Opinion
No. CV09-5014112S
March 4, 2010
MEMORANDUM OF DECISION
This is an action against the Town of Plymouth. The plaintiff, J.M. Osowiecki, L.L.C., alleges in its three-count complaint, the following: that it entered into a contract with the town to perform work in connection with demolition and dismantling of a condemned smoke stack in accordance with a written agreement; that it had dismantled approximately two-thirds of the smoke stack when it discovered asbestos within the stack; that when the asbestos was found, the town stopped the project indefinitely; that the agreement stated that the contract price does not include the handling of any hazardous and regulated material; that the plaintiff remains ready, willing and able to complete performance but has been prevented from doing so by the town; that notwithstanding demand for the balance due to the plaintiff, the town has refused to make payment. Based on these allegations, the plaintiff claims breach of contract, unjust enrichment, and violation of CUTPA. Before the court is the town's motion to strike the third count on the ground that CUTPA is inapplicable to municipalities.
The plaintiff states that a copy of the agreement is attached to the complaint as Ex. A, but there is no such attachment in the file.
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.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see Practice Book § 10-39. "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . 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." (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002).
In Connelly v. Housing Authority, 213 Conn. 354, 361, 567 A.2d 1212 (1990), our Supreme Court held that, where the actions of a municipal housing authority, a creature of statute, are expressly authorized and pervasively regulated by both the state department of housing and HUD, the plain language of Connecticut General Statute § 42-110c exempts said housing authority's leasing or renting of apartments from CUTPA scrutiny. Connelly considered four factors to determine whether CUTPA was applicable, including the following: (1) The agency is a creature of statute and is expressly authorized and regulated by both the State and Federal government; (2) Both federal regulations and state law provide carefully balanced procedural and substantive remedies for tenants in a variety of situations; (3) Those regulatory remedies carefully balance the rights and obligations of the agency and its tenants, and this balance might by upset by providing a CUTPA remedy; and (4) There has been no instance in which the Federal Trade Commission Act has been applied to a local housing authority.
Section 42-110c provides in relevant part:
"EXCEPTIONS. (a) Nothing in this chapter shall apply to: (1) 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 . . ."
The Court held in Danbury v. Dana Investment Corp., 249 Conn. 1, 20, 730 A.2d 1128 (1999), that CUTPA does not apply to a municipality that is acting pursuant to statute in order to collect unpaid taxes by foreclosing on previously unchallenged tax liens.
As noted in subsequent Superior Court cases, Connelly and Danbury do not stand for the proposition, as argued by the town, that a municipality is automatically exempt from CUTPA liability, but rather that the municipality may be exempt under certain circumstances. See Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 07 5013602 (April 24, 2008, Robinson, J.) [ 45 Conn. L. Rptr. 452]; Ippoliti v. Ridgefield, Superior Court, judicial district of Danbury, Docket No. CV 99 0337600 (August 7, 2000, Moraghan, J.) ( 27 Conn. L. Rptr. 629).
Manchester v. United Stone America Co., supra, 27 Conn. L. Rptr. 415, involved a dispute between the municipality and the defendant related to the town's contracting of the defendant to erect alterations and additions to Manchester's town hall. The court (Bishop, J.) noted that "a `person' is defined to mean, `a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, and any other legal entity.' Since a municipality is, in fact, a legal entity, its activities in the conduct of any trade or commerce, may fall within the broad parameters of CUTPA.fn1 Excepted from the proscriptions of CUTPA are "(1) 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;" Connecticut General Statutes § 42-110c. A municipality, as such, is neither a regulatory board nor an officer acting under the statutory authority of a state of the United States."
In granting summary judgment on the CUTPA count, the court reasoned that there was no trade or commerce as defined in C.G.S. section 42-110a which is necessary to invoke the protections of CUTPA. This issue was not raised by the town in its motion to strike.
The town has stated no statute or regulatory scheme pursuant to which it engaged in contracting with the plaintiff. In accord with the above-cited cases, the court finds that the exception provided by Connecticut General Statute § 42-110c does not apply. Consequently, the court denies the motion to strike on the only ground raised by the town.