DocketNumber: No. 37 59 71
Citation Numbers: 1992 Conn. Super. Ct. 70
Judges: HENNESSEY, J.
Filed Date: 1/30/1992
Status: Non-Precedential
Modified Date: 4/17/2021
On March 14, 1991, the defendant filed a motion to strike the complaint on the ground that it is legally insufficient because it does not allege the existence of a written contract which, the defendant argues, is required by the Home Improvement Act (Act), General Statutes
On May 22, 1991, the defendant filed a memorandum of law in support of his motion to strike. The plaintiff filed an amended memorandum in opposition dated July 1, 1991. The motion was argued before the court at short calendar on November 25, 1991.
I. Late Memorandum
A motion to strike "must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Practice Book 155; see also Practice Book 204. Although the defendant in this case failed to file an accompanying memorandum of law at the same time as he filed the motion to strike, the defendant did file his memorandum long before the motion was argued at short calendar and the plaintiff filed an amended memorandum in opposition addressed solely to the merits of the motion in response to the defendant's memorandum. Therefore the court will address the merits of the motion to strike.
II. Merits of Motion to Strike
In deciding upon a motion to strike, a trial court must take the facts to be those alleged in the complaint, and cannot be aided by the assumption of any facts not therein contained. Liljedahl Bros., Inc. v. Grigsby,
The only ground specified in the motion to strike itself is that the case is governed by the Home Improvement Act, that the Act requires that a home improvement contract be in writing, and that the plaintiff's "complaint" fails to allege the existence of such a written contract. However, the defendant's memorandum of law contains specific arguments addressing the legal sufficiency of each of the three counts of the complaint individually. Since the motion to strike itself CT Page 72 is addressed to the entire complaint and does not seek to strike each count individually, the defendant's motion to strike must fail if any count of the complaint is legally sufficient. See Doyle, supra.
Both the defendant's memorandum in support of his motion to strike and the plaintiff's memoranda in opposition impart facts which are not alleged in the complaint. To the extent that the memoranda are both "speaking," the court cannot consider those facts which are not alleged in the complaint in deciding this motion. See Liljedahl Bros., Inc., supra, 348-49. Connecticut State Oil Co. v. Carbone,
The Home Improvement Act states that "[n]o home improvement contract shall be valid or enforceable against the owner" unless, among other required particulars, it is in writing and signed by the owner. General Statutes
The complaint, construed in the light most favorable to the plaintiff, is silent on the issue of whether the contract is oral or in writing. The complaint is also inconclusive as to the additional requirements of the Home Improvement Act.
Although a motion to strike may be proper where the allegations of the complaint show dispositively that a case is governed by the Act and that the Act's provisions have not been met, see Liljedahl Bros., Inc. supra, (complaint alleged an "oral contract"); Skovron v. Belgrail Corp.,
Since the complaint is silent regarding the applicability of the Act, a motion to strike grounded upon CT Page 73 noncompliance with the Act is inappropriate. "The [A]ct should. . . [be] specially alleged as a defense" by the defendant. See Sydney, supra, 586. Accordingly, the motion to strike the entire complaint on the ground that the plaintiff failed to comply with the provisions of the Home Improvement Act is denied.
M. HENNESSEY, J.
Bernier v. National Fence Co. , 176 Conn. 622 ( 1979 )
Alarm Applications Co. v. Simsbury Volunteer Fire Co. , 179 Conn. 541 ( 1980 )
Harvey v. Williams , 319 Md. 238 ( 1990 )
Connecticut State Oil Co. v. Carbone , 36 Conn. Super. Ct. 181 ( 1979 )
Doyle v. a P Realty Corporation , 36 Conn. Super. Ct. 126 ( 1980 )