Opinion
No. CV05 4003437 S
June 20, 2006
MEMORANDUM OF DECISION
On July 21, 2005, the plaintiff, Advanced Environmental Interface, Inc., filed a three-count complaint against the defendants, Thomas Archer (Archer) and Archer Cissell Associates, LLC (the LLC), alleging the following facts. The plaintiff and the LLC entered into an agreement wherein the LLC requested the plaintiff to provide services, materials, and work at various sites for environmental remediation investigation. The plaintiff agreed to this request and provided the work, services and materials throughout 2003. The LLC failed to make complete payment. After the plaintiff made requests for payment to the LLC, the plaintiff advised Archer, a member or employee of the LLC, that a lawsuit would be filed to compel payment. Archer offered to pay the LLC's debts to the plaintiff in exchange for the plaintiff foregoing the filing of suit against the LLC. The plaintiff agreed to Archer's proposal. Archer made partial payment to the plaintiff as agreed, but thereafter failed to make payment.
Count one of the complaint asserts a claim of breach of contract; count two asserts a quantum meruit claim; and count three asserts a claim of unjust enrichment.
On November 1, 2005, Archer filed a motion to strike all three counts as they relate to him. The first ground of the motion is that the breach of contract claim alleged in the first count is legally insufficient because the alleged contract violates the statute of frauds, General Statutes § 52-550(a)(2). The second ground of the motion is that the quantum meruit claim and unjust enrichment claim, as alleged in counts two and three respectively, are legally insufficient because both counts incorporate allegations of breach of an express contract. The motion was accompanied by a memorandum of law. On April 11, 2006, the plaintiff filed a memorandum of law in opposition.
General Statutes § 52-550(a) provides in relevant part: "No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: . . . (2) against any person upon any special promise to answer for the debt, default or miscarriage of another . . ."
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). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003.). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 890 A.2d 1269 (2006).
Breach of Contract
Archer argues that count one should be stricken because it alleges that Archer agreed to answer for the debt of another, but fails to allege that this agreement was in writing as required by General Statutes § 52-550(a)(2). The plaintiff counters that the agreement did not need to be in writing because it is an original undertaking and is therefore not subject to § 52-550(a)(2).
"The statute of frauds provides that an oral promise made to answer for the debt of another is unenforceable . . . The statute does not apply, however, if the promise is an original undertaking rather than a collateral one . . . Fundamentally the distinction between a contract which falls within the condemnation of the statute of frauds and one which does not is that the former is a collateral undertaking to answer in case of a default on the part of the obligor in the contract, upon whom still rests the primary liability to perform, whereas in the latter the obligation assumed is a primary one that the contract shall be performed. (Citations omitted; internal quotation marks omitted.) Kerin Agency, Inc. v. West Haven Painting Decorating, Inc., 38 Conn.App. 329, 331-32 (1995).
The well-established test has been articulated as follows: "If . . . there is a benefit to the promisor which he did not before, and would not otherwise, enjoy and in addition the act is done upon his request and credit there ordinarily arises an original undertaking not within the statute. The question as to whom credit was given, which is determinative of whether the agreement was an original undertaking not within the statute, is one of fact." (Internal quotation marks omitted.) Kerin Agency, Inc. v. West Haven Painting Decorating, Inc., supra, 38 Conn.App. 332. "In such cases courts must rely upon the circumstances of each particular case, and its general features, in order to ascertain the intention of the parties, and how they viewed it, where it is doubtful whether it was a contract of suretyship or guaranty, or an original undertaking." Sadd v. Siegelbaum, 124 Conn. 383, 385, 200 A. 346 (1938). It is clear that the inquiry into whether an agreement is an original undertaking is often fact intensive.
The statute of frauds is permitted "to be raised by a motion to strike only when the alleged agreement falls squarely within those categories of agreements required to be in writing." Guillette v. McAlpine, Superior Court, judicial district of Windham, Docket No. 02 0068940 (March 24, 2003, Foley, J.) In the present case, the plaintiff alleges that Archer offered to pay the debt of the LLC directly, and did in fact begin to make payment to the plaintiff. The plaintiff further alleges that it forwent the filing of suit based on Archer's promise to pay. Finally, the plaintiff alleges that Archer is possibly a member of the LLC. Reading these allegations broadly and construing them in the light most favorable to sustaining their legal sufficiency; see Greco v. United Technologies Corp., supra, 277 Conn. 347; this court finds that the facts and circumstances adduced at trial may demonstrate that the agreement was an original undertaking not within the condemnation of the statute of frauds. "Where the legal grounds for [a motion to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). The determination as to whether the agreement in the present case falls within the statute of frauds is dependent upon whether the underlying facts demonstrate an original undertaking or a collateral one. Based on the foregoing, Archer's motion to strike as it pertains to count one is denied.
Quantum Meruit and Unjust Enrichment Archer argues that the second and third counts should be stricken because they incorporate allegations of breach of an express contract into counts alleging quantum meruit and unjust enrichment. The plaintiff argues that the motion to strike should be denied because the plaintiff has merely pleaded alternative theories of liability. "The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit." United Coastal Industries, Inc v. Clearheart Construction Co., 71 Conn.App. 506, 513, 802 A.2d 901 (2002). "[W]hile a plaintiff may claim alternative relief based upon an alternative construction of the cause of action . . . pursuant to Practice Book § 10-26, alternative pleading must be set forth in separate counts." (Internal quotation marks omitted.) Whitby School, Inc. v. Grenaille, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195602 (Lewis, J.T.R.) ( 36 Conn. L. Rptr. 285, 286). "It has been held in several recent Superior Court cases that allegation of an express contract between the parties incorporated into a count stating a claim for unjust enrichment causes a violation of the rule that those alternative causes of action must be pleaded in separate counts." Burke v. The Boatworks, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 044001838 (July 26, 2005, Jennings, J.) This logic has similarly been applied to bar the pleading of an express contract within a count stating a claim for quantum meruit. See, e.g., Whitby School, Inc. v. Grenaille, supra, 36 Conn. L. Rptr. 286.In the present case, the plaintiff incorporates breach of contract allegations from count one into its quantum meruit allegations in count two, as well as its unjust enrichment allegations in count three. Consequently, counts two and three are legally insufficient. Accordingly, Archer's motion to strike as it pertains to counts two and three is granted.