Opinion
No. CV-07-5002281
September 26, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #104
The issue before the court is whether to grant the defendant's motion to strike counts two, four, six, eight, ten and twelve from the revised complaint of the plaintiff, Precision Mechanical Services, Inc., on the ground that each count fails to allege sufficient facts to state a claim. The court grants the motion to strike of the defendant, Patrick Development, Inc., with respect to counts two, four, six, eight and twelve and denies the motion with respect to count ten.
FACTS
On January 11, 2007, the plaintiff, Precision Mechanical Services, Inc., filed a six-count complaint against defendants, Empyrean Hospitality, LLC, and Patrick Development, Inc. The action arises out of losses allegedly sustained as a result of a breach of an oral contract. Subsequently, Precision filed a revised complaint, dated April 23, 2007. The revised complaint contains twelve counts-six against Patrick, six against Empyrean.
In its revised complaint, Precision alleges the following facts. In 2005, Precision entered into an oral agreement with Patrick, a general contractor and "an authorized agent of Defendant Empyrean," to design, construct and install a fire-sprinkler system for a commercial property owned by Empyrean. (Revised Complaint, Count 1, ¶ 6.) According to Precision, the oral contract was to have been reduced to a writing. Precision began work on the project in July 2005. On January 19, 2006, Precision sent Patrick a signed written agreement incorporating the terms of the oral contract, as modified by further negotiations the previous month. On January 23, 2006, Patrick confirmed via e-mail that it had received a countersigned copy of the written agreement from Empyrean. Then, in February 2006, Patrick admitted to Precision that it did not have a written agreement countersigned by Empyrean.
The six counts against Patrick are breach of contract, statutory and common-law breach of the duty of good faith and fair dealing, unjust enrichment, violation of the Connecticut Unfair Trade Practices Act and promissory estoppel. On May 11, 2007, Patrick filed a motion to strike these counts from the complaint on the ground that they fail to allege sufficient facts to state causes of action. Patrick submitted a memorandum of law in support of the motion. On May 24, 2007, Precision filed a memorandum in opposition to the motion to strike.
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). "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). "[G]rounds other than those specified should not be considered." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). The court takes the facts "to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Sullins v. Rodriguez, 281 Conn. 128, 132, 913 A.2d 415 (2007).
Practice Book § 10-41 requires that a motion to strike specify the grounds upon which the legal sufficiency of a claim is challenged. An accompanying memorandum of law that cites the legal authorities that the motion relies upon does not dispense with this requirement. A motion to strike that does not specify the grounds is fatally defective unless the party opposing the motion waives this defect. An opposing party effectively waives the defect if it does not object to the motion's failure to specify the grounds of insufficiency. Stuart v. Freiberg, 102 Conn.App. 857, 861-62 (2007). Patrick's motion to strike does not state the grounds for the insufficiency of Precision's claims on the face of the motion. Nonetheless, it is not fatally defective because Precision, in its memorandum in opposition, does not object to the form of the motion.
Count Two — Breach of Contract
Patrick moves to strike count two on the basis that Precision fails to state a legally sufficient breach of contract claim because Precision fails to allege any contract to which Patrick was a party. (Patrick's Memorandum, p. 2.) Precision counters that Patrick is not liable as a party, but as an agent of Empyrean: "the principles of agency apply and make both Defendants liable to [Precision]." (Precision's Memorandum, p. 4.)
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). Precision alleges that there was an agreement between Empyrean and Precision, Precision performed by providing materials for the project and rendering labor, Empyrean and Patrick breached the agreement by failing to pay Precision and Precision consequently suffered damages. Count two reincorporates paragraphs one through seventeen of the first count. Paragraph six alleges that "[o]n or about July 20, 2005, the Defendant Patrick, as an authorized agent of Defendant Empyrean, entered into an oral contract . . . with [Precision] to provide services in the design/construction/installation of a Fire Sprinkler System to the Property owned by Empyrean." (Revised Complaint, Count 2, ¶ 6.)
"[T]he principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal . . . An agent's authority may be actual or apparent." (Citation omitted; internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 849, 817 A.2d 683 (2003). "[T]he nature and extent of an agent's authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn." Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 544, 893 A.2d 389 (2006).
An agent who makes a contract on behalf of a competent, disclosed principal, does not become liable on the contract. "[U]nless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract." (Internal quotations marks omitted.) Levey Miller Maretz v. 595 Corporate Circle, 258 Conn. 121, 129, 780 A.2d 43 (2001); 3 Restatement (Third), Agency § 6.01, p. 6 (2005). A disclosed principal is, as a rule, liable for the authorized acts of an agent while the agent incurs no liability. See Gateway Co. v. DiNoia, 232 Conn. 223, 240, 654 A.2d 342 (1995); Sullivan v. Mancini, 103 Conn. 110, 112-13, 130 A. 79 (1925); 3 Restatement (Third), Agency § 7.03, p. 151 (2005). Nevertheless, an agent is not always shielded from liability by his status as an agent — there are circumstances in which both the principal and the agent, or the agent only, may be liable. See Gateway Co. v. DiNoia, supra, 240; 3 Restatement (Third), Agency § 6.03(2), p. 39 (2005) (when principal is undisclosed); 3 Restatement (Third), § 7.01, p. 115 (agent liable to third party for tortious conduct).
An agent may also be held liable if he acts outside the scope of his authority. "A person who purports to make a contract . . . with a third party on behalf of another person, lacking power to bind that person, gives an implied warranty of authority to the third party and is subject to liability to the third party for damages caused by breach of that warranty." 3 Restatement (Third), Agency § 6.10, p. 96 (2005); 3 Am.Jur.2d, Agency § 292 (2002) (one who purports to act as an agent, in a matter in which the principal is not bound because the act is beyond the authority of the agent, is personally liable, even if the agent is acting in good faith).
Nevertheless, an agent who acts outside the scope of his authority when making a contract does not become a party to the contract. "[T]he personal liability of one who contracts as agent for a named principal, without sufficient authority, is stated as follows: In such cases the agent is not . . . bound by the contract, because nobody intended that he should be so bound; but if by reason of his lack of authority, the contract is not enforceable against the alleged principal, the party who has been induced to contract on the faith of the agent's authority has one of two remedies. If the agent honestly believed that he had an authority which he did not possess, he may be sued on an implied warranty of authority. If he knew, or . . . he ought to have known, that he had not the authority which he professed to have, he may be sued in the action of deceit." (Internal quotation marks omitted.) Sullivan v. Mancini, supra, 103 Conn. 112-13.
Precision does not sufficiently plead that Patrick is liable for breach of contract as a party because it does not allege that Patrick was a party to any contract. Therefore, the court strikes count two.
Counts Four and Six — Breach of the Duty of Good Faith and Fair Dealing
Count four alleges a statutory breach of the duty of good faith and fair dealing under General Statutes § 42a-1-304 (Connecticut's Uniform Commercial Code) and count six alleges a common-law breach of the duty of good faith and fair dealing.
Precision incorrectly identifies the relevant statute as General Statutes § 42a-1-203.
Patrick argues that counts four and six should both be stricken as neither states a claim for which relief may be granted. The thrust of Patrick's argument is that because Precision does not allege Patrick was a party to a contract, it cannot allege Patrick had a duty of good faith and fair dealing to breach. (Patrick's Memorandum, pp. 4-5.) Precision counters that because Patrick is liable for breach of contract it follows that it is liable for breach of the duty of good faith and fair dealing too, as good faith and fair dealing are "inherent obligations to contracting parties." (Precision's Memorandum, pp. 4-5.)
An action for breach of the covenant of good faith and fair dealing requires proof that the "acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). Both the obligation of good faith mandated by Connecticut's Uniform Commercial Code and the common-law implied covenant of good faith and fair dealing are predicated upon the existence of a contract. "Every contract or duty within this title imposes on obligation of good faith in its performance and enforcement." General Statutes § 42a-1-304. "[T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000).
Contrary to these holdings, a federal court, employing Connecticut law, has suggested that the duty of good faith and fair dealing be extended to agents: "As the agent of a party who had a duty of good faith based on a contract, [the defendant] also effectively had such a duty in its interactions in the contractual relationship." Citizens Communications Co. v. Trustmark Ins., 303 F.Sup.2d 197, 207-08 (D.Conn. 2004).
Because Precision fails to allege that Patrick was a party to a contract with Precision and a contractual relationship is essential to both statutory and common-law claims of a breach of the duty of good faith and fair dealing, counts four and six are legally insufficient. Thus, the court strikes counts four and six.
Count Eight — Unjust Enrichment
Patrick next moves to strike count eight, on the ground that Precision fails to plead all the elements necessary for a claim of unjust enrichment for the following reasons: Patrick is not the owner of the construction project, and thus not enriched by any labor or materials Precision allegedly furnished, and Precision does not identify Patrick as the defendant it claims is unjustly enriched. In opposition, Precision claims it has alleged the requisite elements of unjust enrichment.
"Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 637, 882 A.2d 98, cert. denied, 276 Conn. 924, 888 A.2d 92 (2005). "[A] right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another." Gagne v. Vaccaro, 255 Conn. 390, 408, 766 A.2d 41 (2001). "The doctrine's three basic requirements are that (1) the defendant was benefitted, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment." Id., 409.
In count eight, Precision alleges that it "rendered labor, supplied goods and performed services, the reasonable economic value of which is $101,386.69. Despite due demand, the balance due remains unpaid." This "rendering of labor, supply of goods and performance of services without payment by the Defendant, Patrick, has resulted in undue benefit to the Defendant." As a result, "the Defendant has been unjustly enriched." (Revised Complaint, Count 8, ¶¶ 15-17.)
Patrick first attacks the count on the ground that it "was not the owner of this construction project and, accordingly, was not unjustly enriched by any alleged amount of labor or materials that Precision claims to have furnished on the project." (Patrick's Memorandum, p. 6.) Patrick does not cite any legal authority to support its assertion that a non-owner, such as a general contractor or agent, may not be unjustly enriched. Case law indicates otherwise. Connecticut courts have frequently treated unjust enrichment as a tort. See, e.g., LaSalla v. Doctor's Associates, Inc., 278 Conn. 578, 595, 898 A.2d 803 (2006); Macomber v. Travelers Property Casualty Corp., 277 Conn. 617, 640, 894 A.2d 240 (2006). And, as our Supreme Court has noted, an agent can be held liable to third persons injured by his tortious conduct. Scribner v. O'Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975). See also Pleines v. Franklin Construction Co., 30 Conn.App. 612, 616, 621 A.2d 759 (1993) (owner and contractor were unjustly enriched by subcontractor's unpaid efforts).
Even if Precision has sufficiently identified Patrick as the unjustly enriched defendant in this count, it fails to plead adequately the first element of an unjust enrichment claim, namely that the defendant be benefitted. Rather, Precision merely sets forth a conclusion: "As a result of the aforesaid, the Defendant has been unjustly enriched." (Revised Complaint, Count 8, ¶ 17.) "A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 588.
Even viewing the pleadings broadly and in favor of the pleading party, no facts are alleged demonstrating the manner in which Patrick was benefitted. Thus, the court strikes count eight as Precision fails to allege all the elements of an unjust enrichment claim.
Count Ten — CUTPA
Patrick moves to strike count ten on the ground that Precision does not allege any acts violative of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Patrick claims that first, Precision does not allege a breach of contract on which to base its CUTPA claim, and second, Precision fails to allege that Patrick made any promises with the requisite intent to not fulfill them.
General Statutes § 42-110g(a) provides a cause of action for "[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 . . ." General Statutes § 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." "A party seeking to recover damages under CUTPA must meet two threshold requirements. First, [the party] must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, [the party] must present evidence providing the court with a basis for a reasonable estimate of the damages suffered." (Internal quotation marks omitted.) Robichaud v. Hewlett Packard Co., 82 Conn.App. 848, 853-54, 848 A.2d 495 (2004).
Patrick first argues that Precision's CUTPA count depends upon its breach of contract count and is thus legally insufficient. "For the same reason Precision's breach of contract count fails to state a claim for which relief can be granted, Count 10, which is based on the breach of contract count, likewise fails." (Patrick's Memorandum, pp. 6-7.)
A CUTPA claim need not be predicated upon a breach of contract. In Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 805 A.2d 735 (2002), the defendant, a subcontractor, reneged on a promise to award the plaintiff, a sub-subcontractor, a contract. The defendant later argued that the plaintiff did not have a CUTPA claim because there was no breach of contract and thus the plaintiff could not demonstrate an ascertainable loss. "The flaw in this argument," noted the Appellate Court, "is that it assumes an identity between contracts law and CUTPA law. More specifically, it assumes that conduct consisting of the unjustified failure to enter into a contract can never be conduct that causes losses that are cognizable under CUTPA." Id., 355; see also Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 724-27, 627 A.2d 374 (1993) (contractual privity not a prerequisite for a CUTPA claim).
In relevant part, Patrick argues that Precision merely alleges Patrick made a promise that it failed to keep (namely, to get a counter-signed contract from Empyrean), not that Patrick made a promise with a present intent to break the promise. Without this present intent, claims Patrick, the broken promise does not comprise an unfair or deceptive act meriting a CUTPA claim.
"[I]n determining whether a practice violates CUTPA, we have adopted the criteria set out in the cigarette rule by the Federal Trade Commission . . .: (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]." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). "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.) Id.
A violation of CUTPA may be established by showing a deceptive practice or act. Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 28, 860 A.2d 738 (2004), cert. denied, 273 Conn. 907, 867 A.2d 839 (2005). An act or practice is deceptive if there is a representation, omission or other practice likely to mislead, the act or practice is reasonably interpreted by the other party, and it is likely to affect the other party's decisions or conduct. Id. A misrepresentation, as a deceptive act, may thus be the basis for a cause of action under CUTPA. See, e.g., Friedlander Limited Partnership v. Cohen, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412547 (April 15, 2005, Skolnick, J.) (if plaintiff alleges that a defendant made a misrepresentation during the course of business, with or without the intent to deceive, and that misrepresentation led plaintiff to lose money or property, he has alleged a cause of action under CUTPA).
An intentional misrepresentation is an adequate ground upon which to base a CUTPA claim. See Connecticut National Bank v. Voog, 233 Conn. 352, 366-68, 659 A.2d 172 (1995); Greene v. Orsini, 50 Conn.Sup. 312, 926 A.2d 708 (2007). Moreover, neither knowledge of falsity nor intent to deceive, mislead or defraud need be proven to establish a violation of CUTPA. See Muniz v. Kravis, 59 Conn.App. 704, 713, 757 A.2d 1207 (2000); Prishwalko v. Bob Thomas Ford, Inc., 33 Conn.App. 575, 583, 636 A.2d 1383 (1994). Thus, a CUTPA claim may be based on allegations of negligent misrepresentation as well as intentional misrepresentation. See Friedlander Limited Partnership v. Cohen, supra, Superior Court, Docket No. CV 04 0412547; Communications Systems, Inc. v. Ceruzzi, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 96 0153343 (January 17, 2002, Mintz, J.). Because CUTPA does not require an intent to deceive, even "[a]n allegation of innocent misrepresentation can amount to a CUTPA violation." Hendriks Associates v. Old Lyme Marina, Superior Court, judicial district of New London, Docket No. 546496 (November 22, 2000, Martin, J.).
The Restatement describes negligent misrepresentation as follows. "One who, in the course of his business . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." 2 Restatement (Second), Torts § 552, p. 126 (1977). Also note that "CUTPA proscribes a broader range of conduct than did the common-law action for misrepresentation [and a] CUTPA plaintiff need not prove reliance or that the representation became part of the basis of the bargain." (Internal quotation marks omitted.) Prishwalko v. Bob Thomas Ford, Inc., supra, 33 Conn.App. 583.
Precision alleges that it relied upon the defendants' acts, including Patrick's representations that a countersigned written agreement existed. (Revised Complaint, Count 10, ¶ 15.) As alleged, these representations occurred as follows. In November 2005, Patrick assured Precision that Empyrean would sign a written agreement and encouraged Precision to continue work on the project. (Revised Complaint, Count 10, ¶ 10.) In December 2005, Patrick told Precision that changes in the scope of Precision's work on the project would be incorporated into the written agreement and Patrick would get the owner to sign and quickly return the written agreement. (Revised Complaint, Count 10, ¶ 11.) On January 19, 2006, Precision sent Patrick a signed written agreement which incorporated the terms of the oral contract, about four days later Patrick confirmed via e-mail that Empyrean had countersigned the written agreement. (Revised Complaint, Count 10, ¶ 12-14.) Then, in February 2006, Patrick admitted that no agreement countersigned by Empyrean existed. (Revised Complaint, Count 10, ¶ 16.)
Precision further alleges that Patrick violated CUTPA by making false and misleading representations and omissions regarding its intentions to contract with Precision, misrepresenting its intentions with "reckless indifference and/or in intentional and wanton violation of the rights of Precision," and concealing and otherwise failing to disclose its true intentions to contract in order to gain the benefit of Precision's work. (Revised Complaint, Count 10, ¶ 20.)
Taking all well pleaded facts and those facts necessarily implied from the allegations as admitted, Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006), Patrick knew, or should have known, there was no countersigned agreement when it represented that there was such an agreement on January 23, 2006. This is a negligent, if not intentional, misrepresentation.
Precision alleges facts that rise to the level of negligent or intentional misrepresentation to Precision. As either a negligent or intentional misrepresentation may comprise a violation of CUTPA, the court denies Patrick's motion to strike with respect to count ten.
Count Twelve — Promissory Estoppel
Finally, Patrick moves to strike count twelve, the promissory estoppel claim, on the ground that Precision fails to allege that Patrick "did or said something calculated or intended to induce Precision to believe certain facts existed and to act on that belief." (Patrick's Memorandum, p. 9.) In response, Precision maintains that its complaint clearly established that Patrick "repeatedly represented that a contract had been entered into and that [Precision] should continue to provide labor and materials to the project." (Precision's Memorandum, p. 6.)
"Promissory estoppel is asserted when there is an absence of consideration to support a contract" and "serves as an alternative basis to enforce a contract in the absence of competing common-law considerations." (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 88, 873 A.2d 929 (2005). "Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." Chotowski v. State, 240 Conn. 246, 268, 690 A.2d 368 (1997).
"A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance." (Internal quotation marks omitted.) Saye v. Howe, 92 Conn.App. 638, 648, 886 A.2d 1239 (2005). "Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future . . . [A] mere expression of intention, hope, desire or opinion, which shows no real commitment, cannot be expected to induce reliance . . . The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire, or opinion." (Internal quotation marks omitted.) Id., 648. Whether a given representation is "promissory" or a mere expression of intention, hope, desire, or opinion is a question of fact to be determined in light of the circumstances under which the representation was made. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 17 n. 6, 662 A.2d 89 (1995).
Precision alleges that it relied upon "the representations and assurances of the Defendant Patrick . . ." (Revised Complaint, Count 12, ¶ 15.) As alleged, these representations and assurances occurred as follows. In November 2005, Patrick assured Precision that Empyrean would sign a written agreement and encouraged Precision to continue work on the project. (Revised Complaint, Count 12, ¶ 10.) In December 2005, Patrick told Precision that changes in the scope of Precision's work on the project would be incorporated into the written agreement and Patrick would get the owner to sign and quickly return the written agreement. (Revised Complaint, Count 12, ¶ 11.) On January 19, 2006, Precision sent Patrick a signed written agreement which incorporated the terms of the oral contract, about four days later Patrick confirmed via e-mail that Empyrean had countersigned it. (Revised Complaint, Count 12, ¶ 12-14.)
As alleged, Patrick's representations signal both intent and commitment. Patrick telling Precision that it would get the contract signed by Empyrean ("when I get the signed agreement, I will send it to the owner." (Revised Complaint, Count 12, ¶ 11.)) was a statement of intent rather than a statement of commitment. Conversely, Patrick's assurance that modifications to the oral contract will be incorporated may also be viewed as intent, but it is intent that rests upon on a commitment that the contract will be reduced to a writing and signed.
Precision, however, alleges neither that Patrick encouraged it to continue work after telling Precision that the written agreement had been signed, nor that the statement that the written agreement had been signed was a misrepresentation. Therefore, even reading the pleadings most favorably to Precision, Precision does not adequately plead facts alleging that Patrick made promissory statements upon which Precision relied to its detriment.
Precision only realleges paragraphs 1-14 of count one, not paragraph 16 in which it alleges Patrick admitted to Precision that there was no written agreement signed by Empyrean.
Precision, by insufficiently alleging that Patrick made promissory statements, does not set forth a valid promissory estoppel claim and thus, the court grants the motion to strike as to count twelve.
Prayers for Relief
Patrick has also moved to strike the prayers for relief as to counts two, four, six, eight and twelve, which request costs. They are stricken.
Patrick also moved to strike costs and attorneys fees from the prayer for relief for count four. Precision agreed to amend its prayer for relief to eliminate the claim for attorneys fees with respect to count four.
CONCLUSION
For the foregoing reasons, the court grants Patrick's motion to strike with respect to counts two, four, six, eight and twelve and denies Patrick's motion as to count ten. Further the court grants the motion to strike as to the prayers for relief for counts two, four, six, eight, and twelve.