Nahoku Usui et al. v. Nicholas Heymann et al. (2013)

MEMORANDUM OF DECISION

The plaintiffs in this matter are Nahoku Usui and Karl H. Rantz, who purchased residential property located at 1582 Long Ridge Road in Stamford from the defendants, Nicholas P. Heymann and Bibiana E. Heymann.   The plaintiffs claim that after closing on the purchase, they discovered that the septic field serving the premises was located on an adjacent lot owned by a third party.   In their second revised claim, the plaintiffs assert the following causes of action:  Count One—Fraudulent and intentional misrepresentation based on a portion of the Residential Property Disclosure Report covering “sewage system.”   Count Two—Fraudulent and intentional misrepresentation in an “Owner's Affidavit” executed by the defendants.   Count Three—Breach of Contract and Warranty Covenants based on the property description which did not include title to the septic fields serving the property and breach of representations in the purchase and sale agreement for the subject property.   Count Four—Fraudulent and intentional misrepresentation regarding the location of the septic system serving the property.   Count Five—Negligent misrepresentation as to the location of the septic system.

On September 19, 2013, the defendants filed a motion to strike:  1) the plaintiffs' entire second revised complaint for failure to contain a proper prayer for relief:  2) Count Three on the ground that plaintiffs' claims under the contract are barred by the plaintiffs' acceptance of a deed;  and 3) the plaintiffs' claim for attorneys fees under paragraph 28 of the contract. (# 112.00.) On November 6, 2013, the plaintiffs filed a memorandum in opposition to the motion to strike (# 119.00).   The matter was heard on short calendar on November 12, 2013.

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 (2003).  “A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.”   Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13 (2001).   In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency.  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ It is fundamental that in determining the sufficiency of a complaint challenged by [an opposing party'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.)  Violano v. Fernandez, 280 Conn. 310, 318 (2006).

PRAYER FOR RELIEF

Following Count Five in the plaintiffs' second revised complaint, the following language appears “Wherefore, the plaintiffs claim damages.”   The complaint also includes a “Statement Re:  Amount in Demand” which states:

The amount in demand, exclusive of interest and costs, is greater than Two Thousand Five Hundred ($2,500.00) Dollars and the plaintiffs further claim:

1.  Attorneys fees and costs pursuant to paragraph 28 of the Agreement.

2. Such other and further relief as in law or equity may appertain.

Practice Book § 10–20 provides:  “The first pleading on the part of the plaintiff shall be known as the complaint.   It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought.   When money damages are sought in the demand for relief, the demand for relief shall include the information required by General Statutes § 52–91.”

In relevant part, General Statutes § 52–91 requires “[the complaint] shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought.   When money damages are sought in the demand for relief, the demand for relief shall set forth:  (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more exclusive of interest;  and costs;  or 2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs;  or 3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars exclusive of interest and costs.”

The defendants correctly point out that the plaintiffs' second revised complaint does not comply with the requirements of the Practice Book and the General Statutes.   The court, accordingly grants the motion to strike that complaint in its entirety.¹

COUNT THREE

In their motion to strike count three, the defendants claim that the doctrine of merger prevents the plaintiffs from relying on the provisions of the contract following their acceptance of the deed to the subject premises.   After reviewing the allegations of the count three, it is apparent to the court that the count actually alleges two distinct causes of action—one based on the provisions of the contract and the other based on the warranties set forth in the deed delivered to the plaintiffs.

When a plaintiff improperly combines more than one cause of action in a single count the proper motion to file is a request to revise, not a motion to strike.   Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judical district of New Haven, Docket No. CV 11 6016353 (May 30, 2013, Wilson, J.);   DeGregorio v. Glenrock Condominium Ass'n, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 07 5002796 (October 13, 2009, Bellis, J.);   Shelton Yacht and Cabana Club, Inc. v. Voccola, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 01 0075380 (February 2, 2007, Stevens, J.) (“The legal sufficiency of a cause of action is not defeated merely because it is joined with another claim in a single count.   The appropriate way to address this procedural problem is through a request to revise, not a dispositive motion such as a motion for summary judgment.”) relying on Rowe v. Godou, 209 Conn. 273, 279 (1988).²

The court finds that count three of the plaintiff's second revised complaint states a cognizable cause of action and accordingly denies the defendant's motion to strike that count.

ATTORNEYS FEES

Finally, the defendants seek to strike the plaintiffs' claim for attorneys fees pursuant to paragraph 28 of the purchase and sale agreement.   In their complaint, the plaintiffs allege that paragraph 28 provides:

Except as otherwise expressly provided herein, in the event of any litigation brought to enforce any material provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys fees and court costs from the other party.

In their motion to strike, the defendants claim that “plaintiff's claim for attorneys fees pursuant to paragraph twenty-eight of the contract ․ is entirely dependent upon Count Three which must be stricken.”   In the memorandum filed in support of their motion to strike, the defendants make it clear that their motion to strike the claim for attorneys fees is based entirely on the claim that if a prayer for relief is founded on a count or cause of action which has been stricken, that prayer for relief must also be stricken.   Since the court has denied the motion to strike Count Three, the court must also deny the motion to strike the corresponding prayer for relief.

David R. Tobin, J.T.R.

FOOTNOTES

FN1. The defect in the plaintiffs' complaint is largely a matter of form which can be remedied within the fifteen-day period provided for under Practice Book § 10–44..  FN1. The defect in the plaintiffs' complaint is largely a matter of form which can be remedied within the fifteen-day period provided for under Practice Book § 10–44.

FN2. As a general rule a motion to strike can not be addressed to only a portion of a count.  “[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Citation omitted;  internal quotation marks omitted.)   Vanstean–Holland v. Lavigne, Superior Court, judicial district of New London, Docket No. CV 08 5007959 (September 2, 2009, Martin, J.)..  FN2. As a general rule a motion to strike can not be addressed to only a portion of a count.  “[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Citation omitted;  internal quotation marks omitted.)   Vanstean–Holland v. Lavigne, Superior Court, judicial district of New London, Docket No. CV 08 5007959 (September 2, 2009, Martin, J.).

Tobin, David R., J.T.R.