Cirillo v. Cirillo, No. Cv91 29 00 58 S (Mar. 20, 1992)

Connecticut Superior Court

Cirillo v. Cirillo, No. Cv91 29 00 58 S (Mar. 20, 1992)

1992 Conn. Super. Ct. 2579

Connecticut Superior Court·Decided March 20, 1992·No. No. CV91 29 00 58 S·Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE (#103) Defendant moved to strike plaintiff's one count amended complaint alleging that the claim of conversion is barred by the statute of limitations, C.G.S. 52-577.

Plaintiff opposed the motion on the sole ground that the statute of limitations is a defense which must be specially pleaded and cannot be raised by way of a motion to strike.

Ordinarily the statute of limitations is raised by a special defense. Connecticut Practice Book 164, Hoffmiller v. Joseph, 18 Conn. Sup. 143, 144. There are exceptions where the parties agree that all the relevant facts are in the complaint or the time limitation is contained in the statute which creates the right itself. See Verner v. Petrie, 3 Conn. L. Rptr. 48, 49 (12-18-90). The conversion claim is not based on statute and plaintiff claims a fraudulent concealment of the cause of action. Neither exception applies here, therefore, the motion to strike is not proper.

The court notes in passing that conversion is one of the claims in the complaint. "If a count in a complaint purports to set out more than one cause of action, a demurrer. . . does not reach all of the causes of action pleaded." Wachtel v. Rosal,159 Conn. 496 (1970) (citations omitted). Even if proper, the motion would have to be denied on this ground.

The motion to strike is denied.

E. EUGENE SPEAR, JUDGE CT Page 2580

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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE (#103) Defendant moved to strike plaintiff's one count amended complaint alleging that the claim of conversion is barred by the statute of limitations, C.G.S. 52-577.

Plaintiff opposed the motion on the sole ground that the statute of limitations is a defense which must be specially pleaded and cannot be raised by way of a motion to strike.

Ordinarily the statute of limitations is raised by a special defense. Connecticut Practice Book 164, Hoffmiller v. Joseph, 18 Conn. Sup. 143, 144. There are exceptions where the parties agree that all the relevant facts are in the complaint or the time limitation is contained in the statute which creates the right itself. See Verner v. Petrie, 3 Conn. L. Rptr. 48, 49 (12-18-90). The conversion claim is not based on statute and plaintiff claims a fraudulent concealment of the cause of action. Neither exception applies here, therefore, the motion to strike is not proper.

The court notes in passing that conversion is one of the claims in the complaint. "If a count in a complaint purports to set out more than one cause of action, a demurrer. . . does not reach all of the causes of action pleaded." Wachtel v. Rosal,159 Conn. 496 (1970) (citations omitted). Even if proper, the motion would have to be denied on this ground.

The motion to strike is denied.

E. EUGENE SPEAR, JUDGE CT Page 2580

Cirillo v. Cirillo, No. Cv91 29 00 58 S (Mar. 20, 1992), 1992 Conn. Super. Ct. 2579 (Colo. Ct. App. 1992).

Pincite

1992 Conn. Super. Ct. 2579 (Cirillo v. Cirillo, No. Cv91 29 00 58 S (Mar. 20, 1992)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

E. EUGENE SPEAR, JUDGE CT Page 2580

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