Opinion
No. CV09-5005218S
January 26, 2010
MEMORANDUM OF DECISION RE MOTIONS #104 and #106
The parties have argued before the court two motions for summary judgment as to count one of the complaint. The issues involve the seminal case of Audobon Associates Ltd. Partnership v. Barclay Stubbs, 225 Conn. 804, 626 A.2d 729 (1993). The plaintiff seeks to have the court grant her motion for partial summary judgment (#106) as to liability on count one on the ground that a legally binding settlement of the case was reached and that the defendants have breached this agreement. The defendants tender their motion for summary judgment as to count one on the basis that a binding settlement agreement pursuant to Audobon and its progeny was never reached.
On August 11, 2009, the plaintiff, Christina Baron, filed the four-count complaint in this action against the defendants, Maxam Initiation Systems, LLC, and Maxam North America, Inc. Count one alleges breach of contract, count two alleges negligent or fraudulent misrepresentation, count three alleges breach of the duty of good faith and fair dealing and count four alleges violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
Count one of the complaint alleges the following facts. The defendants hired the plaintiff to work at their commercial explosives factory in Sterling in April 2008, and discharged the plaintiff on October 17, 2008. On or about January 26, 2009, the plaintiff filed a complaint with the Connecticut commission on human rights and opportunities (CHRO) alleging discrimination based upon the plaintiff's sex and pregnancy. On June 5, 2009, the plaintiff, through counsel, offered to settle the CHRO claim, and tender a release and withdrawal, for a sum certain. On June 10, 2009, the defendants' counsel contacted the plaintiff's counsel and represented that he had been authorized to accept the plaintiff's offer and pay a sum certain in exchange for a general release and withdrawal of the CHRO claim. As a result, on June 10, 2009, the parties agreed to settle the case with the execution of a release and withdrawal as incidental to the settlement agreement. Between June 10, 2009, and June 29, 2009, the parties exchanged several drafts of a settlement and release document. On June 29, 2009, the plaintiff received a final settlement and release document from her counsel, which she later executed and sent back to her counsel. The plaintiff's counsel forwarded the agreement to the defendants on July 2, 2009. On July 17, 2009, the defendants told the plaintiff that they had a "change of heart" and would not pay the agreed sum. The defendants have not paid the agreed settlement amount.
On September 17, 2009, the defendants filed a motion for summary judgment on count one of the complaint on the ground that a binding settlement agreement was never formed. The motion is accompanied by a memorandum of law. On October 21, 2009, the plaintiff filed a motion for partial summary judgment as to liability on count one on the ground that a legally enforceable settlement agreement was formed and that the defendants breached it. The motion is accompanied by a memorandum of law. Simultaneously, the plaintiff filed a memorandum of law in opposition to the defendants' motion for summary judgment. On October 28, 2009, the defendants filed a reply memorandum of law in further support of their motion for summary judgment and in opposition to the plaintiff's motion for partial summary judgment. The defendants have submitted copies of email correspondence between counsel for the defendants and counsel for the plaintiff as evidence in support of their motion. Like the defendants, the plaintiff has also submitted copies of email correspondence between counsel for the defendants and counsel for the plaintiff. Additionally, the plaintiff has submitted copies of the various drafts of the settlement agreement as exchanged by counsel. Both motions, along with a motion to strike counts two, three and four, were heard at the short calendar on November 2, 2009. The motion to strike will be addressed in a separate memorandum.
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
"When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Id., 318-19. Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49.
The defendants argue that their motion for summary judgment on count one of the complaint, alleging breach of contract, should be granted on the ground that a binding settlement agreement was never formed. The defendants maintain that the email correspondence between counsel for the defendants and counsel for the plaintiff shows that the parties did not intend the underlying CHRO matter to be settled unless and until both parties executed a written settlement agreement, which never happened. The plaintiff argues that her motion for partial summary judgment as to liability on count one should be granted on the ground that a legally enforceable settlement agreement was formed when, on June 10, 2009, the plaintiff's counsel, on behalf of the plaintiff, accepted the defendants' settlement offer via email. The plaintiff further argues that the defendants have breached this agreement.
"The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence." (Internal quotations marks omitted.) L R Realty v. Connecticut National Bank, 53 Conn.App. 524, CT Page 3773 534, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). "The intention of the parties manifested by their words and acts is essential to determine whether a contract was entered into and what its terms were." (Internal quotations marks omitted.) Finley v. Aetna Life Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987). "To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met, no enforceable contract exists." (Citations omitted; internal quotation marks omitted.) L R Realty v. Connecticut National Bank, supra, 534-35. "If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Internal quotations marks omitted.) MD Drilling Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, 456, 889 A.2d 850 (2006). "A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties." (Internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 730, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).
"In the absence of definitive contract language . . . the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact." (Internal quotations marks omitted.) Finley v. Aetna Life Casualty Co., supra, 202 Conn. 199. Similarly, "[w]hether the parties intended to be bound without signing a formal written document is an inference of fact for the trial court . . ." (Internal quotations marks omitted.) Nanni v. Dino Corp., 117 Conn.App. 61, 66, 978 A.2d 531 (2009). Conversely, "[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) John M. Glover Agency v. RDB Building, LLC, 60 Conn.App. 640, 644, 760 A.2d 980 (2000). "[A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete." (Citation omitted; internal quotation marks omitted.) L R Realty v. Connecticut National Bank, supra, 53 Conn.App. 535.
To grant either motion for summary judgment on this breach of contract claim, the moving party must show that there is no genuine issue as to any material fact. "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The alleged contract at issue, a settlement agreement entered into to resolve the plaintiff's separate CHRO claim against the defendants, is alleged to have been formed through the exchange of email correspondence between counsel for the defendants and counsel for the plaintiff. The evidentiary facts as to the exchange of correspondence and the words contained therein are undisputed. Instead, it is the meaning and interpretation of those facts in determining the intentions of the parties that frames the dispute over the existence of the contract.
Since the dispute is over the existence of a contract, the intent of the parties is a material fact. Therefore, the question to be decided by the court is not: What was the intended effect of the correspondence exchanged by the parties? Instead, the proper question is: Is there an issue as to the intended effect of the correspondence exchanged by the parties? Clearly there is a genuine issue as to the intended effect of the correspondence exchanged by the parties and that, therefore, the motions for summary judgment must be denied.
Each party has submitted identical versions of the exchange of email correspondence between counsel for the defendants and counsel for the plaintiff as evidence in support of the motions. By virtue of this correspondence, the parties agree on the following. By letter from the plaintiff's counsel to the defendants' counsel dated June 5, 2009, the plaintiff made a settlement demand for $12,500. By email from the defendants' counsel to the plaintiff's counsel dated June 10, 2009, the defendants counter-offered to settle the plaintiff's claims for $10,000. The plaintiff's counsel replied by an email dated the same day, stating "[the plaintiff] will settle for $10,000 . . . I will await the release." By email dated the next day, June 11, 2009, defendants' counsel sent a draft settlement agreement to the plaintiff's counsel. The final identical correspondence submitted by both parties was an email from the defendants' counsel to the plaintiff's counsel, dated July 17, 2009, describing the defendants' "change of heart about the settlement," and informing the plaintiff that "upon further reflection [the defendants] [do] not wish to settle the case."
The defendants submitted additional evidence of email correspondence between the plaintiff's counsel and the defendants' counsel between June 11, 2009, and July 17, 2009, which the plaintiff's counsel neither referenced nor disputed in its reply memorandum or other pleadings. The topics of this correspondence were certain clauses in the draft settlement agreement. After several emails and changes to the draft settlement agreement, this evidence indicates that, in accord with the complaint's allegations, a final version of the settlement agreement was created which was signed by the plaintiff and sent to the defendants' counsel on July 2, 2009.
Considering the defendants' motion for summary judgment first, the defendants have the burden of demonstrating that, on the basis of the email correspondence submitted as evidence, there is no genuine issue as to any material fact that a binding settlement agreement was never formed. In the defendants' memorandum of law in support of their motion, the defendants argue in the section captioned "statement of undisputed facts" (emphasis added) that the plaintiff's counsel's statement in his email dated June 10, 2009, that he would "await the release" "clearly [signifies] that plaintiff, like defendants, understood that the agreement would be reduced to writing." The defendants also argue that "what is implicit from the parties' action — to wit, that the settlement would not become final and binding until a written agreement was negotiated and signed by both parties — is abundantly clear from several provisions of the agreement that plaintiff eventually executed" (emphasis in original) and goes on to list three of these provisions. Throughout their memorandum, the defendants refer to the facts as undisputed.
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotations marks omitted.) Zielinski v. Kotsoris, supra, 279 Conn. 318. Additionally, "[a]n important exception exists . . . to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007). Despite the defendants' statements that the facts are undisputed, when the court views the evidence in the light most favorable to the opponent, it is not "quite clear what the truth is." See Zielinski v. Kotsoris, supra, 279 Conn. 318. The plaintiff's complaint alleges that as a result of the correspondence between counsel, "on June 10, 2009, the parties agreed to settle the case with the execution of a release and withdrawal as incidental to the settlement agreement, which is supported by valid consideration." Looking at the evidence submitted by the defendants, in particular the emails exchanged on June 10, 2009, there is a genuine issue as to a material fact, namely, whether the parties intended that the emails between counsel would create a binding settlement agreement without the creation of a formal written settlement agreement.
The defendants' counsel's counter-offer of settlement stated that the defendants "have authorized me to offer your client $10,000 in exchange for a general release and withdrawal of the CHRO claim, and to otherwise settle the matter. If this is acceptable to [the plaintiff], we will draw up an appropriate agreement." While this language is susceptible to the defendants' interpretation that the defendants intended that an "appropriate agreement" be drawn up before a binding contract was created, it is equally susceptible to the plaintiff's interpretation that she intended her acceptance of the $10,000 offer to result in a binding contract that would "settle the matter" and require the plaintiff only to "exchange a general release and withdrawal of the CHRO claim" as her performance of the contract. The plaintiff's counsel's email response supports the latter interpretation in that it instructs the defendants' counsel to issue payment to the plaintiff. It would be unusual for counsel to request payment unless he thought that a binding contract had been created. As result, there is no language making it "quite clear" that an acceptance of the counter-offer would only result in a binding contract upon the signing of an agreed upon written document. Therefore, the defendants have failed to make a showing that: "it is quite clear what the truth is"; "excludes any real doubt as to the existence of any genuine issue of material fact" and negates the plaintiff's claim that a contract was formed. "[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). Accordingly, as a genuine issue of material fact exists as to the parties' intentions, the court hereby denies the defendants' motion for summary judgment.
Denial of the defendants' motion for summary judgment does not resolve the plaintiff's motion for partial summary judgment. In her motion, the plaintiff has the burden of demonstrating that there is no genuine issue as to any material fact. In the plaintiff's memorandum of law in support of her motion, the plaintiff asserts in the section captioned "statement of undisputed facts" (emphasis added) that there are disputed facts among the parties, stating: "There are few disputed facts among the parties in terms of the chronology of events or the actual e-mails or documents exchanged." The plaintiff states that one of these disputed facts is that the defendants "argue that the parties in this case unequivocally agreed that signing the settlement documents was a necessary condition to settling this case," although goes on to state that the argument is "supported neither by the law nor the facts in this case."
If this confused argument is not enough to show that the plaintiff has failed to meet her burden of establishing facts that entitle her to judgment, the emails exchanged on June 10, 2009 continue to demonstrate that there is a genuine issue as to the parties' intent as to the effect of the emails between counsel. As the emails offered by the plaintiff are the same as those offered by the defendant, the analysis that the defendants' counsel's email is susceptible to competing interpretations of intent and raises a genuine issue of material fact is equally applicable to the plaintiff's motion. Turning to the plaintiff's counsel's email reply to the defendants' counsel, the plaintiff argues that the statement "[the plaintiff] will settle for $10,000," created a binding contract between the parties. But, viewing the evidence in the light most favorable to the opponent, the email is also susceptible to the interpretation that this response was not an acceptance of the counter-offer, but part of a negotiation of the settlement, and that plaintiff's counsel's statement in that same email that "I will await the release," indicated that a final agreement was contingent on review of the release. There is no language that definitively declares the plaintiff's counsel's email to be an acceptance of the counter-offer that creates a binding contract. On the issue of the parties' intended effect of the emails between counsel, the plaintiff has failed to make a showing that "it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." The court therefore denies the plaintiff's motion for partial summary judgment.
For the foregoing reasons, the defendant's Motion for Summary Judgment, #104, and the plaintiff's Motion for Partial Summary Judgment, #106, are denied.
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103
The defendant has filed a motion to strike counts two, three and four of the plaintiff's four-count complaint. As to count two alleging negligent or fraudulent misrepresentation, the defendant posits that the plaintiff fails to properly allege either fraudulent intent or detrimental reliance. As to count three alleging breach of a claimed duty of good faith and fair dealing, the defendant posits that the plaintiff fails to provide any facts supporting an allegation of bad faith. As to count four alleging violation of the Connecticut Unfair Trade Practices Act, the defendant asserts that the statute does not apply to the conduct as set forth in the complaint and that the plaintiff further fails to allege any unfair trade practices.
On August 11, 2009, the plaintiff, Christina Baron, filed the four-count complaint in this action against the defendants, Maxam Initiation Systems, LLC, and Maxam North America, Inc. Count one alleges breach of contract, count two alleges negligent or fraudulent misrepresentation, count three alleges breach of the duty of good faith and fair dealing, and count four alleges violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
Count one of the complaint alleges the following facts. The defendants hired the plaintiff to work at their commercial explosives factory in Sterling in April 2008, and discharged the plaintiff on October 17, 2008. On or about January 26, 2009, the plaintiff filed a complaint with the Connecticut commission on human rights and opportunities (CHRO) alleging discrimination based upon the plaintiff's sex and pregnancy. On June 5, 2009, the plaintiff, through counsel, offered to settle the CHRO claim, and tender a release and withdrawal, for a sum certain. On June 10, 2009, the defendants' counsel contacted the plaintiff's counsel and represented that he had been authorized to accept the plaintiff's offer and pay a sum certain in exchange for a general release and withdrawal of the CHRO claim. As a result, on June 10, 2009, the parties agreed to settle the case with the execution of a release and withdrawal as incidental to the settlement agreement. Between June 10, 2009, and June 29, 2009, the parties exchanged several drafts of a settlement and release document. On June 29, 2009, the plaintiff received a settlement and release document from her counsel, which she later executed and sent back to her counsel. The plaintiff's counsel forwarded the agreement to the defendants on July 2, 2009. On July 17, 2009, the defendants told the plaintiff that they had a "change of heart" and would not pay the agreed sum. The defendants have not paid the agreed settlement amount.
Count two repeats the allegations of the first count and alleges that, to the plaintiff's detriment and loss, the defendants represented to the plaintiff that they had agreed to the settlement, the plaintiff relied on that representation, the representation was false and the defendants knew or should have known that it was false. Count three also repeats the allegations of count one and further alleges that the defendants had a duty to deal with the plaintiff in good faith and in a fair and reasonable manner and that by intentionally reneging on the agreement the defendants breached that duty, all to the plaintiff's detriment and loss. Count four repeats the allegations of count one and also alleges that the practices contained therein violated CUTPA as they were unfair and deceptive, the product of unfair and deceptive trade practices, committed willfully and knowingly by the defendants and resulted in the plaintiff suffering a loss.
On September 17, 2009, the defendants filed a motion to strike counts two, three and four of the complaint on the grounds that the plaintiff fails to allege either fraudulent intent or detrimental reliance, that the plaintiff fails to allege any facts supporting an allegation of bad faith, that CUTPA does not apply to the conduct alleged in the complaint and that the plaintiff has failed to allege any unfair trade practices. The motion is accompanied by a memorandum of law. On October 28, 2009, the plaintiff filed an objection to the defendants' motion to strike with a memorandum of law in support. The motion to strike, along with competing motions for summary judgment on count one, was beard at the short calendar on November 2, 2009. The motions for summary judgment will be addressed in a separate memorandum.
"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). "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., 240 Conn. 576, 588, 693 A.2d 293 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Id., 580. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The defendants argue in their motion to strike that three of the four counts alleged in the complaint are legally insufficient. Each challenged count is considered individually.
I Count Two: Negligent/Fraudulent Misrepresentation
The defendants argue that count two is legally insufficient to state a claim of negligent or fraudulent misrepresentation because the plaintiff fails to plead any facts showing fraudulent intent or detrimental reliance. The plaintiff argues that the facts alleged in count two adequately and sufficiently state a claim for negligent misrepresentation.Count two of the complaint is captioned "negligent/fraudulent misrepresentation." This language creates an ambiguity as to the allegations of the complaint because "a claim of fraudulent misrepresentation, [is] a separate and distinct tort from the tort of negligent misrepresentation." Kramer v. Petisi, 285 Conn. 674, 684, 940 A.2d 800 (2008). Therefore, in deciding the motion to strike as to count two, the court must first determine whether the allegations of count two state a claim for fraudulent misrepresentation or a claim for negligent misrepresentation.
"[T]he interpretation of pleadings is always a question of law for the court . . . Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties." (Citation omitted; emphasis in original; internal quotation marks omitted.) Petitte v. DSL.net, Inc., 102 Conn.App. 363, 374-75, 925 A.2d 457 (2007).
"The essential elements of a cause of action in fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon the false representation to his injury . . . All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery." (Citations omitted; internal quotations marks omitted.) Citino v. Redevelopment Agency, 51 Conn.App. 262, 275, 721 A.2d 1197 (1998).
Additionally, "[the Supreme Court] has long recognized liability for negligent misrepresentation. [The court has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth." (Internal quotations marks omitted.) Kramer v. Petisi, supra, 285 Conn. 681. "Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).
In count two, the plaintiff alleges the following: "The defendants negligently and fraudulently misrepresented to the plaintiff that they had agreed to the above settlement, the plaintiff relied on that representation, which the defendants knew, or should have known, was false, all to the plaintiff's detriment and loss." Count two of the plaintiff's complaint alleges sufficient facts to support a claim of negligent misrepresentation, given that the plaintiff alleges that the defendant knew, or should have known, that the representation was false, and that it was to the plaintiff's detriment and loss. This finding is supported by the decision of the Appellate Court in Petitte v. DSL.net, Inc., supra, 102 Conn.App. 363, affirming the trial court's interpretation of the plaintiff's "infliction of emotional distress" claim as a claim of intentional infliction of emotional distress. Id., 374-76. The court reached its decision despite acknowledging that, "the plaintiff's allegations include language not inconsistent with a claim of negligent infliction of emotional distress;" (emphasis added) id., 376 n. 3; because the fact remained that "the plaintiff failed to allege the distinct torts as separate causes of action in his complaint, as required by our rules of practice." Id.
The defendants move to strike count two, which, as discussed above, alleges only a claim of negligent misrepresentation. The defendants argue that count two is legally insufficient because the plaintiff fails to plead any facts showing fraudulent intent or detrimental reliance. "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotations marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). Since the defendants' only grounds for striking count two of the complaint are that it fails to plead any facts showing fraudulent intent or detrimental reliance, the motion to strike as to count two must be denied because fraudulent intent and detrimental reliance are not elements of a negligent misrepresentation claim.
II Count Three: Breach of Duty of Good Faith and Fair Dealing
The defendants argue that count three is legally insufficient to state a claim for breach of the duty of good faith and fair dealing because the plaintiff fails to plead any facts showing that the defendants acted in bad faith. The plaintiff argues that she has pleaded the necessary factual allegations to support such a claim.
"The relevant legal principles are well established. [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term." (Internal quotations marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 563, 979 A.2d 1055 (2009). "[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." (Internal quotations marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002).
"To constitute a breach of [the implied covenant of good faith and fair dealing], 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 . . . Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain . . ." (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, supra, 117 Conn.App. 563-64.
In her memorandum of law in opposition to the defendants' motion to strike, the plaintiff argues that her allegation in count three that the defendants acted intentionally establishes bad faith because "[s]uch intentional conduct is more than mere negligence." The language of count three alleges, "[b]y virtue of the negotiations in the underlying [CHRO] litigation, the defendants had a duty to deal with plaintiff in good faith and in a fair and reasonable manner. By intentionally reneging on the above settlement agreement, the defendants breached their duty to deal with the plaintiff in good faith and in a fair and reasonable manner, all to the plaintiff's detriment and loss."
The plaintiff further argues that "[i]t is fairly implicit in the context of this case that the defendants were prompted by an interested motive." "Under modern rules of pleading . . . pleadings should be read broadly and realistically, rather than narrowly and technically . . . That does not mean, however, that the trial court is obligated to read into pleadings factual allegations that simply are not there or to substitute a cognizable legal theory that the facts, as pleaded, might conceivably support for the noncognizable theory that was actually pleaded." (Citation omitted; internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004). "[T]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty . . . essential allegations may not be supplied by conjecture or remote implication." (Citation omitted; internal quotation marks omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).
In Keller v. Beckenstein, supra, 117 Conn.App. 564, the trial court struck the plaintiff's count alleging breach of the duty of good faith and fair dealing because "the plaintiffs failed to allege that the defendants acted in bad faith . . . The plaintiffs allege[d] no fraud, misrepresentation or improper motive on the part of the defendants." (Internal quotation marks omitted.) In concluding that the trial court properly struck the count, the Appellate Court held: "The plaintiffs merely made conclusory statements of law without any factual allegations to support such conclusions . . . Mere conclusions of law, without factual support, are not enough to survive a motion to strike." Id., 565.
In the present case, the plaintiff, in count three, does not allege fraud, misrepresentation or improper motive by the defendants. The plaintiff alleges only that the defendants intentionally reneged on the settlement agreement. While intent to act may show more than mere negligence, it does not by itself constitute "fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties . . . some interested or sinister motive . . . [O]r a dishonest purpose." Id., 563-64. The plaintiff merely set forth a conclusory statement of law without any factual allegations to support that conclusion. See id., 565. Count three, therefore, is legally insufficient to state a claim for breach of the duty of good faith and fair dealing. The court hereby grants the defendants' motion to strike as to count three.
Although the plaintiff alleges misrepresentation in count two, she fails to allege misrepresentation as a basis for the alleged breach of the duty of good faith and fair dealing in count three.
III
Count Four: Violation of Connecticut Unfair Trade Practices Act
The defendants argue that count four is legally insufficient to state a claim for violation of CUTPA. The plaintiff concedes that count four may require additional facts to support the CUTPA claim and will replead in accordance with Practice Book § 10-44. The court hereby grants the defendant's motion to strike as to count four.
Although the plaintiff alleges misrepresentation in count two, she fails to allege misrepresentation as a basis for the alleged breach of the duty of good faith and fair dealing in count three.
For the foregoing reasons, the court denies the defendants' motion to strike as to count two and grant the defendants' motion to strike as to counts three and four.