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Docket Number

(AC 27919)

Attorney(S)

Sandra J. Akoury, with whom, on the brief, was Paul J. Pacifico, for the appellants (plaintiffs). Stephen H. Gross, with whom was John K. McDonald, for the appellee (defendant).

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Smart Summary

Summary of Opinion: William A. Stuart et al. v. Richard M. Freiberg (AC 27919)

Factual and Procedural Background

The plaintiffs, William A. Stuart and Jonathan Stuart, are brothers and heirs of Kenneth J. Stuart, Sr. Their brother, Kenneth J. Stuart, Jr. (not a party), served as executor of the decedent's estate, trustee of a living trust and general partner of Stuart Sons, L.P. The plaintiffs previously commenced an action against Stuart, Jr. and others alleging dissipation of estate, trust and partnership assets.

The defendant, Richard M. Freiberg, a certified public accountant, was accountant for the estate, trust, limited partnership and for Stuart, Jr. individually. In the present action the plaintiffs alleged that the defendant knew that Stuart, Jr. was commingling personal funds with estate/trust/partnership funds, that Stuart, Jr. used those assets for personal expenses, that the defendant failed to reflect certain transactions in financial summaries and provided misleading and inaccurate information to the plaintiffs, knowing they would rely on his representations. The complaint asserted causes of action for fraud, negligent misrepresentation, professional malpractice and violation of CUTPA (General Statutes § 42-110a et seq.).

The defendant filed a motion to strike all four counts of the complaint, stating only that the counts were "legally insufficient and fail[ed] to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs" and submitted a memorandum of law in support. The plaintiffs objected, including an objection that the motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41. The trial court granted the motion to strike in full, concluding among other things that the plaintiffs failed to state a fraud claim, there was no privity between the parties, no legally recognized duty of care to the plaintiffs and that professional malpractice was not cognizable under CUTPA. The complaint was struck in its entirety; the plaintiffs did not file a new pleading and the trial court rendered judgment for the defendant. The plaintiffs appealed.

Legal Issues Presented

Whether the defendant's motion to strike complied with Practice Book § 10-41 by separately setting forth each claim of insufficiency and distinctly specifying the reason(s) for each claimed insufficiency.
Whether the plaintiffs pleaded sufficient facts to support their claims (fraud, negligent misrepresentation, professional malpractice, CUTPA).
Whether the complaint alleged the existence of a legally cognizable duty of care owed by the defendant to the plaintiffs.
Whether a professional malpractice claim is cognizable under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

The defendant's motion to strike failed to comply with Practice Book § 10-41 because it did not specify the grounds of insufficiency in the motion itself.
The plaintiffs contended that they pleaded sufficient factual allegations to support their claims of fraud, negligent misrepresentation, professional malpractice and a CUTPA violation.
The plaintiffs raised the procedural/form objections below and preserved them for appeal.

Appellee's (Defendant's) Arguments

The defendant moved to strike all counts as legally insufficient and submitted a supporting memorandum of law explaining the grounds for dismissal.
The motion's stated ground in its text was that the complaint was legally insufficient and failed to allege facts showing defendant's liability; additional reasons were supplied in the memorandum of law accompanying the motion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000)	Standard of review: motion to strike challenges legal sufficiency and requires plenary review (no factual findings required).	The court invoked this precedent to explain that its review of the trial court's grant of a motion to strike is plenary.
Barasso v. Rear Still Hill Road, LLC, 64 Conn. App. 9, 13-14, 779 A.2d 198 (2001)	Holds that a motion to strike that does not specify grounds of insufficiency is fatally defective and that Practice Book §10-42 (requiring memorandum) does not excuse noncompliance with Practice Book §10-41.	The court relied on Barasso to conclude that the defendant's motion was fatally defective because it failed to specify grounds in the motion itself and that the accompanying memorandum did not cure that defect.
Bouchard v. People's Bank, 219 Conn. 465, 468 n.4, 594 A.2d 1 (1991)	Practice Book §10-41 is not jurisdictional; if the opposing party does not object to form, the court may consider a motion despite noncompliance.	The court cited Bouchard to explain that noncompliance with §10-41 does not deprive the court of power to act, but that where an objection is made the defect cannot be overlooked.
Blancato v. Feldspar Corp., 203 Conn. 34, 36 n.3, 522 A.2d 1235 (1987)	Same principle: §10-41 is not jurisdictional such that the court lacks power if the motion is defective.	The court referenced this case alongside others to show the rule about nonjurisdictional nature and the consequence of an objection being made.
Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986)	Also cited for the nonjurisdictional character of Practice Book §10-41.	Used to support the discussion that the court could have considered an unobjected-to defective motion, but the plaintiffs did object here.
Bucon, Inc. v. ARC Icesports Danbury, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-99-0160473-S (February 8, 2001)	Observes that burden is on movant to state grounds in the motion; relying on a supporting memorandum forces opponents and the court to search the memorandum for asserted grounds and risks missing claims.	The court cited this Superior Court decision to support the procedural rationale for strict compliance with §10-41 and to explain practical problems when grounds are only in a memorandum.
Rowe v. Godou, 12 Conn. App. 538, 539, 532 A.2d 978 (1987), rev'd on other grounds, Rowe v. Godou, 209 Conn. 273, 550 A.2d 1073 (1988)	Recognizes an instance in which a motion lacking specificity but which adequately submitted the material issue to the court (with supporting memorandum identifying the statute) was sufficient to comply with Practice Book §10-41.	The court distinguished Rowe, stating that Rowe was an instance where the motion, together with the memorandum, adequately presented the material issue; by contrast, the defendant's motion in the present case did not adequately submit the material issue to the court.

Court's Reasoning and Analysis

The court began with the standard of review: a motion to strike challenges legal sufficiency and is reviewed plenarily (Doe v. Yale University). The dispositive issue on appeal was whether the defendant's motion to strike complied with Practice Book § 10-41, which requires that a motion "shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."

The court observed that the defendant's motion, as filed, contained only general assertions that all counts were "legally insufficient" and that they "fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs." Although the defendant provided detailed reasons in an accompanying memorandum of law, the court concluded that such reasons are not a substitute for specifying the grounds within the motion itself. The court relied on Barasso to state that motions failing to specify grounds are fatally defective and that the requirement of Practice Book §10-41 is not satisfied merely by a supporting memorandum.

The court also addressed the interplay between the nonjurisdictional character of §10-41 and waiver: several authorities (Bouchard, Blancato, Morris) establish that §10-41 is not jurisdictional, and thus a court could consider a defective motion if the opposing party fails to object. However, because the plaintiffs here expressly objected to the form of the motion both below and on appeal, they did not waive the defect. The court further discussed Rowe as an exception where a motion plus memorandum adequately presented the material issue, but distinguished Rowe from the present case on the ground that the defendant's filing here did not adequately submit the material issues in the motion itself.

On these bases the court concluded that the trial court improperly granted the defendant's motion to strike because the motion did not set forth separately each claim of insufficiency and did not distinctly specify the reasons for each claimed insufficiency as required by Practice Book § 10-41.

Holding and Implications

Holding: The court reversed the judgment of the trial court. The appellate court directed that the trial court's grant of the defendant's motion to strike be vacated and that the trial court deny the defendant's motion to strike and proceed with further proceedings in accordance with law. In short:

REVERSED — the grant of the defendant's motion to strike was improper; the case is remanded with direction to deny the motion to strike and for further proceedings.

Implications: The immediate consequence is that the plaintiffs' complaint was improperly struck and the case returns to the trial court for further proceedings. The opinion emphasizes strict procedural compliance with Practice Book § 10-41 — specifically, that the grounds of insufficiency must be set forth in the motion itself and not solely in an accompanying memorandum — and confirms that an opposing party's timely objection preserves the defect. The opinion does not purport to establish a new substantive rule of law beyond application of existing precedents governing motions to strike and Practice Book § 10-41.

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WILLIAM A. STUART ET AL. v. RICHARD M. FREIBERG

Syllabus The plaintiffs sought to recover damages from the defendant for, inter alia, fraud. The trial court granted the defendant's motion to strike all four counts of the complaint and rendered judgment for the defendant, from which the plaintiffs appealed to this court. They claimed, inter alia, that the trial court improperly granted the defendant's motion to strike because the motion failed to specify the grounds of insufficiency as required by the rules of practice (§ 10-41). Held that the trial court improperly granted the defendant's motion to strike, the motion having failed to set forth separately each claim of insufficiency and to specify distinctly the reasons for each claimed insufficiency as required by § 10-41; furthermore, the plaintiffs, in opposing the motion to strike, objected to the form of the motion and thus clearly did not waive the motion's noncompliance with § 10-41, and the fact that the defendant provided reasons for his challenges to the causes of action in an accompanying memorandum of law did not save the motion from being considered fatally defective under § 10-41.

Opinion

McLACHLAN, J.

The plaintiffs, William A. Stuart and Jonathan Stuart, appeal from the judgment of the trial court rendered following the granting of the motion filed by the defendant, Richard M. Freiberg, to strike all four counts of the plaintiffs' complaint. The plaintiffs claim that the court improperly granted the motion to strike because (1) the motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41, (2) they pleaded sufficient facts to support their claims, (3) the court concluded that they did not allege the existence of a legally cognizable duty of care owed by the defendant and (4) the court concluded that the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., was not applicable to their claim of professional malpractice. Because we agree with the plaintiffs' first claim, we reverse the judgment of the trial court and do not address the remaining claims.

Practice Book § 10-41 provides: "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."

The following procedural history and facts, as alleged in the complaint, are relevant to the plaintiffs' appeal. The plaintiffs and Kenneth J. Stuart, Jr. (Stuart, Jr.), who is not a party to this action, are brothers and the only children and heirs of Kenneth J. Stuart, Sr. (Stuart, Sr.). Stuart, Jr., is the executor of Stuart, Sr.'s estate, the trustee of Stuart, Sr.'s living trust and the general partner of Stuart Sons, L.P. The plaintiffs commenced a prior action against Stuart, Jr., and others, claiming that Stuart, Jr.'s actions in his capacity as executor, trustee and general partner dissipated the assets of the estate, trust and limited partnership.

The defendant, a certified public accountant, was the accountant for the estate, trust, limited partnership and Stuart, Jr., individually. The plaintiffs commenced the present action, claiming that the defendant was aware that Stuart, Jr., was commingling his personal funds with those of the estate, trust and limited partnership and that Stuart, Jr., used the assets of those entities for his own personal expenses. They further alleged that the defendant did not reflect certain transactions in the financial summaries, compilations and statements that he prepared on behalf of the estate, trust and limited partnership, and that he provided misleading and inaccurate information to the plaintiffs, knowing that they would rely on his representations. The plaintiffs' complaint alleged that the actions of the defendant constituted fraud, negligent misrepresentation, professional malpractice and a violation of CUTPA.

The defendant moved to strike all of the counts in the plaintiffs' complaint "on the grounds that they are legally insufficient and fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs" without further specificity. The defendant submitted a memorandum of law in support of the motion at that time. The plaintiffs filed an objection to the motion to strike, claiming, inter alia, that the motion merely provided a general statement that their complaint was legally insufficient and failed to state the basis for the claimed insufficiency in the motion itself. The court issued its memorandum of decision on April 27, 2006, in which it concluded that the plaintiffs failed to allege conduct sufficient to state a cause of action in fraud, that there was no privity between the plaintiffs and the defendant, that the complaint failed to allege the existence of a legally recognized duty of care owed by the defendant to the plaintiffs and that a professional malpractice claim was not cognizable under CUTPA. The court struck the complaint in its entirety. The plaintiffs did not file a new pleading; see Practice Book § 10-44; and the court rendered judgment in favor of the defendant. This appeal followed.

The plaintiffs first claim that the court improperly granted the defendant's motion to strike because the motion failed to specify the grounds of insufficiency as required by Practice Book § 10-41, a claim that also had been raised before the trial court. The plaintiffs argue that the failure to comply with Practice Book § 10-41 rendered the motion fatally defective. We agree. The resolution of that issue is dispositive of the appeal; accordingly, we do not reach the plaintiffs' remaining claims.

The standard of review in an appeal from the granting of a motion to strike is well established. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review . . . is plenary." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). If a party wants to challenge the legal sufficiency of a complaint, the proper procedural vehicle is the motion to strike. Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency "shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."

"Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted. . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn. App. 9, 13-14, 779 A.2d 198 (2001).

In the present case, the plaintiffs, in opposing the defendant's motion to strike, clearly did not waive the motion's noncompliance with Practice Book § 10-41. The plaintiffs objected to the defendant's motion on that ground in their brief filed with the trial court and have raised that issue on appeal. If the plaintiffs had not objected to the form of the motion to strike, we would have considered the motion in the form presented to the trial court because Practice Book § 10-41 is not jurisdictional in nature. See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991); Blancato v. Feldspar Corp., 203 Conn. 34, 36 n. 3, 522 A.2d 1235 (1987); Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986).

Here, an objection to the form of the motion was made. The motion itself failed to set forth separately each claim of insufficiency and failed to specify distinctly the reasons for each claimed insufficiency. Simply stating that all of the counts "are legally insufficient" and that they "fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs" cannot be considered compliance with Practice Book § 10-41. The complaint was in four counts, and the defendant gave several reasons for his challenge to the causes of action as alleged by the plaintiffs in his memorandum of law in support of the motion. Those reasons, however, were not contained in the motion itself, and the fact that they were provided in the accompanying memorandum of law does not save the motion from being considered "fatally defective." See Barasso v. Rear Still Hill Road, LLC, supra, 64 Conn. App. 13-14.

Initially, it may appear that form is being elevated over substance by adhering strictly to Practice Book § 10-41. That section, however, clearly places the burden on the party filing the motion to strike to state the grounds of the claimed insufficiency in the text of the motion. As correctly noted by the Superior Court in Bucon, Inc. v. ARC Icesports Danbury, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-99-0160473-S (February 8, 2001), if that procedure is not followed, it puts the party opposing the motion and the court to the task of trying to locate in the accompanying memorandum of law the various claims of insufficiency that are being made. "In poorly organized briefs, such a hunt for grounds presents the hazard of missing claims or responding to observations that the movant does not actually assert as grounds." Id.

There is one decision by this court in which we concluded that it was proper for the trial court to consider the reason proffered in the motion to strike together with additional information provided in the supporting memorandum of law. In Rowe v. Godou, 12 Conn. App. 538, 539, 532 A.2d 978 (1987), rev'd on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988), the defendants requested the court to strike the plaintiff's complaint on the ground that the action was "`barred by statute,'" but they failed to cite the statutory authority. The supporting memorandum of law identified the applicable statute as General Statutes § 7-308. Rowe v. Godou, supra, 540.
We concluded that a motion to strike that lacks specificity but which adequately submits the material issue to the court is sufficient to comply with Practice Book § 10-41 (then § 154). Rowe v. Godou, supra, 541-42. Our Supreme Court, in reviewing that issue on appeal, stated that it agreed with our reasoning, and the result that we reached, in deciding that issue. Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988). Here, the defendant's motion to strike did not adequately submit the material issue to the court.

Accordingly, because the defendant's motion failed to set forth each claim of insufficiency and failed to specify the grounds of insufficiency as required by Practice Book § 10-41, we must conclude that the court improperly granted the motion to strike.

The judgment is reversed and the case remanded with direction to deny the defendant's motion to strike and for further proceedings in accordance with law.

In this opinion the other judges concurred.

STUART v. FREIBERG