Opinion
CV156013185
11-16-2015
Kent Literary Club of Wesleyan University v. Wesleyan University et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (#119)
Elpedio N. Vitale, J.
Pursuant to Connecticut Practice Book § 10-39, Wesleyan University, Michael S. Roth and Michael J. Whaley (collectively, the " Defendants") move to strike certain counts of the Revised Complaint filed by Kent Literary Club of Wesleyan University at Middletown, Gamma Phi Chapter of DKE at Wesleyan, Zac Cuzner and Tucker Ingraham (collectively, the " Plaintiffs") on May 22, 2015.
The defendants first argue that Counts One through Three, and Sixteen through Twenty-seven that sound in violation of the Connecticut Unfair Trade Practices Act (" CUTPA") fail to allege facts sufficient to establish the essential elements of a violation of CUTPA.
With regard to Counts One through Three, plaintiffs DKE, Cuzner and Ingraham claim that Wesleyan violated CUTPA by misrepresenting that it would provide program housing in DKE House. In Counts Sixteen through Twenty-seven, DKE and KLC also contend that Wesleyan violated CUTPA by misrepresenting the criteria needed for program housing.
However, the defendants argue that in said counts, the plaintiffs do not allege facts sufficient to establish that Wesleyan's alleged misrepresentations violate CUTPA. In addition, defendants further argue that Counts Four through Nine and Thirty-one through Thirty-four, alleging breach of contract and breach of the implied covenant of good faith and fair dealing should be stricken because the plaintiffs have failed to allege facts sufficient to demonstrate the parties entered into an enforceable contract. The defendants submitted a memorandum of law in support of their Motion to Strike.
The plaintiffs object to the motion and argue that contrary to the defendants' assertions with regarding to the subject CUTPA counts, the plaintiffs are not required to allege that Wesleyan made representations with the intent of not allowing DKE House to be eligible for program housing status. The plaintiffs assert that CUTPA " prescribes a broader range of conduct than did the common-law action for innocent misrepresentation" and that since CUTPA, in the view of the plaintiffs, " does not require an intent to deceive, even an allegation of innocent misrepresentation" can amount to a CUTPA violation. Plaintiffs argue that they are not required to allege Wesleyan made representations with the intent of not allowing DKE House to be eligible for program housing status. Further, plaintiffs assert that Counts Sixteen through Twenty-seven allege that the defendants have sought to deceive plaintiffs DKE and KLC and that the defendants made false representations about what the plaintiffs DKE and KLC would need to do to meet the defendants' requirements.
As to Counts Four through Nine and Thirty-one through Thirty-four, plaintiffs argue that they have alleged sufficient facts to demonstrate the existence of an implied contract and a breach of the covenant of good faith and fair dealing to withstand a motion to strike.
The plaintiffs submitted a memorandum in opposition to the motion. The court heard oral argument on the matter on November 2, 2015.
DISCUSSION
" 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). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) America Progressive Life & Health Ins. Co. Of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). The court must " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co of New York v. Better Benefits, LLC., supra, 292 Conn. 120.
The motion to strike requires no factual findings by the court. Broadnax v. City of New Haven, 270 Conn. 133, 851 A.2d 1113 (2004). " In determining the sufficiency of a complaint defendant's motion to strike, all well-pleaded and those facts necessarily implied from the allegations are taken as admitted." Coe v. Board of Education, 301 Conn. 112, 116-17 19 A.3d 640 (2011).
" If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike"; Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991); but " [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.) Bridgeport Harbour Place I, LLC. v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).
" The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint. A 'speaking motion' to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 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 complaint).
" Connecticut is a fact pleading jurisdiction . . . [The] purpose of pleading is to frame, present, define and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial." (Citations omitted; internal quotation marks omitted.) Industrial Mold & Tool, Inc. v. Zaleski, 146 Conn.App. 609, 614, 78 A.3d 218 (2013). Practice Book § 10-1 provides in relevant part, " Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . ." Practice Book § 10-2 provides further clarification by stating in relevant part that " the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove . . ." Thus, there must be " facts provable in the complaint [that] would support a cause of action." (Internal quotation marks omitted.) Himmelstein v. Windsor, 304 Conn. 298, 307, 39 A.3d 1065 (2012).
I.
CUTPA
Counts One Through Three
Counts Sixteen through Twenty-seven
The Connecticut Unfair Trade Practices Act (CUTPA) provides, in relevant part, 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). " [T]o prevail on a CUTPA claim, the plaintiffs must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce . . . and (2) each class member claiming entitlement to relief under CUTPA has suffered an ascertainable loss of money or property as a result of the defendant's acts or practices." (Citation omitted; footnote omitted.) Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 657, 986 A.2d 278 (2010). " Moreover, a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce." (Internal quotation marks omitted.) Landmark Investment Group, LLC v. Chung Family Partnership, LLC, 125 Conn.App. 678, 700, 10 A.3d 61 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011).
" It is well settled that in determining whether a practice violates CUTPA, [our 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 . . . All three criteria do not need to be satisfied to support a finding of unfairness . . . 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.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350-51, 994 A.2d 153 (2010).
The legislature has directed that when analyzing a CUTPA claim " courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1))." General Statutes § 42-110b(b). Ramirez v. Healthnet of the Northeast, Inc., 285 Conn. 1, 19, 938 A.2d 576 (2008).
" [The FTC] . . . concluded that '[u]njustified consumer injury is the primary focus of the FTC Act, and the most important of the three . . . criteria.' D. Rice, Consumer Unfairness of the FTC: Misadventures in Law and Economics, 52 Geo.Wash. L.Rev. 1, 4 (1983), quoting letter from FTC commissioners, December 17, 1980. '[T]he Commission explained that regulation is permissible only if a practice causes [unjustified] injury that is substantial . . .' Id. " Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 242-43, 520 A.2d 1008 (1987).
Despite differing analyses of the three prongs, the third prong has special significance. " The third factor for determining whether an act or practice was unfair or deceptive, that is whether it caused substantial unjustified injury to consumers, competitors or other business people, is the most important of the three criteria for determining whether there has been a violation of CUTPA. Proof of an unjustified injury to consumers, competitors or other business people is a necessary predicate for recovery under [CUTPA]." (Internal quotation marks omitted.) Thames River Recycling v. Gallo, 50 Conn.App. 767, 785, 720 A.2d 242 (1998).
" 'In discussing the third criterion, the federal trade commission has stated: The independent nature of the consumer injury criterion does not mean that every consumer injury is legally unfair, however. To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided. Letter from Federal Trade Commission to Senators Ford and Danforth (Dec. 17, 1980) (reprinted in Averitt, The Meaning of Unfair Acts or Practices in 5 of the Federal Trade Commission Act, 70 Geo.L.J. 225, 291 [1981] . . . McLaughlin Ford, Inc. v. Ford Motor Co., [192 Conn. 558, 569-70, 473 A.2d 1185 (1984)].
A subset of unfair practices, recognized by our Supreme Court, is deceptive practices. Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 254, 550 A.2d 1061 (1988) (" a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy" [citation omitted; internal quotation marks omitted]). " [A]n act or practice is deceptive if three requirements are met. First, there must be a representation, omission, or other practice likely to mislead consumers. Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading representation, omission, or practice must be material--that is, likely to affect consumer decisions or conduct." (Footnote omitted; internal quotation marks omitted.) Caldor, Inc. v. Heslin, 215 Conn. 590, 597, 577 A.2d 1009 (1990), cert. denied, 498 U.S. 1088, 111 S.Ct. 966, 112 L.Ed.2d 1053 (1991).
With regard to the requirement as to misrepresentations, " [i]t 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 . . . [Even an] innocent misrepresentation can amount to a CUTPA violation . . . Where . . . a defendant made a representation during the course of the defendant's business practice, with or without the intent to deceive . . . and the misrepresentation led a plaintiff to lose money or property, that plaintiff has alleged a cause of action under CUTPA." (Citations omitted; internal quotation marks omitted.) Webster Financial Corp. v. McDonald, Superior Court, judicial district of Waterbury, Docket No. CV-08-4016026-S (January 28, 2009, Brunetti, J.). However, an innocent misrepresentation may be an aggravating circumstance under CUTPA only " if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth." (Internal quotation marks omitted.) Friedlander Limited Partnership v. Cohen, Superior Court, judicial district of Fairfield, Docket No. CV-04-0412547-S (April 15, 2005, Skolnick, J.), quoting Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575, 657 A.2d 212, (1995).
As to fraudulent misrepresentations, " CUTPA liability should not be imposed . . . when a defendant merely has not delivered on a promise unless the defendant made a representation as to a future act coupled with a present intent not to fulfill the promise." Webster Financial Corp. v. McDonald, supra, Superior Court, Docket No. CV-08-4016026-S . " The court is not aware of a 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." (Internal quotation marks omitted.) Emmes Realty v. Weisman Law Offices, Superior Court, judicial district of Waterbury, Docket No. CV-06-5001877-S (April 16, 2007, Upson, J.). If not for the requirement that the promise be coupled with a present intent not to deliver, " every simple breach of contract claim would constitute a CUTPA violation since in every breach of contract claim the party who is accused of the breach has not performed on a prior representation . . . made at the time of contract formation." Designs on Stone, Inc. v. Brennan Construction Co., Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-97-059997 (April 9, 1998, Corradino, J.) (21 Conn. L. Rptr. 659, 661).
In Paragraph nineteen of the First Count, the plaintiffs allege the following:
19. The foregoing acts and/or practices on the part of the Defendant Wesleyan violate the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. Sec. 42-110b et seq., based on one or more of the following facts:
a. Defendant Wesleyan is engaged in trade or commerce within the meaning of CUTPA by virtue of its advertising of, and its offering for rent or lease, various properties to students as residential housing, which it markets as an integral part of their educational experience;
b. The members of Plaintiff DKE are consumers of said goods and services within the meaning of Conn. Gen. Stat. § 42-110b;
c. Defendant's representations that it would provide the members of Plaintiff DKE, as upperclassman, with Program Housing in DKE House were and are false;
d. Defendant's acts and/or practices in promising to provide and thereafter refusing to provide Program Housing in DKE were and are deceptive, in that they had a tendency and capacity to deceive consumers such as the plaintiff;
e. Defendant's acts and/or practices violate the public policy of the State of Connecticut, as it has been established by statues, common law or otherwise;
f. Defendant's acts and/or practices were immoral, unethical, oppressive or unscrupulous;
g. Defendant's acts and/or practices caused substantial injury to the plaintiff DKE and its members as consumers, both because they have been deprived of the promised housing of their choice and because residence in DKE House is substantially less expensive than other housing offered by defendant Wesleyan.
Almost identical language is used to describe the alleged CUTPA violation in Counts Two and Three as they relate to each individual plaintiff. In Paragraph Thirty-four of Count Sixteen, the plaintiffs allege the following:
34. The foregoing acts and/or practices on the part of the defendant violate the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42-110b et seq. (" CUTPA"), in that it engaged in unfair methods of competition based on one or more of the following facts:
a. Wesleyan is and has been engaged in trade or commerce within the meaning of CUTPA by virtue of its advertising of, and its offering for rent or lease, various properties to students as residential housing and, as such, is and has been a competitor of the plaintiff KLC;
b. Defendant's representations to plaintiff KLC concerning the criteria it would have to meet in order to continue to offer DKE House as Program Housing were false;
c. Defendant's acts and/or practices were deceptive, in that they had a tendency and capacity to deceive the plaintiff KLC;
d. Defendants' acts and/or practices violated public policy of the State of Connecticut, as it has been established by statutes, common law or otherwise;
e. Defendants' acts and/or practices were immoral, unethical, oppressive or unscrupulous;
f. Defendants' acts and/or practices constituted a unilateral breach of Wesleyan's contract with KLC.
Almost identical language is used to describe the alleged CUTPA violation in Counts Seventeen through Twenty-seven.
Plaintiffs' CUTPA claims are based on alleged misrepresentations of future conduct. The essence of the claims is that Wesleyan falsely represented that it would provide housing in the DKE House, as well as falsely representing the criteria needed for DKE House to be eligible for program housing. However, what is omitted, in the court's view, is any express or implied allegation that Wesleyan made such representations with the intent not to allow DKE House to be eligible for program housing status--simply put, that Wesleyan made representations as to its future acts coupled with the present intent not to fulfill said promises. Indeed, the complaint itself contains language describing the alleged course of the negotiations related to the continuation of program housing in the DKE House. For example, in the first count, plaintiffs allege in Paragraph twelve that " Wesleyan has used, and continues to use, DKE and DKE House to recruit student-athletes" . . . one or more members of the plaintiff DKE, including, plaintiffs Cuzner and Ingraham, chose to attend Wesleyan, in whole or in part, on the basis of their desire to become DKE members and to reside in DKE House." Paragraph Fourteen alleges in part that Wesleyan emphasizes the " diversity of housing options" and " specifically included in the description the opportunity for upperclassmen to select Program Housing at DKE House. The Sixteen Count, Paragraphs Eighteen through Thirty-one, purport to describe the negotiations that followed in the aftermath of Wesleyan's decision that " residential fraternities must become fully co-educational over the next three years." While the plaintiff urges the court to interpret such language in the complaint and such alleged conduct as implicitly demonstrating the intent required for a CUTPA claim, the court concludes that to do so would be to resort to speculation. The interpretation the plaintiffs urge the court to adopt appears inconsistent with the course of conduct attributed to the defendant as described in the complaint, and does not warrant an inference that it made representations with the intent of not fulfilling them.
" Nowhere . . . does the plaintiff allege [that] the defendant had a present intent not to deliver on [the] representations to [them]." Patrician v. Melanson, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV05-4004508 (July 10, 2006, Dubay, J.) In Lavy v. W& M Construction Corp., Superior Court judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-01-0187185-S (June 10, 2003, Adams, J.) (34 Conn. L. Rptr. 721), the plaintiffs, in support of their CUTPA claim, alleged that " [the defendant] failed to perform its architectural services in a workmanlike manner, and deceived the plaintiffs by representing he would do so." Id., 722. The court struck the claim because " the pleading [was] barren of any allegation or inference that [the defendant] said or represented anything which it knew to be untrue." It is also unclear from the complaint whether plaintiffs have alleged a sufficient factual basis for the court to conclude an injury was suffered that they " themselves could not reasonably have avoided" was substantial, and not outweighed by any countervailing benefits. See McLaughlin Ford, Inc., supra . The aggravating circumstances described in McLaughlin Ford, Inc., supra relevant to " innocent misrepresentations" are not clearly alleged in the complaint.
II.
Breach of Contract/Breach of Implied Covenant of Good Faith and Fair Dealing Counts Four through Nine
Counts Thirty-one through Thirty-four
In Counts Four through Nine and Thirty-one through Thirty-four, the plaintiffs allege claims against Wesleyan for breach of contract and breach of the implied covenant of good faith and fair dealing.
According to the defendant, " Plaintiffs fail to allege that the parties entered into an enforceable contract. Plaintiffs do not plead facts to show an offer and acceptance of definite and certain contract terms between the parties, much less than the parties shared an identical understanding of terms sufficient to form a binding contract. Plaintiffs merely assert that Wesleyan promised to offer its students 'an equitable and inclusive education, ' a community that is 'diverse and unique' and further, that in all its operations 'it will not discriminate on the basis of sex.'" The defendant submits that " these assertions fall short of establishing the existence of an agreement, much less that Wesleyan was contractually obligated by any 'promises' to plaintiffs." Defendant also argues that the " plaintiffs' allegations fail to demonstrate that the parties reached an agreement to include DKE House in 2015-16 program housing."
In response, the plaintiffs contend that " they have alleged sufficient facts to demonstrate the existence of an " implied contract." Plaintiffs allege that the complaint does " demonstrate the formation of an implied agreement under this set of facts--that there was an agreement between the defendant Wesleyan and the plaintiffs KLC and DKE that if the plaintiffs met the defendant Wesleyan's requirements, the plaintiff DKE would maintain its program housing status. The plaintiffs met the reasonable requirements of the defendant Wesleyan, yet the defendant Wesleyan refused to grant the plaintiff DKE certain things."
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages." (Internal quotation marks omitted.) Hawley Avenue Associates, LLC. v. Robert D. Russo, M.D. and Associates Radiology, P.C., 130 Conn.App. 823, 832, 25 A.3d 707 (2011). This requirement is said to apply to both express and implied in fact contracts. See Bross Hillside Acres, Inc., 92 Conn.App. 773, 780, 887 A.2d 420 (2006).
" To survive a motion to strike, the allegations in a complaint alleging breach of contract must include specific factual allegations concerning the formation and terms of the express contract that the plaintiff claims [it] had with the defendant." (Internal quotation marks omitted, internal punctuation omitted.) DeWitt v. Gill & Gill Architects, LLC., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 09 5011135 (November 22, 2011, Adams, J.). " To form a valid and binding contract . . . there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties . . . If the minds of the parties have not truly met, no enforceable contract exists . . . [A]n agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). " A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties." (Internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 730, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885, (1996).
" [A] properly pleaded claim for breach of an implied contract must plead sufficient facts that the defendant agreed, either by words, conduct or action, to be bound by some form of actual contractual commitment." Joyner v. Simkins Industries, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 04 4000605, (October 18, 2006, Zoarski, J.T.R.), aff'd, 111 Conn.App. 93, 957 A.2d 882 (2008).
Under Connecticut law there exists two distinct types of implied contracts, those in fact and those implied in law. See Vertex v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178, (2006). The formation of [a]n implied in fact contract is the same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties. Id., 573-74. Such a contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services. In such a case, the law implies from the circumstances, a promise by the defendant to pay the plaintiff what those services are reasonably worth . . . Janusauskas v. Fichman, 264 Conn. 796, 804-05, 826 A.2d 1066, (2003).
Courts have distinguished the formation of a contract implied in fact from a contract implied in law. [A]n implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . . . It is based on equitable principles to operate whenever justice requires compensation to be made . . . An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party . . . Accordingly, an implied in law contract is another name for a claim for unjust enrichment . . . Vertex v. Waterbury, supra, 278 Conn. 574. Although the language " may arise" is used in the opinion, implying that a contract implied in law is a broader concept, the Connecticut Supreme Court has repeatedly held unjust enrichment analogous with an implied in law contract, essentially rendering the two terms interchangeable. See Id., 573-74; Yale Diagnostic Radiology v. Estate of Foundation, 267 Conn. 351, 359, 838 A.2d 179, (2004); Meaney v. Connecticut Hospital Ass'n., Inc., 250 Conn. 500, 511-12, 735 A.2d 813 (1999).
Applying the foregoing principles to allegations at issue, the court concludes that the contested counts do not plead sufficient facts to demonstrate the defendant agreed to be bound to some form of actual contractual commitment. The complaint fails to allege facts that warrant the conclusion that an implied in fact contract was created due to the absence of facts demonstrating assent by the defendant to a contract by its conduct. The court further does not view the allegations at issue as demonstrating a sufficient basis to conclude a contract implied in law has been demonstrated by the facts alleged in the complaint.
" [E]very 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.) Landmark Investment Group, LLC. v. Chung Family Realty Partnership, LLC, 125 Conn.App. 678, 693, 10 A3d 61, 75 (2010), cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011). " [T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144, (2000).
" [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 . . . 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 . . . To constitute a breach of the implied covenant of good faith and fair dealing, the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted.) Renaissance Management Co., Inc. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290, (2007). " Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 563-64, 979 A.2d 1055, cert. denied, 294 Conn. (2009). " Absent allegations and evidence of a dishonest purpose or sinister motive, a claim for breach of the implied covenant of good faith and fair dealing is legally insufficient." Alexandru v. Strong, 81 Conn.App. 68, 81, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).
As the court has determined the complaint fails to plead sufficient facts demonstrating the existence of an express or implied contract, a necessary antecedent to a claim of breach of the duty of good faith and fair dealing is lacking.
Therefore, for the reasons previously articulated, the motion to strike Counts One through Three and Sixteen through Twenty-seven for failure to state a claim under CUTPA, and Counts Four through Nine and Thirty-one through Thirty-four for failure to state claims for breach of contract and breach of the implied covenant of good faith and fair dealing is granted.