Opinion
No. CV07-5005420S
October 21, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE
I. FACTS
On August 3, 2007, the plaintiff, Phillip Giordano, commenced the present action against the city of Waterbury, the Board of Alderman, Sam Caligiuri and Theresa Caldarone. This action arises out of the execution of an "Agreement and Release" entered into between the plaintiff and the defendants on August 28, 2001. In his revised three-count complaint, filed on October 31, 2007, the plaintiff alleges causes of action against the defendants for breach of contract (count one), detrimental reliance (count two) and unlawful wage withholding (count three).
The plaintiff subsequently withdrew his action agaionst Theresa Caldarone on October 11, 2007.
On November 8, 2007, the defendants filed an answer containing fourteen special defenses, four claims for setoff and a three-count counterclaim on behalf of the city of Waterbury. On July 10, 2008, the plaintiff filed a motion to strike the sixth, seventh, ninth, tenth, eleventh, twelfth and fourteenth special defense, the first, second and fourth claim for setoff and the first and third counts of the counterclaim as well as the corresponding prayer for relief. The plaintiff's motion to strike was accompanied by a supporting memorandum of law. On July 24, 2008, the defendants filed a memorandum of law in opposition to the plaintiff's motion to strike. The plaintiff filed a reply memorandum on August 12, 2008. Oral argument was held on September 29, 2008.
In his reply brief, in addition to offering further support for his motion to strike, the plaintiff has asked that the court strike the defendants' "Memorandum in Objection to the Plaintiff's Motion to Strike." This is not the proper use of a motion to strike as prescribed by Practice Book § 10-39 et seq. As such the court will not consider this aspect of the plaintiff's reply brief.
II. STANDARD OF REVIEW
Any party wishing to contest the legal sufficiency of a pleading may do so by filing a motion to strike. Practice Book § 10-39. Practice Book § 10-39(a) provides in relevant part: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any . . . counterclaim . . . to state a claim upon which relief can be granted, or . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof."
"It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied form the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "In ruling on a motion to strike, the trial court has an obligation to "take the facts to be those alleged in the [pleadings] and to construe [them] in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.3d 684 (1992). "[I]f facts provable . . . would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). By contrast, "[a] motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn 480, 498, 815 A.2d 1188 (2003).
III. DISCUSSION A. MOTION TO STRIKE SPECIAL DEFENSES
The court first addresses the plaintiff's motion to strike the sixth, seventh, ninth, tenth, eleventh, twelfth and fourteenth special defense. "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 718, 807 A.2d 968, cert. denied, 262 Conn. 915, 911 A.2d 1291 (2002)
Practice Book § 10-42(a) provides: "Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Here, the plaintiff's memorandum of law fails to cite any legal authority in support of their arguments regarding the defendants' special defenses. "When a memorandum of law fails to cite any legal authority, the memorandum is functionally equivalent to no memorandum at all." Bruce v. Progressive Halcyon Ins., Superior Court, judicial district of New London, Docket No. CV 06 5001057 (January 26, 2007, Gordon, J.); see also Young v. Hartford Ins., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0279264 (December 10, 2003, Wiese, J.). Therefore, the court finds that the plaintiff's memorandum is functionally equivalent to no memorandum at all.
Based on the foregoing, the court hereby denies the plaintiff's motion to strike the sixth, seventh, ninth, tenth, eleventh, twelfth and fourteenth special defense.
B. MOTION TO STRIKE CLAIMS FOR SETOFF
The plaintiff next moves to strike the first, second and fourth claims for setoff. In his memorandum of law, the plaintiff argues that the first and second setoff should be stricken as they do not constitute a mutual debt of the same quality. He further argues that the first and fourth claim for setoff are barred by the statute of limitations contained in General Statutes § 52-577. The defendants counter that the setoffs allege financial claims that clearly constitute recoupment to which they are entitled. They argue that recoupment is purely defensive in nature and as such, the statue of limitations is no bar to their claims for setoff. The defendants further argue that the plaintiff's claim of non-mutuality relating to the first and second setoff must fail as both clearly allege that the plaintiff's actions were as a result of his misuse of office.
"In Connecticut, a setoff may be legal or equitable in nature." OCI Mortgage Corp v. Marchese, 255 Conn. 448, 463, 774 A.2d 940 (2001). "General Statutes § 52-139 and Practice Book § 10-54 furnish our rules for pleading the right of setoff. Setoff is the right to cancel or offset mutual debts or cross demands . . . The concept of setoff allows [parties] that owe each other money to apply their mutual debts against each other, thus avoiding the absurdity of making A pay B when B in fact owes A . . . A set-off is made where the defendant has a debt against the plaintiff arising out of a transaction independent of the contract on which the plaintiff sues, and desires to avail himself of that debt, in the existing suit, either to reduce the plaintiff's recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance." (Citation omitted; internal quotation marks omitted.) Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, 84 Conn.App. 688, 702, 854 A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004). In order "[t]o constitute mutuality, the debts must be due to and from the same persons in the same capacity . . . Mutual debts . . . are cross debts in the same capacity and right and of the same kind and quality . . . Setoff may be employed only when a defendant requests that the court set off a judgment against a debt owed to the defendant by the plaintiff . . . It is the defendant's burden to demonstrate its right of setoff by affirmatively and adequately alleging such a claim in the pleadings." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 704. "A condition precedent to the application of the set off statute . . . is that the defendant's claim arises from a debt due from the plaintiff." Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 22, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004).
The plaintiff moves to strike the first and second claim for setoff because they do not constitute a mutual debt. In their first claim for setoff, the defendants allege that "[t]he plaintiff has never reimbursed the City of Waterbury for the unauthorized and personal use of the cell phone, official police cruiser and office space." (Emphasis added.) This first setoff involves the plaintiff in his individual capacity. In the present action the plaintiff is seeking compensation resulting from his official capacity. The defendants have failed to allege cross debts in the same capacity and as such the motion to strike the first setoff is granted.
In their second claim for setoff, the defendants allege that "[t]he City of Waterbury has been liened by the Federal government and the State of Connecticut wherein both entities are seeking payment for monies expended for providing legal representation to the plaintiff in criminal proceedings and which sums are to be paid directly to the federal government and the State of Connecticut from any recovery herein." Here, the defendants have not alleged that the plaintiff owes them a debt. This lien, as alleged in the second claim for setoff, involves the city of Waterbury and the State of Connecticut and the Federal Government. This claim for setoff does not contain facts alleging a debt due to and from "the same person in the same capacity." Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, supra, 849 Conn.App. 704. This court finds that the defendants have not adequately alleged facts sufficient to meet their burden of establishing their right of setoff as to the second claim. Therefore, the plaintiff's motion to strike the defendants' second claim for setoff is hereby granted.
With respect to the plaintiff's motion to strike the fourth claim for setoff, the only ground asserted is that the defendants' claim is time barred under General Statutes § 52-577. "Ordinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., CT Page 16710 277 Conn. 377, 344 n. 12, 890 A.2d 1269 (2006). "[T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted." (Internal quotation marks omitted.) Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). "The first is when the parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations . . ." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993). The second exception "exists . . . when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 277 Conn. 344-45 n. 12.
General Statutes § 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
In the present action the plaintiff argues that the alleged acts of conversion occurred at some point between January 1, 1996 and July 26, 2001. (Plaintiff's Memorandum of Law in Support of Motion to Strike, p. 6.) There is no agreement as to all the facts pertinent to the question whether the action is barred by the statute of limitations. Because there is no agreement between the parties, the plaintiff's motion to strike must be denied on this ground as it does not fall within the first exception. Forbes v. Ballaro, supra, 31 Conn.App. 239-40.
For the second exception to apply in this instance the plaintiff must have shown that the defendants' claims do not stem from common law. Greco v. United Technologies Corp.,. supra., 277 Conn. 344-45 n. 12. "[Conversion] is recognized as stemming from common law." Ennis v. Nizan, Superior Court judicial district of New Haven, Docket No. CV 06 5007027 (February 6, 2008, Thompson, J.); see also Coleman v. Francis, 102 Conn. 612, 65, 129 A. 718 (1925) (discussing conversion as rooted in common law). Thus, for the plaintiff to adequately challenge this particular setoff as being barred by § 52-577 he should have made his assertion in the form of a special defense. The plaintiff's motion to strike the fourth claim for setoff is denied.
Based on the foregoing, the court hereby grants the plaintiff's motion to strike as directed toward the first and second claims for setoff and denies it as directed towards the fourth claim for setoff.
C. MOTION TO STRIKE COUNTERCLAIMS
Finally, the plaintiff moves to strike the first and third counts of the city of Waterbury's counterclaim as well as the corresponding prayer for relief. The plaintiff argues that the first and third counts fail to state a claim upon which relief can be granted because they are barred by the statute of limitations under General Statutes § 52-577. The plaintiff concludes that since the defendant failed to institute a cause of action against the plaintiff within the three-year statute of limitations, which he argues to have expired in July of 2004, the city of Waterbury has failed to state a claim upon which relief can be granted.
The defendant counters, contending that the plaintiff's claims are not sustainable. The defendant argues that it is entitled to the right of recoupment, and that the statute of limitation is no bar to such a defense. In response to this argument the plaintiff contends that the defendant misstates the law as it now wants to characterize their counterclaims as recoupments, when they are clearly counterclaims as plead in their answer.
As with the plaintiff's motion to strike the fourth claim for setoff, the only ground asserted by the plaintiff to strike the first and third counts of the counterclaim is that the three-year statute of limitations under General Statutes § 52-577 bars the defendants' claim for conversion. (Plaintiff's Memorandum of Law in Support of Motion to Strike, p. 7.)
The court need not restate the law as set forth in the previous section. For the plaintiff to have adequately challenged these particular counterclaims as being barred by § 52-577 he should have made his assertions in the form of a special defense. The plaintiff's motion to strike the first and third claims of the city of Waterbury's counterclaim is denied.
CONCLUSION
For all the foregoing reasons, the plaintiff's motion to strike is denied as to the sixth, seventh, ninth, tenth, eleventh, twelfth and fourteenth special defense, the fourth claim for setoff and the first and third counts of the counterclaim as well as the corresponding prayer for relief. The motion to strike is granted as to the defendants' first and second claims for setoff.