Colleen Yacono v. Paul A. Gordon et al. (2014)

Memorandum of Decision Re Motion to Strike, # 110

Here, Coldwell Banker has filed a motion to strike the fourth count of the defendant's third-party complaint alleging common-law indemnification.   For the reasons set forth below, the motion to strike is granted.

BACKGROUND

On December 21, 2012, the plaintiff, Colleen Yacono, filed with the court an application for prejudgment remedy and a proposed writ summons and complaint against the defendant, Paul Gordon, seeking rescission of the purchase and sale of a condominium unit located in Hamden.   The plaintiff alleges that prior to the purchase and sale, the defendant represented that there were no known issues with the condominium unit requiring disclosure.   The defendant represented this by way of an executed and delivered “Residential Property Conditional Disclosure Report” (Residential Disclosure) and “Mold and Mold Forming Condition Disclosure” (Mold Disclosure).   For purposes of this motion, the court will assume the following facts.   Under the Residential Disclosure, the defendant was obligated to disclose any known issues with the property including, but not limited to, issues involving the chimney, roof, driveway, basement, rot and water damage, water drainage, foundation, interior walls and ceilings, and plumbing system problems.   Similarly, the Mold Disclosure required the defendant to disclose the presence of any conditions which could lead to the growth of mold.

After closing, it became known to the plaintiff through reports made to the condominium association that a number of incidents of water penetration, flooding, excessive moisture, and water backup had occurred on the property.   Following the court's order granting the plaintiff's request for a prejudgment remedy (# 100.37, Robinson, J.), the plaintiff had served the writ, summons and direction for attachment upon the defendant with a return date of June 25, 2013.   The defendant thereafter had a third-party complaint served upon the third-party defendants, NRT New England LLC d/b/a Coldwell Banker Residential Brokerage (Coldwell Banker),¹ Heather Izzo, and David Lemel (collectively the Brokerage), on October 8, 2013.   The third-party complaint alleges that the Brokerage, as the seller's agents associated with the purchase and sale of the condominium unit, are liable for all or part of the plaintiff's claims in that they failed to properly advise the defendant as to the disclosures requiring reporting in the Residential and Mold Disclosures.

The third-party complaint specifically alleges claims for breach of contract, common-law indemnification, and negligence in counts three, four, and seven, respectively.   On November 12, 2013, the Brokerage filed a motion to strike and supporting memorandum against these counts.²  Coldwell Banker, the only party subject to count four, argues that the third-party complaint fails to state a cause of action for common-law indemnification on two grounds:  (1) the defendant failed to adequately allege that the Brokerage had exclusive control over the Residential and Mold Disclosures;  and (2) that a complainant may only seek full, and not partial, indemnification.³  On December 26, 2013, the defendant filed a memorandum in opposition.   The parties appeared at short calendar for argument January 27, 2014.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ 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).  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).  “A complaint includes all exhibits attached thereto.”  (Citation omitted;  internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).  “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 ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   A motion to strike, however, “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005).

Coldwell Banker argues that count four alleging common-law indemnification should be stricken on the ground that the defendant has failed to allege that the Brokerage had exclusive control over the Residential and Mold Disclosures since the listing agreement required the defendant to disclose material information and that the forms were signed by the defendant.   The defendant counters that the dangerous condition giving rise to the injury is not the signed forms, but rather the information contained therein, and that the third-party complaint sufficiently alleges that the Brokerage had exclusive control over that information.

“[T]ortious [or common law] indemnification is an action that arises between two tortfeasors, one, whose passive negligence resulted in a monetary recovery by the plaintiff, and a second, whose active negligence renders him liable to the first by way of reimbursement.”  (Internal quotation marks omitted.)   ATC Partnership v. Coats North America Consolidated, Inc., 284 Conn. 537, 551, 935 A.2d 115 (2007).  “Ordinarily there is no right of indemnity or contribution between joint tortfeasors ․ Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury ․ Under the circumstances described, we have distinguished between ‘active or primary negligence,’ and ‘passive or secondary negligence.’  ․ Indemnity shifts the impact of liability from passive joint tortfeasors to active ones.”  (Internal quotation marks omitted.)  Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997).

“Our decision in Kaplan [v. Merberg Wrecking Corp., 152 Conn. 405, 415–16, 207 A.2d 732 (1965) ] imposes an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiff's injuries, thus superseding the indemnitee's passive negligence.”  (Internal quotation marks omitted.)  ATC Partnership v. Coats North America Consolidated, Inc., supra, 284 Conn. 551.  “To assert a claim for [common law] indemnification under Kaplan, an out-of-pocket defendant must show that:  (1) the party against whom the indemnification is sought was negligent;  (2) that party's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the accident and the resulting injuries and death;  (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement;  and (4) the defendant did not know of the other party's negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent.”  Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).

At issue in the present case is whether the defendant has pled sufficient fact to establish the third Kaplan element requiring that the other party was in control of the situation to the exclusion of the defendant.   For the purposes of a claim for indemnification, our Supreme Court has defined “exclusive control over ‘the situation’ as exclusive control over the dangerous condition that gives rise to the accident.”  Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 706.  “[T]he question of exclusive control should not be resolved on a motion to strike because the absence or presence of exclusive control is a question of fact.   That is ordinarily the applicable rule ․ Nonetheless, special circumstances may give rise to the question of whether, in light of the facts alleged in the third party complaint, any reasonable juror could find that the third party defendants had exclusive control of the situation.   Under such circumstances, this issue becomes a question of law.”  (Citations omitted;  internal quotations marks omitted.)  Id., 704–05.

In the present case, the defendant does, in fact, allege that the Brokerage misled and misadvised the defendant as to the proper disclosures that needed to be made with regard to the Residential and Mold Disclosures, albeit while admitting that he provided his signature to both forms.   The third-party complaint specifically alleges that “with the exception of the seller's name, address, length of ownership and signature, the [Residential Disclosure] was completed by Lemel and/or Izzo” (First Count, ¶ 13) and that “Lemel and/or Izzo told [the defendant] which box to check off on the [Mold Disclosure]” (First Count, ¶ 14).   Additionally, the defendant provides a copy of the listing agreement as an exhibit attached to the complaint which provides in relevant part:  “Disclosures:  Seller agrees, pursuant to the Uniform Property Condition Disclosure Act (Public Act No. 95–311), to disclose all known material information about the Property on the [Residential Disclosure] provided by Coldwell Banker.”  (Exhibit A, ¶ 13.) ⁴

In light of the foregoing, the present issue can fairly be considered a special circumstance which gives rise to a question of law “because the disagreement between the parties on this issue does not, upon close examination, turn upon any meaningful dispute about the alleged facts.”   Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 705.   The question before the court then is whether a seller of real property can maintain an action for common-law indemnification on the theory that his real estate agents had exclusive control over disclosable information despite admissions by the seller that the listing agreement between the parties required the seller to disclose material information and that the relevant forms were signed by the seller.

Regarding the claim that the listing agreement requires the defendant to make certain disclosures with regard to the purchase and sale of the condominium unit, the provisions of the agreement do not necessarily preclude exclusive control over the information contained in the Residential and Mold Disclosures on the part of the Brokerage.   In this context, it might be provable that the Brokerage was solely responsible for the failures in disclosing material information despite the language in the listing agreement.   The admission by the defendant that he signed the Residential Disclosure, however, is dispositive of the issue.   To sign a document means to “identify (a record) by means of a signature, mark, or other symbol with the intent to authenticate it as an act or agreement of the person identifying it ․ To agree with or join.”   Black's Law Dictionary (9th Ed.2009).   It cannot be said that one who consciously and voluntarily agrees to sign a form indicating that there are no material issues with regard to real property lacks any and all control over the statements contained therein.   Even if the defendant was advised to omit certain information, the defendant could have chosen to include that information despite the poor counsel given to him by his hired agents.   This implicates at least some level of control on the part of the defendant.   Therefore, based on the foregoing, this court concludes that no reasonable juror could find that Coldwell Banker had exclusive control over the information disclosed in the Residential and Mold Disclosures.

Additionally, Coldwell Banker also seeks to strike count four on the ground that a complainant cannot seek partial indemnification.  “In considering an indemnification claim, our courts have made clear that such actions are ones that seek complete, rather than partial, indemnification.  ‘[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest ․’ (Emphasis added.)  Kaplan v. Merberg Wrecking Corp., [supra, 152 Conn. 412].  ‘In an action for indemnity, as distinguished from an action for contribution, one tortfeasor seeks to impose total liability upon another [tortfeasor].’  (Emphasis added;  internal quotation marks omitted.)  Crotta v. Home Depot, Inc., 249 Conn. 634, 641, 732 A.2d 767 (1999).”   State Farm Fire and Casualty Co. v. Chadwick, Superior Court, judicial district of Waterbury, Docket No. X02–CV–11–6014295–S (November 15, 2013, Shaban, J.).

Like the defendant in Chadwick, the defendant in the present action concedes that he may not seek partial indemnification and asks, in the alternative, that the court strike the phrase “part of” from the third-party complaint.⁵  “Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike ․ only when it attempts to set forth all the essential allegations of a cause of action ․ [O]nly an entire count ․ can be subject to a motion to strike unless the individual paragraph embodies an entire cause of action or defense.”  (Internal quotation marks omitted.)   O'Malley v. Devivo, Superior Court, judicial district of New Britain, Docket No. CV–09–4019885–S (May 7, 2010, Trombley, J.) (49 Conn. L. Rptr. 801, 802).   This court also denies the defendant's invitation to strike the phrase “part of” from the third-party complaint because count four seeks either total or partial indemnification thereby making it legally insufficient to state a claim for common-law indemnification.   State Farm Fire and Casualty Co. v. Chadwick, Superior Court, supra, Docket No. X02–CV–11–6014295–S (also denying defendant's request to strike the phrase “or part” from indemnification count and granting the motion to strike the count in its entirety).

CONCLUSION

For the foregoing reasons, the motion to strike is granted.

It is So Ordered,

Nazzaro, J.

FOOTNOTES

FN1. The defendant's third-party complaint originally names NRT, LLC d/b/a Coldwell Banker Residential Brokerage as a third-party defendant.   Subsequent to the filing of this motion, the court granted the defendant's motion to substitute NRT New England, LLC d/b/a Coldwell Banker Residential Brokerage as the real party in interest.   The court will treat the current motion as if the proper party was joined to this action from the outset..  FN1. The defendant's third-party complaint originally names NRT, LLC d/b/a Coldwell Banker Residential Brokerage as a third-party defendant.   Subsequent to the filing of this motion, the court granted the defendant's motion to substitute NRT New England, LLC d/b/a Coldwell Banker Residential Brokerage as the real party in interest.   The court will treat the current motion as if the proper party was joined to this action from the outset.

FN2. At oral argument on January 27, 2014, counsel for the Brokerage abandoned the motion to strike as to counts three and seven..  FN2. At oral argument on January 27, 2014, counsel for the Brokerage abandoned the motion to strike as to counts three and seven.

FN3. The Brokerage also argues that the motion should be granted in its entirety on the ground that the third-party complaint is an apportionment complaint and was not filed within 120 days of the original complaint as required by General Statutes § 52–102b.  Section 52–102b provides in relevant part:  “(a) A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section ․ Any such writ, summons and complaint ․ shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.”   The return date in the plaintiff's original complaint is June 25, 2013.   Process was served on the Brokerage on October 8, 2013.   Therefore, since the Brokerage was served with process within 120 days of the return date specified in the plaintiff's complaint, this court concludes that the defendant has complied with § 52–102b..  FN3. The Brokerage also argues that the motion should be granted in its entirety on the ground that the third-party complaint is an apportionment complaint and was not filed within 120 days of the original complaint as required by General Statutes § 52–102b.  Section 52–102b provides in relevant part:  “(a) A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section ․ Any such writ, summons and complaint ․ shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.”   The return date in the plaintiff's original complaint is June 25, 2013.   Process was served on the Brokerage on October 8, 2013.   Therefore, since the Brokerage was served with process within 120 days of the return date specified in the plaintiff's complaint, this court concludes that the defendant has complied with § 52–102b.

FN4. The third-party complaint also alleges that “[Coldwell Banker] was in exclusive control of the situation, to the exclusion of [the defendant].”  (Fourth Count, ¶ 20.)   In light of other facts alleged, and since a motion to strike “does not admit legal conclusions”;  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997) (internal quotation marks omitted);  whether exclusive control of the situation is adequately alleged depends on an assessment of all the facts alleged in the third-party complaint..  FN4. The third-party complaint also alleges that “[Coldwell Banker] was in exclusive control of the situation, to the exclusion of [the defendant].”  (Fourth Count, ¶ 20.)   In light of other facts alleged, and since a motion to strike “does not admit legal conclusions”;  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997) (internal quotation marks omitted);  whether exclusive control of the situation is adequately alleged depends on an assessment of all the facts alleged in the third-party complaint.

FN5. The defendant also argues that the motion to strike the common-law indemnification claim is procedurally improper.   The defendant cites Practice Book § 10–39(a) and Argueta v. Overhead Door Corp., Superior Court, judicial district of Fairfield, Docket No. CV–00–0370126–S (July 28, 2000, Skolnick, J.), for the proposition that a motion to strike may only be used to strike a contested pleading or part thereof and cannot be used to strike individual paragraphs or lines of a pleading.   This argument, however, confuses the issue.   Coldwell Banker is not seeking to strike only that part of count four requesting partial indemnification.   The motion, rather, seeks to strike the count in its entirety on the ground that partial indemnification invalidates the entire count.   Therefore, the argument that the motion is procedurally improper is invalid..  FN5. The defendant also argues that the motion to strike the common-law indemnification claim is procedurally improper.   The defendant cites Practice Book § 10–39(a) and Argueta v. Overhead Door Corp., Superior Court, judicial district of Fairfield, Docket No. CV–00–0370126–S (July 28, 2000, Skolnick, J.), for the proposition that a motion to strike may only be used to strike a contested pleading or part thereof and cannot be used to strike individual paragraphs or lines of a pleading.   This argument, however, confuses the issue.   Coldwell Banker is not seeking to strike only that part of count four requesting partial indemnification.   The motion, rather, seeks to strike the count in its entirety on the ground that partial indemnification invalidates the entire count.   Therefore, the argument that the motion is procedurally improper is invalid.

Nazzaro, John J., J.