Opinion
No. 06-5003862-S
March 11, 2008
MEMORANDUM OF DECISION
Presently, before the Court is plaintiff's motion of October 5, 2007 to strike all eight special defenses and twelve of the thirteen counterclaims asserted in the defendant's amended defenses and counterclaims to the fourth amended complaint.
FACTS
On October 11, 2006, the plaintiffs filed a seventeen-count fourth amended complaint against the defendants. This action arises, in part, from the sale of property located at 186 Pomeroy Avenue in Meriden, Connecticut. The plaintiffs allege that the defendants, in transferring title to the property, disguised an encroachment upon the rear portion of the subject parcel and/or an unrecorded partition of the property to the abutting parcel owned by the defendants. According to the complaint, the partition was made prior to sale, and was intended to be used in conjunction with Meriden Self-Storage, LLC and/or 210 Pomeroy Avenue, LLC. A water retention pond was also constructed, without the benefit of an easement, to drain water away from Meriden Self-Storage. Other alleged encroachments include a fence, a garage, and a Self-Storage building, all of which were erected by the defendants prior to the sale. The plaintiffs purchased the property without knowledge or notice of the encroachments or partition. It is also alleged that Barker and Barker Realty knowingly executed and delivered a warranty deed and the affidavit that misrepresented the metes and bounds of the property.
The plaintiffs in this action are Jeffrey Gandolfo, Merle Gandolfo, Gancor, Inc., and 186 Pomeroy Ave., LLC. Merle Gandolfo is the sister of defendants Michael Barker and Lisa Rosenfield. The defendant Charles Mantel is the trustee of the Merle Barker Bosler Trust (trust) of which Merle Gandolfo is the sole beneficiary.
The defendants to this action are Michael Barker, Lisa Rosenfield, and Charles Mantel, in his individual and trustee capacity for the Merle Barker Bosler Trust (trust). Additional defendants include Barker Family LLC, Barker Realty LLC, 210 Pomeroy Avenue, LLC, and Meriden Self-Storage LLC, all limited liability companies owned, in whole or in part, by Barker and Rosenfield. Barker, Rosenfield, and the trust, of which Merle Gandolfo is the sole beneficiary, are the members of the Barker Family LLC and Barker Realty, LLC. Barker and his sister Rosenfield are members of 210 Pomeroy Avenue, LLC and Meriden Self-Storage, LLC.
On October 25, 2006, the defendants filed an answer, special defenses and counterclaims in response to the fourth amended complaint. The plaintiffs filed a motion to strike the special defenses and counterclaims; this motion was granted by the court, J. Wiese, on July 25, 2007. The defendants then filed amended special defenses and counterclaims on August 9, 2007. On October 9, 2007, the plaintiffs moved to strike all eight of the defendants' special defenses, and twelve of the defendants' thirteen counterclaims. A memorandum in opposition to the motion to strike was filed by the defendants on November 9, 2007. Oral argument was heard on December 17, 2007.
DISCUSSION
Any party wishing to contest the legal sufficiency of a pleading may do so by filing a motion to strike. Practice Book § 10-39(a) provides in relevant part: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any . . . counterclaim . . . to state a claim upon which relief can be granted, or . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." "In . . . ruling on the . . . motion to strike, the trial court [has an] obligation 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). Regarding counterclaims, courts have stated: "[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." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
A. Special Defenses
The plaintiffs move to strike all eight of the defendant's special defenses on the ground that each special defense is premised on allegations that are inconsistent with the allegations contained in the fourth amended complaint. In response, the defendants argue that they removed all contradictory allegations in accordance with this court's prior ruling on the motion to strike the defendants' original special defenses.
This court, Wiese, J., has already addressed the need for the allegations of a special defense to conform with the factual allegations of the underlying complaint. See Gandolfo v. Barker, Superior Court, judicial district of Hartford, Docket No. CV 06 5003862 (July 25, 2007, Wiese, J.). In that decision, the court offered a thorough analysis of proper method for the defendants to allege contradictory facts, by way of a denial rather than by way of a special defense. Regarding the special defenses alleged, the court found that "the special defenses contain inconsistent statements and therefore should be stricken. In general the complaint alleged that the plaintiffs had no knowledge of the encroachment and partition, the defendants concealed the encroachments, that they expected to receive the entire parcel of land, and the defendants made misrepresentations. In contrast, the allegations of the special defenses generally allege that the plaintiffs knew about the partition and encroachment and that the plaintiffs knew that the defendants agreed to transfer the front parcel only. The facts in the special defenses are clearly at odds with the facts in the complaint." Id. As a result of this underlying opinion, the sole issue for this court is to determine whether the defendants have adequately conformed their pleadings to omit the contradictory factual allegations.
The fourth amended complaint is still the operative complaint in this matter, and, therefore, the facts alleged remain the same as when the court, Wiese, J., provided his analysis. The defendants have amended their special defenses, purportedly to conform to the prior ruling of the court; however, the amended special defenses still contain allegations that contradict the factual underpinning of the complaint. For example, paragraph twenty-three of the first special defense alleges that the "parties agreed that the plaintiff could not bring any action for the defendant's breach of any representations in the agreement if the claim results from actions of the Buyer or is based upon facts proven to be known by the Buyer before the Closing." Additionally, paragraph twenty-nine of the first special defense contains several additional contradictory allegations regarding the plaintiffs' knowledge at the time of sale. In particular, the defendants allege that the plaintiffs "knew or should have known from, inter alia, the parties' discussions, circumstances, the sales price, appraisals of the property, and the obvious and visible improvements on the rear parcel that the conveyance to Jeffrey and Merle Gandolfo included only the front parcel . . . knew or should have known that the rear parcel, 186 A Pomeroy Avenue, had been incorporated in Lot 15B, and that the defendants did not intend to include it in the conveyance to the plaintiffs . . . knew or should have known that the rear parcel had been incorporated into Lot 25, and was developed and used by 5 Prestige Drive, LLC, Meriden Self-Storage and/or related entities." These allegations are repeated in paragraph twenty-eight of the second special defense, which in turn is incorporated into the remaining six special defenses. This incorporation renders all eight of the special defenses fatally defective. The plaintiffs' motion to strike the special defenses is, therefore, granted.
The plaintiffs also argue that the second, seventh and eighth special defenses must be stricken on the grounds of legal insufficiency. The court need not address this argument, however, having already stricken the special defenses in their entirety.
B. Counterclaims
The plaintiffs also move to strike twelve of the thirteen counterclaims asserted by the defendants on the ground of legal insufficiency. In response, the defendants argue that the law of the case prevails as to the ten counterclaims previously found sufficient by the court, Wiese, J., in his opinion dated July 25, 2007. Regarding the new counterclaims, specifically the fifth, twelfth and thirteenth counterclaims, the defendants argue that these claims should not be stricken because they are legally sufficient.
Law of the Case
Our Supreme Court has stated that "[t]he [law of the case] doctrine provides that, when a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 76, 856 A.2d 364 (2004). "The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge." (Internal quotation marks omitted.) Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 741, 867 A.2d 851 (2005). In the context of a motion to strike, the doctrine applies when the motion is directed to an amended complaint that is substantially the same as a previous version thereof which was already stricken. S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan and King, P.C., 32 Conn.App. 786, 798, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). Thus, to the extent that the plaintiffs now seek to strike the counterclaims on grounds previously decided in an underlying decision, the law of the case would be applicable. Specifically, the law of the case is implicated in the motion to strike the sixth, eighth, and eleventh counterclaim.
The first argument raised by the plaintiffs that is subject to the law of the case is their argument in support of the motion to strike the sixth counterclaim. The amended complaint renumbers the special defenses and counterclaims, but after an analysis of the allegations contained therein, it is apparent that the defendants' sixth counterclaim mirrors the allegations of its original fifth counterclaim.fn3 The plaintiffs previously moved to strike the fifth counterclaim on the ground that it did not allege a separate and distinct cause of action. This court, Wiese, J., rejected this argument, finding that it stated a separate claim for vicarious liability. Gandolfo v. Barker, supra, Docket No. CV 06 5003862. In the present motion to strike before the court, the plaintiffs raise this same argument for the second time. The law of the case prevails, and the plaintiffs' motion to strike the sixth counterclaim is denied.
The law of the case doctrine is also applicable to the motion to strike the eighth counterclaim, which states a cause of action for mutual mistake. The plaintiffs argue that this claim must be stricken because the facts alleged in the complaint and in the counterclaim are contradictory, which in turn, indicates that the parties cannot be mutually mistaken on the same fact. This argument incorrectly assumes that the defendants must plead facts in agreement with the plaintiffs' original complaint. The plaintiffs previously filed a motion to strike the counterclaims on the ground that the counterclaims alleged facts inconsistent with the factual allegations of the complaint. This court, Wiese, J., found this argument to be without merit and denied the motion to strike, holding that a counterclaim must be viewed by the court under the same standard that it applies to determine the sufficiency of the complaint. Gandolfo v. Barker, supra, Docket No. CV 06 5003862. Accordingly, a determination of the sufficiency of the defendants' counterclaim is dependent on whether the defendants have sufficiently alleged a cause of action, independent of the facts alleged in the original complaint. Here, the defendants allege that they did not intend to convey the rear parcel under the purchase sale agreement. They also allege that the descriptions and title affidavit improperly included the rear parcel. This constitutes a legally sufficient claim of mutual mistake; therefore, the motion to strike this counterclaim is denied.
The original fifth counterclaim incorporated the allegations of the eighth special defense. When the defendants amended their special defenses and counterclaims, the numbering of the special defenses and counterclaims was changed. The sixth counterclaim now incorporates the allegations of the third special defense but the substance of the allegations remain the same.
In the eleventh counterclaim, the defendants claim damages as a result of the plaintiffs' actions and failures to act within the meaning of § 9.3 of the real estate purchase and sale agreement dated January 12, 2006. The plaintiffs move to strike this count on the ground that the alleged harm does not fall within the scope of the ham anticipated in § 9.3 of the agreement, and in making this argument, they include the relevant language of the section. This court previously denied the motion to strike this counterclaim on the ground that the plaintiffs' reference to this language, that was not stated in the allegations of the counterclaim, constituted a speaking motion to strike that must be denied. In the present motion, the plaintiffs once again ask the court to look to material that is not alleged in the counterclaim. This court has already found this argument to be improper; therefore, the motion to strike the eleventh counterclaim is denied.
Legal Insufficiency
Not all of the arguments raised by the plaintiffs repeat issues previously decided by this court. The plaintiffs move to strike counterclaims one through five, seven, nine, and twelve on the grounds of legal insufficiency. The court did not previously consider these arguments in its prior decision, and, therefore, there is no law of the case to provide direction under the present circumstances. Accordingly, the court must determine the merits of these arguments.
First Counterclaim — Negligence
The first counterclaim, sounding in negligence, alleges that the plaintiffs, by way of their representatives, supplied a title affidavit and deed description that contained improper and false descriptions of the property. Without knowledge of the false information, the defendant Barker signed the deed and title affidavit containing the false description. The defendants further allege that the plaintiffs breached several duties of care, including: 1) their duty to obtain a complete and thorough title search of the property; 2) their duty to discover maps in the public record showing the partition and development of the rear parcel; 3) their duty to supply a true and accurate description of the property to be conveyed; and 4) their duty to supply a true and accurate title affidavit.
The plaintiffs seek to strike this counterclaim on the ground that the buyer of real property does not owe a duty to the seller to properly identify the property to be sold. As result, it is the plaintiffs' contention that the first counterclaim is legally insufficient. In response, the defendants argue that parties to a real estate contract owe each other a duty to perform their obligations with due care. The defendants further argue that it is not the existence of a duty, but rather the scope of the duty, that is at issue here. As the scope of a duty of care is an issue of fact, the defendants maintain that the first counterclaim is legally sufficient.
The defendants' attempt to frame this dispute as a question of the scope of the duty rather than the existence of a duty is a misinterpretation of the law. While parties to a contract generally have a duty to perform their obligations with due care, this pertains to obligations arising from the contract itself and a cause of action for negligent performance of that duty arises when that contractual obligation is breached. See e.g., Barnett Motor Transportation Co. v. Cummins Diesel of Connecticut, 162 Conn. 59, 63, 291 A.2d 234 (1971) (bailee has contractual duty to perform obligations with due care; however, once the duty is breached, the action proceeds as negligence even though negligence constitutes breach of contract). Here, the defendants argue that the plaintiffs had a duty of due care to provide an accurate property description but the counterclaim does not reference any contractual obligation to perform this task. The fact that they are parties to a contract, does not, in and of itself, create an amorphous duty on each party with a scope to be defined at a later date. Therefore, the question for the court, in deciding this motion to strike, is whether the defendants have adequately pleaded facts to support the existence of a legally cognizable duty on the buyer of real estate to properly identify the property for the seller.
The plaintiffs have not provided the court with any legal authority specifically disclaiming the existence of a duty on a buyer of real estate to provide proper identification of the property and a search for relevant case law did not reveal any case directly on point. Therefore, an application of the basic analysis is necessary to determine whether the defendants have adequately pleaded the existence of a duty of care. "The existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 547, 839 A.2d 1259 (2004). It is essential to plead "the existence of a legally cognizable duty, [for] the law does not impose liability in tort for every conceivable harm that may in some way flow from another's conduct." Owades v. Associates Home Equity Services, Superior Court, judicial district of Fairfield, Docket No. CV 01 0380582 (July 16, 2001, Stevens, J.).
The defendants pleaded that the plaintiffs knew or should have known about the partition of the property. They pleaded numerous facts in support of this allegation, including their open and visible use and improvement of the rear parcel and the fact that the plaintiffs, as prior renters of the subject property, knew that they did not rent the full parcel. Regardless of their knowledge of the defendants' use of the property prior to the sale, the facts as alleged do not support the existence of a duty on the plaintiffs to provide an accurate description of the property. The defendants' claim that such a duty existed is a legal conclusion unsupported by the facts alleged. "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, 262 Conn. 480, 498, CT Page 3969 815 A.2d 1188 (2003). Therefore, the motion to strike this counterclaim is granted.
Second, Third and Fourth Counterclaims — Misrepresentation
The second, third and fourth counterclaims, assert causes of action sounding in various forms of misrepresentation, including innocent misrepresentation, negligent misrepresentation, and reckless misrepresentation, respectively. The plaintiffs move to strike these counterclaims on the ground that a seller cannot reasonably rely on the buyer to provide an accurate property description; therefore, a cause of action for misrepresentation of that information cannot stand against a buyer. In response, the defendants maintain that whether they justifiably relied on the plaintiffs' alleged misrepresentations is a question of fact that cannot be determined on a motion to strike.
A cause of action for a misrepresentation can take several forms, innocent, negligent and intentional; in the present case, the defendants have alleged all three. Although the elements required differ slightly between each cause of action, all three actions require an allegation that the claimant justifiably relied on the misrepresentation. See Frimberger v. Anzellotti, 25 Conn.App. 401, 410, 594 A.2d 1029 (1991) (Justifiable reliance is an element of innocent misrepresentation); Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004) (negligent misrepresentation requires evidence of pecuniary loss caused by justifiable reliance upon information at issue); Duplissie v. Devino, 96 Conn.App. 673, 690-91, 902 A.2d 30 (2006) (Justifiable reliance is a necessary element of a fraudulent misrepresentation claim).
"[M]utual mistake exists where both parties are mutually mistaken about the same material fact." Dainty Rubbish Service, Inc. v. Beacon Hill Ass'n., Inc., 32 Conn.App. 530, 537, 630 A.2d 115 (1993). A mutual mistake is one that is common to both parties and effects a result that neither intended. Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981).
In the recent case of Phillips v. Phillips, 101 Conn.App. 65, 72-73, 922 A.2d 1100 (2007), the Appellate Court stated that a party claiming misrepresentation cannot establish justifiable reliance on a claimed misrepresentation if the party did not believe that misrepresentation. Here, the defendants claim that they relied on the plaintiffs' description of the property and incorporated that description into the purchase sale agreement. Pursuant to the rational of Philips, however, the defendants' reliance on the description proffered by the plaintiffs is not justified because the counterclaim clearly alleges facts pertaining to the defendants' own knowledge that the rear parcel had previously been partitioned. As the parties that originally partitioned the property into two lots, the defendants cannot now claim that they justifiably relied on the plaintiffs' description of the property as a complete parcel. Justifiable reliance is a key element to all three forms of misrepresentation; accordingly, the plaintiffs' motion to strike the second, third and fourth counterclaims is granted.
Fifth Counterclaim — Good Faith and Fair Dealing
In the fifth counterclaim, the defendants allege that the plaintiffs' refusal to reform the deed and related documents to correct the mistaken property description constitutes a breach of the implied covenant of good faith and fair dealing incorporated into the parties' January 12, 2006 agreement. The plaintiffs move to strike this counterclaim on the ground that they cannot be liable for the breach of this covenant because the defendants did not have a reasonable expectation that the plaintiffs would provide an accurate property description.
The Superior Court, in Ruiz v. Dunbar Armored, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 03 0404213 (July 19, 2005, Hiller, J.) (39 Conn. L. Rptr. 710) summarized the elements of this cause of action as follows: "[A]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly prove: 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." Id. "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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 17 n. 18 (2008). The Appellate Court has also stated that "[t]he implied covenant of good faith and fair dealing requires faithfulness to an agreed common purpose and consistency with the justified expectation of the other party in the performance of every contract . . . Essentially, it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed term of a contract, unless, possibly, those terms are contrary to public policy." (Internal quotation marks omitted.) LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 834, 798 A.2d 445 (2002).
Taking the facts to be those alleged in the defendants' counterclaim, the parties contracted to transfer a piece of property. The plaintiffs provided a description of that property, and that description was incorporated into the final agreement. Upon realizing that the description was in error, the defendants sought to have the deeds reformed and the plaintiffs refused this request. This refusal to reform the deeds to reflect a different description of the property is the basis of the defendants' claim for the breach of the implied covenant of good faith and fair dealing. As stated in LaSalle National Bank, however, a party cannot assert this cause of action to achieve a result contrary to an express term in the contract. The facts alleged do not demonstrate any action by the plaintiffs to contradict an express term of the contract; instead, the allegations indicate that the plaintiffs refused to reform the deed to terms in contradiction with their original agreement. A cause of action for breach of the implied covenant of good faith and fair dealing cannot lie against the plaintiffs for refusing to reform a deed to terms that contradict the underlying purchase sale agreement. Accordingly, the plaintiffs' motion to strike the fifth counterclaim is granted.
Seventh counterclaim — Unclean Hands
The plaintiffs move to strike the seventh counterclaim, alleging unclean hands, on the ground that it fails to assert a legally cognizable cause of action. The defendants do not provide any argument directly related to the legal sufficiency of this counterclaim, and instead direct the court's attention to their argument in favor of the legal sufficiency of the corresponding seventh special defense, also sounding in unclean hands. A review of the case law is clear; unclean hands is a special defense, and cannot be pleaded as a counterclaim. See Southern Connecticut Financial Services., Inc. v. Carneiro, Superior Court, judicial district of Fairfield, Docket No. CV 06 4015109 (November 15, 2007, Maiocco, J.T.R.) (granting motion to strike counterclaim for unclean hands on the ground that unclean hands is a special defense, not an independent cause of action). The motion to strike the seventh counterclaim is, therefore, granted.
Ninth Counterclaim — Constructive Trust
The ninth counterclaim, requesting a constructive trust, is a request for a remedy and does not assert an actual cause of action. "A constructive trust is an equitable remedy imposed to prevent unjust enrichment." Gulack v. Gulack, 30 Conn.App. 305, 311, 620 A.2d 181 (1993). A count requesting the imposition of a constructive trust is a request for an equitable remedy, and not a "substantive [cause] of action upon which the complaint is predicated . . ." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 623 n. 3, CT Page 3972 804 A.2d 180 (2002), on remand, 277 Conn. 617, 894 A.2d 240 (2006). The defendants have alleged a separate cause of action for unjust enrichment in the tenth counterclaim. The request for a constructive trust is a remedy for this claim, and does not constitute a separate and distinct cause of action. The motion to strike the ninth counterclaim is granted.
Twelfth Counterclaim — CUTPA
The defendants' twelfth counterclaim is for a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiffs move to strike this counterclaim on the ground that the defendants fail to satisfy the pleading requirements of CUTPA. Particularly, the plaintiffs argue that the allegations contain contradictory facts and appears to hold Stork Club, an entity that is not named as a party in this action, liable under CUTPA. The plaintiffs also argue that because Jeffrey Gandolfo purchased the property in his individual rather than business capacity, the facts alleged do not establish that the improper conduct was conducted in the course of the plaintiff's business, a requisite element of a CUTPA claim. In response, the defendants maintain that the allegations are not contradictory, and that they have adequately pleaded facts to support that the plaintiff Jeffrey Gandolfo purchased the property in connection with his commercial activities as owner of the Stork Club.
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." General Statutes § 42-110b(a). Recent appellate authority has shed light on the interpretation of what constitutes "conduct of any trade or commerce." In McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 890 A.2d 140 (2006), the plaintiffs alleged that the defendants violated CUTPA in connection with their sale to plaintiffs of certain property that had been used for automobile sales and related services and was contaminated with oil. The defendants, whose primary trade or business was the sale of automobiles and related automotive services, not the sale of property, moved to strike the CUTPA claim on the grounds that CUTPA does not apply to a transaction which is not within the alleged offender's primary trade or business. The Appellate Court agreed and held that "a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce." Id., 523.
Even taking the facts alleged in the light most favorable to the defendants, the facts here are analogous to those of McCann. The defendants alleged in their twelfth counterclaim that "in purchasing 186 Pomeroy Avenue the plaintiffs acted in the course of their trade or business as owners of Stork." The counterclaim incorporates the allegations of the first counterclaim, which states that the property was originally leased to Stork Club for use as a day care center. It further alleges that Jeffrey Gandolfo agreed to purchase the property on which Stork operated its day care center. These facts support the conclusion that Stork's primary course of business was as a day care provider, and, therefore, the purchase of the property was incidental to this primary purpose. Based on the facts alleged, the defendants have failed to sufficiently plead that the plaintiffs' conduct was done in the course of their primary trade or business. Accordingly, the motion to strike the twelfth counterclaim is granted.
Thirteenth Counterclaim
The final counterclaim subject to the plaintiffs' motion to strike is the thirteenth counterclaim, sounding in breach of fiduciary duty by the plaintiff Jeffrey Gandolfo. The plaintiffs argue that this claim should be stricken because Gandolfo did not owe a fiduciary duty to Barker with regard to the purchase of 186 Pomeroy Avenue. The plaintiffs maintain that any duty that may exist between the two parties related solely to the Stork Club and does not extend to the transaction with Barker Realty for the purchase of the property. In response, the defendants contend that partners owe each other a fiduciary duty, and as such, the claim is adequately pleaded.
"To assert a claim for breach of a fiduciary duty the plaintiff has the burden of proving the existence of a fiduciary relationship." United States Financial Group, Inc. v. Salazar, Superior Court, judicial district of Danbury, Docket No. CV 00 0339753 (April 23, 2002, Moraghan, J.T.R.). "[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties; one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Emphasis in original; internal quotation marks omitted.) Biller Associates v. Peterken, 269 Conn. 716, 723, 849 A.2d 847 (2004). "[N]ot all business relationships, [however], implicate the duty of a fiduciary." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). Furthermore, "[t]he Connecticut
Supreme Court has never recognized the existence of a fiduciary relationship without some facts indicating that the claimed fiduciary has in some manner agreed to protect that person's interests." (Internal quotation marks omitted.) Silva v. New York Life Ins. Co., Superior Court, judicial district of Fairfield, Docket No. 97 0342973 (January 12, 2001, Skolnick, J.). "It is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them." Biller Associates v. Peterken, supra, 269 Conn. 723. Merely labeling a relationship as business partners is insufficient to establish the existence of a fiduciary relationship. See Giannini v. Guardian Life Ins. Co, Superior Court, judicial district of New Haven, Docket No. CV 05 4008629 (October 26, 2005, Zoarski, J.T.R).
In the present case, the defendants allege that the plaintiff Jeffrey Gandolfo had a fiduciary relationship with the defendant Michael Barker because they were former business partners. Aside from labeling the relationship as partners and co-shareholders of Stork, the defendants have not pleaded sufficient facts to characterize their relationship by a unique degree of trust and confidence, or to establish that Gandolfo had superior knowledge, skill, or expertise. Therefore, the defendants have failed to allege a fiduciary relationship with Barker. The motion to strike the thirteenth counterclaim is granted.
CONCLUSION
In summary, the motion to strike the special defenses is granted in its entirety. The motion to strike the counterclaims is denied as to the sixth, eighth and eleventh counterclaims, but is granted as to the first through fifth, seventh, ninth, twelfth and thirteenth counterclaims.