Opinion
No. FST CV-07-5003090
August 5, 2009
MEMORANDUM OF DECISION MOTION TO STRIKE #134
FACTUAL BACKGROUND
The named plaintiff, Frank LaMotte, commenced this action against the defendant LaMotte Landscaping, LLC. The original complaint contained four counts alleging breach of contract (First and Second Counts) and unjust enrichment (Third and Fourth Counts). Thereafter, the plaintiff filed two separate motions to cite in defendants. The additional defendants are John Cappiali and Capp Industries as well as Clubhouse Land Services, LLC. The plaintiff, Frank LaMotte, sold his landscaping business to John Cappiali. The parties entered into a promissory note for $125,000 to be paid in monthly installments. The parties also entered into an oral agreement for consulting services from Frank LaMotte to help facilitate the transfer of ownership. The plaintiff provided consulting services for ten weeks. The business was operated by John Cappiali as LaMotte Landscaping, LLC and Capp Industries, Inc. The defendant, John Cappiali, made the first payment of $5,596.57 for the note and thereafter $3,000 was paid for the consulting services of the plaintiff. Checks written by Capp Industries did not clear for other payments. The plaintiff contends that the remaining balance of $120,132.60 has not been paid on the note as well as $7,000.00 for the consulting services. The Defendant, LaMotte Landscaping, LLC, has filed an answer, special defenses and a counterclaim. The counterclaim contains three counts alleging breach of contract (First Count), unjust enrichment (Second Count) and Connecticut Unfair Trade Practices Act (CUTPA) (Third Count).
On May 5, 2009, the plaintiff filed a motion to strike the Second and Third Counts of the Counterclaim filed by the defendant LaMotte Landscaping, LLC. The plaintiff contends in his memorandum in support of the motion to strike the counterclaim that the defendant fails to allege the necessary facts to support the claims as to these counts. The defendant has not filed an objection to the motion.
LEGAL DISCUSSION CT Page 13356
"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). Pursuant to Practice Book § 10-39(a)(1), when a party seeks 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." A motion to strike admits all well-pleaded facts. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 427 A.2d 822 (1980).
The instant motion to strike addresses two separate counts of the counterclaim. Count Two alleges a cause of action for unjust enrichment. The defendant claims that: "the plaintiff has been unjustly enriched by overcharging the defendant for his landscaping business which unjust enrichment should be remedied by cancellation of the Note." Additionally, the defendant incorporates the allegations of the special defense that the defendant received a customer list from the plaintiff that was not truthful and accurate in that they were not real or ongoing customers and thus the defendant's revenues were substantially less than represented. In order to satisfy a claim for unjust enrichment the plaintiff must prove: (1) that Frank LaMotte benefitted; (2) that Frank LaMotte unjustly did not pay for the benefits, and; (3) that the failure of payment was to the detriment of LaMotte Landscaping, LLC. Polverari v. Peatt, 29 Conn.App. 191, 200-01, 614 A.2d 484 (1992). The claims by LaMotte Landscaping, LLC are confusing and inconsistent with the elements of unjust enrichment. The defendant has provided no facts that would satisfy any of the legal elements of this claim. Frank LaMotte's claim is not that he paid too much but that he should not have to pay. Based upon the pleadings no payments have been made that could amount to an enrichment to Frank LaMotte. This count cannot survive a motion to strike.
The second part of the motion to strike involves Count Three which is a claim pursuant to CUTPA. The plaintiff contends that the third count of the counterclaim fails to sufficiently and particularly allege facts that would support this cause of action. The plaintiff also claims that the count should be stricken because it is based upon an alleged breach of contract. CUTPA provides that "no 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. The test in determining whether a defendant's action constitutes an unfair or deceptive trade practice is the "cigarette rule." McLaughlin v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984). The thee criteria are: "(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 — whether, 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 businessmen]." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695, 804 A.2d 823 (2002).
As to this second basis to strike, the plaintiff has ignored the full import of the allegations of the defendant. The focus of the allegations of the defendant pursuant to the CUTPA claim is the purposeful, intentional, untruthful information concerning the list of customers of the business. The defendant contends that it "relied on the truthfulness and accuracy of the Customer List in deciding to purchase the [p]laintiff's landscaping business" and "the Customer List was not truthful and accurate, and many of the customers listed thereon were not real or ongoing customers." The defendant, LaMotte Landscaping, LLC, contends as part of its counterclaim that this action by the plaintiff, Frank LaMotte, was a negligent and intentional misrepresentation and thus it was immoral, unethical, unscrupulous and offended public policy. "[T]he same facts that establish a breach of contract may be sufficient to establish a CUTPA violation . . ." Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992). "There is a split of authority in Superior Court decisions regarding what is necessary to establish a CUTPA claim for breach of contract, the majority of courts holding that a simple breach of contract, even if intentional, does not amount to a violation of CUTPA in the absence of substantial aggravating circumstances." (Internal quotation marks omitted.) Greene v. Orsini, 50 Conn.Sup. 312, 315, 926 A.2d 708 (2007), quoting, Zelenich v. American Yacht Services, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0187145 (July 31, 2007, Jennings, J.). The aggravating factor must be "more than a failure to deliver on a promise." Id., 315, citing Tienshan, Inc. v. George, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV044006907 (July 28, 2006, Sheedy, J.).
The series of events as pled in the special defense and thereafter in the counterclaim are precisely the types of conduct that can be termed substantial aggravating circumstances. The facts as alleged by the defendant in the counterclaim leave open for a factual determination whether there was immoral, unethical, oppressive or unscrupulous behavior on the part of Frank LaMotte in the method he entered into the agreement as well as his representations to the defendant regarding the business enterprise. The facts alleged, if proven, could support the elements essential for a finding of a CUTPA violation separate and distinct from a claim for a breach of contract. These allegations certainly provide a sufficient legally factual basis to survive a motion to strike. Therefore, the motion as to count three of the counterclaim is denied.
Because of the court's ruling in regard to the CUTPA claim the court will deny the motion to strike the demand for "punitive damages pursuant to [General Statutes § 42-110g(a)" and "attorneys fees pursuant to [General Statutes § 42-110g(a)."
CONCLUSION
The motion to strike Count Two of the counterclaim is granted and the motion to strike Count Three is denied. The motion to strike the demand for damages and attorneys fees pursuant to General Statutes § 42-110g(a) is denied.