Opinion
No. CV-09-5010324-S
June 15, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103
The named plaintiff, Metro Roofing Supplies, Inc., commenced this action against defendant Wanzer's Carpentry, LLC and Robert Wanzer. The complaint contains four counts alleging a breach of contract (Count One), unjust enrichment (Count Two), violation of CUPTA (Count Three), and breach of guaranty (Count Four). The plaintiff alleges that it is in the business of supplying and delivering roofing materials for residential and commercial construction projects. As part of its business the plaintiff entered into a written credit application with the defendant, Wanzer Carpentry and a guaranty from Robert Wanzer for any amounts owed by Wanzer's Carpentry. During the period of time from December 2000 to December 2008, the plaintiff supplied Wanzer's Carpentry with roofing materials to be utilized in residential construction projects. Payments were made for the materials until 2008 when payments were inconsistent and thereafter stopped. There is an outstanding balance for furnished roofing supplies of $18,003.67. The plaintiff alleges that although demand for payment has been made the defendants have failed to make payments.
On May 22, 2009, the defendants filed a motion to strike Count Three on the grounds that the allegations are simply a breach of contract and do not satisfy the legal criteria for a claim of violation of the Connecticut Unfair Trade Practices Act (CUTPA). On June 3, 2009, the plaintiff filed an objection to the motion claiming that the motion failed to satisfy the requirements of Practice Book Section 10-41 and that Count Three sufficiently alleges a CUTPA claim.
LEGAL 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). Pursuant to Practice Bock Section 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 objection by the plaintiff is two-fold. The first argument addressed by the plaintiff is the failure by the defendant to comply with Practice Book Section 10-41 because the motion does not specifically state the grounds for the insufficiency. The plaintiff's second objection addresses the nature of the claimed insufficiency.
Practice Book Section 10-41 states in part: "Each motion to strike raising any of the claims of legal insufficiency . . . shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." The motion to strike Count Three filed by the defendants states: "that said count is not legally sufficient to support an allegation of violation of the Connecticut Unfair Trade Practices Act (CUTPA) in that said count merely alleges a breach of a simple contract to pay for materials." The question to be decided as to the adequacy is whether the motion adequately submitted the material issue to the court. The plaintiff argues that Stuart v. Freiberg, 102 Conn.App. 857, 927 A.2d (2007), is controlling. However, the court can distinguish the facts in Stuart from the present case. In Stuart the motion addressed four distinct counts and the defendant's motion in Stuart simply alleged, without addressing each specific count that the claims were not sufficient. Id. 862. Unlike this action, there was no basis in Stuart except for the perfunctory claim of insufficiency. The instant matter involves only one count alleging a CUTPA violation. Additionally, the motion provides more rationale than simply insufficient allegations. The case of Rowe v. Godou, 12 Conn.App. 538, 532 A.2d 1073 (1987), rev'd on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988) provides a closer analysis to the question of whether this motion is adequate. In Rowe, the court stated: "[A] motion to strike which is unspecific, but which adequately submits the material issue to the court . . . is sufficient to comply with [the] Practice Book . . ." Id., 541-42. The court found that the defendant's motion "was arguably unspecific, but did sufficiently apprise the court of the reasons for the claimed insufficiency of the plaintiff's complaint." Id., 542.
The motion filed by the defendants in the instant case does provide the court with a direction by claiming not just insufficiency but also an issue that the facts support only a breach of contract action as the basis for the motion. In this respect, the court does find that the motion has a sufficient basis to consider the legal argument concerning the alleged CUTPA violation.
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 Statute Section 42-110b. The test used in determining whether a defendant's action constitutes an unfair or deceptive trade practice is the three-part criteria known as the "cigarette rule." McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984). The three 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 other businessmen).
Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695, 804 A.2d 823 (2002) (internal quotation marks omitted).
"[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) "[N]ot every contractual breach rises to the level of a CUTPA violation." Hudson Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 571, 845 A.2d 417 (2004). Count Three of the complaint includes language that the defendant, Wanzer Carpentry, has violated a trust to receive payments and fail to make payments to the supplier. The plaintiff also alleges that the failure to pay the outstanding amount is intentional and wanton. This Count does not provide a factual basis that would raise an issue that there is a violation of even one of the three criteria under CUTPA. "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 quotations marks omitted.) Zelencich v. American Yacht Services, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV02 0187145 (July 31, 2006, Jennings, J.) In the instant action the plaintiff's complaint does not allege instances amounting to aggravating circumstances. The facts are straightforward that the defendant, Wanzer Carpentry, purchased supplies from the plaintiff for his business over a number of years, used the supplies for roofing jobs and until recently paid his bills. The defendants have an outstanding balance of $18,003.67. This is not a situation where the customers of the defendants have been misled or deceived by the roofing company. In fact, the complaint provides facts that for at least the period of time from 2000 to 2008 the defendant was paying the invoices as they became due and owing. It was well after the parties entered into the credit agreement that the defendants ceased making payments for the supplies. Although the plaintiff has sent invoices and notices demanding payment the defendants have refused to pay the outstanding credit owed. There could not be a clearer example of a simple breach of contract to pay in accordance with the credit agreement than what is alleged in this complaint . . . There are no facts of substantial aggravating circumstances in relation to the credit agreement.
CONCLUSION
The court concludes the plaintiff has not sufficiently alleged facts that support a claim of a CUTPA violation, therefore the motion to strike Count Three of the plaintiff's complaint is granted.