Opinion
CV186018931S
07-24-2019
Craig BIBB v. MODERN CONSTRUCTION, LLC et al.
UNPUBLISHED OPINION
OPINION
Shaban, J.
The plaintiff, Craig Bibb, has filed a ten-count substitute amended complaint alleging that the defendants Modern Construction, LLC (Modern) and David G. Nelson (Nelson) failed to complete roofing work on plaintiff’s property in accordance with a written contract with Modern. The plaintiff’s original complaint was the subject of a motion to strike by the defendants which was granted in part by the court. See motion to strike #108 and the court’s order dated January 4, 2019 #108.10. The defendant David Nelson has now filed a new motion to strike those counts of the substitute amended complaint addressed to him. Specifically, he moves to strike the sixth count alleging negligence relative to the work that was performed by the defendants, the seventh count alleging negligent misrepresentations made by him to the plaintiff, and the eighth count alleging a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA) based on the allegations set forth in the earlier counts.
Nelson contends through his motion that all three counts should be stricken. More specifically, he argues that as to both the sixth and seventh counts, he was a managing member of Modern and that he was not a party to the contract between the plaintiff and Modern. As such, he contends the allegations are insufficient to establish that he owed any duty to the plaintiff and therefore he cannot be held liable in negligence. As to the eighth count, he argues that the plaintiff’s CUTPA claim is insufficient as a matter of law. Oral argument was had on July 15, 2019 on the defendants’ motion and the plaintiff’s objection thereto.
In considering a motion to strike, the court must accept as true all well pleaded facts and construe them in the light most favorable to pleader. Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010). If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002). The court cannot rely on facts outside of the pleading. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).
As to the sixth count which alleges negligence on the part of Nelson, the plaintiff has incorporated the first seven paragraphs of the allegations of the first count which claims that Nelson is the president or managing member of the defendant Modern. In that first count, the plaintiff alleges that in November 2016 he entered into a written contract with Modern to have it perform roofing work on his property on Waramaug Road in Kent, Connecticut and that Modern breached the contract and the implied covenant of good faith and fair dealing in various ways. The plaintiff then further alleges in the sixth count that Nelson oversaw the work done that was contemplated by the contract but that he was negligent in that "he failed to use the level of care commensurate with a professional roofer" and thereby "breached his duty to the [plaintiff] to perform work in a reasonable, competent, and workmanlike manner ..." The plaintiff further alleges that as a result of Nelson’s failure to perform to the work called for in the contract, he has suffered damages. Nelson contends that as a managing member of Modern, he has no personal liability for the alleged torts of the company pursuant to this state’s statutes relative to limited liability companies.
As noted in the ruling on the prior motion to strike, our courts have addressed the issue of the personal liability of officers of a corporation or members of a limited liability company for torts alleged to have been committed by the company and/or its members. In Scribner v. O’Brien, Inc., 169 Conn. 389, 391, 363 A.2d 160 (1975), the plaintiff brought an action for breach of warranty, negligence and breach of implied warranty in a construction case relatively similar to the one now before the court. Both the corporation, and its president individually, were named as defendants even though the president signed the contract only as an officer of the corporation and not as an individual. Id., 403. The court noted that "the trial court concluded that both defendants were negligent during the construction of the dwelling and the driveway. It is clear that O’Brien [the president of the company] was present at the property on a daily basis, that he undertook to supervise the construction, and that he failed to act with reasonable care in that undertaking. Whether O’Brien was acting in his individual capacity or as an officer and agent of the named defendant, he is still liable to the plaintiffs for his participation in the negligence complained of ... It is ... true that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby." (Citations omitted.) Id., 403-04.
This principle was underscored in Sturm v. Harb Development, LLC, 298 Conn. 124, 2 A.3d 859 (2010), relative to the construction of a new home with many of the same theories of recovery as set forth in the present case. There the court specifically cited Scribner for the same principle outlined above. Id., 133-34. It went on to note that the statutes relative to limited liability companies "evinces no legislative intent to eliminate the right to impose liability on a member or manager of a limited liability company who has engaged in or participated in the commission of tortious conduct. Rather, the statute [General Statutes section 34-134] merely codifies the well-established principle that an officer of a corporation does not incur personal liability for its torts merely because of his official position." Id., 137.
In addressing a motion to strike a negligence count in the complaint against the individual defendant, the Sturm court noted that "[t]he essential elements of a cause of action in negligence are well established: duty, breach of that duty, causation, and actual injury" and that "[t]here is no question that a duty of care may arise out of a contract, but when the claim is brought against a defendant who is not a party to the contract, the duty must arise from something other than mere failure to perform properly under the contract." (Citations omitted; internal quotation marks omitted.) Id., 139-40. In the case now before the court, the plaintiff has specifically alleged in his substitute amended complaint that Nelson negligently performed or failed to complete the work required under the contract. He has not alleged that the Nelson was a party to the contract. As with the original complaint, the plaintiff has failed to plead allegations sufficient to establish the elements of a cause of action for negligence. All of the allegations relate to a failure to perform work that was called for under a contract that the plaintiff had entered into with Modern. Plaintiff’s allegation that Nelson breached his duty to plaintiff to perform work in a reasonable, competent, and workmanlike manner and citing instances thereof, only sets forth the grounds for a claim of breach of contract. Even read liberally, the plaintiff has simply stated that he suffered damages as a result of Nelson’s failures to perform the work called for under the contract with Modern. This does not rise to the level of alleging that Nelson’s actions as an individual were the proximate cause of any injury. They are allegations of a breach of contract clothed in tort language. The plaintiff has failed to properly plead the elements of a negligence count and failed to allege the existence of any contractual duty on the party of Nelson. The motion to strike the sixth count is granted.
As to the seventh count, which alleges negligent misrepresentation, the plaintiff has incorporated virtually all of the allegations of the second count, which alleges negligence as to Modern. "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). "Whether evidence supports a claim of ... negligent misrepresentation is a question of fact ..." (Citation omitted; internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 201-02, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008). Centimark Corp. v. Vill. Manor Associates Ltd. P’ship, 113 Conn.App. 509, 518, 967 A.2d 550, 558-59 (2009).
Through incorporation of the allegations of the sixth count, which itself had incorporated the allegations of the first count for breach of contract as to Modern, the plaintiff has again (as in its original complaint) created a pleading which has brought forth multiple theories of recovery in one count. Nonetheless, the court finds that the allegations of the seventh count are sufficient to allege a claim for negligent misrepresentation. The plaintiff has alleged that prior to Modern’s performance of any work, Nelson made negligent misrepresentations to the plaintiff about the ability, competence and terms of Modern’s work, that he did so in negligent disregard for the truth of each representation, that they were made to induce the plaintiff to enter into a contract with Modern, and that he reasonably relied on the representations in hiring Modern and has sustained damages as a result. The motion to strike the seventh count is denied.
Although our case law requires that the defendant make a statement that he knew or should have known was false, the allegations on a motion to strike are to be read liberally. That the exact wording of the plaintiff’s complaint does not allege that a false statement was made but rather that Nelson’s statements were made with a "negligent disregard as to the truth of each representation," the court will infer from that language that the plaintiff alleges that the defendant knew a false statement had been made.
As to the eighth count, the plaintiff has alleged a violation of CUTPA. The motion to strike asks this count be stricken on the basis that the plaintiff has not alleged facts to support such a claim including the fact that it is based on the breach of contract allegations of the first count against Modern. As noted above, Nelson was not a party to the contract. General Statutes § 42-110b(a) states "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Under the totality of the circumstances a trier of fact assesses a claim under Section 42-110b(a) using the "cigarette rule," considering "(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 business persons]." (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn.App. 800, 834, 3 A.3d 992 (2010). Though its reach is broad "not every contractual breach rises to the level of a CUTPA violation." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 228, 990 A.2d 326 (2010). "Not every misrepresentation rises to [the] level of [a] CUTPA violation." Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 571, 845 A.2d 417 (2004). "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). In the absence of allegations arising to such a level of conduct, a plaintiff has failed to properly plead a cause of action under CUTPA. See id.
Again the plaintiff has incorporated language from the first count into this count. He has also alleged that Nelson made various negligent representations to the plaintiff prior to and during the performance of the work under the contract, to induce the plaintiff to hire Modern and to allow it to continue working on the project. Further, he claims that "Nelson was an entity engaged in trade or commerce" and that he violated CUTPA by engaging "in the unfair and deceptive conduct described above, which was a pattern or practice in Modern’s business operations." Lastly, he has alleged that he has sustained damages as a result of such conduct. Substitute Amended Complaint, eighth count, paragraphs 8 through 13. As argued by the defendant in his memorandum of law, a breach of contract alone does not constitute a CUTPA violation. There must be something more, some aggravating factor that constitutes a violation of some concept of fairness. A misrepresentation can be considered an aggravating factor. E.g., Greene v. Orsini, 50 Conn.Supp. 312, 926 A.2d 708 (2007). As noted above, the court must read the complaint in the light most favorable to the nonmovant. By referring to Nelson’s specific negligent representations, that he was an entity engaged in trade or commerce, that he engaged in the "unfair and deceptive conduct described above" and that the plaintiff suffered damages as a result, the plaintiff’s CUTPA claim is legally sufficient to withstand a motion to strike. Whether the claim withstands an evidentiary challenge is a question for another day. Accordingly, the motion to strike the eighth count is denied.
So ordered.