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BECK AND BECK, LLC v. JAMES T. COSTELLO

(AC 36225)

Beach, Sheldon and Harper, Js.

Argued May 12—officially released August 11, 2015

(Appeal from Superior Court, judicial district of

Fairfield, Levin, J. [motion to strike]; Sommer, J.

[motion to strike.])

James T. Costello, self-represented, the appellant

(defendant).
Lauren R. Masotta, for the appellees (plaintiff and

counterclaim defendant).
Opinion

SHELDON, J. In this action arising from the legal

representation of the defendant, James T. Costello, by

the plaintiff, Beck & Beck, LLC, the defendant appeals

from the judgment of the trial court striking his counterclaims against the plaintiff law firm and its principal,

Kenneth A. Beck.1 We reverse the judgment of the trial

court on the defendant’s counterclaim and remand the

matter for further proceedings.2

On August 30, 2011, the plaintiff filed this action in

small claims court against the defendant seeking to

recover unpaid legal fees for its prior representation

of the defendant in a receivership action against the

defendant’s condominium association. The defendant

filed a motion to transfer this case to the regular docket

of the Superior Court pursuant to Practice Book § 24-

21. He also filed an answer, a special defense, and a

four count counterclaim alleging breach of contract,

breach of the implied covenant of good faith and fair

dealing, professional malpractice, and violation of the

Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

After the case was transferred, the plaintiff filed a

motion to strike the defendant’s entire counterclaim on

the ground that the defendant’s claims were legally

insufficient because he ‘‘[could not] possibly establish

proximate cause or damages . . . .’’ The trial court,

Levin, J., granted the plaintiff’s motion to strike.

The defendant thereafter moved to cite in the plaintiff’s principal, Attorney Kenneth A. Beck, individually,

as a counterclaim defendant. After the court granted

the defendant’s motion to cite in Beck, the defendant

filed an amended answer, a special defense, and a counterclaim against the plaintiff, and a parallel cross claim

against Attorney Beck.3 The amended counterclaim and

parallel cross claim pleaded claims that were essentially

identical to those pleaded in the defendant’s stricken

counterclaim. The plaintiff thereafter moved to strike

the defendant’s amended counterclaim on two grounds:

first, that the defendant could not prevail on any claim

set forth in his counterclaim because he could not prove

the causation or damages elements of any such claim;

and second, that ‘‘[t]he counterclaims and cross claims

mirror the previously stricken counterclaims.’’

The court, Sommer, J., granted the plaintiff’s motion

to strike in a memorandum of decision originally filed

on July 9, 2013, and later corrected on September 27,

2013. The court determined that the defendant had

‘‘failed to submit a justiciable claim to the court, thus

depriving the court of jurisdiction, that is, the authority

to decide those claims on their merits, because it lacks

jurisdiction as a matter of law.’’ The court rendered

judgment on the counterclaim and cross claim on October 7, 2013, and this appeal followed.4
‘‘Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no

factual findings by the trial court, our review of the

court’s ruling . . . is plenary. We 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 sustaining its legal sufficiency. . . . Thus,

[i]f facts provable in the [pleading] would support a

cause of action, the motion to strike must be denied.

. . . Moreover, we note that [w]hat is necessarily

implied [in an allegation] need not be expressly alleged.

. . . It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . 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 narrowly and technically.’’ (Internal

quotation marks omitted.) Violano v. Fernandez, 280

Conn. 310, 317–18, 907 A.2d 1188 (2006). ‘‘The trial court

may not seek beyond the [challenged pleading] for facts

not alleged, or necessarily implied, and this court will

not.’’ Fortini v. New England Log Homes, Inc., 4 Conn.

App. 132, 135, 492 A.2d 545, cert. dismissed, 197 Conn.

801, 495 A.2d 280 (1985).

In the court’s memorandum of decision granting the

plaintiff’s motion to strike the defendant’s counterclaim, the court referred to and relied on ‘‘the record

in the underlying case,’’ presumably the receivership

action. In so doing, it strayed beyond the permissible

bounds of its authority in assessing the legal sufficiency

of a claim on a motion to strike.5 The plaintiff agreed

in its argument before this court that the trial court

had improperly relied upon evidence outside the four

corners of the defendant’s counterclaim in determining

the legal sufficiency of that pleading. Because the court

relied on facts that were not contained in the defendant’s counterclaim in assessing its legal sufficiency,

its judgment striking that pleading cannot stand.6

The judgment is reversed and the case is remanded

for further proceedings according to law.

In this opinion the other judges concurred.

1 Although Beck signed the motion to strike on behalf of his law firm as

the plaintiff in this action, he did not move to strike the counterclaim against

him individually. The court’s memorandum of decision did not mention

Beck at all in his capacity as a counterclaim defendant, but purported to

dispose of the defendant’s counterclaim in its entirety. When the court

subsequently rendered judgment on the motion to strike, the motion for

judgment thereon, which was filed by the defendant, represented that the

court had stricken his counterclaim in its entirety. Thus, although it would

appear from the record, prior to the filing of the defendant’s motion for

judgment, that his counterclaim against Beck individually remained pending,

it is apparent that the parties and the court presumed otherwise. This confusion is representative of the tortuous procedural history of this case, the

complete recitation of which is not necessary for our resolution of the

defendant’s claim on appeal. For purposes of this appeal, we will assume

that the counterclaim was stricken in its entirety and that the defendant is

appealing the judgment rendered by the court in favor of the plaintiff and

Beck individually, both as counterclaim defendants.
2 After the court rendered judgment on the defendant’s counterclaim, the

case proceeded to trial on the plaintiff’s complaint. Following a trial to the

court, the court rendered judgment in favor of the plaintiff in the amount

of $750. The court declined the plaintiff’s request for attorney’s fees pursuant

to General Statutes § 52-251a. In its brief to this court, the plaintiff contends

that it is entitled to said attorney’s fees. Because the plaintiff failed to appeal

from the court’s judgment in this regard, that claim is not properly before

us. The defendant likewise has not challenged the court’s judgment on the

plaintiff’s complaint.

3 The cross claim against Beck individually is included in the defendant’s

counterclaim. For ease of reference, we refer to the entire pleading as the

defendant’s counterclaim.

4 The defendant also claims that the trial court improperly granted this

initial motion to strike his counterclaim. He contends that his counterclaim

was legally sufficient and that he was denied his right to a hearing on that

motion to strike. He previously had filed an appeal of the court’s initial

striking of his counterclaim, but that appeal was dismissed for lack of a

final judgment. As explained herein, the defendant thereafter amended his

counterclaim. It would thus appear, on the record before us, that by filing

an amended pleading, the defendant waived his right to challenge the striking

of his initial counterclaim. See Parker v. Ginsburg Development CT, LLC,

85 Conn. App. 777, 780, 859 A.2d 46 (2004). We leave the question of what

effect, if any, the striking of that counterclaim had on the amended counterclaim to the trial court for resolution on remand.

5 For example, the trial court found the following: ‘‘The action underlying

this case was an application by the defendant for appointment of a receiver

for a condominium association. By way of background, the plaintiff filed a

motion in that case which the court heard on October 22, 2010, and denied.

Thereafter, the defendant terminated the plaintiff’s services and filed a pro

se appearance on January 3, 2011. He then filed three successive motions

for order. The court scheduled hearings on those motions for August 29,

2011, and September 6, 2011. Pursuant to Practice Book [§] 14-3, the court

dismissed the defendant’s claim for failure to prosecute. The defendant has

not presented any facts which would support a finding by this court that

any court order issued in the underlying action for appointment of a receiver

was the result of the plaintiff’s actions. The defendant’s own conduct, or

failure to act, not anything attributable to the plaintiff . . . resulted in

dismissal. The action for appointment of receivership remained pending for

almost a year after[the defendant] terminated representation by the plaintiff.

There is no indication that the dismissal was related in any way to the

plaintiff’s action. In fact, the record establishes that the defendant’s own

actions or failure to act while representing himself were the cause of the

dismissal. Furthermore, even upon dismissal of his case, the defendant was

not without a remedy. Connecticut law provides a statutory remedy to

reinstate a dismissal case, the accidental failure of suit statute [General

Statutes] § 52-592. On October 22, 2010, Judge Tyma stated that the defendant

could bring another motion for the appointment of receiver, and that he

should consider retaining an expert. Based on the record in this case, the

defendant cannot claim he was harmed by the court’s decision on October

22, 2010. . . .

* * *

‘‘According to the record in the underlying case, at the time Judge Tyma

denied the motion for appointment of receiver on October 22, 2010, he told

the defendant he could bring another motion for appointment of receiver

and if he did so, [he] should consider retaining an expert. The defendant

was not damaged, nor was he precluded from asserting his rights or prosecuting his claim as a result of the October 22, 2010 court order. The defendant

chose not to pursue his claim or in any way protect his own rights.’’

The court determined, on the bases of these facts, inter alia, that there

was no controversy between the plaintiff and the defendant, and that the

defendant’s claim was thus not justiciable. None of these facts are ascertainable from the defendant’s counterclaim.

6 Because we reverse the trial court’s judgment on the one ground raised

by the defendant, we need not address any other possible infirmities with

the court’s decision.