Opinion
No. CV03 040 81 22
July 11, 2005
MEMORANDUM OF DECISION
FACTS
The plaintiff, CCMS, LLC, defendant on the Counterclaim, brings this action against the defendant, Hills Condominium Association, in four counts.
The plaintiff is an entity engaged in providing management, landscaping and snow removal services to common interest communities. The defendant is the homeowners association for the Hills of Monroe Condominium Complex.
In Count One, the plaintiff claims it is owed $2,716.01, pursuant to a written agreement, while Count Two claims that $25,000 is due for snow removal services provided to the defendant.
Count Three seeks to recover the damages alleged in Count Two based on quantum meruit, while Count Four seeks payment for landscaping services; amounting to $7,420.
The defendant filed an answer, special defenses, and a Counterclaim to the action.
The first count of the Counterclaim seeks damages for the negligent performance of the snow removal services.
In Count Two, the Counterclaim plaintiff alleges a violation of § 20-450 et seq. of the General Statutes (Chapter 400b), known as the Community Association Managers Act.
Claims for conversion, fraud, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), are also made by way of Counterclaim.
The plaintiff, defendant on the Counterclaim, moves to strike Count Two of the Counterclaim, claiming that the Community Association Managers Act does not provide for a private cause of action.
STANDARD OF REVIEW
The purpose of a motion to strike is to test the legal sufficiency of a pleading. Ferryman v. Groton, 212 Conn. 138, 142 (1989); McAnerney v. McAnerney, 165 Conn. 277, 282 (1973). If facts provable in the complaint or counterclaim would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820-26 (1996).
In ruling on a motion to strike, all facts alleged in a pleading must be construed in the light most favorable to the nonmoving party. Rowe v. Godou, 209 Conn. 273, 278 (1988); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988).
COMMUNITY ASSOCIATION MANAGERS ACT DOES NOT PROVIDE FOR A PRIVATE CAUSE OF ACTION
The defendant, plaintiff on the Counterclaim, acknowledges that courts have not previously addressed whether the Community Managers Association Act provides for a private cause of action.
The Hills Condominium Association, Inc. argues, by way of analogy, that the reasoning employed in cases involving the Connecticut Home Improvement Act (Chapter 339a) and the Home Solicitation Sales Act (Chapter 740), which have determined that neither provides for a private cause of action, should be adopted. In those cases, courts have almost uniformly determined that the act provides defenses for the consumer, but does not provide a private cause of action. Martinez v. Ciuffetelli, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 292068 (February 8, 2000, Levin, J.); McClain v. Byers, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV93-301761 (April 19, 1995, Hauser, J.) ( 14 Conn. L. Rptr. 99); Chasin v. Pasicki, Superior Court, judicial district of Ansonia-Milford, Docket No. CV02-0079444S (April 2, 2004, Bear, J.); Bossler v. Oliver, Superior Court, judicial district of Ansonia-Milford, Docket No. CV98-062305S (December 17, 1995, Flynn, J.) ( 23 Conn. L. Rptr. 406); Bakish v. Donnelly, Superior Court, judicial district of Danbury, Docket No. CV03-39634S (January 26, 2004, Comerford J.).
The failure to comply with the Home Improvement Act renders a contract unenforceable, and bars recovery by a contractor, unless he can establish that the invocation of the Act was in bad faith. Habetz v. Condon, 224 Conn. 230, 238 (1992).
The defendant, Hills Condominium Association acknowledges that the Home Improvement Act can be properly asserted as a bar to recovery, by way of special defense. Rizzo Pool Co. v. De Grosso, 232 Conn. 666, 675-76 (1995). In its capacity as a defendant, the Hills Condominium Association, Community Managers Association Act, has pled the act as a defense, in a portion of its special defense which is not affected by this motion to strike. However, by utilizing the Act in Count Two of its Counterclaim, the Hills Condominium Association seeks to transform an unenforceable contract into a valid document which can form the basis of a recovery against the management entity. This it cannot do.
The Counterclaim plaintiff cannot, simultaneously, invoke the act as a shield against liability because of the failure to comply with the Act's provisions, while using that same failure to comply with the act as a litigation sword, as it seeks money damages against the management company.
A brief review of both the Community Association Managers statute, and the Home Improvement Act, reveals a regulatory scheme which validates the analogy proffered by the plaintiff, CCMS, LLC.
The Community Association Managers statute, like the Home Improvement Act, contains registration requirements, and provisions concerning the validity and enforceability of an agreement.
The Home Improvement Act provides that no contract can be enforced against an owner unless the agreement complies with the formalities set forth in the statute.
§ 20-429, C.G.S.
Likewise, the Community Association Managers statute provides that no contract is valid or enforceable, unless it is in writing, and contains certain mandated terms and conditions.
§ 20-458, C.G.S.
The Commissioner of Consumer Protection and the Attorney General are accorded certain powers under the Home Improvement Act; enforcement powers given to the Connecticut Real Estate Commission and the Attorney General in the Community Association Managers statute.
§ 20-424, C.G.S.
§ 20-455, C.G.S.
Furthermore, there is no indication in either the Home Improvement Act, or the Community Association Managers statute, that the General Assembly intended to provide for a private cause of action.
The defendant, plaintiff on the Counterclaim, argues that a private cause of action should be found under the Community Association Managers statute, because the Act meets the test announced in Napoletano v. CIGNA Healthcare of Connecticut, Inc. 238 Conn. 216, 249-50 (1996).
In Napoletano, the Supreme Court determined that Public Act 94-234 conferred a private right of action, despite the failure of the General Assembly to explicitly provide for that right in the legislation.
The Court determined that the goals of providing health care providers with information, to enable them to determine whether they were eligible to join a network, and providing the health care consumer with the necessary information about their choice of health plans and physicians, would not be adequately served without the possibility of using a private right of action. Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, at 252.
The Court further announced a threefold test, to be used in determining whether a statute provides for a private cause of action: 1) is the plaintiff one for whose benefit the statute was enacted, 2) is there an intent demonstrated by the legislature to create a remedy in the statute, and 3) is a private cause of action consistent with the underlying purpose of the legislation. Napoletano v. CIGNA Healthcare, Inc., supra, 249-50.
Assuming, arguendo, that the plaintiff, CCMS, LLC, meets the first two prongs of the test, the third prong is not met, based upon the facts pled.
The Community Association Mangers statute serves as a defense to a consumer, in the event of non-compliance by a management agency, and any party is free to raise any claims involving the alleged theft of moneys, fraud, or a violation of the Connecticut Unfair Trade Practices Act (CUTPA), as has been done in this case.
Napoletano did not concern rights under a consumer contract, but access to information. Furthermore, the court, in that case, determined that no provision was made for the filing of grievances by private individuals, and that without a private right of action, access to the enforcement process would be denied. Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 252.
Given both the absence of a private right of action in the statute, the regulatory scheme adopted, and the persuasive construction of the Home Improvement Act provided by the Courts, it is found that there is no private right of action under the Community Association Managers statute.
The Motion to Strike Count two of the Counterclaim filed by CCMS, LLC is therefore GRANTED.
RADCLIFFE, J.