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Anne Grey v. Greenwich Hills Association, Inc. et al.
MEMORANDUM OF DECISION RE MOTION TO STRIKE (113.00)
FACTS
The plaintiff, Anne Grey, commenced the present action by serving process on the defendant Greenwich Hills Association, Inc., on September 10, 2013.1 The plaintiff filed an amended complaint on November 14, 2013, which alleges the following facts. The plaintiff owns a condominium in a development community called Greenwich Hills, which is governed by the defendant. In 2011, the plaintiff decided to enlarge her patio and submitted her draft architectural plans to the defendant's board of directors (the board) for approval. The plans were only drafts and not “a complete depiction of the proposed project.” On June 22, 2011, the board approved the plans. Construction began in early 2013. Prior to the commencement of construction, the project's contractor revised the draft architectural plans to accommodate necessary changes, including raising the height of the planned wall for proper electrical connections. The defendant ordered that work on the patio stop on April 17, 2013, in order to address certain issues raised by the chairman of the board, which were discussed at the next board meeting on April 23, 2013. The issues raised included, inter alia, requiring the plaintiff to hire a representative of the defendant's property management company to supervise construction. The plaintiff satisfied each of the conditions imposed by the board, and the defendant lifted the stop order on April 25, 2013. The plaintiff submitted for the board's approval a revision to the plans on April 30, 2013, that incorporated a change to the steps, which the board denied on May 16, 2013, after a complete architectural review.
On or about May 21, 2013, the contractor had completed all masonry work for the plaintiff's patio construction. On May 22, 2013, the chairman of the board emailed the plaintiff about issues regarding complaints, with only one issue specified; a light fixture was too bright. The plaintiff promptly addressed this issue. The defendant did not raise any other specified issues at that time.
The plaintiff submitted more minor plan variations for the board's approval on July 25, 2013. The defendant's bylaws specify that the board is to respond to such requests within thirty days, “and failure to do so within the stipulated time shall constitute a consent by [the board] to the proposed addition, alteration or improvement.” The next communication from the board was on September 3, 2013, when the plaintiff received a notice of hearing to take place at the next board meeting on September 10, 2013, to discuss unspecified violations involving the patio construction. The plaintiff did not receive any notice of actual alleged violations prior to the hearing, and the board considered the matter without any input from the plaintiff, including ignoring multiple objections from the plaintiff regarding the hearing's process. The board sent a letter to the plaintiff on September 20, 2013, informing her that it found violations based on the hearing and that the defendant was imposing a fine of $25 per day if the plaintiff failed to remediate within sixty days. In response, the plaintiff filed the present action, which includes six counts against the defendant: (1) a declaratory judgment, (2) injunctive relief, (3) equitable estoppel, (4) violation of General Statutes § 47–211 requiring good faith and fair dealing from condominium associations, (5) breach of contract, and (6) breach of the implied covenant of good faith and fair dealing at common law.
On December 16, 2013, the defendant filed a motion to strike counts one, three, four, and six on the grounds that count one is legally insufficient because the plaintiff failed to notify all interested parties in accordance with Practice Book § 17–56; count three fails to state a valid cause of action; count four alleges a cause of action under General Statutes § 47–211,2 which is inapplicable to the defendant because the defendant was organized before January 1, 1984; and count six contains insufficient facts to support a cause of action for breach of the implied covenant of good faith and fair dealing at common law. The motion was accompanied by a memorandum of law in support. On January 21, 2014, the plaintiff filed a memorandum of law in opposition. In her memorandum, the plaintiff concedes that § 47–211 is inapplicable to the defendant, and, therefore, the court deems count four stricken based on this concession.3 On January 23, 2014, the defendant filed a reply brief. The court heard arguments on the motion at short calendar on January 27, 2014.
DISCUSSION
Practice Book § 10–39 states in relevant part, “A motion to strike shall be used whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, to state a claim upon which relief can be granted; or ․ the legal sufficiency of any such complaint ․ because of ․ pursuant to Section 17–56(b), the failure to join or give notice to any interested person ․” “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). “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint”; (internal quotation marks omitted) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); as well as “limited to considering the grounds specified in the motion.” Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.” Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991); see also Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013) (motion must be denied where provable facts support a cause of action).
I
COUNT ONE: NOTIFICATION
The defendant first argues that the court should strike count one of the amended complaint seeking a declaratory judgment because the plaintiff failed to meet the requirements of Practice Book § 17–56 by notifying all interested parties.4 The defendant argues that all the unit owners of Greenwich Hills are interested parties because the potential outcome of the declaratory judgment will affect the common elements of the community, which are owned collectively by all the unit owners in Greenwich Hills. Because the plaintiff failed to notify all of the unit owners of Greenwich Hills or attach a certificate to the amended complaint that all interested parties were notified, the defendant argues that the plaintiff, therefore, failed to meet the requirements of a declaratory judgment action.
In contrast, the plaintiff argues that she is not required to notify the other unit owners because their interests in the outcome of this case are not direct, immediate, and adverse. In the alternative, the plaintiff argues that if notice is required, count one should not be stricken; instead, the plaintiff should be given an opportunity to provide notice. Further, because the unit owners received actual notice from the defendant regarding this litigation, the plaintiff argues that this actual notice constructively fulfills the notice requirement.
Regardless of the arguments, the defendant has failed to properly raise the issue of notification in accordance with the procedure for a motion to strike. Under § 17–56(b), a plaintiff is in fact required to provide notice in a declaratory judgment action to all interested parties whose interest is “direct, immediate, and adverse.” “As the official commentary to that section provides: Under Section 17–56 as amended, the exclusive remedy for ․ failure to give notice to interested persons in declaratory judgment actions is by a motion to strike.” (Internal quotation marks omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn.App. 199, 214 n.10, 821 A.2d 269 (2003). Under the relevant standard for a motion to strike, however, Practice Book § 10–39(d) requires that “[a] motion to strike on the ground of ․ noncompliance with Section 17–56(b) must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action.” Superior Courts repeatedly hold that “[f]ailure to sufficiently provide the requisite name and address of any potentially necessary [or interested] party requires that the court deny the [moving party's] motion to strike. See Big East Equipment Co., Inc. v. Ohio Cas. Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV–05–4015860–S (July 3, 2006, Zoarski, J.T.R.) (41 Conn. L. Rptr. 576, 577); Herbasway Laboratories v. Zhou, Superior Court, judicial district of New Britain, Docket No. CV–01–0512689–S (April 27, 2004, Peck, J.); Broadnax v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV–98–0412193–S (May 16, 2000, Levin, J.) (failure to comply with Practice Book 10–39(b) prohibits granting of a motion to strike).” Ross v. Environmental Protection Commission, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–084045017–S (May 8, 2009, Pavia, J.).
In the present case, count one of the amended complaint contains an action for a declaratory judgment. The amended complaint does not have an accompanying certificate detailing whether all interested parties received notification and who they are as required by § 17–56(b). The defendant filed the proper pretrial motion, namely a motion to strike, but it failed to include the names and residences of the interested parties who it alleges did not receive notification. The defendant has thus failed to comply with the Practice Book's requirements for a motion to strike on the grounds of failure to notify interested parties under § 17–56, and that portion of the motion is denied.
II
COUNT THREE: EQUITABLE ESTOPPEL
Next, the defendant argues that count three of the amended complaint, which alleges a cause of action for equitable estoppel, is legally insufficient in that it fails to state a valid claim upon which relief can be granted. In particular, the defendant argues that equitable estoppel is properly claimed as a special defense, not as an affirmative cause of action. Alternatively, if the court finds that equitable estoppel is a proper cause of action, the defendant argues that the amended complaint does not plead sufficient facts to support such a cause of action. The defendant further argues that the facts alleged in count three of the amended complaint also fail to support a cause of action for promissory estoppel because the plaintiff failed to plead a clear promise on which she could have relied.
The plaintiff counters by arguing that the court should construe count three as alleging a cause of action for promissory estoppel. In addition, the plaintiff argues that count three alleges sufficient facts to support such a cause of action as it alleges multiple promises on which the plaintiff relied to her detriment.
“[I]n determining the nature of a pleading filed by a party, [courts] are not bound by the label affixed to that pleading by the party.” BNY West Trust v. Roman, 295 Conn. 194, 210, 990 A.2d 853 (2010). In fact, “[i]t is not the label that the plaintiff placed on each count of her complaint that is pivotal but the nature of the legal inquiry.” Votre v. County Obstetrics and Gynecology Group, P.C., 113 Conn.App. 569, 580, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
“[O]ur Supreme Court has underscored the fundamental difference between equitable estoppel and promissory estoppel ․ [P]romissory estoppel involves a clear and definite promise while equitable estoppel involves only representations and inducements. Promissory estoppel is applicable to promises while equitable estoppel is applicable to misstatements of fact. The representations at issue in promissory estoppel go to future intent while equitable estoppel involves statements of past or present fact ․ Whereas promissory estoppel is used offensively, to create a cause of action, equitable estoppel functions defensively to bar a party from ․ instituting an action that it is entitled to institute.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 339, 71 A.3d 541 (2013). “A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance.” D'Ulisse–Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). Promissory estoppel also requires that “the other party must change its position in reliance on [the promise], thereby incurring some injury.” Abbott Terrace Health Center, Inc. v. Parawich, 120 Conn.App. 78, 87, 990 A.2d 1267 (2010).
For example, in Favolise v. Highville Charter School, Inc., Superior Court, Judicial District of New Haven, Docket No. CV–08–5023688–S (August 31, 2009, Corradino, J.), the complaint alleged that a private school's corporate board asked the school's director to draft a budget for the upcoming year that included his salary, and thereafter, the board approved the director's budget. The court found that the combination of asking the director to draft the budget and thereafter approving that budget constituted an implied promise by the board to rehire the director. Id. Because the complaint also alleged that the director relied on this implied promise to his detriment, the court denied the defendant's motion to strike the complaint's count alleging promissory estoppel. Id.
Here, the plaintiff labels count three of the amended complaint as a cause of action for equitable estoppel, though when construed in favor of the plaintiff, it would more appropriately be labeled as promissory estoppel. In count three, the plaintiff alleges that the defendant made express and implied promises to the plaintiff. Specifically, the complaint alleges that the defendant initially approved the plaintiff's construction plan in 2011, and then, after construction began in 2013, the defendant asked the plaintiff to revise the plans to include, inter alia, the hiring of a representative of the defendant to monitor construction. Similar to Favolise v. Highville Charter School, Inc., supra, Superior Court, Docket No. CV–08–5023688–S, the plaintiff revised the plans according to the defendant's wishes, and the defendant approved the plans. The plaintiff made further revisions to the plans, which the defendant approved by operation of the defendant's bylaws as alleged in the amended complaint. Implied in the defendant's approval of the plaintiff's plans is its promise that if the plaintiff performed the construction according to the plans as approved, the defendant would not fine the plaintiff. The complaint alleges that the plaintiff performed the construction of the patio on reliance of this promise, which is a clear detriment to the plaintiff in the form of expenses of time and money. Accordingly, construing the amended complaint in favor of the plaintiff, count three alleges facts that, if proven, would support a cause of action for promissory estoppel. That part of the motion seeking to strike count three is denied.
III
COUNT SIX: COMMON–LAW DUTY OF GOOD FAITH AND FAIR DEALING
Finally, the defendant argues that the court should strike count six of the amended complaint on the ground that it fails to allege sufficient facts to support a cause of action for breach of the implied covenant of good faith and fair dealing at common law. In particular, the defendant argues that count six does not allege facts that the defendant acted in bad faith, which is a necessary element of cause of action under a covenant of good faith and fair dealing. In its memorandum of law in support of its motion, the defendant argues, “The denial of a request to modify the exterior of a condominium unit is not a basis for a bad faith claim.” In contrast, the plaintiff argues that the facts alleged are sufficient to establish bad faith in support of a cause of action for breach of the covenant of good faith and fair dealing.
“[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith ․ Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence; it involves a dishonest purpose.” (Internal quotation marks omitted.) Capstone Bldg. Corp. v. American Motorists Ins. Co., 308 Conn. 760, 794–95, 67 A.3d 961 (2013). “[B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain ․” (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn.App. 34, 43, 925 A.2d 334 (2007). “Whether a party has acted in bad faith is a question of fact ․” Harley v. Indian Spring Land Co., 123 Conn.App. 800, 837, 3 A.3d 992 (2010).
Here, contrary to how the defendant characterizes the events, count six of the amended complaint alleges facts that go beyond simple denial of a request to modify the exterior of a condominium. In the amended complaint, the plaintiff alleges that the defendant granted approval of the plaintiff's patio construction plans and modifications to those plans multiple times—although not every time—but then rescinded its approval after the construction was completed. The amended complaint further alleges that the defendant denied the plaintiff basic due process at the final hearing concerning the patio construction by not informing the plaintiff of the specific complaints against the plans and by ignoring the plaintiff's objections to the process of the hearing. Whether these facts, if proven, support a finding of bad faith is for the finder of fact to determine, but when construed in favor of the plaintiff, they could demonstrate—among other things—refusal to fulfill some duty or some contractual obligation in an evasion of the spirit of the contract. Count six, therefore, contains sufficient facts to support a cause of action for breach of the implied covenant of good faith and fair dealing at common law.
CONCLUSION
For the reasons set forth herein, the court grants the defendant's motion to strike as to count four, and denies the motion as to all other counts.
BY THE COURT
TAGGART D. ADAMS
JUDGE TRIAL REFEREE
FOOTNOTES
FN1. The Property Group of Connecticut is also a defendant in this action, but it is not a party to the motion at issue.. FN1. The Property Group of Connecticut is also a defendant in this action, but it is not a party to the motion at issue.
FN2. Section 47–211 states, “Every contract or duty governed by this chapter imposes an obligation of good faith in its performance or enforcement.”. FN2. Section 47–211 states, “Every contract or duty governed by this chapter imposes an obligation of good faith in its performance or enforcement.”
FN3. Striking count four does not prejudice the plaintiff in any way because count six alleges the same cause of action at common law that was afforded under § 47–211.. FN3. Striking count four does not prejudice the plaintiff in any way because count six alleges the same cause of action at common law that was afforded under § 47–211.
FN4. Section 17–56(b) states in relevant part, “All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof ․ The party seeking the declaratory judgment shall append to its complaint or counterclaim a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof. If notice was given, the certificate shall list the names, if known, of all such persons, the nature of their interest and the manner of notice.”. FN4. Section 17–56(b) states in relevant part, “All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof ․ The party seeking the declaratory judgment shall append to its complaint or counterclaim a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof. If notice was given, the certificate shall list the names, if known, of all such persons, the nature of their interest and the manner of notice.”
Adams, Taggart D., J.T.R.
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Docket No: FSTCV136019725S
Decided: March 20, 2014
Court: Superior Court of Connecticut.
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