Town of Plainville v. Almost Home Animal Rescue & Shelter, Inc. ( 2018 )

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TOWN OF PLAINVILLE ET AL. v. ALMOST HOME
ANIMAL RESCUE AND SHELTER, INC.
(AC 39731)
Sheldon, Prescott and Elgo, Js.
Syllabus
The plaintiff town and its animal control officer, W, sought to recover
damages for negligence per se and unjust enrichment from the defendant
company in connection with the defendant’s operation of an animal
rescue facility in the town. After investigating complaints that animals
at the defendant’s facility were being abused and neglected, W, pursuant
to a criminal search and seizure warrant, seized numerous animals from
the facility. The town thereafter paid for the animals’ medical care
and provided them with food, water and shelter. The plaintiffs then
commenced an action against the defendant by filing a petition in the
Superior Court pursuant to statute (§ 22-329a). The petition sought an
order determining the animal’s legal status and requiring the defendant
to reimburse the town for its expenses in caring for the seized animals
in accordance with § 22-329a (h), which provides a direct remedy for
a municipality seeking reimbursement for care that it provides to animals
adjudicated as abused or neglected. Prior to trial, the parties reached
a stipulated agreement that provided for the adoption of the animals
but did not contain a provision addressing reimbursement of the town’s
expenses. The trial court accepted the stipulated agreement, made it
an order of the court and dismissed the action, indicating on the record
that because the parties had agreed not to proceed with a hearing on
the merits, it made no findings regarding the defendant’s alleged abuse
or neglect of the animals, and, therefore, it lacked the authority to order
the defendant to reimburse the plaintiffs for any costs incurred in caring
for the animals. Thereafter, the plaintiffs commenced the present action,
alleging negligence per se in count one of their complaint based on the
defendant’s alleged violation of the statute (§ 53-247 [a]) pertaining to
the care of impounded or confined animals, and unjust enrichment in
count two based on the defendant’s failure to reimburse the town for
its expenditures in caring for the seized animals. The defendant filed a
motion to strike the complaint, arguing that neither count stated a claim
on which relief could be granted. The trial court granted the motion
and, subsequently, granted the defendant’s motion for judgment and
rendered judgment in favor of the defendant. On the plaintiffs’ appeal
to this court, held:
1. The plaintiffs could not prevail on their claim that the trial court applied
an improper legal standard in ruling on the defendant’s motion to strike;
the trial court set forth the appropriate standard of review in its memo-
randum of decision, and, in the absence of some clear indication to the
contrary, it was presumed that the court properly applied that standard,
and the plaintiffs’ claim that the trial court engaged in impermissible
fact-finding rather than limiting its review to those facts alleged in the
pleadings was unavailing, as the findings referenced by the plaintiffs
were actually legal conclusions germane to the trial court’s evaluation
of the legal sufficiency of the plaintiffs’ complaint.
2. The trial court properly struck count one of the complaint alleging negli-
gence per se, that court having correctly determined that the plaintiffs
were not among the intended beneficiaries of § 53-247 (a), which was
a sufficient basis on which to strike that count: the trial court properly
reviewed § 53-247 (a), as it was the asserted basis of the negligence per
se count, and because that statute was intended only to protect abused
or neglected animals and to criminalize misconduct by their caretakers
and the plaintiffs were not abused animals or the perpetrators of criminal
conduct against animals, the plaintiffs fell outside of any class protected
by or directly affected by the statute, and, therefore, as a matter of law,
they could not rely on § 53-247 (a) as a basis for maintaining a negligence
per se action against the defendant; moreover, the plaintiffs’ argument
that they did not have notice that the trial court would engage in an
analysis of whether they were part of a protected class under the statute
in considering whether to grant the motion to strike was belied by the
fact that the defendant had raised that issue in its memorandum of law
in support of its motion to strike.
3. The trial court properly struck count two of the complaint, as the plaintiffs
could not avail themselves of an action sounding in unjust enrichment
in light of the adequate statutory remedy available to them under § 22-
329a: the plaintiffs had filed an action in accordance with § 22-329a
but voluntarily agreed to settle that action without the court having
adjudicated the animals abused or neglected, and the plaintiffs, by choos-
ing to proceed in that manner, were precluded from seeking an order
by the court directing the defendant to reimburse them pursuant to the
statutory scheme, and, therefore, it was the plaintiffs’ own actions that
prevented them from recovering in accordance with the available statu-
tory remedy, and they advanced no argument that the statutory scheme
for reimbursement provided for in § 22-329a (h) was in any manner
inadequate; moreover, there was no merit to the plaintiffs’ claim that
the defendant had stipulated in the prior action that they were entitled
to seek damages at a later time without regard to § 22-329a, as the
parties’ stipulation contained no express agreement by the defendant
regarding the plaintiffs’ right to pursue other legal actions against it,
and although the trial court had made a statement indicating its under-
standing that the plaintiffs were not waiving their right to pursue reim-
bursement by way of a separate action, this court construed that
statement as simply an indication that the plaintiffs could attempt to
pursue other legally appropriate actions, if any existed.
Argued January 23—officially released May 15, 2018
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
Britain, where the court, Swienton, J., granted the
defendant’s motion to strike the complaint; thereafter,
the court granted the defendant’s motion for judgment
and rendered judgment for the defendant, from which
the plaintiffs appealed to this court. Affirmed.
Jonathan D. Chomick, for the appellants (plaintiffs).
Taryn D. Martin, with whom, on the brief, was Robert
A. Ziegler, for the appellee (defendant).
Opinion
PRESCOTT, J. The plaintiffs, the town of Plainville
(town) and Donna Weinhofer, the town’s animal control
officer, appeal from the judgment of the trial court
rendered in favor of the defendant, Almost Home Ani-
mal Rescue and Shelter, Inc., following the court’s
granting of the defendant’s motion to strike both counts
of the plaintiffs’ two count complaint.1 Count one of
the complaint sounded in negligence per se and alleged
that the defendant, which operates an animal rescue
facility, had failed to care for animals in its custody in
violation of General Statutes § 53-247 (a), and that this
violation caused the plaintiffs to suffer damages,
namely, costs that the town incurred for medical care,
shelter, food, and water for the affected animals. Count
two sounded in unjust enrichment and was premised
on the defendant’s failure to reimburse the town for its
expenditures in caring for the seized animals.
On appeal, the plaintiffs claim that the trial court
improperly (1) applied an incorrect legal standard in
deciding the motion to strike; (2) struck count one of the
complaint on the bases that § 53-247 did not establish
a duty or standard of care for purposes of maintaining
a negligence per se action and that the plaintiffs are
not among the class of persons protected by § 53-247;
and (3) struck count two of the complaint on the basis
that General Statutes § 22-329a (h) provides the exclu-
sive remedy for the damages alleged by the plaintiffs,
thus precluding an action for unjust enrichment, and
did so without considering and addressing the plaintiffs’
argument that the defendant had stipulated in a prior
action that the plaintiffs were entitled to seek damages
without regard to § 22-329a. We disagree and affirm the
judgment of the court.
The following facts, taken from the complaint, and
procedural history are relevant to our consideration of
the plaintiffs’ claims. The plaintiffs received numerous
complaints between July and November, 2015, that ani-
mals at the defendant’s rescue facility were being
abused and neglected. Weinhofer and an assistant ani-
mal control officer investigated the complaints, visiting
the facility on several different dates. They observed
that the facility was filthy and smelled overwhelmingly
of feces and urine. Many cats and dogs were being kept
in cages for extended periods under unsanitary and
unhealthy conditions, and without proper access to
food and water. Many animals could not stand up or
turn around in their cages. The animals generally
appeared to be in poor health and in obvious need of
medical care.
Pursuant to a signed criminal search and seizure war-
rant, Weinhofer seized twenty-three cats, twenty dogs,
one rabbit and one hamster from the defendant on
December 1, 2015. The animals were evaluated by veter-
inarians. The majority of the animals had matted and
unkempt coats, fleas, or other medical conditions, some
requiring hospitalization. The town, in addition to pay-
ing for the animals’ medical care, provided them with
food, water, and shelter at the town’s expense.
On December 17, 2015, the plaintiffs commenced an
action in the Superior Court by verified petition in
accordance with § 22-329a.2 The petition sought an
order determining the legal status of the animals in
the town’s possession and requiring the defendant to
reimburse the town for its expenses in caring for the
seized animals. See Plainville v. Almost Home Animal
Rescue & Shelter, Inc., Superior Court, judicial district
of New Britain, CV-15-6031669-S.3 Prior to a trial on
the petition, however, the parties reached a stipulated
agreement regarding custody of the seized animals,
which was discussed at a hearing on January 22, 2016.
The stipulation was filed with the court on February
2, 2016. The agreement provided for the adoption of
the seized animals by a number of interested third par-
ties but contained no provision addressing reimburse-
ment by the defendant to the town. On the day it was
filed, the court, Abrams, J., accepted the stipulated
agreement, made it an order of the court, and dismissed
the action. As the court indicated on the record at the
January 22, 2016 hearing, because the parties had
agreed not to proceed with a hearing on the merits of
the plaintiffs’ petition, the court made no findings, either
express or implied, that the seized animals had been
abused or neglected by the defendant. Accordingly, it
lacked the authority to order the defendant to reimburse
the plaintiffs for any costs incurred in treating or board-
ing the seized animals.
On February 8, 2016, the plaintiffs commenced this
action. Both counts of the two count complaint sought
recovery from the defendant for expenses incurred by
the town in caring for the seized animals. As previously
indicated, count one advanced a theory of common-law
negligence based on the defendant’s alleged violation
of § 53-247 (a). Count two alleged that the defendant had
been unjustly enriched as a result of the unreimbursed
expenditures by the town in caring for the seized
animals.
On June 14, 2016, the defendant filed a motion to
strike both counts of the complaint, arguing that each
count failed to state a claim upon which relief could
be granted. With respect to count one sounding in negli-
gence per se, the defendant argued that the plaintiffs
could not establish liability because the plaintiffs were
not within the class of persons that § 53-247 (a) was
intended to protect, nor had they suffered the type of
injury the statute was designed to prevent. With respect
to the unjust enrichment allegations in count two, the
defendant argued that § 22-329a (h) provides the town
an adequate remedy at law, and, therefore, the plaintiffs
could not recover under the common-law principle of
unjust enrichment.
The plaintiffs filed a memorandum of law in opposi-
tion to the motion to strike in which they argued that
§ 53-247 (a) establishes a standard of care that applied
to the defendant and that a violation of the statute
constitutes negligence per se. The plaintiffs also argued
that it would be improper for the court to decide by
way of a motion to strike whether the plaintiffs are
within the class of persons protected by the statute.
With respect to the unjust enrichment count, the plain-
tiffs argued that the stipulated agreement that led to the
dismissal of their previous action against the defendant
included an understanding that the plaintiffs were not
waiving any right to seek damages in a separate subse-
quent legal action.4
The court, Swienton, J., heard argument on the
motion to strike on August 8, 2016. On August 18, 2016,
the court issued a memorandum of decision granting
the motion to strike as to both counts. With respect to
count one, the court concluded that § 53-247 ‘‘fails to
establish any kind of duty or standard of care, but
instead provides for criminal penalties for violation of
said statute.’’ The court explained further that § 53-247
does not impose liability on a person who has engaged
in animal cruelty to another person, entity, government,
or the general public. Finally, the court indicated that
to prevail on a claim of statutory negligence or negli-
gence per se, the plaintiffs needed to demonstrate that
they fell within the class of persons protected by the
statute and that they were unable to do so in this case.
Regarding the second count, the court reasoned that
§ 22-329a (h) provides the exclusive remedy for the
damages sought by the town and recovery pursuant to
the equitable doctrine of unjust enrichment is available
only if there is no adequate remedy at law.
The plaintiffs did not replead the stricken counts. On
September 6, 2016, the defendant filed a motion for
judgment on those counts in accordance with Practice
Book § 10-44. The court granted the motion on October
3, 2016, and rendered judgment in favor of the defen-
dant. This appeal followed.
I
The plaintiffs first claim that the court applied an
improper legal standard in ruling on the defendant’s
motion to strike. Specifically, the plaintiffs argue that
the court’s decision rested on three factual conclusions
that required the court to impermissibly look beyond
the pleadings themselves. We disagree.
Whether the court applied the proper legal standard
in ruling on the motion to strike presents a question
of law over which we exercise plenary review. See
Robinson v. Robinson, 103 Conn. App. 69, 74, 927 A.2d
364 (2007) (plaintiffs’ arguments concerning legal stan-
dard applied by court entitled to plenary review). The
legal standard applicable to a motion to strike is well
settled. ‘‘The purpose of a motion to strike is to contest
. . . the legal sufficiency of the allegations of any com-
plaint . . . to state a claim upon which relief can be
granted. . . . A motion to strike challenges the legal
sufficiency of a pleading, and, consequently, requires
no factual findings by the trial court. . . . [The court
takes] the facts to be those alleged in the complaint
. . . and [construes] the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . Thus,
[i]f facts provable in the complaint would support a
cause of action, the motion to strike must be denied.’’
(Citations omitted; internal quotation marks omitted.)
Fort Trumbull Conservancy, LLC v. Alves, 262 Conn.
480, 498, 815 A.2d 1188 (2003). ‘‘Moreover . . . [w]hat
is necessarily implied [in an allegation] need not be
expressly alleged. . . . It is fundamental that in
determining the sufficiency of a complaint challenged
by a defendant’s motion to strike, all well-pleaded facts
and those facts necessarily implied from the allegations
are taken as admitted. . . . Indeed, pleadings must be
construed broadly and realistically, rather than nar-
rowly and technically.’’ (Internal quotation marks omit-
ted.) Connecticut Coalition for Justice in Education
Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d
206 (2010).
The plaintiffs assert in their appellate brief, without
any analysis, that the court ‘‘exceed[ed] its authority
when ruling on [the defendant’s] motion to strike’’
because the court made the following three ‘‘findings’’:
(1) ‘‘[§] 53-247 fails to establish or provide a duty or
standard of care’’; (2) the plaintiffs are ‘‘not within the
class of ‘persons’ for whose benefit [§] 53-247 was
intended to benefit and protect’’; and (3) ‘‘[§] 22-329a
(h) provides an exclusive remedy for the type of injuries
alleged, and, therefore, the [plaintiffs] cannot allege a
theory of unjust enrichment.’’
We first note that the court set forth the appropriate
standard of review in its memorandum of decision.
Absent some clear indication to the contrary, we pre-
sume that the court properly applied that standard. See
Saunders v. Firtel, 293 Conn. 515, 532 n.17, 978 A.2d
487 (2009) (declining to assume court applied different
legal standard from that cited in decision). Further-
more, to the extent that the plaintiffs argue that the
court somehow engaged in impermissible fact-finding
rather than limiting its review to those facts alleged in
the pleadings, we are not persuaded. What the plaintiffs
refer to in their brief as the court’s ‘‘findings’’ are actu-
ally legal conclusions germane to the court’s evaluation
of the legal sufficiency of the complaint. See discussion
in parts II and III of this opinion. To the extent that the
plaintiffs intended to raise a different claim, it is not
readily discernible from their brief, and, therefore, we
decline to engage in further review on the basis of an
inadequate brief. See Connecticut Light & Power Co.
v. Dept. of Public Utility Control, 266 Conn. 108, 120,
830 A.2d 1121 (2003) (‘‘[a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly’’
[internal quotation marks omitted]).
II
The plaintiffs next claim that the court improperly
struck count one of the complaint alleging negligence
per se. The plaintiff advances two arguments in support
of this claim. First, according to the plaintiffs, the court
incorrectly determined that § 53-247 did not establish
a duty or standard of care for purposes of establishing
negligence per se. Second, the plaintiffs assert that the
court improperly determined that the plaintiffs were
not among the class of persons protected by § 53-247,
an inquiry that the plaintiffs maintain was not properly
considered by the court in deciding the legal sufficiency
of count one. We conclude that the court properly deter-
mined that the plaintiffs were not among the intended
beneficiaries of § 53-247 and that that determination
alone was a sufficient basis on which to strike count
one. Accordingly, we do not reach the remainder of the
plaintiffs’ claim.
Because our review of a trial court’s ruling on a
motion to strike is plenary; see Himmelstein v. Wind-
sor, 116 Conn. App. 28, 33, 974 A.2d 820 (2009), aff’d,
304 Conn. 298, 39 A.3d 1065 (2012); we apply the same
standard as the trial court. Having set forth that stan-
dard in part I of this opinion, we do not repeat it again
here. In sum, ‘‘[w]e take the facts to be those alleged
in the [pleading] that has been stricken and we construe
the [pleading] in the manner most favorable to sus-
taining its legal sufficiency.’’ (Internal quotation marks
omitted.) Id.It is axiomatic that a cause of action sounding in
negligence per se is but a form of the common-law tort
of negligence. See D. Wright et al., Connecticut Law
of Torts (3d. Ed. 1991) § 38, p.71. ‘‘Negligence per se
operates to engraft a particular legislative standard onto
the general standard of care imposed by traditional tort
law principles, i.e., that standard of care to which an
ordinarily prudent person would conform his conduct.
To establish negligence, the jury in a negligence per se
case need not decide whether the defendant acted as
an ordinarily prudent person would have acted under
the circumstances. [It] merely decide[s] whether the
relevant statute or regulation has been violated. If it
has, the defendant was negligent as a matter of law.’’5
(Internal quotation marks omitted.) Considine v.
Waterbury, 279 Conn. 830, 860–61 n.16, 905 A.2d 70(2006). As our Supreme Court reiterated in Duncan v.
Mill Management Co. of Greenwich, Inc., 308 Conn. 1,
60 A.3d 222 (2013), a violation of a statute or regulation
will establish a breach of duty necessary to maintain
an action for negligence per se only if ‘‘(1) the plaintiff
is within the class of persons intended to be protected
by the statute, and (2) the injury is the type of harm
that the statute was intended to prevent.’’ Id., 24, citing
Gore v. People’s Savings Bank, 235 Conn. 360, 375–76,
665 A.2d 1341 (1995). A plaintiff must satisfy both condi-
tions to establish liability as a result of a statutory
violation. Gore v. People’s Savings Bank, supra, 376.
Because a party must satisfy the two part test in
order to maintain an action for negligence per se, it
was entirely proper for the trial court to have reviewed
the statute that the plaintiffs asserted as the basis for
the negligence per se count. Specifically, the court was
obligated to determine whether, as a matter of law,
the plaintiffs had pleaded facts that, if proven, would
demonstrate that they fell within the class of persons
the statute is intended to protect. If not, then the plain-
tiffs failed to state a claim upon which any relief could
be granted and the court properly granted the motion
to strike.
Section § 53-247 (a) provides in relevant part: ‘‘Any
person who . . . having impounded or confined any
animal, fails to give such animal proper care or neglects
to cage . . . or fails to supply any such animal with
wholesome air, food and water . . . or, having charge
or custody of any animal, inflicts cruelty upon it or fails
to provide it with proper food, drink or protection from
the weather . . . shall, for a first offense, be fined not
more than one thousand dollars or imprisoned not more
than one year or both, and for each subsequent offense,
shall be guilty of a class D felony.’’
This court has indicated that § 53-247 ‘‘is intended to
protect all impounded or confined animals from expo-
sure to conditions that risk harming their health or
physical condition . . . .’’ State v. Acker, 160 Conn.
App. 734, 747, 125 A.3d 1057 (2015), cert. denied, 320
Conn. 915, 131 A.3d 750 (2016). The statute criminalizes
a number of acts as constituting cruelty to animals and
provides for the imposition of jail time or fines for any
person who engages in such acts. There is absolutely
no language in the statute, however, that discusses costs
regarding the care of animals subjected to acts of abuse
or neglect or whether violators of § 53-247 have any
obligation to compensate a municipality or other party
if they should provide assistance to the affected ani-
mals. As set forth in part III of this opinion, those issues
are addressed in § 22-329a (h), which provides a direct
remedy for a municipality seeking reimbursement for
care that it provides to animals adjudicated as abused
or neglected.
We conclude, on the basis of our review of the statu-
tory language, that § 53-247 was intended only to protect
abused or neglected animals and to criminalize miscon-
duct by their caretakers. The plaintiffs are not abused
animals or the perpetrators of criminal conduct.
Accordingly, the court properly determined that the
plaintiffs fell outside of any class protected by or
directly affected by the statute. Therefore, as a matter
of law, the plaintiffs could not rely on § 53-247 as a
basis for maintaining a negligence per se action against
the defendant. The plaintiffs have not cited to any spe-
cific language in the statute, other legal authority, or a
factual allegation in the complaint that they contend
could support a finding that they fall within the class
of ‘‘persons’’ the statute was intended to protect.
Furthermore, to the extent that the plaintiffs argue
that they had no notice that the trial court would engage
in this particular analysis in considering whether to
grant the motion to strike, that argument is fully belied
by the fact that the defendant raised this issue in its
memorandum of law in support of the motion to strike.
In sum, we conclude that the court properly granted
the motion to strike count one of the complaint.
III
Finally, the plaintiffs claim that the court improperly
granted the defendant’s motion to strike count two of
the complaint, which sounded in unjust enrichment,
because it incorrectly determined that § 22-329a (h)
provides the exclusive remedy for the damages alleged
by the plaintiffs and failed to consider and address the
plaintiffs’ argument that the defendant had stipulated
in a prior action that the plaintiffs were entitled to
seek damages later without regard to § 22-329a. For the
following reasons, we reject the plaintiffs’ claim.
‘‘The right of recovery for unjust enrichment is equita-
ble, its basis being that in a given situation it is contrary
to equity and good conscience for the defendant to
retain a benefit which has come to him at the expense
of the plaintiff. . . . Unjust enrichment is, consistent
with the principles of equity, a broad and flexible rem-
edy. . . . Plaintiffs seeking recovery for unjust enrich-
ment must prove (1) that the defendants were benefited,
(2) that the defendants unjustly did not pay the plaintiffs
for the benefits, and (3) that the failure of payment was
to the plaintiffs’ detriment.’’ (Citations omitted; internal
quotation marks omitted.) Polverari v. Peatt, 29 Conn.
App. 191, 200–201, 614 A.2d 484, cert. denied, 224 Conn.
913, 617 A.2d 166 (1992). As with other claims for equita-
ble relief, however, an action seeking to recover on a
theory of unjust enrichment is unavailable if there is
an adequate remedy at law. See, e.g., U.S. Fidelity &
Guaranty Co. v. Metropolitan Property & Liability Ins.
Co., 10 Conn. App. 125, 128, 521 A.2d 1048 (plaintiff
not permitted to bypass statutory remedy by seeking
equitable relief unless statutory remedy inadequate),
cert. denied, 203 Conn. 806, 525 A.2d 521 (1987).
Furthermore, if ‘‘a statutory scheme exists for the
recovery of a benefit that is also recoverable at common
law, the common law right may be resorted to only
[if] the statutory procedures are inadequate.’’ National
CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d
1034 (1985). In National CSS, Inc., our Supreme Court
held that an action for unjust enrichment could not be
maintained by a taxpayer seeking a refund of personal
property taxes because there was a statutory procedure
available that was ‘‘more than sufficient in providing
the [taxpayer] a method by which a refund could be
obtained. The [taxpayer] simply failed to take advantage
of this statutory remedy in a timely manner, and now
seeks to circumvent the state taxation scheme by way
of the common law. The [taxpayer]’s failure to show
that the existing remedy could not in itself have afforded
[it] a refund, however, precludes it from now resorting
to the common law.’’ (Footnote omitted.) Id. The plain-
tiffs’ attempts to distinguish the present case from
National CSS, Inc., are unpersuasive.
Section 22-329a provides a remedy for a municipality
seeking to recoup costs expended in caring for animals
it has seized as a result of abuse and neglect. Subsection
(h) of § 22-329a provides: ‘‘If the court finds that the
animal is neglected or cruelly treated, the expenses
incurred by the state or a municipality in providing
proper food, shelter and care to an animal it has taken
custody of under subsection (a) or (b) of this section
and the expenses incurred by any state, municipal or
other public or private agency or person in providing
temporary care and custody pursuant to an order vest-
ing temporary care and custody, calculated at the rate
of fifteen dollars per day per animal or twenty-five dol-
lars per day per animal if the animal is a horse or
other large livestock until the date ownership is vested
pursuant to subdivision (1) of subsection (g) of this
section shall be paid by the owner or owners or person
having responsibility for the care of the animal. In addi-
tion, all veterinary costs and expenses incurred for the
welfare of the animal that are not covered by the per
diem rate shall be paid by the owner or owners or
person having responsibility for the animal.’’
The plaintiffs filed an action in accordance with § 22-
329a but voluntarily agreed to settle that action prior
to the court having adjudicated the animals either
neglected or cruelly treated. The plaintiffs’ choice to
proceed in this manner precluded an order by the court
directing the defendant to reimburse the plaintiffs pur-
suant to the statutory scheme. Accordingly, like the
plaintiff in National CSS, Inc., it was the plaintiffs’
own actions that prevented them from recovering in
accordance with the available statutory remedy. The
plaintiffs advance no argument that the statutory
scheme for reimbursement provided for in § 22-329a
(h) is in any manner inadequate.
The plaintiffs nevertheless argue that ‘‘the defendant
agreed by stipulation that the plaintiffs would not be
precluded from seeking additional avenues of recovery
as part of a stipulation entered into by the parties and
adopted by the court.’’ That argument, however, lacks
merit. Our review of the written stipulation that was
filed and signed by the parties and made an order of the
court contains no express agreement by the defendant
regarding the plaintiffs’ right to pursue other legal
actions against it. The plaintiffs appear to be relying on
the trial court’s statement at the January 22, 2016 hear-
ing that preceded the filing of the stipulation, in which
the court indicated its understanding that the plaintiffs
were not waiving their right to pursue reimbursement
by way of a separate action. The trial court never indi-
cated, however, what type of action it believed the
plaintiffs could pursue, and we construe the court’s
statement as simply an indication that the plaintiffs
could attempt to pursue other legally appropriate
actions, if any existed. Certainly, the trial court had no
authority to sanction the filing of a cause of action that
cannot be pursued as a matter of law. Because the
plaintiffs cannot avail themselves of an action sounding
in unjust enrichment in light of an adequate statutory
remedy, the trial court properly granted the motion to
strike count two of the complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiffs inadvertently included Meda Talley, the defendant’s owner
and operator, in the case caption of their complaint as if she were an
additional party defendant. Both counts of the complaint, however, con-
tained allegations directed at the defendant only and do not mention Talley.
Shortly after the action was commenced, the plaintiffs filed a motion for
correction of the case caption in which they clarified that it was not their
intention to name Talley as a party defendant and that her name was included
only because she was the defendant’s agent for service of process. They
requested that the court order the case caption changed to reflect the actual
identity of the parties. The court granted that motion, and, therefore, we
utilize the corrected case caption.
2
General Statutes § 22-329a (b) authorizes a municipal animal control
officer to ‘‘take physical custody of any animal upon issuance of a warrant
finding probable cause that such animal is neglected or is cruelly treated
. . . .’’ Section 22-329a (c) provides in relevant part that, after taking custody
of an abused animal pursuant to a valid warrant, ‘‘[s]uch officer shall file
with the superior court which has venue over such matter . . . a verified
petition plainly stating such facts of neglect or cruel treatment as to bring
such animal within the jurisdiction of the court and praying for appropriate
action by the court in accordance with the provisions of this section. Upon
the filing of such petition, the court shall cause a summons to be issued
requiring the owner or owners or person having responsibility for the care
of the animal, if known, to appear in court at the time and place named.’’
3
We take judicial notice of the contents of this related file. See McCarthy
v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989) (appellate court may
‘‘take judicial notice of the court files in another suit between the parties’’),
cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).
4
The plaintiffs rely on a statement made by the trial court at the January
22, 2016 hearing. After first clarifying on the record that it had no power
to order the defendant to reimburse the town for any costs incurred because
the parties were not proceeding with a hearing on the merits, the court
stated: ‘‘However, I do also make clear [that], in entering into this agreement,
the town has not waived its right to pursue those costs in a separate action,
but it’s not going to happen here.’’
5
Of course, the plaintiff also must demonstrate the remaining elements
of a negligence cause of action, i.e., causation and damages. See Pickering
v. Aspen Dental Management, Inc., 100 Conn. App. 793, 802, 919 A.2d 520(2007) (‘‘[t]o prove negligence per se, a plaintiff must show that the defendant
breached a duty owed to her and that the breach proximately caused the
plaintiff’s injury’’).