Opinion
No. NNH CV11 6018164 S
August 4, 2011
MEMORANDUM OF DECISION RE MOTION FOR STRIKE (#101)
FACTS
This action arises from a dispute regarding condominium common expenses between the plaintiff, Marie Birnbaum, and the defendants, the Brantwood Homeowners Association and its executive board members Cynthia Williams, Barry E. Hoberman, Gregory Walby, Mathilda Ellwanger, and Andrew E. Poole. The plaintiff commenced suit by service of process of the summons and complaint on February 15, 2011. The action was thereafter filed with the court on February 23, 2011. The three-count complaint seeks declaratory relief in count one, count two asserts a breach of fiduciary duty claim, and count three alleges a claim pursuant to the Connecticut Unfair Trade Practices Act. The complaint contains the following factual allegations pertinent to the instant motion to strike.
As the motion to strike is directed only at count three, this memorandum addresses only those allegations contained therein.
The plaintiff is the owner of several units in the Brantwood condominium community (the community). The Brantwood Homeowner's Association (the association) acts as a management body for the preservation, architectural control and improvement of common areas for the community, and is governed by a "Declaration of Condominium of Brantwood and Rules and Regulations" (declaration), which is binding upon the community. The management and administration of the community is further controlled by its bylaws, which regulate "operation, use, maintenance, architectural control, and improvement of the common areas" of the community. The bylaws of the community provide for governance by an executive board (the board), of which the individually named defendants are members and are each under a duty "to exercise ordinary and reasonable care" in managing the community. On or about July 26, 2010, the board members adopted an amendment to the declaration in violation of the plaintiff's rights, and contrary to the provisions of the declaration and bylaws of the association. Specifically, the board implemented an "improper assessment of common expenses . . . depriving the plaintiff of her property rights as a unit owner." The board's action was unreasonable as it "disproportionately overcharged owners of all units other than townhouses" and, as a result, "caused a reduction in the fair market value of plaintiff's units that are not townhouses."
In count three, the plaintiff alleges that these "actions of the association constitute an unfair or deceptive trade practice" in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110 et seq., in that the "conduct is immoral, unethical, oppressive, unscrupulous and/or violated public policy." The plaintiff claims that she has suffered monetary damages as a result of the defendants' breach. On April 25, 2011, the defendants filed a motion to strike and memorandum of law in support. The defendants attach a copy of the declaration, rules and regulations and bylaws of the association to its memorandum of law. The defendants specifically move to strike on the ground that count three is legally insufficient to state a claim upon which relief can be granted as the allegations "fail to support a cause of action for violations of the Connecticut Unfair Trade Practices Act." The plaintiff did not file an objection to the motion to strike. The defendants thereafter withdrew their request for oral argument on the motion to strike, and the court took the motion on its papers on May 31, 2011.
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). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotations marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
The defendants claim that CUTPA "does not apply in situations, such as this, when the conduct at issue relates to the management of condominium unit owners' associations." Specifically, the defendants argue that "the purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce." The defendants argue that the plaintiff's CUTPA claim in count three should be stricken from the complaint as legally insufficient because it "does not . . . allege that the management activities of the defendants constitute trade or commerce" and "the conduct complained of in the complaint does not . . . meet the definition of trade or commerce under CUTPA."
CUTPA provides that "[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." (Emphasis added.) § 42-110b(a). Thus, "[t]he purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce . . ." (Internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 493, 977 A.2d 228, cert. granted in part on other grounds, 293 Conn. 935, 981 A.2d 1080 (2009). "Trade" and "commerce" is defined as "the advertising, the sale or rent or lease, the offering of sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state." General Statutes § 42-110a(4).
Our Supreme Court has previously addressed whether the activities of condominium management associations fall within trade or commerce under CUTPA. In Rafalowski v. Old County Road, Inc., 245 Conn. 504, 507, 714 A.2d 675 (1998), the Court reviewed the question as to whether the trial court properly concluded that "the activities of the defendant in managing a condominium association do not constitute trade or commerce within the meaning of [CUTPA]. . ." The Supreme Court affirmed the trial court's determination that CUTPA was inapplicable as the allegations of mismanagement by a condominium association did not constitute trade or commerce activities within the statute's meaning, stating that it was "a proper statement of . . . the applicable law on those issues." Id., 508.
In the present case, the allegations made by the plaintiff can be characterized similarly as general claims of mismanagement on the part of the association in improperly voting to approve assessments of common expenses and not cognizable as a CUTPA claim alleging unfair or deceptive acts in trade or commerce. In fact, the plaintiff specifically asserts that the association "generally act[s] as a management body for the preservation, maintenance, architectural control and improvement of the common areas of the condominium" and that the board members were under a duty to exercise "ordinary and reasonable care in managing the condominium." (Emphasis added.) As such, it follows that the plaintiff has not even alleged that the defendants were engaged in the performance of any trade or commerce in the conduct complained of regarding its association activities. Pergament v. Green, 32 Conn.App. 644, 655, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993) ("[i]n order to allege a CUTPA violation properly, the plaintiff must allege, inter alia, that the acts complained of were performed in a trade or business").
Accordingly, the plaintiff has failed to plead facts sufficient to satisfy the prerequisite of a valid CUTPA claim in that the complained of conduct by the defendants does not fall within the definition of trade or commerce. Thus, the plaintiff's allegations in count three of the complaint are legally insufficient to sustain a claim pursuant to CUTPA.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike count three of the complaint is granted.