Opinion
No. CV08-5015500
June 3, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (Motion #107.00) FACTS
On December 4, 2008, the plaintiffs, Phillip Ferraro and Judith Ferraro, filed a six-count amended complaint against the defendants, Tamarac Ridge Condominium Association, Inc. (the association), Robert Woehrle, and Preferred Management, LLC, the property management agency for the association (the management agency). The amended complaint alleges the following. The plaintiffs have resided at Tamarac Ridge Circle in Shelton, Connecticut since September 15, 2005. The association is the entity for the Tamarac Ridge condominium complex (complex). During a rainstorm on October 13, 2005, the plaintiffs observed water pouring against the outside wall of their residence due to a "clogged, malfunctioning or otherwise broken gutter and downspout." On that same day, the plaintiffs notified Woehrle, as president of the association, by certified mail, return receipt requested, of the overflowing water "requesting repairs and warning of further damage." Despite this notice to Woehrle, "the association failed to remediate the overflowing water problem." Between October 13, 2005, and April 2006, the plaintiffs experienced additional water intrusion into their premises during heavy rains, which "seeped or otherwise leaked into [their] structure." "The water leak occurred via the exterior wall and/or roof on that portion of the structure known as the `common element' upon which the broken and flooded gutter and downspout were located . . . The water leak thereafter entered the finished interior portion of [their] premises, to wit, into the sheet rock wall behind kitchen cabinets and cascading from a recessed light over the adjacent kitchen sink, said cabinets and sink located on the inside of the exterior portion of the premises effected by the water leak." During this six-month period, the plaintiffs informed the association of this problem, to no avail.
The plaintiffs further allege the following. During the course of the foregoing events, the association engaged the management agency as manager for the complex. On April 2, 2007, the plaintiffs contacted the management agency about the water leak and, thereafter, on April 24, 2007, after observing the conditions of the plaintiffs' premises, Peter Flynn, an officer of the management agency, requested that the plaintiffs to have their insurance company contact him. On June 21, 2007, Phillip Ferraro filed a claim with his insurance company. On June 27, 2007, the management agency informed the plaintiffs that the association would file a claim with its insurance agent, and, on July 27, 2007, the management agency informed the plaintiffs' insurance adjuster that the association had filed a claim. The plaintiffs subsequently learned from Flynn that the association did not and never intended to file a claim with its insurance provider. The amended complaint further alleges that the plaintiffs' insurer would reimburse them only to the extent repairs were not covered by the association's insurance and that, the refusal by the association and Woehrle to submit a claim precludes the plaintiffs from recovering any compensation.
In count one, the plaintiffs seek a writ of mandamus compelling Woehrle to file an insurance claim for costs in connection with the damages incurred from his failure to properly maintain the gutter and downspout. In count two, they allege that the association failed to maintain the common elements in violation of General Statutes § 47-249, "Upkeep of Common Interest Community." In count three, the plaintiffs allege that even though the association is required to maintain insurance and make claims for damages arising out of the use of the common elements pursuant to General Statutes § 47-255(a), it failed to file an insurance claim and to promptly replace or repair the plaintiffs' portion of the common interest community in violation of General Statutes § 47-255(h)(1). In count four, the plaintiffs allege that the association failed to promptly repair the damaged gutter and downspout as a part of the common elements that resulted in damages to the plaintiffs' unit in violation of General Statutes § 47-84. In count five, they allege that the management agency knew that the association was unwilling to file an insurance claim for the damages caused by the water leak to the plaintiffs' unit but continued to advise them that the claim would be filed, which is in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110 et seq. In count six, the plaintiffs allege that the association had a duty to maintain and repair the common elements under General Statutes §§ 47-249, 47-255(h)(1), and 47-84, and breached this duty proximately causing damages to the plaintiffs' kitchen, for which the association is strictly liable.
On January 28, 2009, Woehrle and the management agency moved to strike counts one and five of the amended complaint. The defendants filed a memorandum of law in support of their motion. On February 13, 2009, the plaintiffs filed a memorandum in opposition.
Hereinafter, Woehrle and the management agency will be referred to as the defendants.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn 375, 378, 698 A.2d 859 (1997). A motion to strike shall be granted, however, if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
Count one Writ of Mandamus
The defendants argue in their memorandum that the allegations in the first count of the amended complaint must be stricken because a writ of mandamus may only be sought against a public official on whom the law imposes a public duty. They also argue that mandamus is inappropriate because the plaintiffs have not shown that they have no adequate remedy at law.
In response, the plaintiffs counter that as unit owners and members of the association, and "by virtue of the condominium by-laws and state statute," they have a right "to an insurance claim for damages resulting from water incursion from the association common element." Moreover, they assert that the president of the association has the authority and is under an obligation to submit the insurance claim, and that mandamus is the remedy "designed to enforce a plain, positive duty upon the request of one who has a complete and immediate legal right." They also argue that "[e]quity courts are well endowed with tools for shaping public behavior," including mandatory injunctions, which may be brought against one other than a "government entity or public official," and, therefore, a mandamus action is proper against Woehrle, the individual defendant charged with the duty sought to be enforced.
"The requirements for the issuance of a writ of mandamus are well settled. Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy . . . Even satisfaction of this demanding [three-pronged] test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citation omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416-17, 853 A.2d 497 (2004). Nonetheless, "[a] court's authority to issue such a writ is limited by the accepted principle that a writ of mandamus can only compel a governmental agency to perform duties that are ministerial." Alter Associates, LLC v. Lantz, 90 Conn.App. 15, 26, 876 A.2d 1204 (2005). Ministerial duties are mandatory, not discretionary judgments. See Silverstein v. Camposeo, Superior Court, judicial district of Tolland, Docket No. CV 05 4002560 (September 15, 2008, Vacchelli, J.).
In the present case, the plaintiffs allege in count one that Woehrle "in his capacity as President of the Association, failed to file an insurance claim for the damages to Plaintiff's premises resulting from Defendant's failure to maintain the gutter as required under § 47-255(h)(1) . . . Pursuant to the forgoing responsibilities [Woehrle] . . . should be ordered to file a claim for coverage . . ." As previously stated, a writ of mandamus can only compel a governmental agency to perform duties that are ministerial. The plaintiff has not alleged that Woehrle is a public or government official who performed ministerial duties. Therefore, the motion to strike count one is granted.
Count five — CUTPA
The defendants move to strike count five alleging a violation of CUTPA against the management agency for "failing to adequately maintain common areas and/or limited common areas near the subject condominium unit causing property damage to the interior of the unit." They argue that the plaintiffs do not "allege any facts demonstrating a commercial relationship or other circumstance existing between them and [the management agency] that would bring the asserted claims within the scope of [CUTPA]." In addition, they cite to seven Superior Court decisions for the proposition that "management of a condominium association does not constitute trade or commerce within the meaning of CUTPA."
In response, the plaintiffs counter that CUTPA applies to a broad spectrum of commercial activity including the distribution of any services, and furthermore, that the management agency's "trade or commerce clearly falls within `distribution of any services' enumerated within the act." They argue that the management agency's conduct of misrepresenting to the plaintiffs that the association had filed an insurance claim "falls within the practices considered to violate CUTPA." They assert that the defendants rely on cases which are inapplicable because those decisions apply to condominium associations, whereas the present case concerns a management agency. The plaintiffs point out that the cases cited by the defendants are not "against a limited liability company . . . [providing] services to the members of the association" but are "CUTPA claims against the association itself . . . based upon their activities being outside notions of trade or commerce." Finally, they maintain that the "CUTPA claim lies against the management company that directed false information to [them]."
"In enacting CUTPA, the legislature intended to create an expansive act which would provide relief to persons suffering `any ascertainable loss' as a result of an unfair or deceptive trade practice. General Statutes § 42-110g(a)." Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 354, 525 A.2d 57 (1987). "The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices." (Internal quotation marks omitted.) Thames River Recycling Inc. v. Gallo, 50 Conn.App. 767, 794-95, 720 A.2d 242 (1998). Section 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Section 42-110a(4) defines "trade or commerce" in relevant part as: "the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state."
"It is well settled that in determining whether a practice violates CUTPA [our appellate courts] have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 523, 967 A.2d 550 (2009). "Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . ." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 112 Conn.App. 315, 321-22, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009).
As to the defendants' argument that the plaintiffs fail to allege any facts demonstrating a commercial relationship, "[s]everal judges of the Superior Court have . . . required the allegation of a consumer, business or commercial relationship to state a proper CUTPA claim." Nolfi v. Melson, Superior Court, judicial district of Fairfield, Docket No. CV 99 0360876 (June 12, 2000, Moran, J.). As explained in Nolfi, CUPTA requires that a plaintiff" `must have some kind of commercial relationship with the alleged wrongdoer, commercial relationship not being so much a business relationship but some kind of relationship in the marketplace so that the particular acts of wrongdoing alleged will interfere with fair and open competition in that particular marketplace.' . . . [S]ee also Valle v. Andrews, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 552111 (March 9, 1996, Hennessey, J.) (plaintiff `must have a relationship, either consumer or business, with the defendants')." Nolfi v. Melson, supra, Superior Court, Docket No. CV 99 0360876. The defendants have provided the court with no authority or legal analysis in their memorandum of law in support of their argument about a commercial relationship.
For their argument that "the management of a condominium" is not within any "trade or commerce," the defendants rely principally on the court's holding in Rafalowski v. Old County Road, Inc., 45 Conn.Sup. 341, 354, 719 A.2d 84 (1997), aff'd, 245 Conn. 503, 714 A.2d 675 (1998), and, as further support, string cite to the following cases: Cliffside Condominium Ass'n., Inc. v. Cushman, Superior Court, judicial district of Hartford, Docket No. CV 03 0827483 (October18, 2006, Hale, J.T.R.) and Depot Square Business Center Condominium Ass'n., Inc. v. Charbonneau, Superior Court, judicial district of Waterbury, Docket No. CV 04 0184471 (April 12, 2005, Agati, J.). As additional support of the defendants' one sentence argument, they cite in a footnote to four more Superior Court cases: West Farms Condominium Ass'n. No. 1, Inc. v. Satell, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0523203 (May 10, 1996, Berger, J.) (14 Conn. L. Rptr. 214-15); Hunter v. Turner, Superior Court, judicial district of New London, Docket No. 521151 (October 22, 1993, Turner, J.) ( 10 Conn. L. Rptr. 273) ("[t]he management of a condominium association does not constitute `trade or commerce'"); Sargis v. Seventy Grove Hill Condominium Ass'n., Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 88 0430590 (July 19, 1990 Aronson, J.) ( 2 Conn. L. Rptr. 152); Glen Oaks Condominium, Inc. v. Glen Oaks Associates, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 349747 (March 17, 1989, Thompson, J.) ( 4 C.S.C.R. 378).
In Rafalowski v. Old County Road, Inc., supra, 45 Conn.Sup. 341, the plaintiffs were unit owners of business condominiums located in an industrial park, suing the developer of the complex and declarant of a common interest community known as the association. There was no separate management agency of the association. The association consisted of one building subdivided into sixteen commercial units. The defendant owned various units several of which were leased. The defendant and its officers, owners or employees had been the sole officers of the association and sole executive board. In their complaint, in count eighteen, the plaintiffs alleged a violation of CUTPA based on "a wide variety of allegations" relating to the alleged mismanagement by the defendant. The court concluded: "Count eighteen, as mentioned previously, alleges a violation of CUTPA in connection with numerous alleged instances of mismanagement. These alleged activities, however, are not a `trade' or `practice' and, therefore, do not come within the purview of CUTPA," and court entered judgment for the defendant on count eighteen.
The next case relied on by the defendants in the current case is Depot Square Business Center Condominium Ass'n., Inc. v. Charbonneau, supra. There, the defendants were condominium owners of units in the business center known as the Depot Square Business Center. The plaintiff condominium association brought a foreclosure action against them for failing to pay common charges on their units. The defendants counterclaimed alleging a violation of CUTPA based on the ground that they had contracted with another party to make modifications to their units to be used as a deli and were advised by the president of the association that they could do this; prior to making the necessary exterior modifications, the plaintiff barred the defendants from completing the modifications. The plaintiff condominium association moved to strike the counterclaim, arguing that its conduct did not constitute any trade or commerce and did not violate the cigarette rule of CUTPA. The defendants responded that because the plaintiff was an association that managed a group of commercial condominiums and was performing acts in furtherance of trade and commerce in the complex, the approval or denial of a business was a trade or commerce within the broad interpretation of CUTPA. They further argued that the plaintiff interfered with their ability to participate in trade and commerce by its fraudulent representations and by not allowing them to make the alterations required to operate a deli. The court, citing to a number of Superior Court decisions, stated: "The management of a condominium association does not constitute trade or commerce within the meaning of CUTPA." In granting the motion to strike the counterclaim, the court explained: "The defendants have not alleged any facts to substantiate the conclusion that the plaintiff manages a group of commercial condominiums or that the plaintiff was performing acts to further trade and commerce. While there is a possible question of whether the actions of a commercial condominium association constitute trade or commerce, the court cannot speculate as to whether the condominiums are of a commercial or residential nature if such facts are not specifically pleaded in the counterclaim."
The other case cited to in the text of the defendants' memorandum is Cliffside Condominium Ass'n., Inc. v. Cushman, supra. There, the condominium association brought suit against the defendant for failure to perform legal services for the association. The defendant counterclaimed alleging a violation of CUTPA. The court stated that the association was not engaged in any trade or commerce and dismissed the counterclaim, stating that "No evidence was offered that would refute the holdings in these cases [referring to a string cite of cases] that a condominium association is not engaged in trade or commerce."
Depot Square Business Center Condominium Ass'n., Inc. v. Charbonneau, supra, and Cliffside Condominium, Assn., Inc. v. Cushman, supra, both cite to Rafalowski v. Old County Road, Inc., supra, 45 Conn.Sup. 341 for the proposition that the mismanagement of a condominium association is not trade or commerce within CUTPA. In all three cases, Rafalowski, Depot Square and Cliffside Condominium, one party is a condominium association, but no party is a management agency separate from the condominium association.
As noted previously, the defendants' memorandum includes within a footnote citation to four cases for that same legal proposition. All of these cases predate Rafalowski. The first, Glen Oakes Condominium Inc. v. Glen Oaks Associates, Inc., supra, 4 C.S.C.R. 378, involved the condominium unit owners' association that brought a claim against the corporation of the condominium and its officers and directors, alleging that the defendants failed to collect adequate amounts of common expenses in order to increase sales of the units and thus increase their profits. The defendants moved to strike count six, alleging a violation of CUTPA by the corporate defendant, and count nine, alleging a violation of CUTPA by the individual defendants, the officers and directors. The court granted the motion as to count six on the ground that the allegations were "claims of mismanagement of the unit owner's association [and], as pleaded . . . insufficient to state a cause of action under [CUTPA]." As to count nine, the court denied the motion on the ground that the "claims of the plaintiffs deal[t] with `matters affecting the common interest community' [and] if proven, [might] state a cause of action under [CUTPA]."
Also cited to in the defendants' footnote are Hunter v. Turner, supra, 10 Conn. L. Rptr. 273, and West Farms Condominium Ass'n. No. 1, Inc. v. Satell, supra, 14 Conn. L. Rptr. 214. In Hunter, the plaintiffs were members of the condominium association and the defendants were members of the board of directors of the association. The plaintiffs claimed that the defendant failed to collect certain monies owed to the association. One of the named defendants moved for summary judgment on the CUTPA claim in count two. The court granted the motion, citing to Sargis and Glen Oaks, and stated the general proposition that "[t]he management of a condominium association does not constitute `trade or commerce.'" In West Farms Condominium Association, the plaintiff moved to foreclose its lien for common charges against the defendants, who were unit owners. The defendants counterclaimed alleging that the plaintiff's practices of imposing interest and late charges as well as its collection attempts violated CUTPA. The court relied on Sargis and Glen Oaks to grant the plaintiff's motion to strike the CUTPA count based on their holding that "CUTPA does not apply to collection practices that are not conducted in the course of a trade or commerce" inasmuch as they are "claims of mismanagement and thus insufficient to state a cause of action under CUTPA."
The other cases cited to within the footnote as well as the cases in the text of the defendant's memorandum of law cite to Sargis v. Seventy Grove Hill Condominium Ass'n., Inc., supra. Sargis involved a management agency and sets forth some analysis as to why the court granted the defendant's motion to strike the CUTPA claim. In Sargis, the plaintiffs were owners and residents in a condominium and the defendants included the condominium association, its president and members, as well as the management agency of the condominium. The defendants moved to strike the CUTPA count. The court ultimately held that "[u]nder the facts alleged, the defendants are not engaged in trade or commerce within the meaning of CUTPA, and therefore [the] plaintiffs' claims are beyond the scope of the Act." In making this determination, the Sargis court looked at the relationship between the plaintiffs and the defendants. "The Association is comprised of unit owners, such as the plaintiffs. The other defendants, with the exception of [the management agency], are unit owners, as well as directors and officers of the Association. The relationship between the plaintiffs and defendants does not appear to be one involving persons engaged in trade or commerce and consumers, but rather, akin to the relationship between shareholders of a corporation and the corporation's officers and directors." (Emphasis added; internal quotation marks omitted.) The court ultimately held that the plaintiffs' "allegations go to the internal governance of the condominium, and as such are not covered by CUTPA." The court noted, however, that "[a]s to the claims against the [m]anager . . . there may be a CUTPA violation . . ."
Nevertheless, the court in Sargis granted the motion to strike because "the claims plead[ed] against the [m]anager . . . rightfully belong to the Association, not the individual unit owners, since the [m]anager's contract is with the Association not the owners." Sargis v. Seventy Grove Hill Condominium Ass'n., Inc., supra, 2 Conn. L. Rptr. 154. The defendants in the present case did not argue this in their memorandum; therefore, the court will not address this point.
In the present case, there have been no allegations that the management agency was a unit owner. As a result, and critical to the court's reasoning in Sargis, the plaintiffs do not appear to have a relationship with the management agency akin to that of shareholders in a corporation. Furthermore, the plaintiffs allegations do not implicate the internal governance of the condominium; instead they implicate, in part, the failure to maintain the common areas of the complex. Therefore, the motion to strike count five is denied.
CONCLUSION
For the foregoing reasons, defendant's motion to strike is granted as to count one, but denied as to count five.