Pereira v. Briggs

Marlon PEREIRA v. Edward BRIGGS et al.

No. DBDCV196030546S

Superior Court of Connecticut, Judicial District of Danbury, Danbury

September 20, 2019

UNPUBLISHED OPINION

OPINION

D’Andrea, Robert A., J.

Defendant Edward Briggs ("defendant Briggs"), filed a motion to strike dated July 19, 2019, and memorandum of law in support of motion to strike of same date, pursuant to Practice Book § 10-39, to strike the first and second counts of the plaintiff Marlon Pereira’s ("plaintiff") amended complaint ("amended complaint") dated June 20, 2019 on the ground that they are legally insufficient as a matter of law. More specifically, the first count is legally insufficient because the issuance of a cease and desist order or other enforcement action by defendant, a municipal health director, is discretionary as a matter of law, and the plaintiff has not established a clear legal right to enforcement action, and has not established the absence of a remedy at law; and in the second count the plaintiff fails to sufficiently allege private nuisance because the amended complaint does not allege that defendant owned or controlled any property to the extent that it would constitute sufficient control to render him liable in nuisance, and the amended complaint does not allege a "positive act" that would render a municipal official liable for nuisance. For these reasons, defendant moves that the court strike the first and second counts of the amended complaint.

The plaintiff, pursuant to Practice Book § 10-40, opposes the defendant’s motion to strike, by way of a memorandum of law in opposition to defendant Briggs’ motion to strike dated August 16, 2019, asserting that the amended complaint supports plaintiff’s claims for a writ of mandamus and private nuisance both of which are properly pled and which should not be prematurely decided by this Motion. Plaintiff claims that questions of fact relevant to this claim against defendant Briggs exist which are clearly not to be decided on a motion to strike. Plaintiff claims that the complaint properly alleges a private nuisance claim arising from defendant Briggs’s conduct by refusing to act to correct an illegal well installed by defendant Giacomo Parascondola ("defendant Parascondola") despite his mandatory duty to act pursuant to specific regulations, which conduct defendant Briggs is alleged to know would and/or has caused unreasonable interference with the plaintiff’s use and enjoyment of his property. The allegations imply that defendant Briggs’s interference was intentional and/or the result of his negligent job performance. The court should deny defendant Briggs’s motion to strike because factual questions exist which preclude striking the mandamus and private nuisance counts against defendant Briggs.

The defendant Briggs, in response to the plaintiff’s memorandum of law in opposition to defendant Brigg’s motion to strike the plaintiff’s memorandum, filed a reply to plaintiff’s opposition to motion to strike dated September 6, 2019. Defendant Briggs claims that the plaintiff fails to refute the key flaw in plaintiff’s claim: the decision of whether to take enforcement action is discretionary as a matter of law. A writ of mandamus cannot compel defendant Briggs to take enforcement action any more than it can compel a local police officer to make an arrest. Nor can defendant Briggs be held liable in nuisance for the alleged failure to take enforcement action to ameliorate an alleged condition that neither he nor the Town created. Therefore, the motion to strike should be granted by the court.

FACTS

The plaintiff alleges that defendant Briggs is the Health Director of the Town of Ridgefield, and is charged with the responsibility and duty to enforce the Public Health Code. The plaintiff owns 29 Lakeview Drive ("plaintiff’s property"), and defendant Parascondola owns an abutting property on 1 Lookout Drive ("neighboring property"). Defendant Parascondola’s predecessor in title installed a private well ("well") without obtaining a permit. Defendant Parascondola disconnected and abandoned the well and connected to public water, then in 2012 disconnected from public water and connected to the well. Plaintiff further alleges that defendant Parascondola did not obtain a permit from the state, or defendant Briggs for to disconnect from public water and reconnect to the well, and could not have obtained a permit because he did not comply with Regulations of Connecticut State Agencies 19-13-B51m(b)(1). The plaintiff does not live at plaintiff’s property. In or about July 2016, plaintiff commenced work on the plaintiff’s property with the intention to fully renovate the home, including the installation of a new septic system and expansion of the living space. The plaintiff is unable to renovate plaintiff’s property because of state requirements regarding the location of a well in relation to a proposed septic system. The plaintiff further alleges that defendant Briggs’ inaction constitutes a private nuisance. The plaintiff also alleges a private nuisance against defendant Parascondola, requesting injunctive relief and monetary damages.

LEGAL STANDARD

Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest (1) the legal sufficiency of the allegations of the complaint ..." "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "[A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ..." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916 (2005).

A writ of mandamus is an extraordinary remedy to be applied only under exceptional conditions, and is not to be extended beyond its well established limits. Raslavasky v. Moore, 167 Conn. 363, 376, 355 A.2d 273 (1974). The plaintiff has filed this action as a writ of mandamus. "The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no adequate legal remedy. Milford Education Assn. v. Board of Education, 167 Conn. 513, 356 A.2d 109, citing State v. New Haven Northampton Co., 45 Conn. 331 (1877). Thus, the use of mandamus "is justified only when necessary to supplement the deficiencies of ordinary legal processes and when the aggrieved party has no adequate remedy either at law or equity." Milford Education Assn. v. Board of Education, Id. 356. A writ may issue if the plaintiff can demonstrate a clear legal right to compel the performance of a purely ministerial act and when the plaintiff is without other adequate remedies. Andrews v. New Haven, 153 Conn. 156, 159, 125 A.2d 102 (1965).

The law applicable to private nuisance is fairly straight forward. To prevail in an action for a private nuisance, a plaintiff must establish that: "the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property." Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002). "A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. 4 Restatement (Second), Torts § 821D (1979); see also Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d 235 (1967). The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. Nailor v. C.W. Blakeslee & Sons, Inc., 117 Conn. 241, 245, 167 A. 548 (1933). The essence of a private nuisance is an interference with the use and enjoyment of land. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 87, p. 619." (Internal quotation marks omitted.) Pestey v. Cushman, supra 259 Conn. 352. "[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional ... or the result of the defendant’s negligence." (Internal quotation marks omitted.) Wellswood Columbia, LLC v. Hebron, 327 Conn. 53, 63 n.7, 171 A.3d 409 (2017), citing Pestey v. Cushman, supra, 259 Conn. 361.

DEFENDANT’S POSITION

"Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary...