Opinion
No. HHD-CV-05-4008900
October 26, 2005
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE
This case arises out of a contract for the supply and installation of a quick wall demountable wall system. Plaintiff alleges it delivered and installed the quick wall demountable wall system to the defendants after the defendants represented that a check for partial payment was in the mail when in fact, the check was never mailed.
The defendants, Budget Modular Workstations, Inc. and David Deantonis, have moved, pursuant to Practice Book § 10-39, to strike the Third and Fifth Counts and second paragraph of the Prayer for Relief in Plaintiff's Revised Complaint. The Third and Fifth Counts allege statutory theft and the second paragraph of the prayer for relief seeks treble damages for such theft pursuant to General Statutes § 52-564. The defendants claim the statutory theft cause of action should fail because the plaintiff has not alleged that the defendants intended to deprive plaintiff of its property, which is an essential element of the crime of larceny as defined in General Statutes § 53a-119 and must form the basis for proving something has been stolen in a civil claim for statutory theft. Lauder v. Peck, 11 Conn.App. 161, 165, 526 A.2d 539 (1987).
General Statutes § 52-564 provides for treble damages against "any person who steals any property of another or knowingly receives and conceals stolen property."
"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. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorable to the plaintiff." (Citations and internal quotation marks omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214, 618 A.2d 25 (1992).
Plaintiff claims in its allegations that the defendant represented to the plaintiff that a check representing partial payment for the installation had been sent in the mail (and confirmed this by faxing a copy of the check), and that in reliance on this representation, the CT Page 13355-q plaintiff was deceived and induced to perform the contracted work. The difficulty with the allegations as set forth in the complaint is that they can apply to just about every breach of contract case where promised payments have not been made.
In the early twentieth century, actions for treble damages under General Statutes § 52-564 were "not ordinarily brought until the defendant [had] been tried, convicted and sentenced in the criminal court for the stealing." Lauder v. Peck, supra, 11 Conn.App. 167; Plumb v. Griffin, 74 Conn. 132, 135, 50 A. 1 (1901).
The Third and Fifth counts allege the following additional paragraph to justify the claim for statutory theft: "Defendant's conduct in inducing plaintiff to deliver and install the materials as aforesaid and by deceiving the plaintiff into believing it had forwarded a check representing partial payment for the same constitutes theft."
Failure to pay for services does not, in and of itself, constitute larceny or theft. Delta Capital Group, LLC v. Smith, Docket No. CV97-0571407, judicial district of Hartford/New Britain at Hartford, (March 31, 1998, Hale, J.); Adams Adams Building Group, Inc. v. STS Group, Inc., Docket No. CV98-0578865, judicial district of Hartford/New Britain at Hartford, (November 12, 1998, Wagner, J.) ( 23 Conn. L. Rptr. 427). Allegations for a cause of action in statutory theft must specifically adhere to the essential elements for the crime of larceny. Larceny is the intentional and wrongful taking, obtaining or withholding property from an owner. General Statutes § 53a-119. Here, however, unlike the facts in the Delta Capital case or those in the case of John Robinson v. Van Dyck Printing Company, Inc., Docket No. CV94-0360526S, judicial district of New Haven, at New Haven, (April 25, 2000, Devlin, J.), the plaintiff is not just alleging the wrongful withholding of monies owed to it, it is claiming that the plaintiff deceived it into installing building materials, its property, by falsely promising partial payment was imminent and actually paying nothing.
The events the plaintiff describes in his memorandum of decision as constituting the basis for his claim of statutory theft may be sufficient to constitute a larceny, specifically, the obtaining of property by "false promise" as defined in § 53a-119(3). When one obtains the possession of personal property of another by deception with the intent to convert it to one's own use and permanently deprive the owner of his property, one commits larceny. See State v. Vars, 154 Conn. 255, 260, 224 A.2d 744 (1966). However, the existing allegations in the complaint, which is all the court can consider in assessing legal sufficiency, lack the most essential requirement for proof of a larceny: an intent on the part of the defendants to deprive the plaintiff of its property or to appropriate it for themselves or another person. Statutory theft requires a plaintiff to plead and prove the additional element of larcenous intent. See Suarez-Negrete v. Trott, 4 Conn.App. 517, 521, 705 A.2d 215 (1998); Wavin Enterprises, Inc. v. Cardinal Leasing, Inc., Docket No. CV98-0163931, judicial district of Stamford-Norwalk at Stamford (April CT Page 13355-r 29, 2003, Lewis, J.); Tork v. Best Restaurant Equipment Company, Docket No. CV99-0430310S, judicial district of New Haven, at New Haven, (October 21, 1999, Alander, J.). The plaintiff's allegations fail to allege any specific intent on the part of either defendant. The plaintiff alleges that the defendants deceived the plaintiff into delivering and installing the materials, but fails to allege that the defendants intended to deprive the plaintiff of its property.
Where the complaint fails to state a claim for statutory theft, the corresponding prayer for relief seeking treble damages also must be stricken. See Streater v. Maier, Docket No. CV03-0473265S, judicial district of New Haven at New Haven, (June 15, 2004, Skolnick, J.).
Accordingly, the defendants' Motion to Strike is GRANTED and the Third and Fifth Counts of the plaintiff's complaint, as well as the accompanying second paragraph of the prayer for relief for treble damages pursuant to General Statutes § 52-564, are hereby ordered stricken.