Opinion
FBTCV115029512S.
11-16-2012
CAMBRIDGE MANOR OF FAIRFIELD, LLC v. Ione K. MYERS aka Ione Myers et al.
UNPUBLISHED OPINION
SOMMER, J.
INTRODUCTION
The above captioned case involves a claim by Cambridge Manor of Fairfield, LLC against Ione Myers and Marilyn Russell alleging that 1) Myers has failed to pay in full for services which Cambridge provided to her from January 6, 2010 through June 30, 2010 and 2) that Russell breached the terms of the Admissions agreement by failing to use Myers' fund to pay for the subject services in order to ensure that Myers qualified for Medicaid coverage.
In their Substituted Special Defenses and Counterclaim dated August 14, 2012, defendants assert several special defenses and counterclaims against Cambridge Manor based primarily on Cambridge Manor's billing practices. In particular, despite a contractual provision and practice of sending billing statements on a monthly basis, Cambridge Manor did not send Russell or Myers any statements for the first ten (10) months while Myers was a patient at Cambridge Manor. As a result, when Cambridge Manor finally sent an invoice on July 19, 2010, it was for the amount of $100, 198.
Defendants argue that had Cambridge Manor sent timely bills Myers would have qualified for Medicaid benefits within the first month of service. As a result of this conduct, Russell has asserted claims for breach of contract (First Counterclaim), breach of the implied covenant of good faith and fair dealing (Second Counterclaim), and violation of the Connecticut Unfair Trade Practices Act (" CUTPA") (Fourth Counterclaim), and Myers has asserted claims for breach of an implied contract (Third Counterclaim) and violation of CUTPA (Fourth Counterclaim). On August 30, 2012, Cambridge Manor moved to strike defendants' Third Special Defense, and First, Second and Fourth Counterclaims. The parties argued to the court on October 22, 2012.
STANDARD FOR MOTION TO STRIKE
" 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). " Whenever any party wishes to contest ... the legal sufficiency of the allegations of any ... counterclaim ... or of any one or more counts thereof, to state a claim upon which relief can be granted, or ... the legal sufficiency of any ... special defense ... that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). " A motion to strike is properly granted if the [counterclaim] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011). This court takes " the facts to be those alleged in the [counterclaim] ... and ... construe[s] [them] in the manner most favorable to sustaining [their] legal sufficiency." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012). " Moreover ... [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).
I. Defendants' Third Special Defense: Estoppel
The plaintiff argues that the defendants have not adequately pleaded the necessary elements for a defense of estoppel, namely, that there was no inducement to reliance on any facts by the plaintiffs. The plaintiff also argues that the defendants do not assert in their special defense that they even inquired as to the outstanding balance or had no convenient way of acquiring the balance owed to the plaintiff. Finally, the plaintiff argues that the defendants do not allege that the plaintiff had the means to know the amount of Myers' assets on hand by virtue of access to information. The defendants respond that the plaintiff represented that it would prepare Myers' Medicaid application yet failed to do so in a timely manner, thus causing a delay in the award of Medicaid benefits. They argue that it is implied that they relied on the representations by failing to take action on their own and that their allegations are sufficient to defeat a motion to strike.
" The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999); see also Practice Book § 10-50. " A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). In ruling on a motion to strike special defenses, a trial court is obligated " to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Nevertheless, " [t]he burden of alleging recognizable special defenses ... rests upon the defendant." Cowart v. Grimaldi, 46 Conn.Supp. 248, 250, 746 A.2d 833 (1997).
" Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury ... It is fundamental that a person who claims an estoppel must show that [she] has exercised due diligence to know the truth, and that [she] not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." In re Michaela Lee R., 253 Conn. 570, 756 A.2d 214 (2000). However, " the due diligence requirement is only an evidentiary requirement for prevailing on a claim of equitable estoppel, not a pleading requirement to state such a claim." (Emphasis in original.) Beckenstein v. Naier, Superior Court, judicial district of Hartford, Docket No. CV 08 5019254 (November 4, 2010, Sheldon, J.).
Thus, the plaintiff's argument that the estoppel special defense is legally insufficient because the defendants have not alleged that he exercised due diligence to know the truth has no merit because the due diligence requirement is an evidentiary requirement and not a pleading requirement. Id. Therefore, the failure to plead that the party claiming estoppel did not exercise due diligence in ascertaining the facts will not support a motion to strike. Taking the facts as true and construing them in the manner most favorable to sustaining their legal sufficiency, the special defense of estoppel is legally sufficient. The defendants' third counterclaim, which is incorporated into their estoppel defense, alleges that the plaintiff represented that it would prepare Myers' Medicaid application and that the plaintiff did not apply for Medicaid on behalf of Myers in a timely fashion. It can be inferred that the defendants relied on that representation by not applying for benefits themselves. The defendants have pleaded sufficient facts to support an estoppel defense as opposed to mere legal conclusions. Contra JP Morgan Chase Bank NA v. Ionescu, Superior Court, Judicial District of Fairfield, Docket No. CV 09 6004425 (January 31, 2011, Hartmere, J.) (granting motion to strike estoppel defense that merely recited elements of estoppel without sufficient supporting facts). Finally, it is noted that an estoppel defense need not be specially pleaded. Beckenstein v. Naier, supra, Superior Court, Docket No. CV 08 5019254.
II. First Counterclaim: Breach of Contract
Russell argues that the plaintiff breached the admissions agreement between it and Russell by failing to mail monthly statements which caused Myers to fail to qualify for Medicaid benefits, thereby causing Russell damages if she is ultimately held responsible for paying for Myers' care via the admissions agreement. The plaintiff argues that Russell cannot claim breach of contract damages because she was not listed as a party to the contract. It further asserts that Russell fails to allege damages. Finally, the plaintiff argues that Russell cannot maintain conflicting positions which she pleads regarding her alleged contractual responsibility; i .e., she claims that there is no contract based on the admissions agreement for purposes of her defense but also claim that there is a contract for purposes of her counterclaims.
" [A] counterclaim, if proper, is an independent action." Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985). " For purposes of examining pleadings relative to a counterclaim ... the party asserting it becomes the ‘ plaintiff’ on the counterclaim. Accordingly, the general rule is that [a] counterclaim should be pleaded in exactly the same way the claim would be pleaded in the complaint in an independent action." (Internal quotation marks omitted.) Id. " Practice Book § 10-10 provides that [i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff ... provided that each such counterclaim ... arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ... Furthermore, [a] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action ... A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Emphasis in original; internal quotation marks omitted.) Ameriquest Mortgage Co. v. Lax, 113 Conn.App. 646, 649, 969 A.2d 177 (2009).
" [T]he elements of a cause of action founded on breach of contract [are] (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party and (4) damages." McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). Actual damages, however, are not an element of a cause of action for breach of contract; nominal damages may be sought. See Hinchliffe v. American Motors Corp., 184 Conn. 607, 622, 440 A.2d 810 (1981). Additionally, the party alleging breach " may recover only for damages that are direct[ly] and proximate [ly] caused by a defendant's breach of contract, causation is an element— and a crucial one— of the plaintiff's prima facie case." (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, at 504.
The plaintiff is also asking to have it both ways. In the second count of its complaint, the plaintiff alleges that Russell breached her agreement as the responsible party, yet it also asks the court to strike the first counterclaim on the ground that there was no agreement. Contrary to the plaintiff's assertion, Russell is allowed to argue that there was no formation of an agreement that would make her responsible for paying Myers' bills, but, if there was, the plaintiff breached that agreement. See DeVita v. Esposito, 13 Conn.App. 101, 105, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988) (" [A]lternative pleading is justified ... when the pleader does not know all the facts necessary to make an election"). See also Read v. Town of Plymouth, 110 Conn.App. 657, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008) (motion to strike denied where it was not clear whether plaintiff's claim was within purview of defective highway statute because of undetermined facts; complaint properly contained alternative theories of recovery).
Further, Russell is not required to plead actual damages, as that is not an essential element of a breach of contract claim. Russell has alleged that the contract between she and the plaintiff, if there is one, sets forth a promise that the plaintiff will deliver billing statements at the first of each month. She has alleged that the plaintiff failed to do so thereby causing Myers to fail to qualify for Medicaid benefits. These facts, taken as true and construed in the manner most favorable to sustaining their legal sufficiency, are enough to support Russell's counterclaim for breach of contract on the theory that had the plaintiff complied with the terms of the contract she would not be exposed to liability on that contract for her alleged failure to ensure that Myers was covered under Medicaid.
III. Second Counterclaim: Breach of Covenant of Good Faith and Fair Dealing
The second counterclaim alleges a breach of the covenant of good faith and fair dealing by the plaintiff against Russell. The plaintiff claims that this counterclaim should be stricken because there was no agreement formed between the parties and because Russell did not plead a case for breach of contract, including damages recoverable in contract. Russell responds that she is permitted to plead that if there was an agreement then the plaintiff breached the covenant of good faith and fair dealing including plaintiff's failure to issue timely billings so it could charge higher rates as a breach of the covenant of fair dealing.
" [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." (Citations omitted; internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2003). " [W]hen one party performs the contract in a manner that is unfaithful to the purpose of the contract and the justified expectations of the other party are thus denied, there is a breach of the covenant of good faith and fair dealing, and hence, a breach of contract, for which damages may be recovered ..." (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn.App. 34, 44-45, 935 A.2d 334 (2007).
There are three elements to establishing a breach of this covenant which a party must plead: " first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." Troy v. Precision Computer Services, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 00 0082592 (September 19, 2001, Agati, J.).
" 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 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." (Citation omitted; internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., supra, 269 Conn. at 433. " [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ... It contemplates a state of mind affirmatively operating with furtive design or ill will." (Internal quotation marks omitted.) Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 42 n. 4, 867 A.2d 1 (2005). " Whether a party has acted in bad faith is a question of fact ..." (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).
In the present case, Russell has pleaded that the plaintiff " failed to issue billings to Russell in accordance with the terms of the Admissions Agreement so that it could instead charge Russell the private rates which are much higher than the Medicaid reimbursable rates." When the counterclaim is read broadly and realistically and favorably toward Russell, this allegation is enough to allege bad faith and a breach of the covenant of good faith and fair dealing. See Lincoln General Ins. Co. v. Rodriguez, No. CV 08 5007513 (Nov. 17, 2010) (allegation that insurance company knowingly and wrongfully continued to refuse to provide defense to insured sufficient to allege bad faith); Algiere v. Utica National Ins. Co., Superior Court, judicial district of New London, Docket No. CV 04 0569670 (February 7, 2005, Jones, J.) (in denying defendant's motion to strike, court noted that " [a]lthough the plaintiff has not alleged that the defendant acted in bad faith or with a sinister motive she has alleged facts sufficient to reasonably infer that an improper motive or reckless indifference of the interest of others existed. The plaintiff has alleged that the defendant has knowingly, willfully, deliberately and repeatedly ignored the workers' compensation commission orders; such continued defiance is unlikely to be attributable to an honest mistake or mere negligence"); Morin v. Tracy, Driscoll & Co., Superior Court, judicial district of Hartford, Docket No. CV 03 0823241 (May 26, 2004, Sheldon, J.) (allegation that insurance broker " knowingly omitted material information from the [insurance] application" sufficient to state cause of action for breach of covenant of good faith and fair dealing). The plaintiff here is alleged to have refused to fulfill a contractual obligation, not prompted by an honest mistake as to its rights or duties, but by some interested or sinister motive. Russell does not allege mere negligence, but rather alleges that the plaintiff purposefully did not bill her so that it could bill higher rates without her knowledge.
Russell asserts that plaintiff pressured her to sign the agreement despite her statements that she was not financially responsible for her mother's affairs and did not want to become responsible for paying for her mother's care. She alleged that she executed the signature page under duress " [b]ased on their insistence and concerns that they would rescind her mother's care." Accordingly, when reading the counterclaim in a light favorable to Russell, it is not inconsistent for her to claim that she reasonably expected timely billing statements after knowingly signing the agreement, but also claim in the alternative that if her signing did not bind her to the agreement because she was not listed as the responsible party.
IV. Fourth Counterclaim: CUTPA
The fourth counterclaim alleges a CUTPA violation by the plaintiff against both defendants. The plaintiff argues that the defendants have not pleaded that they suffered an ascertainable loss or actual damages because they have thus far failed to pay any money out of pocket for goods and services rendered by the plaintiff. It further argues that whether or not the plaintiff failed to issue timely billing rates is of no legal consequence, because, essentially, it was the defendants' responsibility to know whether or not Myers' care was being paid for by Medicaid and whether she was being billed at the Medicaid rate or the private rate. In response, the defendants argue that not receiving bills in a timely fashion caused Myers to lose Medicaid benefits which resulted in actual damages and an ascertainable loss.
" It is well settled that in determining whether a practice violates CUTPA [Connecticut has] adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (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 businesspersons] ... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 523, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). " Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 112 Conn.App. 315, 321-22, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009).
The first issue is whether the defendants have standing to assert a CUTPA violation. In order for a plaintiff to have standing, it " must be a proper party to request adjudication of the issues." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 553, 698 A.2d 245 (1997). " Standing focuses on whether a party is the proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties ... It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001).
" The task of the court ... is to determine whether the facts, as stated in the [counterclaim] and taken as true, demonstrate that the injuries, on one hand, are direct or, on the other hand, are indirect, remote or derivative." Ganim v. Smith & Wesson Corp., supra, 258 Conn. at 348. " [I]n federal standing jurisprudence, the courts have considered the questions of proximate cause— which we ordinarily analyze under the concept of duty— and standing as part and parcel of the same inquiry. Here we use ‘ proximate cause’ to label generically the judicial tools used to limit a person's responsibility for the consequences of that person's own acts. At bottom, the notion of proximate cause reflects ideas of what justice demands, or of what is administratively possible and convenient." (Internal quotation marks omitted.) Id ., at 349-50.
" [O]ne who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract ..." (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993). " [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and ... that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties ... Although ... it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary ... the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be ... because the parties to the contract so intended." (Citation omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 261, 765 A.2d 505 (2001).
Given the above standard and taking the facts as stated in the counterclaim as true, it is evident that they both have standing to claim a CUTPA violation. Myers is a third-party beneficiary of the contract that the plaintiff alleges is binding between the plaintiff and Russell. The agreement contained obligations that were intended to ensure that Myers continued to receive Medicaid funding for her care. It is not unforeseeable that a breach of those obligations would proximately cause Myers to incur liability for care that would otherwise be covered by Medicaid. As to Russell's standing, if it is determined that she is bound to the agreement, then she has standing to complain that the allegedly unfair billing practices of the plaintiff caused her to become liable on the contract. Thus, as an alleged party to a contract, she has standing to claim a CUTPA violation predicated on an allegedly willful, bad faith breach of that contract.
The next issue is whether the defendants suffered an ascertainable loss. CUTPA provides a private cause of action to " [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice ..." (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 351, 994 A.2d 153 (2010). " ‘ [L]oss' has a broader meaning than the term ‘ damage.’ " (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). For purposes of CUTPA, " [a]n ascertainable loss is a deprivation, detriment, [or] injury that is capable of being discovered, observed or established." (Internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638, 698 A.2d 258 (1997). " [T]he words any ascertainable loss ... do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case ..." Hinchliffe v. American Motors Corp., supra, 184 Conn. at 612-13. " Under CUTPA there is no need to allege or prove the amount of the ascertainable loss." Id., at 614.
In Larobina v. Home Depot, USA, Inc., 76 Conn.App. 586, 821 A.2d 283 (2003), the Appellate Court was faced with the issue of whether an unfair practice by the defendant, Home Depot, gave rise to an ascertainable loss. There, the plaintiff brought a CUTPA claim against the defendant predicated on its breach of a contract to sell carpet to him at an agreed contract price. The defendant gave the plaintiff what the plaintiff believed to be a written estimate of the price per square foot of carpet, which was $7.37 including installation, when the plaintiff visited the defendant's store. The plaintiff then paid to the defendant a $100.00 deposit, left the store, and after having the area to be carpeted measured, returned to the store to pay the balance remaining on his bill. To the plaintiff's chagrin, the defendant gave him a revised quote which was higher than the agreed price per square foot and refused to install the carpet at the previously agreed upon price. An attorney trial referee found that the defendant did in fact bind itself in contract and breach that contract by attempting to obtain a higher price than what was originally bargained for. He concluded that the plaintiff was entitled to the return of his deposit as compensatory damages and also awarded $1, 000.00 in punitive damages. The trial court, however, rejected the conclusion that the plaintiff was entitled to only $100 in actual damages and also awarded the difference price between the total price originally agreed upon, $348.90, and the subsequent estimate, $574.53. It also rejected the referee's recommendation that the plaintiff was entitled to $1, 000.00 in punitive damages on the basis that the plaintiff failed to prove that he suffered an ascertainable loss as a result of the CUTPA violation.
The Appellate Court reversed the trial court's finding that there was no ascertainable loss. The court held that it failed to see how the trial court found no ascertainable loss and at the same time awarded compensatory damages. Importantly, it rejected the proposition that the plaintiff did not suffer an ascertainable loss because he did not actually purchase the carpeting. See also Murphy v. McNamara, 36 Conn.Supp. 183, 197, 416 A.2d 170 (1979) (" Standing will be satisfied if the defendant threatens to execute the contract which is the unfair trade practice, and if he succeeds, an ascertainable loss of money or property will result"). Compare Haven Health Center of Litchfield Hills, LLC v. Parente, supra, Superior Court, Docket No. CV 03 0091743 (CUTPA count of counterclaiming defendant failed to reallege damages alleged in prior count and conceded that defendant had not paid any monies relative to CUTPA claim). It was enough that the plaintiff received something other than what he bargained for; he bargained to have carpeting installed at $7.37 per square foot and did not get it. Here, similarly, the defendants are not required to have paid anything to the plaintiffs in order to suffer an ascertainable loss. It is enough that if there was a contract, Russell did not get what she bargained for: timely billing statements that would assist her and her daughter in securing Medicaid coverage.
The Motion to Strike Defendants' Third Special Defense and the First, Second and Fourth Count of the Counterclaims is DENIED.