Opinion
FBTCV136039189S
05-13-2016
Victoria Eastburn v. Imagineers, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Richard E. Arnold, Judge.
The multiple defendants have moved to strike Counts One, Two, Three, Four, Five, Six and Seven of the plaintiff's Revised Complaint, which is dated March 10, 2015. Counts One and Three allege actions against the Churchill South Condominium Association (" Association") for negligent infliction of emotional distress and violation of the Connecticut Unfair Practices Act (" CUTPA"). Counts Two and Four allege actions against Imagineers, LLC, for negligent infliction of emotional distress and CUTPA. Counts Five, Six and Seven allege actions against the Churchill South Condominium Association Board of Directors (" Board") for breach of fiduciary duty, violation of General Statutes § 47-68a et seq. and CUTPA. The defendants argue that each count fails to state a claim upon which relief can be granted. In support of the motion to strike the defendants have filed a memorandum of law dated May 22, 2015. In opposition to the motion, the plaintiff has filed her memorandum of law dated July 29, 2015. Oral argument was held before the court on March 7, 2016.
General Statutes § 47-68 et seq., is the " Condominium Act of 1976."
" 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). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. City of Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2005).
Summary of Dispute
The plaintiff at all times relevant to this dispute is a resident of Wilmington, North Carolina and is the owner of a condominium unit located at the Churchill South Condominium, located at 103 Paugasett Circle, Trumbull, Connecticut, which is a single-family residence. During the summer of 2011, the plaintiff was residing in the subject condominium unit. At that time she then purchased property in Wilmington, North Carolina with the purpose of permanently relocating her residence to North Carolina. Despite her relocation, the plaintiff chose to retain her ownership of the condominium unit as an investment property and to rent the unit to a single family, while charging monthly rental fees and expenses. The plaintiff had an agreement with her tenant(s) that if she returned to Connecticut on one or two occasions per year, she could sleep in a storage room located in the subject unit. During the subject rental period, the plaintiff on three separate occasions returned to Connecticut and slept at the unit for periods of time not exceeding one week.
The plaintiff alleges that she has had disputes with the Association from September 2009 through September 2011 concerning her claims that certain unit owners and board members have received preferential treatment. As a result of these complaints and disputes, the Association has since September 2010, " taken advantage of the existing condo bylaws" on a monthly basis by fining owners, including the plaintiff and making the false claim that the plaintiff has converted her condominium unit from a single-family unit to a two-family unit. The plaintiff alleges she has been threatened with legal action by the Association, including foreclosure proceedings. She claims she has incurred attorneys fees, fine payments and emotional distress as a result of the actions of the collective defendants.
Counts One and Two
Negligent Infliction of Emotional Distress
Counts One and two allege negligent infliction of emotional distress against the defendants Association and Imagineers. " To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm . . . The foreseeabiity requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010).
The complaint identifies Imagineers as a Connecticut Limited Liability Company that is responsible for legally enforcing the by-laws of the Association.
The factual claims in Counts One and Two are essentially identical and are summarized earlier herein. Basically, over a period of years, the plaintiff has had disputes with the Association, the Board and Imagineers concerning what she alleges has been preferential treatment of Board members and " favored" owners of units at the Churchill South Condominium development. The plaintiff alleges the defendants have taken advantage of the existing condo by-laws and have levied monthly fines on the plaintiff and falsely accused her of converting her single-family unit into a two-family unit. She alleges the defendants have rejected her efforts to resolve these disputes and continue to fine her and threaten her with a foreclosure action.
The plaintiff has failed to sufficiently allege sufficient facts that the conduct of the Association or Imagineers created an " unreasonable risk of causing emotional distress and that distress if it were caused might result in bodily harm." Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). The defendants' alleged conduct has occurred within the context of a de facto legal dispute with the plaintiff. " We previously have held that engaging in litigation is inherently distressing and that continuous or repeated involvement in litigation does not create an unreasonable risk of causing the plaintiff emotional distress." Stancuna v. Schaffer, 122 Conn.App. 484, 491, 998 A.2d 1221 (2010); see Wilson v. Jefferson, 98 Conn.App. 147, 163, 908 A.2d 13 (2006) (landlord's repeated filing of summary process actions does not create unreasonable risk of causing tenant emotional distress). The fact that the defendants are imposing fines and threatening a foreclosure action is an example of adverse parties asserting their rights, a situation that may be distressing to the plaintiff, similar to the distress that would be felt inherent to litigation. Additionally, neither Counts One or Two allege specific facts indicating the defendants knew or should have known their alleged conduct involved an unreasonable risk of causing emotional distress which might result in illness or bodily harm. Thus the plaintiff has failed to sufficiently allege that the plaintiff's claimed distress was forseeable. Stancuna v. Schaffer, supra, 122 Conn.App. 490.
" [T]he plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm . . . The requirement of foreseeability in negligent infliction of emotional distress claims is different from that required in general negligence actions . . . [T]he defendant is not responsible for the plaintiffs' emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress . . . [which] might result in illness or bodily harm." (Citations omitted; internal quotation marks omitted.) Giovanelli v. Cantor, Floman, Gross, Kelly & Sacramone, Superior Court, judicial district of New Haven, Docket No. 07 5010641 (January 30, 2008, Robinson, J.) (44 Conn. L. Rptr. 802).
" [T]he plaintiff's conclusory allegation that the plaintiff's distress was foreseeable, without more, is insufficient to satisfy the foreseeability element of a negligent infliction of emotional distress." Specifically, there are no allegations that the defendants " knew or should have realized that [their] conduct involved an unreasonable risk of causing emotional distress . . . [which] might result in illness or bodily harm." Noon v. Brencher, Superior Court, judicial district of New Haven, no. CV-09-6003694-S, (June 12, 2012, Young, J.) Counts One and Two are ordered stricken.
Counts Three and Four
Violations of CUTPA
Counts Three and Four alleges violations of CUTPA as to the Association and Imagineers, respectively. General Statutes § 42-110b(a) provides: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." " Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--whether, 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 (or competitors or other businessmen) . . . 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.) Bruno v. Whipple, 138 Conn.App. 496, 516, 54 A.3d 184 (2012). " CUTPA liability embraces a wider range of business conduct than does a common-law tort action. While liability in tort is imposed only if the defendant maliciously or deliberately interfered with a competitor's business expectancies, CUTPA liability is premised on a finding that the defendant engaged in unfair competition and unfair or deceptive trade practices." (Citations omitted.) Landmark Investment Group, LLC v. Calco Construction and Development Co., 141 Conn.App. 40, 54, 60 A.3d 983 (2013).
The defendants argue the plaintiff has failed to allege viable CUTPA claims in Counts Three and Four in that: (1) the factual predicate of the plaintiff's claims concern acts of management related to the condominium association and do not fall within the purview of CUTPA; (2) she has failed to allege sufficient facts indicating what, if any, commercial relationship existed between her and Imagineers; and (3) has failed to allege a CUTPA claim pursuant to the " cigarette rule."
Counts Three and Four include the same factual allegations as contained in Counts One and Two. The plaintiff predicates her CUTPA claims on conduct incident to the management of the Churchill South Condominium Association. The authority of the defendants regarding the levying of fines against the plaintiff is the existing condominium by-laws. Even assuming that the plaintiff can prove negligent or wrongful acts of the defendants, as alleged, the defendants' conduct has been carried out as part of their management function.
Our Supreme Court has affirmed a trial court decision that CUTPA is inapplicable to the activities of a condominium management association. Rafalowski v. Old Country Homes, Inc., 45 Conn.Supp. 341, 354-55, 719 A.2d 84 (1997) (management of a condominium association does not constitute the " trade" or " commerce" requirements for a CUTPA claim), aff'd, 245 Conn. 504, 507-08, 714 A.2d 675 (1998) (central issue of the applicability of CUTPA were properly resolved by the trial court, and trial court's memorandum of decision adopted as a proper statement of the law); see also, Raymundo v. Palmer Landing Community, Inc., Superior Court, judicial district of Stamford-Norwalk, No. CV-04-5000055, (Mar. 11, 2013, Adams, J.T.R.). Counts Three and Four are ordered stricken.
Count Five
Breach of Fiduciary Duty
Count Five is directed at the Churchill South Board of Directors (" Board") and alleges a claim for breach of fiduciary duty. " The essential elements to pleading a cause of action for breach of fiduciary duty under Connecticut case law are: (1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff; (2) [T]hat the defendant advances his own interests to the detriment of the plaintiff; (3) That the plaintiff sustained damages; (4) That the damages were proximately caused by the fiduciary's breach of his or her fiduciary duty." (Internal quotation marks omitted.) Ochieke v. Turbine Controls, Inc., Superior Court, judicial district of Hartford, Docket No. CV-10-5035041-S, (October 8, 2014, Elgo, J.).
The Board and the Association are governed by the Common Interest Ownership Act (" CIOA"), General Statutes § 47-200 et seq., which the plaintiff acknowledges in her revised complaint. Section 47-245(a) provides in relevant part: " In the performance of their duties, officers and members of the executive board appointed by the declarant shall exercise the degree of care and loyalty to the association required of a trustee and officers and members of the executive board not appointed by a declarant shall exercise the degree of care and loyalty to the association required of an officer or director of a corporation . . ." Thus, " Connecticut condominium law presently recognizes that the board owes a duty of care and loyalty to the association but not to an individual owner. Accordingly, a statutory fiduciary relationship does not exist between the parties in this case . . . Under the CIOA a condominium association's board of directors owes a fiduciary duty only to the association and not to an individual owner, absent a special relationship." McCreary v. One Strawberry Hill Ass'n, Inc., Superior Court of Connecticut, Judicial District of Stamford-Norwalk, No. FSTCV 10-6006749-S (April 29, 2011, Tobin, David, J.); 51 Conn. L. Rptr. 892. Because no such special relationship has been alleged, the court grants the motion to strike Count Five.
Count Six
Violation of Common Interest Ownership Act
Count Six, which is also directed to the Board incorporates the allegations contained in Count Five and alleges, " [t]he Defendants, pursuant to Connecticut General Statutes 47-68a et seq., have a duty and obligation to inform the owner in question of any hearings concerning said owner and or her premises. Further, plaintiff has a right to be included in the meetings held by the BOD (Board) via teleconference in 2013 she received no notice of any meetings held by the BOD's other than annual meeting in which she attended in person." The plaintiff alleges she has a right to be notified of and included in the meetings of the Board, but she does not identify the source of such rights; nor does she allege when and if the Board conducted any meetings without notice to her. Count Six does not sufficiently apprise the defendants of the claims asserted. " The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Internal quotation marks omitted.) Lyons v. Nichols, 63 Conn.App. 761, 764, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). A complaint should " fairly put the defendant on notice of the claims against him." (Internal quotation marks omitted.) Id.
The court has reproduced the plaintiff's allegations exactly as they appear in Count Six, noting that there appears to be grammatical and punctuation errors.
The plaintiff has cited General Statutes § 47-68a et seq. has legal authority for her claims. The court has reviewed the entire CIOA can cannot pinpoint authority for the plaintiff's claims, other than what might be included in the duly adopted by-laws. However, the plaintiff only makes one vague and fleeting reference to the Association's By-laws, and in doing so, cites no definitive section or provision to support her allegations. The plaintiff has failed to sufficiently allege a cause of action pursuant to the CIOA in Count Six, and it is, therefore, ordered stricken.
Count Seven
CUTPA
Count Seven purports to allege a CUTPA violation by the Board based on the factual allegations contained in Count Five. As noted earlier in this decision regarding Counts Three and Four, the Connecticut Supreme Court affirmed a trial court decision that CUTPA is inapplicable to the activities of a condominium management association. Rafalowski v. Old Country Homes, Inc., 45 Conn.Supp. 341, 354-55, 719 A.2d 84 (1997) (management of a condominium association does not constitute the " trade" or " commerce" requirements for a CUTPA claim), aff'd, 245 Conn. 504, 507-08, 714 A.2d 675. 245 Conn. 504, 714 A.2d 675 (1998) (central issue of the applicability of CUTPA were properly resolved by the trial court, and trial court's memorandum of decision adopted as a proper statement of the law); see also, Raymundo v. Palmer Landing Community, Inc., Superior Court, judicial district of Stamford-Norwalk, No. CV-04-5000055, (Mar. 11, 2013, Adams, J.T.R.). While the foregoing reasoning applies to a condominium association, the questions becomes whether the same reasoning applies to a board of directors. The court finds that the reasoning does apply to the defendant Board. The relationship between individual unit owners and the board of directors for a condominium association is not within the scope of CUTPA because it is not a relationship involving persons engaged in trade or commerce and consumers. Sargis v. Seventy Grove Hill Condominium Association, Inc., Superior Court, judicial district of Hartford-New Britain, Vo. CV 88-0430590 (July 19, 1990, Aronson, J.); 2 Conn. L. Rptr. 152.
The plaintiff's allegations are related to the governance and maintenance of the condominium association. " In 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.'" See General Statutes § 42-110b; Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 354, 525 A.2d 57 (1987); Pergament v. Green, 32 Conn.App. 644, 655, 630 A.2d 615 (1993). In the present case, the plaintiff's complaint is devoid of any allegation that the acts complained of were performed in a " trade or business." The plaintiff has not alleged that the defendants' conduct was anything other than conduct related to management responsibilities in its governance of the association. See. Pasquariello v. Castle Rock Owners Ass'n, Inc., Superior Court, judicial district of New Haven at New Haven, No. CV-09-6006082-S, (Aug. 5, 2010, Zoarski, J.T.R.), citing Rafalowski v. Old Country Homes, Inc., supra, 245 Conn. 508. Accordingly, Count Seven is ordered stricken.
Summary
The court grants the defendants' motion to strike all counts of the plaintiff's Revised Complaint. Counts One through Seven are ordered stricken.