Opinion
No. FST CV 07 6000533 S
January 16, 2009
MEMORANDUM OF DECISION AS TO PLAINTIFF'S MOTION TO STRIKE DATED NOVEMBER 26, 2008
The issue before the court after reargument is whether the defendant's counterclaim significantly alleges a CUTPA violation. After reviewing the relevant pleadings, general statutes and the relevant cases, the plaintiff's motion to strike is denied.
"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." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "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." Gazo v. Stamford, 255 Conn. 245, 260 (2001). [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18 (2006).
In the present case, the plaintiff moves to strike count five of the defendant's counterclaim on the basis that mere allegations of a breach of contract are insufficient to support a CUTPA claim. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246 (2006).
The plaintiff in this matter maintains that allegations of a breach of contract, as well as allegations of aggravating circumstances are sufficient to support a CUTPA claim. Thus, the plaintiff's position is that although the complaint alleges a breach of contract, it also alleges misrepresentations and a pattern of deceitful conduct by the plaintiff which is sufficient to withstand a motion to strike.
"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 . . . In order to enforce this prohibition, 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 . . . Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury." Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213-14, 932 A.2d 401 (2007).
Connecticut Unfair Practices Act, General Statutes § 42-119 et seq.
"It is well settled that in determining whether a practice violates CUTPA [the Connecticut Supreme Court 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.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
Although "the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation"; Greene v. Orsini, 50 Conn.Sup. 312, 315, 926 A.2d 708 (2007); "[a] breach of contract claim can make out a legally sufficient CUTPA claim [only] as long as there are substantial aggravating circumstances." (Internal quotation marks omitted.) Alliance Food Management v. Gems Sensors, Superior Court, judicial district of Waterbury, Docket No. CV 06 5002996 (June 12, 2007, Gallagher, J.).
"Although there is a split of authority in the Superior Courts regarding what is necessary to establish a CUTPA claim for breach of contract, the vast majority of Superior Court decisions [conclude] that, absent allegations of sufficient aggravating circumstances, [a] simple breach of contract even if intentional, does not amount to a violation of [CUTPA]." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates, Superior Court, judicial district of Windham, Docket No. CV 03 0070166 (June 21, 2007, Martin, J.).
"It has been held that a misrepresentation can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would in effect be a deceptive act . . ." (Internal quotation marks omitted) Centimark Corp. v. Village Manor Associates, Superior Court, judicial district of Windham, Docket No. CV 03 0070166 (June 21, 2007, Martin, J.). While "[n]ot every misrepresentation constitutes a CUTPA violation"; Calandro v. Allstate Ins Co., 63 Conn.App. 602, 617, 778 A.2d 212 (2001); since CUTPA does not require proof of intent to deceive, to mislead or to defraud, [even an] innocent misrepresentation can amount to a CUTPA violation. Friedlander Limited Partnership v. Cohen, Superior Court, judicial district of Bridgeport, Docket No. CV 04 0412571 (April 15, 2005, Skolnick, J.). "Where . . . a defendant made a misrepresentation during the course of the defendant's business practice, with or without the intent to deceive or fraud, and that misrepresentation led a plaintiff to lose money or property, that plaintiff has alleged a cause of action under CUTPA . . ." Id.
In the present case, the defendant's counterclaim alleges that the plaintiff misrepresented their abilities and experiences in home construction as well as its intentions with respect to completion of the home. The defendant further alleges that the plaintiff made false representations in order to induce the defendant to enter into the agreement. When viewing the allegations in the light most favorable to sustaining their legal sufficiency, the allegations are sufficient to withstand a motion to strike.
Accordingly, the motion to strike count five of the defendant's counterclaim is denied.