Opinion
No. CV 10-6013865S
February 3, 2011
MEMORANDUM OF DECISION
FACTS
On June 29, 2010, the plaintiff, IKON Office Solutions, Inc. (IKON), filed a three-count complaint against the defendant, C-Tech of New Haven, CT, Inc. (C-Tech). The plaintiff filed a revised three-count complaint on October 25, 2010. In the revised complaint, the plaintiff alleges that the plaintiff and the defendant entered into an agreement to cooperate in the sale of office equipment to various third-party customers. The plaintiff further alleges that, under the agreement, the defendant maintained responsibility for billing and collecting all sums due to the plaintiff from the third-party customers. The plaintiff avers that the defendant obtained purchase orders from third-party customers for the office equipment supplied by the plaintiff. The plaintiff further avers that, at the request and direction of the defendant, the plaintiff shipped office supplies directly to the third-party customers and invoiced the defendant for payment.
The plaintiff attests that pursuant to purchase orders B-101, C-100, D-106 and E-101, the plaintiff shipped equipment to the third-party customers. The plaintiff further attests that the defendant then collected payment from the third-party customers, but refused to pay the plaintiff the amounts owed for each purchase order. In count three, the plaintiff alleges that the defendant violated the Connecticut Unfair Trade Practices Act ("CUTPA") by refusing to pay the plaintiff the amounts owed for the equipment; by failing to bill third-party customers or to collect payments for the equipment; by misrepresenting its intentions to uphold its agreements to pay the plaintiff for the equipment and by taking unfair advantage of the plaintiff's products, expertise, business advice and distribution capabilities to unethically obtain funds at the plaintiff's expense. The plaintiff also alleges that the defendant caused damage to the plaintiff through its offensive business practices in violation of CUTPA.
On November 9, 2010, the defendant filed a motion to strike count three of the revised complaint and a memorandum of law in support thereof. On December 7, 2010, the plaintiff filed an objection to the motion to strike. This court heard oral arguments on this matter at short calendar on December 13, 2010.
DISCUSSION
"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). "We take 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, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The defendant argues that the plaintiff's allegations in count three do not rise to the level necessary to state a CUTPA claim. The defendant avers that the plaintiff alleges a mere breach of contract claim and that such claims are insufficient to set forth a CUTPA claim without an accompanying allegation of some aggravating circumstances. The plaintiff argues that the allegation that the defendant breached multiple contracts is sufficient to state a CUTPA claim. The plaintiff also argues that the allegation that the defendant misrepresented its intentions to fulfill its contractual duties is sufficient to state a CUTPA claim.
The defendant argues other grounds in its memorandum of law, but they are not to be considered by the court because they are not alleged on the face of the motion to strike. Practice Book § 10-41.
The plaintiff argues that its allegations are sufficient to state a CUTPA claim based on the reasoning in Quinn Associates, Inc. v. FGA Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 315433 (October 2, 1992, Hadden, J.) ( 7 C.S.C.R. 1192) [ 7 Conn. L. Rptr. 417]. In Quinn, the plaintiff specifically alleged that the defendant engaged in intentional misrepresentation by engaging in a "deliberate scheme" which the court found to constitute a substantial aggravating circumstance. In this case, however, the plaintiff did not allege such a "deliberate scheme" or any intentional misrepresentation. Therefore, Quinn is not analogous and the reasoning does not apply here.
The plaintiff further argues that its allegation that the defendant misled the plaintiff in its pursuit of payment is sufficient to state a CUTPA claim. The plaintiff, however, does not make such an allegation in its complaint.
"[A] simple breach of contract, even if intentional, does not amount to a violation of CUTPA in the absence of substantial aggravating circumstances." Metropolitan Trucking v. Rand-Whitney Containerboard, LP, Superior Court, judicial district of New London, Docket No. CV 095013770 (March 31, 2010, Cosgrove, J.) ( 49 Conn. L. Rptr. 584, 586). However, "multiple breaches of contract may . . . raise a breach of contract claim to the level of a CUTPA violation." (Internal quotation marks omitted.) Webster Financial Corp. v. McDonald, Superior Court, judicial district of Waterbury, Docket No. CV 08 4016026 (January 28, 2009, Brunetti, J.). Specifically, alleging multiple breaches of contracts, by alleging the defendant's refusal to tender payment for multiple deliveries adequately sets forth a CUTPA claim. See Metropolitan Trucking v. Rand-Whitney Containerboard, LP, supra, 49 Conn. L. Rptr. 587.
In the present case, the defendant's alleged failure to submit payment for the purchase orders, if proven, could constitute a separate breach of contract for each purchase order. The plaintiff sufficiently alleges that the defendant committed multiple breaches of contract by alleging that the defendant failed to submit payment for purchase orders B-101, C-100, D-106, E-101. Therefore, the plaintiff sufficiently alleges facts that collectively constitute substantial aggravating circumstances that rise to the level necessary to state a CUTPA claim.
This court need not address the issue of whether alleging misrepresentation generally is sufficient to set forth a CUTPA claim as the first issue provides a sufficient ground to deny the motion to strike.
For the foregoing reason, the court denies the defendant's motion to strike count three of the plaintiff's complaint for failure to state a CUTPA claim.