Opinion
NNHCV186078820S
03-01-2019
William ZETTERGREN et al. v. TURN KEY RENOVATIONS, LLC et al.
UNPUBLISHED OPINION
OPINION
PIERSON, J.
STATEMENT OF THE CASE
This action involves the construction of a new home on a lot located at 74 Melba Street in Milford, Connecticut. In their operative complaint, the plaintiffs, William Zettergren and Carla Apura, allege that the defendants, Turn Key Renovations, LLC (Turn Key) and Lombardo Building Group (Lombardo Building), are Connecticut limited liability companies, and that the defendant, Vincent R. Lombardo, Jr., was a licensed new home construction contractor. They further allege that the defendant, Christopher J. Bjorklund, was the managing member of Turn Key. According to the plaintiffs, Turn Key, Lombardo Building, and Lombardo entered into agreement whereby Lombardo Building and Lombardo would construct a new home on a lot owned by Turn Key, located at 74 Melba Street in Milford, Connecticut (property). Further according to the plaintiffs, on or about September 15, 2016, the plaintiffs executed a purchase and sale agreement (agreement) in which they agreed to purchase a newly-constructed home owned by Turn Key and built by Lombardo Building and Lombardo. The plaintiffs allege that in Schedule F of the agreement, Turn Key, Lombardo Building, and Lombardo refer to themselves as "the owning partnership." The plaintiffs claim that, in addition to the agreement, the parties agreed to several punch list items and change orders.
The plaintiffs allege that they completed their purchase of the property on or about January 19, 2017.
This action is brought in seventeen counts, alleging breach of contract (First, Fifth, Tenth, and Fifteenth Counts), breach of the covenant of good faith and fair dealing (Second, Sixth, and Eleventh Counts), breach of warranties (Third, Seventh, and Twelfth Counts), violations of the Connecticut Unfair Trade Practices Act, General Statutes § § 41-110a et seq. (CUTPA) (Fourth, Eighth, Thirteenth, and Sixteenth Counts), and unjust enrichment (Ninth, Fourteenth, and Seventeenth Counts). Rev. Compl. (Docket Entry No. 112). By their motion to strike (Docket Entry No. 116), the defendants, Bjorklund and Turn Key, challenge the legal sufficiency of the Fourth, Fifteenth, Sixteenth and Seventeenth Counts.
The Fourth and Sixteenth Counts purport to allege claims for violation of CUTPA against Turn Key and Bjorklund, respectively. In the Fourth Count, the plaintiffs assert that Turn Key was engaged in the conduct of trade or commerce in the State of Connecticut and that Turn Key was prohibited by CUTPA from engaging in unfair or deceptive acts or practices. The plaintiffs further allege that Turn Key violated CUTPA by conveying and/or building a home that was not free of faulty materials, constructed according to sound engineering standards, constructed in a workmanlike manner, and fit for habitation, at the time of the delivery of the deed. Furthermore, the plaintiffs contend that Turn Key violated CUTPA by not registering as a new home contractor while representing itself to be the builder of a new home at the property, in violation of General Statutes § § 20-417b and 20-417d. The plaintiffs also contend that Turn Key violated CUTPA by failing to provide the plaintiffs with a copy of their certificate of registration, in violation of General Statutes § 20-417d. Additionally, the plaintiffs allege that Turn Key acted deceptively and with a dishonest purpose in violation of CUTPA by deliberately omitting work and completing work poorly in an effort to meet deadlines; deliberately ignoring town codes adopted from the International Residential Code; and deliberately using substandard materials in an effort to cut costs. The plaintiffs allege that the foregoing acts and omissions were immoral, unethical, oppressive, unscrupulous, and offended public policy, and that they suffered resulting ascertainable monetary losses.
In the Sixteenth Count, the plaintiffs allege that Bjorklund "maintained control of the finances, business operations and policy decisions of Turn Key [ ]." The plaintiffs further allege that the plaintiffs entered into several change orders with Bjorklund and that these change orders included the name of another entity, non-party Bjorklund Properties, LLC. The plaintiffs assert that Bjorklund was the managing member of Bjorklund Properties, LLC and that he maintained control of the finances, business operations and policy decisions of that entity (in addition to Turn Key). The plaintiffs further assert that Bjorklund breached his written contracts with the plaintiffs by failing to complete the work described in the change orders, and that he is vicariously liable for the breaches of contract committed by Turn Key (as alleged in the First Count). In support of their CUTPA claim, the plaintiffs assert allegations similar to those made against Turn Key.
A distinction between the claims against Turn Key and Bjorklund appears in the paragraph alleging that Bjorklund acted deceptively and with a dishonest purpose, in violation of CUTPA, by conveying an improvement to an intermediate purchaser to evade the provisions of General Statutes § 47-116 et seq.; deliberately providing misleading change orders to the plaintiffs which included the names of two entities managed by him; deliberately providing misleading change orders to the plaintiffs which presented the appearance that he was the builder of the home; deliberately omitting work in an effort to meet deadlines; completing work poorly in an effort to meet deadlines; deliberately ignoring town codes; and/or deliberately using substandard materials.
As with the Sixteenth Count, the remaining counts at issue— namely, the Fifteenth and Seventeenth Counts— assert claims against Bjorklund, in breach of contract and unjust enrichment, respectively. In the Fifteenth Count, the plaintiffs allege the breaches of contract set forth in the Sixteenth Counts, stated above. In the Seventeenth Count, the plaintiffs claim that Bjorklund "was at all relevant times a managing member of Turn Key and Bjorklund Properties, LLC[, ]" that he received payment to build a new home for the plaintiffs, that he failed to build a new home properly and free of defects, and that as a result of his conduct, the plaintiffs "have suffered a detriment and Bjorklund has been unjustly benefitted."
In the motion to strike, Bjorklund argues that all the counts against him (Fifteenth, Sixteenth, and Seventeenth) should be stricken "because there is no cause of action against an individual merely because that individual is a member of an LLC." In addition, the defendants, Turn Key and Bjorklund, move to strike the Fourth and Sixteenth Counts of the complaint, alleging violations of CUTPA, on the grounds that the CUTPA counts allege mere breaches of contract and the plaintiffs’ allegations "of deliberate or otherwise deceptive conduct are conclusory, containing no specific facts supporting the same." Finally, the defendants argue that the allegations "pertaining to the New Home Construction Contractor Act [General Statutes § 20-417a et seq. (NHCCA) ] do not sufficiently identify an ascertainable loss caused by the alleged violation[s]." Docket Entry No. 116. In support of their motion, Turn Key and Bjorklund submitted a supporting memorandum of law. Docket Entry No. 117.
The plaintiffs filed an objection to the motion to strike, together with a supporting memorandum of law. Docket Entry No. 120. In the objection and accompanying memorandum, the plaintiffs argue that the CUTPA counts are legally sufficient because they allege in detail aggravating circumstances as well as statutorily-based, per se violations. Furthermore, the plaintiffs claim that with respect to the breach of contract count against Bjorklund, it states a sufficient claim against him individually. In the alternative, the plaintiffs argue that even if the Fifteenth Count fails to state a claim in breach of contract against Bjorklund individually, "the [plaintiffs] have alleged sufficient facts to pierce the corporate veil of a limited liability company." Pl. Opp. Brief., p. 6. As for the claim of unjust enrichment in the Seventeenth Count, the plaintiffs argue that they have alleged an adequate claim against Bjorklund.
Turn Key and Bjorklund filed a reply brief. Docket Entry No. 121. Thereafter, on November 5, 2018, oral argument was held and the motion and objection were submitted to the court for adjudication.
DISCUSSION
I
"[A] motion to strike challenges the legal sufficiency of a pleading ..." (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000); see also Practice Book § 10-39(a); Cadle Co. v. D’Addario, 131 Conn.App. 223, 230, 26 A.3d 682 (2011). It is the proper procedural vehicle to test a counterclaim. JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008). The standard of review applicable to motions to strike is well established. As the motion is directed to the viability of a party’s pleading as a matter of law, the court’s inquiry is limited to the facts alleged in the challenged pleading. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). Any consideration of matters outside the pleadings is generally prohibited. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990) ("[i]n deciding upon a motion to strike ... a trial court must take the facts to be those alleged in the [pleadings] ... and cannot be aided by the assumption of any facts not therein alleged" [citations omitted; internal quotation marks omitted]).
So-called "speaking" motions to strike, which import facts from outside the pleadings, have long been prohibited in our practice. Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ..." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). The trial court may not rely upon evidence outside the four corners of a challenged pleading in determining its legal sufficiency. Beck & Beck, LLC v. Costello, 159 Conn.App. 203, 207-08, 122 A.3d 269 (2015). "Where the legal grounds for ... a motion [to strike] are dependent upon underlying facts not alleged in the ... pleadings, the [moving party] must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotations marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). Although the court is thus limited to an examination of the pleadings on a motion to strike, "[w]hat is necessarily implied [in an allegation] need not be expressly alleged"; (internal quotation marks omitted) Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998); and the court is required to "read the allegations of the [challenged pleading] generously to sustain its viability ..." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000); see also Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997) (in keeping with its obligation to interpret pleading generously, court "must construe the facts in the [challenged pleading] most favorably to the [claimant]" [internal quotation marks omitted]).
Even so, a motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). Thus, the motion must be granted "if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215. "For the purpose of ruling upon a motion to strike, the facts alleged in a [challenged pleading] ... are deemed to be admitted." (Internal quotation marks omitted.) DeConti v. McGlone, 88 Conn.App. 270, 271 n.1, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
II
The court begins by addressing Bjorklund’s claim that all the counts alleged against him should be stricken because he has been sued "merely because he ... is a member of an LLC." Motion to Strike, p. 1. In support of this argument, Bjorklund relies on General Statutes § 34-251a(a), which provides as follows: "A debt, obligation or other liability of a limited liability company is solely the debt, obligation or other liability of the company. A member or manager is not personally liable, directly or indirectly, by way of contribution or otherwise, for a debt, obligation or other liability of the company solely by reason of being or acting as a member of manager. This subsection applies regardless of the dissolution of the company."
Bjorklund’s argument turns on whether the counts against him are, in fact, brought against him "merely because" he is a member of an LLC— in this case, a member of Turn Key and Bjorklund Properties, LLC— or whether the subject counts allege viable claims against him individually.
A
A review of the operative complaint demonstrates that the Fifteenth Count alleges a claim in breach of contract against Bjorklund both individually and in his capacity as a managing member of Turn Key and Bjorklund Properties, LLC, in control of the finances, business operations, and policy decisions of those corporate entities. As for the contractual claim against Bjorklund individually, the plaintiffs allege that they "entered into several change orders with Bjorklund" and that "Bjorklund breached his written contracts with the [plaintiffs] by failing to complete the work described in the change orders." Rev. Compl., Fifteenth Count, ¶¶ 16, 19. The plaintiffs further allege that as a result of Bjorklund’s conduct, they suffered damages. "The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages." (Internal quotation marks omitted.) CCT Communications, Inc. v. Zone Telecom, Inc., 327 Conn. 114, 133, 172 A.3d 1228 (2017). Construing the facts alleged most favorably to the plaintiffs, they have alleged a sufficient claim in breach contract against Bjorklund in his individual capacity.
B
i
This does not end the court’s analysis with respect to the Fifteenth Count. In addition to the allegations against Bjorklund individually, the Fifteenth Count also makes clear that the plaintiffs are seeking to impose liability on Bjorklund for breaches of contract purportedly committed by Turn Key and also, by implication, Bjorklund Properties, LLC. Thus, the plaintiffs allege that Bjorklund "maintained control of the finances, business operations and policy decisions of Turn Key" and that "Bjorklund ... is vicariously liable for the breaches [of contract] by Turn Key [ ]." Rev. Compl., Fifteenth Count, ¶¶ 15, 20. Also, by alleging that the change orders entered into between Bjorklund and the plaintiffs "also include the name of a second entity, Bjorklund Properties, LLC," and further, by claiming that Bjorklund was the managing member of Bjorklund Properties, LLC who "maintained control of the finances, business operations and policy decisions" of that corporate entity, the plaintiffs are alleging implicitly— if not expressly— Bjorklund’s liability for breaches of contract under agreements naming Bjorklund Properties, LLC. Rev. Compl., Fifteenth Count, ¶¶ 17, 18. In fact, the inclusion of the allegations pertaining to Bjorklund Properties, LLC would be superfluous if the plaintiffs did not intend impose liability on Bjorklund for the conduct of Bjorklund Properties, LLC. Thus, the Fifteenth Count also contains explicit and implicit claims of vicarious liability against Bjorklund for alleged breaches of contract by two limited liability companies. This raises the issue whether, in considering Bjorklund’s motion to strike the Fifteenth Count, the court should strike certain paragraphs of that count on the grounds that— as Bjorklund argues— he cannot be held responsible for the liability of limited liability companies of which he is a member or manager.
ii
The foregoing question raises a threshold procedural matter: whether it is proper for the court to strike individual paragraphs of a count of an operative complaint. This court discussed the procedural issue presented in Lacks v. White, Superior Court, judicial district of New Haven at New Haven, Docket No. NNH-CV-16-5036649 S (Sept. 25, 2018, Pierson, J.), as follows: "In general, a motion to strike is posed against an entire count, and all of the claims in a count stand if any one claim stands. ‘If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike.’ Bouchard v. People’s Bank, supra, 219 Conn. 471. ‘A [motion to strike] addressed simply to the count [in its entirety] will be overruled if any one theory is supported by the allegations in the count.’ (Internal quotation marks omitted.) Jolen, Inc. v. Brodie & Stone, PLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6053151-S (May 13, 2016, Kamp, J.) (62 Conn.L.Rptr. 343, 346 n.2) (one of plaintiff’s theories is sufficient to allow CUTPA claim to proceed, motion to strike is denied); see also Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-02-0175465-S (November 26, 2003, Gallagher, J.) (36 Conn.L.Rptr. 39, 40) (where motion to strike challenges entire count, but any part of plaintiff’s claims therein are legally sufficient, motion will fail); Farago v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. 524911 (May 18, 1993, Teller, J.) (if part of count is viable, it is not subject to motion to strike).
"However, in certain circumstances, independent claims may be stricken from a single count if they are sufficiently separable— for example, if the claims are stated in separate paragraphs and when leaving the improper allegations in the count might cause confusion. In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), our Supreme Court cited Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn.L.Rptr. 296, 298 n.1), and quoted parenthetically the following language from that case: ‘Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action ... Since 1978, however, the Practice Book has not contained such a constraint.’ (Internal quotation marks omitted.) The court in Coe v. Board of Education also cited Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV- 04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn.L.Rptr. 439, 440), and quoted parenthetically the following language from that case: ‘Prior case law ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint ... the proper course for the court is to strike those allegations only ..." [Internal quotation marks omitted.] Id.; see also Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven Docket No. CV-11-6016353-S (May 30, 2013, Wilson, J.) (‘[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph [or paragraphs] embodies an entire cause of action or defense’ [internal quotation marks omitted]). Furthermore, in Donovan v. Davis, 85 Conn. 394, 397-98, 82 A. 1025 (1912), the court stated: ‘A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated, and then only by [a motion to strike]. The only remedy "by which to test the sufficiency of a cause of action or defense, whether stated in one pleading, count or defense, or in a paragraph or paragraphs thereof," is a [motion to strike].’ See, e.g., Tiplady v. Maryles, 158 Conn.App. 680, 701-02 and n.9, 120 A.3d 528, cert. denied, 319 Conn. 946, 125 A.3d 527 (2015)."
In this case, the allegations of paragraphs 15, 17, 18, and 20 of the Fifteenth Count seek to impose vicarious liability on Bjorklund for the conduct of two limited liability companies of which he is the purported managing member, and which entities he allegedly controls. "Vicarious liability is based on the relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of the other." (Citations omitted; internal quotation marks omitted.) Alvarez v. New Haven Register, 249 Conn. 709, 720, 735 A.2d 306 (1999). The court concludes that the claims of vicarious liability against Bjorklund constitute causes of action separate from the direct claims against him because they require separate elements of proof— in this case, proof of the relationship between Bjorklund and the limited liability companies— which proof is unnecessary to impose liability on Bjorklund individually. See, e.g., Carrico v. Mill Rock Leasing, LLC, Superior Court, judicial district of New London at New London, Docket No. KNL-CV-17-6029022 S (May 18, 2018, Calmar, J.) ("[While] a plaintiff must prove that the possessor [of land] breached a duty of care for a premises liability claim, that element is not required for a vicarious liability claim against the same possessor ... The plaintiff’s premises liability negligence claim and vicarious liability claim are two separate and distinct causes of action" [citation omitted]). Moreover, in this case, because they are set forth in separate numbered paragraphs, the direct and vicarious liability claims may be separated easily.
These paragraphs were incorporated into the Sixteenth Count by reference.
iii
Having determined that it is proper procedurally to consider striking those paragraphs of the Fifteenth Count alleging vicarious liability, the court considers Bjorklund’s claim that he cannot be sued in vicarious liability as a result of General Statutes § 34-251a(a), and the related argument that the plaintiffs have not alleged facts sufficient to pierce the corporate veils of Turn Key and Bjorklund Properties, LLC. The plaintiffs contend that the allegation that Bjorklund "maintained control of the finances, business operations and policy decisions of Turn Key" is sufficient to sustain a claim based on corporate veil piercing. Pl. Opp. Br., 7. The court agrees with Bjorklund that the plaintiffs have not alleged facts sufficient to pierce the corporate veil of the limited liability companies identified in the operative complaint, and as a result, they have not stated claims sufficient to impose personal liability on Bjorklund for the alleged acts and omissions of those corporate entities.
"A court may pierce the corporate veil only under exceptional circumstances ..." (Citation omitted; internal quotation marks omitted.) KLM Industries, Inc. v. Tylutki, 75 Conn.App. 27, 31, 815 A.2d 688 (2003). As held by our Appellate Court, "[in] such unusual circumstances, ‘[c]ourts will disregard the fiction of separate legal entity when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock ... Under such circumstances the general rule, which recognizes the individuality of corporate entities and the independent character of each in respect to their corporate transactions, and the obligations incurred by each in the course of such transactions, will be disregarded, where ... the interests of justice and righteous dealing so demand." (Internal quotation marks omitted.) Hersey v. Lonrho, Inc., 73 Conn.App. 78, 86, 807 A.2d 1009 (2002). KLM Industries, Inc. v. Tylutki, supra, 75 Conn.App. 31-32.
"When determining whether piercing the corporate veil is proper, our Supreme Court has endorsed two tests: the instrumentality test and the identity test." Id., 75 Conn.App. 32; see also Brendan Faulkner, Piercing The Corporate Veil in Connecticut, 83 No. 3 Conn. B.J. 251, 253 (2009) ("Connecticut law endorses two tests to determine whether to pierce the corporate veil: the identity rule and the instrumentality rule. An entity may be disregarded if the elements of either as satisfied. Most of the time, if one test is met, both are— they are simply slightly different roads to the same destination" [footnotes omitted; citations omitted; internal quotation marks omitted]).
"The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff’s legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of. Hersey v. Lonrho, Inc., supra, 73 Conn.App. at 87, 807 A.2d 1009.
"The identity rule has been stated as follows: If a plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise ... The concept of piercing the corporate veil is equitable in nature and courts should pierce the corporate veil only under exceptional circumstances." (Internal quotation marks omitted.) Id." (Footnotes omitted; internal quotation marks omitted.) KLM Industries, Inc. v. Tylutki, supra, 75 Conn.App. 32-33.
In order to survive a motion to strike, "facts satisfying each element of either the instrumentality rule or identity rule must ... be specifically pleaded." B. Faulkner, supra, 83 Vol. 3 Conn. B.J. 261. Thus, conclusory allegations concerning the necessary elements of the instrumentality or identity rules, such as control and unity of interest, are insufficient.
In Regulbuto v. General Health Management, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 0371842 S (Jan. 29, 1991, Clark, J.) (3 Conn.L.Rptr. 686), the court considered whether the plaintiff had alleged facts sufficient to pierce the corporate veil and hold an individual defendant personally liable. In that case, the plaintiff alleged that "[the] individual defendant is the majority and/or sole stockholder of the defendant corporation and the defendant corporation owns all of the stock of its subsidiary corporations. The individual defendant controls and dominates the business affairs and decision making of the defendant corporation and its subsidiaries thereby depriving the defendant corporation and its subsidiaries of an independent will or existence." Id. In striking the claims against the individual defendant, the Regulbuto court held that "[these] allegations are merely conclusions of law with insufficient facts to support them. The plaintiff has alleged no other facts regarding the individual defendant’s control over the corporation." Id.
Similarly, in Weinberg v. Isom, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-94-0140152 S (May 8, 1995, Karazin, J.), the court considered whether the following allegations were sufficient to pierce the corporate veil under either the instrumentality or identity theories: "[The] defendant officers and directors completely control the finances and business practices [of the corporations]; [the corporations] have no separate mind, will or existence of their own; there is such a unity of interest between the [individual] defendants and [the corporations] that it would defeat both equity and justice to recognize the fiction of separate identities between the defendants and [the corporations]; and accordingly, the corporate structure or veil of [the companies] should be disregarded and these [individual] defendants, who control the finances and business practices of [the companies], should be held liable for all of the damages suffered by the plaintiff on account of the conduct of [the companies]." (Internal quotation marks omitted.) In striking the claims against the individual defendants, the court held that "[these] allegations by the plaintiff are simply legal conclusions and legal argument, and ... the plaintiff has failed to allege any independent facts demonstrating the requisite control necessary to pierce the corporate veils of [the companies] under either the instrumentality or identity rules." (Citations omitted). Id.; see also Emma Rosina, LLC v. Bilides Building & Excavating, LLC, Superior Court, judicial district of New Haven at New Haven, Docket No. CV-02-0462976 S (Dec. 10, 2002, Zoarski, J.T.R.) (granting motion to strike where the plaintiff alleged that "[at] all relevant times ..., there was such a unity of interest between [the corporate defendant and the individual defendant] that for all intents and purposes there was never any individuality and separateness between [the corporate defendant and the individual defendant], and that [the corporate defendant] is the instrumentality and alter-ego of [the individual defendant, ]" the court holding that "[these] allegations are assertions ..., of legal conclusions and are not supported by facts necessary to demonstrate the requisite control that is required so that the plaintiff can invoke the court’s authority to pierce the corporate veil under either the instrumentality or identity rules." [internal quotation marks omitted; footnote omitted]); Brunette v. Bristol Savings Bank, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV-92-0453957 S (Sept. 15, 1993, Goldberg, S.J.) ("The allegation of de facto control of the companies by the individual defendants is not sufficient to satisfy the instrumentality rule ... Moreover, such allegations are merely conclusions of law with insufficient facts to support them ... [In addition], the de facto control alleged by the plaintiffs is insufficient to invoke the identity rule" [citations omitted]).
In light of the foregoing authorities, the court concludes that the plaintiffs’ allegations, set forth in the Fifteenth Count, are insufficient to allow the court to pierce Turn Key’s (or Bjorklund Property, LLC’s) corporate veil. The allegation that Bjorklund "maintained control of the finances, business operations and policy decisions" of these limited liability companies is wholly conclusory and unsupported by independent, demonstrable facts. As a result, the allegations of paragraphs 15, 17, 18, and 20 of the Fifteenth Count are legally insufficient.
III
Turn Key and Bjorklund challenge the legal sufficiency of the Fourth and Sixteenth Counts on the grounds that they fail to state legally viable claims under CUTPA because they allege a mere breach of contract and the allegations pertaining to the NHCCA fail to plead facts identifying an ascertainable loss. For the reasons that follow, these claims are rejected.
General Statutes § 42-110b(a) provides that "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." In determining whether or not the conduct at issue constitutes an unfair or deceptive trade practice, courts must apply the so-called "cigarette rule, " which requires the court to consider: "(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— whether, 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 ... 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." (Citations omitted; internal quotation marks omitted.) Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 725, 652 A.2d 496 (1995); accord, Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 880-81, 124 A.3d 847 (2015).
As noted by our Supreme Court, "the federal courts have abandoned [the cigarette rule] in favor of a more stringent test known as the substantial unjustified injury test. See 15 U.S.C. § 45(n) (2012)." Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 622 n.13, 119 A.3d 1139 (2015). However, as "the legislature has given no indication that it disapproves of our continued use of the cigarette rule as the standard for determining unfairness under CUTPA"; id.; that test continues to be applied by the Connecticut courts in the context of CUTPA claims.
To begin, the alleged violations of the NHCCA set forth in the Fourth and Sixteenth Counts, which include claimed violations of General Statutes § § 20-417b and 20-417d, are sufficient to support a CUTPA claim. General Statutes § 20-417g provides that "[a] violation of any of the provisions of section 20-417a to 20-417j, inclusive, shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b." Thus, a violation of the NHCCA constitutes a per se violation of CUTPA. Pleasant Beginnings, LLC v. Campisi, Superior Court, judicial district of New London at New London, Docket No. KNL-CV-16-6027026 S (Oct. 25, 2018, Calmar, J.) ("A violation of the NHCAA is a per se CUTPA violation" [citing General Statutes § 20-417g]); Kaesner Const. Co. v. Schimmeck, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FBT-CV-13-6035639 S (June 8, 2015, Jennings, J.) (60 Conn.L.Rptr. 503) ("A violation of the [NHCCA] is a per-se violation of CUTPA subjecting the offending contractor to compensatory damages (tripled), punitive damages, and an award of attorneys fees under CUTPA" [citations omitted]). Moreover, with respect to the ascertainable losses alleged by the plaintiffs in the Fourth and Sixteenth Counts, "[the] question of whether a plaintiff has suffered ascertainable losses as a result of a CUTPA violation is a question of fact to be determined by the trier." (Citation omitted; internal quotation marks omitted.) Pleasant Beginnings, LLC v. Campisi, supra, Superior Court, judicial district of New London at New London, Docket No. KNL-CV-16-6027026 S (Oct. 25, 2018, Calmar, J.).
The argument that the breach of contract allegations are insufficient to support the plaintiffs’ CUTPA claims also fails. It is well established that "a breach of contract may, but does not necessarily, rise to a level of a CUTPA violation ... [I]n the absence of aggravating unscrupulous conduct, mere incompetence [in performing a contract] does not by itself mandate a trial court to find a CUTPA violation." (Citation omitted; internal quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 432-33, 78 A.3d 76 (2013). "There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy." Muniz v. Kravis, 59 Conn.App. 704, 715, 757 A.2d 1207 (2000). "When [Connecticut Superior Courts] have permitted a CUTPA cause of action based on a breach of contract there generally has been some type of fraudulent behavior accompanying the breach or aggravating circumstances ... Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims ... and multiple breaches of contract." (Internal quotation marks omitted.) Always There Home Care v. Dube, Superior Court, judicial district of Waterbury, Docket No. CV-14-6022487-S (March 17, 2015, Brazzel-Massaro, J.) (59 Conn.L.Rptr. 958, 960).
Here, the plaintiffs have alleged multiple breaches of contract as well as unscrupulous conduct by the defendants, including multiple misrepresentations by Bjorklund. See, e.g., Rev. Compl., Sixteenth Count, ¶¶ 26 b) & c) (alleging that Bjorklund deliberately provided misleading change orders). As observed by the court in Greene v. Orsini, 50 Conn.Supp. 312, 316, 926 A.2d 708 (2007), "[a] misrepresentation can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would, in effect, be a deceptive act." Counts Four and Sixteen allege viable CUTPA claims.
IV
Finally, in the Seventeenth Count, the plaintiffs assert a claim in unjust enrichment against Bjorklund. "Unjust enrichment is, consistent with principles of equity, a broad and flexible remedy ... Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). Unjust enrichment is "based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated ... The question is: Did the party liable, to the detriment of someone else, obtain something of value to which the party liable was not entitled? ..." (Citation omitted; internal brackets omitted.) Schirmer v. Souza, 126 Conn.App. 759, 763-64, 12 A.3d 1048 (2011).
Bjorklund does not challenge the legal sufficiency of the Seventeenth Count on the grounds that it fails to allege the necessary elements of a claim in unjust enrichment. Rather, Bjorklund contends that the Seventeenth Count should be stricken for the same reason as the Fifteenth and Sixteenth Counts, namely, because "Count Seventeen identifies itself as only suing Mr. Bjorklund because of his status as a member of [Turn Key]." Def. Brief, p. 5. The court rejects this argument. The Seventeenth Count contains five numbered paragraphs, none of which are incorporated by reference from the prior counts. Of these paragraphs, three of them refer to Bjorklund alone. The only paragraph that makes reference to limited liability companies is number two, which reads: "Defendant Bjorklund was at all relevant times a managing member of Turn Key ... and Bjorklund Properties, LLC." For the reasons set forth in Section II, above, the court will strike paragraph 2. The remaining allegations of the Seventeenth Count, which are directed against Bjorklund in his individual capacity, will stand.
CONCLUSION
For the foregoing reasons, the motion to strike is GRANTED as to paragraphs 15, 17, 18, and 20 of the Fifteenth Count, and paragraph 2 of the Seventeenth Count. The motion to strike is DENIED in all other respects.