Corrine Carr v. J.C. Penney Co., Inc. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 116

FACTS

The plaintiff, Corrine Carr, commenced this suit by service of process on the defendant, JC Penney Co., Inc., on July 23, 2008.   The plaintiff filed an eighteen-count third revised complaint ¹ on April 7, 2010, pursuant to a court order overruling her objections to the defendant's request to revise that was filed on January 25, 2010.   The third revised complaint alleges that at various times from 2004–2008, while the plaintiff was a lawful customer in the defendant's store, she had several negative interactions including:  1) experiencing physical and emotional pain due to shocks and currents that were emitted from the store's escalator, P.A. system, structure column, walkie talkie devices, utterances, cash registers and scanner devices;  2) experiencing physical pain from a malfunctioning escalator;  and 3) being subject to abusive language from the defendant's employees as well as unknown persons.

On July 7, 2010, the defendant filed a motion to strike the plaintiff's third revised complaint and a supporting memorandum of law on the grounds that:  1) the plaintiff did not comply with a court order requiring revisions to her complaint, 2) the plaintiff's claims are barred by the statute of limitations, 3) the plaintiff's allegations for nuisance are legally insufficient to state a cause of action and 4) the plaintiff's prayer for relief numbers 1 and 2 are legally insufficient pursuant to General Statutes § 52–91.   The plaintiff filed an objection to the motion to strike on August 9, 2010.   The matter was heard at short calendar on February 7, 2011.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any [pleading] ․ 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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  “Whenever a party wishes to contest ․ the legal sufficiency of any answer to any complaint ․ or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested ․ part thereof.”  Practice Book § 10–39.  “The 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 its memorandum of law, the defendant first argues that General Statutes § 52–584 bars the plaintiff's claims.   The amended complaint alleges that her injuries began in 2004 and ended in 2008.  Section 52–584 requires that an action be commenced within two years of the injury or within three years of the negligent act or omission.   Since, the defendant maintains, the plaintiff did not commence her suit within three years of her initial injuries in 2004, the statute of limitations has run and the plaintiff's claims are barred.   Second, the defendant asserts that the plaintiff's allegations of ongoing occurrences constitute a claim of nuisance upon which the plaintiff cannot rely.   Nuisance is not actionable against a private business.   There is no entitlement to enter the defendant's premises because it is not a public place where the public has a right to be.   Since the plaintiff was not in the exercise of any public right, the defendant maintains, she cannot base her right to recover on a claim of nuisance.   Third, the defendant argues that plaintiff's first prayer for relief is not permitted as it demands $10,000,000 rather than using the language that is required by § 52–91.   Furthermore, the second prayer for relief is not permitted because the plaintiff is not entitled to punitive damages as she has not alleged facts sufficient to alert the defendant of any intentional or reckless acts.

The plaintiff counters that she has complied with the court order pursuant to Practice Book § 10–26 by separating and naming her counts.   She also maintains that General Statutes § 52–577 does not apply because she has alleged a continuous course of tortious conduct.  Section 52–584 is tolled because she is alleging that “the defendant's tortious negligence continuous course of wrongful conduct” permits the tolling of the statute.   As to the defendant's argument of a nuisance claim, the plaintiff asserts that she has not alleged nuisance, only material facts that support her negligence cause of action.

I

The defendant's first ground for the motion to strike is that the plaintiff has not complied with a court order requiring revisions to her complaint.   “Each motion to strike raising any of the claims of legal insufficiency shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”   Practice Book § 10–41.  Practice Book § 10–42(a) provides:  “Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies.”   Where the defendant fails to brief grounds relied upon on the motion to strike, the court will “treat those issues as abandoned.”  State v. Bashura, 37 Conn.Sup. 745, 748–49, 436 A.2d 785 (App.Sess.1981).   See, e.g., Gorman v. New Milford, Superior Court, judicial district of Danbury, Docket No. CV 08 5004455 (March 17, 2010, Marano, J.).

In the present case, the defendant has failed to brief the ground that the plaintiff has failed to comply with the court's order to revise her complaint, only addressing the second, third and fourth grounds in its memorandum of law.   Thus, this ground is treated as abandoned.²  The motion to strike on the ground that the plaintiff has failed to revise her complaint in compliance with a court order is denied.

II

The defendant argues that the plaintiff's claims of negligence are barred by the statute of limitations imposed by General Statutes §§ 52–584 and 52–577.  “[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).  “[T]here are two exceptions to that holding.   Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted.”  Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).  “The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by an answer.”  (Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235, 239–40, 624 A.2d 389 (1993).   The second exception exists when “a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., supra, 277 Conn. 345 n.12.

In the present case, the parties have not agreed that the complaint sets forth all of the facts necessary to decide a question of statute of limitations and the defendant, in referencing statutes that apply to negligence, must necessarily argue that the allegations were brought under a negligence claim.   Accordingly, neither exception to the rule prohibiting the use of a motion to strike to raise the defense of the statute of limitations is applicable.   Therefore, the defendant's motion to strike on the ground that statute of limitations has expired is denied.

III

The defendant argues that the allegations in the plaintiff's complaint are legally insufficient to state a cause of action for nuisance.   The plaintiff counters that she is not alleging nuisance, but multiple occurrences of negligence.   Taking the allegations in the light most favorable to the plaintiff, the complaint is construed as claiming negligence.   See Alexandru v. West Hartford Ob–Gyn, Superior Court, judicial district of Hartford, Docket No. CV 99 0594198 (November 28, 2000, Wagner, J.T.R.).   As the defendant has alleged the legal insufficiency for the cause of action of nuisance and not negligence, the court has not been presented with the appropriate ground to challenge the cause of action and the “court will not, in passing on the [motion to strike], consider other grounds than those specified.”  Cyr v. Brookfield, 153 Conn. 261, 263, 216 A.2d 198 (1965).   The Connecticut Supreme Court “will not uphold the granting of [a] motion to strike not alleged in the motion ․” Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).   The motion to strike on the ground that the claims of nuisance are legally insufficient is denied.

IV

AFirst Prayer for Relief

The defendant argues that the first prayer for relief should be stricken because it does not comply with § 52–91.  “Practice Book ․ § 10–39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).   If, however, “any party desires to obtain ․ any ․ 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.”  Practice Book § 10–35.

In the present case, the defendant seeks a correction in the form of the plaintiff's first prayer for relief.   It does not seek to strike it as being legally insufficient.   Thus, a motion to strike is the improper procedural vehicle to challenge the first prayer for relief.   Rather, the defendant should have filed a request to revise the prayer for relief.   The motion to strike the first prayer for relief is denied.

B

Prayer for relief

In the defendant's motion, it argues that the second prayer for relief should be stricken because it also does not comply with § 52–91.   In the memorandum of law, however, the defendant asserts that the plaintiff's second prayer for relief should be stricken because the allegations do not support a prayer for punitive damages.  “Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency are fatally defective ․ and that Practice Book § [10–42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10–41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”  (Internal quotation marks omitted.)   Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2003).   Additionally, the court is “not required to review issues that have been improperly presented to [the] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.”  (Internal quotation marks omitted.)  Hogan v. Dept. of Children and Families, 290 Conn. 545, 578, 964 A.2d 1213 (2009).

In the present case, the defendant did not challenge the legal sufficiency of the facts supporting the second prayer for relief on the face of the motion.   Moreover, it has failed to provide any legal argument in support of this motion to strike, only providing a one paragraph explanation of its position with regards to punitive damages.  “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”  (Internal quotation marks omitted.)  Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008).   Therefore, this claim has been abandoned.   Accordingly, the defendant's motion to strike the plaintiff's second prayer for relief is denied.

CONCLUSION

For the foregoing reasons, the defendant's motion to strike is denied.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. The plaintiff filed the third revised complaint as “The Plaintiff's Substitute Revised Complaint.”.  FN1. The plaintiff filed the third revised complaint as “The Plaintiff's Substitute Revised Complaint.”

FN2. Even if the defendant had properly briefed the ground, the motion to strike would have been denied.   The appropriate procedural vehicle to raise a failure to comply with a court order to revise a complaint is a motion for nonsuit, not a motion to strike.   See Pellecchia v. Connecticut Light and Power, Superior Court, judicial branch of Hartford, Docket No. X04 CV 08 6003273 (December 17, 2009, Shapiro, J.)..  FN2. Even if the defendant had properly briefed the ground, the motion to strike would have been denied.   The appropriate procedural vehicle to raise a failure to comply with a court order to revise a complaint is a motion for nonsuit, not a motion to strike.   See Pellecchia v. Connecticut Light and Power, Superior Court, judicial branch of Hartford, Docket No. X04 CV 08 6003273 (December 17, 2009, Shapiro, J.).

Burke, Richard E., J.