity of the property and was in control of the property, including the first floor, which had been rented to tenants.   The defendant, “because of the pending foreclosure, took possession and control of [the] property in December 2007, including the tenants on the first floor, and at all times subsequent to October 17, 2007, had a right of access and inspection of [the] premises.”   Judgment of strict foreclosure entered in favor of the defendant on February 19, 2008 and title vested in the defendant on April 9, 2008.   On February 24, 2008, the plaintiffs were tenants on the second and third floor of the property.   On that date, there was a fire on the property, which originated on the first floor.   The fire was due to the negligence and carelessness of Morant and the defendant.³  As a result, the plaintiffs have suffered damages.

On June 23, 2010, the defendant filed the present motion to strike all four counts of the plaintiffs' amended complaint on the ground that each count fails to state a claim upon which relief may be granted against the defendant.   The motion is accompanied by a memorandum of law, pursuant to Practice Book § 10-42(a).   On July 21, 2010, the plaintiffs filed an objection to the defendant's motion, pursuant to Practice Book § 10-42(b).  The matter was heard at short calendar on August 23, 2010.

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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”   (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   As a result, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [plaintiffs have] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “[I]n 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).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.

A number of Superior Court decisions have determined that a court may not grant a motion to strike a count against multiple defendants when the motion has been brought by only one defendant.   See, e.g., Metallo v. Torrington Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 09 5007012 (May 25, 2010, Shaban, J.);   see also Webster v. Pequot Mystic Hotel, LLC, Superior Court, judicial district of New London, Docket No. CV 00 0556799 (January 9, 2002, Hurley, J.T.R.) (31 Conn. L. Rptr. 217).  “A motion to strike a count brought against multiple defendants may not be granted on the ground that the allegations are insufficient as they relate to a single defendant.   When a single count of a complaint combines separate causes of action against multiple defendants, the proper way to cure any confusion in that regard is to file a [request] to revise, not a motion to strike the entire complaint ․ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike ․” (Internal quotation marks omitted.)  Metallo v. Torrington Board of Education, supra, Superior Court, Docket No. CV 09 5007012;  see also Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988) (concluding that proper way to cure confusion with regard to combination of separate causes of action against separate defendants in same count is request to revise).   This reasoning is persuasive.   In the present case, the defendant is moving to strike all four counts against it only and does not challenge the legal sufficiency of the counts as to Morant.   Therefore, the defendant should have filed a request to revise the plaintiffs' amended complaint before filing a motion to strike.   As a result, the defendant's motion to strike is denied.

Even if the court were willing to address the defendant's motion, the court would still deny the motion.   In its memorandum of law in support of its motion, the defendant sets forth the following arguments;  the complaint fails to allege that:  (1) the defendant was the “owner” of the property at the time of the fire;  (2) the defendant was a “mortgagee in possession” at the time of the fire, with supporting facts of possession and control;  and (3) the defendant's negligence was a cause of any damages to the plaintiffs.   In response, the plaintiffs counter that liability due to defective premises depends on possession and control and not on title.   The plaintiffs contend that their amended complaint does allege that the defendant had possession and control and also had a right of access and inspection of the premises before the time of the fire, which is enough to defeat a motion to strike.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   (Internal quotation marks omitted.)  Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006).  “The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court.”  Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 137, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).  “[L]iability for a claimed injury due to ․ defective premises depends on possession and control and not on title.”  Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).

“In the specific context of the liability of a mortgagee with respect to defects at the mortgaged property, it is established that where a mortgagee is not in possession of the premises, it does not owe a duty of care over the condition of the property.”  Zuccari v. Antares Yale & Towne SPE, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. X08 CV 06 5002096 (July 22, 2008, Jennings, J.) (46 Conn. L. Rptr. 87, 89).  “[P]ossession of land ․ imposes the liability for injuries ․ [because] the person in possession is in a position of control and is best able to prevent harm ․” (Internal quotation marks omitted.)  Id. “The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee.”  (Internal quotation marks omitted.)   Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105 (2010).

In the present case, the plaintiffs allege claims for negligence against the defendant on account of defective premises.   In counts one, two, three and four, the plaintiffs allege that the defendant “took possession and control of said property in December 2007, including the tenants on the first floor, and at all times subsequent to October 17, 2007 had a right of access and inspection of said premises.”   The defendant argues, however, that the plaintiffs fail to allege that the defendant is liable as an owner of the property.   Nevertheless, the plaintiffs did not have to allege ownership on behalf of the defendant in order to defeat the defendant's motion.   The law in this area is settled, that “[l]iability for a claimed injury due to ․ defective premises depends on possession and control and not on title.”   (Emphasis added.)  Doty v. Shawmut Bank, supra, 58 Conn.App. 432.   The plaintiffs expressly allege that the defendant “took possession and control” of the property.

The defendant also argues that the plaintiffs' complaint does not set forth sufficient facts to support the allegation of possession and control.   In particular, the defendant contends that the complaint is contradictory because the plaintiffs allege that Morant was in control of the property, that the complaint never alleges that the defendant was ever a “mortgagee in possession of the premises,” and that the plaintiffs fail to allege any facts to support their conclusory allegations of possession and control because a “right of access and inspection” does not impose liability on a mere mortgagee.   The fact that the plaintiffs allege that Morant was in control of the property, however, is not contradictory to the allegation that the defendant was in control of the property because the two parties could have retained joint control.   With regard to whether the plaintiffs sufficiently allege possession and control, the defendant relies primarily upon Zuccari v. Antares Yale & Towne SPE, LLC, supra, 46 Conn. L. Rptr. 87.

The facts in Zuccari are distinguishable, however.   In Zuccari, the court concluded that an allegation of joint control, without an allegation of possession or more specific allegations of control, besides discretionary control over disbursements of mortgage loan proceeds, was insufficient to create a duty in the mortgagee.  Id., 90.   In particular, the court noted that “[i]t is significant that the plaintiffs have alleged that ․ [the] other defendants [were] in ‘possession and control’ of the premises but the allegation against the [mortgagees] is simply the conclusory word ‘control.’   “ Id., 89.   Furthermore, the court noted that “[t]he power to control disbursements of loan proceeds reserved for the purpose of repairs can hardly be equated with the power to implement or manage those repairs which would be the essence of the control necessary to impose liability ․ There [was] no allegation that the mortgage was in default, or that the mortgage documents granted the mortgagees the power or right to go onto the property, hire contractors, or effect repairs.”  Id. Unlike the plaintiffs in Zuccari, the plaintiffs in the present case did allege that the defendant had possession of the property in addition to their allegations of control.   Furthermore, the plaintiffs allege that the mortgage was in default and that the defendant had the “right of access and inspection,” or in other words, the right to go onto the property.

In Irizarry v. M.L. Moskowitz & Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5007501 (April 6, 2010, Brazzel-Massaro, J.), the court considered a factual situation similar to that presented in the present case.   In Irizarry, the court distinguished Zuccari and concluded that allegations that the defendant had possession and control of the property with a right of access and inspection was sufficient to defeat a motion to strike.  Id. The reasoning in Irizarry is persuasive.   The plaintiffs in this case have alleged possession and control.   Furthermore, the plaintiffs have alleged that the defendant had a right of access and inspection.   Based on Irizarry, these factual allegations are sufficient to support their allegation of possession and control.

Finally, the defendant argues that the plaintiffs failed to allege facts that the defendant's negligence was a cause of any damage to the plaintiffs.   Specifically, the defendant contends that the plaintiffs did not articulate whether the negligence and carelessness of Morant or the defendant or both was responsible for the plaintiffs' damages because paragraph ten, in all four counts, refers to “defendant” ⁴ in the singular.   While it is ambiguous as to which party the plaintiffs intended to refer to in paragraph ten, “[t]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike the entire complaint.”  Rowe v. Godou, supra, 209 Conn. 279;  see also Practice Book § 10-35.⁵

Moreover, the defendant contends that the plaintiffs have failed to provide a link between the fire, the cause of the fire, the actions of the defendant and how said actions supposedly caused the origin of the fire, and the plaintiffs' damages.  “[I]n 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, supra, 280 Conn. 318.   The plaintiffs have sufficiently pleaded the relationship between the defendant's actions, the fire and the plaintiffs' damages.   The plaintiffs expressly allege that the defendant's negligence was the cause of the fire and allege facts to support their allegations of negligence against the defendant.   See footnote 3. Therefore, the plaintiffs' amended complaint is not legally insufficient on any of the grounds argued by the defendant.

Nevertheless, since the individual counts of the complaint allege causes of action against Morant and the defendant together, the defendant should have filed a request to revise the plaintiffs' amended complaint before filing a motion to strike.   As a result, the defendant's motion to strike counts one, two, three and four of the plaintiffs' amended complaint is denied.

Wilson, J.

FOOTNOTES

FN1. The present motion to strike was filed individually by Avelo Mortgage, LLC, hereinafter “the defendant.”.  FN1. The present motion to strike was filed individually by Avelo Mortgage, LLC, hereinafter “the defendant.”

FN2. In response to the defendant's motion to strike, filed on April 29, 2010, the plaintiffs filed a request to amend and amended complaint on June 9, 2010.   The plaintiffs filed a subsequent request to amend and amended complaint on July 21, 2010.   As the defendant has failed to object to either request to amend, the operative complaint is the amended complaint filed on July 21, 2010.   See Practice Book § 10-60..  FN2. In response to the defendant's motion to strike, filed on April 29, 2010, the plaintiffs filed a request to amend and amended complaint on June 9, 2010.   The plaintiffs filed a subsequent request to amend and amended complaint on July 21, 2010.   As the defendant has failed to object to either request to amend, the operative complaint is the amended complaint filed on July 21, 2010.   See Practice Book § 10-60.

FN3. In particular, the plaintiffs allege that Morant and the defendant:  (1) caused or allowed and permitted the first floor of the property to remain without heat for a lengthy period of time;  (2) caused or allowed and permitted dangerous space heaters to be used by the tenants on the first floor without supervision;  (3) failed to take any action after the fire marshal, who inspected the premises prior to February 24, 2010, was highly critical of the use of the space heaters by the tenants occupying the first floor;  (4) failed to inspect the first floor to determine whether the conduct of the tenants created an unreasonable risk of fire;  (5) maintained the property in the aforesaid condition;  (6) failed to conduct a proper and reasonable inspection;  (7) failed to secure the premises after it had been damaged by fire;  and (8) knew or should have known of the aforesaid conditions..  FN3. In particular, the plaintiffs allege that Morant and the defendant:  (1) caused or allowed and permitted the first floor of the property to remain without heat for a lengthy period of time;  (2) caused or allowed and permitted dangerous space heaters to be used by the tenants on the first floor without supervision;  (3) failed to take any action after the fire marshal, who inspected the premises prior to February 24, 2010, was highly critical of the use of the space heaters by the tenants occupying the first floor;  (4) failed to inspect the first floor to determine whether the conduct of the tenants created an unreasonable risk of fire;  (5) maintained the property in the aforesaid condition;  (6) failed to conduct a proper and reasonable inspection;  (7) failed to secure the premises after it had been damaged by fire;  and (8) knew or should have known of the aforesaid conditions.

FN4. In their complaint, the plaintiffs refer to Morant and the defendant as “the defendants,” which should not be confused with the use of “the defendant” for purposes of the present motion.   See footnote 1..  FN4. In their complaint, the plaintiffs refer to Morant and the defendant as “the defendants,” which should not be confused with the use of “the defendant” for purposes of the present motion.   See footnote 1.

FN5. “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading, or ․ (4) any other appropriate correction in an adverse party's pleading, the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading.”.  FN5. “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading, or ․ (4) any other appropriate correction in an adverse party's pleading, the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading.”

Wilson, Robin L., J.