Opinion
No. CV 06-4021195
October 16, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#101)
On February 10, 2006, the plaintiff, Guarco Construction, Inc., filed a fifty-eight count complaint against the defendants Diggs Construction (Diggs), CR Development (CR) and the City of Hartford (Hartford). Diggs and Hartford have moved to strike counts one, fifty-three, fifty-four, fifty-five, fifty-six and fifty-seven of complaint. As alleged in the complaint, this action arose out of a dispute over payment of funds from the general contractor, CR, to the plaintiff for work done on Hartford's Noah Webster School. Diggs was Hartford's agent in reviewing all work and billing on the project. In count one, the plaintiff alleges that the defendants delayed work on the project so that the plaintiff was forced to spend additional funds in completing the work, and that the defendants are liable to the plaintiff for these additional costs. In counts fifty-three, fifty-four and fifty-five, the plaintiff alleges that the defendants have failed to pay for a portion of the work performed by the plaintiff. In count fifty-six, the plaintiff alleges that the defendants engaged in delay tactics that were violations of the Connecticut Unfair Trade Practices Act (CUTPA), Connecticut General Statutes §§ 42-110a, et seq. Specifically, the plaintiff alleges that the defendants engaged in tactics that were designed to force the plaintiff to leave the work site. In count fifty-seven, the plaintiff alleges that Hartford is a third-party beneficiary of the agreement between the plaintiff and CR, and that Hartford has benefitted from the services for which the plaintiff has not received payment.
CR has not joined in this motion. All further references to "the defendants" will be references to Diggs and Hartford only.
While the plaintiff does not previously delineate which defendants are the subject of each count, in count fifty-six the plaintiff has indicated that it is only referring to CR and Diggs.
In the defendants' motion to strike counts one, fifty-three, fifty-four, fifty-five, fifty-six and fifty-seven, they state, as grounds for the motion, that the plaintiff has failed to state legally sufficient claims. Additionally, for count fifty-six, the defendants state that the plaintiff has failed to allege a proper CUTPA claim because the municipality exception to CUTPA applies.
"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). "Each motion to strike . . . shall separately set forth each . . . claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." Practice Book § 10-41. "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." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
In its opposition to the defendants' motion, the plaintiff specifically states that it is not waiving its right to contest the application of Practice Book § 10-41. The plaintiff also contends that it has stated a legally sufficient CUTPA claim in count fifty-six against Diggs, despite the potentially applicable CUTPA exception.
Because all counts save count fifty-six may be dealt with in a summary fashion, discussion of count fifty-six will be dealt with out of turn. The grounds that the defendants state on the face of their motion for striking counts one, fifty-three, fifty-four, fifty-five and fifty-seven do not comply with the requirements of § 10-41. The defendants state simply as to counts one, fifty-three, fifty-four, and fifty-five that these counts "fail to sufficiently state claims for breach of contract" against either defendant. As to count fifty-seven, the defendants state that "the plaintiff's purported third-party beneficiary breach of contract claim . . . is legally insufficient as a matter of law." The defendants do not distinctly specify the reason or reasons for each claimed insufficiency. The defendants' motion to strike the counts one, fifty-three, fifty-four, fifty-five and fifty-seven is denied because the defendants have failed to comply with the requirements of § 10-41, and because the plaintiff has not waived those requirements.
The grounds that the defendants state for striking count fifty-six appear to comply with the requirements of § 10-41. While the defendants have stated that the plaintiff's "factual allegations . . . fail to rise to the level of a CUTPA violation by Diggs," they continue by stating, "Moreover, claims under CUTPA do not lie against municipalities or their agents in the circumstances alleged." Connecticut General Statutes § 42-110b(a) states: "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 42-110c(a) provides in relevant part: "[n]othing in this chapter shall apply to . . . transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States."
A line of Connecticut cases has established that the exception in § 42-110c(a) applies to make most actions of municipalities exempt from the reach of CUTPA. See Connelly v. Housing Authority, 213 Conn. 354, 362, 567 A.2d 1212 (1990) (actions of a municipal housing authority were exempt from CUTPA because the municipal landlord's responsibilities were regulated by federal statutes and regulations); Danbury v. Dana Investment Corp., 249 Conn. 1, 20, 730 A.2d 1128 (1999) (actions of municipality in assessing real estate taxes are exempt from CUTPA because the process is highly regulated by state statute); see also Lawson v. Whitey's Frame Shop, 241 Conn. 678, 688, 697 A.2d 1137 (1997) (municipality acted within its granted authority in enacting ordinance to tow the vehicles of drivers that had multiple parking violations; thus, its designated agent was shielded by the CUTPA exception in performing its duties under the ordinance).
Only the latter case deals directly with the issue of whether an agent of a municipality is intended to be shielded by the exception in § 42-110c(a). In ruling that the tow service was not subject to a CUTPA claim for failing to return impounded vehicles to their owners, the court reasoned: "the city acted well within its authority in enacting an ordinance that provided that the police department could direct authorized persons to tow . . . vehicles. It would indeed be a foolish reading of the contract to confer upon the defendant the authority to tow . . . vehicles, but to deny the defendant, if the vehicles were not claimed by their legal owners, any opportunity to recoup its expenses by disposing of the vehicles after proper notice." Lawson v. Whitey's Frame Shop, supra, 241 Conn. 688.
In the present case, Diggs is alleged to be Hartford's agent in reviewing all work and billing done by the plaintiff on the Noah Webster project. Construing the facts in the complaint most favorably to the plaintiff, Diggs was acting on behalf of its principal, Hartford. Concededly, if the delegation of authority to Diggs was authorized by some ordinance or regulation, then the CUTPA exception might apply. The court, however, has before it no additional alleged facts to support a determination as to whether the delegation of authority was so authorized. The court may not go beyond the facts alleged in the plaintiff's complaint to make such a determination.
The court also notes the following language in Lawson v. Whitey's Frame Shop, supra, 241 Conn. 688, in making its determination: "We recognize that the defendant's authority to dispose of the plaintiffs' automobiles under its contract with the city does not necessarily mean that the defendant would be immune from CUTPA liability under all other circumstances. We need not decide, however, whether the presence of bad faith in the performance of a valid contract could form the basis of a CUTPA claim because the plaintiffs make no such claim in this case." This language used by the Supreme Court suggests that the ruling in Lawson was not meant to be broad enough to cover every possible action of a municipal agent, i.e., no blanket exception was created.
Construing the alleged facts in the complaint most favorably to the plaintiff, it cannot be said that the exception in § 42-110c(a) applies to Diggs. Accordingly, the motion to strike count fifty-six is denied. For like reason, the motion to strike damages claimed pursuant to § 42-110 is denied.
The defendants' motion to strike is denied in its entirety.
SO ORDERED.