The defendant brought a motion under Rule 25.11 to strike paragraph 23 of the plaintiff’s reply and defence to counterclaim, arguing the pleading was improper and unsupported.
The court held that the impugned paragraph contained material allegations capable of proof relating to defects in workmanship, materials, and installation services connected to a log home construction system.
The plaintiff was entitled to advance an alternative theory that any alleged defects were caused or contributed to by the defendant rather than by the plaintiff.
At the pleadings stage, striking the allegation would improperly resolve disputed facts.
The motion was dismissed as the defendant failed to show the pleading was clearly futile, frivolous, vexatious, or an abuse of process.
