John R. Robinson et al. v. Windward Development, Inc. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 106

In this action, the plaintiffs, John R. Robinson and Barbara Robinson, have brought suit against the defendants, Windward Development, Inc. (Windward) and Elliot J. Siderides.   The plaintiffs allege that individuals acting at the direction of Windward, including Siderides, have improperly entered their Greenwich property and caused damage, including such activities as destroying trees, shrubbery and vegetation and damaging stone walls.

On January 31, 2011, the defendants filed a motion to strike counts three and four of the operative pleading, the plaintiffs' revised complaint dated January 5, 2011.   Thereafter, on February 15, 2011, the plaintiffs filed a memorandum of law in opposition to the defendants' motion.   The plaintiffs raised both substantive and procedural arguments in opposition to the defendants' motion.   With respect to the procedural arguments, the plaintiffs contend that the motion to strike must be summarily denied because the defendants did not comply with the mandates of Practice Book § 10–41.   The court took this matter on the papers at the April 16, 2012 short calendar.

Practice Book § 10–41 provides:  “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”  “Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is 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 (2007).   The Appellate Court has determined that “[s]imply stating that all of the counts ‘are legally insufficient’ and that they ‘fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10–41.”  Id., 862.

In the present case, the face of the defendants' motion to strike simply states that “the defendants ․ move that this [c]ourt strike the [t]hird and [f]ourth [c]ounts of the [p]laintiffs' [r]evised [c]omplaint dated January 5, 2011 on the grounds that the facts alleged are legally insufficient to state a claim upon which relief can be granted.”   This ground is virtually indistinguishable, or perhaps even less specific, than the ground deemed to be insufficient by the Appellate Court in Stuart v. Freiberg.   Moreover, the plaintiffs have not waived the defendants' non-compliance with Practice Book § 10–41 because the plaintiffs have raised an objection to the form of the defendants' motion to strike in their memorandum of law in opposition.   Therefore, pursuant to the Appellate Court's holding in Stuart v. Freiberg, the court is constrained to deny the defendants' motion to strike.   Having made this determination, it is unnecessary to examine the plaintiffs' substantive argument as to why counts three and four are legally sufficient.

GENUARIO, J.

Genuario, Robert L., J.