Triton Environmental, Inc. v. Dalton Enterprises, Inc., No. 3482647 (CT 1/10/2005)

• Decision Date: 10 January 2005
• Docket Number: No. 3482647,3482647
• Court: Connecticut Supreme Court
• Parties: Triton Environmental, Inc. v. Dalton Enterprises, Inc.

Page 1

Unpublished Opinion

Triton Environmental, Inc. v. Dalton Enterprises, Inc.

No. 3482647

Superior Court of Connecticut

Judicial District of New Haven at New Haven

January 10, 2005

MEMORANDUM OF DECISION

LEVIN, JUDGE.

The plaintiff, Triton Environmental, Inc., moves to strike the second special defense and three counts of a counterclaim filed by the defendant, Dalton Enterprises, Inc.

The plaintiff alleges in the first count of its complaint that the parties entered into a contract whereby the plaintiff would respond to and perform work in order for the defendant to respond to a notice of violation (NOV) issued by the state of Connecticut department of environmental protection (DEP). A copy of the contract is attached to the complaint. The plaintiff alleges that it performed the work, but that the defendant has failed to pay the agreed-upon price. A complaint also contains a second count sounding in unjust enrichment.

The defendant has filed an amended answer in which it has denied, inter alia, that the plaintiff performed the contract. The defendant has pleaded two special defenses. The first special defense alleges that the defendant was fraudulently induced to enter into the contract by an employee of the plaintiff. The second special defense alleges a failure of consideration. The defendant also has pleaded a four-count counterclaim sounding in breach of contract, negligence, misrepresentation and a violation of the Connecticut Unfair Trade Practices Act (CUTPA).

The plaintiff has moved to strike the second special defense and the two counts of the counterclaim alleging negligence and misrepresentation.¹

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . 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). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "For the purpose of ruling on a motion to strike, the facts alleged in a [pleading], though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). "The court must construe the facts in the [pleading] most favorably to the pleader." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

I

The plaintiff moves to strike the defendant's second special defense. "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. 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 . . . In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). "When a single special defense is subjected to a motion to strike, only the facts alleged by that special defense are accepted as true." Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn.App. 60, 77, 504 A.2d 1376, cert. denied, 199 Conn. 807, 808 508 A.2d 769 (1986); see Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 719, 443 A.2d 922 (1982) (facts must be taken from the pleading being attacked); Zeller v. Mark, 14 Conn.App. 651, 654 n.4, 542 A.2d 752 (1988) (pleading under attack may not be aided by Practice Book §§13-22, 13-24 admissions of opposing party).

The defendant's second special defense alleges that the contract was entered into by the defendant on the advice of the plaintiff that the services it would render thereunder were required to respond to the NOV. The defendant alleges that the services rendered by the plaintiff were of no value to it and actually caused the defendant damage. Therefore, the defendant continues, the consideration the plaintiff gave the defendant for entering into the contract has failed, and the defendant is not obliged to pay the plaintiff for its services.

The plaintiff moves to strike this special defense because, the plaintiff argues, the defendant admits that consideration was given and that merely disputing the value of the services rendered does not constitute a failure of consideration.

"To be enforceable, a contract must be supported by valuable consideration . . . The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable." (Citations omitted; internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995).

In response, the defendant cites Cramer v. Burnham, 107 Conn. 216, 140 A. 477 (1928), Kessler v. Valerio, 102 Conn. 620, 129 A. 788 (1925), Waters v. Hartnett, 5 Conn.Cir. 687, 260 A.2d 615 (App.Div. 1969), and Marone v. Delfino, 11 Conn.Sup. 161 (Cm.Pl. 1942), for the proposition that the defense of failure of consideration has been recognized in cases involving the promise to pay money under promissory notes, stock subscriptions, real estate contracts and contracts for the sale of goods.

Cramer v. Burnham, supra 107 Conn. 216, was a suit on a note by the receiver of a corporation that never acquired legal existence because its certificate of organization never was filed. The note was given in payment for the balance of a subscription of stock. The corporation had never acquired legal existence because the certificate of organization never was filed, and the plan to do so was abandoned. The court held that "[t]he consideration for [defendant's] contract was the promise of the corporation to furnish him the stock, and the definite inability of the corporation to do so, by reason of the abandonment of the enterprise, results in a failure of consideration . . ." (Emphasis added.) Id., 222. "On recognized legal principles, it also follows that a note given in payment for such a subscription is subject to the same defenses and cannot be enforced as between the original parties to the contract." Id., 223. Here, by contrast, there is no allegation of "definite inability" to perform the contract.

Kessler v. Valerio, supra, 102 Conn. 620 is inapposite, as is Marone v. Delfino, supra, 11 Conn.Sup. 161. Kessler was an action on a note in which the defendant pleaded, as a special defense, that the plaintiff had taken the note without valuable consideration and, therefore, was not a holder in due course. The jury found for the plaintiff, and the trial court rendered judgment for the plaintiff on that verdict. On appeal, the defendant argued that the trial court erred in charging the jury that the burden of proof on the issue of want of consideration was, under the former Negotiable Instruments Act, on the defendant. The Supreme Court held that the trial court did not err in this charge. The holding of this case does not aid the defendant.

In Waters v. Hartnett, supra, 5 Conn.Cir. 687, the plaintiff sued for the return of a deposit on a parcel of land. The deposit was made pursuant to an oral contract for the sale of land. "The money was to be held until a building permit and a septic tank permit was effectively obtained." Id., 688. A building permit was obtained but it was revoked when the ground was found to be unfit for building or a septic tank. The lots had been represented by the defendant's real estate agent to fulfill the requirements of the town as to water content and composition of the land for building purposes. Id., 689-90. The plaintiff's action was in two counts. The first count alleged that the contract had been entered into based on the fraudulent representations of the real estate agent. The second count alleged that the contract was contingent upon the plaintiff obtaining a building permit and septic tank permit before the defendant was entitled to the deposit. The trial court found for the plaintiff on both counts. The Appellate Division of the Circuit Court affirmed. As to the second count, that court held: "The finding by the court is amply supported by the evidence that the water condition existed at the time the negotiations for sale were taking place and that the defendant refused to disclose it, to the plaintiff's injury. There was, therefore, a failure of consideration which entitled the plaintiff to a rescission and a refund of his escrow deposit." Id., 692.

No authority was cited by the court for this last statement, and Waters v. Hartnett has only been cited once by a Connecticut court in the thirty-five years since it was decided, and not for the proposition for which it is cited here.² Moreover; the decisions of the former Appellate Division of the Circuit Court, a statutory court which was abolished over three decades ago, are not binding on the constitutional Superior Court. Yale New Haven Hospital v. Orlins, Superior Court, judicial district of New Haven, Docket No. CV6 10396 (May 12, 1992) (6 Conn. L. Rptr. 364); accord, Glazer v. The Dress Barn, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No CV 000178375 (March 30, 2001) (29 Conn. L. Rptr. 596). The decision in Waters was abundantly supportable by the other grounds articulated by that court. In addition, in Waters v. Hartnett, supra, the defendant was necessarily...