Stewart Day v. Vladimir Benisovich (2011)

RULING ON PLAINTIFF'S MOTION TO STRIKE (# 143)

The plaintiff, Stewart Day, moved to strike two special defenses filed by the defendant, Vladimir Benisovich.   For the following reasons, the plaintiff's motion to strike is granted and the second and third special defenses are stricken.

I

FACTS AND PROCEDURAL HISTORY

The plaintiff seeks to recover for personal injuries sustained in a motor vehicle accident that allegedly occurred on June 21, 2008.   On June 9, 2011, the defendant answered the complaint and alleged three special defenses (# 138).   On August 30, 2011, the plaintiff moved to strike the second and third special defenses (# 143).   On September 23, 2011, the defendant filed his objection to the motion to strike (# 147).

The second special defense asserts that the plaintiff's claims “are barred by Section 52–584 of the Connecticut General Statutes, the applicable statute of limitations.”   The third special defense alleges that the plaintiff “failed properly to serve the defendant and therefore the court lacks personal jurisdiction over the defendant.”   This matter was heard on October 3, 2011.

II

DISCUSSION

Practice Book § 10–39 provides in relevant part:  “(a) Whenever any party wishes to contest ․ (5) 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 pleading or part thereof.”  “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 Conn. 576, 588, 693 A.2d 293 (1997).   The court must “construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.”  (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).   In ruling on a motion to strike a special defense or special defenses, the role of the trial court is “to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).   The court is limited, in its review, “to a consideration of the facts alleged in the complaint.   A ‘speaking’ motion to strike (one imparting facts outside the pleadings) will not be granted.”  Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996);  see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).

A

The Second Special Defense

“As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ․ The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway ․ Whether facts must be specially pleaded depends on the nature of those facts in relation to the contested issues.”  (Internal quotation marks omitted.)  Coughlin v. Anderson, 270 Conn. 487, 501, 853 A.2d 460 (2004).

A claim that the applicable statute of limitations bars a cause of action is properly pleaded as a special defense.  Practice Book § 10–50.   The defendant, however, has failed to allege any facts to support his legal conclusion.   He simply makes a bare allegation that the “[p]laintiff's claims are barred by Section 52–584 of the Connecticut General Statutes, the applicable Statute of Limitations.”   In the absence of factual allegations that support the defendant's second special defense, the motion to strike must be granted.   Fusaro v. Malik, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 08 5008479 (July 8, 2011, Jennings, J.T.R.);   Neylan v. Pinsky, Superior Court, judicial district of New Haven, Docket No. CV 95 0375368 (October 8, 1997, Zoarski, J.).

B

The Third Special Defense

As with the second special defense, the defendant's third special defense is legally insufficient because it fails to allege specific facts that support the special defense.   The third special defense alleges, simply, that the “[p]laintiff failed to properly serve the defendant and therefore the court lacks personal jurisdiction over the defendant.”   Although the defendant argues in his brief that he was not properly served, he makes that argument by relying on a decision rendered by this court that denied his motion to dismiss (# 101.01).   That decision considered documents beyond the pleadings, which is appropriate in evaluating a motion to dismiss.  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).   When evaluating a motion to strike, however, it is not appropriate to consider documents other than the pleadings.  Doe v. Marselle, supra, 38 Conn.App. 364;  see Liljedahl Bros., Inc. v. Grigsby, supra, 215 Conn. 348–49.   The defendant cannot bootstrap his way around the rule expressed in Doe and Liljedahl by relying on a decision regarding a motion to dismiss.

Furthermore, the defendant's third special defense is defective because the assertion of lack of personal jurisdiction is not an appropriate special defense, particularly after the court has denied a motion to dismiss that advanced the same claim of lack of personal jurisdiction.¹  Center Capital Corp. v. Hall, Superior Court, judicial district of New Britain, Docket No. CV 92 0452084 (February 24, 1994, Lavine, J.) (11 Conn. L. Rptr. 215).

Finally, the plaintiff supports his motion to strike the third special defense by invoking the doctrine of the law of the case.   The plaintiff argues that this court's denial of the defendant's motion to dismiss for lack of personal jurisdiction (# 101.01) forecloses the defendant from raising the same claim in a motion to strike.

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. of Puerto Rico v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).   Such rulings are not to be lightly changed.   McCarthy v. McCarthy, 55 Conn.App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000).   The doctrine is a flexible one, but the reasons behind it are compelling.  “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”  (Internal quotation marks omitted.)  Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked.”  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).   “New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ․ But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause.”  (Emphasis added;  internal quotation marks omitted.)  Id.

The defendant does not suggest that any new facts relevant to the issue of personal jurisdiction have come to light since the court denied his motion to dismiss on January 19, 2011.   Nor does he identify any authority relevant to the issue of personal jurisdiction that has developed since his motion to dismiss was denied.   Instead, he simply claims that the decision denying his motion to dismiss was “wrongly decided,” and he raises arguments that have already been rejected.   Thus, the defendant has failed to present any facts or law that would justify a departure from the law of the case doctrine.   Consequently, the law of the case doctrine controls with regard to this issue.   Branch v. Grogan–Barone, Superior Court, judicial district of New Britain, Docket No. CV 08 4018808 (May 2, 2011, Sweinton, J.);  Center Capital Corp. v. Hall, supra, 11 Conn. L. Rptr. 215.

The defendant's third special defense is legally insufficient and the motion to strike the third special defense must be granted.

III

CONCLUSION

For all of the foregoing reasons, the court concludes that the defendant's second and third special defenses fail to allege sufficient facts, both special defenses are legally insufficient, and the third special defense is barred by the law of the case doctrine.   Thus, the motion to strike is granted as to the second and third special defenses.   So ordered.

BY THE COURT

Danaher III, J.

FOOTNOTES

FN1. The court notes that, unlike the statute of limitations, “lack of personal jurisdiction” is not included in the list of defenses that must be specially pleaded pursuant to Practice Book § 10–50..  FN1. The court notes that, unlike the statute of limitations, “lack of personal jurisdiction” is not included in the list of defenses that must be specially pleaded pursuant to Practice Book § 10–50.

Danaher, John A., J.