ACCESS AMERICA, LLC v. O’CONNOR, No. CV05 4004912S (Jun. 28, 2006)


ACCESS AMERICA, LLC DBA CENTURY 21 ACCESS AMERICA v. COURTNEY O’CONNOR.

2006 Ct. Sup. 11981
No. CV05 4004912SConnecticut Superior Court Judicial District of Ansonia-Milford at Milford
June 28, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO STRIKE #109
JOHN J. RONAN, JUDGE TRIAL REFEREE.

On October 26, 2005, the plaintiff, Access America, LLC d/b/a Century 21 Access America, filed a one-count complaint. This action arises out of the alleged breach of a covenant not to compete contained in an employment agreement. On April 28, 2006, the defendant, Courtney O’Connor, filed an answer and three special defenses.

On May 17, 2005, the plaintiff filed a motion to strike the defendant’s special defenses, accompanied by a memorandum of law. The plaintiff moves to strike the special defenses on the ground that they are not based on adequate factual allegations as required by Practice Book §§ 10-1, 10-50 and 10-51. On June 1, 2006, the defendant filed a memorandum of law in opposition to the motion to strike.

A motion to strike is the proper vehicle to contest the legal sufficiency of a special defense. Practice Book § 10-39. A 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.” (Emphasis in original.) Mingachos v. CBS, Inc., 196 Comm. 91, 108, 491 A.2d 368 (1985). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

“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, 811 A.2d 1291 (2002); see Practice Book § 10-50. Practice Book §10-1 provides in relevant part that “[e]ach pleading shall CT Page 11982 contain a plain and concise statement of the material facts on which the pleader relies . . .” “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.” (Internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).

In the first special defense, the defendant alleges that “[t]he `written agreement’ referred to in the complaint is invalid as a matter of law as unconscionable and/or violates public policy.” In the second special defense, the defendant alleges that “[t]he `written agreement’ set forth as Exhibit A of the verified complaint is not a valid contract.” In the third special defense, the defendant alleges that “[t]he `written agreement’ alleged in the plaintiff’s verified complaint is void [ab] initio as it perpetuates a fraud.” The special defenses, as pleaded, do not comply with the Practice Book rules because Connecticut is a fact pleading state. See Practice Book § 10-1. Under Practice Book §10-50, the purpose of a special defense is to plead facts that show the plaintiff has no cause of action. Here, the defendant’s special defenses do not allege facts to support the legal conclusions that the written agreement is unconscionable and/or violates public policy, that it is invalid or that it is void ab initio due to fraud. The plaintiff’s motion to strike the three special defenses based on legal insufficiency is granted. CT Page 11983