Oxford Real Estate v. Tartaglia, No. CV04 0287795-S (CT 9/7/2005), CV04 0287795-S
| Decision Date | 07 September 2005 |
| Docket Number | No. CV04 0287795-S,CV04 0287795-S |
| Court | Connecticut Supreme Court |
| Parties | Oxford Real Estate v. Remo Tartaglia Opinion No.: 90187 |
The plaintiff, Oxford Real Estate, a real estate broker, filed a one-count complaint on June 2, 2004, against the defendant, Remo Tartaglia, the owner of Shoppers Plaza in Bridgeport, Connecticut. The plaintiff alleges the following therein. The plaintiff and defendant entered into a listing agreement on November 28, 1994, to lease Shoppers Plaza. The agreement appointed the plaintiff as the exclusive listing broker. The parties extended the listing agreement though March 1, 1998. Prior to February 1997, the plaintiff procured a tenant for the plaza, PRCC, Inc., which subsequently executed a lease agreement with the defendant to operate a grocery store under the name of Shop Rite. The lease agreement "recognized the plaintiff as [the defendant's] broker." The defendant paid the plaintiff the appropriate commissions due and owing as a result of the execution of the lease. The initial term of the lease was for five years with the option of extending the lease for three additional five-year terms followed by one additional term of ten years. PRCC renewed the initial lease and, as required by the listing agreement, the plaintiff alleges it is entitled to 2.5 percent of the rental due from PRCC under this first renewal. The plaintiff has made a demand upon the defendant for the commission due but the defendant has refused to pay it. The plaintiff's complaint alleges a breach of the real estate brokerage contract for a commission due and owing.
On July 20, 2004, the defendant filed an answer, special defenses, recoupment, and setoff and counterclaim, which was subsequently revised. In his first special defense, first recoupment and first counterclaim, the defendant alleges in each that the plaintiff was paid a substantial commission in excess of what was due and payable in correction with a tenancy known as Tutor Time. In the second special defense, second recoupment and second counterclaim, the defendant alleges in each that at the times alleged in the complaint, the plaintiff was a real estate broker for the defendant and owed to him the responsibilities of a fiduciary, of good faith and fair dealing; that he signed a lease with Tutor Time, a prospective tenant, and paid the plaintiff a substantial commission; that the plaintiff knew or should have known that Tutor Time was insolvent but failed to advise the defendant of this fact. The defendant further alleges in each that he made substantial payments to improve the property to accommodate Tutor Time but has not been paid the amount of rent owed it before Tutor Time went bankrupt. In the third special defense, third recoupment and third counterclaim, the defendant alleges the following. He owns a shopping center in Branford for which he attempted to obtain zoning approval for a prospective tenant, another Tutor Time, but the zoning application was denied. The defendant's assignor, a limited liability company owned by the defendant, also owns a shopping center in West Haven. This different Tutor Time, which was a tenant of the defendant's assignor in West Haven, failed to pay the defendant the rent it owed sending instead the payment to the plaintiff as commission. The acceptance of that payment by the plaintiff was unauthorized and constitutes a conversion of the defendant's property. The defendant realleges that at the time of the complaint, the plaintiff, as real estate broker for the defendant, breached its duty as a fiduciary, of good faith and fair dealing. Finally, in the fourth special defense, fourth recoupment and fourth counterclaim, the defendant alleges that all of the transactions, as enumerated in his prior special defenses, recoupment counts and counterclaims, constitute unfair and deceptive actions in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §42-110a et seq. because the plaintiff received and accepted funds not due it and failed to investigate and/or advise and warn the defendant of the insolvency and financial difficulties of Tutor Time.
On October 28, 2004, the plaintiff filed its motion to strike the second, third and fourth special defenses; first, second, third and fourth recoupments and first, second, third and fourth counterclaims as legally insufficient The defendant filed a memorandum of law in opposition to the motion to strike on November 12, 2004. At short calendar, the defendant withdrew the third special defense, third recoupment and third counterclaim.
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 moves to strike the second and fourth special defenses1 on the ground that they allege causes of action for damages which do not qualify as valid special defenses under §10-502 of the Practice Book. Specifically, the plaintiff argues that, except for the first special defense, which is not at issue in this motion and seeks a setoff or recoupment, each of the others raises a separate claim for damages based on allegedly tortious conduct of the plaintiff toward the interests of the defendant, wholly unrelated to the subject matter of the plaintiff's complaint and do not involve allegations of "mutual debts." It is the plaintiff's position that a claim for damages, except for the setoff, is not a proper special defense under the rules of practice because it does not preclude the plaintiff's recovery.
In response, the defendant argues that in his special defenses, he has addressed the relationship between him and the plaintiff under the real estate contract and the plaintiff's responsibilities under that contract. The defendant further argues that the reason he alleged his claims as special defenses, recoupment counts and counterclaims is that each entitles him to different types of relief. For example, the defendant points out that a counterclaim entitles him to affirmative relief, a recoupment of the amount claimed by the plaintiff and the special defenses allow the trier to conclude that the plaintiff is not entitled to recovery at all. The defendant further maintains that the claims alleged by the plaintiff and the claims he has alleged in his special defenses, recoupment counts and counterclaims arise from the same transaction, the real estate contract, as well as the same set of facts, and, therefore, the plaintiff's interpretation of what constitutes the same transaction is too narrow. Under the plaintiff's interpretation, the defendant reasons that two lawsuits would have to be filed for the two commissions owed under the contract. The defendant asserts that in fairness to him and for the sake of judicial economy, he should be able to go forward with the counterclaims, recoupment counts and special defenses because "all arise from the conduct of the plaintiff daring the contract by which it seeks to hold the defendant liable"; that "[s]ome of the defenses . . . alleging the plaintiff's failure to abide by its fiduciary relationship to the defendant essentially set forth why the plaintiff should not be paid even if it is owed anything"; and that the other defenses "bring into play how the parties conducted themselves under the same contract sued upon by the plaintiff."
"The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." Bennett v. Automobile Insurance Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). ...
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