Opinion
No. LLI CV 09 5005970
November 5, 2010
MEMORANDUM OF DECISION
This is a motion to strike (#115) filed by the defendant. At issue is whether the court should grant the defendants' motion to strike the plaintiff's second revised complaint in its entirety on the grounds that the second revised complaint is identical to the first revised complaint, which was ordered stricken by the court, and it fails to state a claim upon which relief can be granted because it does not set forth any allegations to indicate compliance with the requirements of Connecticut's Home Improvement Act. For the reasons given, the court must deny the defendants' motion to strike.
FACTS
On May 13, 2010, the plaintiff, William Beers, filed a three-count first revised complaint, against the defendants, Bruce Sofferman and Deborah Sofferman. On June 1, 2010, the court granted the defendants' May 14, 2010 motion to strike "for the sole reason that the plaintiff failed to file a timely memorandum in opposition as is required by [Practice Book § ]10-42." In its discretion, the court declined to reach the merits of the defendants' motion. On June 18, 2010, the defendants filed a motion for articulation, which was denied by the court on July 6, 2010. In the order, the court reiterated its basis for granting the defendants' earlier motion to strike and stated: "Whether the plaintiff can plead over without addressing the defects in his original pleading is not before the court at this time."
On June 16, 2010, the plaintiff filed a four-count second revised complaint against the defendants, restating the first three counts of the stricken first revised complaint and adding a new fourth count. In count one, a breach of contract claim, the plaintiff alleges that on October 22, 2007, he and the defendants entered into a verbal agreement whereby the plaintiff would renovate a studio apartment (apartment) located on the defendants' premises in exchange for the plaintiff to live in the apartment rent-free once it was complete and to continue to act as the defendants' caretaker on their property. At some point, however, the parties' working relationship became strained. As a result, on or around January 9, 2008, the plaintiff stopped performing work for the defendants. At that time, the renovation of the apartment was at least eighty percent complete. In addition to his work on the apartment, the plaintiff also alleges that he worked as a handyman for the defendants. In counts two and three the plaintiff alleges that the defendants have been unjustly enriched and are in violation of the Connecticut Unfair Trade Practice Act (CUTPA), respectively. Finally, count four alleges a claim in quantum meruit.
Counts two, three and four incorporate the allegations set forth in count one.
On July 15, 2010, the defendants filed a motion to strike the plaintiff's second revised complaint in its entirety and a memorandum in support of the motion to strike. The defendants seek to strike the second revised complaint on the grounds that it is identical to the first revised complaint, which was ordered stricken by the court, and it fails to state a claim upon which relief can be granted because it does not set forth any allegations to indicate compliance with the requirements of Connecticut's Home Improvement Act (HIA) set forth in General Statutes § 20-429.
On August 9, 2010, the plaintiff filed an objection to the motion to strike along with a memorandum of law in support. The plaintiff argues that the defendants' motion to strike must be denied because the defendants failed to state on the face of the motion the grounds by which the plaintiff's fourth count should be stricken, the plaintiff may replead if a motion to strike is granted, the second revised complaint is not the same as the first and is thus not barred, and the HIA does not apply because the plaintiff was working on his own private residence without compensation and the plaintiff is not a contractor.
On August 11, 2010, the defendants filed a reply brief. The defendants argue that the motion to strike does address the basis of the defendants' challenge to the plaintiff's fourth count because it alleges that the complaint in its entirety fails to state a claim upon which relief can be granted because the contract for services underlying the four counts violates the HIA. Moreover, the defendants concede that the plaintiff is allowed to restate his original first revised complaint as to the first three counts of this second revised complaint at the risk of waiving any entitlement to appeal an adverse ruling by the court on the present motion. Finally, the defendants argue that the HIA is applicable and that the plaintiff is unable to seek sanctuary in the HIA's exemptions for residence owners. The matter was heard on the short calendar on September 7, 2010.
DISCUSSION
I
LEGAL STANDARD
"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). "[The court takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's 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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
"Insofar as [a] motion to strike is directed [to] the entire complaint, it must . . . fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 (1991); see Water Commissioners v. Robbins, 82 Conn. 623, 633, 74 A. 938 (1910) (motion to strike special defense and counterclaim denied because the allegations constituted two entirely independent and complete defenses or counterclaims embodied in the pleading; thus leaving, in essence, a second defense or counterclaim to support the pleading taken as a whole).
"Ordinarily, noncompliance with the Home Improvement Act should be pleaded as a special defense by a homeowner being sued on a home improvement contract." Sanchez-Ballesteros v. Anderson, Superior Court, judicial district of Litchfield, Docket No. CV 09 5005382 (August 3, 2010, Roche, J.), citing Sidney v. DeVries, 18 Conn.App. 581, 586-87, 559 A.2d 1145 (1989), aff'd, 215 Conn. 350, 575 A.2d 228 (1990). "Nevertheless, a motion to strike may be proper where the allegations of the complaint show dispositively that a case is governed by the [Home Improvement] Act and that the Act's provisions have not been met . . ." Sanchez-Ballesteros v. Anderson, supra, Superior Court, Docket No. CV 09 5005382.
II
PARTIES' ARGUMENTS
A
Motion to Strike Must Specify the Grounds of Insufficiency
"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." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). "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 [in] compliance with Practice Book § 10-41." Id., 862.
"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 . . . [I]f 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." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, supra, 102 Conn.App. 862 n. 2. There are situations, however, when it is "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 . . . [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 . . ." Id., 862 n. 3.
In the present case, the plaintiff argues that the defendants' motion to strike must be denied because the defendants, on the face of the motion to strike, failed to state the grounds on which the plaintiff's fourth count should be stricken. The motion to strike alleges that the complaint in its entirety fails to state a claim upon which relief can be granted. The motion goes on to state that the "[defendants] maintain that the complaint is based upon a contract for services which constitute a home improvement, but nowhere in the three counts is there alleged that the so-called agreement was in writing and compliant with the provisions of the Connecticut Home Improvement Act . . ." (Emphasis added.) The defendants, in their reply brief, allege that they did address "the basis of their challenge to [the plaintiffs] new fourth count . . . it is submitted that on page one of the motion, it is alleged that the complaint in its entirety fails to state a claim upon which relief can be granted. On page two of the motion, [the] defendants allege that the contract for services underlying the four counts is violative of Connecticut's Home Improvement Act, and thus unenforceable." (Emphasis added.)
Although the plaintiff accurately notes that the defendants failed to formally address the fourth count in their motion to strike, it appears that the defendants made a typographical error in the motion to strike and intended to include reference to the fourth count in their articulation of the grounds for the insufficiency of the complaint. Even though the motion to strike does lack specificity as to the grounds for striking the fourth count, the motion adequately submits the material issue as to all the counts and is sufficient to comply with Practice Book § 10-41. In this case, the material issue is whether the allegations in the second revised complaint indicate compliance with the requirements of the HIA and are thus legally sufficient to state a claim upon which relief can be granted. It is clear that the defendants meant to include the count four allegation for recovery in quantum meruit because, in their supporting memorandum of law, the defendants argue that § 20-429(f) of the HIA "precludes any relief in quantum meruit absent compliance with subsections (2), (6) and (7) . . . an attempt [the] plaintiff is making in his . . . fourth [count]." Consequently, when the motion to strike is read together with additional information provided in the supporting memorandum of law, the motion to strike adequately submits the material issue to the court. Thus, the motion to strike is properly before the court.
B
Repleading After a Motion to Strike
"[I]f a motion to strike is granted, the party whose pleading is stricken is given an opportunity to replead in order to avoid a harsh result." Anderson v. Schieffer, 35 Conn.App. 31, 37, 645 A.2d 549 (1994). "[The] granting of a motion to strike allows the plaintiff to replead his or her case." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009). "Although [a motion to strike and a request to revise] generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken." (Internal quotation marks omitted.) Melfi v. Danbury, 70 Conn.App. 679, 684, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002). Moreover, "if an amended complaint merely restates the original cause of action that was stricken, the plaintiff has waived its right to appeal. If the amended complaint is materially different, however, the plaintiff has not waived its right to appeal." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 111 Conn.App. 197, 199, 958 A.2d 210 (2008).
In the present case, the defendants seek to strike the second revised complaint on the ground that it is identical to the first revised complaint, which was ordered stricken by the court. In their reply, however, the defendants "[conceded] that the plaintiff is allowed to restate his original first revised complaint as to the first three counts of this second revised complaint, at the risk of waiving any entitlement to appeal any adverse ruling by this [c]ourt on the present motion." Thus, the court must deny the defendants' motion to strike because the plaintiff was entitled to file a second revised complaint.
C
Home Improvement Act
The defendants argue that the HIA applies to bar recovery on the oral agreement because the agreement was for home improvement services and the plaintiff is not an owner working on his own residence. Conversely, the plaintiff argues that the HIA does not apply to bar his action because the work he performed does not constitute a home improvement. Specifically, the plaintiff argues that he was an owner who was working on his own private residence without compensation in accordance with the parties' agreement where the defendants were permitting the plaintiff to live in the apartment and make it his "bachelor pad" in lieu of monetary compensation. Moreover, the plaintiff argues that he was not required to live in the apartment in order to meet the statutory definition of "owner."
"No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor . . . and (8) is entered into by a registered salesman or registered contractor." General Statutes § 20-429(a). A "`home improvement contract' means an agreement between a contractor and an owner for the performance of a home improvement." General Statutes § 20-419(5). "`Home improvement' includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars. `Home improvement' does not include . . . (E) any work performed without compensation by the owner on his own private residence or residential rental property." General Statutes § 20-419(4). An "owner" is defined as "a person who owns or resides in a private residence and includes any agent thereof. An owner of a private residence shall not be required to reside in such residence to be deemed an owner under this subdivision." General Statutes § 20-419(6). Thus, "an `owner' is not limited just to the person who owns the residence, but also includes a person who resides in the residence." Jalbert v. Mulligan, Superior Court, judicial district of Waterbury, Docket No. CV 08 6001044 (August 25, 2009, Brunetti, J.).
In the present case, for the plaintiff to take advantage of the exemption for residence owners in the definition of "home improvement," he must show that he is either the record owner of the apartment or that he was residing in the apartment. There is no dispute that the plaintiff was not the record owner of the apartment. Moreover, there is no dispute that the plaintiff was not residing in the apartment at the time he was performing work on it. In fact, in the second revised complaint, the plaintiff states that he was living in another apartment during this period.
Notwithstanding, the plaintiff argues that he was an owner who was working on his own private residence without compensation because he had a landlord-tenant type relationship with the defendants where he was permitted to reside in the defendants' apartment rent-free as long as he completed certain tasks and odd jobs for the defendants. The plaintiff's reliance on Gural v. Fazzino, 45 Conn.App. 586, 686 A.2d 1307 (1997) to support his argument is unpersuasive. In Gural, the court held that the HIA did not apply because the plaintiff "was an owner as defined in the statute . . . he did not seek or receive compensation for the work . . ." and he was actually living in the residence, with his girlfriend, at the time he was performing the work on the premises. Id., 590-91. Moreover, the court found that the parties had "an agreement . . . that the improvements were a quid pro quo for the defendant's promise to live with the plaintiff for life." Id., 589. The court explained that the issue in that case was "not [the defendant's] . . . refusal to pay for the improvements made by the plaintiff. Rather, the plaintiff complains that the defendant put him out of the house and refused to continue to live with him according to the plan." Id.
The present case is distinguishable because here, the plaintiff never resided in me apartment before, during, or after the time he performed work on the premises. Moreover, unlike Gural, the plaintiff was not providing services without compensation. Rather, the agreement was that, in lieu of a traditional payment, the plaintiff's compensation for the work performed would be forgiveness of any liability to pay rent while living in the apartment. The agreement was not that the plaintiff would perform work on the apartment in exchange for his promise to live with the defendants.
Nonetheless, the plaintiff argues that even if his work constitutes a home improvement because he is not an owner, the HIA still does not apply because he is not a contractor. A contractor is "any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement. `Contractor' does not include a person for whom the total cash price of all of his home improvement contracts with all of his customers does not exceed one thousand dollars during any period of twelve consecutive months." General Statutes § 20-419(3). In Jalbert v. Mulligan, Superior Court, judicial district of Waterbury, Docket No. CV 08 6001044 (August 25, 2009, Brunetti, J.), the court denied a motion to strike holding that the plaintiff did not meet the statutory definition of a contractor to bring the claim within the HIA. In that case, the plaintiff "did not work for cash, but instead worked in exchange for legal services provided by [the defendant] . . ." Id. The court, in "construing the facts as alleged in . . . the complaint in favor of the plaintiffs . . . [found that] there [were] no allegations [in the complaint] that [the plaintiff] had earned any money from the defendants for work done, or that he earned $1,000 that year for providing contracting services." Id.
In the present case, the plaintiff argues that like the plaintiff in Jalbert, he is not a contractor as defined by the HIA because he and the defendants entered into a barter arrangement where the plaintiff would work in exchange for free rent rather than for cash payment. As such, a resolution of this issue requires a determination of the meaning of "total cash price" in the definition of a contractor. The phrase, however, is ambiguous as applied to the facts of this case and therefore, the court must turn to the legislative history of the HIA. "The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case . . . When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [the court seeks) to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . In seeking to determine that meaning . . . [General Statutes] § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretative guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . [T]erms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . ." (Internal quotation marks omitted.) Brown Brown, Inc. v. Blumenthal, 297 Conn. 710, 722, 1 A.3d 21 (2010).
According to the legislative history of the HIA, total cash price is no different than total price and it is explained variously as satisfied where an individual " does" work in excess of one thousand dollars; " earns" in excess of one thousand dollars; "make[s]" more than one thousand dollars; or " receive[s]" a gross income of at least one thousand dollars. (Emphasis added.) 22 H.R. Proc., Pt. 33, 1979 Sess., p. 100, 131-33, 140-41, 155, 167; 22 S. Proc., Pt. 17, 1979 Sess., p. 136, 139. The legislature also discussed whether the total cash price requirement would be satisfied where an individual performs one thousand dollars worth of work but does not actually receive payment of one thousand dollars.
"Q. If the man contracts . . . and does indeed perform work that is worth $1,000 allowing for our difference of opinion perhaps on what `total cash price' means, but he hasn't collected, is he a home improvement contractor? A. I would assume that if he had not earned over $1,000 he is not a home improvement contractor until he actually receives payment." 22 H.R. Proc., Pt. 33, 1979 Sess., p. 142.
"Q. [T]he man contracted to do $1,000 work, did the work, but he didn't get paid . . . [does he have] to get a written contract? A. I think I'd have to rely on the regulations that will be established by the consumer protection." 22 H.R. Proc., Pt. 33, 1979 Sess., p. 144. A review revealed no regulation directed at this issue.
This court will follow Jalbert v. Mulligan, supra, Superior Court, Docket No. CV 08 6001044 in concluding that an individual must contract to receive at least one thousand dollars in monetary compensation, as opposed to a barter arrangement, before the total cash price requirement for a contractor is satisfied. In finding that the plaintiff was not a contractor, the Jalbert court focused its inquiry on the parties' barter arrangement and the absence of allegations that the plaintiff " earned any money from the defendants for work done, or earned $1,000 that year for providing contracting services." (Emphasis added.) Id. In the present case, the plaintiff does not allege in the second revised complaint that he earned any money from the defendants for his completed work nor does he allege that he earned one thousand dollars that year for providing contracting services. A motion to strike should be denied where "there are no allegations in the complaint compelling the conclusion that the Home Improvement Act is applicable." K. Builders Remodelers, Inc. v. Curioso, Superior Court, judicial district of New London, Docket No. 559213 (April 18, 2002, Martin, J.). The second revised complaint lacks allegations compelling the conclusion that the plaintiff actually received any payment from the defendants. Absent such allegations, the plaintiff does not meet the definition of a contractor and the HIA is not applicable. Therefore, the court must deny the defendants' motion to strike.