Opinion
No. FST CV 10 6002771 S
January 3, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (103.00)
FACTS
On December 11, 2009, the plaintiff, Janet-McComiskey, commenced this action against the defendant, Ramm Fence Systems, Inc. On August 4, 2010, the defendant requested that the plaintiff revise certain portions of the complaint. On September 1, 2010, the plaintiff filed a revised complaint (complaint), which is the operative complaint for the purposes of this motion to strike.
The summons refers to the plaintiff as Stephanie McComiskey Janet. The plaintiff's pleadings refer to her as Stephanie C. Janet-McComiskey.
The plaintiff's allegations in the complaint are described in the following five paragraphs. The plaintiff operates a boarding stable for horses in Monroe known as Shalimar Fields, LLC (Shalimar). In fall 2007, the plaintiff got in touch with the defendant to inquire about purchasing stalls that would be used in a barn to be built on her property in connection with Shalimar. In November 2007, the plaintiff met with an authorized sales representative of the defendant named Veronica Golbinec at the Massachusetts Equine Affair Show. Golbinec showed the plaintiff different types of horse stalls. On November 14, 2007, the defendant gave the plaintiff a written quote for eighteen stalls priced at $63,430.48 for materials only. On the same day, the plaintiff accepted the quote and made a down payment of $14,253.25. The plaintiff hired Morton Buildings, Inc. (the builder) to build the barn and install the stalls. The agreement between the plaintiff and the defendant required the defendant to provide technical assistance to the builder.
The "[p]laintiff encountered difficulties with [the d]efendant as to its lack of responsiveness and assistance to [the] builder in connection with installation of the stalls, in that [the d]efendant provided only rudimentary sketches and drawings, which were of little assistance to the [builder] given the complexity of the purchased stalls." Delays in the delivery of the stalls "began to have a significant impact on the timeframe for completion of the barn construction." Even though the defendant made "repeated assurances that the stalls would be delivered expeditiously, they were not shipped until March 20, 2008, and upon receipt of the stalls, it was discovered by [the] builder that crucial pieces of the stall were missing." The defendant told the plaintiff "that all necessary missing pieces would be shipped immediately," and based on this representation, the plaintiff sent the defendant the full balance due for the stalls. During installation of the stalls in April 2008, it emerged that additional pieces were needed for proper installation of the eighteen stalls, but by the next month, the plaintiff had received all of the necessary components. The stalls were completed in early May 2008.
From the moment of completion, none of the eighteen stall doors closed properly. Though the doors were designed to lock by sliding shut, none could be closed by sliding, and at least twelve doors did not slide easily. Two doors did not close at all, requiring the plaintiff to use a chain to shut them. Furthermore, one door "was almost impossible to open" and another had a "broken locking mechanism." The plaintiff contacted the defendant to report this problem, and the defendant "sent someone out to the property to inspect the stalls in May of 2008, and acknowledged that the stalls did not work properly and promised to send someone out to replace all of the closing mechanisms on the stalls." On May 16, 2008, the plaintiff informed the defendant that a horse that the plaintiff "put in the barn to test the efficacy of the stalls" was able to open the door and walk out of the barn. As of June 10, 2008, despite the plaintiff's claims that horses were escaping the stalls, the defendant still had not sent anyone to fix the closing mechanisms.
The defendant e-mailed the plaintiff on October 16, 2008 to acknowledge that the closing mechanisms "were defective and faulty" and that the defendant would rebuild all eighteen doors and deliver them to the plaintiff in November 2008. Nothing was delivered by January 2009, "with [the d]efendant again promising that new latches would be delivered in early February of 2009." In March 2009, the "[d]efendant sent a repair person to fix the closing mechanisms," but this did not fix the problem because "the closing mechanisms continued to not function properly, the doors would not stay locked, and the barn doors became increasingly harder to close and open."
The plaintiff's barn manager told her on April 15, 2009 that during the previous night, a horse was found loose in the barn and a broken locking mechanism was discovered that made it impossible to lock the door. The plaintiff began to padlock the stall so that the horse would not escape. A nighttime escape of a stallion occurred in May 2009. On June 3, 2009, the defendant told the barn manager "that they would no longer communicate with [the p]laintiff about the problem stalls and that `correspondence on the account would have to go through the attorneys.'" Between June 2009 and the filing of the complaint, several more horses were able to leave their stalls during the night, and one of them was "found in the middle of the property and near the road."
The plaintiff brings her complaint in five counts. The first three counts are under the Uniform Commercial Code (UCC): breach of express warranties (General Statutes § 42a-2-313), breach of implied warranties of merchantability and use of trade (General Statutes § 42a-2-314) and breach of implied warranties of fitness for a particular purpose (General Statutes § 42a-2-315). Count four is a claim for common-law negligence. Count five is a claim for breach of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In count five, which alleges a breach of CUTPA, the plaintiff alleges that "[b]y virtue of . . . the pattern of misrepresentations and false promises made concerning the products supplied and [the d]efendant's repeated false promises to repair, [the d]efendant has engaged in a pattern of deceptive practices in the conduct of commerce as a result of which [the p]laintiff has sustained ascertainable loss, for which [the d]efendant is liable." The plaintiff requests compensatory damages, attorneys fees, prejudgment and postjudgment interest and any other relief the court deems just and proper.
On September 21, 2010, the defendant moved to strike count five and the prayer for attorneys fees as legally insufficient. The motion is accompanied by a memorandum of law. On September 30, 2010, the plaintiff filed a memorandum in opposition. The parties were heard at short calendar on November 1, 2010.
On the face of the motion, the defendant moves to strike because the "plaintiff has failed to allege sufficient facts to claim a violation of CUTPA." "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 . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], 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 § 10-41] 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). "The court, however, may entertain the motion if the opposing party has not objected on this basis because the requirement is not jurisdictional in nature . . . In the present case, the plaintiff has not so objected, and thus, the court will consider the merits of the motion." (Citation omitted.) Harris v. Kupersmith, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 6000995 (August 31, 2009, Adams, J.).
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "[I]n 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." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).
I
CUTPA
The defendant first moves to strike count five, breach of CUTPA, on the ground that the plaintiff has not alleged sufficient facts to claim a CUTPA violation. The defendant argues that its alleged broken promises are "not sufficiently deceptive or unscrupulous" to allow the CUTPA claim to be maintained. Further, the defendant argues that while an alleged misrepresentation can be an aggravating circumstance that would establish a CUTPA violation, the misrepresentation has to be made at the time of contract formation. In response, the plaintiff contends that its allegations conform to the second prong of the cigarette rule, that the defendant's repeated false promises indicate "immoral, unethical, oppressive or unscrupulous behavior" and that those false promises constitute an aggravating factor. The plaintiff further argues that the cases relied upon by the defendant are based on breach of contract claims, whereas the present case does not contain a cause of action for breach of contract.
While acknowledging that the action does not contain a claim for breach of contract, the defendant urges the court to consider cases that discuss breach and aggravating circumstances in the context of pleading CUTPA violations.
General Statutes § 42-110g(a) provides in relevant part: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . ." "[General Statutes § ]42-110b(a) 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. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission 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." (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010). "A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 569 n. 7, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). "[T]his court has previously determined that a simple breach of contract without any aggravating factors or egregious conduct does not amount to a CUTPA violation." Seven Oaks Partners, LP v. Vigilant Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5012672 (July 7, 2010, Adams, J.).
This court takes into account the Connecticut Supreme Court's view that it is "unpersuaded that there is any special requirement of pleading particularity connected with a CUTPA claim, over and above any other claim." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180 (2002). The Supreme Court made this broad pronouncement in rejecting a party's argument that a CUTPA claim cannot survive a motion to strike unless it is so phrased as to conform to the three prongs of the Federal Trade Commission's cigarette rule. Id. Although it might be true that the effect of Macomber is that "[a] CUTPA claim no longer must be pleaded with particularity"; Sanderson v. ISOPur Fluid Technologies, Inc., Superior Court, complex litigation docket at Norwich, Docket No. 127378 (April 30, 2004, Hurley, J.T.R.); there is nothing in Macomber to suggest that CUTPA is exempt from fact pleading requirements.
"In the absence of any Connecticut appellate opinion on point, almost if not, all Superior Court decisions and one decision of the United States Court of Appeals for the Second Circuit, applying Connecticut law, have held that a simple breach of contract does not amount to a violation of CUTPA." Abatron, Inc. v. Reed Elsevier, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0191987 (January 24, 2003, Adams, J.).
The defendant relies on Designs on Stone v. John Brennan Construction Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 059997 (April 9, 1998, Corradino, J.) ( 21 Conn. L. Rptr. 659) for the argument that a mere broken promise cannot be the basis for a CUTPA claim. In Designs on Stone, the plaintiff, a masonry subcontractor, brought a CUTPA claim against the defendant construction company, alleging, among other claims, that "[d]uring the course of the job, the defendant failed to supply the construction materials as promised, and the plaintiff's ability to complete the job in a timely fashion was substantially hindered." Id., 659. The court granted the motion to strike the CUTPA claim, noting that it "has found no case that holds that a statement predictive of future conduct . . . somehow becomes a `misrepresentation' for CUTPA purposes simply when the party making the representation cannot deliver on the promise." Id., 660-61. The court noted that exceptions exist at common law (such as where a party made a promise with the concurrent intent not to fulfill it or where a party had a duty to disclose), but that the general rule is that "CUTPA liability should not be imposed where the defendant merely has not delivered on a promise (necessarily relating to future performance when made) made at the time the contract was entered into." Id., 661.
The plaintiff cites to Pusztay v. Allstate Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002425 (June 30, 2009, Pavia, J.), for the proposition that repeated false promises can constitute the "immoral, unethical, oppressive, or unscrupulous" behavior that can serve as the basis for a CUTPA claim. In Pusztay, the court denied a motion to strike the CUTPA claim after characterizing the basis of the claim as "allegations that the defendant violated the covenant of good faith and fair dealing and intentionally made misrepresentations regarding its intent to settle the plaintiff's claim, made unnecessary requests for documentation with the intent of prolonging the negotiation process and misleadingly promised that a settlement offer was forthcoming when one was never tendered." Id. In OG Industries, Inc. v. Earth Technology, Inc., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 08 5006408 (January 6, 2010, Bellis, J.), also relied upon by the plaintiff, the CUTPA claim was judged to have aggravating circumstances to bring it within the cigarette rule, allowing it to survive the motion to strike, because there were allegations that a party "act[ed] maliciously in withholding contract monies which were otherwise due . . . solely to exert financial pressure upon [the CUTPA plaintiff] to pay . . . claims in this action . . ." In Gray v. Sullivan Real Estate, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5012402 (May 18, 2010, Trombley, J.) ( 49 Conn. L. Rptr. 888, 892), another case relied upon by the plaintiff, the court noted that false promises to fix a problem can serve as an aggravating factor for CUTPA purposes.
"The negligent misrepresentation on the part of Kelley Sullivan alleged in count three serves as an aggravating factor to the breach of contract. The plaintiff also alleges an additional aggravating factor in count three: `The plaintiff, after numerous conversations over the course of a year . . . regarding reimbursement, and then subsequent refusal by defendant Kelley J. Sullivan to pay for the remediation, the plaintiff had to spend his money to fix the [m]old infestation in his condominium.' This allegation implies that Kelley Sullivan reassured the plaintiff that he would not have to pay for the mold damage, and then failed to follow through with reimbursement. In addition to the breach, then, Kelley Sullivan further misled the plaintiff that the problem would be rectified." Gray v. Sullivan Real Estate, Inc., supra, 49 Conn. L. Rptr. 892.
In Pusztay, there was some allegation that the misrepresentations serving as a basis for CUTPA liability were intentional; Pusztay v. Allstate Ins. Co., supra, Superior Court, Docket No. CV 06 5002425; thus distinguishing that decision from the present case. In OG Industries, the allegation was that the breach was intentional but there did not appear to be a similar allegation made regarding the representations in the contract. OG Industries, Inc. v. Earth Technology, Inc., supra, Superior Court, Docket No. CV 08 5006408. In Gray, on the other hand, the misrepresentation was alleged to have been negligent and not intentional, but the court decided that "[n]egligent misrepresentation suffices as a basis for a CUTPA claim and as an aggravating factor making a breach of contract action also the basis of a CUTPA claim." (Emphasis omitted; internal quotation marks omitted.) Gray v. Sullivan Real Estate, Inc., supra, 49 Conn. L. Rptr. 892.
In Greene v. Orsini, 50 Conn.Sup. 312, 313, 926 A.2d 708 (2007), the plaintiffs claimed that the defendants intentionally breached a noncompetition agreement. The court noted that "the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation" when "the aggravating factors present constitute more than a failure to deliver on a promise." Id., 315. The Greene plaintiffs alleged that the defendants were selling sausages to a competitor, and that after the plaintiffs complained, "the defendants agreed not to sell sausages to competitors in New London. Less than a month later, however, the defendants sold sausages to other stores in New London and subsequently sold sausages to the same competitor that the plaintiffs first complained about. If proven, these allegations demonstrate that the defendants misrepresented their intentions by failing to honor their side of the noncompetition agreement, which violates CUTPA under the second prong of the cigarette rule." Id., 317. Just as the Pusztay decision cited above, Greene can be distinguished from the present action because it involved allegations of intentional misrepresentation, that is, a promise made with the present intent to break the promise. Id., 316.
Moreover, numerous Superior Court decisions in Connecticut have also held that a mere failure to deliver on a promise generally cannot be the basis for a CUTPA count. See, e.g., Leshine Carton Co. v. Matik of North America, Superior Court, judicial district of New Haven, Docket No. CV 05 4007636 (November 19, 2008, Corradino, J.). Accordingly, in OCI Chemical Corp. v. AON Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4003935 (August 31, 2006, Jennings, J.), where the plaintiff alleged that the defendant "failed in its promise to facilitate communication between [the plaintiff] and its insurers and its promise to ensure that [the plaintiff] was adequately insured for its losses" without an allegation of "a present intent to breach the contract at the time that it was formed," the court granted the motion to strike the CUTPA claim. See also Patrician v. Melanson, Superior Court, judicial district of Middlesex, Docket No. CV 05 4004508 (July 10, 2006, Dubay, J.) (striking CUTPA claims where "[n]owhere in [the CUTPA] counts . . . [did] the plaintiff allege either that the defendants had a present intent not to deliver on their representations to him or that those representations were intended to induce him"); Jannetty Racing Enterprises, Inc. v. Site Development Technologies, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 05 4004820 (January 31, 2006, Brunetti, J.) (striking a CUTPA count where allegations "merely amount to allegations that the defendants have not delivered on a promise" and "[t]here is no allegation that the defendants had a present intent not to fulfill this promise"). In harmony with this line of cases, in LESMSD, LLC v. RJ Properties, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177537 (November 22, 2005, Gallagher, J.), the court ruled that "the plaintiffs' allegation that the defendants `intentionally misrepresented material facts,' is enough to withstand a motion to strike a CUTPA claim."
In Raffone v. Home Depot U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 0465471 (June 23, 2003, Harper, J.) ( 34 Conn. L. Rptr. 747, 747), a decision with some similarities to the present case, the plaintiff alleged that he ordered a window unit from the defendant retailer, but when the window unit was delivered, it differed from the plaintiff's specifications. The plaintiff notified the defendant, who "did not take any remedial action" but instead informed the plaintiff "that it was not possible to order a window unit to meet the plaintiff's specifications," a statement that was in apparent contradiction with the views of a representative from the window company. Id. The court granted the defendant's motion to strike the CUTPA count, noting that because "[t]he plaintiff does not allege . . . that the defendant entered into the agreement with a present intent not to fulfill the promise," the defendant's allegedly false statement "fails to give rise to a substantial aggravating circumstance to transform the breach of contract into a CUTPA violation." (Internal quotation marks omitted.) Id., 748-49.
In Seven Oaks Partners, LP v. Vigilant Ins. Co., supra, Superior Court, Docket No. CV 09 5012672, the plaintiff alleged a CUTPA violation premised on a violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq. The defendant moved to strike this count, and the plaintiff responded by arguing that it had alleged sufficient facts to maintain a CUTPA claim under the cigarette rule. Id. This court noted that while "the plaintiff . . . does not explicitly allege a cause of action for breach of contract, the crux of the plaintiff's CUIPA/CUTPA claim . . . is the defendant's alleged failure to settle a claim based on an insurance contract between the parties. Even if construed in a manner most favorable to the pleader, the most that [the CUTPA] count . . . alleges is that the defendant purposefully, intentionally and dishonestly sought to avoid payment of the plaintiff's claim. At most, these allegations could demonstrate an intentional breach of contract on the part of the defendant. Absent allegations of additional aggravating factors or egregious conduct, these allegations are insufficient to state a claim for CUTPA under the cigarette rule . . ." Id.
This court made a similar finding in a 2009 decision: "While the plaintiff's allegations of false advertising may constitute sufficient conduct to establish a violation of the cigarette rule . . . the plaintiff fails to allege any facts to substantiate these claims. The complaint's only additional allegations are that the defendant wrongfully failed to pay the plaintiff underinsured motorist benefits pursuant to an insurance contract between the parties. There are no allegations of any facts that would indicate the defendant engaged in sufficiently egregious behavior during the settlement negotiations as to constitute more that an ordinary breach of contract." Finocchio v. Atlantic Mutual Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5009607 (April 22, 2009, Adams, J.) ( 47 Conn. L. Rptr. 624, 627).
Similarly, in the present action, the plaintiff's CUTPA claims are not based on a breach of contract; rather, they are based on breaches of warranties under the UCC and on negligence. The same reasoning applies as in the Seven Oaks decision quoted above. The plaintiff's CUTPA count alleges that the defendant failed to deliver the stalls on time, failed to provide all of the components of the stalls and failed to properly fix the faulty doors. This is a very close case. Certainly the complaint makes allegations that causes one to wince at the supposed recklessness of the defendant's operations. While these allegations might demonstrate a breach of warranties or even a breach of an oral agreement (although no action relating to such an agreement is brought), nowhere in the complaint does the plaintiff allege, nor can one infer, that the defendant made promises with the contemporaneous intent not to fulfill those promises. Thus, the court determines the allegations do not constitute aggravating factors or egregious conduct of the type sufficient to state a claim for violation of CUTPA, and the defendant's motion to strike count five is granted.
II
PRAYER FOR RELIEF
The defendant moves to strike the plaintiff's prayer for relief seeking attorneys fees. In its memorandum in support of the motion to strike, the defendant fails to provide any legal argument in support of this motion to strike. On that basis alone, this court could deny that portion of the motion. Practice Book § 10-41; see also Stahl v. Rivermead, Inc., Superior Court, judicial district of Hartford, Docket No. CV 04 4005396 (March 27, 2006, Langenbach, J.) ("[b]ecause the defendants have failed to brief the issues concerning the motion to strike the prayers for relief, this portion of the motion is denied"). Nevertheless, in reality the court knows of no basis for seeking attorneys fees other than the CUTPA count. Therefore, the claim for attorney fees is stricken as well.