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DOCKET NO: AAN-CV-18-6031256-S : SUPERIOR COURT
DEFOREST W. SMITH, et al. : J.D. OF ANSONIA/MILFORD
v. : AT MILFORD
H. PEARCE REAL ESTATE COMPANY, INC. : JUNE 9, 2020
REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE
The defendant, H. Pearce Real Estate Company, Inc. (“H. Pearce”), has moved
to strike Counts Four, Five and Six of the Second Amended Complaint on the grounds
that the allegations set forth therein are legally insufficient and fail to state claims upon
which relief can be granted. Counts Four and Five are based upon an alleged breach of
a contractual obligation to pay the plaintiff, Deforest Industries, Inc. (“DII”), money and,
therefore, cannot be enforced through claims based upon conversion or statutory theft.
Count Six, alleging a violation of CUTPA, merely incorporates the legally insufficient
claim of statutory theft from Count Five (which is itself based upon a mere breach of
contract) and, therefore, also is legally insufficient as a matter of law.
DII has objected to the motion to strike relying upon the “necessary implications”
of the allegations in the Amended Complaint. Memorandum in Opposition to Motion to
Strike, entry no. 118.00, p. 2 (“Memo.Opp.”). However, as the plaintiff correctly noted in
its opposition, “the court is limited to the facts alleged in the complaint.” Memo. Opp. p.
1. All three of the challenged counts contain the following allegation, “Defendant has
received commissions from lease renewals for properties identified in Schedule 1.1(a)
as Excluded Assets, but has failed to remit them to DII, despite demand, and in breach
of the express terms of the Agreement.” Second Amended Complaint, Count Three,
¶7 (incorporated by reference into Counts Four, Five and Six). Consequently, all three
of the challenged counts are based upon the plaintiff’s allegation that the defendant is
not entitled to the disputed commissions under the “express terms of the Agreement.”
Contrary to the plaintiff’s assertion, defendant does not ignore paragraph 7 of each of
these counts. Memo. Opp., p. 2. In fact, the allegations in paragraph 7 of each count are
critical to the plaintiff’s claims therein because if the defendant were entitled to these
commissions under the “express terms of the Agreement,” then the plaintiff would have
no claim against the defendant. The plaintiff is attempting to attach different labels and
assert different claims, but they all boil down to the same issue, which is one of contract
interpretation: whether the commissions in dispute belong to the plaintiff or to the
defendant, under “the express terms of the Agreement.” Thus it is clear that the basis of
each of the plaintiff’s claims in Counts Four, Five and Six is a contract.
This is the crux of the motion to strike. Based upon Connecticut law, DII cannot
maintain a conversion action against H. Pearce based upon its alleged breach of an
agreement or contract to pay money. See, e.g., Mystic Color Lab, Inc. v. Auctions
Worldwide, LLC, 284 Conn. 408, 419 (2007); Deming v. Nationwide Mut. Ins. Co., 279
Conn. 745, 772 (Conn. 2006); and Macomber v. Travelers Property Casualty Corp., 261
Conn. 620, 650 (2002)(and other cases cited in Memorandum of Law in Support of
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Motion to Strike, entry no. 116.00, p. 6, fn. 1). The plaintiff’s objection fails to refute this
conclusion.
For these reasons, as set forth more fully in defendant’s Memorandum of Law in
Support of Motion to Strike, the allegations in Counts Four, Five and Six of the Second
Amended Complaint are legally insufficient and fail to state claims upon which relief can
be granted. Consequently, the court should grant the defendant’s motion to strike each
of these counts of the Second Amended Complaint.
H. PEARCE REAL ESTATE COMPANY, INC.
By: /s/ Peter T. Fay
Peter T. Fay
NEUBERT, PEPE & MONTEITH, P.C.
195 Church Street, 13th Floor
New Haven, CT 06510
Tel: (203) 821-2000
Fax: (203) 821-2009
Juris. No. 407996
pfay@npmlaw.com
3
CERTIFICATION
THIS IS TO CERTIFY THAT a copy of the foregoing was sent by electronic mail on
the 9th day of June 2020, to the following counsel of record and that written consent has
been received from all counsel receiving electronic delivery:
John-Henry M. Steele
DEY SMITH STEELE, LLC
9 Depot Street, 2nd Floor
Milford, CT 06460
jhs@deysmith.com
/s/ Peter T. Fay
Peter T. Fay
NEUBERT, PEPE & MONTEITH, P.C.
4
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DOCKET NO: AAN-CV-18-6031256-S : SUPERIOR COURT DEFOREST W. SMITH, et al. : J.D. OF ANSONIA/MILFORD v. : AT MILFORD H. PEARCE REAL ESTATE COMPANY, INC. : JUNE 9, 2020 REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE The defendant, H. Pearce Real Estate Company, Inc. (“H. Pearce”), has moved to strike Counts Four, Five and Six of the Second Amended Complaint on the grounds that the allegations set forth therein are legally insufficient and fail to state claims upon which relief can be granted. Counts Four and Five are based upon an alleged breach of a contractual obligation to pay the plaintiff, Deforest Industries, Inc. (“DII”), money and, therefore, cannot be enforced through claims based upon conversion or statutory theft. Count Six, alleging a violation of CUTPA, merely incorporates the legally insufficient claim of statutory theft from Count Five (which is itself based upon a mere breach of contract) and, therefore, also is legally insufficient as a matter of law. DII has objected to the motion to strike relying upon the “necessary implications” of the allegations in the Amended Complaint. Memorandum in Opposition to Motion to Strike, entry no. 118.00, p. 2 (“Memo.Opp.”). However, as the plaintiff correctly noted in its opposition, “the court is limited to the facts alleged in the complaint.” Memo. Opp. p. 1. All three of the challenged counts contain the following allegation, “Defendant has received commissions from lease renewals for properties identified in Schedule 1.1(a) as Excluded Assets, but has failed to remit them to DII, despite demand, and in breach of the express terms of the Agreement.” Second Amended Complaint, Count Three, ¶7 (incorporated by reference into Counts Four, Five and Six). Consequently, all three of the challenged counts are based upon the plaintiff’s allegation that the defendant is not entitled to the disputed commissions under the “express terms of the Agreement.” Contrary to the plaintiff’s assertion, defendant does not ignore paragraph 7 of each of these counts. Memo. Opp., p. 2. In fact, the allegations in paragraph 7 of each count are critical to the plaintiff’s claims therein because if the defendant were entitled to these commissions under the “express terms of the Agreement,” then the plaintiff would have no claim against the defendant. The plaintiff is attempting to attach different labels and assert different claims, but they all boil down to the same issue, which is one of contract interpretation: whether the commissions in dispute belong to the plaintiff or to the defendant, under “the express terms of the Agreement.” Thus it is clear that the basis of each of the plaintiff’s claims in Counts Four, Five and Six is a contract. This is the crux of the motion to strike. Based upon Connecticut law, DII cannot maintain a conversion action against H. Pearce based upon its alleged breach of an agreement or contract to pay money. See, e.g., Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 419 (2007); Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745, 772 (Conn. 2006); and Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 650 (2002)(and other cases cited in Memorandum of Law in Support of 2 Motion to Strike, entry no. 116.00, p. 6, fn. 1). The plaintiff’s objection fails to refute this conclusion. For these reasons, as set forth more fully in defendant’s Memorandum of Law in Support of Motion to Strike, the allegations in Counts Four, Five and Six of the Second Amended Complaint are legally insufficient and fail to state claims upon which relief can be granted. Consequently, the court should grant the defendant’s motion to strike each of these counts of the Second Amended Complaint. H. PEARCE REAL ESTATE COMPANY, INC. By: /s/ Peter T. Fay Peter T. Fay NEUBERT, PEPE & MONTEITH, P.C. 195 Church Street, 13th Floor New Haven, CT 06510 Tel: (203) 821-2000 Fax: (203) 821-2009 Juris. No. 407996 pfay@npmlaw.com 3 CERTIFICATION THIS IS TO CERTIFY THAT a copy of the foregoing was sent by electronic mail on the 9th day of June 2020, to the following counsel of record and that written consent has been received from all counsel receiving electronic delivery: John-Henry M. Steele DEY SMITH STEELE, LLC 9 Depot Street, 2nd Floor Milford, CT 06460 jhs@deysmith.com /s/ Peter T. Fay Peter T. Fay NEUBERT, PEPE & MONTEITH, P.C. 4