M. Credit, Inc. v. City of Waterbury (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 178

The plaintiffs, TSVP 1998-1, LLC and TaxServ Capital Services, LLC by way of revised third amended complaint dated July 8, 2010 have brought this cause of action against the city of Waterbury (“City”).

The underlying facts are that on April 28, 1998 the city of Waterbury, pursuant to Connecticut Special Act § 97-14, nka General Statutes § 12-195h, assigned the 1996 and 1997 Municipal Tax Grand Lists, as well as all its tax liens from 1982-1994, to Capital Asset Research Corporation, Ltd. Through various other legal proceedings and assignments, the present plaintiffs have been assigned the interests of Capital Asset.

The plaintiffs' allegations against the City in eight counts of the revised third amended complaint are:  (1) breach of contract;  (2) breach of implied covenant of good faith and fair dealing;  (3) unjust enrichment;  (4) conversion;  (5) statutory theft;  (6) specific performance and/or mandatory injunction;  (7) declaratory judgment;  and (8) fraud in the inducement.

The City has filed a motion to strike counts 3, 4, 5, 6 and 8 of the plaintiffs' revised third amended complaint, as well as two claims for attorneys fees in the prayer for relief.

In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] 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).  “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).

“[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

The plaintiffs have conceded in both their brief and oral argument that the two claims for attorneys fees in their prayer for relief should be stricken, as sufficient facts have not been pleaded to support the same.

The court next reviews the sixth count which alleges a claim for specific performance and/or mandatory injunction.   The plaintiffs' allegations claim that as a result of the City's breach of the contractual agreement reached in 1998 (the “MRA agreement”), the plaintiffs have been irreparably harmed and have no adequate remedy at law.   However, upon review of the allegations, the court finds that all the claims being made can be remedied legally by the remedies available in the breach of contract count.

The court is relying on the case of Ceruzzi Derby Redevelopment, LLC v. City of Derby, Superior Court, Judicial District of Stamford-Norwalk, complex litigation docket at Stamford, Docket No. X05 CV 08 5009782 (July 1, 2009, Blawie, J.) in support of striking this count.   The parties have disparate interpretations of the Ceruzzi case.   This court finds the following from Ceruzzi most persuasive.

The right to specific performance turns upon whether the Plaintiff must not only establish a breach of contract by the defendant, it must also demonstrate that such breach is not susceptible of fair and proper compensatory damages.   The court will not grant specific performance if monetary damages will afford the Plaintiff an adequate remedy at law.   Specific performance is also inappropriate if the court would thereby become involved in the supervision of details of performance of the contract ․

Id.

In the sixth count seeking specific performance the plaintiffs are requesting that the court, through its equitable relief powers, provide a remedy for the plaintiffs as a result of the claimed breaches of contract by the City. The court finds that the plaintiffs have an adequate remedy at law and have not pleaded sufficient facts to support a cause of action for specific performance.   The court orders that the sixth count of the revised third amended complaint be stricken.

The court has reviewed the allegations of the third count, unjust enrichment;  the fourth count, conversion;  the fifth count, statutory theft under General Statutes § 52-564;  and the eighth count, fraud in the inducement.   The court finds that the plaintiffs have alleged sufficient facts and allegations to state legally sufficient causes of action in each of the counts.   Therefore, the City's motion to strike the third, fourth, fifth and eighth counts of the revised third amended complaint are denied.

So ordered this 1st day of December 2010.

Agati, J.

Agati, Salvatore C., J.