Coldwell Banker Real Estate Services, Inc. v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE.   No. 169

FACTS

On February 25, 2009, the plaintiff, Coldwell Banker Real Estate Services, Inc., filed an amended five-count complaint against the defendants, Landel Realty, LLC, Joann DeRaffaele and Admiral Properties of CT, LLC. On March 3, 2009, the defendants filed a four-count third-party complaint against the third-party defendant, Ruth LeBlanc-Jones, with a return date of May 12, 2009.   On March 16, 2009 the defendants filed an answer and special defenses to the plaintiff's amended complaint and a five-count counterclaim against the plaintiff.   On June 4, 2009, the third party defendant and the plaintiff, in its capacity as the defendant to the counterclaims, filed a motion seeking the court's permission to implead Anthony Silvestri and Joseph General Contracting, Inc. (Joseph General) as third party defendants pursuant to General Statutes § 52-102a.   The original defendants objected to the motion, and the court, Goldberg, J., sustained the defendants' objection and denied leave to serve and file the proposed third party complaint against Silvestri and Joseph General.   Thereafter, on September 3, 2009, within 120 days of the return date of the complaint filed against her, third party defendant Ruth LeBlanc-Jones filed a timely apportionment complaint and summons against Silvestri and Joseph General, pursuant to General Statutes § 52-102b.

Meanwhile, on June 17, 2009, the plaintiff and third party defendant filed a motion for summary judgment as to four counts of the defendants' counterclaims against the plaintiff and four counts of the defendants' third party complaint against the third party defendant.   Oral argument concerning the motion was heard by the court at short calendar on September 8, 2009.   This court, Martin, J., denied the motion for summary judgment for all counts except for count four of the defendants' third party complaint, which was granted in favor of the third party defendant on February 18, 2010.   Before the issuance of that decision, however, the defendants attempted to withdraw the third party complaint against the third party defendant by filing a withdrawal form on February 1, 2010.

On February 5, 2010, the plaintiff filed a “cross complaint” against Silvestri and Joseph General, alleging much of the same claims as when it unsuccessfully attempted to implead them pursuant to § 52-102a.   On February 16, 2010, the defendants filed a motion to strike the plaintiff's cross complaint on the grounds that Silvestri and Joseph General are not parties to the present action and that the law of the case doctrine bars the cross complaint from being asserted.   The motion is accompanied by a memorandum of law.   On March 5, 2010, the plaintiff filed an objection to the motion to strike and a memorandum of law in support of its objection.   Judge Cosgrove granted the plaintiff's motion to restore the case to the docket on November 1, 2010, after this action was stayed pending the defendant Joann DeRaffaele's bankruptcy.   The defendants' motion to strike was heard at short calendar on November 22, 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).  “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 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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   Furthermore, “grounds other than those specified should not be considered by the trial court in passing upon a motion to strike.”   (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).

In the present case, the defendants offer two grounds in support of their motion to strike.   First, the plaintiff's cross claims are legally and procedurally improper because neither Silvestri nor Joseph General is a party to the action.   Second, the law of the case doctrine precludes claims against these two parties because the court has previously denied the plaintiff leave to implead them.   The plaintiff counters that Silvestri and Joseph General are in fact parties to this action as a result of the third-party defendant, Ruth LeBlanc-Jones, filing an apportionment complaint against them.   Further, the plaintiff argues that the law of the case doctrine should not apply.

As a preliminary matter, it is noted that the plaintiff's pleading is not a “cross complaint,” inasmuch as, pursuant to our rules of practice, a cross complaint is a pleading that a party files against a co-party.   See Practice Book § 10-10.   As the Appellate Court has stated, however, “the construction of a pleading is a question ultimately for the court ․ When a case requires [the] court to determine the nature of a pleading filed by a party, [the court is] not required to accept the label affixed to that pleading by the party.”   (Internal quotation marks omitted.)  Drahan v. Board of Education, 42 Conn.App. 480, 489, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).

General Statutes § 52-102b(a) provides in relevant part:  “A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek apportionment of liability.   Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred days of the return date specified in the plaintiff's original complaint.”

Here, Ruth LeBlanc-Jones, the defendant in the third party complaint, served an apportionment complaint on Silvestri and Joseph General on August 21, 2009 and filed the complaint on September 3, 2009.   This was done within 120 days of the return date of the third party complaint, which was May 12, 2009.   Section 52-102b does not require court permission to file an apportionment complaint.

Section 52-102b(a) further provides:  “The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.”   Thus, Silvestri and Joseph General are proper parties in this action for all purposes, and claims can be asserted by and against them.

As a side note, the defendants' attempted withdrawal of their third party complaint against Ruth LeBlanc-Jones has no effect on Silvestri and Joseph General's status as parties.  General Statutes § 52-80 provides in relevant part:  “The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof.   After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action ․ only by leave of court for cause shown.”  “[A] hearing can be a proceeding in the nature of a trial with the presentation of evidence, it can be merely for the purpose of presenting arguments, or, of course, it can be a combination of the two ․ Not only does a hearing normally connote an adversarial setting, but usually it can be said that it is any oral proceeding before a tribunal ․ Our cases consistently recognize the generally adversarial nature of a proceeding considered a hearing, in which witnesses are heard and testimony is taken.”  (Emphasis in original;  internal quotation marks omitted.)  Tevolini v. Tevolini, 66 Conn.App. 16, 24, 783 A.2d 1157 (2001), quoting Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 469-70, 378 A.2d 547 (1977).   A hearing on the merits of the third party complaint was held when the third party defendant moved for summary judgment and the parties presented memoranda in support of and in opposition to the motion and participated in oral argument before this court.   Therefore, the withdrawal of the third party complaint was improper without permission by the court and therefore this has no effect on the apportionment complaint, which is derivative of the third party complaint.

Practice Book § 10-10 provides in relevant part:  “In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ․ A defendant may also file a counterclaim or cross claim under this section against any other party to the action for the purpose of establishing that party's liability to the defendant for all or part of the plaintiff's claim against that defendant.”  (Emphasis added.)   Thus, as a defendant to the counterclaim, the plaintiff is permitted under Practice Book § 10-10 to file a claim against any other party to the action;  this broad interpretation includes Silvestri and Joseph General.   Although technically not a “cross complaint,” by construing the pleading in a manner most favorable to sustaining its legal sufficiency, the plaintiff's pleading here can survive a motion to strike.

With respect to the defendants' second ground in their motion to strike, the law of the case doctrine does not apply here.   The law of the case doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ․ A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)  General Electric Capital Corp. v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).

In the present case, Judge Goldberg previously denied the plaintiff leave to implead Silvestri and Joseph General.   The plaintiff had attempted to implead them pursuant to §§ 52-102a(a) and (e) as a counterclaim defendant.   Section 52-102a(a) provides in relevant part:  “A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him ․” Section 52-102a(e) provides:  “When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this section would entitle a defendant to do so.”   The plaintiff's “cross complaint” is not a claim under § 52-102a against a non-party.   Rather, it is a claim against a party to the action, authorized by Practice Book § 10-10.   The law of the case doctrine is inapplicable, and the defendants' motion to strike the pleading on that ground fails.

CONCLUSION

For the foregoing reasons, the court hereby denies the defendants' motion to strike the plaintiff's “cross complaint.”

Martin, J.

Martin, Robert A., J.