Request,Application: MEDRANO-CALDERON, RAFAELA M. v. WAL-MART STORES EAST, LIMITED PARTNERSHIP Et Al

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                                DOCKET NO: HHD-CV20-6124852-S
RAFAELA M. MEDRANO-CALDERON
Vv.

WAL-MART STORES EAST, LIMITED
PARTNERSHIP, FLATBUSH CHARTER
PARTNERS LLC, PARAMOUNT REALTY
SERVICES, INC., AND WAL-MART REAL
ESTATE BUSINESS TRUST

SUPERIOR COURT

JUDICIAL DISTRICT OF
HARTFORD

AT HARTFORD

MARCH 2, 2020

DEFENDANTS, WAL-MART STORES EAST LIMITED PARTNERSHIP AND
WAL-MART REAL ESTATE BUSINESS TRUST’S, REQUEST TO REVISE

The defendants, Wal-Mart Stores East, Limited Partnership and Wal-Mart Real Estate

Business Trust (“Wal-Mart Defendants”), request that the plaintiff, Rafaela M. Medrano-Calderon

(“Plaintiff”), revise her complaint dated January 27, 2020 (the “Complaint”) as follows:

FIRST REQUESTED REVISION

1. Portion of Pleading Sought to be Revised:

The single-count Complaint in its entirety.

2. Requested Revision:

The Wal-Mart Defendants request that the Plaintiff separate the single-count Complaint into

four (4) distinct counts against each of the defendants so that in the Revised Complaint, each count

only relates to one defendant.

3. Reason for Request:

Pursuant to Practice Book § 10-35, a request to revise is proper whenever any party desires to

obtain “separation of causes of action which may be united in one complaint when they are improperly

-1-

ROGIN NASSAU LLC + ATTORNEYS AT LAW
CITYPLACE | » HARTFORD, CONNECTICUT 06103-3460 + (860) 256-6300 + JURIS NO. 050793combined in one count....” Conn. P.B. § 10-35(3); see also, DeGregorio v. Glenrock Condominium

Ass’n, Inc., No. AAN-CV-075002796, 2009 WL 3740724 at *3 (Conn. Super. Ct. Oct. 13, 2009)

 

(Bellis, J.) (‘A request to revise is the proper vehicle to separate causes of action combined in one

 

count.”).! A request to revise is properly used to set up a motion to strike. Rowe v. Gordon, 209
Conn. 273, 279 (1988).
“A complaint is confusing and not amenable to a motion to strike when it combines in a single

count, separate causes of action against multiple defendants.” Napolitano v. Allstate Ins. Co., No.

 

053358, 1991 WL 49862 at *1 (Conn.Super.Ct. Mar. 20, 1991) (McDonald, J.) (citing Rowe, 209
Conn. at 279-80). “When a single count of a complaint combines separate causes of action against
multiple defendants, the proper way to cure any confusion in that regard is to file a [request] to revise
...” Friday-Houser v. DVA Healthcare of Norwich, LLC, No. CV095013896S, 2010 WL 4226752 at
*3 (Conn.Super.Ct. Sept. 21, 2010) (Cosgrove, J.) (internal citations omitted).

In the instant case, the Plaintiff purports to allege a premises liability claim against each of
the defendants in a single count. The Plaintiff's claims against each of the defendants should be
separated out into four (4) different counts, so that each defendant may respond accordingly. As the
complaint currently reads, the Wal-Mart Defendants cannot discern which allegations are directed to
them. Furthermore, the allegations against each of the Wal-Mart Defendants may warrant different

admissions, denials, or other responses, as well as different special defenses. For the aforesaid

' Copies of unreported decisions cited herein are attached as Exhibit A.
-2-

ROGIN NASSAU LLC + ATTORNEYS AT LAW
CITYPLACE | + HARTFORD, CONNECTICUT 06103-3460 + (860) 256-6300 + JURIS NO. 050793reasons, the Plaintiff should revise her Complaint to separate the single-count Complaint into four (4)

distinct counts against each of the defendants

4. Objection (if any):

DEFENDANTS,

WAL-MART STORES, EAST LIMITED
PARTNERSHIP AND WAL-MART
REAL ESTATE BUSINESS TRUST

By: /s/ 309371
George C. Springer, Jr.
Katie A. Roy
Rogin Nassau LLC [050793]
CityPlace I, 22"! Floor
185 Asylum Street
Hartford, CT 06103-3460
T: (860) 256-6300
F: (860) 278-2179

gspringer@roginlaw.com

ROGIN NASSAU LLC + ATTORNEYS AT LAW
CITYPLACE | » HARTFORD, CONNECTICUT 06103-3460 + (860) 256-6300 + JURIS NO. 050793CERTIFICATION OF SERVICE
I hereby certify that a copy of the foregoing was mailed via first-class mail, postage prepaid,
this 2"! day of March 2020 to all counsel of record as follows:

Gary Strickland, Esq.
Dressler Strickland
84 Cedar Street
Hartford, CT 06106
Counsel for Plaintiff

Paramount Realty Services, Inc.
1195 Route 70

Suite 2000

Lakewood, NJ 08701
Non-appearing Defendant

Flatbush Charter Partners LLC
c/o Paramount Realty Services
1195 Route 70

Suite 2000

Lakewood, NJ 08701
Non-appearing Defendant

/s/ 309371
George C. Springer, Jr.

ROGIN NASSAU LLC + ATTORNEYS AT LAW
CITYPLACE | + HARTFORD, CONNECTICUT 06103-3460 + (860) 256-6300 * JURIS NO. 050793EXHIBIT ADeGregorio v. Glenrock Condominium Ass'n, Inc., Not Reported in A.2d (2009)

2009 WL 3740724

2009 WL 3740724
Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.

Superior Court of Connecticut,
Judicial District of Ansonia—Milford.

Carmine DEGREGORIO
v.
GLENROCK CONDOMINIUM ASSOCIATION, INC.

No. AANCV075002796S.

|
Oct. 13, 2009.

West KeySummary

1 Injunction
@ Sufficiency, particular cases

Condominium unit owner's allegations were
sufficient to put condominium association and
property management company on notice that
the unit owner was seeking equitable relief in the
form of an injunction, and therefore unit owner
complied with requirement that he “specifically
demand” that he was seeking equitable relief.
The owner's prayer for relief requested injunctive
relief requiring the association and property
management company to make all necessary
repairs to the exterior common areas and the
interior unit of the owner and to repair and
replace the jacuzzi located in the common area,
along with “such other and further relief as the
Court may deem fair and equitable.” Therefore,
the owner specifically asked for an injunction
and outlined the terms of the requested injunction
as well as a prayer for additional equitable relief.
Practice Book § 10-27.

Attorneys and Law Firms

Brian Christophe Fournier, Fournier Law Firm, New Haven,
for Carmine Degregorio.

WESTLAW ©

 

 

Delsole & Delsole LLP, Rene G. Martineau, Wallingford, for
Glenrock Condominium Association Inc., CCMS L.L.C, and
Concord Group.

BELLIS, J.

FACTS

*1 In this civil action, the plaintiff, Carmine DeGregorio,
has brought suit against the defendants, Glenrock
Condominium Association, Inc. (Glenrock), CCMS, LLC and

the Concord Group (Concord).! The plaintiff's two-count
complaint alleges that he is the owner of a condominium unit
known as 40 Glenrock Road, # 35, in Norwalk, Connecticut
(the property). Glenrock is the condominium association for

the property and CCMS, LLC, d/b/a The Concord Group?
is the property management company and/or the agent for
Glenrock. Count one alleges three specific claims, as follows:
(1) in the summer of 2004, the porch outside of the property
was “improperly and poorly stained, resulting in a worn and
exposed looking wood porch”; (2) beginning in 2005, the
property experienced exterior water leaks from faulty gutters,
roofing and siding, resulting in mold and mildew damage
to the property and water damage to the common stairwell
and hallway; and (3) an outdoor jacuzzi, maintained by the
defendants, “has been inoperable and/or unusable for more
than a year.” Although the plaintiff repeatedly requested that
the defendants repair this damage and fix the inoperable
jacuzzi, the defendants have refused to make such repairs.

The plaintiff alleges that the exterior gutters, roofing, siding,
the porch and the jacuzzi are all “common elements and/or
common areas as defined in the Declaration, By-Laws, Rules
& Regulations, The Condominium Act ... and the Common
Interest Ownership Act ...”
refusal to promptly repair and remedy the defects and
damages is a violation of the Declaration and General Statutes
§§ 47-75, 47-84 and 47-249, Count two further alleges that
the plaintiff has attempted to sell the property, but he has been
unable to do so because of the unrepaired damages. Therefore,
the plaintiff alleges that he has suffered continuing expenses
including mortgage payments, taxes, insurance and common
charges. As a result of these alleged damages, the plaintiff's
prayer for relief seeks: (1) an injunction, (2) “[a] decree
and order requiring the Defendants to make all necessary
repairs and/or remediation to the exterior common areas and

and, therefore, the neglect or

interior unit of the Plaintiff [sic] and to repair or replaceDeGregorio v. Glenrock Condominium Ass'n, inc., Not Reported in A.2d (2009)

 

2009 WL 3740724

the jacuzzi located in the common area at the Glenrock
Condominiums,” (3) money damages, (4) punitive damages
and attorneys fees and costs pursuant to General Statutes §
57-278 and (5) such other relief that the court deems fair and
equitable.

The defendants filed a request to revise on May 22, 2007,
to which the plaintiff filed an objection on June 22, 2007.
The court, Hartmere, J., sustained the plaintiff's objection to

the request to revise on July 30, 2007.3 Then, on August
22, 2007, the defendants filed the subject motion to strike
counts one and two and elements of the prayer for relief, as
well as a memorandum of law in support. The plaintiff filed
a memorandum in opposition on December 10, 2007. The
matter was heard at short calendar on August 31, 2009.

DISCUSSION

*2 “The purpose of a motion to strike is to contest ... the
legal sufficiency of the allegations of any complaint ... 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), In a
motion to strike, “the moving party admits all facts well
pleaded.” RK Constructors, Inc. v. Fusco Corp., 231 Conn.
381, 383 n. 2, 650 A.2d 153 (1994). Therefore, “[i]f facts
provable in the complaint would support a cause of action, the
motion to strike must be denied.” (Internal quotation marks
omitted.) Batte-Holmgren v. Commissioner of Public Health,
281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand,
“[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, at 498, 815 A.2d
1188. When ruling on a motion to strike, the court must
“construe the complaint in the manner most favorable to
sustaining its legal sufficiency.” (Internal quotation marks
omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277
Conn. 113, 117, 889 A.2d 810 (2006).

 

IMPROPER COMBINATION OF COUNTS

The defendants' first argument is that the plaintiff's complaint

is in violation of Practice Book § 10-26,4 which requires

 

ginal US

a plaintiff to allege different causes of action in separate

counts. > Specifically, the defendants argue that “[t]he pleader
in this case has entirely ... failed to separate the intentional
allegations from the negligence allegations nor the equitable
claims from the legal claims.” In response, the plaintiff
contends that this argument should have been raised in
a request to revise, and, therefore, it has been waived.
Moreover, the plaintiff argues that his complaint properly
alleges two causes of action in separate counts, in that count
one alleges statutory and bylaw violations and count two
alleges consequential damages.

 

Practice Book § 10-35 provides that: “Whenever any party
desires to obtain ... (3) separation of causes of action which
may be united in one complaint when they are improperly
combined in one count, or the separation of two or more
grounds of defense improperly combined in one defense ...
[that party may] file a timely request to revise that pleading.”
When a plaintiff has filed two or more causes of action in the
same count, “the proper way to cure any confusion in that
regard is to file a motion to revise, not a motion to strike the
entire complaint.” Rowe v. Goudou, 209 Conn. 273, 279, 550
A.2d 1073 (1988). The only exception to this general rule is
when the causes of action cannot be properly united in one
complaint. See Practice Book § 10-39(4). Furthermore, as
provided by Practice Book § 10-38: ‘Whenever any party
files any request to revise or any subsequent motion or
pleading in the sequence provided in [Practice Book §§ ]10—
6 and 10-7, that party thereby waives any right to seek any
further pleading revisions which that party might then have
requested.” Practice Book §§ 10-6 and 10~7 together provide
that a request to revise must be filed before a motion to strike,
and if a party files a motion to strike, then that party has
waived its right to file a subsequent request to revise.

*3 As illustrated by these rules of practice and case law,
a request to revise is the proper procedural vehicle used
when the plaintiff has pleaded multiple causes of action in
the same count. Since the motion that is currently before
the court is a motion to strike, the defendants are using an
incorrect procedural device to bring this issue to the court's
attention. Moreover, § 10-38 specifically provides that the
filing of a request to revise bars a defendant from seeking
later pleading revisions, and the rules of practice require that
a request to revise be filed before a motion to strike. On May
22, 2007, the defendants filed a request to revise, which did
not include a request that the plaintiff revise his complaint
because he alleged multiple claims in the same count. Here,
the defendants have filed a motion to strike, and they are

overnment Work:DeGregorio v. Glenrock Condominium Ass'n, Inc., Not Reported in A.2d (2009)

 

2009 WL 3740724

barred from filing a subsequent request to revise. Since the
pleading of multiple claims in the same count should be
addressed in a request to revise, and the defendants have
waived this issue by filing a previous request to revise and
subsequent motion to strike, the court rejects this argument.

I

PUNITIVE DAMAGES AND ATTORNEYS FEES
UNDER THE COMMON INTEREST OWNERSHIP ACT

The defendants next move to strike the applicable “counts
and corresponding prayers for relief” for failure “to properly
allege the statutory requirements for imposition of punitive
damages and attorneys fees.” Specifically, the defendants
argue that the plaintiff has failed to allege that the defendants'
acts or omissions occurred as the result of a “willful failure
to comply,” as required by General Statutes § 47-278.
Furthermore, the defendants contend that the court should
strike the relevant counts and prayers for relief against
Glenrock because there is no liability for punitive damages
under the doctrine of vicarious liability.

The plaintiff responds by arguing that he sufficiently alleges
that the defendants wilfully violated the Common Interest
Ownership Act, General Statutes § 47-200 et seq., in that
the defendants refused to rectify the alleged defects despite
numerous requests by the plaintiff to fix the problems.
Moreover, the plaintiff argues that the defendants’ argument
regarding Glenrock is a “red herring,” and that the complaint
alleges primary, as opposed to vicarious, liability against
Glenrock.

General Statutes § 47-278(a) authorizes the recovery of
punitive damages and attorneys fees for violations of the
Common Interest Ownership Act. This statute provides: “If
a declarant or any other person subject to this chapter fails
to comply with any of its provisions or any provision of
the declaration or bylaws, any person or class of persons
adversely affected by the failure to comply has a claim for
appropriate relief. Punitive damages may be awarded for a
willful failure to comply with this chapter. The court may
award court costs together with reasonable attorneys fees.”

In their memorandum of law in support of their motion to
strike, the defendants cite a number of cases that generally
discuss punitive damages, attorneys fees and what types
of actions constitute a willful failure to comply. Only one

 
 

of these cases, Willow Springs Condominium Ass'n., Inc. v.
Seventh BRT Development Corp., 245 Conn. 1, 717 A.2d
77 (1998), involves the Common Interest Ownership Act.
Moreover, Willow Springs does not discuss what a plaintiff
must allege in order to state a claim for punitive damages
and attorneys fees under § 47-278. There are no Connecticut
cases that directly address what level of conduct the plaintiff
must allege to sufficiently plead a “willful failure to comply”
with the Common Interest Ownership Act. Therefore, I will
look to how courts have defined the phrase “willful failure to
comply.” “Our Supreme Court defines ‘willful misconduct’
as ‘intentional conduct’ with ‘the design to injure either
actually entertained or to be implied from the conduct and
circumstances ... Not only the action producing the injury
but the resulting injury also must be intentional.’ ” Witczak
v. Gerald, 69 Conn.App. 106, 116, 793 A.2d 1193 (2002),
quoting Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711
(1988). As a result, it stands to reason that a “willful failure to
comply” means that the defendants' conduct was intentional
and done with the purpose of producing injury.

*4 In paragraphs eight and thirteen of the complaint, the
plaintiff alleges that “[djespite repeated requests by the
Plaintiff to re-stain and/or replace the decking on the porch,
the Defendants have refused to make such repairs to date”
and “[d]espite repeated requests by the Plaintiff to remedy
and/or remediate the aforementioned water issues and/or
exterior water leaks and to repair the resulting water damage,
the Defendants have refused to make such repairs to date.”
When viewed in a light most favorable to the pleader, these
allegations suggest that the defendants had knowledge of
the alleged defects and intentionally chose not to fix them.
From this failure to comply with the requirements of the
Common Interest Ownership Act, the plaintiff alleges that he
has suffered damages. Accordingly, the plaintiff's complaint
sufficiently alleges that the defendants wilfully failed to
comply with the Common Interest Ownership Act, and,
therefore, the plaintiff sufficiently alleges a claim for punitive
damages and attorneys fees under § 47-278.

The defendants further argue that the court should strike the
punitive damages and attorneys fees claims against Glenrock
because “the allegations against the defendant Glenrock
assert liability for punitive damages and attorneys fees based
on vicarious liability [principles]. At common law there is
no vicarious liability for punitive damages ... Nothing in
the language of Section 47-278 allows for abrogation of
this common law principle.” The defendants' memorandum
of law fails to elaborate on what basis the plaintiffs

   

overnn Vorks. 3DeGregorio v. Glenrock Condominium Ass'n, Inc., Not Reported in A.2d (2009)

2009 WL 3740724

complaint necessarily alleges liability against Glenrock based
on the doctrine of vicarious liability. In fact, the plaintiff's
memorandum of law in opposition states that the defendants
are misrepresenting the allegations of the complaint because
the plaintiff actually is alleging primary liability against
Glenrock.

A review of the allegations of the complaint reveals the
following. The plaintiff alleges that Glenrock has “[a]t all
relevant times ... been the Association in control of Glenrock
Condominiums” and that “Concord has been and continues
to be the property manager for the Glenrock Condominiums
and/or acting as the Association's agent.” The complaint
alleges that Glenrock is in control of the subject property and
also alleges that Concord acts as its property manager/agent.
In paragraphs eight and thirteen of the complaint, the plaintiff
alleges that he made a demand to “the Defendants” to fix his
condominium. This allegation suggests that both Glenrock
and Concord were told about the alleged defects. Moreover,
paragraph seventeen alleges that “[t]he Defendants are in
violation of Article 23 of the Declaration, which provides,
inter alia, ‘any portion of the Common Interest Community ...
which is damaged or destroyed shall be repaired or replaced
promptly by the Association.’ ” According to paragraph five,
“Association” refers to Glenrock. Therefore, if read together,
paragraphs seventeen, thirteen and eight allege that Glenrock
had a duty to repair and replace damages to the plaintiff's
condominium and that it failed to do so upon notice of the
defects. The complaint alleges a direct claim for liability
against Glenrock, the defendants’ argument that punitive
damages are inappropriate under a theory of vicarious liability
is without merit.

Tl

DUPLICATION OF COUNTS,

*5 Next, the defendants move to strike count two on the
ground that it is redundant and duplicative of count one. The
defendants' memorandum of law argues that the second count
is “merely an amplification of damages and not a separate
cause of action since it incorporates all paragraphs from the
FIRST COUNT then merely adds assertions of additional
damages.” As a result, the defendants contend that count two
should be stricken. In response, the plaintiff argues that the
second count is not duplicative of the first count, and that this
issue should be raised by a request to revise as opposed to a
motion to strike.

 

Practice Book § 10-35 provides in relevant part that:
“Whenever any party desires to obtain ... (2) the deletion
of any unnecessary, repetitious, scandalous, impertinent,
immaterial or otherwise improper allegations in an adverse
party's pleading ... the party desiring any such amendment
may file a timely request to revise that pleading.”
Consequently, the plain language of § 10-35 establishes that
duplication of claims should be addressed in a request to
revise.

Nevertheless, “[t]here is no explicit appellate authority on the
issue of the proper vehicle for the elimination of duplicative
claims ... A split of authority exists within the Superior
Court regarding how the duplication of claims should be
addressed ... [A] majority of Superior Court cases ... [have]
held that [a] request to revise, and not a motion to strike,
is the proper procedural device for deletion of duplicative
pleadings ...” (Internal quotation marks omitted.) Sandru
v. Boyle, Superior Court, judicial district of New Haven,
Docket No. CV 07 5014056 (September 3, 2008, Zoarski,
ST.R.) (46 Conn. L. Rptr. 238, 239), citing Morales v.
Kulig, Superior Court, judicial district of New Britain, Docket
No. CV 07 5005451 (June 11, 2008, Gilligan, J.) (pleading
flaw of duplicative claims properly addressed by request
to revise to eliminate duplication, not by motion to strike);
Ritchie v. Charlotte Hungerford Hospital, supra, Superior
Court, Docket No. CV 07 5002368 (“to the extent that [the
defendant] argues that count one and count six are duplicative,
a motion to strike is not the appropriate procedural vehicle
with which to address such an argument”); Pike v. Bugbee,
Superior Court, judicial district of Hartford, Docket No. CV
06 5005721 (October 30, 2007, Bentivegna, J.) (“[s]ince a
claim that a count is repetitious challenges the form of the
pleading but not its legal sufficiency, the motion to strike
either count one or count three is denied”); Brookes v. New
Haven Savings Bank, Superior Court, judicial district of
Hartford, Docket No. CV 94 0544390 n. 3 (January 27, 1997,
Hennessey, J.) (“proper method by which to rid a complaint
of duplicative counts is a request to revise”); Chemlecki v.
Decorative Screen Printers, Inc., Superior Court, judicial
district of New London Docket No. CV 94 0532041 (June
19, 1995, Hurley, J.) (“[the defendant's] argument that these
counts are repetitive of count six should have been raised in
a request to revise and is not properly raised in a motion to
strike”); see also Law Offices of Thomas E. Porzio, LLC v.
Northern Expansion, LLC, Superior Court, judicial district
of Waterbury, Docket No. CV 08 5008203 (April 15, 2009,
Brunetti, J.) (same). There is, however, contrary authority.:

 

DeGregorio v. Glenrock Condominium Ass'‘n, Inc., Not Reported in A.2d (2009)

 

2009 WL 3740724

See Cambodian Buddhist Society of Connecticut v. Planning
& Zoning Commission, judicial district of Danbury, Docket
No. CV 03 0348578 (January 10, 2005, Downey, J.) (granting
motion to strike “unnecessarily duplicative” counts without
discussing if a request to revise is the correct procedural
device); Hayward v. Friendly Ice Cream Corp., Superior
Court, judicial district of New Haven, Docket No. CV 95
0375622 (November 9, 1995, Hadden, J.) (granting motion to
strike duplicative count).

*6 Practice Book § 10~35 specifically provides that
“unnecessary” and “repetitious” allegations should be
addressed via a request to revise. This court adopts the
majority view that redundant and duplicative allegations
should be addressed in a request to revise, rather than a motion
to strike. As such, the motion to strike count two is denied.

Iv

PRAYER FOR EQUITABLE RELIEF

Finally, the defendants move to strike the plaintiff's claims for
equitable relief on the ground that they are “fatally vague.”
The defendants argue that Practice Book § 10-27 “mandates
the pleader when seeking equitable relief to demand such
with specificity sufficient to identify the relief sought.”
Specifically, the defendants contend that it is insufficient
for the plaintiff to allege that he is seeking “injunctive
relief” or “necessary repairs and/or mediation.” The plaintiff
responds by arguing that the defendants are misconstruing
the directives of § 10-27 in that the rules of practice do not
require that equitable relief must be identified with specificity.
Section 10-27 provides that: “A party seeking equitable relief
shall specifically demand it as such, unless the nature of
the demand itself indicates that the relief sought is equitable
relief.” When applying § 10-27, the Connecticut appellate
courts have held that “[w]here the nature of the case and the
nature of the plaintiff's demand is such that equitable relief is
clearly being sought, a specific demand for equitable relief is
not necessary.” (Internal quotation marks omitted.) Giu/ietti v.

Footnotes

Giulietti, 65 Conn. App. 813, 859, 784 A.2d 905, cert. denied,
258 Conn. 946, 788 A.2d 95 (2001). “Our Supreme Court has
stated that [a]ny relief can be granted under [a] general prayer
which is consistent with the case stated in the complaint
and is supported by the proof provided the defendant will
not be surprised or prejudiced thereby ... The addition of
[a] general prayer for relief therefore permits the court to
fashion a remedy as long as that remedy is in accordance
with the plaintiff's stated case.” (Citations omitted; internal
quotation marks omitted.) Zotal Aircraft, LLC v. Nascimento,
93 Conn.App. 576, 580-81, 889 A.2d 950, cert. denied, 277
Conn, 928, 895 A.2d 800 (2006).

In the present case, the plaintiff's prayer for relief requests
“injunctive relief ... A decree and order requiring the
Defendants to make all necessary repairs and/or remediation
to the exterior common areas and interior unit of the
Plaintiff and to repair and replace the jacuzzi located in the
common area at the Glenrock Condominiums ... fand][s]Juch
other and further relief as the Court may deem fair and
equitable.” Therefore, the plaintiff has specifically asked for
an injunction, outlined the terms of the requested injunction
as well as a prayer for additional equitable relief that the court
deems fair and equitable. As a result, the plaintiffhas certainly
adhered to the requirements of § 10-27, which only mandates
that a party “specifically demand” that it is seeking equitable
relief. Since this complaint clearly puts the defendants on
notice that the plaintiff is requesting equitable relief in the
form of an injunction, the defendants’ motion to strike the
plaintiff's claims for equitable relief is denied.

CONCLUSION

*7 For all of the reasons stated above, defendant's motion to
strike is denied in its entirety.

All Citations

Not Reported in A.2d, 2009 WL 3740724

4 The plaintiff served process on CCMS, LLC and the Concord Group on March 5, 2007. Glenrock Condominium

Association, Inc. was served on March 15, 2007.

2 On the summons, the plaintiff has listed CCMS, LLC and the Concord Group as two distinct parties, however, in
the complaint the plaintiff alleges that CCMS does business as The Concord Group. Specifically, the plaintiff alleges
“Defendant CCMS LLC, d/b/a The Concord Group ... is a property management company ...” Furthermore, both CCMS.DeGregorio v. Glenrock Condominium Ass'n, Inc., Not Reported in A.2d (2009)
2009 WL'3740724- - oe

 

and Concord were served with process at the same time, in the same place, and the same individual accepted service.
They will be referred to as one entity.

3 Subsequently, on August 8, 2007, the defendants filed a request to reargue, which was also denied by the court, Hartmere,
J., on August 28, 2007.
4 Practice Book § 10-26 provides: “Where separate and distinct causes of action, as distinguished from separate and

distinct claims for relief founded on the same cause of action or transaction are joined, the statement of the second shall
be prefaced by Second Count, and so on from the others; and the several paragraphs of each count shall be numbered
separately beginning in each count with the number one.”

5 Although the defendants argue that the complaint is in violation of Practice Book § 10-26, neither the defendants' motion
nor their memorandum of law are clear as to precisely what the defendants are asking the court to strike as a result
of this deficiency.

 

End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.

 

nent Works. 6Napolitano v. Allstate Ins. Co., Not Reported in A.2d (1991)
1991 WL 49862, 3 Conn. L. Rptr. 390 — -

1991 WL 49862

UNPUBLISHED OPINION. CHECK COURT RULES
BEFORE CITING.

Superior Court of Connecticut,

Judicial District of Litchfield.

Nadine NAPOLITANO, et al.
v.
ALLSTATE INSURANCE CO., et al.

No. 053358.

|
March 20, 1991.

MEMORANDUM OF DECISION
McDONALD, Judge.

*1 The defendant, David Carter (Carter) moves to strike
count three of the plaintiffs' amended complaint on the ground

that the allegations contained in count three are insufficient to
state a claim upon which relief can be granted against him.

The third count of the plaintiffs' amended complaint,
however, is directed at both defendants, Allstate Insurance
Company (Allstate) and David Carter.

A complaint is confusing and not amenable to a motion to
strike when it combines in a single count, separate causes of
action against multiple defendants. See Rowe v. Gordon, 209
Conn. 273, 279 (1988). A proper way to cure any confusion
is to file a motion to revise not a motion to strike. Id.
Moreover, a motion to strike directed at particular paragraphs
of a complaint is improper, Northrup v. Town of Clinton, 14
Conn.Sup. 28, 31 (1946).

Accordingly, the motion to strike is denied.

All Citations

Not Reported in A.2d, 1991 WL 49862, 3 Conn. L. Rptr. 390

 

End of Document

 

© 2020 Thomson Reuters. No claim to original U.S. Government Works.Friday-Houser v. DVA Healthcare of Norwich, LLC, Not Reported in A.2d (2010)

2010 WL 4226752

2010 WL 4226752

Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.

Superior Court of Connecticut,
Judicial District of New London.

Lisa FRIDAY-HOUSER
v.

DVA HEALTHCARE OF NORWICH, LLC et al.

No. CV095013896S.
|

Sept. 21, 2010.

West KeySummary

1

Damages
G» Sex and Gender

Administrative director's alleged behavior was
extreme and outrageous as was required for
employee to state a legally sufficient claim
of negligent infliction of emotional distress.
Employee alleged that she was permitted to take
a leave of absence for pregnancy with a specified
return date, and administrative director, while
discussing with employee her return to work,
was also allegedly actively seeking a means
to terminate employee. Administrative director
also gave employee a litany of reasons for her
termination that employee alleged director knew
were probably or patently false. It could be
concluded from the alleged facts that director
should have known that her conduct, involving
deception and transparent dishonesty, would
have caused employee emotional distress above
and beyond what would be present in a standard
employment termination. C.G.S.A. § 46a-60(a)
(1), (7).

Opinion
COSGROVE, J.

*1 Before the court is the motion to strike (# 108) filed by
the defendants, DVA Healthcare of Norwich, LLC (DVA) and
Mary Ryan. In the motion, the defendants attack all seven
counts of the second amended complaint (# 107), filed on
April 14, 2010, by the plaintiff, Lisa Friday-Houser. The
seven issues before the court are whether the facts alleged
in each count are legally sufficient to state a cause of action
for (1) employment discrimination under the Connecticut
Fair Employment Practices Act (CFEPA), General Statutes
§ 46a-51 et seq., against Ryan, (2) breach of the duty of
good faith and fair dealing, (3) negligent hiring, supervision
or retention, (4) negligent infliction of emotional distress,
(5) intentional interference with a business relationship, (6)
negligent misrepresentation, and (7) wrongful termination,
respectively.

For reasons stated below the motion to strike is granted as to
counts two, three, five and six and denied as to counts one,
four and seven.

BACKGROUND

The pertinent facts, as alleged in the second amended
complaint, are as follows: The plaintiff was hired by the
William Backus Hospital (hospital) on June 16, 1987,
as a food service worker. In June 1998, the hospital
transferred her to the hemodialysis department to work as
a medical technician. Thereafter, in September 1999, the
plaintiff's job title was changed to “Patient Care Tech-
Gambro/Hemodialysis.”

In November 1999, the hospital entered into a service
agreement with DVA, a company that primarily provided
medical services to dialysis patients. In 2007, DVA advertised
the availability of several job openings, including one entitled
“Patient Care Technician-Chronic.” The plaintiff applied for
and was hired for said position. On April 16, 2007, the
plaintiffand DVA entered into a signed written understanding
of duties and expectations.Friday-Houser v. DVA Healthcare of Norwich, LLC, Not Reported in A.2d (2010)

2010 WL 4226752

The plaintiff worked under the supervision of Ryan,
Administrative Director for DVA. The plaintiff, pursuant to
the understanding of duties and expectations, was required
to follow all policies and procedures of DVA as well as
those of the hospital, which were incorporated as policies
and procedures of DVA. The defendants set the plaintiff's
working hours, provided her with training and instruction and
integrated her into their business operation.

At all times during which the plaintiff was working for
the defendants, she performed her duties in a way that met
their legitimate expectations. The plaintiff was subject to
annual performance reviews, which involved forms printed
on DVA letterhead directing that a “supervisor” evaluate the
“employee” and that the “employee” and “evaluator” sign the
form. Ryan performed the evaluations as directed by these
forms, reviewing the plaintiff's accomplishments and setting
her goals. The plaintiff received favorable performance
reviews during her tenure with DVA,

Sometime in April 2007, the plaintiff learned that she was
pregnant with twins. She informed Ryan of this development.
Ryan reacted by stating to the plaintiff “what are you going to
do” and “better you than me.” In May 2007, the plaintiff had
a miscarriage, losing one of the fetuses. The due date for the
birth of her remaining child was December 5, 2007.

*2° The plaintiff went into premature labor and, as a result,
took emergency leave beginning October 1, 2007. She gave
birth to her son prematurely on October 15, 2007. As directed
by DVA policy, the plaintiff applied for family and medical
leave by filling out forms for DVA employees through
the hospital. The plaintiff was approved for sixteen weeks
of leave, beginning October 1, 2007, and ending January
20, 2008. During the plaintiff's leave, she discussed her
returning to work upon the expiration of her leave with

Ryan! and other DVA employees including Alicia Monge,
the plaintiff's immediate supervisor. The plaintiff remained in
regular contact with these employees while she was on leave.

Starting from the time the defendants learned of the plaintiff's
pregnancy in April 2007, they engaged in a course of abusive
and harassing conduct that discriminated against the plaintiff
on the basis of her pregnancy. Ryan began to make comments
to other employees that were less than favorable with respect
to the plaintiff's job performance. She wrote emails to
other employees stating that the plaintiff's attendance and
performance were “inconsistent” and that there were “several
warnings and discussions” about this alleged problem. She

ulers. No claim tc

 

 

sent e-mails indicating that the plaintiff was not returning after
her leave was complete. She discussed with other employees
whether a patient care technician can be terminated if he or
she, like the plaintiff, does not have a patient care technician
certification (PCT certification). She sent e-mails to other
employees soliciting a means to terminate the plaintiff's
employment.

On January 17, 2008, at which time the plaintiff was
ready, willing and able to return to work immediately upon
the expiration of her leave three days later, the plaintiffs
immediate supervisor told her that she no longer had a
job with DVA and that she should speak with Ryan. Ryan
explained to the plaintiff that she was terminated because
she did not pass the PCT certification exam. The plaintiff
knew, however, that she had been employed with DVA for
ten years without having passed the exam and that there
were other employees who had not passed the exam but were
allowed to continue working. Ryan also told the plaintiff
that she was terminated because her contract with DVA had
expired, even though her contract was not set to expire
until January 2009. Ryan also told the plaintiff that she
was terminated because she was approved for only twelve
weeks of family and medical leave, not sixteen, and had not
returned upon the expiration of that leave. As a result of
the defendants' actions, the plaintiff has suffered emotional
distress, medical bills and lost wages. The plaintiff seeks
damages, reinstatement, attorneys fees under General Statutes
§ 46a-104 and exemplary damages.

The defendants filed the present motion to strike on April 26,
2010, along with a memorandum of law (# 109). Thereafter,
on June 5, 2010, the plaintiff filed an objection (# 111)
accompanied by a memorandum of law (# 112). The court
heard oral argument on the motion on June 28, 2010.

I

DISCUSSION

Standard of Review

*3 Under Practice Book § 10-39, “[w]henever any party
wishes to contest ... the legal sufficiency of the allegations of
any complaint ... or of any one or more counts thereof, to state

 

 

mimerFriday-Houser v. DVA Healthcare of Norwich, LLC, Not Reported in A.2d (2010)

2010 WL 4226752

a claim upon which relief can be granted ... that party may
do so by filing a motion to strike the contested pleading or
part thereof.” In determining whether to grant the motion to
strike, the court must “construe the complaint in the manner
most favorable to sustaining its legal sufficiency.” (Internal
quotation marks omitted.) Sullivan v. Lake Compounce Theme
Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
“{FJor the purpose of a motion to strike, the moving party
admits all facts well pleaded.” RK Constructors, Inc. v. Fusco
Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994).
“A motion to strike [however] ... does not admit legal
conclusions or the truth or accuracy of opinions stated in the
pleadings.” (Internal quotation marks omitted.) Faulkner v.
United Technologies Corp., 240 Conn. 576, 588, 693 A.2d
293 (1997). Accordingly, “[i]f facts provable in the complaint
would support a cause of action, the motion to strike must be
denied.” (Internal quotation marks omitted.) Batte-Holmgren
v. Commissioner of Public Health, 281 Conn. 277, 294, 914
A.2d 996 (2007).

Analysis

Count One-Employment
Discrimination in Violation of CFEPA

The defendants move to strike count one insofar as it alleges
a claim against Ryan. They contend that, because Ryan was
not an “employer” as contemplated by General Statutes §
46a-60(a)(1) and (7), she cannot be personally liable under
CFEPA. They argue that there is no individual liability under
CFEPA for supervisory employees of an employer. Moreover,
they argue that the plaintiff has alleged she was an employee
of the hospital and not of Ryan in any personal capacity. The
plaintiff concedes that Ryan cannot be held personally liable
under CFEPA. She argues, however, that count one applies to
DVA only and not to Ryan. She then concludes that the court
should deny the motion to strike count one as to DVA.

Significantly, the defendants do not challenge the legal
sufficiency of count one as against DVA. Since “grounds
other than those specified should not be considered by the trial
court in passing upon a motion to strike”; Gazo v. Stamford,
255 Conn, 245, 259, 765 A.2d 505 (2001); the court will

    

WEST ) Thomson R No claim fo or

 

assume that the plaintiff has stated a legally sufficient claim
against DVA in count one. Accordingly, count one is legally
sufficient, regardless of whether there is a legally sufficient
claim against Ryan.

“A motion to strike a count brought against multiple
defendants may not be granted on the ground that the
allegations are insufficient as they relate to a single
defendant.” (Internal quotation marks omitted.) Hodgate v.
Ferraro, Superior Court, judicial district of New London,
CV 05 4001779 (November 10, 2005, Gordon, J.). “When
a single count of a complaint combines separate causes of
action against multiple defendants, the proper way to cure
any confusion in that regard is to file a [request] to revise
..” (Internal quotation marks omitted.) Webster v. Pequot
Mystic Hotel, LLC, Superior Court, judicial district of New
London, Docket No. 556799 (January 9, 2002, Hurley, J.T.R.)
(31 Conn. L, Rptr. 217).

*4 Through a request to revise, the plaintiff could have been
made to separate her claim against Ryan, if she had intended
to bring one, from her claim against DVA, after which the
defendants could have properly moved to strike the claim
against Ryan. Compare id. (denying motion to strike count
alleging wrongful termination against both employer and
supervisor, despite supervisor's potential nonliability, because
count alleged a legally sufficient claim against employer). In
this instance, the defendants neglected to effect the separation
of the plaintiff's claims through a request to revise. Therefore,
because count one states a legally sufficient claim, the motion
to strike is denied as to count one.

Count Two-Breach of the Duty
of Good Faith and Fair Dealing

The defendants contend that count two should be stricken
because the plaintiff has neither alleged the existence of an
express employment contract nor sufficient facts to establish
that an employment contract was created by conduct of the
parties. They argue that there was no meeting of the minds
between the parties and no agreement that the plaintiff would
not be terminated but for just cause.

The plaintiff responds with the argument that whether an
employment contract exists is an issue of fact based on the
totality of the circumstances. She points out that she allegedFriday-Houser v. DVA Healthcare of Norwich, LLC, Not Reported in A.2d (2010)

2010 WL 4226752

that she signed an understanding of duties and expectations,
that she was trained by the defendants and integrated into their
operation, and that, based on these allegations, there was a
meeting of the minds to enter into an employment contract.

“Generally, Connecticut follows the rule that employment is
at-will and terminable by either the employee or the employer
with impunity.” Campbell v. Plymouth, 74 Conn.App. 67, 74,
811 A.2d 243 (2002). Parties to an employment relationship
may, by contract, however, avoid the at-will rule and make
an employee terminable only for good cause. Jorosyan v.
Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1,
15, 662 A.2d 89 (1995). In order to establish the existence
of an employment contract, the plaintiff must prove that the
defendants “had agreed, either by words or action or conduct,
to undertake [some] form of actual contract commitment to
[her] under which [sJhe could not be terminated without just
cause.” (Internal quotation marks omitted.) Jd.

“The common-law duty of good faith and fair dealing
implicit in every contract requires that neither party [will]
do anything that will injure the right of the other to
receive the benefits of the agreement ... Essentially it is
a rule of construction designed to fulfill the reasonable
expectations of the contracting parties as they presumably
intended.” (Internal quotation marks omitted.) Elm Street
Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63
Conn.App. 657, 665, 778 A.2d 237 (2001).

Although an employment contract forbidding termination but
for good cause is unnecessary in order for a duty of good
faith and fair dealing to arise in the employment context; see
Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572,

479 A.2d 781 (1984);2 count two is expressly predicated on
the existence of such an employment contract. The plaintiff
cannot establish the existence of this contract merely by
asserting that it existed; she must allege facts establishing,
among other things, that the defendants intended to refrain
from terminating her but for good cause. See Avitabile v. 1
Burr Road Operating Co. II, LLC, Superior Court, judicial
district of Stamford-Norwalk at Stamford, Docket No. CV 09
5012806 (June 4, 2010, Adams, J.) (“[T]o survive a motion to
strike, the allegations [of breach of an employment contract]
must include ... specific factual allegations concerning the
formation and terms of the express contract [the plaintiff]
claims [he] had with the defendant,” (Internal quotation marks.
omitted.)).

No claim to a

 

 

*5 The plaintiff alleges that, when she was hired, she
“entered to a signed written understanding of employment
duties and expectations ...” (Second Amended Complaint,
count one, 12.) She does not allege that such document
provided that she would not be terminated but for good cause.
The plaintiff also alleges that all employees of DVA were
required to follow the policies of both DVA and the hospital;
however, she does not allege that these policies allowed
termination only for good cause. The plaintiff alleges nothing
indicating that Ryan or any other agent of DVA promised
her that she would only be terminated for good cause.
Therefore, the plaintiff has failed to allege the existence of the
employment contract upon which her claim of the breach of
good faith and fair dealing is predicated. Accordingly, count
two fails to state a cause of action and the motion to strike is
granted as to count two.

Count Three-Negligent Hiring/Retention/Supervision

The defendants argue that the plaintiff has failed to allege any
facts that would allow the conclusion that it was foreseeable
to DVA that Ryan would engage in the alleged wrongful acts
that allegedly caused injury to the plaintiff. They contend
that none of the facts alleged establishes that DVA had any
knowledge or reason to know that Ryan had a propensity to
behave in the harmful manner alleged or that such behavior,
if it occurred, was anything more than an isolated incident.

The plaintiff argues that DVA should have known that Ryan's
conduct would cause her harm. As evidence of this knowledge
or reason to know, the plaintiff reiterates the allegations
found in paragraph twenty-nine of count three describing
the various ways in which Ryan engaged in discriminatory
conduct against the plaintiff. She argues that these actions put
DVA on notice that Ryan's conduct would cause harm to the
plaintiff.

Negligent hiring, negligent retention and negligent
supervision are three similar causes of action, each of which
imposes liability on an employer for the foreseeable tortious
acts of an employee. See Seda v. Maxim Healthcare Services,
Superior Court, judicial district of Hartford, Docket No. CV
07 5010811 (April 8, 2008, Elgo, J.). “Whether the claim is for
negligent hiring, negligent supervision or negligent retention,
a plaintiff must allege facts that support the element of
foreseeability.” (Internal quotation marks omitted.) /d. “Our

4aFriday-Houser v. DVA Healthcare of Norwich, LLC, Not Reported in A.2d (2010)

2010 WL 4226752 ~

Superior Court has interpreted this foreseeability requirement
as one in which the employer knew or should have known of
the employee's propensity to engage in the alleged harmful
conduct,” (Internal quotation marks omitted.) /d. Put in terms
of the issue before the court, the plaintiff must allege that
it was foreseeable to DVA that Ryan would engage in the
alleged discriminatory conduct. The standard is not, as the
plaintiff contends, whether it was foreseeable to DVA that the
alleged discriminatory acts committed by Ryan would result
in the literal harm suffered by the plaintiff, ie., emotional

distress, financial losses, pain and suffering. 3

*6 The plaintiff has alleged nothing that would establish
that DVA was aware or should have been aware that Ryan
had a propensity for engaging in discriminatory conduct. The
plaintiff's citation of the alleged acts themselves does not
show that DVA knew or should have known before the fact
ofa risk that Ryan would commit those same acts. Therefore,
count three fails to state a cause of action and the motion to
stri