" Home Electric Co., 86 N.C. App. at 545, 358 S.E.2d at 542. We also note that plaintiff's reliance on Bridgeport Restoration Co., Inc. v. A. Petrucci Constr. Co., 211 Conn. 230, 557 A.2d 1263 (1989), is misplaced. The Bridgeport Court affirmed the award of damages to the subcontractor for breach of contract and unfair and deceptive trade practices where the contractor, who listed the contractor as an MBE and won the bid, sought further adjustments in the subcontract.
See Naples, 295 Conn. at 227. The sole case cited by Plaintiff regarding its CUTPA claim, Bridgeport Restoration Co. v. A. Petrucci Const. Co., 211 Conn. 230 (1989), is inapposite as, in that case, the court found that the general and subcontractor had entered into an oral contract before bidding, which the defendant sought to change after winning the overall contract bid. Id. at 231.
The plaintiff's Second Amended Complaint does set forth sufficient allegations to support a CUTPA cause of action resting upon unfair practices and deceptive practices short of fraud. See e.g., Bridgeport Restoration Co., v. A. Petrucci Constr. Co., 211 Conn. 230 (1989).
His tolerance of the delays is not, as a matter of law, absolving of all claims against TVI. The pace, and order, at which TVI, and its attorney, pursued approvals constitute circumstances, the character of which, with the decision to terminate while offering to continue at better terms, plaintiff claims support the CUTPA claim. See Bridgeport Restoration Co., Inc. v. A. Petrucci Construction Co., 211 Conn 230 (1989); Lester v. Resort Campland International, Inc., 27 Conn. App. 57 (1992). TVI relies on Boulevard Associatesv. Sovereign Hotels, 72 F.3d 1029, 1038-39 (2d Cir. 1995) wherein the Second Circuit ruled that a mere breach of contract is not a basis for a CUTPA claim, citing several Connecticut Superior Court decisions and alluding to Lester which involved aggravating circumstances surrounding the breach thus leaving open the question of what circumstances would permit a CUTPA claim.
[a] simple contract breach is not sufficient to establish a violation of CUTPA, particularly where the count alleging CUTPA simply incorporates by reference the breach of contract claim and does not set forth how or in what respect the defendant's activities are either immoral, unethical, unscrupulous or offensive to public policy.Boulevard Associates v. Sovereign Hotels, Inc., 72 F.3d 1029, 1039 (2d Cir. 1995) (quoting Chaspek Mfg. Corp. v. Tandet, 1995 WL 447948, at *12 (Conn.Super.Ct. June 16, 1995)) (see Connecticut decisions cited therein for the majority rule that a simple breach of contract does not violation CUTPA); c.f. Lester v. Resort Camplands Int'l, Inc., 27 Conn. App. 59, 72, 605 A.2d 550 (1992) (affirming jury's findings that breach of contract constituted a CUTPA violation); Bridgeport Restoration Company, Inc. v. A. Petrucci Construction Co., 211 Conn. 230, 557 A.2d 1263 (1989) (same). A conclusion "that a company violates CUTPA whenever it breaks an unprofitable deal — would convert every contract dispute into a CUTPA violation.
As in any case involving the challenge to a factual finding, we view the evidence and the permissible inferences therefrom in the light most favorable to sustaining the trial court's determination of probable cause. Bridgeport Restoration Co. v. A. Petrucci Construction Co., 211 Conn. 230, 232, 557 A.2d 1263 (1989); Cohen v. Cohen, 182 Conn. 193, 202, 438 A.2d 55 (1980). James testified that the respondent was behind him and Blue, on the same side of the street, and that Lewis was in front of them, on the other side of the street.
These were cases where the action was brought against the contracting party, not a subcontractor, but the policy considerations seem similar. In Bridgeport Restoration v. A. Petrucci Construction, 211 Conn. 230 (1989), the trial court found a breach of contract and a CUTPA violation. The defendant was awarded a building contract and indicated the plaintiff would do subcontracting work. An officer of the defendant promised the plaintiff that if it got the contract the plaintiff would get the subcontract.
Applying these criteria to the facts found supra, the court concludes that the plaintiff committed a CUTPA violation. See Bridgeport Restoration Co. v. A. Petrucci Construction Co., 211 Conn. 230, 557 A.2d 1263 (1989); Web Press Service Corporation v. CT Page 430-BB New London Motors, Inc., supra, 203 Conn. 342; Lester v. Resort Camplands International, Inc., 27 Conn. App. 59, 72, 605 A.2d 550 (1992). Since "a party need not prove an intent to deceive to prevail under CUTPA"; Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 106; it is not dispositive nor inconsistent that the court also finds that the sixty-three year old plaintiff, at the time of his breach, may not have believed that he had a contract to perform at a firm contract price of $19,000.
Inc., 203 Conn. 342 (1987) (Web Press I) and Web Press II, 205 Conn. 479 (1987) (sale of motor vehicle); Hinchliffe v. American Motors Corp. , 184 Conn. 607 (1981) (sale of motor vehicle); Tessman v. Tiger Lee Construction Co., 228 Conn. 42 (1993) (sale and construction of new home); Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App. 575 (1994) (sale of motor vehicle, misrepresentation as to its mileage);Lester v. Resort Campgrounds International, Inc., 27 Conn. App. 59 (1992) (purchase of membership for use of campground and facilities);Gionfriddo v. Carter-Howe Development Corp. , 27 Conn. 706 (1992) (breach of a lease agreement); Francoline v. Klatt, 26 Conn. App. 203 (1991) (action for specific performance of a contract for the sale of property; defendant counterclaimed, alleging that the plaintiff had violated CUTPA by recording documents with alterations not agreed to by the parties); DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464 (1990) (purchase of a new car); Bridgeport Restoration v. A. Petrucci Construction, 211 Conn. 230 (1989) (defendant awarded a contract based on plaintiff's contractor's bid, and later awarded subcontract to another); Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243 (1988) (defendant's dismantling of plaintiff's mobile home for off-site storage violated CUTPA);Gargano v. Heyman, 203 Conn. 616 (1987) (plaintiff lessee of commercial premises from defendant denied damages under CUTPA when defendant terminated electrical services to the premises held, although the defendant had violated CUTPA, plaintiff showed no ascertainable loss); Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22 (1987) (CUTPA damages awarded for defendant conversion of an automobile which plaintiff had taken to the defendant to be repaired). There is a split of authority among the trial courts which have addressed the issue.
Plaintiff relies on several Connecticut cases to support its position. See Bridgeport Restoration Co. v. A. Petrucci Construction Co., 211 Conn. 230, 232, 557 A.2d 1263 (1989) (court upholds judgment awarding damages for breach of contract and CUTPA violations in action involving contractor's refusal to honor agreement to award subcontract to plaintiff); Murphy v. McNamara, 36 Conn. Sup. 183, 416 A.2d 170 (1979) (violations of CUTPA and UCC found where consumer enters into agreement to lease television with option to purchase at highly inflated price); CT Page 8230-Q Comen v. Udolf, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. 25 07 57 (August 21, 1990, Jones, J.) (court concludes that defendant's fraudulent misrepresentation allegations could rise to the level of CUTPA violation in a non-UCC action involving a lease). However, the cases relied upon by plaintiff are distinguishable from the present case because none of the aforementioned cases involve product failures.