Opinion
Docket No. CVNO-5876
May 27, 2004
MEMORANDUM OF DECISION RE: MOTION TO STRIKE
The issue in this matter is whether the plaintiff's motion to strike the defendant's first special defense of unjust enrichment and second special defense of statute of limitations should be granted.
The plaintiff, the town of Weston, filed a one-count complaint against the defendant, Omnipoint Communications, Inc., alleging a breach of a written lease agreement. The plaintiff alleges that under the provisions of the lease agreement, the plaintiff would lease property it owned at 56 Norfield Road in Weston to the defendant, upon which the defendant could "construct a 56×22 `Block House' and 190' monopole for associated antenna. . . ." The defendant agreed to pay the plaintiff $1000 rent each month and, in addition, half of any revenue it received "from other carriers colocating on the Tower." (Complaint, ¶ 5). According to the plaintiff's complaint, the defendant currently has five carriers on the tower, and the defendant received an $80,000 attachment fee from each carrier. The plaintiff asserts that any money received by the defendant as attachment fees constitutes revenue, and that the plaintiff is entitled to half of that revenue. Thus, the plaintiff alleges that the defendant owes it approximately $200,000 more in rent.
The defendant filed an answer, special defenses, and counterclaim on December 4, 2003. As its first special defense, it alleges that the plaintiff will be unjustly enriched if it is granted 50% of the attachment fees that the defendant received from the other carriers who are located on the monopole. The defendant alleges that the attachment fees constitute pro rata construction reimbursement fees, which the defendant charged to recoup the costs of constructing the block house. The defendant alleges that the plaintiff will be unjustly enriched if it gets half of the construction reimbursement fees because the defendant bore the entire cost of construction and the defendant allows the plaintiff to use the block house free of charge.
As its second special defense, the defendant argues that the plaintiff's claims are barred by the statute of limitations. The defendant alleges that in addition to the written contract referenced in the plaintiff's complaint, the parties also had a separate oral agreement concerning the plaintiff's use of the block house. The defendant alleges that both parties continue to have obligations under the oral agreement and, therefore, the plaintiff's claim is barred by the statute of limitations because it was brought more than three years after this executory contract was made.
The plaintiff filed a motion to strike the first and second special defenses on January 29, 2004. The plaintiff's ground for striking the first special defense is that unjust enrichment is not a special defense under Connecticut law. The plaintiff's ground for striking the second special defense is that the defendant is pleading the wrong statute of limitations. Specifically, the plaintiff asserts that the defendant is pleading a three year statute of limitations, when in fact, the plaintiff has alleged a breach of a written contract, and, thus, its claims are subject to the six year statute of limitations contained within General Statutes § 52-576.
General Statutes § 52-576 (a) states in relevant part that "[n]o action . . . on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues. . . ."
The defendant filed a memorandum in opposition to the motion to strike on March 1, 2004. The defendant argues that unjust enrichment is a proper special defense under Connecticut law and that its statute of limitations special defense is properly pleaded, because the defendant intends to show that the fees the carriers paid to reimburse it for the costs of constructing the block house do not constitute `revenue' and are not governed by the rent provision in the lease. Both parties presented their positions at oral argument on March 4, 2004.
DISCUSSION
"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). "A motion to strike challenges the legal sufficiency of a pleading. . . ." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. . . . 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 Hill Road, LLC, 64 Conn. App. 9, 13, 779 A.2d 198 (2001).
UNJUST ENRICHMENT
In its first special defense, the defendant asserts that if the plaintiff is given fifty percent of the construction reimbursement fee, the plaintiff will be unjustly enriched because the plaintiff uses the block house for free, and the plaintiff did not contribute, financially or otherwise, to the construction of the block house. "Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered. . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy." (Internal quotation marks omitted.) Fitzpatrick v. Scalzi, 72 Conn. App. 779, 786, 806 A.2d 593 (2002).
The plaintiff moves to strike this special defense on the ground that unjust enrichment is not a recognized special defense under Connecticut law. The defendant argues in opposition that the Supreme Court has recognized the special defense of unjust enrichment. The defendant also asserts that unjust enrichment is appropriately asserted as a special defense, for it meets the defined purpose of a special defense, which is to plead facts consistent with the facts alleged in the complaint, but which show that the plaintiff has no cause of action. The Court concludes that the plaintiff's position is more persuasive and the motion to strike the special defense of unjust enrichment is hereby granted.
The defendant contends that the Supreme Court has recognized unjust enrichment as a special defense, and therefore, it is a recognized special defense under Connecticut law. The defendant cites New York Annual Conference v. Fisher, 182 Conn. 272, 438 A.2d 62 (1980) and Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 686 A.2d 481 (1996) as authority for this proposition. The Supreme Court was not actually called on to address the issue of whether unjust enrichment is appropriately pleaded as a special defense in either of those cases, however. In New York Annual Conference v. Fisher, supra, 182 Conn. 274, the plaintiffs appealed the trial court's grant of declaratory judgment for the defendants and the defendants cross appealed the trial court's ruling on the ground that the court erred in not addressing their special defenses of waiver, estoppel, unjust enrichment and unclean hands. The Supreme Court determined that the case had to be remanded because "[e]stoppel, waiver, unjust enrichment and unclean hands are all defenses which depend upon questions of fact that must be determined, in the first instance, by the trial court." Id., 300. The expediency of pleading each of the foregoing defenses as a special defense was not at issue in the case, however, so the Supreme Court did not address whether unjust enrichment is properly claimed as a special defense.
In Bauer v. Waste Management of Connecticut, Inc., supra, 239 Conn. 520, 521, the Supreme Court addressed the defendant's argument that the trial court abused its discretion by not permitting the defendant to amend its answer to include special defenses of unclean hands and unjust enrichment. Although the court ultimately found that the trial court's refusal to allow the amendment was harmless, the Supreme Court did determine that the trial court erred in not permitting the defendant to add the special defenses because they were based on facts that took place subsequent to the first trial in May, 1993, and "new facts that have occurred since the original trial and that relate to the balance of equities are relevant and material to the determination of injunctive relief." Id., 525. This finding of error, however, cannot be read as an endorsement by the Supreme Court of unjust enrichment as a special defense, for the court was only assessing the relevance of the new facts upon which the special defense was based, and never actually addressed whether unjust enrichment is an appropriate special defense. Thus, in the present case, the defendant's contention that the Supreme Court has recognized unjust enrichment as a special defense is unpersuasive, as the court has never evaluated the issue on its merits.
Decisions of the superior court have addressed this precise issue, however, and have determined that the special defense of unjust enrichment "is without merit because unjust enrichment is a cause of action which permits a recovery; it is not a defense which precludes recovery by another party. Unjust enrichment is a doctrine which allows the restoration to a party of something of which he was deprived." Thibault v. Buckmiller, Superior Court, judicial district of Waterbury, Housing Session, Docket No. SPWA 90 0708503 (December 31, 1991, Vertefeuille, J.); see also Avon Financial v. Dolan, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV 96 0473093 (October 31, 1996, Arena J.). Thus, the defendant's contention that unjust enrichment demonstrates that the plaintiff has no cause of action, as a special defense is required to do, is incorrect. "Unjust enrichment is viable as a counterclaim, but it is improper when asserted as a special defense." (Internal quotation marks omitted.) Republic Credit Corp. v. McCarty, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 990175412 (October 5, 2000, D'Andrea, J.). This Court adapts the reasoning of those decisions of the superior court that have addressed the issue and grants the plaintiff's motion to strike the special defense of unjust enrichment.
STATUTE OF LIMITATIONS
The plaintiff argues that the defendant's second special defense should be stricken because the plaintiff's complaint states a cause of action for breach of a written contract, for which a six year statute of limitation applies, while the defendant asserts in its special defense that the plaintiff's claim is barred by the three year statute of limitations applicable to oral contracts. The defendant, on the other hand, argues that the defense should not be stricken because, although the plaintiff is claiming a breach of a written agreement, the defendant intends to show that a separate oral agreement exists which governs the plaintiff's complaint. The Court concludes that the motion to strike this special defense should be granted.
As stated before, "[t]he 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, supra, 72 Conn. App. 705. The defendant has not done so in this case. The special defense states that in 1999, the parties orally entered into a contract concerning the plaintiff's use of the block house, that the parties have continuing duties under this oral contract, and that the plaintiff's claim is barred, therefore, by the three year statute of limitations applicable to executory contracts.
The defendant contends in its memorandum in opposition to the motion to strike that this special defense is consistent with the allegations of the complaint because the defendant intends to show that the construction cost reimbursements that are the subject of the plaintiff's complaint are actually governed by a separate oral agreement, on which the statute of limitations has already run. In actuality, however, the defendant alleged nothing at all concerning the construction cost reimbursements in its second special defense of statute of limitations. The defendant summarily concluded that the applicable statute of limitations is the three year period applicable to executory agreements, without alleging any facts to show that the construction cost reimbursements were covered by this alleged oral agreement, rather than by the terms of the lease agreement, as asserted by the plaintiff.
Taking the allegations in the light most favorable to sustaining the special defense, the defendant has not alleged any facts consistent with the allegations of the complaint which demonstrate that the plaintiff has no cause of action. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. The fact that there may be a separate oral agreement under which the parties have continuing obligations does not indicate in any way that the plaintiff has no claim for breach of the terms of the lease agreement, as the plaintiff has alleged in its complaint. The motion to strike the statute of limitations special defense is hereby granted.
The defendant's contention that granting the motion to strike will effectively serve to interpret the term "revenue" at a preliminary stage of the proceedings is inaccurate. The fact that the special defenses of unjust enrichment and statute of limitations are stricken in no way prevents the defendant from arguing that the construction cost reimbursements do not constitute revenue under the terms of the lease agreement. In fact, the defendant filed a counterclaim against the plaintiff and, in count two, the defendant seeks a declaratory judgment that the construction reimbursement fees do not constitute "revenue" as the term is used in paragraph 4(c) of the lease agreement.
By the Court,
COCCO, J.