Oxford Real Estate Services Group, Inc. v. Tartaglia/Salce, LLC, No. CV04 0287794-S (CT 10/3/2005)
| Decision Date | 03 October 2005 |
| Docket Number | No. CV04 0287794-S,CV04 0287794-S |
| Parties | Oxford Real Estate Services Group, Inc. v. Tartaglia/Salce, LLC. Opinion No.: 90454 |
| Court | Connecticut Supreme Court |
The plaintiff, Oxford Real Estate Services Group, Inc., a licensed real estate broker in the state of Connecticut, filed a two-count complaint on June 2, 2004, against the defendant, Tartaglia/Salce, LLC, an owner of commercial property known as "Clock Tower Plaza" located in Monroe, Connecticut. In count one of the complaint, the plaintiff has alleged the following facts. On May 24, 2004, the plaintiff executed an agreement with the defendant entitled "Listing Agreement Lease of Commercial Property" (agreement), which appointed therein the plaintiff as the exclusive listing broker. The agreement was to lease the defendant's Clock Tower Plaza property. The parties extended the terms of the agreement until December 26, 1995. During the time the agreement was in place, the plaintiff procured a tenant known as "Simply Baby, Inc.," to lease a portion of the defendant's property. The lease was entered into in November 1994, for a period of five years with one successive option term of five additional years. The defendant paid the plaintiff the appropriate commissions due under the initial lease agreement.
Simply Baby renewed the lease and continues to occupy the premises at the Clock Tower Plaza. Based on the agreement, the defendant is entitled to 2.5 percent of the rents paid by Simply Baby upon renewal of its lease. The plaintiff made a demand on the defendant for this amount. The defendant has not paid the plaintiff. As to paragraph 14 of the agreement, the defendant is responsible for payment of the costs of collection, including reasonable attorneys fees and 12 percent interest per annum. In count two of the complaint, the plaintiff alleges the same cause of action against the defendant based on the plaintiff's procurement of a tenant known as "Kwan Ho Maeng doing business as Tower Cleaners" for the Clock Tower Plaza.
On June 20, 2004, the defendant filed its Answer, Special Defenses, Recoupment and Setoff and Counterclaim. On October 20, 2004, the defendant filed another Answer, Special Defenses, Recoupment and Setoff and Counterclaim.
On October 28, 2004, the plaintiff filed a motion to strike the defendant's second, third and fourth special defenses; counts two, three and four of the defendant's counterclaims; and counts two, three and four of the defendant's recoupments. The plaintiff has filed a memorandum of law in support of its motion. On November 12, 2004, the defendant filed a memorandum of law in opposition to the motion to strike. The motion was heard on the short calendar on February 28, 2005.1
Practice Book §10-39(a)(5) provides that a motion to strike may be used to contest "the legal sufficiency of any answer to any complaint, counterclaim . . . or any part of that answer including any special defenses . . ." In ruling on a motion to strike, "the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in a manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). See also Ocwen Federal Bank v. Rivas, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0368135 (February 21, 2002, Stevens, J.). The motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). "In deciding upon a motion to strike . . . a trial court must take the facts to be those alleged in the [pleadings] . . . and cannot be aided by the assumption of any facts not therein alleged." (Citations omitted; internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). The court must construe the special defense or counterclaim, however, "in [a] manner most favorable to sustaining its legal sufficiency . . ." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Where the facts provable under the allegations would not support a special defense or counterclaim, then the motion to strike must be granted. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980); see also Heim v. California Federal Bank, 78 Conn.App. 351, 359, 828 A.2d 129 (2003); The Frederick Corp. v. Scheckter, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084350 (April 26, 2001, Cremins, J.).
The plaintiff argues in support of its motion to strike that the second, third and fourth special defenses allege causes of action for damages which do not qualify as valid special defenses under Practice Book §10-50,2 and, therefore, are legally insufficient. Specifically, the plaintiff states that its complaint alleges that the plaintiff is a real estate broker and the defendant is an owner of commercial property in Monroe. The plaintiff contends that the parties entered into an agreement for the leasing of space at the Monroe property and that it procured two tenants, Simply Baby and Tower Cleaners, each of whom entered into a lease with the defendant, and thus the plaintiff is owed additional real estate commissions under the agreement based on each of these tenants having renewed its original tenancy. The plaintiff further asserts that the second, third and fourth special defenses raise a separate claim for damages unrelated to the subject of the complaint and that they do not qualify as "mutual debts" for purposes of a setoff.
In response, the defendant argues that the plaintiff violated its responsibilities under the agreement and, in order, to receive the type of relief to which the defendant is entitled, it must allege these special defenses. The defendant, without citation or analysis, states that if it is successful, then the trier of fact can conclude that the plaintiff is not entitled to recovery. In its conclusion, the defendant reiterates that the special defenses "rest on the same contract upon which the [p]laintiff sues . . . [and] [t]o separate them into distinct actions would be wasteful and . . . deprive the trier of this case from seeing the full picture of the contract."
(Citation omitted.) Bennett v. Automobile Insurance Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 41 Conn.Sup. 575, 576, 595 A.2d 951 (1991) (3 Conn. L. Rptr. 711); see also Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 288-89, 857 A.2d 366 (2004).
In the second and third special defenses,3 the defendant is seeking damages for the allegedly negligent conduct of the plaintiff in permitting the defendant to lease space to a prospective tenant known as Tutor Time without notifying the defendant that Tutor Time was insolvent and that the plaintiff as real estate broker for the defendant breached its duty of good faith and fair dealing and the responsibility of a fiduciary. At issue in the complaint is an alleged breach of the exclusive listing agreement between the plaintiff and the defendant with respect to Clock Tower Plaza and the commission owed to the plaintiff for the renewal of the subsequent lease agreement between the plaintiff and Simply Baby (count one) and Tower Cleaners (count two) from which the plaintiff maintains it did not receive its commission.
The basis of the plaintiff's allegations in its complaint arise from an alleged breach of the listing agreement between it and the defendant. The allegations pleaded by the defendant in the second and third special defenses allege that the transaction arises from the same listing agreement between the parties but for a different prospective tenant known as Tutor Time and not for Simply Baby and Tower Cleaners as the tenants. The defendant alleges that, as to Tutor Time, the plaintiff was paid a commission greater than what was owed to it. These two special defenses pertain to the exclusive listing agreement, the foundation of the plaintiff's cause of action, and that the plaintiff has been paid a commission in excess of what it is owed under that contract. As such, the second and third special defenses do not negate the existence of a commission owed to the plaintiff but independently affect the underlying liability of the plaintiff. Therefore, the court finds that they are legally sufficient and the plaintiff's motion to strike the second and third special defenses are denied.
As to the defendant's second and third recoupment claims, the plaintiff argues that they are wholly unrelated to the transaction that is the subject of the complaint (the listing agreement), and, as a result, do not properly qualify as a recoupment as well as that each is legally insufficient. In opposition to the motion to strike, the defendant argues that it is seeking in the recoupment counts a reduction of the amount claimed by the...
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