Maurice Fox v. Town of Stratford et al. (2011)

MEMORANDUM OF DECISION

The plaintiffs are Maurice Fox and Lawrence Parnoff.   The defendants are the Town of Stratford, James Miron and John Prince (Stratford defendants);  the Town of Trumbull and Clair Garard (Trumbull defendants);  Guerrera Construction Co., Inc. and Michael Norkowski (Guerrera defendants);  the Connecticut department of transportation and JoAnn Devine (department of transportation defendants);  Garg Consulting Services, Inc. and Kenneth Rekrut (Garg Consulting Defendants);  and Maguire Group Connecticut, Inc., Maguire Group, Inc., Maguire Group Architects, Inc., and Jeff Lemay (Maguire defendants).

The plaintiffs' ten-count revised complaint alleges the following facts.   Fox and Parnoff are each owners of parcels of land in Stratford.   Both of the plaintiffs' parcels of land abut Huntington Road on one side and abut Beaver Dam Lake on the other side.   Each of the defendants were involved to some extent in the Huntington Road Project (project), a redesign and widening of Huntington Road, and installation of sewers and drainage systems.   The plaintiffs allege that the inadequate design and construction of the project caused road drainage to run over their land, saturating and polluting it, as well as the Beaver Dam Lake.

The Guerrera defendants have filed a motion to strike counts six, eight, nine and ten as well as prayers for relief paragraphs three, four, five and seven.   The Trumbull defendants have filed a motion to strike counts three, eight, nine and ten.   The Stratford defendants filed a motion to strike counts two, seven, eight, nine and ten as well as paragraphs three, four, five and seven of the plaintiffs' prayer for relief.   The Maguire defendants have filed a motion to strike counts one, seven, eight, nine and ten of the complaint, adopting the grounds and arguments of all of the other defendants.

Practice Book § 10–39 provides in relevant part, “(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”   When deciding a motion to strike the court must “take the facts to be those alleged in the complaint ․ [and] construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus [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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

I

Counts One, Two, Three and Six:  Inverse Condemnation

Each of the defendants move to strike counts one, two, three and six, which allege “constructive condemnation,” on grounds that such a cause of action does not exist under Connecticut law.   The defendants argue that if these counts are construed to assert a claim for inverse condemnation, additional grounds exist to strike these counts.   The Guerrera defendants move to strike count six on grounds that it is legally insufficient because the plaintiffs do not allege that the Guerrera defendants are state actors, as is required for a claim of inverse condemnation.   The Guererra defendants also argue that the plaintiffs have not alleged that the defendants deprived them of all reasonable use of their property.   The Maguire defendants move to strike count one on the same grounds as the Guerrera defendants.   The Stratford defendants and the Trumbull defendants move to strike the condemnation claims against them in counts two and three respectively, on the ground that the plaintiffs do not allege that their use of the land has been substantially destroyed.

The plaintiffs argue in opposition to the motions to strike that they have alleged a substantial destruction in the value and use of their property through the claims of flooding and pollution of their property.   The plaintiffs also argue as follows:  “Plaintiffs concede that their complaint needs to be revised to include Article first § 11, of the constitution of Connecticut ․ The New England Estates [LLC v. Branford, 294 Conn. 817, 988 A.2d 229 (2010) ] case ․ establishes that violations of constitutionally protected rights set out valid torts claims.   In addition, New England Estates holds that ‘any damage to the remainder [that] is a necessary, natural and proximate result of the taking, evidence of those damages is admissible only insofar as it is evidence of elements in the decrease in market value, and any damages resulting from the negligence of the contractor working on the related highway improvements would not be recoverable in the condemnation proceeding, but must be sought in an independent action.’ “

As observed supra, this count is labeled “constructive condemnation,” a term not known in Connecticut statutory or case law.   However, “[c]ourts generally look past such labels, or at least do not bind parties to them, and examine the substance of what is alleged or to the relief sought.”   Law Offices of Ira Charmoy v. Lockery, Superior Court, judicial district of Fairfield at Bridgeport, Docket Nos. 380135, 382937 (January 21, 2003, Levin, J.).   Moreover, “[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.”   (Internal quotation marks omitted.)  Beaudoin v. Town Oil Co., 207 Conn. 575, 587–88, 542 A.2d 1124 (1988).   The plaintiffs obviously sought to assert a cause of action for inverse condemnation.

“[A]n inverse condemnation occurs when either:  (1) application of the regulation amounted to a practical confiscation because the property cannot be used for any reasonable purpose;  or (2) under a balancing test, the regulation's application impermissibly has infringed upon the owner's reasonable investment-backed expectations of use and enjoyment of the property so as to constitute a taking.”  Rural Water Company, Inc. v. Zoning Board of Appeals of Ridgefield, 287 Conn. 282, 299, 947 A.2d 944 (2008).  “Connecticut law on inverse condemnation requires total destruction of a property's economic value or substantial destruction of an owner's ability to use or enjoy the property.”  Sinotte v. Waterbury, 121 Conn.App. 420, 436, 995 A.2d 131 (2010).

Practice Book § 10–1 states:  “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies ․” A complaint is not necessarily deficient because it fails to allege each and every element of a cause of action.  D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, 6 Conn.App. 153, 159–60, 503 A.2d 1192 (1986), reversed on other grounds, 202 Conn. 206, 520 A.2d 217 (1987).   Under the rules of practice governing pleading, a party may plead legal effect as long as the pleading fairly apprises the adverse party of the state of facts which it is intended to prove.  Practice Book § 10–2;  Buckman v. People Express, Inc., 205 Conn. 166, 173, 530 A.2d 596 (1987).   However, “[t]he burden of alleging a recognizable cause of action rests upon the Plaintiff.”  Demello v. Plainville, 170 Conn. 675, 677, 368 A.2d 71 (1976).

The plaintiffs allege in their complaint that the defendants have designed or implemented the project “so as to result in the constructive and inverse condemnation, wrongful taking and loss of value of the building lots on Plaintiff's property.”   These allegations are clearly conclusions, not facts.   The plaintiffs further allege that the drainage system that was created causes water to “partially” flow over the plaintiffs' land, and they allege that pollutants and “road scum” are deposited over parts of their land which depreciates the value of the land.   The plaintiffs do not allege any facts to show that there is total destruction of the land's value or substantial destruction of the plaintiffs' ability to use the property.   To survive a motion to strike, a complaint must allege sufficient facts to support a finding of a taking of land in the constitutional sense.   Cf. Tamm v. Burns, 222 Conn. 280, 284, 610 A.2d 590 (1992);  DeMello v. Plainville, 170 Conn. 675, 680, 368 A.2d 71 (1976).   Like the complaints in Tamm and DeMello, the complaint here fails to do so.   For this reason the motions to strike counts one, two, three and six is granted.

II

Count Seven:  Trespass Creating Nuisance

The Stratford, Trumbull and Maguire defendants all move to strike count seven on grounds that it does not allege a recognized cause of action.   The plaintiffs do not provide arguments in opposition to these grounds.

Count seven purports to set forth a cause of action entitled “Trespass Creating a Nuisance.”   The essential elements of an action for trespass are:  “(1) ownership or possessory interest in land by the plaintiff, (2) invasion, intrusion, entry by the defendant affecting the plaintiff's exclusive possessory interest;  (3) done intentionally;  and (4) causing direct injury.”  (Emphasis added.)  Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn.Sup. 424, 427, 657 A.2d 732 (1994) 911 Conn. L. Rptr. 3490, citing Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916).

“[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property.   The interference may be either intentional ․ or the result of the defendant's negligence.”  (Citation omitted.)  Petsey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002).

The defendants are correct to point out that there is no such cause of action for trespass creating a nuisance.   There are two separate causes of action, one for nuisance and one for trespass.   As discussed supra, however, the court must read a complaint broadly and realistically;  Beaudoin v. Town Oil Co., supra 2077 Conn. 587–88;  and cannot strike a claim simply because the title of that claim is technically incorrect.  Law Offices of Ira Charmoy v. Lockery, supra.   The plaintiffs have alleged that they own the land on Huntington Road, their land has been flooded and “road scum, sand, dirt, pollutants” have entered their property due to an inadequate filtration and drainage system which was designed and created by the defendants.   The plaintiffs further allege that “the known and obvious result of the acts and omissions of each [d]efendant regarding their duties and activities ․ is to create a nuisance and resulting trespass ․” Finally the plaintiffs allege that the flooding and pollution causes and will cause in the future erosion of their land and an accumulation of pollutants on their land.   Each of the elements of trespass have been alleged, including that the defendants intentionally created a trespass.   In reading the complaint in favor of the plaintiffs they have also alleged an unreasonable interference with the use of their property and therefore allege legally sufficient facts to support a claim of nuisance as well.   For the above reasons, the motions to strike count seven are denied.

III

Count Eight:  Civil Rights Violations

The Guerrera defendants move to strike count eight on grounds that the plaintiffs have failed to allege legally sufficient facts;  particularly they have failed to allege that the defendants are state actors.   The Maguire defendants have adopted the same reasoning.   The Trumbull defendants move to strike count eight on grounds that it fails to state a legally cognizable claim.   Finally, the Stratford defendants move to strike count eight on grounds that the plaintiffs have failed to allege discrimination or violation of a constitutional right which is necessary, and therefore have failed to allege legally sufficient facts.   The plaintiffs do not assert arguments in opposition to these grounds.

The due process clause invoked by the plaintiffs, Conn. Const., art.   I, § 8 states in relevant part:  “No person shall be ․ deprived of life, liberty or property without due process of law.”  “Our Supreme Court has declared “state action, an essential requirement for invocation of the due process clauses of both our federal and state constitutions.”  Savage v. Aronson, 214 Conn. 256, 284, 571 A.2d 696 (1990).  Conn. Const., art., I § 20 states:  “No person shall be denied the equal protection of the law or be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”  Art. I § 20 is also established as “a safeguard against acts of the state and does not limit the private conduct of individuals or persons” (internal quotation marks omitted).  Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 714, 802 A.2d 731 (2002).

The plaintiffs here, have not alleged that the Maguire defendants, or the Guerrera defendants are state actors.   For this reason alone, count eight as it is alleged against the Maguire and Guerrera defendants should be stricken.   As for the other defendants, the plaintiffs fail to make any allegations that the defendants have subjected the plaintiffs to discrimination based on their membership in any class of people at all, and therefore, their claim made under § 20 is legally insufficient.   Further, while the plaintiffs have alleged that their property was damaged by the defendants, they do not sufficiently allege that they have been deprived of their property as the due process clause in § 8 requires.   As explained in the discussion on inverse condemnation above the plaintiffs do not allege facts that show the use or value of their property has been destroyed.   For the above reasons, and because the plaintiffs have not responded to the defendants' arguments, the defendants' motions to strike count eight are granted.

IV

Count Nine:  Infliction of Emotional Distress

Each defendant moves to strike the plaintiffs' intentional infliction of emotional distress claim in count nine for the same grounds.   The defendants argue that the count is legally insufficient because the plaintiffs fail to allege that conduct of the defendants was extreme and outrageous and the plaintiffs fail to allege the conduct caused severe emotional distress.   The plaintiffs do not assert any arguments in opposition.

“In order for the plaintiff to prevail in a case for liability under ․ [intentional infliction of emotional distress], four elements must be established.   It must be shown:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe ․ Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Citations omitted;  Internal quotation marks omitted.)   Appleton v. Board of Education of Stonington, 254 Conn. 205, 210–11, 757 A.2d 1059 (2000).  “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.   In exercising this responsibility, the court is not fact-finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.”  (Citation omitted;  internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568–69, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

The plaintiffs allege that the defendants' actions caused damage to the plaintiffs' property which in turn has caused them to suffer mental strain and emotional distress.   The plaintiffs refer to the same conduct as all other claims, conduct of negligent supervision of the project, or negligent design of the project, in making their claim for intentional emotion distress.   Simply failing to properly design or execute a street renovation project cannot be read to be extreme or outrageous conduct, and the plaintiffs have not alleged any other conduct by the defendants.   For this reason, the allegations in count nine do not present legally sufficient facts to support an intentional infliction of emotional distress claim.   Therefore, all of the defendants' motions to strike count nine are granted.

V

Count Ten:  Connecticut Unfair Trade Practices Act Violations

All of the defendants move to strike the count ten claim of violation of the Connecticut Unfair Trade Practices Act (CUTPA) and the corresponding prayers for relief on the same grounds.   The defendants argue that the claims in count ten are legally insufficient because the plaintiffs do not allege that they are competitors, consumers or business persons affected by alleged unfair practices or deceptive acts, and plaintiffs do not allege any specific unfair or deceptive acts made by the defendants.   The plaintiffs do not offer any arguments in opposition to the defendant's motions on count ten.

“In determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1) Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA].”   Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002).   Our Supreme Court has held that a landowner that simply owns land, and is not involved in some sort of business with a trespassing defendant, cannot assert a CUTPA claim because the landowner is not a consumer, competitor or businessperson.   See Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 157, 881 A.2d 937 (2005) (holding that concluding landowners were consumers, competitors or business persons “would convert every trespass claim involving business property into a CUTPA claim.   The relationship between the land trust defendants and the airport defendants cannot be characterized as competitive in any ordinary business sense.   Rather, before the clear-cutting, the relationship was merely one of neighboring landowners.   After the clear-cutting, the relationship was one of landowner and trespasser”).

The plaintiffs have alleged the same conduct by defendants found in other counts—that the defendants improperly designed and implemented the road expansion project—and the same damage to their property.   The plaintiffs have not alleged any facts to suggest they have a business interest in competition with the defendants' project to improve upon a public road, nor do they allege facts to show that they are consumers of business associated with the project.   Like the landowners in Ventres v. Goodspeed Airport, LLC, they do not allege facts to suggest they are anything but landowners of land abutting the public road project.   For this reason the motions to strike count ten and prayer for relief paragraphs three, four, five, and seven are granted.

To recap, the motions to strike as to counts one, two, three, six, eight, nine and ten are granted.   The motions to strike count seven are denied.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

Levin, Bruce L., J.