Opinion
UWYCV156027170S
11-10-2016
Doran Glass et al. v. Bank of America, N.A. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #128
Barbara Brazzel-Massaro, J.
I. INTRODUCTION
The plaintiffs filed this action by way of writ, summons and complaint dated May 11, 2015. The plaintiffs named as defendants Bank of America, N.A. (BANA), Safeguard Properties, LLC, (Safeguard), UNPPG Asset Recovery Service (UNPPG), and Leroy Hellmig. The plaintiff revised the complaint on February 29, 2016. The revised complaint contains eleven counts. The defendant has filed a motion to strike as to counts one, five, six and nine against the defendant BANA.
II. FACTUAL BACKGROUND
The revised complaint alleges the following facts as to the defendant BANA. BANA holds the promissory note and first mortgage on the plaintiffs' residence (the premises) dated December 9, 1998. On April 15, 2013, BANA wrote a letter that authorized Safeguard to arrange for the entry and preservation of the premises based on an alleged default on the note and a contemplated foreclosure of the mortgage. Safeguard then delegated the authority to UNPPG, which in its turn delegated it to Hellmig. On April 15, 2013, Hellmig and other unknown persons entered the premise and removed all of the plaintiffs' personal property. The plaintiffs allege that they were not in default of the obligations on the note or mortgage, and did not abandon or vacate their residence at any time relevant to this action. They further allege that BANA failed to provide them with notice of default of a pending action to preserve the premises.
The plaintiffs bring claims against BANA for breach of contract (count one), violation of the Connecticut Unfair Trade Practices Act (count five), negligence (count six), and breach of covenant of good faith and fair dealing (count nine). On March 18, 2016, BANA moved to strike the referenced counts on the ground that they fail to state any legally cognizable claims against BANA. The plaintiffs filed an objection to the motion to strike dated May 18, 2016. The parties appeared and argued the motion and objection on July 18, 2016.
III. DISCUSSION
A. General Standard
" 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). " [The 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. 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). " 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 (2006). Further, our Supreme Court " will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987). " [T]he trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). " Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Practice Book § [10-39(c)], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-39(c)] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on motion to strike, court cannot resort to information outside of the complaint). " Nonetheless, [a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as it had been set out at length . . . A complaint includes all exhibits attached thereto." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
B. Breach of Contract
In support of their breach of contract claim the plaintiffs allege that " [t]he note and mortgage do not allow BANA to issue a false authorization to enter on the premises and conduct the preservation services." They also allege that they were not " in default of the obligations of the note or mortgage . . . did not abandon or vacate their residence, " and, therefore, " [t]he purported authority of [BANAl was false." The defendant counters that it acted within its right under the mortgage, which " specifically authorized BANA to preserve and protect its security interest in the Property in the event the Property was vacant or abandoned or the Loan was in default."
" The elements of a breach of contract action are the formation of an agreement, the performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Hawley Avenue Associate, LLC v. Robert D. Russo, M.D. & Associates Radiology, P.C., 130 Conn.App. 823, 832, 25 A.3d 707 (2011). There is a contractual relationship between the borrowers and the mortgage holder. See Cook v. Bartholomew, 60 Conn. 24, 25, 22 A. 444 (1891). (" A mortgage is a contract of sale executed, with power to redeem.") " Superior Court judges have uniformly held that, in pleading facts sufficient to establish the element of breach, the plaintiff must identify the specific provision of the contract that the defendant violated." DVG Public Adjustment Services, LLC v. Peoples United Bank, Superior Court, judicial district of New Haven, Docket No. CV156055941S, (May 12, 2016, Wilson, J.).
In the present case, the plaintiffs fail to allege the specific provisions of the mortgage that the defendant breached. The mortgage is not part of the revised amended complaint, whether as an exhibit, or as its contents being incorporated by reference. Accordingly, in determining the legal sufficiency of the plaintiffs' breach of contract claim, this court cannot consider it. See Zirinsky v. Zirinsky, supra, 87 Conn.App. 268 n.9. The plaintiff's vagueness and lack of certain conditions, i.e., default on the mortgage and abandonment of the premises, without which the defendant and no right to issue an authorization to enter the premises. Nonetheless, without pleading specific facts concerning the rights accorded to the defendant under the mortgage, the plaintiffs' allegations are insufficient to establish the element of breach. Therefore, the motion to strike the breach of contract count is granted.
C. Breach of Covenant of Good Faith and Fair Dealing
The plaintiffs also allege a claim for breach of the covenant of good faith and 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." (Internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Insurance Co., 308 Conn. 760, 794, 67 A.3d 961 (2013)." " [T]o state a legally sufficient claim for breach of the implied covenant sounding in contract, the plaintiff must allege that the defendant acted in bad faith." Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 132 Conn.App. 85, 99, 30 A.3d 38 (2011), aff'd, 311 Conn. 123, 84 A.3d 840 (2014). " Bad faith means more than mere negligence, it involves a dishonest purpose." (Internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Insurance Co., supra, 308 Conn. 795.
In the present case, although in their memorandum of law the plaintiffs allege that the defendant's bad motive was to decrease its cost by avoiding to properly screen the files for default status and to notify the consumer of the contemplated action, this allegation is not part of the revised amended complaint. Without pleading specific facts alleging bad faith in the complaint, the plaintiffs have failed to establish the elements of a prima facie claim for breach of the covenant of good faith and fair dealing against the defendant. Accordingly, the motion to strike the count for breach of covenant of good faith and fair dealing is granted.
D. Negligence
In support of their negligence claim, the plaintiffs allege that the defendant failed to exercise reasonable care " in rendering a generic authorization for third persons to enter the property of the plaintiffs" and " in the selection of a third party to conduct preservation services at their premises." The defendant argues that it cannot be held liable for the acts of either its independent contractor, Safeguard, or a third party, Hellmig, whose criminal acts were a superseding cause of the alleged harm to the plaintiffs.
" To sustain a cause of action [in negligence], the court must determine whether the defendant owed a duty to the [plaintiff]." (Internal quotation marks omitted.) Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 44, 492 A.2d 219 (1985). " As a general rule, an employer is not liable for the negligence of its independent contractors . . . [S]ince the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it . . . We have long held, however, that [t]o this general rule there are exceptions, among them . . . if the contractee negligently employs an incompetent or untrustworthy contractor." (Citations omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517-18, 825 A.2d 72 (2003).
Additionally, " as a general matter, a defendant is not responsible for anticipating the intentional misconduct of a third party . . . [H]owever, . . . there are exceptions to this general rule . . . [T]he actor's conduct may be negligent solely because he should have recognized that it would expose [another] person . . . to an unreasonable risk of criminal aggression. If so . . . it is not necessary that the conduct should be negligent solely because of its tendency to afford an opportunity for a third person to commit the crime. It is enough that the actor should have realized the likelihood that his conduct would create a temptation which would be likely to lead to its commission . . . As in other cases of negligence . . . it is a matter of balancing the magnitude of the risk against the utility of the actor's conduct. Factors to be considered are the temptation or opportunity which the situation may afford . . . for such misconduct . . . together with the burden of the precautions which the actor would be required to take . . . Thus, for purposes of this exception, the issue is twofold: (1) whether the defendant's conduct gave rise to the foreseeable risk that the injured party would be harmed by the intentional misconduct of a third party; and (2) if so, whether, in light of that risk, the defendant failed to take appropriate precautions for the injured party's protection." (Citations omitted; internal quotation marks omitted.) Doe v. Boy Scouts of America Corp., 323 Conn. 303, 316-18, 147 A.3d 104 (2016). Furthermore, the allegations that " the defendant's negligent conduct increased the risk that the plaintiff would be subject to [harm] and that the defendant negligently failed to take precautions against this risk . . . [are] sufficient to establish causation." Id., 329-30.
In the present case, the plaintiffs allege that " [i]n the exercise of reasonable care and diligence [the defendant] should have known Safeguard was the subject of numerous complaints prior to April of 2013 . . . [a]nd is the subject of many other private actions for damages on similar facts . . . [BANA] breached [its] duty of reasonable care in the selection of Safeguard and simply letting Safeguard make the remaining decisions independently." These allegations give rise to a breach of duty to hire competent and trustworthy contractors for property preservation, which the defendant owed to the plaintiffs. See Pelletier v. Sordoni/Skanska Const. Co., supra, 264 Conn. at 518.
The plaintiffs also allege that BANA " took no steps to manage Safeguard's further delegation of its purported authority to enter the home of another, or to render any sort of protection for the consumers such as the plaintiffs . . . [As a result], [t]he plaintiffs suffered harm in the wrongful entry onto their premises [by a third party], and the removal of substantially all of their personal property." Construing these allegations in the manner most favorable to sustaining their legal sufficiency, this court concludes that they reflect the factors for determining the foreseeability of intentional misconduct of a third party set forth in Doe, i.e. " the temptation or opportunity which the situation" created for a wrongful entry on the premises and the defendant's failure to take any necessary precautions against this risk. Doe v. Boy Scouts of America Corp., supra, 323 Conn. 303, 318. Accordingly, the plaintiffs have sufficiently alleged that the defendant breached its duty to protect them from intentional misconduct of a third party under the circumstances and that the defendant's conduct caused their harm. The motion to strike the negligence claim is denied.
E. CUTPA Violation
In support of their claim for a violation of CUTPA, the plaintiffs allege that the defendant " regularly engaged in the preservation of property as an ordinary part of its residential loan business. In the circumstances of this case, the business practice is oppressive, unfair, unscrupulous, and has caused ascertainable harm to the plaintiffs." The defendant argues that the mortgage agreement specifically authorized it to inspect, preserve and protect the property from potential damage in the event the property was vacant or abandoned or the loan was in default. Therefore, the defendant claims that its actions do not constitute a CUTPA violation.
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). " [l]n determining whether a practice violates CITPA we have adopted the criteria set out in the cigarette rule by the Federal Trade Commission [FTC] 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; [and] (3) whether it causes substantial injury to consumer [competitors or other business persons] . . . 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, ) Ulbrich v. Groth, 310 Conn. 375, 409-10, 78 A.3d 76 (2013), Ramirez v. Healthnet of the Northeast, Inc., 285 Conn. 1, 19, 938 A.2d 576 (2008).
With respect to CUTPA claims that are predicated on alleged breaches of contract, " not every contractual breach rises to the level of a CUTPA violation." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 228, 990 A.2d 326 (2010). " [Mere negligence or incompetence in performing a contract will not support a CUTPA claim under the second prong of the cigarette rule in the absence of . . . immoral, unethical, oppressive, or unscrupulous conduct ." (Emphasis in original; internal quotation marks omitted.) Ulbrich v. Groth, supra, 310 Conn. 411 n.31 " The question therefore becomes whether the plaintiff has alleged in its complaint the substantial aggravating circumstances attending the breach of contract necessary to establish a CUTPA violation . . . Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims . . . and multiple breaches of contract." (Citation omitted; internal quotation marks omitted.) DVG Public Adjustment Services, LLC v. Peoples United Bank, supra, Superior Court, Docket No. CV 15-6055941-S.
In the present case, the plaintiffs' claim for a CUTPA violation predicated on alleged breach of contract, which, as explained above, the plaintiffs have failed to adequately plead. The alleged defendant's authorization to a third party to enter the plaintiffs' house on its behalf in order to preserve the property was allegedly " an ordinary part of [the defendant's] residential loan business." Conduct of this sort, while arguably negligent, is not oppressive or unscrupulous within the meaning of CUTPA, which makes the plaintiffs' CUTPA claim legally insufficient. The motion to strike the CUTPA count is granted.
IV. CONCLUSION
For the foregoing reasons, the motion to strike the claims for breach of contract, breach of implied duty of good faith and fair dealing and violation of CUTPA is granted. The motion to strike the negligence claim is denied.