Opinion
FSTCV176033158S
01-24-2019
ROGER POEHLSEN CONSTRUCTION v. Mary Kate O’NEILL et al.
UNPUBLISHED OPINION
GENUARIO, J.
I. INTRODUCTION
The defendants Mary Kate O’Neill (O’Neill) and Frank Bistrian (Bistrian) (collectively "the movants") move to strike counts five and seven of the revised complaint (# 122). According to the allegations of the complaint the plaintiff is a limited liability company that provides construction-related services and materials including but not limited to excavation, site work, septic installation, masonry and landscaping. O’Neill owns and resides on a parcel of property located in Greenwich, Connecticut. Bistrian is O’Neill’s husband and also resides at the same Greenwich parcel (the property). The plaintiff was hired by the co-defendant Ocean Pacific Interiors, Inc. (OPI) to perform significant work on the property involved in the construction of O’Neill and Bistrian’s personal residence. The plaintiff claims that it performed a substantial amount of work and there remains a balance due and unpaid in the amount of $ 162, 414.06. The plaintiff brings this action seeking to recover such sums and for other relief on several theories of law against multiple defendants. In the fifth count the plaintiff seeks to recover amounts from OPI claiming that the plaintiff is a third-party beneficiary of an agreement between Bistrian and OPI. The movants seek to strike the fifth count on the grounds that the plaintiff has not alleged the essential elements of a third-party beneficiary claim. In the seventh count the plaintiffs seek to recover from Bistrian under a theory that he has violated the Connecticut Unfair Trade Practices Act (CUTPA). The movants seek to strike the seventh count again arguing that the plaintiff has not alleged the essential elements of a CUTPA claim. A more detailed recitation of the allegations will be discussed as they relate to the particular counts.
The plaintiff has since filed a second revised complaint (docket # 137). Since counts five and seven are substantially the same and the revisions do not affect the issues raised by this motion to strike, the court will treat this motion as a motion to strike the fifth and seventh counts of the second revised complaint.
II. MOTION TO STRIKE-STANDARDS
"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." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003) (internal quotation marks omitted). "It is fundamental in that 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." Violano v. Fernandez, 280 Conn. 310, 318 (2006) (internal quotation marks omitted). "If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the compliant is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471 (1991). "[F]or the purpose of a motion to strike, the moving party admits to all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007) (internal quotation marks omitted). A motion to strike admits "all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997) (emphasis in original; internal quotation marks omitted).
The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117 (2006) (internal quotation marks omitted). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint] construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378 (1997) (internal quotation marks omitted).
III. DISCUSSION
A. The Motion to Strike the Fifth Count
The movants seek to strike the fifth count on the grounds that the plaintiff has not alleged the essential elements of a cause of action arising out of a third-party beneficiary relationship to a contract. The problem with the movants’ attempt to strike the fifth count is that the fifth count is not directed against either of the movants, but is directed solely against OPI. In the fifth count the plaintiff seeks to recover damages from OPI based upon the plaintiff’s claim that it is a third-party beneficiary of an agreement between Bistrian and OPI. Multiple trial court decisions have held that a defendant may not move to strike a portion of a complaint that is not directed against that defendant. See e.g. Hofmiller v. Joseph, 18 Conn.Supp. 143 (1952); Pistorio v. Fleagane Enterprises, Inc., Superior Court, judicial district of New Britain, Docket Number CV000504270 (April 24, 2001, Shapiro, J.); Maynard v. Bartnic, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV910283647 (August 13, 1992, Lewis, J.) Because the fifth count is not directed against the movants, their motion to strike the fifth count must be and is denied.
The fifth count in the revised complaint is directed against OPI and the defendant Tier 4 Critical Systems, Inc. (Tier 4). In the second revised complaint it is directed only against OPI.
B. The Motion to Strike the Seventh Count
The seventh count is directed against Bistrian only and alleges that Bistrian is liable to the plaintiffs for violations of CUTPA. The plaintiff alleges a somewhat unusual fact pattern as follows. Bistrian has long been employed in the construction industry for a domestic development company called "WeWork." Bistrian’s responsibilities include awarding construction contracts for office buildings and Bistrian awarded several lucrative construction contracts to OPI. In exchange for the award of the contracts OPI agreed to manage and fund the construction of Bistrian’s family home. The seventh count then proceeds to allege certain unfair or deceptive conduct of Bistrian toward the plaintiff that the plaintiff claims would fall within the prohibitions of CUTPA. The allegations therefore are clear that the services and materials that the plaintiff was providing was for construction of the movants’ personal residence.
The plaintiff does not suggest and could not suggest that if the specific offending acts of Bistrian arose simply out of the construction of his personal residence that the plaintiff could maintain a CUTPA action. CUTPA prohibits "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." C.G.S. Section 42-1109(a) (Emphasis added). The plaintiff argues that the allegations contained in the seventh count are broad enough to survive the motion to strike because they include allegations that connect the plaintiff’s work to the Bistrian’s trade or business since the plaintiff’s work arose out of an agreement between Bistrian and OPI which agreement arose out of Bistrian’s conduct of his trade or commerce. The plaintiff concludes that "while the project ... was the construction of his family home, said project was simply a continuation of the defendant Bistrian’s trade and/or business as the project was direct compensation to him arising out of that trade and/or business and thus intertwined with said trade and/or business" (Second revised complaint, paragraph 19).
Connecticut General Statutes § 42-110g authorizes "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 or act or practice prohibited by § 42-110b, may bring an action ..." for damages. Since § 42-110b prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce, the court must determine whether the plaintiff has alleged that Bistrian has engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce. In construing the allegations of the complaint in a manner most favorable to the plaintiff, the court could conclude that the relationship between Bistrian and OPI was one that resulted from the conduct of trade or commerce. But the relationship between Bistrian and the plaintiff did not. To the extent the plaintiff and Bistrian had a relationship, it was a relationship that arose out of the plaintiff performing work or services related to the defendant Bistrian’s personal residence. In having that work done Bistrian was not engaging in the conduct of any trade or commerce. He was building a house for himself and his wife. The fact that he may have been in the construction industry does not transform the delivery of services and materials related to the construction of his personal residence to the conduct of trade or commerce. Moreover, to the extent that the complaint alleges facts which might establish the conduct of trade or commerce between Bistrian and OPI, as uncomplimentary and perhaps inappropriate as that relationship may have been, it does not transform the relationship between the plaintiff and Bistrian into the conduct trade or business. Put another way the plaintiff alleges that Bistrian provided lucrative contracts to OPI. The plaintiff further alleges that OPI, in consideration of those lucrative contracts, provided the defendant Bistrian with services and funding to build Bistrian’s home. That consideration was used to retain the plaintiff to provide goods and services. If the defendant OPI provided the plaintiff consideration in a more liquid form in return for the alleged forwarding of contracts and that consideration was used to retain services for the construction of Bistrian’s personal home that would not transform the relationship between the plaintiff and Bistrian into one arising out of trade or commerce.
Examining the allegations in a manner most favorable to the plaintiff the most that can be said is that the conduct of Bistrian, as it related to the plaintiff, was incidental to this trade or business, if that. Such incidental conduct is insufficient to support a CUTPA claim see e.g., McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523, cert. denied, 277 Conn. 928 (2006); Biro v. Matz, 132 Conn.App. 272, 289-90; Sovereign Bank v. Licata, 116 Conn.App. 483, 493-94 (2009). The Sovereign Bank case is particularly instructive. In Sovereign Bank within the context of a foreclosure action, the defendant property owner counterclaimed against the plaintiff for alleged CUTPA violations. In Sovereign Bank the substituted plaintiff was engaged in the business of real estate acquisition including the purchase, sale or renovation of real property. However, in the case then before the court they had acquired a mortgage loan and note from Sovereign Bank. The defendant in its counterclaim alleged that the substituted plaintiff had engaged in deceptive conduct in the conduct of its trade or commerce. However, there was no evidence presented at trial that the substituted plaintiff had ever previously engaged in the mortgage business. The counterclaim merely alleged that the ancillary transaction of acquiring the mortgage was incidental to the substituted plaintiff’s real estate business. The jury returned a verdict in favor of the defendant on its counterclaim sounding in a CUTPA violation. The Appellate Court set aside the verdict and ordered that judgment be entered in favor of the substitute plaintiff on the CUTPA claim, since the acquisition of the mortgage was at most incidental to its real estate business. Similarly, regardless of what the origin of the consideration between Bistrian and OPI was that consideration was merely utilized to acquire services from the plaintiff for the construction of the Bistrian’s personal residence. The services provided by the plaintiff and the conduct of Bistrian to the plaintiff was, at most, incidental to his trade or business. "The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce ..." Krawiec v. Blake Manor Development Corp., 26 Conn.App. 601, 607 (1992). In constructing his personal residence the defendant Bistrian was not engaged in the conduct of any trade or commerce. He was engaged in the development of a personal residence for himself. A CUTPA claim requires us to examine the nature of the relationship between the plaintiff and Bistrian and whether that relationship results in the conduct of any trade or commerce. In the instant case it does not. The fact that the plaintiff alleges that Bistrian obtained the consideration from which the plaintiff was brought to the project by OPI as a result of the conduct of his trade or business cannot make other transactions between Bistrian and the plaintiff anything more than incidental to the conduct of Bistrian’s trade or business.
Indeed if the defendant OPI had provided the plaintiff with cash in exchange for the forwarding of lucrative contracts, the utilization of that cash to retain someone to do work on his personal residence would not transform that conduct into the conduct of a trade or commerce.
The issue of whether there was anything illegal or inappropriate regarding the relationship and transactions between Bistrian and OPI is not before the court. Moreover, the recitations of occurrences, transactions and agreements contained in this Memorandum are recitations of allegations only which the court must treat as true within the context of a Motion to Strike. Accordingly, the court makes no comment in that regard.
Accordingly the court concludes that the seventh count does not contain allegations that Bistrian was engaged in the conduct of a trade or business with regard to any actions he took toward the plaintiff. The motion to strike the seventh count must be and is granted.
IV. CONCLUSION
For all these reasons the court denies the movants’ motion to strike the fifth count and grants the movants’ motion to strike the seventh count.
Of course O’Neill has no standing to attack the seventh count since it is not directed against her, but Bistrian does.